Petition — Milliken v. Bradley

PD cchicsneietd

IN THE SUPREME COURT OF THE UNITE

October Term, 1979 Cree ae te SA, hen

WILLIAM G. MILLIKEN, Governor of the State of Michigan; FRANK

J. KELLEY, Attorney General of the State of Michigan; MICHIGAN

STATE BOARD OF EDUCATION, a constitutional body corporate;

JOHN W. PORTER, Superintendent of Public Instruction of the

State of Michigan, and ALLISON GREEN, Treasurer of the State of

Michigan,

Petitioners,

-VS-

RONALD BRADLEY and RICHARD BRADLEY, by their Mother and

Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother

and Next Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY

LOVE and DARRELL LOVE, by their Mother and Next Friend,

CLARISSA LOVE; CAMILLE BURDEN, PIERRE BURDEN, AVA

BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BUR-

DEN, by their Father and Next Friend, MARCUS BURDEN;

KAREN WILLIAMS and KRISTY WILLIAMS, by their Father and

Next Friend, C. WILLIAMS; RAY LITT and MRS. WILBUR

BLAKE, parents; all parents having children attending the public

schools of the City of Detroit, Michigan, on their own behalf and on

behalf of their minor children, all on behalf of any person similarly

situated; and NATIONAL ASSOCIATION FOR THE ADVANCE-

MENT OF COLORED PEOPLE, DETROIT BRANCH; BOARD

OF EDUCATION OF THE CITY OF DETROIT, a school district

of the first class; DETROIT FEDERATION OF TEACHERS,

LOCAL 231, AMERICAN FEDERATION OF TEACHERS,

AFL-CIO,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

FRANK J. KELLEY

Attorney General

Robert A. Derengoski

Solicitor General

Gerald F. Young

Paul J. Zimmer

Assistant Attorneys General

Attorneys for Petitioners

Business Address:

760 Law Building

525 West Ottawa Street

Lansing, MI 48913

(517) 373-1124

Dated: July 8, 1980

PRINTED BY SPEAKER-HINES AND THOMAS, INC., LANSING, MICHIGAN—1980

1

QUESTION PRESENTED

L

Does the Court of Appeals ruling that past de jure dis-

crimination by school authorities in the operation of the De-

troit school district resulted in a current residential concentra-

tion of blacks within Detroit and a current residential

concentration of whites in other school districts, which in turn

produced the current one race schools in Regions 1, 5 and 8,

contravene this Court's ruling in Milliken IP

ii

TABLE OF CONTENTS

Page

Opinions and Orders of the Courts Below ............ 1

eae ae keV vin tee > 60s vc ws hp 0nge's ¥i'es vs 2

Constitutional Provision Involved ...............0000. 2

ET es a OO TS PED 2

Reasons For Granting the Writ

I. THE COURT OF APPEALS RULING THAT

PAST DE JURE DISCRIMINATION BY SCHOOL

AUTHORITIES IN THE OPERATION OF THE

DETROIT SCHOOL DISTRICT RESULTED IN

A CURRENT RESIDENTIAL CONCENTRA-

TION OF BLACKS WITHIN DETROIT AND A

CURRENT RESIDENTIAL CONCENTRATION

OF WHITES IN OTHER SCHOOL DISTRICTS,

WHICH IN TURN PRODUCED THE CURRENT

ONE RACE SCHOOLS IN REGIONS 1, 5 AND

8, IS DIRECTLY CONTRARY TO THIS COURT'S

RULING IN MILLIKEN | ..........00ecee008 4

A CED UES TAG PR ey bass scecceveceacsovens 11

APPENDIX

April 14, 1980 Court of Appeals Opinion ............. la

April 14, 1980 Court of Appeals Notice

TST PLETE PEELE TEE ETEEE TET CE 3la

iii

INDEX OF AUTHORITIES

Page

Armour v Nix, F Supp (ND Ga, 1979),

Slip Opinion of September 24, 1979 .............44. 7,8

Armour v Nix, 48 USLW 3732, May 13, 1980 ........ 7

Bradley v Milliken, 411 F Supp 943

LP EE Sn ua Ns Ko RANTS cad O SEES Kasinowee.s 2,3

Bradley v Milliken, 540 F2d 229 (CA6, 1976) .......... 2,3

Bradley v Milliken, 460 F Supp 299

gO a: eer err rc et 2, 3, 10

Columbus Board of Education v Penick,

ee as cy evabu nv chee ke ek uw hes 8

Milliken v Bradley, 418 US 717 (1974) .............. 2, 3,5

‘ 7, & aa

Milliken v Bradley, 433 US 267 (1977) ........ cee sees 2,9

United Staies of America v The Board of School Commis-

sioners of the City of Indianapolis, Indiana, F2d

(CA7, 1980), Slip Opinion of April 29,1980 .... 7

US Const, Amendments, art XIV, § 1 ............44. 2

SS TARR AER er er olay prin cece 2

BORA -nctetinsses

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979 |

WILLIAM G. MILLIKEN, et al, ®

Petitioners,

-VS-

RONALD BRADLEY, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

Petitioners William G. Milliken, Governor of the State of

Michigan; Frank J. Kelley, Attorney General of the State of

Michigan; Michigan State Board of Education, a constitutional

body corporate; John W. Porter, Superintendent of Public

Instruction of the State of Michigan, and Allison Green, Treas-

urer of the State of Michigan, pray that a writ of certiorari

be issued to review the judgment and opinion of the United

States Court of Appeals for the Sixth Circuit entered in this

proceeding on April 14, 1980.

OPINIONS AND ORDERS OF THE COURTS BELOW

The April 14, 1980 opinion of the Court of Appeals for the

Sixth Circuit, not yet reported, and the notice of entry of

judgment, appear in the appendix to this petition. Hereafter,

references to the appendix contained herein will be indicated

by page numbers enclosed in parentheses.

Other Opinions and Orders delivered in the Courts below

are:

alls

United States District Court for the Eastern District of

Michigan, Southern Division:

November 4, 1975, Memorandum and Order [De-

segregation Plan], 411 F Supp 943

August 7, 1978 Opinion and Order, 460 F Supp 299

United States Court of Appeals for the Sixth Circuit:

540 F2d 229 (CA6, 1976)

JURISDICTION

The judgment of the Court of Appeals for the Sixth Circuit

was entered on April 14, 1980. This petition for a writ of

certiorari was filed within 90 days of that date. The Court's

jurisdiction is invoked under 28 USC 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

Amendments, Article XIV, Section 1—“All persons born or

naturalized in the United States, and subject to the jurisdic-

tion 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.”

STATEMENT OF THE CASE

This Court has previously ruled in this case in Milliken v

Bradley, 418 US 717 (1974), (hereinafter Milliken I) and

Milliken v Bradley, 433 US 267 (1977), (hereinafter Milliken

all

II). The April 14, 1980 decision of the Sixth Circuit Court of

Appeals requires that this Court once again review this case to

insure compliance with its prior opinions by the lower courts.

In 1975 the District Court ordered a pupil reassignment

plan implemented in the Detroit school system. 411 F Supp

943 (ED Mich, 1975). This plan excluded Regions 1, 5 and 8.

This 1975 plan was affirmed in principle by the Court of

Appeals in 540 F2d 229 (CA6, 1976), including affirmance of

pupil reassignments in Regions 2, 3, 4, 6 and 7. However, the

Court of Appeals remanded for further consideration of in-

cluding Regions 1, 5 and 8 in the pupil reassignment plan.

On remand, the District Court concluded that, with the

exception of pupil reassignment between a few majority white

schools in Region 2 and a few predominantly black schools in

Region 1, there should be no additional pupil reassignment

affecting Regions 1, 5 and 8. 460 F Supp 299 (ED Mich, 1978).

The Court based its conclusion upon findings that the one

race schools in those three regions were not caused by the

prior de jure discrimination of school authorities in the opera-

tion of the Detroit school system. Rather, the Court found

that the one race schools in those three regions were the

product of the predominance of blacks within the total school

system and the racial demographic residential patterns within

the school system and that these two factors had obliterated

any effect of the prior de jure conduct of the school authorities

on present student assignments within the Detroit school

system. 460 F Supp 299, at 307-308.

In its subsequent decision of April 14, 1980, the Court of

Appeals reversed the District Court findings set forth above

solely on the basis that they were “. . . contrary to the law

of this case as established by Judge Roth and affirmed by this

court and by the Supreme Court in Milliken I.” (8a) The law

of the case, as preceived by the Court of Appeals is that “[t]he

clea: import of Judge Roth’s holding is that the defendants’

me Ee

discriminatory policies helped to drive whites from the

Detroit school district and to contain blacks in an ever-

expanding core area of the city. . . .” and that “Judge Roth

found that de jure school segregation encouraged whites to

flee from racially changing neighborhoods and ultimately

from the Detroit school district. . . .” (12a, 13a) Thus, the Court

of Appeals ruled that the one race schools in Regions 1, 5 and

8 are the result of present racial residential concentrations in

those areas that were caused by the prior de jure discrimina-

tion of school authorities in the operation of the Detroit

school system. (13a)

On motion of respondent, Detroit Board of Education, the

Court of Appeals granted a stay of its mandate for ten days to

allow movant to seek a stay from this Court. (Order filed

May 6, 1980) On May 14, 1980, Mr. Justice Stewart entered

an order extending the stay and referring the Detroit Board

of Education’s stay application to the Court. On May 27,

1980, the Court entered its order denying the stay application.

