Respondents Brief — Milliken v. Bradley
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IN THE SUPREME COURT OF THE U
October Term, 1976 FEB 14 1911
No. 76-447 MICHAEL RODA, JR.CLERK |
FOR ARGUMENE
WILLIAM G. MILLIKEN, et al.,
Petitioners,
v.
RONALD G. BRADLEY, et al.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit
BRIEF OF RESPONDENT
BOARD OF EDUCATION FOR THE .
SCHOOL DISTRICT OF THE CITY OF DETROIT
RILEY AND ROUMELL
GEORGE T. ROUMELL, JR.
JANE K. SOURIS
THOMAS M. J. HATHAWAY
JOHN F. BRADY
SAMUEL E. McCARGO
ROBERT J. COLOMBO, JR.
Attorneys for Respondent Board
of Education for the School
District of the City of Detroit
Business Address:
720 Ford Building
Detroit, Michigan 48226
INDEX
DPE Oc ranecpornccesracssncdesbvadeeneccoccees
CONSTITUTIONAL PROVISIONS INVOLVED ......
COUNTER STATEMENT OF THE CASE ............
SUMMARY OF ARGUMENT....................-05.
FIT. wed vobcdvcecdesccasesdcessntiperececnes
I. THE INCLUSION OF REMEDIAL PROGRAMS
IN READING, IN-SERVICE TRAINING, TEST-
ING, AND COUNSELING AND GUIDANCE IN
DETROIT’S DESEGREGATION PLAN WAS
CLEARLY WITHIN THE POWER OF EQUITY
BECAUSE OVERWHELMING RECORD EVI-
DENCE ESTABLISHES THAT THEY ARE ES-
SENTIAL IN DETROIT TO ELIMINATE ALL
VESTIGES OF SEGREGATION AND OVER-
COME OBSTACLES TO DESEGREGATION ....
A. RECORD EVIDENCE SUPPORTS THE
NEED IN DETROIT FOR REMEDIAL
PROGRAMS IN READING, IN-SERVICE
TRAINING, TESTING, AND COUNSELING
AND CAREER GUIDANCE................
1. READING.
(a) The Record Evidence. .................
(b) Decisions Of The Courts Below. ........
2. IN-SERVICE TRAINING.
(a) The Record Evidence. .................
(b) Decisions Of The Courts Below. ........
3. TESTING.
(a) The Record Evidence. ................ ;
(b) Decisions Of The Courts Below. ........
1]
14
14
23
24
4. COUNSELING AND GUIDANCE.
(a) The Record Evidence. ............+-+-.
(b) Decisions Of The Courts Below. ........
5. INCONSISTENCIES AND MISREP-
RESENTATIONS OF THE STATE DE-
PENDANTS. ....ccccccccccccccsccssevess
B. THE FOUR NEW REMEDIAL PRO-
GRAMS — THEIR RELATIONSHIP TO
DESEGREGATION. ........-. 660 e cece eees
1. CONTENT AND FUNCTION OF EACH
PROGRAM.
Gad TOMER, 20 cccvccccccccccccssccccocess
(b) In-Service Training. ............--+-4++.
Ge FONE, ccvccvscdecvcencecseverccesers
(d) Counseling And Guidance. .............
2. DETERMINATION OF COST. ...........
3. WRITINGS AND FIELD STUDIES SUP-
PORT THE NEED FOR REMEDIAL
PROGRAMS IN A DESEGREGATION
PE es cccccecsvcdccccsccecsovssescoesees
C. THE NATURE OF SEGREGATION AND
THE PURPOSE OF DESEGREGATION.....
D. THE TRADITIONAL RULES OF EQUITY
GOVERN DESEGREGATION REMEDIES. .
E. THERE IS NO CONFLICT WITH OTHER
. FURESDICTIONSG. .......ccccccccccccccecss
F. CONCLUSION. ....ccccccccccccccccccccecs
Il. WHERE THE STATE DEFENDANTS HAVE
BEEN ADJUDICATED TO HAVE VIOLATED
THE FOURTEENTH AMENDMENT RIGHTS OF
DETROIT SCHOOL CHILDREN THE TENTH
AMENDMENT MAY NOT BE INVOKED AS A
BAR TO REMEDYING THE CONSTITUTIONAL
| PPPPTTTITITITIITITT TTT Tt
25
27
28
29
29
30
31
32
33
34
35
37
42
43
Page
NEITHER THE ELEVENTH AMENDMENT
NOR DECISIONS OF THIS COURT PREVENT
FEDERAL EQUITY JURISDICTION FROM OR-
DERING STATE DEFENDANTS WHO HAVE
BEEN FOUND GUILTY OF DE JURE SEGRE-
GATION TO FINANCE PART OF THE IM-
PLEMENTATION OF A PLAN OF DESEGRE-
GS Sedse esd vbsvkcteddveduccetdbuseweess 53
A. THE INJUNCTIVE RELIEF ORDERED
BELOW IN A DESEGREGATION CASE IS
NOT PROHIBITED BY THE ELEVENTH
AMENDMENT AS INTERPRETED BY THIS
SEES Havaddddicede ded dudbé sabe chitecpntes 54
B. THE ELEVENTH AMENDMENT MAY NOT
BE ASSERTED TO PREVENT EFFECTIVE
RELIEF FOR A VIOLATION OF THE
FOURTEENTH AMENDMENT. ........... 61
1. The Eleventh Amendment Was Not Intended
To Bar Suits Against States Arising Under
The Constitution Of The United States. .... 63
2. The History Of The Fourteenth Amendment
Indicated Reliance Was Not To Be Placed
Upon State Enforcement Of Constitutional
Rights, And That Federal Courts Were To
Have Inherent Jurisdiction To Protect Such
Dh dteduumiuneuse nisehéennedaonibeniees 64
3. The Fourteenth Amendment Granted Citizens
Substantive Rights Which Can Be Enforced
ee Pe i b.n6sc6ns<icrddcsssevees 67
4. Interpretation Of The mean Of The Four-
teenth Amendment Has Recognized That It
Was Intended To Modify And Limit The Op-
eration Of The Eleventh Amendment. ...... 69
iV
C. THE STATE OF MICHIGAN HAS BY
SPECIFIC STATE STATUTE EXPRESSLY
WAIVED ITS ALLEGED ELEVENTH
AMENDMENT IMMUNITY TO SUITS IN
FEDERAL COURT. .........---eeeeeeeeees 73
IV. THE DISTRICT COURT'S ORDER REQUIRING
THE STATE DEFENDANTS TO ASSIST IN REM-
EDYING THE CONSTITUTIONAL VIOLATION
THEY HAVE CAUSED CANNOT BE HIND-
ERED BY STATE LAWS ............----00005- 77
V. THE DISTRICT COURT'S ALLOCATION OF
THE REMEDY BETWEEN JOINT WRONG-
DOERS PROPERLY CONSIDERED THE PER-
VASIVE STATE CONTROL OF EDUCATION
AND THE CRITICAL FINANCIAL CONDITION
OF THE DETROIT BOARD................-+-- 8i
es mE). | a errrrrrrrr rrr rt erie 89
COMPENDIUM 2... nc ccc ccc ccc ccc cccccccccccccccceses 90
\
TABLE OF AUTHORITIES
Page
Cases:
Adickes v. S. H. Kress & Company, 398 U.S. 144 (1960) 45
Alexander v. Holmes County Board of Education, 396 U.S.
iP nthe édtek edu atdals otbnddte Gnneeeesste oss 60
Anderson v. United States, 417 U.S. 211 (1974) ........ 45
Argersinger v. Hamlin, 407 U.S. 25 (1972) ............. 59
Attorney General v. Detroit Board of Education, 154 Mich.
Sy ee ee a a hn oka inc dns6aniesecatecess 82
Attorney General, ex rel. Kies v. Lowrey, 131 Mich. 639, 92
sD OS dé tid ah n be ckuntedesedaneausuetis 82
Austin Independent School District vy. U.S., 45 U.S.L.W.
I 65 60k und 6c ce ahtd dpe edanesticdcanes 42
Baron v. Mayor and City Council of Baltimore, 32 U.S. (7
ah ho ied oe eee hen cecahenabate 66
Bishop v. Wood, 96 S. Ct. 2074 (1976)................. 75
Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich.
EE ties illite deme eee hee eee ids ade wend 5, 6, 47
Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1971) ....... 58
Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) ...... 6, 47
Bradley v. Milliken, 402 F. Supp. 1096 (E.D. Mich.
Se atedeudtercahs die ewe akdssdeunedseseaee passim
Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976) ... passim
Bradley v. School Board of Richmond, Virginia, 462 F.2d
EE CD iid dens oy nwnchestewsted ens eee ds 48
Bradley v. School Board of Richmond, Virginia, 412 U.S.
Pn babudnd ong anthdedhadbhn 6640 be 6ke6es see. 48
Brown v. Board of Education, 347 U.S. 483
SIGH dis dud dd wkend utéabdcdwede sco 35, 47, 53, 65, 78
Brown v. Board of Education, 349 U.S. 294
DM +thtbtiduertivdédddubittieneh needa coda 38, 78, 87
Chandler v. Dix, 194 U.S. 590 (1904) ...........0.005.. 74
Child Welfare Society of Flint v. Kennedy School District,
220 Mich. 290, 189 N.W. 1002 (1922) ................ 82
vi
Page
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1973) ....... 63
Civil Service Commission v. Auditor General, 302 Mich.
673, 5 N.W. 2d 536 (1942) .. 2... ccc cece erence eeecnes 77
Clark v. Barnard, 108 U.S. 436 (1883) ............0005. 74
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) ...... 63
Collins v. City of Detroit, 195 Mich. 330, 161 N.W. 905
GEIGER cceccecedeedeecdcocncecbctddecédedesecions i.
Cooper v. Aaron, 358 U.S. 1 (1958) ...... 47, 50, 54, 77, 79
Davis v. Gray, 83 U.S. (16 Wall.) 203 (1873) ........... 55
Edelman v. Jordan, 415 U.S. 651
GE bods cactesanceasees™ 54, 55, 58, 59, 61, 62, 64, 74
Elrod v. Burns, 96 S.Ct. 2673 (1976) ..... 0... c cece eens 52
Evans v. Buchanan, 379 F.Supp. 1218 (D. Del. 1974) ... 78
Evans v. Buchanan, 423 U.S. 963 (1975) ........660005: 78
Evans v. Buchanan, 423 U.S. 1080 (1976) .............-. 78
Evans v. Ennis, 281 F.2d 385 (3d Cir. 1960) ............ 55
Ex parte Virginia, 100 U.S. 339 (1880) ... .46, 47, 57, 61, 73
Ex parte Young, 209 U.S. 123
SD ce vtdebbenecidadedes 55, 56, 57, 58 59, 61, 69, 70
Fitzpatrick v. Bitzer, 96 S.Ct. 2666
SE ack ébdbacewens 47, 50, 55, 59,60, 61, 62, 69, 72, 73
Ford Motor Co. v. Department of Treasury of Indiana, 323
ey SS Ke weve cacoveuetéadbscédecdethess 55, 74
Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) 40
Fry v. United States, 421 U.S. 542 (1975).............. 50
General Oil Co. v. Crain, 209 U.S. 211 (1908).......... 70
George v. O'Kelly, 448 F.2d 148 (Sth Cir. 1971) ........ 41
Georgia Railroad and Banking Co. v. Redwine, 342 U.S.
PP Gvanncedavetvecuncesdéducededsasbactesented 59
Gerr v. Emrick, 283 F.2d 293 (3d Cir. 1960) ............ 75
Gideon v. Wainwright, 372 U.S. 335 (1963) ............ 59
vii
Page
Goldberg v. Kelly, 397 U.S. 254 (1970) ................ 59
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ......... 49, 50
Goss v. Boe 4 of Education of City of Knoxville, 373 U.S.
DT tiAddensd dbetehanees Chabhnenieensns eos 47
Graham v. Folsom, 200 U.S. 248 (1906) ............... 55
Graham v. Richardson, 403 U.S. 365 (1971)............ 59
Great Northern Life Insurance Co. v. Read, Insurance
Commissioner, 322 U.S. 47 (1944) ........0..00004.. 55, 74
Green v. County School Board of New Kent County, 391
a Wedel E douneccheudessesdcke 16, 37, 65
Griffin v. County School Board of Prince Edward County,
Oe es SE oe bee e cee ibccdccccecc dsc SR Se
Hagood v. Southern, 117 U.S. 52 (1886) ............... 63
Hans v. Louisiana, 134 U.S. 1 (1890)................ 55, 63
Harris v. Commonwealth of Pennsylvania, 419 F.Supp. 10
DM ick nbn pibuesididcedéencceesencescees 5}
Hart v. Community School Board of Brooklyn, 383 F.Supp.
GE Og GAS ec odie cledcbecsesed 41, 78
Hart v. Community School Board of Brooklyn, 512 F.2d
Crd diid Feucks cba ok ti dectebaweeseceed 42, 78
Hecht v. Bowles, 321 U.S. 329 (1944) .........0.0... 16, 39
Hills v. Gautreaux, 425 U.S. 284 (1976).............. 6, 47
Home Telephone and Telegraph Company v. City of Los
BBs THe ees BPO PEED 2 bcc ccesésccscceseces 57, 71
Hormel v. Helvering, 312 U.S. 552 (1940) .............. 45
Husty v. United States, 282 U.S. 694 (1931) ........... 45
Imlay Township District v. State Board of Education, 359
Mich. 478, 102 N.W. 2d 720 (1960) .................. 83
EOD GOREe, Tae Wee Gee GEO bac de bce ccvectcvecccc: 63
Kennecott Copper Corp. v. State Tax Commission, 327
eh ee Sie bbG de kb bbbsds bébé Sddawddocescéks 74
viii
Page
Keyes v. School District No. 1, Denver, Colorado, 521 F.2d
ry le PP Prrrrrrrrrrrri rrr 42, 43
Keyes v. School District No. 1, Denver, Colorado, 423
h S Y SPT TTrTTTiITriTiriri iri Tie 42
King v. Smith, 392 U.S. 309 (1968)... 0.6... ee eee eens 59
Lansing School District v. State Board of Education, 367
Mich. 591, 116 N.W.2d 866 (1962) ...........0555. 81, 83
Lawn v. United States, 355 U.S. 339 (1958) ............ 45
Lewis v. Shulimson, 534 F.2d 794 (8th Cir. 1976) ....... 60
Louisiana v. Jumel, 107 U.S. 711 (1883) ............. 55, 63
Louisiana v. United States, 380 U.S. 145 (1965) ...16, 39, 49
Louisiana State Board of Education v. Baker, 339 F.2d 911
CG. Tk o cccccccccscecoddednccespacensacess: 69
MacQueen v. City Commission of the City of Port Huron,
194 Mich. 328, 160 N.W. 627 (1916) .............545. 82
Milliken v. Bradley, 418 U.S. 717 (1974) ............ passim
Milliken v. Green, 389 Mich. 1, 203 N.W. 2d 457 (1972). 77
Mitchum vy. Foster, 407 U.S. 225 (1972) .......660 5000 46
Monroe v. Pape, 365 U.S. 171 (1961) ....... 6... 66. ee eee 65
Morgan v. Kerrigan, 530 F.2d 401 (ist Cir. 1976)..... 36, 41
Morgan v. Kerrigan, 96 S.Ct. 2648 (1976)............36, 4i
Murray v. Wilson Distilling Co., 213 U.S. 151 (1909).... 74
National League of Cities v. Usery, 96 S.Ct. 2465
ing 5 ccinndectencensesessatucendee: sadeneeast 50, 51
North Carolina State Board of Education v. Swann, 402
ORD, B GG co ccccciccéccovececidssdccedescoveed 49, 79
Oliver v. Kalamazoo Board of Education, Docket No.
K88-71 C.A. (W.D. Mich., Nov. 5, 1976) ............ 75
Oliver v. Michigan State Board of Education, 508 F.2d 178
Ge. Feo cdc co escbnceccescecstecccceduvecsens 78
Oliver v. Michigan State Board of Education, 421 U.S. 963
CUED ccbadawincecusecsetscdcansdedeessaseceessecs 78
ix
Page
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.)
Di iohbas pemidienidecocheneceesécsetesceve-ve 55
Placquemines Parish School Board v. United States, 415
hE 15, 40
Propper v. Clark, 337 U.S. 472 (1949) ................. 75
Prout v. Starr, 188 U.S. 537 (1903).................. 57, 70
Reagan v. Farmers’ Loan and Trust Co., 154 U.S. 362
Dt tits adiebbdachedechubdehbdsdendééioce’ 56, 75, 76
Reynolds v. Sims, 377 U.S. 533 (1964) ..............5.. 59
Rizzo v. Goode, 423 U.S. 362 (1976) ............... 48, 49
San Antonio Independent School District v. Rodriguez, 411
EE 12, 77
Scheuer v. Rhodes, 416 U.S. 232 (1974) ............... 59
Shapiro v. Thompson, 394 U.S. 618 (1969) ............. 79
Smith v. Reeves, 178 U.S. 436 (1900) .................. 74
Smyth v. Ames, 169 U.S. 466 (1898)................... 56
Soni v. Board of Trustees of the University of Tennessee,
ED oo od on ce dauuncbsbecocses 75
Soni v. Board of Trustees of the University of Tennessee,
ade) ode ct ieenek ech steweneeeses 75
South Carolina v. Katzenbach, 383 U.S. 301 (1966) ..... 46, 69
Swann v. Charlotte-Mecklenburg Board of Education, 318
re S4
Swann v. Charlotte-Mecklenburg Board of Education, 402
Bh A tnkdascucocdesdeacnsec ck 16, 35, 36, 39, 87
Township of Hillsborouh v. Cromwell, 326 U.S. 620 (1946) 76
United States v. Board of School Commissioners of In-
dianapolis, 503 F.2d 68 (7th Cir. 1974) .............. 60
United States v. State of New Hampshire, 539 F .2d 277 (ist
Se SEE aeeunecnecdbcarebcdkecedbived chdéececsoss 51
United States v. State of Missouri, 515 F.2d 1365 (8th Cir.
