Bradley v. Milliken

KENT, Circuit Judge

(concurring in part and dissenting in part):

While I cannot concur in the majority opinion in these cases I am in accord with certain of the conclusions announced in that opinion.

To narrow the scope of this dissent it should be stated at the outset that I am in complete agreement with the majority’s conclusion that on the record as presented and because of the concessions made by counsel for the School District of the City of Detroit during oral argument it appears without question that the Detroit city schools were unconstitutionally segregated and that an order for integration of those schools must be fashioned by the District Court. I am further in accord with the conclusion of the majority that the District Court’s order for the purchase of buses for use in effectuating a plan of integration covering the metropolitan Detroit area is premature and must be stayed until an appropriate plan has been approved by the District Court. I agree that each of the suburban school districts which may be affected by any proposed metropolitan plan is a necessary party to the litigation within the meaning of Rule 19, Federal Rules of Civil Procedure, as found by the majority and that the pleadings must be amended to join such school districts and bring all parties before the 'Court.

It is at this point that I separate from the majority and find myself compelled to state the reasons why I cannot join in the majority opinion. The majority opinion approves the District Court’s conclusion that a Detroit only integration plan would be insufficient to cure the unconstitutional segregation found to have been imposed in the Detroit city schools. Those who join in such a conclusion appear to me to have a misapprehension of the record in this case.

As stated by the Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 , at page 22, 91 S.Ct. 1267 , at page 1278, 28 L.Ed.2d 554 (1971):

“The constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in public schools is discrimination that violates the Equal Protection Clause. The remedy commanded was to dismantle dual school systems.”

The “state-enforced separation of races” to which reference is made in the quoted material was not found to exist in the metropolitan Detroit area. While the District Judge made comments about the segregation of the races with reference to the situation existing within the *275 City of Detroit as related to at least some of the suburban communities within the counties of Wayne, Oakland and Macomb, which comments have been quoted with approval and adopted by the majority of this Court, we cannot escape the conclusion of the District Judge, as stated in his formal opinion, 345 F. Supp. 914 , at page 920 (E.D.Mich.1972), where the Court said:

“It should be noted that the court has taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Ma-comb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation.”

With such a statement in the record it is beyond the comprehension of this writer to understand how the majority can approve the conclusion of the District Court which requires that at least some of the 86 public school districts outside the City of Detroit should be embraced within a metropolitan school district for the purpose of desegregating the Detroit city schools, the only district which has been found from the evidence to have “committed acts of de jure segregation.” Without proof with regard to segregatory activities within the other school districts or in regard to district boundaries any conclusion by the District Court or by this Court that school district boundaries of other districts had the effect of maintaining or creating unconstitutionally segregated schools within the City of Detroit is obviously based on irrelevant, unsubstantial evidence or totally unsupported assumptions.

I am in accord with the application of the statement of the Court of Appeals for the Fifth Circuit (though not in the limitation to specific schools) in United States v. Texas Education Agency, 467 F.2d 848 , at page 883 (5th Cir. 1972), en banc, where the majority opinion quoted the statement in Swann that “the nature of the violation determines the scope of the remedy,” and then proceeded to conclude at page 884:

“The power of the district court will depend first upon a finding of the proscribed discrimination in the school system. Swann, 402 U.S. at 16 , 91 S. Ct. 1267 , 28 L.Ed.2d 554 . In determining the fact of discrimination vel non, whether imposed by statute or as a result of official action, the district court must identify the school or schools which are segregated as a result of such discrimination. This identification ’must be supported by findings of fact. The importance of such a determination will be seen in some populous school districts embracing large geographical areas. There may be segregated schools which are the result of unconstitutional statutes or of official action. There may be other one race schools which are the product of neutral, non-diseriminatory forces.”

If we accept the premise that “the nature of the violation determines the scope of the remedy,” as announced by the United States Supreme Court, then, clearly, the remedy proposed by the District Court, and approved by a majority of this Court, goes far beyond the “nature of the violation” since the District Court has already stated as a conclusion that no evidence was taken as to any violation with regard to any suburban school district.

While the minority in the Texas Education Agency case disapproved of the suggestion of the majority that specific schools within a system must be found to have been segregated, and treated separately, ( 476 F.2d 888 where the minority speaks through Judge Wisdom), yet the minority does not find nor even suggest that it would be appropriate to expand the order for relief beyond the system found to have committed acts which violated the constitutional rights of the plaintiffs in the action.

