Petition — DETROIT BOARD BOARD OF EDUCATION v. MILLIKEN (Nos. 80-48, 80-31, 80-104)

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SUPREME COURT OF THE UNI

OCTOBER TERM, 1980°°"*"""*

BOARD OF EDUCATION OF THE SCHOOL DISTRICT

OF THE CITY OF DETROIT, MICHIGAN, et al,

Petitioners,

VS.

WILLIAM G. MILLIKEN, Governor of the State of

Michigan, et al,

Respondents,

and

RONALD BRADLEY, et al,

Respondents,

and

LULAC COUNCIL No. 11054, et al,

Intervenors-Respondents.

' PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

George T. Roumell, Jr.

Thomas M. J. Hathaway

Samuel E. McCargo

Of Counsel

RILEY AND ROUMELL

7th Floor Ford Building

Detroit, Michigan 48226

(313) 962-8255

Counsel for the Board of Edu-

cation of the School District of

the City of Detroit, a school

district of the first class; Patrick

McDonald, James Hathaway

and Cornelius Golightly, former

Members of the Board of Edu-

cation of the City of Detroit

and Norman Drachler, former

Superintendent of the Detroit

Public Schools

PEC OEE TS ES, OT SE OR EE EMRE

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

ADDITIONAL PARTIES

PATRICK McDONALD, JAMES HATHAWAY and

CORNELIUS GOLIGHTLY, former members of the

Board of Education of the City of Detroit; and NORMAN

DRACHLER, former Superintendent of the Detroit

Public Schools,

Petitioners,

FRANK J. KELLEY, Attorney General of the State of

Michigan; MICHIGAN STATE BOARD OF EDUCA-

TION, a constitutional body corporate; JOHN W.

PORTER, Acting Superintendent of Public Instruction,

Department of Education and ex-officio Chairman of

Michigan State Board of Education;

Respondents,

-and-

RICHARD BRADLEY, by his Mother and Next Friend,

VERDA BRADLEY; JEANNE GOINGS, by her Mother

and Next Friend, BLANCHE 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 BURDEN,

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. WILBER BLAKE, parents; all parents having chil-

dren 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 persons similarly

situated; and NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, DETROIT

BRANCH,

Respondents,

-and-

LULAC COUNCIL NO. 11054, et al,

Intervenors-Respondents.

QUESTIONS PRESENTED

1. May a federal court validly require a predominantly

black school system to continuously adjust the racial compo-

sition of student bodies to compensate for population shifts

and changes which are wholly beyond their cause and

control?

2. Does the constitution require, in order to desegregate

a predominantly black school system, the restructuring of the

entire demography of a city by transporting every mathemati-

cally available while student to achieve certain racial ratios

in inner-city schools thereby rendering all schools in the system

predominantly black?

3. Does the constitution require, to desegregate a pre-

dominantly black school system with some one-race schools,

the implementation of a system-wide rigid racial balance bus-

ing program premised upon compensating for black residential

patterns existing in the city and designed to last as long as the

residential patterns exist?

4. At what point in time does a school desegregation case

for a predominantly black school system terminate?

5. In order for a school board to prevail in its contention

that Hispanic students, enrolled in bilingual programs, should

not be treated as “white” students for school desegregation

transportation purposes, must it first be established that the

school board practiced de jure segregation of such students?

Ill.

TABLE OF CONTENTS

Page

OUR Ee PITTED si dsecc ccc etcecsecces I

pes s.r ee rrr 1m

py Rs Be gg > oh ER ere ee VI

I. OPINIONS BELOW ............. Bryne POR Me 2

II. JURISDICTION ......... hate meee whe keraes 3

III. CONSTITUTIONAL PROVISIONS AND STAT-

py eR ee eer aes ere 3

Iv. STATEMENT OF THE CASE .................. 3

By TE TAs GN ikon es ek cececonscess 3

B. Present Status Of Litigation ................. 5

V. REASONS FOR GRANTING THE WRIT ........ 11

A. The Sixth Circuit Definition Of Desegrega-

tion In A Predominantly Black School System

Is In Conflict With The Fourth And Fifth

Circuits And This Court’s Holding In Pasadena . .

B. The Court Of Appeals Abused Its Discretion

By Ignoring The Mandates Of This Court Re-

garding Judicial Review Of Desegregation

Plans Which Have Yielded Present Neutral

Assignment Patterns And Policies ...........

C. The Sixth Circuit Erred By Ignoring This

Court’s Express Approval Of The Avoidance

Of Disturbing Naturally Integrated Neigh-

borhoods In The Absence Of A Reasonable

Assurance Of More Meaningful Desegregation ..

D. The Court Of Appeals Erred By Adopting

A Novel Theory Of Desegregation: Token

Integration By Trial And Error ............. 23

E. The Sixth Circuit’s Transformation Of This

Litigation Into A Housing Discrimination

Case Is Contrary To The Law Of The Case .... 25

F. The Sixth Circuit Erred By Improperly Order-

ing A Hearing To Determine The Racial

Classification Of Hispanics .................. 28

ak MEN GO o se Ba 52% iss Ob ke is Bk oo 30

INDEX TO APPENDIX

Page

Opinion of the U.S. Court of Appeals for the Sixth

On ee ee a en ee eee la-35a

Opinion and Order of the District Court on Student

Reassignment of August 7, 1978 [460 F Supp 299] .. 36a-78a

Amended Judgment of District Court, Dated Novem-

ber 17, 1978 [460 F Supp 325] .................. 79a-80a

Ruling on Issue of Segregation by District Court,

Dated September 27, 1971 [338 F Supp 582] .... 8la-104a

Judgment and Mandate of the U.S. Court of Appeals

for the Sixth Circuit for Case Nos. 78-1597; 79-

ey RE ME sib bree dsch Cie sdnniss 105a

Judgment and Mandate of U.S. Court of Appeals for

the Sixth Circuit for Case No. 78-1598, Dated May

a Chtircae ah. ik id iS cae Atk bean xs 106a-107a

General Superintendent’s Affidavit In Support of

Emergency Application For Stay ............ 108a-112a

Detroit Board Trial Exhibit H [Map of Percent Black

Elementary Enrollment Without Transportation,

EE koto endcecditin en titer ees ok 113a

Detroit Board Trial Exhibit I [Map of Percent Black

Elementary Enrollment By Resident Population,

pT Wie ECE oe NE, RON 1l4a

Detroit Board Trial Exhibit J [Map of Percent Black

Elementary Enrollment By Resident Population,

re EER I NO Ree ae Bie ONO 115a

Detroit Board Trial Exhibit K [Map of Percent Black

Elementary Enrollment Including Transportation,

ee REE as pt Pe EA TON eA TR 116a

Map of Percent Black Elementary Enrollment With-

Pre Per ee ee 117a

Map of Percent Black Elementary Enrollment In-

cluding Transportation, 1978 ...................... 118a

Map of Percent Black Elementary Enrollment With-

ee Bere ree ere 119a

Map of Percent Black Elementary Enrollment In-

cluding Transportation, 1979 ...................... 120a

Regional Map of Detroit School District .............. 12la

Detroit Board Trial Exhibit M [Total Elementary

Black Students in Regions 1, 5 and 8 as of Febru-

Oe, TREE: > ix Miwinityawcsa dicen cee weabebeenee a 123a

Detroit Board Trial Exhibit O [Racial Membership

for Grades 1-5 for all Schools less than 50 Percent

Back os of Pametinny, BOVE) oo .c i. ws. eevee. 124a-125a

Detroit Board Trial Exhibits P/Q [Percent Black

Students in High Schools and Middle Schools —

SUG, Bee WEEE wh cess inv geah coals ees 126a-129a

Vi.