ST ide, Shedaeuedsadiokdocecuchssededsecces 48, 78, 79
Page
United States v. State of Missouri, 423 U.S. 951
(GFTDD . .coccccccceceseceteesennnenl 48, 78, 79
Usery v. Allegheny County Institution Districts, 544 F.2d
Tt fe A ee 51
Usery v. Board of Education of Salt Lake City, 421 F.Supp.
708 @. Utes FRED . cc ccccccccecceseeuuseneeenl 51
Usery v. Dallas Independent School District, 421 F.Supp
108 GOD. Vow. GD occoccccescesesesessnenennn 51
Wyatt v. Aderholt, 503 F.2d 1305 (Sth Cir. 1974). .60, 78, 80
Welling v. Livonia Board of Education, 382 Mich. 620, 171
kw BR eee 81
Constitutions:
U.S. Const. at. GE, GB .ccccccccsesseseneneannl 63
U.S. Const. ast. VE, GB cccccecscccosccuneuneneel 78
U.S. Comet. GUISE. BH ccccccccsesctsesenne passim
U.S. Comet. GGRSRG. FB ccccccccecesscceosaneene passim
U.S. Comet. une. Fe «coccsccccsccesenueeunel 64, 65
U.S. Comet. GGS6S. BBV occccccscosccccesucuunt passim
U.S. Const. amend. EV... ccoccccecssndee 64, 65, 69
Northwest Ordinance of 1787 ................-2-00e- 81
Mich. Const. of 0006, ant. 3. @ .ccoccscocesscuousan 81
Mich. Const. of 1850, art. XII], §4.................. 81
Mitch. Const. of 1908, art. IX, §9 ..............-.... 81
Gish. Const. of S50, Gt. Mile GB cccccccceoncceseeen 81
Mich. Const. of 1963, art. V, §1 .......... ‘woneawnae 84
Mich. Const. of 1963, art V, §15................-006- 84
Mich: Const. of 1963, art. V, §17 .................-. 84
Mich. Const. of 1963, art. V, §18 ................ 84
Mich. Const. of 1963, art. VIII, §2............... 81, 84
Mich. Const. of 1963, art. VIII, §3 ............... 83, 84
eich. Const. of GGEB. GUG. GE. GEE coccccessecuane 82, 84
bGich. Const. of S5GR, aut. BE. GED coccccdecesuncanes 83
Mich. Const. of 1963, art. IX, §14 ................-. 83
Mich. Const. of 1963, art. IX, §17 .................. 77
xi
Page
Federal Acts:
Civil Rights Act of 1866 .............. 00. c cece eee eee 68
Civil Rights Act of 1871 ...................4.. 65, 66, 68
EEE eee 63
Judiciary Act of 1885, Ch. 137, §§1, 18 Stat. 470 ..... 63
Federal Statutes:
EEE re 51, 62
EERE G ccs du cscccececescecsece S1, 62
EE EEE 51
Michigan Public Acts:
Act 32, Mich. Pub. Acts of 1968 .................... 83
Act 48, Mich. Pub. Acts of 1970 ................. passim
Act 48, §12, Mich. Pub. Acts of 1970 ............... 58
Act 255, Mich. Pub. Acts of 1972 ................... 83
Act 258, Mich. Pub. Acts of 1972 ................... 82
Act 12, Mich. Pub. Acts of 1973 .................... 83
_ Michigan Statutes:
Mich. Comp. Laws Ann. §12.51 .................... 84
Mich. Comp. Laws Ann. §340.253 .................. 83
Mich. Comp. Laws Ann. §340.575 .................. 83
Mich. Comp. Laws Ann. §340.887(1) ................ 83
Mich. Comp. Laws Ann. §388.1007 ........... 74, 75, 83
Mich. Comp. Laws Ann. §388.1008 ................. 83
Mich. Comp. Laws Ann. §388.1101 ef seg, as amended,
Act 2, Mich. Pub. Acts of 1973 ................... 82
Mich. Comp. Laws Ann. §388.1121 ................. 82
Mich. Comp. Laws Ann. §388.1125 ............ 9, 82, 86
Mich. Comp. Laws Ann. §388.1179 ............... 5, 79
Mich. Comp. Laws Ann. §388.1231 ................. 84
Mich. Comp. Laws Ann. §388.1236 ................. 84
Mich. Comp. Laws Ann. §388.1238 ................. 84
xil
Michigan Administrative Code:
Mich. Adm. Code, R340.351-R340.355 ............44.
Mich. Adm. Code, R340.601-R340.605 ...............
Mich. Adm. Code, R383.151-R383.156 ...............
Mich. Adm. Code, R390.1101-R390.1167 .............
Miscellaneous:
Cong. Globe, 39th Cong., Ist Sess. (1866) ..64, 65, 67,
Cong. Globe, 42d Cong., Ist Sess. (1871) .......... 66,
J. ten Broek, *‘Equal Under Law’’ (1965).......... 65,
G. Forehand and M. Ragosta, *‘A Handbook for Inte-
grated Schooling,’ Princeton, N.J., Educational
Testing Service (IDFR) 2... ccccccccccccccccss 34,
G. Forehand, M. Ragosta and D. Rock, *‘Conditions and
Processes of Effective School Desegregation,’’ Prince-
ton, N.J., Educational Testing Service (1976) ......
C. Jacobs, *‘The Eleventh Amendment and Sovereign
PU” GERGED ov cnccccccccecscencuceswanses 56,
William G. Milliken, *‘Executive Budget-Fiscal Year
{2 MPYTTTTTITTT TT TT rire er 9,
William G. Milliken, “‘Michigan State of the State
ae PPPOT TT TTIT OTT TTT Te
Warren, *‘New Light in the History of the Judiciary Act
of 1789,"° 37 Harv. L. Rev. 49 (1923) .............
67
35
57
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1976
No. 76-447
WILLIAM G. MILLIKEN, et al.,
Petitioners,
v.
RONALD G. BRADLEY, et al.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit
BRIEF OF RESPONDENT
BOARD OF EDUCATION FOR THE
SCHOOL DISTRICT OF THE CITY OF DETROIT
COUNTER STATEMENT
OF
QUESTIONS PRESENTED
Was the inclusion of remedial programs in reading, in-
service training, testing, and counseling and guidance in the
Detroit desegregation plan within the power of equity, when
overwhelming record evidence establishes that they are es-
sential in Detroit to eliminate all vestiges of segregation and
overcome obstacles to desegregation?
2
II
Where the State Defendants have been adjudicated to have
violated the Fourteenth Amendment rights of Detroit school
children, may the Tenth Amendment be invoked as a bar to
remedying this constitutional violation?
X
III
Does the Eleventh Amendment or decisions of this Court
prevent federal equity jurisdiction from ordering State De-
fendants, who have been found guilty of de jure segregation,
to finance part of the implementation of a desegregation
plan?
IV
When the District Court orders State Defendants to assist in
remedying constitutional violations they have caused, can
state laws hinder the implementation of that remedy?
v
When the District Court allocated the remedy between joint
wrongdoers, was it proper to consider the pervasive State
control of education and the critical financial condition of the
Detroit Board?
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution:
Amendments, Article X—**The powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the
people.”
Amendments, Article XI—*'The Judicial power of the Un-
ited States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.”
3
Amendments, Article XIV, Section 1—**‘All persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”’
Explanatory Note
Herein, references to the appendices, the record and the exhibits
will be enclosed in parentheses and indicated as follows:
Appendix to Petition for Writ of Certiorari, *‘PA*’ followed
by the page number, e.g., (PA 12a).
Appendix, *‘A’’ followed by the page number, e.g., (A 12).
Appendix of Respondent, “‘AR*’ followed by the page
number, e.g., (AR 12ar).
Record of the Remedy Hearings, *‘RR*’ followed by the
volume number and the page number, e.g., (RR I 12).
Record of the Violations Hearings, *‘RV*’ followed by the
volume number or date and the page number, e.g., (RV I
12).
Record of other proceedings, *‘R*’ followed by the date of
the proceedings and the page number, e.g., (R Dec. 1,
1975, 12).
Exhibits, the initial of the party, P for plaintiffs, M for
Milliken, D for Detroit Board of Education, and F for
Detroit Federation of Teachers, followed by an **X"’ and
the number of the exhibit, e.g., (MX 1).
Exhibits introduced in depositions, the initial of the party, P
for plaintiffs, M for Milliken, D for Detroit Board of
Education and F for Detroit Federation of Teachers,
followed by *‘Dep’’, followed by the last name of the
individual deposed, followed by an “*X*° and the number
of the exhibit, e.g., (P Dep Johnson X 5).
4
COUNTER STATEMENT OF THE CASE
This is a school desegregation case in the fifth largest school
district in the United States (Detroit, Michigan), which has an
enrollment of approximately 236,000 students, 79.2% black and
20.5% white. The issues raised by the State Defendants pertain
to the remedy and ignore the history of this litigation.
In the late 1960's the Detroit Board adopted two policies
designed to desegregate Detroit schools. First, students trans-
ferred from overcrowded schools were to be assigned to the
nearest school that would improve the racial mix. (Drachler
Deposition de bene esse, 46, 49-51). Second, students seeking a
transfer to another school under the open enrollment program,
could only do so if the racial mix could be improved at the
receiving school. (Drachler Deposition de bene esse, 151). In
addition, on April 7, 1970, the Detroit Board adopted a plan to
revise attendance zones of high schools which would have
resulted in the further desegreg’ tion of the school system.
The State Legislature promptly responded by passing Act 48
of the Public Acts of 1970 on July 7, 1970. This Act suspended
implementation of the April 7, 1970 desegregation plan. Act 48
also thwarted the two aforementioned existing desegregation
policies of the Detroit Board. Section 12 gave a priority to
students residing nearest a school, when school officials sought
to transfer students to alleviate overcrowded conditions, or
when a student sought to transfer to a school to participate in
vocationally oriented courses or other specialized curriculum.
No longer was it possible for the Detroit Board to channel these
transfers in a manner which would improve the racial mix.
Act 48 precipitated the commencement of this action on
August 18, 1970. A complaint was filed by individual black and
white children and their parents, and the Detroit Branch of the
NAACP against the Governor of the State of Michigan, the
Attorney General, the State Board of Education, the State
Superintendent of Public Instruction, the Board of Education of
the City of Detroit, its members, and the then Superintendent of
Schools. The Treasurer of the State of Michigan was sub-
sequently added as a Defendant. The complaint alleged that the
Detroit public school system was segregated on the basis of race
resulting from the actions and policies of the State Defendants
and the Detroit Board.
The Plaintiffs’ complaint further alleged a denial of ‘‘equal
educational opportunities’. The Plaintiffs requested relief
which included the following:
f. Enter a decree enjoining defendants, their agents,
employees and successors from approving budgets, making
available funds, approving employment and construction
contracts, locating schools or school additions geographi-
cally, and approving policies, curriculum and programs,
which are designed to or have the effect of maintaining,
perpetuating or supporting racial segregation in the Detroit
school system. (emphasis added)
After trial of the case on the issue of segregation, the District
Court held that the Detroit public school system was racially
segregated as a result of the unconstitutional practices of both
the State Defendants and the Detroit Board. ames v. Milliken,
338 F. Supp. 582 (E.D. Mich. 1971).
The District Court found that the State Defendants commit-
ted constitutional violations with respect to the exercise of its
general responsibility over supervision of public education. The
Court pointed to Act 48 as an example of State conduct intended
“to impede, delay and minimize racial integration in Detroit
schools’. The Court further found that until the 1970 Legislative
Session, the State failed to authorize participation by Detroit
pupils in transportation aid programs. At the same time, the
State supplied mostly white suFuibs, many of which neighbored
Detroit with the full panoply of State supported transportation.
Even after 1970, although Detroit was authorized to participate
in a transportation aid program, the State did not allocate any
funds to the Detroit school system. Bradley v. Milliken, supra at
589. Subsequently, the Michigan Legislature further mandated
that allocations to the school transportation aid fund were not to
be used for desegregation purposes. Mich. Comp. Laws Ann.
§$388.1179.
The District Court found that the State Board of Education,
which exercised control over local school construction, paid no
attention to statements and guidelines contained in a *‘School
Plant Planning Handbook’’, which required the State Board to
consider whether selection of school sites would result in ra-
cially segregative patterns. The State Board of Education was
found to have approved school construction locations that had
the dual segregative effect of (1) maintaining segregated school
attendance areas and (2) removing majority white feeder
schools from almost all black attendance areas. Bradley v.
Milliken, supra at 588-89.
The District Court further found that the State Board of
Education either tacitly or expressly approved the cross district
transportation of black high school students from a neighboring
suburban school district, bypassing white Detroit high schools
which were under capacity, to a black high school in Detroit.
Bradley v. Milliken, supra at 593. Finally, as a result of their
pervasive supervisory authority and control over local school
districts, the State Board of Education and its Superintendent,
as well as the other State Defendants, were held responsible for
the segregative actions of the Detroit Board. Bradley v. Milliken,
supra at 593.
These findings of de jure acts of segregation by the State
Defendants were affirmed by the United States Court of Ap-
peals, Bradley v. Milliken, 484 F.2d 215, 238-41 (6th Cir. 1973).
In Milliken v. Bradley, 418 U.S. 717 (1974), this Court remanded
the case for formulation of a desegregation plan limited to the
boundaries of the City of Detroit. However, this Court, although
urged by State Defendants in 1974 to do so, did not set aside the
findings made in the violation stage of the proceedings that the
State Defendants had committed acts of de jure segregation.'
Upon remand the case was assigned to the Honorable Robert
E. DeMascio, who ordered the Plaintiffs and the Detroit Board
to submit desegregation plans. The original plan submitted by
1 In Hills v. Gautreaux, 425 U.S. 284, 298 n. 13 (1976) this Court
recognized that the State of Michigan had been found in Milliken v. Bradley,
418 U.S. 717. 734-35 n. 16 (1974) to have committed constitutional violations
contributing to racial segregation in Detroit schools.
>
the Detroit Board included thirteen educational components in
addition to pupil reassignment. The State Board of Education
was ordered to submit a critique of the Detroit plan, and ap-
proved the inclusion of eight of the proposed components as
“deserving of special emphasis" in a desegregation plan. (A 91).
Hearings on the two plans commenced on April 29, 1975, and
lasted some thirty-two days, ending on June 16, 1975. Approxi-
mately one-half of the testimony at these remedial hearings
concerned educational components.
In his opinion, the District Judge rejected a proposed mas-
sive bussing plan. He reasoned that because of the large percent-
age of black pupils enrolled in Detroit schools a transportation
plan to achieve a racial mix would produce ‘‘negligible deseg-
regative results’’.* Instead the Court ordered a more realistic
bussing plan, and utilized other techniques of desegregation
including changing attendance zones, leaving schools untouched
that were in stabilizing neighborhoods, ordering magnet schools,
and developing a system of city-wide open enrollment schools.
Remedial programs in reading, in-service training, testing, and
counseling and guidance were an integral part of this carefully
devised desegregation plan.
The District Court found that the four components at issue
here, reading, in-service training, testing, and counseling and
guidance, were remedial programs essential to remedy the ef-
fects of past segregation, to assure a successful desegregation
effort and to minimize the possibility of resegregation. (PA
127a-37a).
These findings of the District Court are amply supported by
the testimony of expert witnesses offered by the State Defend-
ants themselves, the Plaintiffs and the Detroit Board. (A28,
A33, A38, A51, A5S4, ASS, A58, A60, A62, A85).
2 In 1961 the Detroit school system had 285,512 students, 45.8% black.
53.6% white. At the start of this litigation in 1970, the system had 289,457
students, 63.7% black, 34.8% white. In the fall of 1975, the system had 247,774
students, 75.1% black, 22.9% white. By fall 1976, the system had 235,895
students, 79.2% black, 20.5% white.
The State Defendants never objected to the trial court's
finding and in fact worked with the Detroit Board in developing
the actual programs tc be implemented which were then submit-
ted to the Court for approval. Only when they were ordered to
pay a part of the cost of implementation did the State Defendants
appeal the inclusion of educational programs in the desegrega-
tion plan.
These programs cannot be dismissed as expansions of exist-
ing programs, but are new programs developed, pursuant to
Court order, to eliminate the “‘vestiges of segregation”™’ in a
school system undergoing desegregation and to overcome ob-
stacles to effective desegregation. (PA 127a-37a). The District
Court entered various orders approving these submissions and
ordering their implementation. (PA 92a-95a, 127a-37a, 146a).
The careful development of the educational components clearly
demonstrates that the District Court engaged in a thoughtful and
deliberate process over an extended period of time to fashion a
desegregation program tailored to the desegregation needs of
Detroit. (PA 168a-72a).
The Court of Appeals concluded that the findings of the
District Court were supported by ‘‘ample”’ record evidence and
held that the District Court acted within its equity powers when
it included these components as part of the remedy. Bradley v.