Through the majority’s opinion runs the thread which holds it together. That thread is the unwillingness appar *276 ent in the minds of the majority to sanction a black school district within a city which it concludes will be surrounded by white suburbs. While the majority does not now state that such a demographic pattern is inherently unconstitutional, nevertheless, I am persuaded that those who subscribe to the majority opinion are convinced, as stated in. the slip opinion of the original panel, “big city school systems for blacks surrounded by suburban school systems for whites cannot represent equal protection of the law.” While that statement has been removed from the opinion of the majority, yet the premise upon which the statement was obviously based must necessarily form the foundation for the conclusions reached in the majority opinion. It may be that sueh will become the law, but such a conclusion should not receive our approval on a record such as exists in this case.

As has been pointed out in the other opinions, the boundaries of the school district of the City of Detroit have been co-terminus with the boundaries of the City of Detroit for more than 100 years. Those lines were laid out at a time when there was a minimal black population in the metropolitan area of Detroit, if there was such metropolitan area at the time the boundary lines were established.

The District Judge and the majority make much of the fact that “if the boundary lines of the school districts of the City of Detroit and the surrounding suburbs were drawn today few would doubt that they could not withstand constitutional challenge.” This interesting statement provides a fertile field for speculation but certainly has no v&lidity. A proposal to adopt an amendment to the Constitution of the United States in the same manner and with the same people voting as adopted the Constitution of the United States would be stricken immediately. I know of no one who would suggest that because of changes in the methods of electing the membership of state legislatures that the Constitution of the United States thereby becomes unconstitutional. The quoted statement is to me a complete non sequitur.

I know of no authority which would permit a Court to announce a conclusion, based upon a violation of the Constitution, absent the taking of proofs to establish such constitutional violation, which proofs the District Judge stated he did not take in this case.

Absent proofs, which clearly were not taken, to establish a violation of the constitutional rights of these plaintiffs by the suburban school district personnel and by the State of Michigan in laying out suburban school district lines it would appear that we are in complete and absolute conflict with the prior decisions of this Court. In Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), cert, denied 389 U.S. 847 , 88 S.Ct. 39 , 19 L.Ed.2d 114 (1967) {Deal I), this Court rejected the contention that the state had an affirmative obligation to balance schools racially (in that case within the City of Cincinnati) “to counteract the variety of private pressures that now operate to restrict the range of choices presented to each school child.” 369 F.2d at 59 .

Deal I was cited with approval by this Court in Davis v. School District of City of Pontiac, 443 F.2d 573 (6th Cir. 1971), cert, denied 404 U.S. 913 , 92 S.Ct. 233 , 30 L.Ed.2d 186 (1971). The Court said at page 575:

“Appellants correctly contend that under Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), cert, denied, 389 U.S. 847 , 88 S.Ct. 39 , 19 L.Ed.2d 114 (1967), a school district has no affirmative obligation to achieve a balance of the races in the schools when the existing imbalance is not attributable to school policies or practices and is the result of housing patterns and other forces over which the school administration had no control.”

The majority, while refusing to overrule Deal I and Davis , creates without evidence an obligation to achieve a balance of the races in schools not in a school district but in a metropolitan *277 area, and does so while denying to the vast majority of the school districts involved in such metropolitan area the opportunity to offer evidence to establish that they had not been used for or guilty of any segregative practices. Many other appellate courts have agreed with Deal and Davis . Downs v. Board of Education of Kansas City, 336 F.2d 988, 998 (10th Cir. 1964):

“Appellants also contend that even though the Board may not be pursuing a policy of intentional segregation, there is still segregation in fact in the school system and under the principles of Brown v. Board of Education, supra, the Board has a positive and affirmative duty to eliminate segregation in'fact as well as segregation by intention. While there seems to be authority to support that contention, the better rule is that although the Fourteenth Amendment prohibits segregation, it does not command integration of the races in the public schools and Negro children have no constitutional right to have white children attend school with them.”

Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990, 1005 (10th Cir. 1971), cert, granted 404 U.S. 1036 , 92 S.Ct. 707 , 30 L.Ed.2d 728 (1972):

“Our reluctance to embark on such a course stems not from a desire to ignore a very serious educational and social ill, but from the firm conviction that we are without power to do so. Downs v. Board of Education, 336 F. 2d at 998 . Before the power of the federal courts may be invoked in this kind of case, a constitutional deprivation must be shown. Brown v. Board of Education, 347 U.S. 483, 493-495 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954) held that when a state segregates children in public schools solely on the basis of race, the Fourteenth Amendment rights of the segregated children are violated. We never construed Brown to prohibit racially imbalanced schools provided they are established and maintained on racially neutral criteria, and neither have other circuits considering the issue. Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966); 419 F.2d 1387 (1969); Springfield School Committee v. Barksdale, 348 F.2d 261 (1st Cir. 1965); Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963).”