REASONS FOR GRANTING THE WRIT

L

THE COURT OF APPEALS RULING THAT PAST DE

JURE DISCRIMINATION BY SCHOOL AUTHORITIES

IN THE OPERATION OF THE DETROIT SCHOOL

DISTRICT RESULTED IN A CURRENT RESIDENTIAL

CONCENTRATION OF BLACKS WITHIN DETROIT

AND A CURRENT RESIDENTIAL CONCENTRATION

OF WHITES IN OTHER SCHOOL DISTRICTS, WHICH

IN TURN PRODUCED THE CURRENT ONE RACE

SCHOOLS IN REGIONS 1, 5 AND 8, IS DIRECTLY

CONTRARY TO THIS COURT'S RULING IN MILLIKEN I,

oe. We

The Court of Appeals ruling must be tested against this

Court’s prior ruling in Milliken I, supra, which established the

law of this case. In Milliken I, supra, this Court granted cer-

tiorari “to determine whether a federal court may impose a

multi-district, areawide remedy . . . absent any finding that

the included districts committed acts which effected segrega-

tion within the other districts. . . .” 418 US, at 721. Thus,

Milliken I, supra, was squarely grounded upon the indisputable

fact that there had been no interdistrict violation or effect.

This Court’s opinion in Milliken I, supra, (418 US, at 728, n

7) quotes the Court of Appeals statement, from 484 F2d, at

242, that in affirming the District Court's findings of unlawful

conduct:

“. . » we have not relied at all upon testimony pertain-

ing to segregated housing except as school construction

programs helped cause or maintain such segregation.”

and then states:

“Accordingly, in its present posture, the case does not

present any question concerning possible state housing

violations.”

As this Court noted in Milliken I, supra, the school con-

struction violations found below related to “the great majority

of schools being built in either overwhelmingly all-Negro or

all-white neighborhoods so that the new schools opened as pre-

dominantly one-race schools.” 418 US, at 726. Manifestly, the

school construction violations relied upon by the lower courts,

i.e., building schools in one-race neighborhoods, did not cause

the already established and segregated residential patterns.

Further, in Milliken I, supra, this Court expressly rejected

the Court of Appeals comment that state-approved school con-

struction fostered segregation throughout the Detroit metro-

politan area, and stated that:

AT

“, . . there was no evidence suggesting that the State’s

activities with respect to either school construction or site

acquisition within Detroit affected the racial composition

of the school population outside Detroit. . . .” 418 US,

at 751

This Court’s decision in Milliken I, supra, was premised

upon its conclusion that there had been “no evidence of any

interdistrict violation or effect. . . .” 418 US, at 745. This

premise was emphatically stated by Mr. Justice Stewart in

concurrence as follows:

“My Brother Marshall seems to ignore this fundamental

fact when he states, post, at 799, [41 L Ed 2d, at 1122]

that ‘the most essential finding [made by the District

Court] was that Negro children in Detroit had been con-

fined by intentional acts of segregation to a growing core

of Negro schools surrounded by a receding ring of white

schools.’ This conclusion is simply not substantiated by

the record presented in this case. The record here does

support the claim made by the respondents that white

and Negro students within Detroit who otherwise would

have attended school together were separated by acts of

the State or its subdivision. However, segregative acts

within the city alone cannot be presumed to have produced

—and no factual showing was made that they did produce

—an increase in the number of Negro students in the city

as a whole. It is this essential fact of a predominantly

Negro school population in Detroit—caused by unknown

and perhaps unknowable factors such as in-migration,

birth rates, economic changes, or cumulative acts of

private racial fears—that accounts for the ‘growing core

of Negro schools, a ‘core’ that has grown to include

virtually the entire city. The Constitution simply does not

allow federal courts td attempt to change that situation

unless and until it is shown that the State, or its political

subdivisions, have contributed to cause the situation to

is Be

exist. No record has been made in this case showing

that the racial composition of the Detroit school popula-

tion or that residential patterns within Detroit and in the

surrounding areas were in any significant measure caused

by governmental activity, and it follows that the situation

over which my dissenting Brothers express concern can-

not serve as the predicate for the remedy adopted by the

District Court and approved by the Court of Appeals.”

(Emphasis added.) 418 US, at 756, n 2

These petitioners are not alone in their firm conviction that

this Court’s decision in Milliken I, supra, negates any notion

that the law of this case is that past unlawful conduct by

school authorities caused a current condition of residential

and school segregation. In Armour v Nix, .... F Supp ....

(ND Ga, 1979) Slip Opinion of September 24, 1979, at p 28,

“[pJlaintiffs . . . presented the ingenious argument that past

segregative acts on the part of school officials contributed to

the formation of housing patterns which caused segregation

in the schools today.” The three judge panel squarely rejected

that argument, relying, inter alia, on the concurring opinion of

Mr. Justice Stewart in Milliken I, supra. Armour v Nix, supra,

at pp 29-30. Moreover, this Court recently affirmed the three

judge panel ruling in Armour v Nix, supra, 48 USLW 3732,

May 13, 1980, thereby reconfirming that Milliken I, supra,

does not stand for the proposition that current residential and

school segregation was caused by the prior de jure discrimina-

tion of school authorities.

Additionally, in United States of America vy The Board of

School Commissioners of the City of Indianapolis, Indiana,

.... Fd .... (CAT, 1980), Slip Opinion of April 29, 1980, at

pp 16-18, the Court affirmed the District Court’s ruling that

the proofs failed to establish that intradistrict school segrega-

tion had caused interdistrict residential segregation which, in

turn, produced interdistrict school segregation. In reaching

ae ee

that result, the Court cited Milliken I, supra, for the proposi-

tion that multi-district reiief is unwarranted in the absence

of a showing that a constitutional violation in one school

district had a significant segregative effect in another school

district. However, the Court gave absolutely no indication

that it regarded Milliken I, supra, as a case in which such a

showing had, in fact, been made. Rather, the Court’s opinion

makes it clear that the Seventh Circuit Court of Appeals,

along with the three judge panel in Armour v Nix, supra, does

not view Milliken I, supra, as holding that past intradistrict

school segregation caused a present condition of residential

and school segregation. That view of Milliken I, supra, is con-

fined to the Sixth Circuit Court of Appeals.

In summary, this Court held in Milliken I, supra, that there

has been no evidence of an interdistrict violation or effect in

this case. See Milliken I, 418 US, at 745. Now, six years later,

the Court of Appeals has completely disregarded this Court's

holding and concluded that past de jure school discrimination

within Detroit caused a present residential concentration of

blacks within Detroit and a present residential concentration

of whites in other school districts which, in turn, produced a

current condition of school segregation.

This is not “an unduly grudging application” of this Court's

precedents by the Sixth Circuit Court of Appeals. Columbus

Board of Education v Penick, 439 US 1348, 1350 (1978),

Opinion of Mr. Justice Rehnquist granting stay application.

Rather, the Circuit Court completely ignored this Court’s prior

ruling in the case and applied a theory which can only lead to

multi-district racial balancing.

The Court of Appeals opinion will superimpose more trans-

portation and litigation upon the educational efforts of the

Detroit school system. In rejecting current pupil reassignment

patterns as failing to establish a unitary system in Detroit, the

Court of Appeals stated that the unconstitutional actions of

=e

defendants contributed to the racial residential concentrations

and one race schools currently in Detroit and that “[t]he

Board’s plan is limited by residential patterns which reflect

past discrimination, as well as by district lines and transporta-

tion problems.” (13a, 21a)

Thus, under its decision the Court of Appeals has mandated

a potentially never-ending remedy. Given the present resi-

dential patterns, the Detroit school system cannot become

unitary. Court supervision cannot end. The annual payment

of millions of dollars in additional, unappropriated state funds

to the Detroit school system approved in Milliken II cannot

be terminated at some point. Yet, the defendant school

authorities have no means of changing the racial residential

patterns either within Detroit or between Detroit and other

school districts. No matter what the defendants do, they can-

not purge their past sins because they cannot control residential

patterns. Nothing in any of this Court’s prior decisions, in-

cluding, most especially, Milliken I, supra, has ever contem-

plated, let alone mandated, such a result.