TABLE OF AUTHORITIES

Federal Cases: Page

Alexander v. Holmes County Board of Education, 396

0 EIRP Te ee ne er Fee 27

Board of Education for the City of Valdosta, Ga. v.

U.S., 439 U.S. 1007, reh den, 439 U.S. 1135 (1978) .... 22

Booker v. Special School District No. 1, 585 F.2d 347

OE See IRR eres arent fre 28

Bradley v. Milliken, 338 F.Supp. 582 (ED Mich

RR SEY in Se a ee 7, 8, 17

Bradley v. Milliken, 402 F.Supp. 1096 (ED Mich

BAER er rey Perey reer 4, 7, 8, 22, 24

Bradley v. Milliken, 411 F.Supp. 943 (ED Mich

BR eet ga eae om urea 4, 18, 24

Bradley v. Milliken, 460 F.Supp. 299 (ED Mich

ME hat cden ete vw ke es aes 5, 6, 7, 8, 9, 10, 11, 21, 22

Bradley v. Milliken, 460 F.Supp. 325 (ED Mich 1978) .. 6

Bradley v. Milliken, 484 F.2d 215 (CA 6 1973) ........ 2

Bradley v. Milliken, 540 F.2d 229 (CA 6

A a Pe er a 5, 9, 18, 23, 24, 25

Bradley v. Milliken, —— F.2d —— (CA 6

RE aa patie cee an oEhesoa whe ke wes 13, 20, 21, 22, 25

Bradley v. School Board of the City of Richmond,

462 F.2d 1058 (CA 4 1972), affd, 412 US. 92

NR SUE aaa 5 Wh Vin KBAR Ge Hhk bd aCe NAD WA 14-15, 24

Brown v. Board of Education, 349 U.S. 294 (1955) .... 23

Calhoun v. Cook, 522 F.2d 717 (CA 5 1975), reh den,

525 F.2d 12038 (CA 5 1975) .... cece eee 14, 24, 26

Page

Columbus Board of Education v. Penick, 439 U.S. 1348

CD ks: aba scape denice ola ue 0a as he eee a ke we 26

Davis v. Board of School Commissions of Mobile Co.,

A He BOO CG WUD os os Sod ope bees peed ens 25

Dayton Board of Education v. Brinkman, 433 U.S.

ee PET. 04 bb eGav eh kta nate ee cacueives 4s 18, 25, 26

Estes v. Metropolitan Branches of Dallas NAACP, 48

RB eee CEN) hie eA R hat ves caches ens 22

Evans v. Buchanan, 416 F.Supp. 328 (D Del 1976) ...... 29

Fisher v. Dist. Court, 424 U.S. 382 (1976) .............. 28

Green v. School Board of New Kent County, 391 U.S.

Gs Bere err ris ot Peer oe err 18, 19

Keyes v. School District No. 1, 413 U.S. 189

0 MERE Ae Rt CORP Na LATS ys 19, 28, 29

Lee v. Eufaula City Board of Education, 573 F.2d 229

ce SR | ay ere be eager p rae ae ear 21, 26

Mannings v. Board of Pub Instruction of Hillsborough

Co. Fla., 427 F.2d 874 (CA 5 1970) ............005. 25

Milliken v. Bradley, 418 U.S. 717

PRS 558i ta pe n'ceetretinn ene eae she 2, 3, 4, 17, 20, 26

SN 8 Cas seid sol ARR Rae eee passim

Milliken v. Bradley, 433 U.S. 267

PRR ae iid wkind oxtineenees 2, 3, 5, 18, 19, 21, 23, 27

ORO Ets Peery OE ree Puce ee re passim

Moe v. Confederated Tribes, 425 U.S. 463 (1976) ...... 28

Morgan v. Kerrigan, 401 F.Supp. 216 (D Mass 1975),

affd, 530 F.2d 401 (CA 1) cert denied sub nom,

White v. Morgan, 426 U.S. 935 (1976) .............. 29

Morgan v. McDonough, 540 F.2d 527 (CA 1 1976) .... 18

VII.

Page

Morton v. Mancari, 417 U.S. 535 (1974) «0... 60. cece ee 28

Northcross v. Board of Education of Memphis City

Schools, 489 F.2d 15 (CA 6 1973) ....... cee ee eeee 24

Northcross v. Board of Education of Memphis, 397 U.S.

Se BEE 8s 04 cabs bade deeaee mck ean yaa cae tar 27

Pasadena City Board of Education v. Spangler, 427 U.S.

NE OT is cok bisa cpvass Commuters 11, 18, 19, 25, 26

Quality Education For All Child, Inc. v. School Board

et. al. Ill., 385 F.Supp. 803 (DC Ill 1974) ............ 25

School District of Omaha v. U.S., 433 U.S. 667

CREE, Ss aita 0.04 ude be ence ea eke aads va Ane 18, 26

South Park Independent School District v. U.S., 439

U.S. 1007, reh den, 439 U.S. 1135 (1978) ........ 22, 26

Swann v. Charlotte-Mecklenburg Board of Education,

ete Se | eR ene tee nis ey 18, 25, 27

United States v. Antelope, 430 U.S. 641 (1977) ......... 28

Washington v. Davis, 426 U.S. 299 (1976) .............. 18

Constitutions:

Se ee ON, re Oh ee cca we saeeubns 3

Federal Statutes:

Ee os ake uhewwhGAucs enandcnvakcouennt 3

28 USC §§ 13931(a), 1343(3), (4) ....... ccc cece cece 4

42 USC $§ 1063, 1068, 000d ..... ccc cee ccc eeccees 4

Miscellaneous:

Deputy Superintendent’s Office, Richmond Public

RE 6 Sick «sas RNs este k pha de Ae Le ee 15

Office of Budget and Management, Atlanta Public

SNE 5657 Sic op be da alee ceed ae Rey hee owe ste 14

No.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

BOARD OF EDUCATION OF THE SCHOOL DISTRICT

OF THE CITY OF DETROIT, MICHIGAN, et al,

Petitioners,

vs.

WILLIAM G. MILLIKEN, Governor of the State of

Michigan, et al,

Respondents,

and

RONALD BRADLEY, et al,

Respondents,

and

LULAC COUNCIL No. 11054, et al,

Intervenors-Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners, Board of Education of the School District of the

City of Detroit, [Detroit Board] and other named Detroit

Board petitioners respectfully pray that a Writ of Certiorari

issue to review the decision rendered in this cause on April

14, 1980, by the United States Court of Appeals for the Sixth

Circuit.° -

* A list of all parties to the proceeding in the Court is contained in

the caption of the case in this Court.

I. OPINIONS BELOW

The decision of the United States Court of Appeals for

the Sixth Circuit, decided and entered on April 14, 1980, is

as yet unreported and appears in the Appendix at la, et seq’.

That decision reversed and remanded the August 15, 1978

Opinion and Order and the November 17, 1978 Amended

Judgment of the U.S. District Court for the Eastern District

of Michigan, Southern Division, which is reported at 460 F.