Milliken, 540 F.2d 229 (6th Cir. 1976); (PA 171a).
Pursuant to the May 11, 1976 Order, the District Court
required the Detroit Board to submit to the State Board of
Education ‘its highest budget allocated in any year for each of
the . . . quality education programs”’, and thereafter, compute
‘the excess cost in addition thereto occasioned by the specific
implementation of the court-ordered programs’. (PA 146a-47a).
By this computation the District Court was able to reduce the
original estimate and limit the cost to $11,645,000 Dollars, and
require the State Defendants and the Detroit Board to share the
responsibility. This figure amounts to approximately $49.38 per
student in Detroit, of which $24.69 per student is to be paid by
the State Defendants.
The State Defendants and the Detroit Board were ordered to
share equally in the costs of the educational components as each
9
was found guilty of causing the segregation in the Detroit
schools.
The Detroit Board is beset by serious financial problems,
including the adoption of a survival budget in 1971, virtual
bankruptcy of the system, an eroding tax base, and constant
millage failures. Since August 15, 1975 three millages have failed
(two on August 3, 1976, one on November 2, 1976).
The school millage level is slightly below the state average,
but the millage levy in addition to all other taxes in Detroit
(county, city property, city income, city utility) results in a
cumulative tax burden on Detroit taxpayers which is greatly in
excess of the state average. (A21-23). The State has recognized
this problem by supplying aid to school districts whose munici-
pal tax average is in excess of One Hundred Twenty-Five (125%)
Percent of the State average. (A23). Mich. Comp. Laws Ann. §
388.1125. In the last two years the municipal overburden provi-
sions of the School Aid Act, of which Detroit is the primary
beneficiary, has never been funded at more than 28% of the
maximum funding allowed by the school aid formula. The result
is the State of Michigan does not supply the Detroit Board with
all the money state law mandates.
Finally, the Governor of Michigan has provided in the
Executive Budget for the fiscal year 1977-1978 that the Detroit
Board will be required to submit its budget and expenditure data
to the Governor through the State Department of Management
and Budget for a comprehensive State level review and report to
the Governor and the Superintendent of Public Instruction.
Based on the Governor's budget message, it does not appear -
that such limitations will be placed on any other school districts.
The State's requirement of budget review is indicative of the
pervasive state control, particularly over the Detroit school
district.*
The United States Court of Appeals in Bradley v. Milliken,
540 F.2d 229, 241-42 (6th Cir. 1976) affirmed the judgment of the
* See, William G. Milliken, Executive Budget - Fiscal Year 1977-78, p.
J32; William G. Milliken, Michigan State of the State Message - January 1977,
p. 40.
District Court requiring State Defendants to share in the cost of
the educational components and allocated those costs between
the State Defendants and the Detroit Board. In so doing, the
Court of Appeals said:
We hold that it is within the equitable powers of the court to
require the State of Michigan to pay a reasonable part of the
cost of correcting the effects of de jure segregation which
State officials, including the Legislature, have helped to
create. We reemphasize that it is the law of this case that the
State of Michigan has been guilty of acts which have [28] a
causal relation to the de jure segregation that exists in
Detroit. 540 F.2d at 245; (PA 178a).
The fiscal justification for the decision of the District Court
in requiring that the State of Michigan pay one-half of the
costs of the desegregation plan (to the extent specified in the
orders and judgments) is supported abundantly by the evi-
dence with respect to the critical financial problems now
confronting the Detroit Board of Education. 540 F.2d at 246;
(PA 179a).
This Court granted the State Defendants Petition for Cer-
tiorari.
SUMMARY OF ARGUMENT
This appeal involves the propriety of the District Court's
inclusion in the Detroit desegregation plan of a reading program
to remedy deficiencies caused by segregation, non-
discriminatory testing and guidance and counseling programs,
and an in-service training program to sensitize teachers to the
needs of black students who have been victims of racial dis-
crimination and to the problems of teaching in a desegregated
setting. The District Court found these four remedial programs
were necessary to eliminate the effects of past segregation, to
make desegregation work and to prevent resegregation.
These findings of the District Court are supported by the
evidence and are within the scope of the remedy for segrega-
tion. The remedy of desegregation in Detroit must include more
than pupil reassignment to correct the inequities and discrimina-
tion inherent in the violafion of segregation. Once the constitu-
tional violation of segregated schools has been found, it is within
the broad flexible power of equity to ‘eliminate all vestiges of
segregation’, to overcome obstacles to effective desegregation
and prevent resegregation.
The findings of the District Court are amply supported by the
testimony of expert witnesses offered by the State Defendants,
the Plaintiffs and the Detroit Board. No contradictory evidence
was Offered.
These new remedial programs cannot be characterized as the
kind of *‘quality education’’ any school system should have. Nor
can they be dismissed as expansions of existing programs. Each
is specifically designed to meet the needs of children who have
been victims of segregation and to overcome obstacles to effec-
tive desegregation. Each program accomplishes in fact the ob-
jective for which it was designed.
Because the effects of segregation can and do take many
forms, the remedy of desegregation may include more than pupil
reassignment. No separate violation in the area of reading,
in-service training, testing, or counseling and guidance is neces-
sary for the District Court to include these four programs as part
of the remedy for segregation for it is these four educational
components that assist in remedying the violation of segrega-
tion.
12
The law of this case is that the State Defendants along with
the Detroit Board have been found guilty of de jure segregation
of the Detroit school system. Therefore, the responsibility for
implementing the four educational components necessary to
remedy the effects of segregation must be shared by the State
Defendants, the joint wrongdoers.
The Tenth Amendment is not an obstacle to the State Defen-
dants’ participation in the remedy because they have been found
to have caused segregation in Detroit. The order here is designed
to remedy a constitutional wrong. It does not interfere with or
obstruct the lawful operation of staje government.
Nor is the Eleventh Amendment a bar to the State Defen-
dants’ participation in the implementation of the remedy. It is
well settled that prospective injunctive relief directed toward
state officials, which is designed to renxedy school segregation,
may have a permissible ancillary financial impact on the state
treasury. The Eleventh Amendment was never intended to
shield the State Defendants from remedying a violation of the
subsequently ratified Fourteenth Amendment. In any event, the
State Board of Education, by the state statute, has waived the
application of the Eleventh Amendment.
State Defendants cannot use state law to frustrate the efforts
of a federal court to remedy a constitutional violation. As the
Detroit Board must, the State Defendants, the state officials
responsible for education in Michigan, must conform their ac-
tions and allocate their funds consistent with the constitutional
requirement to desegregate the Detroit schools. The State De-
fendants were not ordered to pay unappropriated funds, but
were ordered to implement a remedy for their constitutional
violations.
The Rodriguez case* and reasoning is not applicable. This is
not a suit challenging the state educational finance system,
rather this is the remedial phase of a school segregation case
involving joint wrongdoers.
*San Antonio Independent School District v. Rodriguez, 411 U.S. 1
(1973).
13
The State Defendants, adjudicated wrongdoers, may not
escape a remedy for school segregation by arguing that their
partial financing of the desegregation plan is in contravention of
state law. The remedial order carefully considered the pervasive
state control of local education and the fact that the Michigan
Supreme Court has consistently held that local school districts
are mere agencies of the state. The cost allocation of the remedy
is consistent with Michigan's pervasive control of education, the
State Defendants’ constitutional violation and the critical finan-
cial condition of the Detroit school system.
The Detroit school system has been hampered by a declining
tax base, inflationary costs which have limited its ability to
deliver current educational services, citizens who have the
highest municipal tax burden in Michigan and the defeat of ten of
the last eleven millage attempts to secure needed additional
operating revenue, including three millage defeats in August and
November, 1976. On these facts the District Court properly
found that the Detroit Board could not bear the entire costs of
desegregation because **... the very survival of an already
bankrupt school system is at stake.”
The educational components at issue here were developed,
pursuant to the District Court's guidelines, by the Detroit Board
and the State Board of Education over a period of time. The cost
of these components is a function of the size of the Detroit
system. Based on Detroit's 236,000 students and. 12,000
teachers and administrators, the remedial reading component
costs $19.49 a child; in-service training $204.50 a teacher or
administrator; testing $2.28 a child; and counseling and guidance
$17.16 a child.
As a practical matter, these components cannot be im-
plemented in Detroit without the State Defendants’ participa-
tion. Without components, the vestiges of segregation in Detroit
cannot be eliminated.
14
ARGUMENT
I.
THE INCLUSION OF REMEDIAL PROGRAMS IN READ-
ING, IN-SERVICE TRAINING, TESTING, AND COUN-
SELING AND GUIDANCE IN DETROIT’S DESEGREGA-
TION PLAN WAS CLEARLY WITHIN THE POWER OF
EQUITY BECAUSE OVERWHELMING RECORD EVI-
DENCE ESTABLISHES THAT THEY ARE ESSENTIAL IN
DETROIT TO ELIMINATE ALL VESTIGES OF SEGRE-
GATION AND OVERCOME OBSTACLES TO DESEGRE-
GATION.
Resolution of the issues now on appeal begins and ends with
the record. On remand, the District Judge was urged to adopt a
massive busing program in Detroit. Instead of doing so, he
adopted a more realistic transportation program, and utilized
other techniques of desegregation including changing attendance
zones, leaving schools untouched that were in stabilizing
neighborhoods, ordering magnet schools, and developing a sys-
tem of city-wide open enrollment schools. Remedial programs in
reading, in-service training, testing, and counseling and guid-
ance were an integral part of this carefully devised desegrega-
tion plan.
Assisting the Court in developing the overall plan were three
court appointed experts: Wilbur J. Cohen, Dean of the Univer-
sity of Michigan School of Education and former Secretary of
Health, Education and Welfare; Frances Keppel, former
United States Commissioner of Education; and John A. Finger,
Professor of Education, Rhode Island College.
It is imperative that this Court understand how the four
remedial programs, reading, testing, in-service training, and
counseling and guidance came to be included in the Detroit
desegregation plan as they were finally ordered by the District
Court, what they actually are, and what they are designed to
accomplish. The issue in this case is not the abstract question of
whether a desegregation plan may include educational compo-
nents absent a specific finding of a constitutional violation in
educational programs. The issue is whether this record supports
this District Judge's finding that the programs in question here
15
are necessary to eliminate all vestiges of segregation, overcome
obstacles to effective desegregation and prevent resegregation in
Detroit.
Segregation in the Detroit schools, found by the District
Court and affirmed by the Court of Appeals and by this Court to
have been caused by the State and the Detroit Board, has had
many devastating consequences to black students. Unlike the
South, where segregation resulted from notorious Jim Crow
laws, segregation in Detroit was the result of an evolutionary
process, contributed to by both state and local officials, co-
defendants herein, which took place over a period of time. Not
only did this process result in racial isolation for black children
in a large number of schools, but there were other aspects of the
process which have left the badges of segregation on these
children. Courts have recognized that students attending segre-
gated schools ‘‘have long been disadvantaged by the inequities
and discrimination inherent in the dual school system’’. Plac-
quemines Parish School Board v. United States, 415 F.2d 817,
831 (Sth Cir. 1969).
As a result of the inequities inherent in segregation, black
students in Detroit’s predominantly black schools did not re-
ceive the same educational benefits as white children in predom-
inantly white schools. Just a few examples of these adverse
effects of segregation suffered by many black students are the
low achievement test scores (A 6), impaired reading ability (A
6), tracking (A 31, 37), disproportionate representation in special
career programs (A 34), and a substantially higher dropout rate
(A 51-53).
To eliminate these inherent inequities, these vestiges of
school segregation, and to remove obstacles to effective de-
segregation, the District Court's remedial order provides for
special reading programs, testing programs, and counseling and
guidance programs. In addition, an in-service training program is
included to sensitize school teachers to the needs of black
students who have been the victims of such racial discrimination
and to the problems of teaching in a desegregated setting.
The inclusion of these programs in Detroit's desegregation
plan is entirely consistent with the historical power of equity ‘‘to
16
mould each decree to the necessities of the particular case’’,
Hecht v. Bowles, 321 U.S. 329, 330 (1944), and to render a
decree which will ‘‘eliminate the discriminatory effects of the
past as well as bar like discrimination in the future’’, Louisiana
v. United States, 380 U.S. 145, 154 (1965), and ‘‘eliminate all
vestiges of state imposed segregation’’, Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1, 15 (1971), “root
and branch"’, Green v. County School Board of New Kent
County, 391 U.S. 430, 438 (1968).
The State Defendants’ argument that the District Court
exceeded its remedial powers by including these programs in
reading, in-service training, testing, and counseling and career
guidance in its plan must fail because these defendants:
A. Ignored the record support for the programs;
B. Misrepresented both their content and the function
each is designed to perform in the process of rem-
edying the violation of segregation, making de-
segregation a success and preventing resegregation;
C. Failed to understand the nature of segregation in
Detroit schools, and the purpose of desegregation
law; and
D. Misunderstood the governing remedial principles.
A. RECORD EVIDENCE SUPPORTS THE NEED IN DE-
TROIT FOR REMEDIAL PROGRAMS IN READING,
IN-SERVICE TRAINING, TESTING, AND COUNSEL-
ING AND GUIDANCE.
Contrary to the assertions of the State Defendants, the
District Court did not usurp school board decisions, did not take
over management of the Detroit schools, and did not include
components in the plan simply to improve the overall quality of
education.
The role that components came to play in the Detroit de-
segregation plan evolved as follows. The original plan submitted
by the Detroit Board included thirteen educational components
in addition to pupil reassignment. The Court then ordered the
17
State Defendants to submit a critique of the Detroit Board Plan.
(PA 13a). At pages 38 and 39 of its critique, the State approved
the inclusion eight of the proposed components as deserving
‘special emphasis in a desegregation plan’’.
[Within the context of effectuating a pupil desegregation
plan, the in-service training, guidance and counseling, stu-
dents’ rights and responsibilities, school-community rela-
tions, parental involvement, curriculum design, multi-ethnic
curriculum and co-curricular activities components appear to
deserve special emphasis.
The State Defendants were in the forefront of supporting
these components to desegregate Detroit schools until the State
was required to pay its share of the cost.
Plaintiffs also responded to the Detroit Board's proposed
plan by affirming the inclusion of these components to make the
desegregation plan work and to eliminate the effects of segrega-
tion.
The following record evidence developed in over 76 days of
actual trial time (41 days of violation hearings and 35 days of
remedial hearings), supports the District Court's finding that
remedial programs in reading, in-service training, testing, and
counseling and guidance were necessary to eliminate the ves-
tiges of segregation, to overcome obstacles to effective desegre-
gation and to prevent resegregation. Upon review, the Court of
Appeals affirmed these findings as *‘not clearly erroneous, but to
the contrary, supported by ample evidence’’. Bradley v. Milli-
ken, 540 F.2d 229, 241 (6th Cir. 1976); (PA 170a).
1. READING.
(a) The Record Evidence.
One of the devastating, adverse consequences of the segre-
gation of Detroit schools, caused by the State and the Detroit
Board, which the District Court has sought to eliminate in its
remedial order is the unequal reading ability of many black
students as compared to the ability of white students. Because of
the process of segregation, by the eighth grade, black students in
predominantly black schools were on the average of two or more
grade levels behind white students in predominantly white
schools as measured by standard achievement test scores.
There is absolutely no evidence in the record that such disparity
resulted from some inherent inferiority of black children as a
group relative to white children. Rather, as a group and on the
average black and white children arrive in school with the same
potential and much the same levels of tested achievement. Only
thereafter, with the experience of school segregation, does this
tested achievement disparity appear and grow (A 99-100). Be-
cause of these reading deficits, black students did not do well in
other areas of education, because the ability to read is a pre-
requisite to the entire learning process. Consequently, teachers
in predominantly black schools came to expect less of their
students. This low teacher expectation in predominantly black
schools because of the low achievements of their students
caused a further deterioration in the black students’ desire to
learn (AR 18ar, P Dep Johnson X 5 §§ 31, 32; AR 20ar, P Dep
Johnson X 6 p 11; AR 17ar, D X MMMM). Thus, failure of black
students to read as well as their white counterparts resulted from
the process of segregation in Detroit and formed the basis for the
generally low achievement level of black students (AR Sar-6ar,
RV IX 1006-07; A 60-62).
The evidence from the remedial record established that a
remedial reading program was absolutely essential to remove
these vestiges of segregation in order to make desegregation
work.
Dr. Robert Green, Dean of the School of Urban Studies,
Michigan State University, testified as follows:
I am also well aware of the fact that minority youngsters in a
system . . . do lag significantly behind their white counter-
parts in reading skills ... Racial segregation is a very key
factor in the process . . . When we examined the data for the
NAACP here, I believe, two, two and a half years ago, when
we had firsthand awareness of that date, there was a sig-
nificant discrepancy between the general achievements,
specifically in the reading area, between black and white
youngsters here in the City of Detroit. (A 61).
19
Plaintiffs’ witness, Dr. Michael J. Stolee, now Dean of the
School of Education at the University of Wisconsin, re-
emphasized the fact that black students who had been victims of
discrimination often suffered the greatest difficulty in reading
and, because of this fact, many desegregating school systems
have concentrated on remedying the reading deficits of their
black students. It was the opinion of this expert that a desegrega-
tion plan could net be effective without a remedial reading
program (A 55).