United States v. Board of School Commissioners of City of Indianapolis, Indiana, 474 F.2d 81, 83, 84 (7th Cir. 1973):

“Appellants first assert that there is no constitutional duty to remedy the effects of racial imbalance or to maintain any particular racial balance in the public schools. The Government does not quarrel with this assertion, and, indeed, insofar as it relates to purely de facto segregation, unaided by any state action, it is the law of this circuit, Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), aff’g 213 F.Supp. 819 (N.D. Ind.1963).”

A similar prayer for re-districting was before the District Court in Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J. 1971), and was rejected. The Supreme Court affirmed without opinion, 404 U. S. 1027 , 92 S.Ct. 707 , 30 L.Ed.2d 723 (1972) with Mr. Justice Douglas dissenting.

While the Fifth Circuit in Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir. 1972), en banc, sustained a finding of unconstitutional segregation resulting from a neighborhood school policy which effectively segregated Mexican-Americans within a school district it did so based upon competent evidence.

The majority here announces, “If school boundary lines cannot be changed for an unconstitutional purpose, it follows logically that existing boundary lines cannot be frozen for an unconstitutional purpose.” (P. 251). Again it may be that this will become the law. Clearly, the cases cited have reached this conclusion as to the attendance lines existing within a specific school system. I know of no case which permits such a *278 conclusion as to boundary lines existing between school districts, and while the conclusion that existing boundary lines cannot be frozen for an unconstitutional purpose may flow logically from the premise announced it should be based upon competent evidence justifying a finding of fact that such boundary lines have been frozen for an unconstitutional purpose, and the District Judge in this case announced that he took no evidence on that issue.

I do not understand how the majority can reach a conclusion as to an appropriate remedy without evidence of any violation, particularly when in Deal I and Deal II a contrary conclusion has been reached. As stated at 369 F.2d, page 59:

“If the state or any of its agencies has not adopted impermissible racial criteria in its treatment of individuals then there is no violation of the Constitution.”

and again in Davis this Court framed the issues as follows:

“Accordingly, the principal question before us is whether there is sufficient evidence in the record to support the determination of the District Judge that appellants are responsible for the existing racial imbalance in the Pontiac School System.” 443 F.2d at 575 . (Emphasis supplied),

and in responding to that issue this Court said:

“Although, as the District Court stated, each decision considered alone might not compel the conclusion that the Board of Education intended to foster segregation, taken together, they support the conclusion that a purposeful pattern of racial discrimination has existed in the Pontiac school system for at least 15 years.” 443 F.2d at 576 .

Thus, the cases in this Court, prior to this case, appear conclusively to have been decided on the basis of discriminatory intent, and unless we specifically reverse our previous decisions we cannot reach the conclusion announced by the majority in a case where the District Court specifically stated that it did not take any evidence to establish any discriminatory intent on the part of the suburban school districts who were not parties to the action or on the part of the State in the structure of the suburban school districts.

Other circuits have also required the establishment of a discriminatory intent. Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990 (10th Cir. 1971), cert, granted 404 U.S. 1036 , 92 S.Ct. 707 , 30 L.Ed.2d 728 (1972) ; Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), cert, denied 377 U. S. 924 , 84 S.Ct. 1223 , 12 L.Ed.2d 216 . (1964); United States v. School District 151, Cook County, Ill., 404 F.2d 1125 (7th Cir. 1968), cert, denied 402 U.S. 943 , 91 S.Ct. 1610 , 29 L.Ed.2d 111 (1971); United States v. Board of School Commissioners of Indianapolis, Indiana, 474 F.2d 81 (7th Cir. 1973); Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J.1971), aff’d 400 U.S. 1027 , 92 S.Ct. 707 , 30 L.Ed.2d 723 (1972). But see: United States v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972).