Supp. 299 (ED Mich 1978), and appears in the Appendix at

page 36a, et seq? and at 460 F.Supp. 325 (ED Mich 1978),

and appears in the Appendix at page 79a, et seq.

Previous opinions and orders of the District Court include

the original Ruling on Issue of Segregation by the District

Court, dated September 27, 1971, which is reported at 338

F.Supp. 582 (ED Mich 1971) and appears in the Appendix

at page 8la, et seq; the Memorandum Opinion and Remedial

Decree and Partial Judgment and Order of the District Court

dated August 15, 1975 which is reported at 402 F.Supp. 1096

(ED Mich 1975); the Memorandum and Order of the Dis-

trict Court dated November 4, 1975 ordering the imple-

mentation of the pupil reassignment plan, which is reported at

411 F.Supp. 943 (ED Mich 1975); and, an Opinion of the

District Court denying recusal which is reported at 426 F.

Supp. 929 (ED Mich 1977).

Two previous opinions of this Court in Milliken v. Bradley

are reported at 418 U.S. 717 (1974) (Milliken 1), 433 US.

267, (1977) (Milliken II).

Two relevant previous opinions of the Sixth Circuit in

Bradley v. Milliken are reported at 484 F.2d 215 (CA 6 1973),

reversed by Milliken I; and 540 F.2d 229 (CA 6 1976), af-

firmed, Milliken II.

' References to the Sixth Circuit’s opinion, as reprinted in the Ap-

pendix to this Petition, are made as follows: [CA la, et seq].

2 References to the District Court opinion are made as follows: [DC

4la, et seq].

II. JURISDICTION

The Opinion of the United States Court of Appeals for the

Sixth Circuit was entered on April 14, 1980. This Petition

for Writ of Certiorari was timely filed within 90 days there-

after. The District Court’s jurisdiction in this action arose,

inter alia, through the Fourteenth Amendment to the United

States Constitution.

This Court’s jurisdiction arises under 28 U.S.C. § 1254(1).

Ill. CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The relevant Constitutional provision is United States Con-

stitution, Amendment XIV, Section 1:

“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 juris-

diction the equal protection of the laws.”

IV. STATEMENT OF THE CASE

A. History Of Litigation

This matter has been before this Court on two previous

occasions.*. The history of this litigation during the period

from its inception on August 18, 1970 until the decision ren-

3 Milliken v. Bradley, (Milliken 1) 418 U.S. 717 (1974) and Milliken

v. Bradley, (Milliken I1), 433 U.S. 267 (1977).

dered by this Court on July 25, 1974 is set forth in Milliken

v. Bradley (Milliken 1), 418 U.S. 717, 722-736 (1974).*

On remand from Milliken I, the case was reassigned to the

Honorable Robert E. DeMascio, United States District Judge,

replacing the previous Court ,the late Judge Stephen J. Roth.

Judge DeMascio promptly ordered both Petitioner Detroit

Board and Respondents Bradley, et al to submit desegregation

plans limited to the Detroit school system and conducted

evidentiary hearings which commenced April 29, 1975 and

ended on June 16, 1975 consumming 32 trial days.

On August 15, 1975, the District Court issued its Memor-

andum Opinion and Remedial Decree and Partial Judgment

and Order. Bradley v. Milliken, 402 F.Supp. 1096 (ED

Mich 1975).

The Opinion rejected both the Petitioner Detroit Board

plan and the Plaintiffs’ plan as submitted and required Peti-

tioner Detroit Board to develop and implement a revised

pupil reassignment plan along with certain court-ordered

educational components consistent with the remedial guide-

lines provided. Bradley, supra, at 1132-1145. Thereafter,

subsequent to further revision and re-evaluation, an October

21, 1975 revised Detroit Board pupil reassignment plan was

ordered implemented by the Court in its November 4, 1975

Memorandum and Order. Bradley v. Milliken, 411 F.Supp.

945 (ED Mich 1975).

By Memorandum, Order and Judgment of May 11, 1976,

the District Court required Petitioner Detroit Board and the

Respondent State Defendants to implement all facets of the

desegregation plan, including the previously defined educa-

tional component programs, commencing with the 1976-77

school term with the State Defendants sharing the “excess

4 The jurisdiction of the Trial Court was invoked originally under

28 U.S.C. §§ 1331(a), 1343(3), (4) being an equity suit alleged to

be authorized by 42 U.S.C. §§ 1983, 1988 and 2000d to redress

deprivation under state law of rights guaranteed by the Thirteenth and

Fourteenth Amendments to the United States Constitution.

cost” incurred in the implementation of the educational com-

ponents.

All parties appealed various aspects of the May 11, 1976

Judgment. On appeal, the Sixth Circuit Court affirmed the

District Court’s Order concerning the implementation of and

the cost sharing for the remedial educational components

and affirmed the judgment of the District Court on the issue

of pupil reassignment in the areas other than Regions 1, 5 and

8 on which issue it remanded the cause for the trial court to

make further alterations in the pupil transportation compon-

ent of the desegregation plan. Bradley v. Milliken, 540 F.2d

229, 237-240 (CA 6 1976).

The State Defendants were the only party to seek review of

the opinion of the Sixth Circuit. The State Defendants chal-

lenged that portion of the Sixth Circuit Opinion affirming

the District Court’s comprehensive remedial order dealing

with the implementation of the educational components and

the state’s obligation to defray certain costs incident thereto.

This Court affirmed the opinion of the District Court and

the Sixth Circuit Court on that issue. Milliken v. Bradley,

( Milliken I1), 433 U.S. 267 (1977). The pupil reassignment

remand issue regarding the exclusion from the transportation

component of the plan of schools in Regions 1, 5 and 8 was

not appealed.

B. Present Status Of Litigation

Pursuant to the Sixth Circuit requirement for remand

hearings on the issue of additional pupil reassignments, the

District Court ordered Petitioner Detroit Board to show cause

why it should not be compelled to inc!yde schools in Regions

1, 5 and 8 in the pupil reassignment component of the de-

segregation plan. On August 7, 1978, the District Court

issued its Opinion and Order dealing with, inter alig, the

propriety of including schools in Regions 1, 5 and 8 in the

pupil reassignment component. Bradley v. Milliken, 460 F.

Supp. 299 (ED Mich 1978); [DC 36a-78a].

The August 7, 1978 Opinion reaffirmed the District Court's

prior conclusion in 1975 that the Detroit school system should

not be desegregated by implementing a pupil transportation

plan which resulted in making the school system more

identifiably black while leaving many of its schools 75-90

percent black. Bradley, supra, at 303-305, 309-310; [DC 40a-

44a, 53a-54a].

The District Court held that the unrebutted proofs demon-

strated that the remaining majority one-race schools in the

system were not the result of present or past acts of racial

discrimination by the Defendants and that the effects of past

acts of discrimination as to pupil assignments in the system

had been obliterated. Bradley, supra, at 307, 308; [49a-5la].

The existing racial imbalance in the system was not found

to be a resulting vestige of any intentional segregative act or

acts on the part of Defendants.

Based upon these findings, the District Court held that in

light of the present racial ratios in the vast majority of the

schools, the predominance of black students in the school

district as a whole and the accelerated population shifts, no

more pupil transportation was feasible in Regions 1, 5 and 8

collectively. Bradley, supra, at 307; [DC 49a].5

5 However, after having found that the Detroit Board had satisfied

its burden of showing that the remaining one-race schools were not

the current vestiges of prior unconstitutional acts, the District Court

determined that it would be mathematically possible to exchange stu-

dents between the few majority white schools remaining in Region 2

with a few of the predominantly black schools in Region 1 and thus

ordered that the Detroit Board submit a plan for additional pupil

reassignments. Bradley, supra at 311-312; [DC 56a-59a]. Regional

School Map 12la, 116a.