In its 1978 pupil reassignment opinion, the District Court

painstakingly examined the evidence and concluded that no

more desegregation in Regions 1, 5 and 8 was feasible. After

analyzing all of the enrollment and demographic data, the

Distric Court found that:

“We conclude that as a result of the present racial

ratios in the vast majority of the schools, the predominance

of black students in the school district and the accelerated

population shifts, no more desegregation is feasible in

Regions 1, 5 and 8 collectively. These pronounced demo-

graphic shifts, first predicted by Judge Roth, and the

predominance of the black student population have

obliterated the optional and gerrymandered attendance

zones which permitted white students to avoid attending

integrated schools, the practice of bussing black students

from overcrowded schools beyond a closer white school

and the practice of altering feeder patterns in racially

changing neighborhoods . . .” 460 F Supp 299, at 307

“The demographic data presented by the Detroit

Board compels us to further conclude that it is the demo-

graphic residential patterns, operating independently of

school assignments, together with the predominance of

blacks in the school system, and not the segregative acts

of the Detroit Board and the state that have resulted in the

one race schools that remain in Regions 1, 5 and 8. Al-

though a school district that retains one race schools

bears a heavy burden to satisfy the court that their com-

position is not the result of present or past discriminatory

action, (citation omitted) that burden is satisfied by the

Detroit Board’s showing that such schools are the result

of population shifts, or the predominance of black school

children in the district as a whole, or both. (citations

omitted) A school-by-school examination of student en-

rollment by residence and as affected by student assign-

ment make it apparent that the school district no longer

discriminates against black students. That examination

discloses that the schools are increasing black enrollment

through natural influxes of black families into the chang-

ing neighborhoods. The Detroit’ Board’s desegregation

plan brought schools within the parameters of our guide-

lines, and its present assignment pattern is free from the

vestiges of prior discrimination. While there may be a

presumption of system-wide impact of segregative poli-

cies, (citation omitted) we find that the Detroit Board has

overcome such presumption and established ounclusively

that the existence of one race schools is not the product

of their past or present discriminatory acts.” 460 F Supp

299, at 308

Those findings were reversed by the Court of Appeals

solely on the basis that they were contrary to the law of the

unttines

case, as allegedly affirmed by this Court in Milliken I, that the

past de jure discrimination by school authorities in Detroit

had an effect on the present racial residential patterns and

the present racial composition of the schools in Detroit and

in other school districts. As pointed out earlier, that ruling by

the Court of Appeals is directly contrary to this Court’s prior

ruling in Milliken I, supra.

Thus, this Court should review this case once again to in-

sure that further proceedings in the matter are conducted by

the lower courts in compliance with the prior opinions of this

Court, and affirm the judgment of the District Court.

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue

to review the decision of the Sixth Circuit Court of Appeals

rendered herein on April 14, 1980.

Respectfully submitted,

FRANK J. KELLEY

Attorney General

. Robert A. Derengoski

Solicitor General

Gerald F. Young

Paul J. Zimmer

Assistant Attorneys General

Attorneys for Petitioners

William G. Milliken, et al

Business Address:

760 Law Building

525 West Ottawa Street

Lansing, Michigan 48913

(517) 373-1124

Dated: July 8, 1980

APPENDIX

la

Nos. 'i¢ 1597 and 79-1005

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al.,

Plaintiffs-Appellees,

v.

WILLIAM G. MILLIKEN, Appeal from the

United States

Governor, et al., bare

D i all District Court for

q efendants-Appellees, the Eastern District

an

of Michigan.

BOARD OF EDUCATION OF THE

SCHOOL DISTRICT OF THE

CITY OF DETROIT, et al.,

Defendants-Appellants.

Decided and Filed April 14, 1980.

Before EDWARDS, Chief Judge, and PHILLIPS and PECK,

Senior Circuit Judges.

PHILLIPS, Senior Circuit Judge. On July 25, 1974, the Su-

preme Court remanded this case to the district court for

“prompt formulation of a decree directed to eliminating the

segregation found to exist in Detroit city schools, a remedy

which has been delayed since 1970.” Milliken v. Bradley, 418

U.S. 717, 753 (1974) (Milliken I). Nearly six years have

elapsed since that remand, and almost ten years since this

litigation began, yet we are unable to hold on the record

2a

2 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

before us that de jure segregation has been eliminated from

the Detroit school system. We conclude that we must send

the case back to the district court for further proceedings.

The present appeal presents four questions for decision:

(1) Did the district court err in holding that population and

demographic changes in Detroit have obliterated all traces

and effects of past acts of discrimination by the Detroit

School Board and the State of Michigan? Part II of this

opinion rejects the ruling of the district court as contrary to

the law of this case and clearly erroneous. (2) Was the district

court correct in holding that the overwhelming percentage

of black students in the Detroit school system precludes in-

cluding in the pupil assignment plan any of the schools in

the three inner-city regions of the school district? Part III

of this opinion concludes the district court’s holding was er-

ror, and outlines the standards to be applied by the district

court when it reconsiders inner-city pupil reassignment on

remand. (3) Was it error for the district court to order ad-

ditional pupil reassignments between schools in Regions 1

and 2? Part IV of the opinion affirms in principle the pro-

priety of additional pupil reassignments, but remands the

case for a hearing on the question whether Hispanic students

should be treated as white for desegregation purposes. (4)

Did District Judge Robert E. DeMascio abuse his discretion in

declining to recuse himself from the remand proceedings in

this case? Part V finds no abuse of discretion, but suggests, in

view of the bitter feelings that have developed, that the

case be reassigned to another judge on remand from this

court’s decision on the present appeal.

I

This protracted litigation began in 1970. On April 7 of

that year, the Detroit Board voluntarily adopted a modest

plan to desegregate some of the Detroit high schools. The

State legislature, however, blocked implementation of that

3a

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 3

plan by enacting § 12 of Act No. 48, Public Acts of 1970. A

citizen-initiated recall election resulted in the replacement of

the four Board members who had favored the April 7 plan, and

the reconstituted Board rescinded the plan.

The plaintiffs filed this suit on August 18, 1970, alleging

that § 12 of Act No. 48 was unconstitutional and praying for

a preliminary injunction requiring the Board to implement the

April 7 plan. The late District Judge Stephen J. Roth denied

plaintiffs’ application for a preliminary injunction and they

appealed. This court held § 12 of Act No. 48 unconstitutional,

but affirmed the denial of a preliminary injunction and re-

manded for a trial on the merits. 433 F.2d 897 (6th Cir.

1970). On remand, Judge Roth again refused to grant a

preliminary injunction, and this court affirmed, again direct-

ing a trial on the merits. 438 F.2d 945 (6th Cir. 1971).

The case was tried on the issue of segregation April 6, 1971,

to July 22, 1971. On September 27, 1971, Judge Roth issued

his ruling on the issue of segregation, finding both the State

of Michigan and the Detroit Board! had committed “acts

which have been causal factors in the segregated condition of

the public schools in the City of Detroit,” 338 F.Supp. 582,

592 (E.D. Mich. 1971).

Judge Roth determined that true desegregation could not

be accomplished within the geographical limits of Detroit.

Distributing the relatively small number of white students

remaining in the district throughout the schools, he held,

would render the entire system identifiably black. Accord-

ingly, he ordered the defendants to submit metropolitan plans

for desegregation. 345 F. Supp. 914 (E.D. Mich. 1972).

1 Nothing in this opinion is intended to reflect adversely upon the

present Detroit Board of Education. Throughout the course of this

often bitter litigation members of the present Board have cooperated

with the district court’s endeavor to remedy the unconstitutional de

jure segregation created by acts and policies of their predecessors

and former State officials. References in this opinion to the Board's

discriminatory acts should be read as references to the actions of

past, not present, Board members,

4a

4 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

This court, sitting en banc, affirmed both the finding of de

jure segregation and the propriety of an interdistrict remedy.

484 F.2d 215 (6th Cir. 1973).

The Supreme Court granted certiorari and reversed in part.

The Court held the district court had no equitable power to

include in its remedial decree any school district whose racial

composition had not been shown to be the product of de jure

segregation. The defendants did not, however, challenge

the district court’s finding of de jure segregation within the

city of Detroit. Accordingly, the Court remanded the case for

formulation of a Detroit-only remedial decree. 418 U.S. 717

(1974) (Milliken 1).

Judge Roth had died shortly before the Supreme Court

issued its opinion, and District Judge Robert E. DeMascio

was assigned the difficult task of formulating a decree which

would eliminate the effects of de jure segregation from the

Detroit school system without transgressing the limits set by

the Supreme Court in Milliken I. Judge DeMascio required

the parties to submit desegregation plans, but rejected them

as unsatisfactory. His August 15, 1975 opinion, reported at

402 F. Supp. 1096 (E.D. Mich. 1975), established guidelines

to be met by an acceptable remedial plan. Hereafter, they

are referred to as the August 15 guidelines.

On November 4, 1975, Judge DeMascio adopted a desegre-

gation plan drafted by the Detroit Board in an effort to con-

form to the August 15 guidelines. 411 F.Supp. 943 (E.D.

Mich. 1975). This plan provided for changes in pupil assign-

ments in five of the eight administrative regions of the Detroit

school district, excluding inner-city Regions 1, 5 and 8 which

are overwhelming black. In addition, the remedial decree

provided for various Educational Components, requiring es-

tablishment of certain training, remedial, testing, counseling,

monitoring and public relations programs.

This court affirmed the remedial decree’s Educational Com-

ponents and the portion of the pupil reassignment plan that

required reassignments within Regions 2, 3, 4, 6 and 7. We

5a

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 5

found that excluding Regions 1, 5 and 8 from the pupil re-

assignment plan left approximately 83,000 students with no

relief from unconstitutional de jure segregation. Moreover, we

noted, these three Regions are in the area most affected by the

previously found illegal acts. This being the case, the Board

had assumed the burden of showing that the segregation

existing in Regions 1, 5 and 8, which were excluded from

the plan, was not the result of the defendants’ present or past

discriminatory actions. Since the record disclosed no ade-

quate justification for limiting the pupil reassignment plan to

five Regions, we remanded the case for further consideration

in regard to schools located in the inner-city Regions. 540

F.2d 229 (6th Cir. 1976).