Dr. Gordon Foster, Director, of the Florida School Desegre-
gation Consulting Center at the University of Miami, emphasized
the fact that reading programs are an important aspect in facilitat-
ing desegregation. Dr. Foster pointed out the relationship be-
tween the ability to read and the ability to test well, he also
pointed out some of the teaching and disciplinary problems due to
segregation caused reading deficits which surface when actual
desegregation begins, and, if left unresolved, prevent any de-
segregation plan from succeeding. Dr. Foster testified:
But when you throw children, especially at the advanced
grades from widely different preparation backgrounds, chil-
dren of considerably different achievement, teachers are in
very dire straits on how to deal with a roomful of children
that have very wide achievement ranges. And this is one of
the perceptions that they have of being a most difficult
problem. It's very obvious that if you have a child, for
example, in the Sth or 6th grade who is reading at the Ist and
2nd grade level, that none of the subjects in that grade can he
adequately cope with because reading is the foundation for
the whole business. (A 56).
Let me cite a quick example. We have an accepted program
with one of the big high schools in Miami which is desegre-
gated, Jackson High School, and they just had a finding that
needs assessment which indicates that something like 70
percent of their pupils in the senior high school are reading at
maybe the 4th or Sth grade level. Now, obviously, this
becomes a very important disciplinary matter because the
pupils sit there and they can't do anything. They can't relate
to what's going on in the classroom. (A 57).
20
(b) Decisions Of The Courts Below.
The entire record testimony as to the essential need for a
reading program to eliminate the vestiges of segregation in
Detroit was brought into focus when the District Court set forth
its reasons for including a remedial reading program in the
Detroit desegregation plan.
There is no educational component more directly associated
with the process of desegregation than reading. Statistical
data establish that minority youngsters lag significantly be-
hind their white counterparts in reading skills, which in turn
affects the ability of minority students to follow written
instructions, succeed on aptitude tests, pass entrance
examinations for colleges and universities and compete in
the world of arts, sciences, occupations, and skills.
Moreover, when such conditions persist, there is a direct
effect upon the school environment. Students become discip-
linary problems when in reality their problem is directly
associated with an inability to conceptualize due to a lack of
proper reading and communication skills. As a consequence,
teachers and staff assume that such minority students are
uneducable, thus further deteriorating the school environ-
ment for these students. To eradicate the effects of past
discrimination, a remedial reading program should be insti-
tuted immediately to correct the deficiencies of those mid-
way in their educational experiences. Bradley v. Milliken,
402 F.Supp. 1096, 1138 (E.D. Mich. 1975);(PA 72a).
The Court of Appeals affirmed the inclusion of a reading
program in the Detroit desegregation plan, holding that reading
programs are ‘‘essential to combat the effects of segregation”
and necessary to provide the ‘‘achievement levels’’ required to
overcome obstacles to desegregation. 540 F.2d at 241: (PA
170a-7 1a).
2. IN-SERVICE TRAINING.
(a) The Record Evidence.
Another inequity inherent in the process of segregation was
that both black and white teachers as.igned to predominantly
black schools tended to have poor expectations of students
21
attending those schools (AR 10ar-l2ar, RV XXXV_ 3805-06,
3814; A 38). The record established that in Detroit there is a
direct relationship between a student's performance and his
teacher's expectations, preceptions, attitudes, and behavior (AR
4ar-7ar, RV LX 988-93, 1033-35; A 38). In fact, the discrepancy
of one to two years between black and white student achieve-
ment level at the eighth grade was partially the product of low
expectations from teachers (AR lar-3ar, RV April 6, 1971 53-58)
and also the substantial drop-out and truancy rates among black
junior high school students attending segregated schools in
Detroit (AR 2lar, P Dep Johnson X 6, p 24; A 63).
Dr. Charles Kearney, Associate Superintendent of Research
and Administration of the Michigan Department of Education,
and the State Defendants’ own witness, stated on direct exami-
nation that in-service training was necessary to a desegregation
plan:
Well, I suspect when one undergoes a desegregation effort
that you have the movement of a number of pupils from
different areas of the city or different areas of the school
districts. And it seems good judgment to prepare teachers, as
well as other professional staff who are going to meet these
children when they come in the school, to be prepared and
ready to work with those children and hopefully end up with
a successful experience. (A 88-89).
Dr. Stuart Rankin, Assistant Superintendent for Research
for the Detroit school system, explained the need for in-service
training in the area of teacher expectations:
If I'm a white teacher who has been—or a black teacher, for
that matter, who has been used to working only with black
youngsters or only with white youngsters and my experience
is limited to that extent and I may have, through my own
background, certain prejudices or limitation, or in some
other ways may not be as adequate to the job in a newly
desegregated school situation as I might otherwise be .. . I
am going to need to understand what happens when expecta-
tions are communicated to youngsters ...It is true
that . . . the extent to which the teacher communicates to
the student that the teacher expects that the student will
22
learn well is an important variable in how the student feels
about how well he is going to learn. And in turn, that is an
important factor in how well he does indeed learn. (A 38).
Dr. Michael J. Stolee, Plaintiffs’ witness, testified:
In my opinion, the most important single component that’s in
there is the section on in-service training. | have read the
back of the document what the School Board has had to say,
and it is my opinion that their statements reflect accurately,
as I know it to exist on the national scene and that the
program they are presenting makes sense. It would be a good
way to handle it. (A 54).
Dr. Kearney, a State witness, Dr. Rankin, a Detroit Board
witness, and Plaintiffs’ witness, Ur. Stolee, each ranked in-
service training as the most important component in the Detroit
desegregation plan and essential to the operation of the plan.
(Kearney (A 90); Rankin (A 38); Stolee (A 54)).
(b) Decisions Of The Courts Below.
Because record testimony established that an in-service
training program is essential to prepare Detroit's faculty and
other educational personnel to deal with the experiences that
arise in a school system undergoing desegregation and to correct
the negative effects on black students of segregation fostered
pre-existing bias, lack of cultural understanding and low teacher
expectations, the District Court reasoned and concluded:
A comprehensive in-service training program is essential to a
system undergoing desegregation . . . All participants in the
desegregation process must be prepared to deal with new
experiences that inevitably arise...It is known that
teachers’ attitudes toward students are affected by desegre-
gation .. . White and black teachers often have unhealthy
expectations of the ability and worth of students of the
opposite race. Moreover, it is known that teachers’ expecta-
tions vary with socio-economic variations among students.
These expectations must, through training, be re-oriented to
ensure that academic achievement of black students in the
23
desegregation process is not impeded. A comprehensive
in-service training program will ensure that all students are
treated equally in the educational process. 402 F.Supp. at
1139; (PA 73a).
In affirming, the Court of Appeals stated:
The need for in-service training of the educational
staff . . . is obvious. [In service training] is needed to insure
that the teachers and administrators will be able to work
effectively in a desegregated environment. 540 F.2d at 241;
(PA 170a).
3. TESTING.
(a) The Record Evidence.
Another consequence of the segregation caused by the State
and the Detroit Board is the low achievement test scores of
black students as compared to white students which lead to the
grouping of black students in what the educational world refers
to as tracking (A 35-37, 41-42).
Standardized tests have traditionally been used to measure
achievement, and to classify and counsel students. These tests
are heavily dependent on strong reading skills (AR 22ar-23ar, P
Dep Johnson X 6, p 34-36; A 36, 41-42). These tests are couched
in the language and vocabulary of the white middle class. In
addition, as a consequence of segregation, black students in
Detroit are unfamiliar with the subject matter of the tests.
Consequently, testing, as a by-product of segregation, has re-
tarded the progress of black students by tracking, misplacement
and undereducating (AR I4ar-i6ar, P Dep Drachler June 28,
1971, 113-17; AR 22ar, P Dep Johnson X 6, 31; A36-37, 41-42).
Record evidence supports the need for a revised testing
program designed to deliminate these vestiges of segregation and
to prevent their continuation.
Dr. Edward Simpkins, Dean of the School of Education at
Wayne State University, verified that ‘‘we have had tracking
systems built into the school systems and testing has been used
as a device for segregating and isolating racial groups within the
24
schools’’. (A 31). Professor Margaret C. Ashworth, of the
Wayne State University School of Education, also confirmed
the fact that tests were culturally biased and resulted in the
segregation of black children in various educational tracks. (A
36-37).
According to Professor Ashworth, the Detroit Board's test-
ing component was ‘‘designed to prevent this type of segrega-
tory effect’. (A 37). Dr. Stuart Rankin described the way test
procedures will be administered to ensure that new testing
procedures will be nondiscriminatory:
[T}hose people who give the tests and those people who
interpret the results of those tests, under a desegregated
school situation, should have some special training to make
certain that the childrens’ testing circumstances are just as
perfect as they can be, that there is the appropriate readiness
for taking the test that gives every advantage that is
fair . . . that the test administration is done the way it ought
to be. But more importantly that the interpretation and
results of these tests are used properly, not to channel kids in
a situation where they may be grouped with youngstefs who
perhaps aren't learning as well or we might get some re-
segregation possibly. (A 39-40).
The State's witness, Dr. Charles Kearney, acknowledged
that improper testing procedures could have an adverse effect on
the desegregation effort:
If test results were inappropriately used to categorize chil-
dren into special education programs and most of those
children happen to be black as a result of that kind of use,
yes | think it would have certainly a discriminatory affect
and it would have a negative affect, I’ m sure on any kind of
desegreation plan being implemented. (A 93).
(b) Decisions Of The Courts Below.
To ensure that desegregation will succeed, and to eliminate
all vestiges of segregation, the testing program will have two
goals: first, to eliminate any cultural bias from the tests them-
selves; and, second, to make certain that placement decisions
based upon test results are no longer discriminatory.
25
Based upon the above record evidence, the Court recognized
these desegregation goals when it wrote:
The Detroit Board and State Board of Education are con-
stitutionally mandated to eliminate all vestiges of discrimina-
tion, including discrimination through improper testing. 402
F.Supp. at 1142; (PA 78a).
The Court of Appeals affirmed the District Court's decision
stating:
The need for . . . development of non-discriminatory testing
is obvious. . . . [Non-discriminatory testing) is needed to
insure that students are not evaluated unequally because of
built-in bias in the tests administered in formerly segregated
schools. 540 F.2d at 241; (PA 170a).
4. COUNSELING AND GUIDANCE.
(a) The Record Evidence.
Another of the adverse consequences of the segregation of
Detroit schools, caused by the State Defendants and the Detroit
Board, which the District Court has sought to eliminate in its
remedial order is the under-representation of black students in
technical and vocational training programs and the dispropor-
tionately high absenteeism and drop-out rate of black students as
compared to white students. (AR 8ar-!0ar, RV X XXIII 3603-13,
AR I3ar, R November 23, 1970, 70-72; AR 1!9ar-2lar, P Dep
Johnson X 6, pp 15-16, 24; A 34, 59-60, 63).
The remedial record clearly establishes that a counseling and
guidance program must focus on correcting these vestiges of
segregation and, in addition, help students adjust to the inevita-
ble pressures which develop in the desegregation process.
Charles Wells, Assistant Superintendent of the Detroit Pub-
lic Schools, testified that the counseling and guidance compo-
nent was needed to cope with new pressures created by “‘mov-
ing a significant number of students where new peer relation-
ships have to be established to deal with disciplinary problems
and to remedy Detroit's high drop-out rate among black children
who have been retarded in their educational development by
segregation in the Detroit system’’. (A 51-53).
26
Mr. Wells also testified that a revised counseling and guid-
ance component must correct the effects of segregation on
black children and eradicate previous counseling practices
which stereotyped black children and discouraged them from
entering into wide varieties of educational and career oppor-
tunities. (A 52). Mr. Wells highlighted the previously segregated
black students’ need for a revised counseling program:
I have gone into some length about the adjustment problems.
I think a second area relates to—particularly if we re talking
about black students—the problems that are the consequ-
ence in many instances of past discrimination and segrega-
tion.
Students usually choose pursuits, have an interest in educa-
tion to the extent that either they or those around them have
found those expenences to be to some degree successful in
the past. We have many students who are in the black
community who cannot look to parents, cannot look to
relatives, who have been successful in a number of areas that
are now open to trained people. It then becomes necessary
for the school system to provide the kind of guidance that
can assist the student in making an intelligent choice about a
career and give that student some understanding that if he or
she prepares themself to be sufficient to meet the qualifica-
tions within a particular career, there is the opportunity and
possibility for them to exploit that experience in terms of
meaningful employment’. (RR XX! 153, 154).
Professor Margaret Ashworth graphically described the need
for a guidance and counseling program to eliminate the effects of
past segregation of black children in the Detroit system and to
make certain that counseling and guidance will be noniis-
criminatory when she said:
|W)hat we are saying is that in order to correct the inequities
for the students and mght the wrongs of students that the
person has to be retrained and that program has to be
revamped .. . but what | am saying is that students have
been counseled in or out of certain programs based on their
race. If this had not been so the Aero Mechanics would not
be 84 per cent white in a school system that is more than 70
per cent black. (A 34).
27
Professor Ashworth’'s reference to the Aero-Mechanics High
School, a training ground for entry into the aviation industry,
being a predominantly white school underscores Mr. Wells’
point that there has been a failure in career counseling for black
students. |
No stronger support for the counseling and guidance compo-
nent as being necessary in desegregating the Detroit system was
given than by the State Defendants’ own witness, Dr. Kearney.
He testified that a counseling and guidance component was
necessary to avoid stereotyping students based on race (A 95),
and further stated:
We support the notion of a guidance and counseling effort.
We think it certainly does have a relationship in the desegre-
gation effort, we think it deserves special emphasis. (A 88).
(b) Decisions Of The Courts Below.
Based on this record, the District Court recognized that a
counseling and guidance component was essential to eliminate
“root and branch” all vestiges of segregation in the Detroit
school system and to make desegregation work, and in doing so
the Court wrote:
School districts undergoing desegregation inevitably place
psychological pressures upon the students affected. Coun-
selors are essential to provide solutions to the many prob-
lems that result from such pressures. Moreover, the success
of the vocational and technical schools created herein de-
pends upon the efforts of counselors whose guidance is
essential to students seeking a career. Counselors can ac-
complish much to shape and guide the academic experiences
of stadents. They assist student self-development training
possiblities available in the system. It will be essential that
the counselors become fully acquainted with the vocational
and technical offerings created herein. 402 F .Supp. at 1143;
(PA 81a).
The Court of Appeals affirmed the District Court holding
that **. . . counseling programs are essential to the effort to
combat the effects of segregation™’. 540 F.2d at 241; (PA 170a).
28
5. INCONSISTENCIES AND MISREPRESENTATIONS OF
THE STATE DEFENDANTS.
The schizophrenic argument of the State Defendants is illus-
trated by the fact that they have supported other components in
the desegregation plan which are now in various stages of
implementation. The inclusion of these components has never
been appealed because the State Defendants were not asked to
pay for them. The same rationale which supports the inclusion of
programs not appealed by the State Defendants supports the
inclusion of the four programs at issue here. It is hard to believe
that the State Defendants are serious in suggesting that the
reading, testing, in-service training, and counseling and guid-
ance programs are not essential to remedying all vestiges of the
past effects of segregation in Detroit and overcoming obstacles
to effective desegregation. *
The hypocrisy of the State Defendants’ appeal of this issue is
further highlighted by their attempt to misrepresent to this Court
the Plaintiffs’ views as to the educational components. Plaintiffs
never opposed the inclusion of educational components in the
Detroit desegregation plan. At the remedial hearings, the Plain-
tiffs’ two experts, Dr. Stolee and Dr. Foster emphatically sup-
ported these components. In addition, the Plaintiffs filed a Brief
In Opposition To Petition For Writ of Certiorari. The State
Defendants have taken out of context the statement of Dr.
Foster that his pupil reassignment plan eliminated the segrega-
tion in Detroit and ignored his lengthy testimony as to the need
for educational components as part of the plan to desegregate
the Detroit school system. (A 55-58).
* The Detroit Board does not understand the import of footnote 8 at page
11 of the States’ Brie? regarding vocational education. The Detroit Board has
attempted in the past to develop a vocational program but was prevented from
doing so during the course of this litigation because of the injunction against the
construction of any schools. The Detroit Board's frustration was even more
keen when, during the period of this litigation it watched the State consistently
allocate federal funds for vocational education to school districts which were
predominantly white.
29
B. THE FOUR NEW REMEDIAL PROGRAMS—THEIR RE-
LATIONSHIP TO DESEGREGATION.
The concept of including these specialized remedial pro-
grams in a Detroit-only desegregation plan was developed by the
Detroit Board and supported by the Plaintiffs and the State
Defendants. These programs were not interjected by the Court
and imposed upon reluctant school officials. The District Court
merely set forth guidelines to be followed in developing each of
these programs. Consistent with these guidelines, the detailed
plans for the actual programs to be implemented were developed
over a period of time by the Detroit Board working in some
cases with the State Board of Education, and submitted to the
Court for approval and incorporation into Detroit's desegrega-
tion plan. The reading program was approved on December 4,
1975, and the in-service training, testing, and counseling and
guidance programs on May 11, 1976. (PA 146a).
1. CONTENT AND FUNCTION OF EACH PROGRAM.
(a) Reading.
The new reading program wi!i provide remedial reading
instruction to students at the high school level who have reading
deficits which developed as a result of the inherent inequities of
the segregated conditions in the Detroit schools. The new read-
ing program will also instruct high school teachers how to teach
oriented in their teaching rather than oriented toward reading
instruction (A 57). The new reading program will also train
middle school teachers in remedial reading techniques to facili-
tate the assimilation of sixth grade students who will be in
middle schools for the first time due to the grade restructuring
necessitated by desegregation.