On November 17, 1978, the District Court entered its Amended

Judgment of the May 11, 1976 Judgment, requiring the Detroit Board

to implement additional pupil reassignment involving the transporta-

tion of between 1,600 to 1,900 additional students as a result of

boundary changes and school closings. Bradley v. Milliken, 460 F.Supp.

325 (ED Mich 1978); [DC 79a-80a].

In 1978 at the time of the Opinion and Amended Judgment,

the enrollment of the Detroit school district was estimated

to be 218,110 students, of which 184,230 were black students.

In 1979, there were approximately 216,000 students with a

racial composition of 182,214 black students and 29,165 white

students or approximately 85% black and 13% white enrollment.

[108a].

By contrast, in 1970-71 when this lawsuit was instituted,

there were 289,743 stuc :nts enrolled of which 184,194 or

63.6% were black students. Bradley v. Milliken, 338 F.Supp.

582, 585 (ED Mich 1971); [DC 84a-85a]. In the school year

1974-75, immediately prior to the desegregation order, there

were 257,396 students enrolled of which 184,118 or 71.5%

were black students with 26.4% white students. Bradley v.

Milliken, 402 F.Supp. 1096, 1106 (ED Mich 1975).

Thus, in the ten years this matter has been in litigation,

there has been an increase in the percentage black student

enrollment in the Detroit school system of approximately 22

percent, along with a corresponding decrease in enrollment

of over 73,000.

This black racial percentage change has accelerated beyond

District Court projections made in 1971 and 1975. See,

Bradley, 338 F.Supp. at 585; Bradley, 402 F.Supp. at 1137;

and, Bradley, 460 F.Supp. at 305. There has been a cor-

responding decline in the percentage white student enrollment

of approximately 21.8%,

Between the years 1971-76, the total student enrollment

declined at a rate of approximately 10,000 students per year,

while the number of black students remained fairly consistent

at approximately 185,000 students. The yearly decline of

10,000 students has occurred primarily due to the fewer white

live births in the City each year and a lower school retention

rate for white students who entered the Detroit Public Schools.

Bradley v. Milliken, 460 F.Supp. at 305-306; [DC 45a-47a].

As a consequence of the declining student enrollment, black

students as a percent of total enrollment have increased at

the rate of approximately 2% per year with a corresponding

’ >.

2% decrease in w.ite student population. Bradley v. Milliken,

402 F.Supp. at 1107. More recently, between 1974-78, black

enrollment as a percentage of total enrollment increased from

71.6% to 84.5% or an average of 3.22% per year. These pro-

nounced percentage black student enrollment increases were

evident throughout the breadth of the entire school system.

Superintendent's Affidavit 108a-109a; Compare Residential

Maps 113a, 1l4a, 115a, 117a, and 119a. This trend is inde-

pendent of student assignments. Bradley, 460 F.Supp. at

306; [DC 46a].

This increase in percentage black student enrollment is

projected to stand at 89.6% black by the 1980-81 school term

and 91.8% black by the 1981-82 school term. Bradley, 460

F.Supp. at 305; [DC 44a]. Compare Bradley, 338 F.Supp.

at 585; [DC 135a], with the original 1980-81 projection with

a 80.7% black enrollment.

This continuing rise in the percentage black student en-

rollment occurs within the context of the City of Detroit

population which peaked in 1950 and has been steadily declin-

ing since then at the rate of approximately 169,500 per

decade. Bradley, 338 F.Supp. at 585; [DC 84a]; Bradley,

402 F.Supp. at 1106.

Within the context of a declining general city population

and declining overall student enrollment, enrollment in those

schools involved in the pupil reassignment plan in Regions

2, 3, 4, 6, and 7 has reflected an increase of 5,263 black stu-

dents due to families moving into these Regions of the system

and a decrease of 3,393 white students due to the movement

out of white families. Thus, while in 1975, before the imple-

mentation of the desegregation plan, the schools now involved

in the reassignment plan averaged 45.2% black enrollment, as

of February, 1977 those same schools averaged 55.4% black

enrollment.

By February, 1977, the majority of elementary schools

emanting from the inner city, in all directions, were 55%

or more black by resident population. Region Map 115a, 117a.

Eighteen adjacent attendance areas had become 30-55% resi-

dent black and only 39 attendance areas in the entire system

were under 30% black by resident student population. Bradley,

460 F.Supp. at 306; [DC 47a].

After February, 1977, under the current pupil reassignment

plan, there were only six schools in the entire system which

were under 30% black enrollment. Each of the six schools

was conducting a bi-lingual program for a substantial group

of non-English speaking students. Therefore, while the school

may be under 30% black student enrollment, it may not con-

versely be said that those schools are composed of 70% “white”

students due to the ethnic groups involved in the bi-lingual

programs. Regional Map 118a, 120a 124a-125a.°

Large numbers of resident black students are evident even

in schools located at the City’s boundaries, reflecting the

significant increases in black student enrollment throughout

the system as a whole occurring since 1969. Mixed resi-

dential areas may now be found in all parts of the City.

Bradley, 402 F.Supp. at 1111. As a result of the mixed

residential areas and the application of the current student

assignment plan implemented in 19767 there was only one

6 The guidelines for desegregation provided that schools should not

have a black student population less than 30 percent. A school is

treated as desegregated whose student body is between 30-55% black

Bradley, 460 F.Supp. at 305; [DC 43a]; affirmed in areas other than

Regions 1, 5, and 8, Bradley, 540 F.2d at 239-240. However, the

Sixth Circuit modified its affirmance of the guidelines at Id, in its April

14, 1980 Opinion by removing the 30-55% range in requiring all white

students to be considered available for reassignment up to the point

leaving a school 45% white (or not more than 55% black). [CA 17a].

7 The current plan adopted by the District Court became effective

at the beginning of the Winter-Spring semester, 1976. That plan re-

quired the reassignment of 27,524 students, of whom 21,853 were

transported by bus. The plan changed the racial balance of 105

schools out of approximately 300 zoned schools in the system. At

the commencement of the 1979-80 school year, the Detroit system was

still transporting approximately 21,500 students for purposes of de-

segregation. Bradley, 540 F.2d at 236-237.

school in the Detroit school system at the outset of the 1979

school year which had less than 31.9% black student enroll-

ment. Now there is no school with less than 30% black

enrollment. [120a].

It was within the context of the foregoing demographic

and documentary evidence presented at the remand hearing

that the District Court found that the current racial ratios in

the vast majority of Detroit schools were the result of the

predominance of black students in the school district and

the accelerated population shifts throughout the City of

Detroit. The Court concluded that both of these factors,

acting independently of any Board student assignment policy,

have obliterated the optional and gerrymandered attendance

zones and the practice of altering feeder patterns in racially

changing neighborhoods. Bradley, 460 F.Supp. at 307-308

[DC 49a-5la].

However, once having made these findings, the trial court

nonetheless proceeded to require additional pupil transporta-

tion between schools in Regions 2 and 1, totaling approxi-

mately 1,600 additional students affecting the total of 12

elementary and middle schools out of a total of 74 elementary

and middle schools in Regions 1 and 2 (i.e., 5 schools in

Region 1 and 7 schools in Region 2).