The Supreme Court affirmed the propriety of the decree’s

Educational Components, and their validity no longer is an

issue in this case. Neither the district court’s pupil reassign-

ment plan nor this court’s partial reversal was challenged

in the Supreme Court, and it had no occasion to rule thereon.

433 U.S. 267, 279 (1977) ( Milliken II).

Before the district court commenced remand proceedings,

the plaintiffs moved Judge DeMascio to recuse himself from

the case. Relying on 28 U.S.C. § 455(a) and Canon 3A(4)

of the Code of Judicial Conduct, the plaintiffs complained

that Judge DeMascio had created an appearance of partiality

by engaging in ex parte contacts with experts, community

groups and the Detroit Board in the process of developing his

desegregation guidelines and remedial decree. Judge De-

Mascio declined to recuse himself. 426 F.Supp. 929 (E.D.

Mich. 1977). However, he referred to the Chief Judge of

the District the question whether his prior conferences with

the Detroit Board and the teachers’ union aimed at averting a

strike, coupled with his August 28, 1975, order directing fac-

ulty reassignments, had created the appearance that he had

prejudged the faculty assignment issue. On referral from the

Chief Judge, District Judge James P. Churchill agreed with

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6 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

Judge DeMascio that recusal was not required. 426 F.Supp.

at 943-44. :

On the merits, Judge DeMascio reaffirmed his prior conclu-

sion that Regions 1, 5 and 8 need not and cannot be included

in the pupil reassignment plan. 460 F. Supp. 299 (E.D. Mich.

1978). He held that pronounced demographic shifts, together

with the predominance of the black student population, have

obliterated the effects of defendants’ prior acts of de jure

segregation. Current residential patterns, not school assign-

ments, he said, account for the one-race character of the

inner-city schools. Accordingly, Judge DeMascio held that the

present assignment pattern is free from the vestiges of prior

discrimination and that the Board had bore its heavy burden

of justifying the exclusion of the inner-city regions from the

pupil reassignment plan. 460 F. Supp. at 307-08.

Nevertheless, the court found there were some white stu-

dents available in Region 2 to desegregate certain Region 1

schools. The Board objected that many of these white stu-

dents were Spanish dominant Hispanics involved in bilingual

educational programs that would be disrupted by additional

pupil reassignments. However, Judge DeMascio felt this

court’s opinion mandated whatever reassignments were pos-

sible, despite any burden on bilingual programs. 460 F. Supp.

at 312. In a supplemental opinion, Judge DeMascio ordered

the Detroit Board to develop a plan for reassigning pupils

between Regions 1 and 2 which would provide for bilingual

education in receiving schools. On November 11, 1978, the

court adopted the Board’s responsive plan. 460 F. Supp. 325

(E.D. Mich. 1978).

The Detroit Board appeals on the ground that the district

court exceeded its authority by ordering additional pupil re-

assignments between Regions 1 and 2. The plaintiffs cross-

appeal from Judge DeMascio’s decision not to recuse himself,

his holding that demographic changes have obliterated the

effects of defendants’ prior discriminatory acts, and his con-

clusion that Region 1, 5 and 8 were properly excluded from

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Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 7

the pupil reassignment plan. This court stayed implementa-

tion of the additional reassignment plan pending the outcome

of this appeal.

II

The first question we address is whether Judge DeMascio

was correct when he decided that demographic changes and

the growth of the Detroit school system’s proportion of black

students have abliterated the effects of defendants’ past dis-

criminatory actions. We conclude that this holding of the

district court is refuted overwhelmingly by the record.

Judge DeMascio’s conclusion apparently was based on his

belief that the only effect of defendants’ past discriminatory

actions was to allow white students to escape from integrated

schools in racially changing residential areas:

This was so because the actions which formed the basis

for Judge Roth’s liability findings were basically reactions

by the Detroit Board of Education to changing residential

patterns. The optional and gerrymandered attendance

zones served the purpose of keeping white students out of

schools that, in the absence of such policies, would have

become, and in fact have become, integrated naturally.

Judge Roth did not find, however, that these policies in

turn created additional residential segregation which in

turn created additional school segregation. Had he made

such findings, and had such findings been supported in

the record, we assume the Supreme Court would have

affirmed the propriety of an interdistrict remedy.

460 F. Supp. at 307-08.

Accordingly, Judge Demascio thought the defendants’ actions

could have had only temporary segregative effects, effects that

had been nullified by the almost total displacement of whites

from formerly integrated neighborhoods:

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8 Bradley, et al. v. Milliken, et al., etc. | Nos. 78-1597, etc.

These pronounced demographic shifts, first predicted by

Judge Roth, and the predominance of the black student

population have obliterated the optional and gerryman-

dered attendance zones which permitted white students

to avoid attending integrated schools, the practice of

bussing black students from overcrowded schools beyond

a closer white school and the practice of altering feeder

patterns in racially changing neighborhoods.

(Footnote omitted.) 460 F. Supp. at 307.

The problem with this conclusion of the district court is

that it is contrary to the law of this case as established by

Judge Roth and affirmed by this court and by the Supreme

Court in Milliken I.

Judge Roth found that the Detroit Board had done at least

four things to maintain a dual school system in Detroit: First,

during the 1950's, the Board “created and maintained optional

attendance zones in neighborhoods undergoing racial transition

and between high school attendance areas of opposite pre-

dominant racial compositions.” 338 F. Supp. at 587. “The

natural, probable, foreseeable and actual effect of these op-

tional zones was to allow white youngsters to escape identi-

fiably ‘black’ schools.” Id. Second, the Board “admittedly

bused black pupils past or away from closer white schools with

space available to black schools,” but only in one instance,

necessitated by the burning of a white school, did the Board

bus white children to a black school. 338 F.Supp. at 588.

Third, the Board “created and altered attendance zones, . . .

grade structures and . . . feeder school patterns in a manner »

which . . . [maintained] black and white pupils in racially

segregated schools.” Id. Finally, by constructing many small

schools and locating new schools in areas of one race, the Board

negated opportunities to integrate, contained the black popu-

lation, and compounded school segregation, Id.

The plaintiffs presented evidence that the Board’s discrimi-

natory actions affected not only schools but residential pat-

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Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 9

terns. For example, in affirming Judge Roth’s finding of de

jure segregation, this court quoted the following exchange be-

tween plaintiffs’ counsel and Dr. Gordon Foster of the Univer-

sity of Miami, director of the Florida School Desegregation

Consulting Center, concerning optional attendance zones:

“Q. Doctor Foster, from your examination of the 1950

census and in turn the 1960 census exhibits, do you have

an opinion as to the effect of such an optional zone on

the community residence pattern in the community?

“A. Community people and residents in a situation

such as this generally have a perception that there is

something wrong with their school, that the whites need

an optional zone to get out into a less black situation and,

therefore, this increases their perception of racial isola-

tion and, in fact, physical containment.

“Q. Does this have an effect, Doctor, in terms of the

residence pattern? I believe you testified in 1950 the

optional area was entirely white to zero to 4.9 per cent

white.

’

“A. In my opinion this tends to increase the instability

of the community because they generally feel this is an

ad hoc temporary interim situation and it increases white

flight in this sort of situation.

484 F.2d at 234.

At another point, Dr. Foster testified that locating new

schools in one race areas rather than integrated areas tends

to isolate the new school’s attendance zone and perpetuate its

racial identity. 484 F.2d at 238.

Responding to this and other evidence, Judge Roth found

the Board’s discriminatory policies were partially responsible

for segregated residential patterns:

10a

10 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

Governmental actions and inaction at all levels, federal,

state and local, have combined, with those of private or-

ganizations, such as loaning institutions and real estate

associations and brokerage firms, to establish and to main-

tain the pattern of residential segregation throughout the

Detroit metropolitan area.

... [A]Il of them, including the school authorities, are,

in part, responsible for the segregated condition which

exists. And we note that just as there is an interaction

between residential patterns and the racial composition

of the schools, so there is a corresponding effect on the

residential pattern by the racial composition of the

schools.

338 F. Supp. at 587.

See also Judge Roth’s seventh conclusion of law, 338 F. Supp.

at 593.

In affirming Judge Roth's findings on the issue of segregation,

we stated:

This record contains a substantial volume of testimony

concerning local and State action and policies which

helped produce residential segregation in Detroit and in

the metropolitan area of Detroit. In affirming the District

Judge’s findings of constitutional violations by the De-

troit Board of Education and by the State defendants

resulting in segregated schools in Detroit, we have not re-

lied at all upon testimony pertaining to segregated hous-

ing except as school construction programs helped cause

or maintain such segregation.

484 F.2d at 242 (emphasis supplied).

See also Milliken I, supra. 418 U.S. at 724 and 728 n.7 (ac-

knowledging Judge Roth’s and this court’s partial reliance on

de jure school segregation as one cause of residential segrega-

tion).