The evidence in regard to building of school buildings within the City of Detroit and lack of state aid for transportation of pupils within the City of Detroit may have demonstrated that these factors contributed to racial segregation within the City of Detroit. Clearly, if the Court took no proofs with respect to the commission of acts causing segregation of the races as between the City of Detroit and the suburban school districts it would be inappropriate to include those school districts within any remedy to be adopted to eliminate segregation within the City of Detroit. The cases cited by the District Court and by the majority of this Court are inapplicable. In each case cited the school district involved and against which a remedial order was granted was found to have been guilty of segregative practices. In every instance, as we read the cases, that finding was supported by substantial evidence after an adversary *279 proceeding in which all the interested parties were represented. Such is not the case here.

It seems obvious to me that the majority and the District Court have become confused and are unable to distinguish between violation and remedy. As stated by the District Court no evidence was taken as to any violation in the fixing of the boundaries of the suburban school systems nor as to any violation because of the relationship between the suburban school systems and the schools of the City of Detroit.

The errors to which we have already alluded were brought about by the failure on the part of the District Court to require that all interested parties be brought into the case at the earliest appropriate moment. A review of this record reveals that on March 22, 1971, a group of white Detroit residents, who were parents of children enrolled in the Detroit public schools, were permitted to intervene as parties defendant. On June 24, 1971, the District Judge alluded to the possibility of a metropolitan school system, App. Vol. IV, pgs. 259, 260, and in that connection stated: “As I have said to several witnesses in this case: how do you desegregate a black city, or a black school system.” App. Vol. IV, pg. 260. Subsequently, and on July 17, 1971, the white parents filed a motion in an effort to require the join-der of the 85 suburban school districts as parties defendant and gave the following reasons:

“1. That said suburban school districts are agents of the State of Michigan and subject to the jurisdiction and supervision of the State Board of Education.

“2. That said school districts are white segregated school districts.

“3. That questions of law and fact common to the defendant, School District of the City of Detroit, and proposed additional suburban school districts have been presented to this Court.

4. In the event that this Court rules for the plaintiff, in the absence of joinder of the proposed school districts, complete relief cannot be awarded the plaintiff,' and in addition would impose an unconstitutional burden on the intervening defendant, in that the resulting school district of the City of Detroit would be and will remain as established by the proofs already submitted an inferior school district.” App. I at 142- 3.

The trial court did not rule upon this motion; but in the course of the proceedings discussed it in September, 1971, and concluded that the motion should not be considered at that time because “in considering the motion to add the listed school districts we pause to note that the proposed action has to do with relief.” App. Vol. I, pg. 215, 338 F. Supp. 582, at 595 .

Between February 9 and February 17, 1972, four parties, Grosse Pointe Public Schools, Allen Park Public Schools, et al., 1 Southfield Public Schools and the School District for the City of Royal Oak, made motions for leave to intervene. These motions were finally granted on March 15, 1972, during the second day of hearing on the plans for desegregation involving only the Detroit school system. Intervention, according to the District Judge, was permitted under Rule 24(a), “Intervention of Right,” and also under Rule 24(b), “Permissive Intervention,” Before permitting such intervention and on March 6, 1972, the District Judge set up a timetable for the consideration of plans already submitted, which timetable was as follows:

“1. Hearing on desegregation in-tra-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.

*280 “3. Briefs on propriety of metropolitan remedy to be submitted not later than March 22,1972.

“4. Tentatively and unless the court rules otherwise, hearings on metropolitan remedy to commence 10:00 a. m., March 28, 1972.” App. I at 397.

When intervention was granted, the District Judge placed strict limitations upon the part which the intervenors would be permitted to play. The order provides:

“The interventions granted this day shall be subject to the following conditions :

1. No intervenor will be permitted to assert any claim or defense previously adjudicated by the court.

2. No intervenor shall reopen any question or issue which has previously been decided by the court.

3. The participation of the in-tervenors considered this day shall be subordinated to that of the original parties and previous interve-nors.

4. The new intervenors shall not initiate discovery proceedings except by permission of the court upon application in writing, accompanied by a showing that no present party plans to or is willing to undertake the particular discovery sought and that the particular matter to be discovered is relevant to the current stage of the proceedings.

5. No new intervenor shall be permitted to seek a delay of any proceeding in this cause; and he shall be bound by the brief and hearing schedule established by the court’s Notice to Counsel, issued March 6, 1972.

6. New intervenors will not file counterclaims or cross-complaints; nor will they be permitted to seek the joinder of additional parties or the dismissal of present parties, except upon a showing that such action will not result in delay.