In reviewing this case on™appeal, the Sixth Circuit Court

rejected the District Court’s findings and rulings relative to

the current record evidence as being contrary to the law of

the case, without critical examination or making new findings

of fact, but affirmed in principle the propriety of ordering

additional pupil reassignments. On remand, the Sixth Circuit

also required the taking of evidence to determine if Hispanic

students had suffered de jure segregation. Only if it was

established that they had been discriminated against, would

they be considered “minority” students and not “white” stu-

dents for purposes of additional transportation.

The Sixth Circuit Court also affirmed the denial of recusal

by the District Court but nonetheless “suggested” that the

Chief Judge of the District Court reassign the case to another

judge. |

V. REASONS FOR GRANTING THE WRIT

This Petition arises from the Sixth Circuit Court of Appeals

opinion of April 14, 1980 reversing and remanding the District

Court’s holding® that based upon a school-by-school examina-

tion of student enrollment by residence and as affected by

student assignment, the school district no longer discriminates

against black students and the present assignment pattern is

free from the vestiges of prior discrimination. [DC 50a].

The predicate for this reversal was a sua sponte “finding”

by the Sixth Circuit de hors the record that all population

shifts and all private housing choices in Detroit are “vestiges”

of prior school segregation by the Defendants. The result

of this reversal is the imposition of a system-wide racial bal-

ance busing requirement promising nothing more than token

integration and designed to stay in effect interminably, instead

of applying the principles of Pasadena City Board of Educa-

tion v. Spangler, 427 U.S. 424 (1976).

Both the predicate and the result of the Sixth Circuit opin-

ion erroneously conflict with applicable decisions of this Court

and of other federal courts of appeals on the same matter. To

the extent that the decision ineluctably prescribes a never-

ending remedy, it has articulated an important question of

federal law dealing with the treatment of one-race schools in

predominantly black school systems which has not been, but

should be, settled by this Court.

The decision of the Sixth Circuit amounts to nothing more

than a post hoc rationalization for the attainment of a certain

desired result: system-wide racial ratios. It reflects an un-

concern with established principles of constitutional law. In-

8 Bradley v. Milliken, 460 F.Supp. 299 (ED Mich 1978); [DC 36a-

78a],

stead, the Sixth Circuit has constructed its own idiosyncratic

legal system consisting of presumptions de hors the record,

so-called immutable facts and irremediable “vestiges” result-

ing in a self-defeating requirement for more busing in the

85% black Detroit school district while the predominantly

black systems of Richmond, Virginia in the Fourth Circuit,

Atlanta, Georgia in the Fifth Circuit and Pasadena, California,

are deemed to operate unitary school systems with numerous

one-race schools under a “different” constitution.

Once a court determines, as the Sixth Circuit did here, that

desegregation is to be defined in terms of busing, then com-

pulsory, system-wide racial quotas follow as a primary means

for the effectuation of that goal. The more predominantly

black and geographically far flung the school district the more

extensive and rigorous the compulsory transportation required

to effect it. The Sixth Circuit opinion can only be justified

on the basis that the constitutional requirement to desegregate

is now simply a synonym for system-wide busing.

This case presents a particularly rigid judicial requirement

for a racial mix and therefore, a particularly onerous and

tragic busing obligation. Onerous, because it impacts system-

wide on previously court-approved assignment patterns of

five years duration by uprooting large numbers of students in

admittedly desegregated schools for the remote possibility of

a racial change of a few percentage points in a handful of

schools; tragic, because 10 years after the commencement of

this litigation, nine years after the implementation of the first

interim desegregation plan and five years after the implemen-

tation of a multi-faceted, court ordered desegregation plan

including remedial educational components and grade reor-

ganization affecting every school in the system, along with

pupil transportation, the Sixth Circuit still persists in viewing

desegregation in Detroit solely in terms of pupil transporta-

tion.®

9 The transportation component is only one part of the Detroit plan.

All schools, including those in Regions 1, 5 and 8 participate to the

In effect, the Sixth Circuit has held that regardless of any

steps taken by school officials in the form of educational com-

ponents to eradicate identified vestiges of segregation and

regardless of concurrent population shifts and demographic

changes which have obliterated other vestiges, a predominant-

ly black school system can never be desegregated until all

available white students are dispersed throughout the system

pursuant to a racial balance formula, which in this case re-

quires that no school is to have any more or less than 45%

white enrollment. [CA 17a].'®

The Detroit Board categorically disputes both the vitality

and validity of the Sixth Circuit opinion. This Petition states

the legal error contained therein and is a respectful request

that this Court exercise its supervisory powers over the Court

below and grant certiorari at this time.

A. The Sixth Circuit Definition Of Desegregation In

A Predominantly Black School System Is In Conflict

With The Fourth and Fifth Circuits And This Court’s

Holding In Pasadena

Even though Detroit, since February, 1976 has transported

more than 21,000 students, revamped its elementary, middle

schools and high school grade structures, redrawn attendance

lines, created magnet schools and moved faculty, all pursuant

fullest extent in the remedial educational components which this Court

unanimously affirmed as being a proper and effective desegregation

plan by stating: “Pupil assignment alone does not automatically remedy

the impact of previous, unlawful educational isolation . . .” Milliken

II, supra, at 287. Yet, because Regions 1, 5 and 8 are not in the busing

component, the Sixth Circuit states they are excluded from the desegre-

gation plan.

10 This is not the first time the Sixth Circuit has erred in defining

“actual desegregaticn” in Detroit. Milliken I, supra, at 739-741. This

Court should likewise reject the current view of “desegregation” in

Detroit being defined as a rquiremnt for a system-wide racial quota,

to Court order in the name of desegregation, the Sixth Circuit

is tenaciously insisting on additional transportation of students

in a system over 85% black.

This insistence is despite the fact that federal courts have

been supervising desegregation efforts in Detroit for over

nine years, and the fact that the district continues to increase

in black enrollment by 2% a year.

Whether or not a desegregation plan is constitutional now

depends on the circuit in which the school district is located.

Is there one constitutional standard for Atlanta (5th Circuit),

and Richmond (4th Circuit) and a vastly different constitu-

tional standard for Detroit (Sixth Circuit)?

In 1975, Atlanta operated 148 schools in the city system of

which 92 had student bodies which were over 90% black.

In 1980, the Atlanta school system operated 126 schools, 90

of which are over 90% black. Source: Office of Labor and

Management, Atlanta Public Schools. The District Court in

Atlanta found the Atlanta School District was unitary and had

purged itself of all vestiges of the formerly state imposed dual

system. Unlike the Sixth Circuit, these findings were affirmed

by the appellate Court."'

In Bradley v. The School Board of the City of Richmond,

11 The Fifth Circuit noted that the aim of the Fourteenth Amend-

ment is to assure that state supported educational opportunity is afforded

without regard to race; it is not to achieve racial integration in public

schools. Calhoun v. Cook, 522 F.2d 717, 719 (CA 5, 1975).

A statistical comparison shows that Atlanta, Georgia with a school

population of 71,991 students of whom 65,344 or 90.7% are black is

substantially identical to Detroit which has a student population of

216,000, of which 182,214 or 85% are black. The Detroit school system

operates 261 school buildings while the Atlanta school system operates

126. As of June, 1980, 86.5% of the elementary schools in Atlanta have

enrollments of 55% or more black students. 95.4% of the senior high

schools had greater than 55% black enrollment. In Detroit, 88.7% of

the elementary schools had greater than 55% black enrollment, 91.6%

of the middle schools and 91.6% of the high schools had greater than

55% black enrollment. Source: Office of Budget and Management,

Atlanta Public Schools.