Moreover, Judge Roth’s conclusion that present Detroit

housing patterns reflect the Board’s past discrimination ac-

lla

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al.,etc. 11

cords with the analysis of the Supreme Court in Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 20-21

(1971):

The construction of new schools and the closing of old

ones are two of the most important functions of local

school authorities and also two of the most complex. They

must decide questions of location and capacity in light

of population growth, finances, land values, site avail-

ability, through an almost endless list of factors to be con-

sidered. The result of this will be a decision which,

when combined with one technique or another of student

assignment, will determine the racial composition of the

student body in each school in the system. Over the long

run, the consequences of the choices will be far reaching.

People gravitate toward school facilities, just as schools

are located in response to the needs of people. The lo-

cation of schools may thus influence the patterns of resi-

dential development of a metropolitan area and have

important impact on composition of inner-city neighbor-

hoods.

In the past, choices in this respect have been used as

a potent weapon for creating or maintaining a state-

segregated school system. In addition to the classic

pattern of building schools specifically intended for Negro

or white students, school authorities have sometimes,

since Brown, closed schools which appeared likely to

become racially mixed through changes in neighborhood

residential patterns. This was sometimes accompanied

by building new schools in the areas of white suburban

expansion farthest from Negro population centers in order

to maintain the separation of the races with a minimum

departure from the formal principles of “neighborhood

zoning.” Such a policy does more than simply in-

fluence the short-run composition of the student body

of a new school. It may well promote segregated resi-

dential patterns which, when combined with “neighbor-

hood zoning,” further lock the school system into the

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12 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

mold of separation of the races. Upon a proper showing

a district court many consider this in fashioning a remedy.

See also Adams v. United States, _ F.2d , slip op. at

34 (8th Cir. Mar. 3, 1980) (massive demographic shifts that

have rendered the St. Louis school district 75 per cent black

have incorporated rather than wiped out the segregative effects

of the system’s prior de jure discriminatory policies: “public

perception of the racial identity of a school can be, and often

is, a powerful factor in shaping the residential patterns of a

neighborhood” ).

In Keys v. School District No. 1, 413 U.S. 189 (1933), the

Supreme Court held that the discriminatory practices of a

school district may have the effect of earmarking a school

according to its racial composition, and this, in turn, may have

a profound reciprocal effect on the racial composition of resi-

dential neighborhoods. The Court said:

“(T]he practice of building a school . . . to a certain size

and in a certain location ‘with conscious knowledge that

it would be a segregated school, .. . has a substantial

reciprocal effect on the racial composition of other nearby

schools. So also, the use of mobile classrooms, the draft-

ing of student transfer policies, the transportation of

students, and the assignment of faculty and staff, on ra-

cially identifiable bases, have the clear effect of earmark-

ing schools according to their racial composition, and this,

in turn, together with the elements of student assignment

and school construction, may have a profound reciprocal

effect on the racial composition of residential neighbor-

hoods within a metropolitan area, thereby causing further

racial concentration within the schools.”

413 U.S. at 201-02.

The clear import of Judge Roth’s holding is that the de-

fendants’ discriminatory policies helped to drive whites from

the Detroit school district and to contain blacks in an ever-

13a

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 13

expanding core area of the city. Viewed in this light, Judge

DeMascio’s holding, urged by the Board betore this court, is

that the segregative effects of the defendants’ discriminatory

policies have been obliterated by the very demographic

changes those policies helped to produce. We conclude that

this argument refutes itself.

It is the law of this case that the unconstitutional actions

of defendants, both local and State, contributed to the seg-

regated residential patterns and the one race schools that now

exist in Detroit. Judge Roth found that de jure school segre-

gation encouraged whites to flee from racially changing neigh-

borhoods and ultimately from the Detroit school district. That

finding is supported by substantial record evidence and ample

legal precedent. This being so, we reverse Judge DeMascio’s

holding that population changes have obliterated the effects of

the Board’s past discrimination. This holding is contrary to

the law of this case and, treated as a finding of fact, is clearly

erroneous. On the contrary, the record demonstrates that

these population changes themselves are in part vestiges of

past discrimination.

III

We turn our attention next to the holding of the district

court that the overwhelming percentage of black students in

the school district as a whole and particularly in the inner-

city regions, coupled with the small number of white students

even theoretically available for reassignment, foreclose the

possibility of including any schools located in Regions 1, 5

and 8 in the pupil reassignment plan. We find this holding

constitutionally insupportable.

The last time this case was before us, we reversed the

exclusion by the district court of the inner-city regions from

the pupil reassignment plan. We recognized then that “the

overwhelming number of black students in Detroit and their

concentration in the inner-city undoubtedly makes some one-

l4a

14 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

race schools unavoidable under any ‘Detroit only’ remedy.”

540 F.2d at 237. However, in order to justify eliminating the

inner-city regions entirely, we said, the Board would have to

show the resultant all black schools are not the product of

past discrimination. This would be particularly difficult, we

warned, because these very regions were the ones hardest hit

by past acts of de jure segregation. 540 F.2d at 238. “We

cannot hold,” we concluded, “that where unconstitutional

segregation has been found, a plan can be permitted to stand

which fails to deal with the three regions where the majority

of the most identifiably black schools are located.” 540 F.2d

at 240.

On remand, the Detroit Board attempted to justify its ex-

clusion of Regions 1, 5 and 8 by presenting evidence that the

shift from white to black in the district had accelerated well

beyond former demographic predictions and made inner-city

desegregation impossible. The Board’s figures established that

the percentage of black students in the district is increasing

despite a decline in the total enrollment. Of the children who

enter Detroit kindergartens, a greater proportion of blacks

than whites remain in the system throughout their school

years. Mr. Hendrickson, the Board’s expert, projected the dis-

trict’s enrollment would be 91.8% black by 1981. Moreover, the

district court found, residential areas near the school district’s

fringe are becoming increasingly black as inner-city families

replace whites who leave the district entirely. 460 F. Supp.

at 305-07.

Judge DeMascio felt the Board’s evidence established that

no more desegregation of Regions 1, 5 and 8 is possible. 460

F.Supp. at 307, He concluded that integrating the inner-city

schools would require the Board to scatter the remaining

white students to such an extent that there would be no mean-

ingful interaction between the races in any school. The result

would be mere token integration of the inner-city schools

achieved at the cost of disrupting previously approved assign-

15a

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 15

ment patterns that effectively desegregate the schools in

other regions.

To illustrate the futility of attempting to include the inner-

city regions, Judge DeMascio turned to statistics. Pointing

out that the district court had repeatedly rejected the notion

of making all schools identifiably black, Judge DeMascio held

that only the excess of non-black over black students in any

given school could be considered available for reassignment

to schools in Regions 1, 5 and 8. The Board’s evidence showed

there were 31 majority white elementary schools in the dis-

trict with 3,397 students available for reassignment. Six middle

schools had 733 students available and one high school had

175. However, the Board’s evidence also showed the black

enrollment in inner-city elementary schools was 38,259 or 11

times the number of whites available for reassignment. The

comparable figures for inner-city middle and high schools were

17,015 and 17,783, or 23 times and 100 times the respective

numbers of white students available for reassignment. 460

F.Supp. at 310. Accordingly, the court found, to disperse these

few available white children among the schools in Regions

1, 5 and 8 would accomplish nothing more than token integra-

tion, a result this court had previously rejected. 460 F. Supp.

at 310, citing 540 F.2d at 239.

The flaw in the district court’s logic was its assumption

that Regions 1, 5 and 8 must be treated as units, and that

integrating schools in these Regions must be an all-or-nothing

proposition. From the outset of this litigation’s post-Milliken

I remedial phase, Judge DeMascio seems to have assumed that

the inner-city regions must be treated in isolation from the

rest of the district. See, ¢e.g., 402 F. Supp. at 1129 (holding

that the negligible benefits of including the inner-city do not

justify “the extraordinary remedy of such cross-regional bus-

sing”). Yet it was exactly this unitary treatment of Regions

1, 5 and 8 that led us to reverse and remand the last time this

case was before us. Citing Davis v. Board of Commissioners of

Mobile County, 402 U.S. 33, 38 (1971), in which the Supreme

16a

16 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

Court refused to permit isolated treatment of one part of

metropolitan Mobile, we found it “equally unacceptable to

treat Regions 1, 5 and 8 in isolation from the rest of the

Detroit school system.” 540 F.2d at 238.

We see no reason to treat the borders of the Detroit school

system's inner-city administration regions as sacrosanct. In

the first place, Detroit's regional scheme of school administra-

tion originated with Act No. 48, Public Laws of 1970, the same

law whose § 12 we found to be an unconstitutional interference

with the Board’s attempts to desegregate Detroit high schools.

Were we to view the Act’s remaining provisions as creating

barriers to constitutionally required desegregation, we would

have to hold them unconstitutional also. United States v.