The new reading program will train administrators, teachers,
and para-professionals, at all grade levels, in ways to restructure
their reading program to overcome segregation caused reading
deficits, and to accommodate grade changes and the new pupil
mixes resulting from the pupil reassignment program, magnet
schools, the new area vocational centers, and city-wide schools.
Parents will also be trained in methods with which they can help
their children improve their reading and communication skills.
30
For the first time, trained reading specialists will be assigned
to each senior high school. They will do two things. They will
provide reading instruction directly to students with reading
handicaps which developed as a result of the inequities of the
segregated conditions in the Detroit schools. These reading
specialists will also help high school teachers, who have never
had training in remedial reading instruction, in methods of
diagnosing and remedying segregation-caused reading deficits.
For the first time, this same kind of instruction given at the high
school level will also take place at the middle school level.
At the elementary school level, reading specialists will train
elementary school teachers how to identify reading deficits early
in a student's academic career, and how to remedy these deficits
and thereby prevent the discrepancy between the academic
achievement of black and white students at the eighth grade
level. Then, all students can work together and progress to-
gether in all aspects of the desegregation process.
When the cost of this new remedial reading program is
apportioned among Detroit's 236,000 students, the average cost
is about $19.49 a child.
(b) In-Service Training.
The Detroit Public Schools will develop, implement, coordi-
nate and monitor an in-service training program which will meet
the unique needs of a school district undergoing desegregation.
The program will concentrate its efforts in the areas of teacher
expectations, crisis intervention and prevention, ethnic and
racial awareness and human reiations.
Teachers and other staff will be trained to understand the
impact of their expectations on how they plan and teach their
courses, and how their expectations effect the performance level
of students who have varying racial, cultural and socio-
economic backgrounds.
Crisis prevention and intervention programs are needed in a
desegregating school system to deal with conflicts which may
arise as a result of desegregation in and around the schools
which may disrupt the educational programs of those schools.
The new in-service training program will instruct staff and
31
teachers how to identify these potential problems so that hope-
fully they may be avoided, and how to handle them if they do in
fact develop. The aim of the program will be total participation
of all teachers and staff and students, and as much participation
of parents as it is possible to obtain.
The new in-service training program will bring to students
and staff an awareness and appreciation of racial and cultural
differences. By so doing, teachers will develop an increased
understanding and appreciation of the characteristics of the
different racial, cultural and socio-economic groups and come to
learn the important strengths of students from each group, and
how to combine these in the classroom to achieve a total
desegregated learning experience.
The new in-service training program will ensure that
teachers, educational staff, students and parents are prepared to
deal with the new experiences which inevitably arise as a result
of a desegregation plan. Such training programs necessarily are
extensive because there are about 12,000 teachers in the Detroit
schools.
The cost of the desegregation in-service training program
averages about $204.50 a teacher or administrator. This average
cost does not take into account the large number of non-
professional staff personnel who will also receive the benefits of
this training.
(c) Testing.
Under the new testing program, all tests used in the Detroit
schools will be reviewed to ensure that they are non-
discriminatory and free of any cultural bias. If any tests are
found discriminatory, they will be discontinued and new tests
will be selected to replace them. In addition, there will be a
re-examination of the use of individual psychological test results
to guard against discriminatory placement of any child in any
program.
All school staff will receive training in test administration
procedures which ensure standardized and non-discriminatory
treatment of the students when they are taking the tests. Staff
will be trained in the proper interpretation of test results so that
tracking will not result, students will not be unnecessarily pre-
32
cluded from entering particular programs, nor undue weight
given to test scores in making judgments about pupil placement.
In order to avoid tracking and resegregation, particular emphasis
will be placed on instructing those who interpret test scores in
the meaning of those scores and the limitations which should be
placed on the use of these scores. Those who administer tests
will learn the importance of communicating scores and the
importance of teachers and counselors communicating their
expectations of success to the student.
In addition to the above, the new testing program will
provide for the evaluation of test results in order to monitor
Detroit's desegregation efforts so that timely information may be
developed and utilized by the school administration as to the
strengths and weaknesses of the desegregation effort.
When the cost of revising and administering the new testing
program is apportioned among Detroit's 236,000 students, the
average cost is about $2.28 a child.
(d) Counseling And Guidance.
Under the new program, counselors will be trained to use the
results of the new testing program, and will also receive training
in career opportunities. They will then be able to guide each
student, according to their own potential, into a rewarding
career. Such a counseling program is expected to have a drama-
tic effect on lowering the high dropout rate among black students
in the Detroit school system.
At the high school level, counselors will be relieved of
clerical duties so they can devote their efforts to helping children
adjust to the pressures of the desegregation process and spend
more time with potential dropouts. Thus, counselors can work
to ensure that students will be counseled into the magnet
schools, area vocational centers and city-wide schools and open
up the wide world of new career and educational opportunities
for many of Detroit's black students who were denied exposure
to such opportunities because of segregation.
A program comparable to that at the high school level will be
initiated in the middle schools. It is at this stage of a student's
education that the potential dropout develops. Contrary to the
misrepresentations of the State Defendants, there will not be one
33
counselor in every elementary school. The new counseling and
guidance program calls for only one counselor for every three
elementary schools, because of the need to eradicate the ves-
tiges of segregation at the earliest level. Some elementary school
counseling is necessary because of the stresses caused by de-
segregation and also to expose these children and their parents
to the educational opportunities available in magnet schools, at
the sixth through eighth grade, and to numerous high school
opportunities such as area vocational centers, city-wide schools
and Cass Technica! High School. The earlier these opportunities
are made known to the child, the more successful will be these
methods of racially mixing students.
When the cost of the counseling and guidance program is
apportioned among Detroit's 236,000 students, the average cost
is only $17.!6 a child.
These new remedial programs cannot be characterized as the
kind of *‘quality education’ any school system should have. Nor
can they be dismissed as expansions of existing programs. Each
is specifically designed to meet the needs of children who have
been victims of segregation and to overcome obstacles to effec-
tive desegregation.
At page 6 of their Brief, the State Defendants imply that
these programs are not well documented and their costs exces-
sive. This may be true of the original programs submitted by the
Detroit Board on April |, 1975. However, this is not true of the
programs now before this Court for review because they have
been developed by the State Board and the Detroit Board
working with Wayne State University and other educational
agencies, and then scrutinized by the Court and its monitoring
2. DETERMINATION OF COST.
To arrive at the 5.8 million dollar figure which the State
Defendants claim they should not be required to pay, the Court
was equally precise. It ordered the Detroit Board to determine
the highest amount spent in any year preceding desegregation on
the reading, testing, and counseling and guidance and in-service
training programs. The difference between the above figures and
34
the additional cost of replacing the old pre-desegregation pro-
grams with the new programs necessary to desegregate Detroit
was $11,645,000. Payment of this additional cost was divided
equally between the two Defendants (PA 146a, 147a). The State
Defendants have never questioned the accuracy of this figure,
only the requirement that they pay their share.
After the District Court's May 11, 1976 judgment (PA 145a)
requiring payment by the State Defendants, they appealed, and
for the first time raised the issue of the propriety of components
in a desegregation plan. After extensive briefing and a review of
the record, the Court of Appeals affirmed the inclusion of these
four particular programs in a Detroit desegregation plan as being
within the scope of the remedy and supported by ample evi-
dence. 540 F.2d 229, 241; (PA 170a).
3. WRITINGS AND FIELD STUDIES SUPPORT THE
NEED FOR REMEDIAL PROGRAMS IN A DESEGRE-
GATION PLAN.
Current writings of educators, psychologists and
sociologists, based upon studies and field observations, have
reinforced the proposition that a school system undergoing
desegregation cannot eliminate the vestiges of segregation ‘‘root
and branch’’ unless remedial programs such as reading, in-
service training, testing, and counseling and guidance are made a
part of the desegregation plan.
For the convenience of the Court a listing of summaries of
these current writings is set forth as a compendium to this brief
at pages 90-98 hereinafter.
In July, 1976, the Educational Testing Service of Princeton,
New Jersey, which is synonymous with educational testing and
research in this country today, published two reports of a study
entitled, ‘‘Conditions and Processes of Effective Desegrega-
tion’’.© Based on field research and surveys, the study recom-
* See G. Forehand, M. Ragosta, and D. Rock, Conditions and Processes
of Effective School Desegregation. Final Technical Report for U.S. Office of
Education Contract OEC-O-73-6341. Princeton, N.J., Educational Testing
Service, 1976; G. Forehand and M. Ragosta, A Handbook For Integrated
Schooling. A report prepared for U.S. Office of Education Contract OEC-O-
73-6341. Princeton, N.J., Educational Testing Service, 1976.
35
mends that, because of the effects of past segregation, and the
‘*dramatic’’ impact of the ‘‘process of desegregation’’ on educa-
tion programs,’ the reading, testing, in-service training and
counseling and guidance components described herein be in-
cluded as essential components to an effective plan for school
desegregation.
The commentators and the Princeton Testing Service's re-
cent field studies unanimously support the finding of the Courts
below that educational programs are essential to an effective
desegregation plan in Detroit.
C. THE NATURE OF SEGREGATION AND THE PURPOSE
OF DESEGREGATION.
When school desegregation law is traced to its origins in
Brown v. Board of Education, 347 U.S. 483 (1954), one finds that
in determining whether a segregated education deprives black
children of the equal protection of the laws, the Court stated,
. . we must look instead to the effect of segregation itself in
public education.'’ Brown recognized that segregation is wrong
because of the effect it has-on the plaintiffs and their education.
The basic underlying purpose of Brown is that these effects must
be removed if the races are to be treated equally.
Seventeen years after Brown, this Court noted in Swann v.
Charlotte-Mecklenberg Board of Education, 402 U.S. 1 (1971)
that the process of desegregation had become more complex as
it moved from rural areas to large cities with their many schools
and population shifts. 402 U.S. at 14. The Swann court then
addressed itself to the task of establishing guidelines for district
courts to follow as they struggled to develop desegregation
plans. The guiding principle was that** . . . all vestiges of state im-
posed segregation must be eliminated from the public schools’’.
402 U.S. at 15. While the central issue in Swann was pupil
assignment, the Court acknowledged that there are other ‘‘as-
pects’ of segregation in addition to student assignment and there-
fore other aspects to the process of desegregation in addition to
pupil reassignment. 402 U.S. at 18.
’ See A Handbook For Integration, Ibid at 4.; also see, pages 73-96
(Reading), 34-35 (Testing), 89-93 (In-Service Training), 53-56 (Counseling and
Guidance).
36
In addition to recognizing that desegregation may be more
than pupil assignment in order to eliminate all vestiges of past
segregation, the Swann court also recognized that pupil reas-
signment alone may not be enough to counteract the *‘continuing
effects of past school segregation’’. 402 U.S. at 28.
In Milliken v. Bradley, 418 U.S. 717, 746 (1974), this Court
again spoke to the scope of the remedy in school desegregation
cases:
[Bjut the remedy is necessarily designed, as all remedies are,
to restore the victims of discriminatory conduct to the posi-
tion they would have occupied in the absence of such con-
duct. Disparate treatment of white and Negro students oc-
curred within the Detroit school system, and not elsewhere,
and on this record the remedy must be limited to that system.
The Court of Appeals for the First Circuit did not construe
language used by this Court in the context of excluding school
districts from a remedy when they had not committed a viola-
tion, as limiting the basic remedial principles evolving in school
desegregation law that desegregation plans must remove all
vestiges of segregation rather than perpetuate them. As that
Court pointed out, restoration is a ‘‘complex and widespread
process’’. Morgan v. Kerrigan, 530 F.2d 401, 418 (1st Cir. 1976),
cert. denied, 96 S.Ct. 2648 (1976).
The State Defendants argue that the only judicial remedy ina
school desegregation case is pupil reassignment. Such an argu-
ment ignores this Court’s position that desegregation must
** |. . restore the victims of discriminatory conduct to the posi-
tion they would have occupied in the absence of such conduct’’.
Milliken v. Bradley, 418 U.S. at 746, and ignores the recognition
in Swann that desegregation can be more than pupil reassign-
ment.
By defining the violation as ‘‘unlawful pupil assignment
practices’’, the State Defendants attempt to narrow the remedy
to pupil reassignment. However, after the violation hearings in
Detroit the District Court found that:
[Bjoth the State of Michigan and the Detroit Board of
Education have committed acts which have been causal
$e 9 SE reer -
37
factors in the segregated conditions of the public schools of
the City of Detroit. 338 F.Supp. 582, 592 (E.D. Mich. 1971).
Once the violation of segregated conditions has been found,
the scope of the remedy properly must include the elimination of
all racial discrimination in that school system ‘‘root and
branch’’. Green v. County School Board of New Kent County,
391 U.S. 430, 437-38 (1968).
Courts have acknowledged that discrimination can and does
take many forms. Discrimination in the Detroit schools was not
limited to pupil assignments. The proofs in this case established
that as a result of segregation black children in Detroit's pre-
dominantly black schools did not receive the same educational
benefits as white children in predominantly white schools. The .
reading level of many black children is lower than that of white
children. Fewer black children are counseled into special! pro-
grams, such as the Aero-Mechanics High School, and the dropout
rate is substantially higher for black students than white stu-
dents. Testing procedures have been discriminatory and often
resulted in tracking. These facts are evidence of the effects of
segregation in Detroit.
The components now in dispute are one part of an equitable
remedy designed to eliminate all of the vestiges of segregation.
As the conditions these components are designed to correct are
inherent in segregation, they are a proper part of the remedy of
desegregation. Without them, there can be no effective remedy
for the segregation found to exist in Detroit.
D. THE TRADITIONAL RULES OF EQUITY GOVERN DE-
SEGREGATION REMEDIES.
The State Defendants’ argument that the only remedy avail-
able is pupil reassignment is based on the language in Swann and
Milliken that the nature of the violation determines the scope of
the remedy.
Swann simply tells us that while it is within the broad
discretionary powers of school authorities to do voluntarily
many things to correct segregation in the schools, absent a
finding of the constitutional violation of segregation, a federal
38
court would not have the authority to include them in a desegre-
gation plan. Both the State Defendants and the Detroit Board
have been found guilty of violating the constitutional rights of
Detroit school children. Therefore, the District Court had the
broad traditional powers of equity to order into effect a plan
which includes programs specifically designed to eradicate all
vestigates of segregation and to protect its order by including
programs designed to insure that the plan will succeed.
The State Defendants analogize the District Court's finding
at the remedy stage that educational components are necessary
with the previous District Court finding that the Detroit school
system could not be desegregated within Detroit. They then
point out that this Court reversed a metropolitan plan. However,
this Court reversed because it found that the District Court
imposed the remedy on suburban school districts which at that
point had not been found to have committed any violation:
To approve the remedy ordered by the court would impose
on the outlying districts, not shown to have committed any
constitutional violation, a wholly impermissible remedy
based on a standard not hinted at in Brown J and // or any
holding of this Court. Milliken v. Bradley, 418 U.S. at 745.
The analogy with Milliken fails because implementation of
the remedy of the educational components is the responsibility
of the two parties who committed the violations.
Swann and Milliken emphasize this Court’s view that a court
may not impose a remedy on a party which has not committed a
legal wrong. They do not speak to the issue of the scope of the
remedy equity may impose on parties found to have committed
the violation of segregation. For this one must look to the
traditional powers of equity.
This Court in Brown v. Board of Education, 349 U.S. 294
(1955), determined that school desegregation remedies should be .
fashioned and effectuated by the local courts and directed these
courts to apply traditional equitable principles in shaping a
remedy to ‘‘effectuate a transition to a racially non-
discriminatory school system’’. 349 U.S. at 300-01.
39
Swann reaffirms that courts must utilize their ‘‘historic
equitable remedial powers’’ and that federal legislation does not
restrict the power of the court to remedy violations of the
Fourteenth Amendment. 402 U.S. at 16. Each of these cases
relies on the language used by Mr. Justice Frankfurter writing
for the Court in Hecht v. Bowles, 321 U.S. 329, (1944), a
non-discrimination case, to describe the nature of equitable
decrees in a discrimination case:
The essence of equity jurisdiction has been the power of the
Chancellor to do equity and to mould each decree to the
necessities of the particular case. Flexibility rather than
rigidity has distinguished it. The qualities of mercy and
practicality have made equity the instrument for nice ad-
justment and reconciliation between the public interest and
private needs as well as between competing private claims.
321 U.S. at 329-30.
Thus, once a violation has been found, courts have broad
remedial powers. The breadth of these powers is illustrated by
the following cases wherein remedies designed to eliminate all of
the effects of discrimination and to restore plaintiffs to the fullest
possible extent have received judicial approval. _
Louisiana v. United States, 380 U.S. 145 (1965) was a voting
rights case. Not only was the interpretation test invalidated, but
this Court approved the District Court's order requiring the
complete re-registration of all voters in order to root out all
vestiges of discrimination. In affirming the remedy devised by
the District Court, this Court commented on the scope of the
remedial power of equity:
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 discriminatory effects of the past as well as bar
like discrimination in the future.
* * *
The need to eradicate past evil effects and to prevent the
continuation or repetition in the future of the discriminatory
practices shown to be so deeply engrained in the laws,
40
policies, and traditions of the State of Louisiana, completely
justified the District Court in entering the decree it did and in
retaining jurisdiction of the entire case to hear any evidence
of discrimination in other parishes and to enter such orders
as justice from time to time might require. 380 U.S. at 154,
156.