Virginia, 462 F.2d 1058, affirmed by an equally divided court,

412 U.S. 92 (1972), the Fourth Circuit considered an appeal

from an order of the District Court integrating schools in

Richmond (83% black in 1980) with those of adjacent counties.

The Fourth Circuit, unlike the Sixth Circuit, held that in the

context of a predominantly black school system having many

one-race schools as in Detroit, further intervention by the Dis-

trict Court was neither necessary nor justifiable [452 F.2d

at 1069] absent any constitutional violations in the establish-

ment or maintenance of the three school districts in Virginia.'?

In analyzing the cause for the residential concentration of

blacks in Richmond as compared to the white populations in

the suburbs, the appeals court rejected the District Court’s

finding that de jure segregation has been responsible stating:

“[T ]his record warrants no other conclusion than that

the forces influencing demographic patterns in New

York, Chicago, Detroit, Los Angeles, Atlanta and other

metropolitan areas have operated in the same way in the

Richmond metropolitan area to produce the same result.

Typical of all these cities is a growing black population

in the central city and a growing white population in the

surrounding suburban and rural areas. Whatever the

basic causes, it has not been school assignments, and

school assignments cannot reverse the trend. That there

has been housing discrimination in all three units is de-

12 For the school year 1970-71, the years relevant to the appeal in

that case, the Richmond City Schooi Board operated 57 schools, and

the racial composition of the public population was approximately 64%

black and 36% white. 460 F.2d at 1062. Source: Deputy Superin-

tendent’s Office, Richmond Public Schools. A statistical comparison of

the Richmond, Virginia school district with the Detroit public schools

reveals the following: In 1979 the Richmond school district had a school

population of 32,577 students, of whom 27,284 or 83.7% were black.

The Richmond school district operated 48 schools of which 96.5% of

the elementary schools were greater than 55% black, 90% of the middle

schools were greater than 55% black and 100% of the Senior High

Schools had a 55% or greater black enrollment. Id.

plorable, but a school case, like a vehicle, can carry only

a limited amount of baggage, Swann v. Charlotte-Meck-

lenberg Board of Education, 402 U.S. at 24, 91 (1971).”

462 F.2d at 1066 (Emphasis added).

The comparison set forth below at the elementary school

level highlights the fact that the Sixth Circuit is applying a

different constitutional standard than the Fourth and Fifth

Circuits.

1979-80 ATLANTA RICHMOND DETROIT

No. of Students 71,991 37,977 219,076

% Of Black In System 90.7% 83.7% 85%

% Of Elementary Schools

55% Or More Black 86% 96.5% 88.7%

The pattern and result of the demographic changes in the

three cities have been substantially the same. In Richmond

and Atlanta, the respective Circuit Courts reviewed the same

set of demographic and population data and concluded that

those demographic changes resulted in abolishing the vestiges

of state imposed segregation. On the other hand, the Sixth

Circuit reviewed virtually the same data in Detroit and con-

cluded that the demographic changes were the product of

de jure segregation.

Why should Detroit, which in February, 1976 undertook

massive Court ordered busing, be now required to redo all of

its efforts, retransfer its students and again traumatically dis-

rupt the system. The Fourth and Fifth Circuits would say

there is no reason to do so. The Sixth Circuit insists on such

action.

Now is the time for this Court to give guidance in such a

situation.

B. The Court Of Appeals Abused Its Discretion By

Ignoring The Mandates Of This Court Regarding

Judicial Review Of Desegregation Plans Which Have

Yielded Present Neutral Assignment Patterns And

Policies

The opinion of the Sixth Circuit declares that after 10 years

of litigation and five years of multi-faceted court-ordered de-

segregation plans, Detroit is not a unitary system but rather

needs further busing to achieve “effective” desegregation

levels. To justify this new constitutional standard, the Sixth

Circuit ignored the effectiveness of the current plan which has

resulted in non-discriminatory assignment patterns and de-

segregated schools.

This Court has expressly identified the specific acts of seg-

regation occurring in Detroit which define the scope of the

constitutional violation.'* Additionally, the District Court,

the Sixth Circuit and this Court have concurred on the de-

13 In reviewing the 1971 findings of Judge Roth in the present case,

Bradley v. Milliken, 338 F. Supp. 582, 587-589 (1971); [DC 89a-93a],

this Court noted the following specific unconstitutional acts of segrega-

tion:

(a) the creation of optional attendance zones in neighborhoods under-

going racial transitions;

(b) the drawing of attendance zones along north-south boundaries

while aware that east-west boundary lines weuld have resulted in signifi-

cantly greater desegregation;

black students to predominantly black schools away from white schools;

(d) the State supervised school construction program resulted in 13

new schools being built in either overwhelming black or white neigh-

borhoods;

(e) the State of Michigan had failed, until 1971, to provide authoriza-

tion or funds for transportation of Detroit students regardless of poverty

or distance; atid,

(f) through Act 48 the State had acted to delay racial integration in

Detroit schools. Milliken v. Bradley, 418 U.S. 717, 725-727 (1974).

Even the Sixth Circuit does not contest the fact that these specific acts

of de jure segregation have now been completely eliminated in Detroit.

segregation components necessary to effectively redress the

adjudicated “vestiges” of segregation in Detroit..* Pursuant

to these findings the District Court ordered the implementa-

tion of a plan which eliminated each of the specific acts of

de jure segregation and set in place a series of pupil reassign-

ment and educational components designed to eradicate each

specifically identified vestige of segregation."®

Direct unwarranted intervention in the operation of a school

system is not sanctioned in the law, and it should not be con-

tinued longer than necessary.'* Nevertheless, the Sixth Cir-

cuit has seen fit to intervene de novo in the operation of the

Detroit school system notwithstanding the implementation of

14 Bradley v. Milliken, 411 F.Supp. 943 (1975); Bradley v. Milliken,

540 F.2d 299 (1976) and Milliken v. Bradley (Milliken 11), 433 U.S.

267 (1977). In short, de jure segregation no longer exists in Detroit.

See, e.g., Washington v. Davis, 426 U.S. 299 (1976).

15 The desegregation plan proposed by the Detroit Board and adopted

by the District Court included and excluded numerous option: as

contemplated by Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 16 (1971). The plan was reaffirmed by the District Court

after “evaluation in practice” Green v. County School Board, 391 U.S.

430, 439 (1968), and the District Court was satisfied “that state-imposed

segregation has been completely removed”. Green, supra, at 439. The

Court of Appeals has been clearly unable to hold that “. . . the avail-

ability to the board of other more promising courses of action . . . indi-

cate a lack of good faith . . .” Green, supra, at 439; Milliken Tl, supra,

at 280, n. 15, 288, n. 19.

16 In fact, “once a school district has implemented a racially neutral

attendance pattern in order to remedy constitutional violations, the

lower court has fully performed its function of providing the appropriate

remedy for previous racially discriminatory attendance patterns . . .”

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

“To be sure, direct intervention in the operation of a school system is not

to be welcomed, and it should not be continued longer than necessary.”