Scotland Neck Board of Education, 407 U.S. 484, 489 (1972);

Wright v. Council of the City of Emporia, 407 U.S. 451, 461-62

(1972). Furthermore, there is nothing in the Supreme Court's

holding in Milliken 1, supra, 418 U.S. at 745-46, that renders

inviolable the lines of Administrative Regions within the De-

troit School District. Judge Roth’s ruling that the Detroit

Board carried out a systematic program of segregation estab-

lished a predicate for finding a duel school system in all the

regions. See Keyes v. School District No. 1, Denver, Colo.,

413 U.S. 189, 201 (1973). In such a situation, a district court

may disregard the boundaries of administrative regions in

order to vindicate constitutional right. Milliken I, supra,

418 U.S. at 745.2

The district court erred when it held that Regions 1, 5 and

8 must be excluded in their entirety from the pupil reassign-

ment plan. The proper inquiry after this court’s last remand

was not whether there are enough white students available

to desegregate every inner-city school. This court has recog-

2 In fact, Judge DeMascio’s remedial guidelines specified that, when

the Board attempted rezoning to achieve integration in other regions

without transporting students, “regional lines need not be respected;

when the choice is between preserving regional lines and bussing,

regional lines must give way.” 402 F.Supp. at 1134.

17a

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 17

nized from the first that some one race schools are unavoid-

able under a Detroit-only plan. See 540 F.2d at 237; 484 F.2d

at 249. It, therefore, is irrelevant that there are 11 times as

many black students in all the inner-city elementary schools

combined as there are white students available for reassign-

ment. What is crucial is whether those 3,397 white students

can practically be reassigned to achieve effective levels of

desegregation in some of the inner-city schools. That, and

the analogous questions concerning the middle and high

schools, are the issues the district court should have addressed

and is directed to address on remand from this decision. The

small number of white students available for reassignment and

the problems involved in transporting them may justify exclud-

ing some, and perhaps many, inner-city schools from the pupil

reassignment plan. We emphasize that the need to cross

regional lines does not justify such exclusion.’

On remand, the district court should apply substantially its

August 15, 1977, remedial guidelines, 502 F. Supp. 1096, 1134,

supra, but without regard to the boundary lines of administra-

tive regions. White students should be considered available

for reassignment only to the extent exchanging them with

pupils from inner-city schools will not render formerly in-

tegrated schools identifiably (more than 55 per cent) black.

Where practicable, attendance zones should be redrawn across

regional lines to include inner-city pupils in integrated schools.

Where rezoning is impossible, as we anticipate it will be in

3 The decision of the district court to treat the inner-city ay as

units and to exclude them entirely from the reassignment plan dis-

tinguishes this case from Calhoun v. Cook, 522 F.2d 717 (Sth Cir.

1975), rehearing denied, 525 F.2d 1203 (1975). The Calhoun court,

refused, in light of Atlanta’s 85 per cent black student population,

to order further pupil reassignments even though 92 of the system’s

148 schools were over 90 per cent black. However, there is no indi-

cation those 92 identifiably black schools were concentrated in one or

several administrative regions left wholly untounched by the pupil

reassignment plan. Morover, if we were convinced that the F

Circuit permitted Atlanta’s desegregation gy to be limited by intra-

ap oe administrative lines, we would be forced to disagree with

its decision.

18a

18 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

most instances, schools with white students available for re-

assignment should be paired with the closest feasible inner-

city school. In order to achieve effective levels of desegrega-

tion, it may be necessary to pair several white schools with

a single black school. Such pairing should be done with a

view toward minimizing the amount of transportation required.

In some situations, it may be that the small number of white

students available for reassignment from a particular school,

coupled with the distance they would have to be transported

to reach an inner-city school that can be paired with other

white schools, will justify maintaining present assignment

patterns.

We emphasize that this remand is not intended to disrupt

previously approved assignment patterns. As we said the last

time this case was before us, “the steps which [the district

court] has taken thus far appear to us to be consistent with the

fourteenth amendment.” 540 F.2d at 240. The district court’s

error was its failure to apply its remedial guidelines to schools

in all the regions. Doing so may well achieve at least some

additional desegregation, and it is for this purpose that we

are remanding.

Nor are our remand instructions intended to be a straight

jacket on the district court. We recognize that the district

court must balance a variety of individual and collective in-

terests in an effort to arrive at “a plan that promises realistically

to work .. . now.” Green v. County School Board, 391 U.S.

430, 439 (1968). Flexibility is essential to that end.

Our last opinion in this case mirrored our frustration at our

inability to chart a course that would guide the district court

to desegregate the entire school district:

We recognize that it would be appropriate for us at this

point to supply guidelines to the District Judge as to what

he should do under this remand. Omission of such guide-

lines is not based on any failure to consider the problem

in depth. It is based upon the conviction which this court

had at the time of its en banc opinion in this case—and

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Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 19

for the reasons carefully spelled out therein—that gen-

uine constitutional desegregation can not be accomplished

within the school district boundaries of the Detroit School

District.

540 F.2d at 240.

The district court, however, apparently interpreted the

above-quoted comment as a recognition by this court that

effective pupil reassignments cannot be achieved in any of

the schools in the three inner-city regions. See 460 F.Supp.

at 304. Our comment was not so intended and should not be

so read. Although genuine constitutional desegregation. may

be impossible within the Detroit district, this court has the

obligation to see that all practicable steps are taken to remedy

the unconstitutional segregation that has been found to exist.

To that end, the district court’s exclusion of all schools in

Regions 1, 5 and 8 from the pupil reassignment plan is re-

versed and the cause remanded for further consideration in

light of this opinion.

IV

Despite his conclusion that “no more desegregation is fea-

sible in Regions 1, 5 and 8 collectively,” 460 F. Supp. at 307,

Judge DeMascio determined there are white students in Re-

gion 2 available for reassignment to Region 1 schools. 460 F.

Supp. at 311-12. Accordingly, he ordered the Detroit Board

to prepare a supplemental pupil reassignment plan. The

Board argues the district court exceeded its authority by

requiring further reassignments. We reject that argument.

However, we vacate the court’s order and remand the case for

a hearing on the question whether Hispanic students should

be treated as white for desegregation purposes.

The district court found Region 2 is unique among Detroit’s

administrative regions in that it has not experienced much

growth since 1974 in the percentage of its students who are

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20 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

black. Indeed, the court found, some Region 2 schools had

fewer black students in 1977 than in 1974, 460 F. Supp. at

311. Overall, black students accounted for only 62% of the

Region’s 1977 enrollment. Furthermore, fourteen elementary

schools in Region 2 had a total of 2145 white students avail-

able for reassignment. Thus, the court concluded, numbers

alone pose no obstacle to reassigning Region 2 whites to

Region 1 schools. Id.

Judge DeMascio apparently felt the concentration in Region

2 of programs of bilingual education for Spanish dominant

children accounted for the relatively slow growth of the black

enrollment in that Region. We agree with the plaintiffs that

restricting bilingual programs to one region provides His-

panic families not only with neighborhood schools but with

an incentive to concentrate in that region. This artificial con-

centration of Hispanic whites, the district court found, in turn

prevents the natural influx of black families and so contributes

to resegregation of Region 2. 460 F.Supp. at 312. To counter-

act this resegregative trend and to comply with the mandate

of this court that inner-city schools be desegregated, the dis-

trict court ordered the Board to develop a plan for reassign-

ing pupils between schools in Regions 1 and 2.

The Detroit Board advances three reasons the district court’s

order should be overturned. First, the Board says, the Detroit

school system is now unitary and the district court had no

authority to order further reassignments. Second, even if the

system is not yet unitary, reassigning Spanish-dominant stu-

dents to Region 1 schools will disrupt State required bilingual

educational programs while achieving only token integration.

Third, the Board says, Hispanic students cannot be treated

as white for desegregation purposes. We deal with these ar-

guments seriatim.

The Board’s first argument depends on Judge DeMascio’s

holdings that “the school district no longer discriminates

against black students,” and that “its present assignment pat-

2la

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 21

tern is free from the vestiges of prior discrimination.” 460

F. Supp. at 308. The case is threfore controlled by Pasadena

City Board of Education v. Spangler, 427 U.S. 424 (1976), the

Board says. Pasadena held a district court has no authority

to order annual readjustments of attendance zones to compen-

sate for demographic changes that occur after a racially neutral

attendance pattern has been achieved. Since its assignment

plan is racially neutral, the Board says, the district court had

no authority to order further modification.

The short answer to this argument is that a racially neutral

assignment plan does not necessarily achieve a racially neutral

attendance pattern. The Board’s plan is limited by residential

patterns which reflect past discrimination, as well as by dis-

trict lines and transportation problems. As the Supreme Court

recognized in Swann v. Charlotte-Mecklenburg Board of Edu-

cation, supra, 402 U.S. at 28:

The objective is to dismantle the duel school system.

“Racially neutral” assignment plans proposed by school

authorities to a district court may be inadequate; such

plans may fail to counteract the continuing effects of

past school segregation resulting from discriminatory

location of school sites or distortion of school size in order

to achieve or maintain an artificial racial separation. * * °

In short, an assignment plan is not acceptable simply

because it appears to be neutral.

There are now 66,650 students attending schools in Regions

1, 5 and 8. The remedial measures implemented to date afford

none of these students any relief from de jure segregation.

Detroit is still far from achieving a racially neutral attendance

pattern. This is not a Pasadena situation.4 See Adams v.

4In light of our holding that Detroit has not yet achieved a

unitary system, we need not decide whether the concentration of

bilingual programs in Region 2 is having a resegregative effect and,

if so, whether that fact standing alone would empower the district

court to order additional relief. See Dayton Board of Education v.