The components were included as a form of equitable relief
to rectify the harm done by past discrimination and are anala-
gous to the relief granted by the District Court in Franks v.
Bowman Transportation Co., 424 U.S. 747 (1976), when absent
any statutory grant of authority other than to order ‘‘any other
equitable relief as the court deems appropriate’, the court or-
dered seniority status retroactive to the date of employment for
denial of employment due to race. In Franks, the violation was
discriminatory hiring practices, not a discriminatory seniority
system. This Court's affirmance was a recognition that by includ-
ing such language Congress intended to vest broad equitable
discretion in the district courts to grant ““make whole”’ relief.
Surely, if courts have such power to rectify a statutory violation,
could the remedy be less when a constitutional violation is in-
volved?
In devising desegregation plans, courts have applied equita-
ble principles and have not limited relief of segregation to pupil
reassignment. They have rendered decrees designed to eliminate
the effects of past segregation and to prevent the continuation of
discriminatory practices.
In Placquemines Parish School Board v. United States, 415
‘ F.2d 817 (Sth Cir. 1969), the District Court's desegregation plan
included remedial programs for black students who would be
transferring to formerly all white schools. On appeal these
programs were approved because they eliminate effects of
segregation inherent in a dual school system.
The remedial programs, ordered by the district court, are an
integral part of a program for compensatory education to be
provided Negro students who have long been disadvantaged
by the inequities and discrimination inherent in the dual
school system. The requirement that the School Board insti-
tute remedial programs so far as they are feasible is a proper
exercise of the court's discretion. 415 F.2d at 831 (emphasis
added).
41
The trial court's plan also included such details as the repairing
of locks and windows, the time schools should open, reinstitu-
tion of the school lunch program and bookmobile service, etc.
All of these programs were affirmed on appeal as a just exercise
of the court’s discretion. While affirmance of these latter pro-
grams was induced in large part because defendants had openly
opposed desegregation, affirmance of the remedial programs
was not based on the hostility of school officials, but rather
‘inequities and discrimination inherent in the dual school
sytem”.
' Circuit Judge Wisdom reaffirmed the Fifth Circuit's position
that remedial programs were necessary to correct the effects of
segregation in George v. O'Kelly, 448 F.2d 148 (Sth Cir. 1971).
O’ Kelly involved the use of Title I funds and was remanded to
the district court with the following instructions:
The court should consider whether achievement grouping or
remedial programs during the regular school year result in
racial segregation within the school. If so, the court should
inquire whether this results from the county's provision of
relatively inferior education to the black community in the
past .. . Also, if the court finds that black children have a
lower educational achievement level because of inferior edu-
cation to the black community in the past, it should consider
whether the board's allocation of Title I funds comports with
its duty to overcome any special educational deprivation of
black children due to past discrimination. . . . The purpose
of Title I of the Elementary and Secondary Education Act of
1965 is congruent with the affirmative duty of the board to
take appropriate action to overcome any effects of past racial
discrimination. 448 F.2d at 150.
Not only are these four programs within the scope of the
remedy because they are necessary to cure the effects of segre-
gation, but also because they promote effective desegregation.
Magnet schools in desegregation plans have the stamp of
judicial approval as a desegregative tool. Morgan v. Kerrigan,
530 F.2d 401 (ist Cir. 1976), cert. denied, 96 S. Ct. 2648 (1976):
Hart v. Community School Board of Brooklyn, 383 F. Supp. 699,
42
764-67 (E.D. N.Y. 1974), aff'd, 512 F.2d 37 (2d Cir. 1975). In
approving the use of a magnet school in a desegregation plan the
Hart court stated:
From Brown II on, the affirmative duty of school boards to
root out the dual system of education has meant more than
merely allowing black children into hitherto closed white
schools. 512 F.2d at 54.
Special language programs have been approved if they remove
obstacles to effective desegregation. Keyes v. School District
No. 1, Denver, Colorado, 521 F.2d 465, 482 (10th Cir. 1975), cert.
denied, 423 U.S. 1066 (1976).
In devising an equitable remedy to correct the constitutional
violation of segregated schools in Detroit, the District Court had
the power and the duty to eliminate all vestiges of segregation by
including in Detroit's desegregation plan remedial reading pro-
grams and revisions in testing procedures and counseling and
guidance programs. In addition, the District Judge had the
power to take these steps to ensure that the plan will work and -
also to include an in-service training program for teachers faced
with the demands of. desegregating a previously segregated
school system.
«*
*
The programs of reading, in-service training, testing, and
counseling and guidance in the Detroit plan are remedies designed
to restore, to make whole, to eliminate the effects of the segrega-
tion found to exist in Detroit and to remove obstacles to effective
desegregation. These remedies are distinguishable from a pupil
reassignment remedy rejected by this Court in Austin Indepen-
dent School District v. U.S., 45 U.S.L.W. 3413 (12-7-76), be-
cause the Austin plas exceeded the constitutional obligation to
restore the students to the position they would have had but for
the school authorities’ failure to fulfill their constitutional obliga-
tions.
E. THERE IS NO CONFLICT WITH OTHER JURISDIC-
TIONS.
Keyes v. School District No. 1, Denver, Colorado, 521 F.2d
465 (10th Cir. 1975) is easily distinguished because it does not hold
43
that a segregation remedy must be restricted to pupil reassign-
ment. On the contrary, the Keyes court recognized that the dis-
trict court could require the schools to help Hispanic school
children learn English so they could learn other basic subjects and
that to do so would remove an obstacle to effective desegregation.
§21 F.2d at 482. The Court then remanded *‘for a determination of
the relief, if any, necessary to ensure that Hispanic and other
minority children will have the opportunity to acquire proficiency
in the English language.’ 521 F.2d at 483.
What the Keyes court did object to was an elaborate plan
extending to ‘‘matters of educational philosophy, governance,
instructional scope and sequence, curriculum, student evalua-
tion, staffing, noninstructional service and community involve-
ment’’, and including such matters as education for three-year
olds and adults and clothing for poor children. 521 F.2d at
480-81. In rejecting this so-called Cardenas Plan the Court
stated:
{B]ut the court's adoption of the Cardenas Plan, in our view,
goes well beyond helping Hispano school children to reach
the proficiency in English necessary to learn other basic
subjects. Instead of merely removing obstacles to effective
desegregation, the court's order would impose upon school
authorities a pervasive and detailed system for the education
of minority children. We believe this goes too far. 521 F.2d at
482 (emphasis added).
The facts of this case distinguish it from Keyes. The four
programs described in prior sections of this brief are directly
related to remedying the effects of past segregation and remov-
ing obstacles to effective desegregation. Furthermore, the fed-
eral judiciary has not taken-over the operation of the Detroit
school system, instead the Detroit Board, later assisted by the
State Board, proposed and developed these programs solely *‘to
eliminate the vestiges of segregation’’ and to overcome ‘‘obsta-
cles to effective desegregation’.
F. CONCLUSION.
A desegregation plan may include more than pupil reassign-
ment. The power of a court to order remedial programs when the
44
¢
constitutional violation of segregation has been found has gone
unquestioned until the State of Michigan, as co-defendant in this
action, was ordered to pay for part of these programs. The four
programs at issue are directly related to desegregation. They are
reasonable, feasible and workable. They do not constitute an
abuse of discretion by the District Court.
The State Defendants worked with the Detroit Board in
developing some of these programs without appealing their legal
propriety. Only after the District Court’s Judgment of May 11,
1976 (PA 145a) requiring them to pay one-half of the cost of
implementing the four programs here at issue did these defend-
ants raise this question as one more ground for this Court to
find that the State will not have to bear a part of the cost of
remedying the segregation which it helped create.
The State Defendants have cited no cases which hold that
once a court has determined that schools are segregated it
cannot require the parties who caused that segregation to par-
ticipate in remedying that violation: No separate finding of a
constitutional violation in educational programs is necessary. A
remedy to correct the constitutional violation of segregated
schools properly may include these four remedial programs
which have been specifically designed to correct conditions
brought about by the inequities and discrimination inherent in a
segregated school system and to overcome obstacles to effective
desegregation.
The Court of Appeals did not err in holding that the District
Court did not exceed its remedial powers. The evidence at each
stage of this proceeding justifies the District Judge's finding that
these four components are necessary to remedy the effects of
past segregation, make desegregation succeed and prevent re-
segregation in Detroit.
— Ce
45
WHERE THE STATE DEFENDANTS HAVE BEEN AD-
JUDICATED TO HAVE VIOLATED THE FOURTEENTH
AMENDMENT RIGHTS OF DETROIT SCHOOL CHIL-
DREN, THE TENTH AMENDMENT MAY NOT BE IN-
‘VOKED AS A BAR TO REMEDYING THE CONSTITU-
TIONAL VIOLATION.
This litigation, pending since August 18, 1970, has been
before two District Judges, the Court of Appeals for the Sixth
Circuit on at least six occasions and has been the subject matter
of a decision by this Court. The State Defendants have never
raised or argued that the Tenth Amendment bars any remedial
relief being levied against the State Defendants, until their
Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit at 20-21, filed on September 24,
1976. By waiting more than six years and numerous court
proceedings to raise this alleged defense, the State Defendants
have precluded consideration of this issue by the courts below.
Therefore, this Court, consistent with its general policy of
refusing to hear issues raised for the first time before it, should
refuse to consider the Tenth Amendment argument of the State
Defendants: Hormel v. Helvering 312 U.S. 552, 556-57 (1940):
Anderson v. United States, 417 U.S. 211, 217 (1974); Adickes v.
S. H. Kress & Company, 398 U.S. 144, 147 (1970): Lawn v.
United States, 355 U.S. 339, 362 n. 16 (1958); Husty v. United
States, 282 U.S. 694, 701-02 (1931).
Additionally, this Court should not consider the State
Defendants’ Tenth Amendment argument that principles of
federalism preclude prospective injunctive and incidental
monetary relief redressing violations of Fourteenth Amendment
rights as said argument has no foundation in any decision ever
rendered by this Court.
The express language of the Tenth Amendment refutes this
argument:
The powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.
46
The State Defendants have ignored the following language
from the Fourteenth Amendment:
No State . . . shall deny fo any person within its jurisdiction
the equal protection of the laws. (emphasis added).
Almost one hundred years ago this Court, in Ex oaaed
Virginia, 100 U.S. 339 (1880), established that the es sagan
Amendment limits the reservation of powers containe wh e
Tenth Amendment. In upholding the indictment of a state ju »
under a federal criminal statute prohibiting the age ov
juror, in a state court, because of his or her race, this Co
stated:
The prohibitions of the Fourteenth Amendment are yr
to the States, and they are to a degree restrictions 0 ; a
power. It is these which Congress is empowered to en —
and to enforce against State action, however put fort 1
whether that action be executive, legislative. or —
Such enforcement is no invasion of State's sovereignty. -
law can be. which the people of the State have, by =
Constitution of the United States, empowered Congress to
enact.
It is said that selection of jurors for courts and the
administration of her laws belong to each State: that they a
her rights. This is true in the general. But in exere — “
rights, a State cannot disregard the limitations “" “4
Federal Constitution has applied to her power. Her rights .
not reach to that extent. Nor can she deny to the geneva
government the right to. exercise all its granted pow _
though they may interfere with the full enjoyment of we wr
she would have if those powers had not been thus granted.
Indeed, every addition of power to the general sists
-involves a corresponding diminution of the reg paged
powers of the States. It is carved out of them. 100 U.S. at:
(emphasis added).
See Mitchum v. Foster, 407 U.S. 225. 238-39 (1972): South
Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).
The States. in ratifying the derma ng sir veer greener npn
proved this limitation of state authority. It is. indeed, ironic tha
47
the State Defendants now attempt to repudiate that which was
agreed upon by the States over a hundred years ago.
In Fitzpatrick v. Bitzer, 96 S. Ct. 2666 (1976), reaffirming Ex
parte Virginia, supra this Court commented upon the limitation
on state sovereignty that is imposed by the Fourteenth Amend-
ment: 7
As ratified by the States after the Civil War, that Amend-
ment quite clearly contemplates limitations on their author-
ity.
* * *
The substantive provisions are by express terms directed at
the States. Impressed upon them by those provisions are
duties with respect to the treatment of private individuals.
Standing behind the imperative is Congress’ power to “‘en-
force’ them **by appropriate legislation’. 96 S. Ct. at 2670.
Obviously, the Fourteenth Amendment specifically prohibits
Segregation by race in the schools. Brown v. Board of Educa-
tion, 347 U.S. 483 (1954); Cooper v. Aaron, 358 U.S. 1. 6-7
(1958); Goss v. Board of Education of City of Knoxville, 373
U.S. 683, 687 (1963).
The State Defendants, apart and separate from the Detroit
Board, have been found guilty of being a substantial cause of the
Segregation found to exist in the Detroit school system. Bradley
v. Milliken, 338 F. Supp. 583 (E.D. Mich. 1971): Bradley v.
Milliken, 484 F.2d 215, 238-41 (6th Cir. 1973): Milliken v. Brad-
ley, 418 U.S. 717, 725-28, 746 (1974). In Hills v. Gautreaux, 425
U.S. 284, 298 n. 13 (1976), this Court interpreted Milliken by
unanimously stating **. . . [T]he State of Michigan had been
found to have committed constitutional violations contributing
to racial segregation in the Detroit schools, 418 U.S. at 734-735 ;
n. 16..." See Bradley v. Milliken, 540 F.2d 229, 234 (6th Cir.
1976).
Given the established Fourteenth Amendment state violation
here, the Tenth Amendment, or a claim of federalism, cannot
bar the remedial relief which is necessary to eradicate and
eliminate the constitutional violation of the State Defendants.
48
The fact that the Tenth Amendment cannot constitute a bar
to remedying a violation of the Fourteenth Amendment was
recognized in Bradley v. School Board of Richmond, Virginia,
462 F.2d 1058 (4th Cir. 1972), aff'd by equally divided court, 412
U.S. 92 (1973) where the Fourth Circuit failed to find a constitu-
tional violation on behalf of the Commonwealth of Virginia. The
Fourth Circuit made it clear that if a violation of the constitu-
tional rights of the Richmond school children had been found
against the Commonwealth, as is the case in Detroit, the Tenth
Amendment would not bar the Court from requiring the Com-
monwealth of Virginia to remedy a constitutional violation:
If the state's near plenary power over its political subdivi-
sions ‘is used as an instrument for circumventing’, Gomil-
lion, supra, at 347, 81 S. Ct. at 130, the Fourteenth Amend-
ment equal protection right of blacks to attend a unitary
school system, then the Tenth Amendment is brought into
conflict with the Fourteenth, and it is settled that the latter
will prevail. Gomillion, supra. 462 F.2d at 1068-69.
See United States v. State of Missouri, 515 F.2d 1365, 1372 (8th
Cir. 1975), cert. denied, 423 U.S. 951 (1975).
The case of Rizzo v. Goode, 423 U.S. 362 (1976) does not
support the State Defendants. In Rizzo this Court reversed a
holding that required city officials to implement internal proce-
dures within the Philadelphia Police Department because there
was no finding of any constitutional violation by those officials.
In making that distinction, this Court stated:
Respondents, in their efforts to bring themselves within the
language of Swann, ignore a critical factual distinction be-
tween their case and the desegregation case as decided by this
Court. In the latter, segregation imposed by law had been
implemented by state authorities for varying periods of time,
whereas in the instant case the District Court found that the
responsible authorities had played no affirmative part in
depriving any members of the two respondent classes of any
constitutional rights. Those against whom injunctive relief
was directed in cases such as Swann and Brown were not
administrative and school board members who had in their
employ a small number of individuals, which later on their
49
own deprived black students of their constitutional rights to
a unitary school system. They were administrators and
school board members who were found by their own conduct
in the administration of the school system to have denied
those rights. Here, the District Court found that none of the
petitioners had deprived the respondent classes of any rights
secured under the Constitution. 423 U.S. at 377.
Based upon their failure to acknowledge this distinction in
Rizzo, the State Defendants argue that under the Michigan
Constitution of 1963 and various state laws, the State Defen-
dants are, as a matter of law, prohibited from appropriating state
funds to pay for the remedy that is necessary to vindicate the
constitutional rights of the Detroit school children. To accept
this argument would effectively allow states, who had unques-
tionably violated the Fourteenth Amendment, to hide behind
state law in order to deprive innocent children of their remedies.
State law cannot be invoked to frustrate the spirit and purposes
of the Fourteenth Amendment. Milliken v. Bradley, 418 U.S.
717, 744 (1974); North Carolina State Board of Education v.
Swann, 402 U.S. 43, 45 (1971); Louisiana v. United States, 380
U.S. 145, 154-56 (1965).
A similar attempt to circumvent and nullify the provisions of
the Fourteenth Amendment was rejected by this Court in
Gomillion v. Lightfoot, 364 U.S. 339 (1960) when it overturned
the Alabama Legislature's attempt to disenfranchise black vot-
ers:
If all this is so in regard to the constitutional protection of
contracts, it should be equally true that, to paraphrase, such
power, extensive though it is, is met and overcome by the
Fourteenth Amendment to the Constitution of the United
States, which forbids a state from passing any law which
deprives a citizen of his vote because of his race. The
opposite conclusion, urged upon us by the respondents,
would sanction the achievement by a State of any impair-
ment of voting rights whatever so long as it was cloaked in
the garb of re-alignment of political subdivisions. ** It is
inconceivable that guarantees embedded in the Constitution
of the United States may thus be manipulated out of exis-
tence.’ 364 U.S. at 345 (citation omitted). ,
50
Gomillion clearly refutes the State Defendants’ attempt to
shield themselves behind principles of federalism while violating
the Fourteenth Amendment rights of the Detroit school children.