Morgan v. McDonough, 540 F.2d 527, 533 (CA 1, 1976); also see,

Swann, 402 U.S. 1 (1971); Milliken I, 433 U.S. 267 (1977); Dayton I,

433 U.S. at 406 (1977); School District of Omaha v. Armstrong, 433

U.S. 672 (1977).

neutral attendance patterns,’ the elimination of specific acts

of de jure segregation, the eradication of adjudicated “vestiges”

of segregation'® and the total remediation of the constitutional

violation. Despite the metro-or-bust approach of the Sixth

Circuit,'? there are legal, factual, and practical limits to a

federal court’s jurisdiction to intervene in the educational

process under the disguise of “desegregation” which is really

a pretext for arrogating plenary powers.?°

17 The District Court, on the two occasions it has reviewed this issue,

has taken every conceivable step to avoid the process often described

as “resegregation”. Notwithstanding the District Court’s success in this

area and the consequent fact that only “The quite normal pattern of

human migration resulted in some changes in the demographics of

[Detroit’s] Pasadena’s residential patterns . . .” Pasadena City Board

of Education v. Spangler, supra, at 436, the Court of Appeals, by creating

factually unorthodox premises, seeks to avoid the legal consequences

articulated in Pasadena when “. . . these shifts were not attributed to any

segregative actions on the part of the petitioners.” Pasadena City Board

of Education v. Spangler, supra at 436.

18 In Keyes v. School District No. 1, 413 U.S. 189, 211 (1973), it

was stated that the witch-hunt for vestiges of past segregation can reach

its own point of diminishing returns and the relationship between the

past segregative acts and present segregation may become so attenuated

as to be incapable of supporting a finding of de jure segregation war-

ranting judicial intervention.

19 The Sixth Circuit’s recent opinion is repleat with express and

implicit metropolitan remedial objectives which unmask the Court

of Appeals’ frustration and desperation in pursuit of a metropolitan

remedy. The current opinion represents a judicial attempt to impose

onerous and inappropriate remedial burdens on the parties and to prod

the litigation into a metropolitan stance.

20 “In a word, “There are undoubted practical as well as legal limits

to the remedial powers of federal courts in school desegregation cases.”

Milliken II, supra, at 280, n. 15.

There is no obligation on a district court to continue to play “shuffle

board” with the students of a desegregating school district, instead, “The

obligation of the district courts, as it always has been, is to assess the

effectiveness of a proposed plan in achieving desegregation”. Green,

supra, 439. It is the Court of Appeals which transcends the protections

In the present case, the Sixth Circuit has castrated the role

of the District Court by ignoring the requisite balancing of

individual and collective interests; totally refusing to credit

the District Court’s evaluation of the effectiveness of the de-

segregation plan in practice; sua sponte expanding the scope

of the violation de hors the record;?" and summarily dismissing

any consideration of the statistical practicalities of Detroit,??

all without critical examination of or support in the current

record evidence. The Sixth Circuit justifies its position by

relying solely on the state of the original 1971 record as an

immutable never-ending fact. [CA 7a-l3a]. It has thereby

exceeded its authority as a court of review by departing from

and demands of the constitution when it orders escalated pupil trans-

portation when at best the increased transportation is founded on the

Court’s acknowledgment that “genuine constitutional desegregation may

be impossible within the Detroit district . . .” Bradley v. Milliken,

[CA 19a].

21 The Court of Appeal’s principle concern with housing patterns is

more expansive than the city limits of Detroit. The concern is metro-

politan in nature and scope. Bradley v. Milliken, [CA 7a, 9a-10a, 12a-

13a, 19a]. The Sixth Circuit is attempting to create a metropolitan-like

violation, which the record does not support, by classifying current resi-

dential patterns as “vestiges” of past school segregation in order to

prematurely force, de facto or de jure, a metropolitan remedy in this

case. Compare, Bradley v. Milliken, [CA 30a], and Milliken v. Bradley,

418 U.S. 745 (1974).

22 While conceding that any further “genuine desegregation may be

impossible within the Detroit district”, Bradley v. Milliken [CA 19a],

the Court of Appeals curiously held that the district court remand inquiry

was limited to a consideration of “whether . . . white students can prac-

tically be reassigned to achieve . . .” an increase in the number of schools

with some white students in attendance. Bradley v. Milliken, [CA 17a].

In essence, the Court of Appeals has now established the principle of

“token integration” and pupil reassignments by “trial and error” because,

according to the Sixth Circuit, it “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 reassignment.” Bradley v.

Milliken, [CA 17a].

the accepted and usual course of judicial proceedings thus

warranting review on certiorari.

C. The Sixth Circuit Erred By Ignoring This Court’s

Express Approval Of The Avoidance of Disturbing

Naturally Integrated Neighborhoods In The Absence

Of A Reasonable Assurance Of More Meaningful

Desegregation

In Milliken II?* this Court endorsed the District Court’s

approach to pupil transportation as a “workable plan” par-

ticularly because it “sought carefully to eliminate burdensome

transportation of Negro children to predominantly. Negro

schools and to prevent the disruption, by massive pupil re-

assignment, of racially mixed schools in stable neighborhoods

which have successfully undergone residential and educational

change.”?4

On remand, the Sixth Circuit took a contrary position.

Although the opinion ingenuously states: “We emphasize that

this remand is not intended to disrupt previously approved

assignment patterns” [CA 18a], how can it be otherwise when

the District Court has already ruled that further desegrega-

tion is not possible and that it would be unwise to disturb

assignment patterns. [DC 53a]. Disruption is at the very

core of the remand order.

This is so because the Sixth Circuit changed the remedial

guidelines heretofore approved by it. Instead of a 30-55%

23 Milliken II, supra at 288, n. 19.

24“The cumulative effect” of pupil transfer programs must be mea-

sured on a school-by-school basis in a desegregation case for such is the

only operational level on which actual segregative effects can be mea-

sured and on which it can be determined whether the transfer policy

reduces segregation or reinforces the existence of a constitutionally im-

permissible dual school system. Lee v. Eufaula City Bd. of Ed., 573

F.2d 229 (CA 5 1978). The District Court in Detroit tested the de-

segregation plan on a school-by-school basis. Bradley, [DC 50a]; 460 F.

Supp. at 308.

black student enrollment range being the yardstick for a de-

segregated school, the Sixth Circuit is requiring the reassign-

ment of all available white students from formerly integrated

schools in the 30-55% black range, until that school stands at

not less than 55% black (nor more than 45% white). [CA 17a].

“=e Contrary to the blandishments that the remand instructions

are not meant to be a straight jacket in the District Court

[CA 18a], the Sixth Circuit opinion is doctrinally designed to

achieve a systemwide predominately black racial balance by

undoing five years of court-ordered and approved assignment

patterns in the very schools and neighborhoods which are

most stable and reflective of the highest degree of genuine

desegregation.?5

The inherent injustice in the Sixth Circuit’s querulous ap-

proach to the District Court’s efforts to achieve actual and

effective desegregation is further highlighted by the Sixth

Circuit's reluctant admission that its order and the remand?®

25 Bradley va’"iken, 402 F. Supp. 1096, 1127-28 (ED Mich

1975); Bradley v. Milliken, 460 F. Supp. 299, 304, 309-10 (ED Mich

1978) [DC 42a-44a, 53a-55a].