7. New intervenors are granted intervention for two principal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of considering a metropolitan plan; (b) To review any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting objections, modifications or alternatives to it or them, and in accordance with the requirements of the United States Constitution and the prior orders of this court.

8. New intervenors shall present evidence, if any they have, through witnesses to a number to be set, and limited, if necessary, by the court, following conference.

9. With regard to the examination of witnesses, all new interve-nors shall among themselves select one attorney per witness to act for them, unless one or more of the new intervenors show cause otherwise.

These conditions of intervention shall remain subject to change or modification by the court in the interest of timely disposition of the case.” App. Ia 408-410.

We point out that the intervening school districts (42 out of 85) came into the case while the court was already considering the Detroit only plans, were permitted a total of less than one week to prepare briefs in regard to a metropolitan remedy, and found themselves faced with a ruling favorable to the consideration of such remedy within two days after the date on which their briefs were due. All of this despite the fact that an effort had been made to bring the suburban school districts into the case almost eight months prior to the rulings in regard to the Detroit only plans and the metropolitan plan. The majority finds no fault with this timetable. It affirms the conclusions of the District Court in regard to the Detroit *281 only plan and the need for a metropolitan plan without affording to the suburban school districts any opportunity to be heard.

Those suburban school districts which are not yet parties to this action, 43 in number, have had no opportunity to be heard with respect to any alleged constitutional violation within their respective school districts or with respect to the existence of their respective school district boundaries. Of course, the pleadings do not assert any such violations but under the majority opinion a remedy will be imposed which will drastically affect the future schooling of their children without granting to them any opportunity to be heard with regard to any reasons which might support the adoption of such a remedy. The suburban school districts which were belatedly made parties to this action assert that because they have not been afforded the opportunity to offer evidence to demonstrate that they have not been guilty of any constitutional violation they have been denied the fundamental requirements of due process. The response of the appellee to the claimed rights of the suburban school districts is that there is no denial of "life, liberty or property” within the meaning of the Fifth Amendment. They also claim that the interests of the suburban school districts were adequately represented by “their parent state defendant.”

An examination of the record in this ease will effectively dispose of any claim that the interests of the suburban school districts were represented by the state defendants. Clearly, the state defendants were defending against the claims of the plaintiffs that the state had by its actions created racial segregation within the school district of the City of Detroit. As I examine the record it does not appear that any defendant felt compelled to offer evidence in defense of an unasserted claim that the existence of suburban school districts was without other evidence a violation of the constitutional rights of the students in the schools of the City of Detroit. Had the state defendants comprehended that the District Court intended to impose a metropolitan school district upon the schools of three counties the writer is confident that they would have joined in the earlier motion to require the suburban school districts to be named as parties defendant.

As to the first argument of the appel-lees it is clear from the language of the Court in Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 (1954), that the segregation of schools is a denial of due process within the meaning of the Fifth Amendment. If segregation is a denial of the Fifth Amendment due process then clearly orders eliminating such segregation are a part of the due process rights. In that case the Court said:

“Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free' to pursue, * * 347 U.S. at 499, 74 S.Ct. at 694.

Even earlier, in Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925), the Supreme Court found a violation of the Fourteenth Amendment in matters relating to the liberty of parents to direct the upbringing and education of children under their control. Had we any doubt, it would have been settled in Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972), where the Court permitted parents to withdraw their children from the state public school system and found a constitutional right in parents to control the upbringing and religious training of their children. That the right under the Fifth Amendment applies to the states was recognized in Griswold v. Connecticut, 381 U.S. 479 , at page 482, 85 S.Ct. 1678 at page 1680, 14 L.Ed.2d 510 (1965), where the court noted:

“By Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable *282 to the States by the force of the First and Fourteenth Amendments.”

Being convinced that the interest of parents in the education of their children represents a right protected by the Constitution as to all parents and not only those parents whose children are required to attend segregated schools, we then reach the question of the application of due process to that right.