If the State Defendants are allowed to insulate themselves from a
remedy, by hiding behind provisions of the Michigan Constitu-
tion of 1963, any state would be able to nullify the commands of
the Fourteenth Amendment that no citizen be denied equal
protection of the laws. Such attempts have always been rejected
in school desegregation cases. Griffin v. County School Board of
Prince Edward County, 377 U.S. 218 (1964); Cooper v. Aaron,
358 U.S. 1 (1958).
The State Defendants’ reliance on National League of Cities
v. Usery, 96 S. Ct. 2465 (1976), holding that the Fair Labor
Standards Act could not be broadly applied to state employees
consistently with the Tenth Amendment, is misplaced.
Here, the District Court's Order was not an infringement
upon “functions essential to separate and independent exis-
tence’ of state governments, as in National League of Cities,
but was carefully measured to effectuate compelling national
policy.®
Indeed, it is the character of the national policy involved
which provides the cogent reason for the inapplicability of the
Tenth Amendment. Whereas, in National League of Cities, this
Court was dealing with statutory rights, this case involves
constitutional rights. No reading of the language of the Tenth
Amendment can support an interpretation which reserves to the
States the power to withhold compliance with the constitutional
guarantee of equal proteciion of the laws.
This Court, in National League of Cities, expressly declined
determination of whether “different results might obtain if Con-
gress seeks to affect integral operations of state governments by
exercising power granted it under such sections of the Constitu-
tion as . . . the Fourteenth Amendment.” 96 S. Ct. at 2474. In
Fitzpatrick v. Bitzer, 96 S. Ct. 2666 (1976), this Court expressly
* In National League of Cities, the Court expressly reaffirmed its holding
in Fry v. United States, 421 U.S. 542 (1975). wherein the wage and price
controls. imposed by the Economic Stabilization Act. were held to be a minor
intrusion of the state’s sovereignty and not prohibited by the Tenth Amend-
ment.
51
recognized that Title VII of the Civil Rights Act of 1964 could be
constitutionally applied to the states. See United States v. State
of New Hampshire, 539 F.2d 277 (\st Cir. 1976).
On October 28, 1976, the Court of Appeals for the Third
Circuit in Usery v. Allegheny County Institution Districts, 544
F.2d 148 (3d Cir. 1976), sustained the Equal Pay Act, distin-
guished National League of Cities v. Usery, 96 S. Ct. 2465
(1976), and held that Coneress possessed the power, under
Section 5 of the Fourteenth Amendment, to prohibit discrimina-
tion on the basis of sex. The Third Circuit said:
We note at the outset that in National League of Cities the
plurality opinion expressly disclaimed any intention of ruling
upon the constitutionality of the exercise of Congressional
authority against the States pursuant to Section 5 of the
fourteenth amendment. Four days later the Court unanim-
ously sustained the exercise of such power in Fitzpatrick v.
Bitzer, U.S. , 96 S. Ct. 2666, 49 L. Ed. 2d (1976).
In Fitzpatrick it upheld the constitutionality of the 1972
extension of Title VII of the Civil Rights Act to state and
local governmental employees. The latter statute prohibits
sex-based employment discrimination, and Fitzpatrick in-
volved such a claim. Expressly referring to National League
of Cities,at ,96S. Ct. at 2467, the Court made it perfectly
clear (1) that Congress has Section 5 Fourteenth Amend-
ment power to prohibit sex discrimination in employment,
and (2) that such power, despite the Tenth Amendment,
extends to the state as an employer. 544 F.2d at 15S.
Accord, Usery v. Dallas Independent School District, 421
F.Supp. 111 (N.D. Tex. 1976); Usery v. Board of Education of
Salt Lake City, 421 F.Supp. 718 (D. Utah, 1976); Harris v.
Commonwealth of Pennsylvania, 419 F.Supp. 10 (M.D. Pa.
1976).
Thus, the lower courts have recognized that National
League of Cities did not hold that the Tenth Amendment re-
stricted Congress’ right to enforce the Fourteenth Amendment
against the states. This litigation, involving Detroit school chil-
dren, has been brought pursuant to 42 U.S.C. §§1981, 1983 and
52
2000d. These statutory provisions have been enacted by Con-
gress pursuant to the Fourteenth Amendment. The Tenth
Amendment does not and cannot prohibit or impede the vindica-
tion of the constitutional rights of Detroit school children.
The fact that constitutional rights, as guaranteed by the
Fourteenth Amendment, supersede principles of federalism and
the Tenth Amendment, was reaffirmed by this Court in its recent
decision in Elrod v. Burns, 96 S. Ct. 2673 (1976) where the
Mayor of Chicago had subjected public employees to discharge
if they refused to join the Democratic Party. Responding to the
municipal defendants’ contention that the federal courts could not
interfere, due to principles of state sovereignty, in the operation
of the executive level of state or city governments, this Court
said:
More fundamentally, however, the answer to petitioners’
objection is that there can be no impairment of executive
power, whether on the state or federal level, where actions
pursuant to that power are impermissible under the Constitu-
tion. Where there is no power, there can be no impairment of
power. And our determination of the limits on state execu-
tive power contained in the Constitution is in proper keeping
with our primary responsibility of interpreting that docu-
ment. 96 S.Ct. at 2679.
The absurdity of the State Defendants’ federalism-Tenth
Amendment argument is obvious. The State Defendants, like the
defendants in Elrod, supra, do not have the power to violate the
Fourteenth Amendment rights of the school children of the City
of Detroit and the Constitution does not provide the State
Defendants with the power to escape the remedy. The State
Defendants have caused the wrong suffered by these children
and the State Defendants must therefore share in the costs of the
remedy.
53
NEITHER THE ELEVENTH AMENDMENT NOR DE-
CISIONS OF THIS COURT PREVENT FEDERAL
EQUITY JURISDICTION FROM ORDERING STATE
DEFENDANTS WHO HAVE BEEN FOUND GUILTY
OF DE JURE SEGREGATION TO FINANCE PART OF
THE IMPLEMENTATION OF A PLAN OF DESEGRE-
GATION.
The decisions of this Court concerning the enforcement of
school desegregation requirements from Brown through Milliken
and up to the present day have one common predicate: given a
constitutional duty of equal protection and a finding of a viola-
tion thereof by state action through state officials,’ there is a
consequent remedial obligation under the Fourteenth Amend-
ment. The fact that state officials with state-wide authority are
involved with the violation certainly does not alter the require-
ment for a remedy or excuse those officials from the remedy.
The argument of the State Defendants and the Amici relative
to an alleged Eleventh Amendment bar to financial assistance in
the implementation of the Detroit school desegregation plan was
apparently written by those who have not read the record in this
case. The argument ignores the fact that the State Defendants
have been found guilty of de jure acts of segregation within
Detroit; misapprehends the equitable nature of the remedial
phase of a Detroit-only desegregation plan; and mischaracterizes
the ancillary financial consequences of the injunctive relief
ordered below against two constitutional wrongdoers.
Throughout the Brief of the State Defendants there is one
constant theme with several variations: the lower courts do not
have the authority to include the State Defendants in a remedy,
nor to prevent a constitutional tragedy in Detroit. This is not
true. The legal genesis of school desegregation remedies, sound
°* A metropolitan remedy was not approved in Milliken v. Bradley, 418
U.S. 717, 752 (1974) because there was no finding of any violation involving the
suburban school districts. However, here there has been a specific finding of a
constitutional violation committed by the State Defendants.
54
logic and settled law dictate that this is not a proper case for an
Eleventh Amendment jurisdictional prohibition. '°
A. THE INJUNCTIVE RELIEF ORDERED BELOW IN A DE-
SEGREGATION CASE IS NOT PROHIBITED BY THE
ELEVENTH AMENDMENT AS INTERPRETED BY THIS
COURT.
U.S. 651 (1974), for the proposition that the Eleventh Amend-
ment prevents their ancillary financial participation in remedy-
ing violations of the Constitution is misplaced.
The essence of the argument presented by the State Defen-
dants 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);
Griffin v. County School Board of Prince Edward County, 377
U.S. 218 (1964); Swann v. Charlotte-Mecklenburg Board of
Education, 318 F. Supp. 786 (W.D. N.C. 1970). This argument
consistently has been laid to rest as quickly as it has been raised.
Cooper, supra; Griffin, supra; Swann, supra.
Although this Court has, on occasion, recognized the im-
munity of states from suits involving direct actions against
governmental funds or property, when brought for the comp-
'© The State Defendants have been parties to this lawsuit since its institu-
tion in 1970. Petitioner State Defendants specifically urged an Eleventh
Amendment bar to their inclusion in the previously proposed metropolitan
remedy in their Brief at 41-46 submitted in the October Term, 1973. This Court
subsequently rendered its decision in Milliken, supra, 418 U.S. 717 (1974),
remanding the case to the District Court for a Detroit-only remedy. This Court
made no comment concerning the arguments urging an Eleventh Amendment
jurisdictional bar to including the State Defendants in that Detroit-only re-
medy. which is now the subject of this appeal.
55
lainants’ personal benefit,'' this Court has not deemed the
Eleventh Amendment a serious impediment to judicial action
when the protection of compelling constitutional guaranties has
been an issue. See, e.g., Osborn v. Bank of the United States, 22
U.S. (9 Wheat.) 738, 842 (1824); Graham v. Folsom, 200 U.S.
248 (1906); Ex parte Young, 209 U.S. 123 (1908).
The relief ordered herein for the vindication of constitutional
rights was the educational components designed to eliminate the
vestiges of segregation, not, as the State Defendants and Amici
have contended, the direct payment of unappropriated funds
from the state treasury. It is conceded that the implementation
of each component in the desegregation plan will cost the Detroit
Board and State Defendants money which might otherwise not
have been spent. See Evans v. Ennis, 281 F.2d 385, 392 (3d Cir.
1960). However, this Court noted in Edelman v. Jordan, 415
U.S. 651 (1974) that:
Such an ancillary effect on the state treasury is a permissible
and often an inevitable consequence of the principle an-
nounced in Ex parte Young, supra. 415 U.S. at 668.
The evolution of the above-quoted Edelman rule can be
traced through a number of prior decisions of this Court. Davis
v. Gray, 83 U.S. (16 Wall.) 203, 220 (1873), was the first of the
'' See, e.g., Louisiana v. Jumel, 107 U.S. 711 (1883) @nandamus suit
against the state in its political capacity by bondholders to compel specific
performance by state officers, who had no contrac. relations with the bondhold-
ers, to act in derogation of the new state constitution; change the general
administration of state finances and thus make direct payment of a judgment
from the treasury); Great Northern Life Insurance Co. v. Read, Insurance
Commissioner, 322 U.S. 47 (1944) (suit against state officials to recover taxes);
Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945)
(suit against state officials for tax refund). These cases are relied upon heavily
by State Defendants, along with Hans v. Louisiana, 134 U.S. 1 (1890) which
involved a suit for direct payment from the state treasury of a judgment. Jumel,
supra involved the state in its political, not its governmental capacity. Plaintiffs
sought a money judgment by asking for a change in the general administration
of state finances. This Court found this was ‘‘not. . . the ordinary form of
judicial procedure . . .." 107 U.S. at 722. Hans, supra, did not contemplate the
violation of the Fourteenth Amendment. Furthermore in deciding Hans, this
Court clearly did not preclude suits by citizens of the state against state officers
where claims arise under the Constitution. Cf. Fitzpatrick v. Bitzer, 96 S.Ct.
2666 (1976).
56
post Civil War cases in which a suit against a state officer was
challenged as one against the state itself in violation of the
Eleventh Amendment. The Court rejected this argument, as-
serted jurisdiction and enjoined the Governor of Texas from
transferring land which the state had placed in a school fund by
virtue of a new state constitution.
In Smyth v. Ames, 169 U.S. 466 (1898), this Court unani-
mously enjoined the Nebraska State Board of Transportation
from hearing any complaint against the various railroad com-
panies for violations of a state railroad rate law. In disposing of
the Eleventh Amendment argument, this Court stated:
It is the settled doctrine of this Court that a suit against
individuals for the purpose of preventing them as officers of
a State from enforcing an unconstitutional enactment to the
injury of the rights of the plaintiff, is not a suit against the
State... 169 U.S. at 518-19.
See Reagan v. Farmers’ Loan and Trust Co., 154 U.S. 362
(1894).
In Ex parte Young, 209 U.S. 123 (1908), this Court ruled that
the challenged legislation from the State of Minnesota violated
the Fourteenth Amendment. In sustaining an injunction against
the State Attorney General from enforcing the unconstitutional
act, this Court rejected an Eleventh Amendment defense on the
grounds that:
[I ]ndividuals who, as officers of the state, are clothed with
some duty in regard to the enforcement of the laws of the
state, and who threaten and are about to commence proceed-
ings, either of a civil or criminal nature, to enforce against
parties affected an unconstitutional act, violating the Federal
Constitution, may be enjoined by a Federal court of equity
from such action. 209 U.S. at 155-56.
The doctrinal development embodied in Young liberalized
the principles governing suits against state officers in that the
substantive rights guaranteed by the Fourteenth Amendment
were accorded broad federal judicial protection. See C. Jacobs,
The Eleventh Amendment and Sovereign Immunity, 143 (1972).
The limitations of the Fourteenth Amendment guarantees are
57
upon state action. Judicial implementation of these guarantees
in suits against state officers would present a doctrinal dilemma
if the Eleventh Amendment presented an across-the-board juris-
dictional bar to suits against State Defendants. See Prout v.
Starr, 188 U.S. 537, 543 (1903); Ex parte Virginia, 100 U.S. 339,
345-48 (1880).
_ The doctrinal genesis of Ex parte Young was followed in
Home Telephone and Telegraph Company v. City of Los
Angeles, 277 U.S. 278 (1913), where the Court in discussing the
extent of the Fourteenth Amendment, stated:
. . . That is to say, a state officer cannot on the one hand as a
means of doing a wrong forbidden by the Amendment pro-
ceed upon the assumption of the possession of state power
and at the same time for the purpose of avoiding the applica-
tion of the Amendment, deny the power and thus accomplish
the wrong. 227 U.S. at 288.
In Griffin v. County School Board of Prince Edward County,
377 U.S. 218 (1964), which involved the closing of public schools
and the operation of an alternative system of all white private
schools, Justice Black speaking for a unanimous Court, summar-
ily dismissed the Eleventh Amendment argument by stating:
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 the
state and county officials were depriving petitioners of rights
guaranteed by the Fourteenth Amendment. It has been set-
tled long since Ex Parte Young, [citation omitted], that suits
against state and county officials to enjoin them from invad-
ing constitutional rights are not forbidden by the Eleventh
Amendment. 377 U.S. at 228 (emphasis added).!?
'2 There can be no doubt that in Griffin the State was clearly implicated.
All parties to the litigation treated the suit as one against the state. See Briefs of
Counsel, 12 L.Ed.2d at 1105-09. In Griffin the reopening of the schools
presumably would have involved some state funds since other public schools
received state support. 377 U.S. at 223. Indeed, the Attorney General of
Virginia presented a 12-page argument that the suit, brought to enjoin the
school board, other agencies and certain officers from refusing to maintain and
operate an efficient system of free public schools, was a proceeding against the
state barred by the Eleventh Amendment. C. Jacobs, The Eleventh Amend-
ment and Sovereign Immunity, 156 (1972).
58
The foregoing Eleventh Amendment line of cases culminated
in Edelman v. Jordan, 415 U.S. 651 (1974)'? where this Court
distinguished between a legally cognizable prospective injunc-
tive relief directed toward the state to conform its actions to a
constitutional mandate as opposed to a retroactive money judg-
ment against the state treasury:
It requires payment of state funds, not as a necessary con-
sequence of compliance in the future with a substantive
federal-question determination, but as a form of compensa-
tion to those whose applications were processed on the
slower time schedule. . . 415 U.S. at 668.
In recognizing the difference between a prohibited retroac-
tive direct money judgment and a permissible prospective in-
junctive remedy, this Court acknowledged that orders such as
those entered in Ex parte Young, supra, and subsequent cases
had, in fact, substantial impacts on state revenues.
The injunction issued in Ex parte Young was not totally
without effect on the State’s :evenues, since the state law
which the Attorney General was enjoined from enforcing
provided substantial monetary penalties against railroads
which did not conform to its provisions. Later cases from
this Court have authorized equitable relief which has proba-
bly had greater impact on state treasuries than did that
awarded in Ex parte Young. [Citations and discussion omit-
ted]. But the fiscal consequences to state treasuries in these
cases were the necessary result of compliance with decrees
which by their terms were prospective in nature. . . . Such
an ancillary effect on the state treasury is a permissible and
'3 While Edelman involved an Illinois statutory provision which was
found to be inconsistent with a federal regulation, the present lawsuit involves
a State statute [Act 48, §12 Mich. Pub. Acts of 1970) which was found to be an
unconstitutional interference with Fourteenth Amendment rights, 433 F.2d 897
(6th Cir. 1971), and other actions by state officials and agencies found to have
violated those same rights. Milliken v. Bradley, 418 U.S. 717, 725-28, 746
(1974).