Brinkman, 433 U.S. 406, 420 (1977) (Dayton I); Washington v. Davis

426 U.S. 229 (1976).

22a

22 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

United States, supra, F.2d ___, slip op. at 36 (the failure

of the St. Louis Board ever to adopt a desegregation plan to

compensate for segregated residential patterns makes Pasa-

dena inapplicable ). :

The Board’s second argument is that reassigning Spanish-

dominant students to Region 1 schools will disrupt bilingual

educational programs while achieving only token integration.

Dr. Felix Valbuena, the Director of Bilingual Education for the

Detroit school district, testified that reassigning Spanish speak-

ing students currently enrolled in Region 2 bilingual programs

would impede the Board’s ability to develop a model program

and train bilingual teachers; produce fear and anxiety for the

students; limit community participation and interest in the

schools; produce shortages of qualified bilingual teachers and

necessary resource materials; and require the Board to adopt

less efficient and effective methods of instruction. In return for

this disrption, the Board says, only 1600 students will be re-

assigned, achieving token integration of only five of the thirty-

one Region 1 schools.

The Board’s concern for the continued viability of its bi-

lingual educational programs is commendable. Circumstances

permitting, we might well agree that the desegregative bene-

fits would not justify the disruption created by reassigning

Spanish dominant students. Circumstances, however, do not so

permit. We agree with the district court that when the choice

is between maintaining optimal conditions in a bilingual educa-

tional program and desegregating all-black schools, desegrega-

tion must prevail. 460 F, Supp. at 312. See Keyes v. Denver

School District No. 1, 521 F.2d 465, 480 (10th Cir. 1975),

cert. denied, 423 U.S. 1066 (1976).

This brings us to the Board’s third argument, that Hispanic

students cannot be reassigned to desegregate identifiably black

schools because such students are themselves minorities. In

support of this argument, the Board cites Keyes v. School Dis-

trict No. 1, Denver, Colo., supra, 413 U.S. 189 (1973).

In the Keyes case, the Supreme Court found the school

23a

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 23

district’s history of discrimination against Hispanic students

justified treating those students as minorities for desegregation

purposes:

We conclude, however, that the District Court erred

in separating Negroes and Hispanos for purposes of de-

fining a “segregated” school. We have held that His-

panos constitute an identifiable class for purposes of the

Fourteenth Amendment. * * * Indeed, the District Court

recognized this in classifying predominantly Hispano

schools as “segregated” schools in their own right. But

there is also much evidence that in the Southwest His-

panos and Negroes have a great many things in common.

The United States Commission on Civil Rights has re-

cently published two Reports on Hispano education in

the Southwest. Focusing on students in the States of

Arizona, California, Colorado, New Mexico, and Texas,

the Commission concluded that Hispanos suffer from the

same educational inequities as Negroes and American

Indians. In fact, the District Court itself recognized

that “[o]ne of the things which the Hispano has in com-

mon with the Negro is economic and cultural deprivation

and discrimination,” 313 F.Supp., at 69. This is agree-

ment that, though of different origins, Negroes and His-

panos in Denver suffer identical discrimination in

threatment when compared with the treatment afforded

Anglo students. In that circumstance, we think peti-

tioners are entitled to have schools with a combined pre-

dominance of Negroes and Hispanos included in the cate-

gory of “segregated” schools.

(Citations and footnotes omitted.) 413 U.S. at 197-98.

Similarly, the Fifth Circuit has treated Hispanic students

as minorities for purposes of school desegregation. See United

States v. Midland Independent School District, 519 F.2d 60,

63-64 (5th Cir. 1975), cert. denied, 424 U.S. 910 (1976); Tasby

v. Estes, 517 F.2d 92, 106-07 (5th Cir.), cert. denied, 423 U.S.

939 (1975) and cases cited therein.

24a

24 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

The common element justifying treatment of Hispanic stu-

dents as minorities in the Keyes, Midland, and Tasby cases

was each school system’s history of de jure segregation of

Hispanos. In Keyes, the Supreme Court found “Negroes and

Hispanos in Denver suffer identical discrimination.” 413 U.S.

at 198. In the Midland case, “the record clearly demon-

strate[d] that the Midland School District deliberately segre-

gated Mexican-Americans from Anglos.” 519 F.2d at 62.

The Tasby court found record evidence “to establish the isola-

tion of Mexican-American students in the [Dallas school sys-

tem] and the [Dallas system’s] practice of ‘integrating’ its

Mexican-American students with black students.” 517 F.2d

at 106. Thus, it appears, in school systems that historically

have discriminated against Hispanic students, those students

must be grouped with blacks rather than whites for desegre-

gation purposes.

Because there is no indication in the record whether, his-

torically, the Detroit school district has discriminated against

Hispanic students, we are unable, on the present appeal, to

affirm Judge DeMascio’s decision that “for school assignment

purposes Spanish-surnamed students cannot be treated dif-

ferently than other white students.” 460 F. Supp. at 312.

On remand, the district court is directed to conduct a hear-

ing on that issue.

Our remand for a hearing on this issue places the case in

an unusual posture. In order for the Board to prevail in its

contention that Hispanic students cannot be treated as white,

it must prove it practiced de jure segregation of such students.

However, doing so would compound the Board’s problems

because grouping Hispanos with blacks might require revision

of the district court’s remedial guidelines and a comprehensive

review of previously approved assignment patterns, at least

in Region 2. This being so, it is possible that the Board may

not continue to assert its present position on remand.

Nor is any other party to the present litigation likely to argue

there has been de jure segregation of Hispanic students. The

25a

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 2

position of plaintiffs in the district court was that concentrating

bilingual programs in Region 2 provides neighborhood schools

which in turn induce Hispanic families to move there. 460

F. Supp. at 312. The plaintiffs urged that this resegregative

effect should be countered by reassigning some Hispanic

students to Region 1 schools. Treating Hispanos as blacks

for desegregation purposes would, of course, preclude such

reassignments since the district court consistently has refused

to reassign blacks to identifiably black schools. Thus, the

plaintiffs have no incentive to argue Hispanos have been the

victims of de jure segregation in Detroit. Similarly, the State

of Michigan defendants, who may well have to share the

Board's liability for remedial costs if the court finds de jure

segregation of Hispanic students, seem unlikely to present

evidence of discrimination.

Because none of the existing parties is likely to argue that

Hispanic students have been victims of de jure segregation

in Detroit, the district court is directed to permit individuals

or organizations representing Detroit's Hispanic community

to intervene in the remand proceedings for the limited purpose

of presenting evidence on this issue. Our opinion in the re-

lated case, No. 78-1598, F.2d (6th Cir. 1980), recog-

nizes the right of LULAC Council No. 11054, and its co-

appellants to intervene in these remand proceedings solely on

the issue of de jure segregation of Hispanos. Should other

individuals or organizations also wish to intervene on behalf

of the Hispanic community, the district court will determine

under Fed. R. Civ. P. 24 whether their interests are adequately

represented by LULAC Council No. 11054 et al.; additional

intervenors need not be permitted unless their participation as

parties will serve some useful purpose. We emphasize here,

as in our opinion in No. 78-1598, that intervention will be

limited to the issue of de jure segregation of Hispanic stu-

dents in the Detroit school system.

Unless the district court finds the defendants discriminated

against Hispanic students, it may treat such students as white

26a

26 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

for desegregation purposes. The court then would be free to

order implementation of its previously approved reassignment

plan for Hispanic students, or any modification thereof found

to be desirable. We suggest, however, that the district court

permit LULAC Council No. 11054 et al. to participate as amici

curiae in developing a reassignment plan that will achieve

the maximum amount of desegregation possible without ne-

glecting the bilingual educational needs of Hispanic students.

Before any additional reassignments are implemented, includ-

ing those contained in the previously approved plan of the

district court for transporting Region 2 students to Region 1,

they should be tested against the August 15, 1975, guidelines

as modified by Part III of this opinion.

Accordingly, the district court’s order directing the Board

to implement additional pupil reassignments in Regions 1 and

2 is vacated. The cause is remanded for a hearing on the

question whether Hispanic students should be treated as white

for desegregation purposes and for other action consistent with

the outcome of that hearing.

V

The final question we must address is whether Judge De-

Mascio erred in declining to recuse himself from the remand

proceedings in this case. We hold he did not err.

Briefly, the plaintiffs argue Judge DeMascio violated 28

U.S.C. § 455(a) and Canon 3A(4) of the Code of Judicial

Conduct by engaging in various ex parte contacts and dis-

cussions with court-appointed experts, community groups and

representatives of the Detroit Board. In an opinion reported

at 426 F. Supp. 929 (E.D. Mich. 1977), Judge DeMascio

denied plaintiffs’ motion for recusal.

28 U.S.C. § 455(a), as amended,5 provides:

5 Section 455 was amended by the Act of December 5, 1974, Pub. L.

No. 93-512, 88 Stat. 1609. Section 1 of that Act substituted the

present subsection (a) for the former version which read:

27a

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 27

§ 455. Disqualification of justice, judge, magistrate, or

referee in bankruptcy

(a) Any justice, judge, magistrate, or referee in bank-

ruptcy of the United States shall disqualify himself in

any proceeding in which his impartiality might reason-

ably be questioned.