As pointed out by the Court in Armstrong v. Manzo, 380 U.S. 545, 552 , 85 S.Ct. 1187, 1191 , 14 L.Ed.2d 62 (1965):

“A fundamental requirement of due process is ‘the opportunity to be heard.’ * * * It is an opportunity which must be granted at a meaningful time and in a meaningful manner.”

and in greater detail we find the same principal in Boddie v. Connecticut, 401 U.S. 371, 377-378 , 91 S.Ct. 780, 785 , 28 L.Ed.2d 113 (1971), where Mr. Justice Harlan, speaking for the Court, stated:

“Prior cases establish, first, that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. Early in our jurisprudence, this Court voiced the doctrine that ‘[w] her ever one is assailed in his person or his property, there he may defend,’ Windsor v. McVeigh, 93 U.S. 274, 277 , 23 L.Ed. 914 (1876). See Baldwin v. Hale, 1 Wall. 223 , 17 L.Ed. 531 (1864); Hov-ey v. Elliott, 167 U.S. 409 , 17 S.Ct. 841 , 42 L.Ed. 215 (1897). The theme that ‘due process of law signifies a right to be heard in one’s defense,’ Hovey v. Elliott, supra, at 417 , 17 S. Ct. 841 , has continually recurred in the years since Baldwin, Windsor, and Hovey. Although ‘[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause,’ as Mr. Justice Jackson wrote for the Court in Mullane v. Central Hanover Tr. Co., 339 U.S. 306 , 70 S. Ct. 652 , 94 L.Ed. 865 (1950), ‘there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ” Id., at 313, 70 S.Ct. 656 .

Thus, each party to a lawsuit should be advised as to the claims asserted by the other parties to the lawsuit and have an opportunity to be heard in respect to all such claims.

In this case no pleading has ever been filed suggesting any wrongdoing on the part of any suburban school district, none suggesting that the süburban schools and the schools of the City of Detroit constituted a dual school system or even intimating any possibility of a need for a metropolitan school district to eliminate the segregated conditions alleged to have existed in the schools of the City of Detroit. We can only speculate upon the timing of the first suggestion of a metropolitan district but it appears that the District Judge seized upon the suggestion without requiring any amendments to the pleadings or the adding of any parties.

I question whether the suburban school districts have any interest in being heard as to the claim of segregation within the City of Detroit, and there can be no question as to the right of the trial court to place certain limitations upon the part which any intervening school district would be permitted to play. Had all of this, in regard to metropolitan school districts, come up at the eleventh hour as suggested by the appel-lees one might, although it is doubtful, accept the conditions imposed by the District Judge. Such was not the case here. The motion to require the joinder of the suburban school districts was made almost eight months before consideration was given to the Detroit only plans.

The Advisory Committee on the Rules anticipated that limitations and condi- *283 cions might be placed upon intervention as a matter of right under Rule 24(a):

“An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.” 3B Moore’s Federal Practice ff 24.01 [10], at 24-18 (2d Ed.).

and see also Galbreath v. Metropolitan Trust Co. of California, 134 F.2d 569, 570 (10th Cir. 1943); Chavis v. Whitcomb, 305 F.Supp. 1359, 1363 (S.D.Ind. 1969). The situation in this case is pointed up by the language found at 3B Moore’s Federal Practice j[ 24.16 [4], 2d Ed.

“It would be meaningless to give him an absolute right to intervene in order to protect his interest, if once in the proceeding he were barred from raising questions necessary to his own protection.”

What we have said in regard to intervention under Rule 24 sets forth without the necessity of repetition those matters which should be considered by any court in determining the part which is to be played by one who is joined as a party under Rule 19, as well as one who intervenes as a party, aspects of this case which are almost completely ignored by the majority and the District Court.

In conclusion I am constrained to say that I do not suggest that a metropolitan remedy is totally beyond the realm of consideration in this case upon an appropriate record. My whole purpose in writing this opinion is to point out that the majority and the District Court have fallen into a state of confusion in failing to distinguish between violation and remedy and in failing to recognize the necessity for the finding of violation before the trial court embarks upon that broad field of equity which permits a trial judge to devise a remedy which will adequately overcome the violation previously found to be in existence. I have also written because I am satisfied that the District Judge in failing to consider the necessity for joining the suburban school districts pursuant to a motion filed more than a year before the disposition of the case was in error. The suggestion by the District Court that the suburban school districts were only involved in the remedy points up the trap into which both the District Court and the majority of this Court have fallen in failing to recognize the necessity for finding a violation before a remedy may be imposed.

I would reverse the District Court and remand the case with instructions to require the joinder of the suburban school districts of the counties of Wayne, Oakland and Macomb with permission to the representatives of those districts, with reasonable limitations, to participate in all aspects of this lawsuit which may affect the suburban school districts, and with particular attention to the necessity for finding a constitutional violation which would justify the imposition of a metropolitan remedy.

. The others referred to included 38 additional suburban school districts.