59
often inevitable consequence of the principle announced in
Ex parte Young, supra. 415 U.S. at 667-68.'*
Thus, the majority opinion in Edelman recognized that the
Eleventh Amendment would not apply ‘where a federal court
applies Ex parte Young to grant prospective declaratory and
injunctive relief, as opposed to an order of retroactive pay-
ments .. .”’. 415 U.S. at 666 n. 11. Additionally, some ancillary
effect on the state treasury was acknowledged as ‘‘a permissible
and often inevitable consequence” of injunctive relief. 415 U.S.
at 668.
The order below conforms with the requirements of Ex parte
Young and Edelman. Rather than being a retroactive payment of
compensation, the requirement that the State Defendants fi-
nance a portion of the desegregation remedy is merely a ‘‘neces-
sary consequence of compliance in the future with a substantive
federal-question determination’’ which is required by a ‘‘court-
imposed obligation’’. 415 U.S. at 668. See Scheuer v. Rhodes,
416 U.S. 232 (1974); Fitzpatrick v. Bitzer, 96 S. Ct. 2666, 2673
(1976) (concurring opinion of Justice Stevens).
The decision of the lower courts herein follows the remedial
command of the Fourteenth Amendment. It does not present a
case which imposes a money judgment on the State of Michigan
for past de jure segregation practices. Rather, the order is
directed toward both the Detroit Board and State Defendants to
implement educational components as a part of a prospective
plan of injunctive relief to eliminate the vestiges of segregation,
'4 In addition to citing Graham v. Richardson, 403 U.S. 365 (1971)
(furnishing welfare benefits to aliens) and Goldberg v. Kelly, 397 U.S. 254
(1970) (no termination of welfare benefits without prior hearing), for examples
of cases where the result of compliance with a court decree meant an impact on
the state treasury, this Court could also have cited other 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 reapportion-
ment) King v. Smith, 392 U.S. 309 (1968) (AFDC benefits must be paid to a
family with a “‘substitute’’ single father); Georgia Railroad and Banking Co. v.
Redwine, 342 U.S. 299 (1952) (enjoined the State Revenue Commissioner from
assessing or collecting ad valorem taxes).
60
now and hereafter. Alexander v. Holmes County Board of
Education, 396 U.S. 19, 20 (1969).
Because the State Defendants have been found guilty of
unconstitutional acts and actions, their Eleventh Amendment
defense is necessarily limited by the remedial requirements of
the Fourteenth Amendment. Cf. Fitzpatrick v. Bitzer, supra.
In reviewing the facts and the relevant law, it becomes
readily apparent that the present State Defendants through the
exercise of the inherent powers which they possess as officers
and instrumentalities of the State and through the persuasive
powers which their offices command, can and should effectuate
and implement the educational components ordered by the
lower court.'* To rule to the contrary on the basis of an Eleventh
Amendment prohibition would result in an erroneous constitu-
tional premise unfounded in law, presenting faulty precedent
and ultimately serving to further penalize the school children in
the Detroit system rather than in assisting in affording them a
realistic and workable remedy for an unconstitutional condition.
It is inconceivable that an interpretation could be placed
upon the Eleventh Amendment vis-a-vis the Fourteenth
Amendment which would prohibit or meaningfully inhibit the
implementation of a school desegregation remedy in full vindica-
tion of Fourteenth Amendment rights for the sole reason that
part of the costs of the remedy would have to be paid from state
funds. Such a result would give lie to the Fourteenth Amend-
'S Several Courts of Appeals have found an affirmative duty for state
officials to assist in remedying unconstitutional conditions and have rejected
the Eleventh Amendment arguments of State officials attempting to avoid the
constitutional responsibilities. Wyatt v. Aderholt, 503 F.2d 1305, 1314-15 (Sth
Cir. 1974) (holding that a state legislature is not free, for budgetary or any other
reasons, to provide a social service in a manner which results in the denial of
individuals’ constitutional rights): United States v. Board of School Commis-
sioners of Indianapolis, 503 F.2d 68, 82 (7th Cir. 1974) (holding that the
Eleventh Amendment does not prevent the enforcement of the Fourteenth
Amendment); Lewis v. Shulimson, 534 F.2d 794, 795 (8th Cir. 1976) (holding
that the notification expenses and the future medical assistance payments were
the necessary result of compliance with the decree which by its terms was
prospective in nature).
61
ment proposition that *‘within its limits it is complete’, Ex parte
Virginia, supra; Bitzer, supra, and would forever foreclose
effective relief under the Fourteenth Amendment for official,
state-imposed constitutional violations. '®
B. THE ELEVENTH AMENDMENT MAY NOT BE AS-
SERTED TO PREVENT EFFECTIVE RELIEF FOR A
VIOLATION OF THE FOURTEENTH AMENDMENT.
The Eleventh Amendment contains limitations with respect
to the exercise of federal judicial power in certain actions
brought against the States, while the Fourteenth Amendment
grants the individual private rights which limit the power of the
States. When conflicts arise the Fourteenth Amendment, with-
out question, must prevail over the Eleventh Amendment.
The Supreme Court has never specifically decided this issue.
In Ex parte Young, 209 U.S. 123 (1908), the Court found it
unnecessary to decide this issue and stated:
We think that, whatever the rights of complainants may be,
they are largely founded upon that [Fourteenth Amend-
ment], but a decision in this case does not require an exami-
nation or decision of the question whether its adoption in any
way altered or limited the effect of the earlier [Eleventh]
Amendment. 209 U.S. at 150.
Nor was the issue addressed in either Edelman v. Jordan,
415 U.S. 651 (1974) or Fitzpatrick v. Bitzer, 96 S. Ct. 2666
(1976). Those cases dealt respectively with the denial of benefits
'© Interestingly, neither the State Defendants nor Amici argue that the
relief contemplated by the lower court order can never be granted. Rather,
they contend that the only constitutional violation which would form a predi-
cate for this relief is a state educational financing violation. (Brief of State
Defendants at 24-25; Brief of Amicus National Association of Attorney Gener-
als at 10; Brief of Amicus State of Texas at 4-6). However, the State Defen-
dants have been found to be a substantial cause of the racial segregation in
Detroit schools. Additionally, the State Defendants were involved with ac-
tivities under an unconstitutional statute. See n. /3, supra. The thrust of this
argument elevates form over substance and would create a new standard for
equity review. Under the State Defendants’ theory of a remedy, a court could
not employ such traditional school desegregation tools as rezoning, school
pairings and clusterings, grade reorganizations, magnet schools, city-wide
schools, busing, etc. absent a proven constitutional violation in that area.
Equity power has never been so limited. .
62
in violation of the Social Security Act and sex discrimination in
violation of Title VII and did not involve violations of the
Fourteenth Amendment. See Edelman v. Jordan, 415 U-S. at
694 n. 2 (Marshall J., dissenting); Fitzpatrick v. Bitzer, 96S. Ct. at
2668 n. 3.
This case involves more than violation of federal statutory
law. The conduct of the State Defendants violated not only 42
U.S.C. §§1981 and 1983, but also constituted a direct violation of
the equal protection provisions of the Fourteenth Amendment.
The State Defendants have engaged in conduct spanning de-
cades which deprived generations of Detroit black students
equal educational opportunities. There can be no doubt that the
Eleventh Amendment cannot be used to frustrate the remedial
commands of the Fourteenth Amendment in desegregation
cases.
63
~
1. The Eleventh Amendment Was Not Intended to Bar
Suits Against States Arising Under the Constitution of
the United States.
Federal Court jurisdiction is provided by Article III, Section
2 of the Constitution. In Cohens v. Virginia, 19 U.S. (6 Wheat.)
264, 378 (1821), Chief Justice Marshall provided the conceptual
framework for determining the extent of judicial power extended
by Article III, Section 2. He explained that federal jurisdiction
consists of two classes: (1) ‘“‘character of the cause™’, those
actions brought under the Constitution and the laws of the
United States, and (2) “character of the parties’, those actions
of a diversity type nature.
In Chisholm v. Georgia, 2 U.S. (2 Dail.) 419 (1793), the
Court upheld the rights of two South Carolina citizens to collect
a debt owed by the State of Georgia on the authority that Article
III, Section 2 granted jurisdiction to the federal courts in actions
between a state and a citizen of another state. The Eleventh
Amendment was ratified in 1798 in response to Chisholm. It was
only intended to foreclose federal courts from hearing suits, like
Chisholm, which were brought pursuant to federal jurisdiction
based on the character of the parties.
Logic dictates no other conclusion. Federal question juris-
diction did not vest original jurisdiction in federal courts by
the Judiciary Act of 1789. Warren, New Light in the History of
the Judiciary Act of 1789, 37 Harv. L. Rev. 49 (1923). Such
jurisdiction did not arise until the Judiciary Act of 1885. 18 Stat.
470, ch. 137, §1. Consequently, the remedial intent of the
Eleventh Amendment could not have contemplated the prohibi-
tion of federal question jurisdiction. As such, federal question
claims under the Fourteenth Amendment are not barred by the
Eleventh Amendment.
In Hans v. Louisiana, 134 U.S. 1 (1890), the Court, while
interpreting the Eleventh Amendment, assumed that federal
question suits fell within the purview of sovereign immunity.
The Court in Hans, 134 U.S. at 10 approached the matter in a
conclusionary fashion by citing Jn re Ayres, 123 U.S. 443 (1887),
Hagood v. Southern, 117 U.S. 52 (1886), and Louisiana v.
64
Jumel, 107 U.S. 711 (1882). These three decisions involved
actions under the contract clause, but the issue of the application
of sovereign immunity was never raised. Certainly the decision
in Hans is of limited precedential value since this Court did not
treat the question on the merits. Edelman v. Jordan, 415 U.S.
651, 671 (1974).
2. The History Of The Fourteenth Amendment Indicated
Reliance Was Not To Be Placed Upon State Enforcement
Of Constitutional Rights, And That Federal Courts Were
To Have Inherent Jurisdiction To Protect Such Rights.
The opponents of the Reconstruction Amendments (Thir-
teenth, Fourteenth and Fifteenth Amendments) and legislation
objected to such measures on the ground that reliance could be
placed on the ‘“‘honest purpose of the Several States’’ to protect
the rights of citizens. Cong. Globe, 39th Cong., Ist Sess. 1064,
1294 (1866). In response to that argument Representative Wil-
son, speaking in favor of an 1866 Civil Rights Bill stated:
If the States would all observe the rights of our citizens,
there would be no need for this bill ... If they would
recognize that general citizenship ... which under this
[privileges and immunities] clause entitles every citizen to
security and protection of personnal rights, .. . we might
safely withhold action. And if above all, Mr. Speaker, the
States should admit, and practice the admission, that a
citizen does not surrender these rights because he may
happen to be a citizen of the State which would deprive him
of them, we might, without doing violence to the duty
devolved upon us, leave the whole subject to the States. But,
sir, the practice of the States leaves us no avenue of escape,
and we must do our duty by supplying the protection which
the States deny. Cong. Globe, 39th Cong., Ist Sess. 1117-18
(1866).
65
Further amplification was made by Representative Cook:
Suppose . . . these States are restored to all the rights of
sovereign States within this Union, and they carry out the
same spirit they have already manifested toward these
freedmen. . . It is idle to say these men will be protected by
the States. The sufficient and conclusive answer to that
position I submit is, that those States have already passed
laws which would now virtually reenslave them . . . Does
any man in this House believe that these people can be safely
left in these States without the aid of Federal legislation or
military power? Does anyone believe that their freedom can
be preserved without this aid? If any man does so believe, he
is strangely blind to the enactments passed by legislatures
touching those freed men. Cong. Globe, 39th Cong., Ist Sess.
1124-25 (1866).
Six years of experience after the Civil War served only to
confirm Congress’ fears in this regard. The Civil Rights Act of
1871 was passed ‘‘to afford a federal right in federal courts
because, by reason of prejudice, passion, neglect, intolerence or
otherwise, state laws might not be enforced and the claims of
citizens to the enjoyment of rights, privileges and immunities
guaranteed by the Fourteenth Amendment might be denied by
the state agencies.’’ Monroe v. Pape, 365 U.S. 171, 197 (1961).
More than a century after the ratification of the Reconstruction
Amendments, history has shown that the States not only cannot
be looked to for protection of such rights, but that the States,
including Michigan, have actively engaged in the denial of
constitutional rights. See, e.g., Brown v. Board of Education,
347 U.S. 483 (1954); Green v. County School Board of New Kent
County, 391 U.S. 430 (1968).
At several points in the congressional debates the propo-
nents of the Reconstruction Amendments complained of the
inability of federal courts to protect the natural rights of indi-
viduals from infringement by the States because of their lack of
power to order compliance by the States with the ‘Bill of
Rights’. J. ten Broek, Equal Under Law, 95 n. 198, 128 (1965).
Representative Bingham, who drafted a substantial portion of
Section | of the Fourteenth Amendment, stated that it was
66
intended to reverse the position taken in Baron v. Mayor and City
Council of Baltimore , 32 U.S. (7 Pet.) 243 (1833), that the Bill of
Rights did not apply to the States. He expressed his thinking on
the extent of the Fourteenth Amendment in debates on the Civil
Rights Act pending before Congress in 1871:
In re-examining that case of Barron, Mr. Speaker, after my
struggle in the House in February, 1866, to which the gent-
leman has alluded, I noted and apprehended as I never did
before, certain words in that opinion of Marshall. Referring
to the first eight articles of amendments to the Constitution
of the United States, the Chief Justice said: *‘Had the
framers of these amendments intended them to be limitations
on the powers of the state governments, they would have
imitated the framers of the original constitution, and have
expressed that intention.”
Acting upon this suggestion I did imitate the framers of the
original Constitution. As they had said ‘No state shall emit
bills of credit, pass any bill of attainder, ex post facto law, or
law impairing the obligations of contracts’, imitating their
example and imitating it to the letter, | prepared the provi-
sion of the first section of the Fourteenth Amendment as it
stands in the Constitution, as follows: **No State shall make
or enforce any law which shall abridge the privileges or
immunities of the citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.’* Cong. Globe,
42d Cong., Ist Sess. 83 App. (1871).
The only possible conclusion is that the drafters of the Recon-
struction Amendments intended that federal courts have federal
question jurisdiction for the maintenance of suits against the
States, which violated the rights guaranteed by those Amend-
ments.
67
3. The Fourteenth Amendment Granted Citizens Substantive
Rights Which Can Be Enforced Against the States.
The Reconstruction Amendments were remedial in nature.
They were intended to recognize rights that many abolitionists
claimed existed by virtue of the privileges and immunities clause
and the Bill of Rights. See generally J. ten Broek, Equal Under
Law (1965). Representative Bingham explained that the Four-
teenth Amendment did not create new substantive rights at the
expense of the state:
{T}his amendment takes from no state any right that ever
pertained to it. No State ever had the right, under forms of
law or otherwise, to deny to any freed man the equal
protection of the laws or to abridge the privileges or im-
munities of any citizen of the Republic, although many of
them have assumed and exercised the power, and that with-
out remedy. Cong. Globe, 39th Cong., Ist Sess. 1117 (1866).
The Fourteenth Amendment was intended to limit the exercise
of state power, which had been used to deprive citizens of their
constitutional rights.
While introducing the proposed Fourteenth Amendment to
the Senate, Senator Howard discussed the objectives of Section
l:
Now «ir, there is no power given in the Constitution to
enforce and to carry out any of these guarantees. They are
not powers granted by the Constitution to Congress, and of
course do not come within the sweeping clause of the Con-
stitution authorizing Congress to pass all laws necessary and
proper for carrying out the foregoing or granted powers, but
they stand simply as a bill of rights in the Constitution,
without power on the part of Congress to give them full
effect; while at the same time the States are not restrained
from violating the principles embraced in them except by
their own local constitutions, which may be altered from
year to year. The great object of the first section of this
amendment is, therefore, to restrain the power of the States
and compel them at all times to respect these great funda-
mental guarantees. Cong. Globe, 39th Cong., Ist Sess. 2542
(1866) (emphasis added).
68
The Fourteenth Amendment was not only intended to restrain
the exercise of state power, but also contemplated substantive
rights to compel states to respect fundamental guarantees.
The proponents of the Civil Rights Acts recognized that the
Acts were not intended to create new rights. Substantive rights
already existed by the provisions of the Constitution. Represen-
tative Wilson's discussion of the 1866 Civil Rights Bill
is enlightening:
Mr. Speaker, I think I may safely affirm that this bill, so far
as it declares the equality of all citizens in the enjoyment of
civil rights and immunities, merely affirms existing law. We
are following the Constitution. We are reducing to statute
from the spirit of the Constitution. We are establishing no
new right, declaring no new principle. It is not the object of
this bill to establish new rights, but to protect and enforce
those which already belong to every citizen. Cong. Globe,
39th Cong., Ist Sess. 1117 (1866) (emphasis added).
The Civil Rights Acts were aimed at providing remedies.
Representative Bingham gave examples of the citizens’ lack of
remedy during debate of the 1871 Civil Rights Act:
The States did deny to citizens the equal protection of the
laws, they did deny the rights of citizens under the Constitu-
tion, and except to the extent of the express limitations upon
the States, as I have shown, the citizen had no remedy. They
denied trial by jury, and he had no remedy. They took
property without compensation, and he had no remedy.
They restricted the freedom of the press, and he had no
remedy. They restricted the freedom of speech, and he had
no remedy. They restricted the rights of conscience, and he
had no remedy. They bought and sold men who h
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