The plaintiffs complain that Judge DeMascio created the

appearance of partiality by meeting ex parte with the Detroit

Board's representatives on August 15, 1975, even before plain-

tiffs’ counsel had received a copy of the court's just filed re-

medial guidelines, to discuss an impending teachers’ strike.

“Any justice or judge of the United States shall disqualify him-

self in any case in which he has a substantial interest, has

been of counsel, is or has been a material witness, or is so

related to or connected with any party or his attorney as to

render it improper, in his opinion, for him to sit on the trial,

appeal, or other proceeding therein.”

There is agreement among the courts that the purpose of the

amendment was to change the standard for recusal from a subjective

to an objective one, as well as*‘to overrule the prior concept that close

cases involving yr i egy should be resolved against recusal on

ere the judge has a duty to sit. See e.g., United States v.

C n, 545 F.2d 257 (1st Cir. 1976), cert. denied 430 U.S. 909

(1977); Davis v. Board of School Commissioners of Mobile County, 517

F.2d 1044 (5th Cir. 1975), cert. denied, 425 U.S. 944 (1976).

There is a split among the circuits, however, as to whether the

amended version of § (a), with its objective standard, applies to

post amendment proceedings in cases, such as this one, filed before the

amendment’s effective date. Section 3 of the amending act provided

the amended version “shall not apply to the trial of any proceeding

commenced prior to [Dec. 5, 1974). nor to appellate review of any pro-

ceeding which was fully submitted to the reviewing court prior to

[that date].” The Fourth and Eighth Circuits have held the amended

version inapplicable to post amendment pr ings in cases filed

before December 5, 1974. In re Virginia Electric & Power Co., 539

F.2d 357 (4th Cir. 1976); United States v. Dodge, 538 F.2d 770 (8th

Cir. 1976), cert. denied, 429 U.S. 1099 (1977). The Fifth Circuit has

disagreed. Potashnick v, Port City Construction Co., F.2d ‘

48 U.S.L.W. 2490 (5th Cir. Jan. 15, 1980); Parrish v. Board of Com-

missioners of Alabama State Bar, 524 F.2d 98 (5th Cir. wag (en

banc), cert. denied, 425 U.S. 944 (1977). Judge DeMascio held the

amended version of § 455 (a) inapplicable in the present case. 426

F.Supp. at 932.

Because we think the actions of Judge DeMascio do not require

recusal even under the section as amended, we need not decide which

version applies to this case. Rather, we assume for purposes of this

decision that the amended version of the statute applies.

28a

28 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

The plaintiffs also argue Judge DeMascio engaged in what

they term “negotiations” with the Board in developing a de-

segregation plan, a process from which they were excluded.

Judge DeMascio’s opinion denying recusal discusses these

complaints and his underlying actions in detail, and we need

not recount them here.. See 426 F. Supp. at 935-39. He

characterized the incidents of which plaintiffs complain as

“judicial activities designed to ensure a community climate

receptive to the court's orders.” 426 F. Supp. at 939. The

so-called negotiation process was designed “to avoid the for-

mality of an order,” he said. Id. Concluding that his actions

were “well within [his] discretion and based on substantial

precedent,” Judge DeMascio held § 455(a) did not require

recusal. Id.

We agree. Although perhaps a bit unorthodox, Judge De-

Mascio’s actions appear to us to have been judicial activities.

To make out a case for recusal under § 455(a), a movant must

rely on extra-judicial conduct rather than matters arising in a

judicial context. Davis v. Board of School Commissioners of

Mobile County, supra, 517 F.2d at 1052 (construing amended

§ 455(a) in pari materia with 28 U.S.C. § 144, the other federal

disqualification statute). See United States v. Grinnell Corp.,

384 U.S. 563, 583 (1966); Berger v. United States, 255 U.S.

21, 31 (1921). Accordingly, we affirm Judge DeMascio’s de-

cision that recusal was not required.

The plaintiffs also complain that Judge DeMascio’s conduct

violated Canon 3A(4) of the Code of Judicial Conduct:

(4) A judge should accord to every person who is legally

interested in a proceeding, or his lawyer, full right

to be heard according to law, and, except as author-

ized by law, neither initiate nor consider ex-parte

or other communications concerning a pending or

impending proceeding. A judge, however, may ob-

tain the advice of a disinterested expert on the law

applicable to a proceeding vefore him if he gives

notice to the parties of the person consulted and the

29a

Nos. 78-1597, etc. Bradley, et al. v. Milliken, et al., etc. 29

substance of the advice, and affords the parties rea-

‘sonable opportunity to respond.

In addition to his previously described meeting with Board

representatives and “negotiations” over the Board’s proposed

desegregation plans, the plaintiffs argue, Judge DeMascio’s

use of experts violated Canon 3A(4). By order of April 15,

1975, Judge DeMascio appointed three educators as experts to

assist him in gathering background information, soliciting the

views of community groups and educators, and evaluating the

Educational Components of the Board’s remedial plan. The

plaintiffs do not question the court’s authority to utilize ex-

perts. Rather, they complain the court’s experts did not file

reports of record and were never subject to cross-examina-

tion, but submitted their views ex parte.

We do not believe Judge DeMascio’s use of experts, or his

receipt through them of community and expert views on how

best to approach the problems of desegregating Detroit schools,

required recusal. We are concerned with the plaintiffs’ charge

that the reports of these experts were not placed in the record

nor made available to the parties. Accordingly, we expressly

direct that if any experts are employed to advise the district

court on any further matters in this litigation, they shall pre-

pare written reports, copies of which shall become part of

the record and shall be made available to all parties or their

attorneys.

The remedial phase of this litigation has been protracted and

arduous. We recognized in a previous opinion that “District

Judge DeMascio was faced with an extremely difficult (if not

impossible) assignment, confronted as he was with the re-

sponsibility of formulating a decree which would eliminate

the unconstitutional segregation found to exist in the Detroit

public schools, without transgressing the limits established

by the Supreme Court.” 540 F.2d at 236. Our review of

Judge DeMascio’s various opinions and orders inclines us not

to disagree with District Judge James P. Churchill’s assess-

30a

30 Bradley, et al. v. Milliken, et al., etc. Nos. 78-1597, etc.

ment® of Judge DeMascio’s conduct in these remedial pro-

ceedings:

It is my opinion that the manner in which Judge Robert

E. DeMascio has presided in this case has been ex-

emplary and should command the respect of the parties,

counsel, the judiciary, and the public.

426 F.Supp. at 944.

However, in view of the public interest in the instant school

desegregation case, the challenge raised by the plaintiffs, and

the bitter feelings that have developed, this court suggests

that, on remand, the Chief Judge of the District Court for

the Eastern District of Michigan reassign this case either to

himself or to another appropriate judge.

VI

It was indicated during oral argument that plaintiffs intend

to proceed with their efforts to establish, within the guide-

lines enunciated by the Supreme Court in Milliken v. Bradley,

418 U.S. 717, 744-47 (1974) (Milliken 1), a basis for a metro-

politan remedy. See 540 F.2d at 240; 411 F. Supp. at 937.

Our limited affirmances in Bradley v. Milliken, 540 F.2d 229

(6th Cir. 1976) and the present appeal are without prejudice

to the district court’s obligation to proceed with the inter-

district litigation, if pursued by the plaintiffs.

On remand, the district court will be empowered to make

further alterations in its previously approved remedial plans,

as the evidence may require.

The case is remanded to the district court for further pro-

ceedings not inconsistent with this opinion and our previous

opinion reported at 540 F.2d 229. No costs are taxed. Each

party will bear its own costs on this appeal.

6 Judge Churchill’s comment is taken from his opinion holding, on

a question referred to him by the Chief Judge of the district, that

a DeMascio’s conduct had not created the appearance of par-

tiality and so did not require recusal in regard to faculty assignments.

3la

Office of the Clerk

UNITED STATES COURT OF APPEALS

For the Sixth Circuit

Cincinnati, Ohio 45202

John P. Hehman, Clerk

April 14, 1980

Mr. Louis R. Lucas

General Counsel

Mr. Kenneth L. Penegar

Mr. Frank J. Kelley

Mr. George T. Roumell

Mr. Theodore Sachs

Mr. Thomas Atkins

RE: Case Nos. 79-1005 & 79-1597

Ronald Bradley and Richard Bradley, by their

mother and next friend, Verda Bradley; Jeanne

Goings, by her mother and next friend, Blanche

Goings; Beverly Love, Jimmy Love and Derrell

Love, by their mother and next friend Clarrisa

*® Love; Camille Burden; Pierre Burden; Ava

Burden; Leah Maddox; Joseph Molnar by his

next friend Rose Molnar; and Ann J. Smith,

Plaintiffs-Cross Appellants,

v. William J. Milliken, Governor of Michigan,

et al, Defendants-Cross Appellees.

Dist. Ct. No. 35257

Dear Counsel:

The Court today announced its decision in the above-

entitled case.

32a

A copy of the Court’s opinion is enclosed, and a judgment »*

in conformity with the opinion has been entered today as

required by Rule 36, Federal Rules of Appellate Procedure.

Each party will bear its own costs on this appeal.

Very truly yours,

John P. Hehman, Clerk

By Betty Tibbles /s/

(Mrs.) Betty Tibbles

Deputy Clerk