Ironically, three months before this Sixth Circuit opinion rejecting in

principle the concept of avoiding disruption in naturally integrated

neighborhoods and schools in preference to the concept of all-out racial

balance, three Justices referred approvingly to the 1976 opinion of the

Sixth Circuit which rejected the course it now takes, that of rendering

all of Detroit’s schools identifiably black. Estes v. Metropolitan Branches

of Dallas NAACP, 48 U.S.L.W. 4118, 4121-22 (1980) (Powell, Stewart

and Rehnquist, J.J. dissenting).

26 In (No. 77-1467) South Park Independent School District v. U.S.,

and (No. 78-222) Board of Education for the City of Valdosta, Ga. v.

U.S., 439 U.S. 1007, 58 L.Ed2d 684, reh den, 439 U.S. 1135, 59

L.Ed2d 98 (1978) (Rehnquist, J., dissenting), while denying cer-

tiorari, the dissenting Justices condemned the very practice employed by

the Sixth Circuit in the present case:

“Obviously we cannot review in this Court every school desegre-

gation case decided by a Court of Appeals, and particulary where,

as here, the Court of Appeals merely remands the case to the

District Court for further proceedings, there is a very natural

were at best an exercise in futility. The Court of Appeals’

open attack on naturally integrated schools and neighborhoods

is virtually a de jure act of school resegregation representing

the first judicial reestablishment of a dual school system since

Brown 1.27 This Court has rejected such attempts to re-

segregate by school officials, and should tolerate no less from

the federal courts, regardless of purportedly benign motives.

D. The Court Of Appeals Erred By Adopting a Novel

Theory Of Desegregation: Token Integration By

Trial And Error

In Detroit, where the student population is 85% black and

13% white where 21,500 students are currently being trans-

ported for desegregation purposes; where there are 177 ele-

mentary schools, 60 middle schools and 24 senior high schools;

where the population is declining by 10,000 students per year

and the percentage black enrollment is increasing by 2% per

year, the Sixth Circuit’s lack of concern with the realities of

Detroit by defining “desegregation” in terms of a requirement

for system-wide racial ratios and its lack of concern with

the probability of success or increased effectiveness of the

desegregation plan, represents the blatant adoption of the

tendency to conclude that the decisions of the Court of Appeals

are not deserving of plenary review . . . the interminable pen-

dency of school desegregation litigation resulting from remand

orders such as these is precisely what was condemned in Pasadena,

supra.” 58 L.Ed2d at 684.

27 Token integration will render all schools racially identifiably black

in Detroit. Token integration has never before been adopted as an

acceptable desegregation tool, but instead has consistently been rejected

because “In a word, ‘there are undoubted practical as well as legal

limits to the remedial powers of the federal courts in school desegrega-

tion cases.’”. Milliken v. Bradley (Milliken I1) 433 U.S. 267 at 280,

n. 15; Bradley v. Milliken, 540 F.2d 229, 239 (CA 6 1976), previously

rejecting “desegregation” which would result in accelerating the racial

identifiability of the system.

heretofore unarticulated constitutional theory of token integra-

tion (by trial and error) as a desegregation tool.

In total contradiction of well-established principles against

token integration and its own prior opinion rejecting token

integration as a viable desegregation tool,?® the Sixth Circuit

now adopts this approach which has been until now, soundly

rejected in desegregation litigation.

Contrary to the belief of the Sixth Circuit, federal courts

are not free to wantonly experiment with various transporta-

tion and statistical approaches year after year. The Courts

must determine if increased and repeated interferences with

the individual rights of students and parents and the man-

agerial rights of local school boards will result in “genuine

constitutional desegregation” of prior unlawful acts, which

promises realistically to work now. Token integration or

specific racial ratios have never been, and are not now

enough.?9

Even more offensive to the constitution is the Sixth Circuit's

willingness to order purported “desegregative” measures which

offer no assurance of increased actual desegregation; increased

desegregation effects;*° or eradication of specific and identifi-

able “vestiges” of past segregation.*" The Sixth Circuit’s order

offers only burdens and neglects to promise constitutionally

sanctioned benefits now. Not only does the Sixth Circuit

28 Bradley v. Milliken, 540 F.2d 229, 239 (CA 6 1976).

29 See, Calhoun v. Cook, supra; and, Bradley v. School Board of the

City of Richmond, 462 F.2d 1058 (CA 4 1972), affd, 412 U.S. 92

(1973).

30 Compare, Bradley v. Milliken, 402 F.Supp. 1096 (ED Mich, 1975);

and Bradley v. Milliken, 411 F.Supp. 943, 944-946 (ED Mich 1975).

31 Compare, Bradley v. Milliken, 402 F.Supp. 1096 (ED Mich 1975);

and Bradley v. Milliken, 540 F.2d 229 (CA 6, 1976).

32 The current position of the Court of Appeals directly contradicts

its previous position in Northcross v. Board of Education of Memphis

City Schools, 489 F.2d 15, 17 (CA 6 1973), where the Court held that

transporting pupils to produce negligible desegregative results was

fail to identify a current unconstitutional condition or effects

of a prior adjudicated violation, but its mandate also fails to

remedy the condition which it attempts to eliminate, ie.

residential segregation.

E. The Sixth Circuit’s Transformation Of This Litigation

Into A Housing Discrimination Case Is Contrary To

The Law Of The Case

The Sixth Circuit ruled, without giving the close or critical

examination of the record which it requires of the trial court,

that the District Court’s finding of no current vestiges of prior

segregation was contrary to the law of the case, citing Judge

Roth’s original 1971 violation findings, the Court’s affirmance

thereof and Milliken I. [CA 7a-lla]. Instead, the Court states

that the law of the case is that the prior actions of the Defen-

dants contributed to segregated residential patterns whose

effects are presumed to be the growing percentage of black

student enrollment for which the District must implement a

system-wide racial balance busing plan as a remedy.

The Sixth Circuit has twice rejected the Detroit Board’s

contention that Pasadena City Board of Education v. Spangler,

427 U.S. 424 (1976), does not require a school board to

periodically modify a desegregation plan to compensate for

migration patterns which shift the distribution of races within

a school district. Bradley, supra, 540 F.2d at 238-239; Bradley,

supra, [CA 2la]. Rather, the Sixth Circuit has now adopted

a position, without any current record evidence measuring the

segregative effect, if any, of prior claimed housing pattern

violations attributable to the Defendants,* that as long as

unacceptable as a desegregation remedial tool. Also see, Swann, supra;

Quality Education For All Child, Inc. v. School Board, et al. Ill., 385

F.Supp. 803, 823-824 (DC Ill 1974); Davis v. Board of School Com-

missions of Mobile Co., 430 F.2d 883, (CA 5 1970); Mannings v. Board

of Pub. Instruction of Hillsborough Co., Fla., 427 F.2d 874 (CA 5 1970).

33 Dayton Board of Education v, Brinkman, 433 U.S, 406, 419-420

(1977).

residential patterns reflect concentrations of blacks, white or

Hispanos in Detroit, the Pasadena case is inapplicable and,

therefore, repeated readjustments of the pupil transportation

component is and will be, ad infinitum, constitutionally re-

quired. Bradley v. Milliken, [CA 18a].*4

The Sixth Circuit concluded that Detroit’s “population

changes themselves are in part vestiges of past [school] dis-

crimination”. Bradley v. Milliken, [CA 13a]. This conclusion is

not supported by the record. After reversing both Judge Roth

and the Sixth Circuit in 1974, this Court criticized the school

officials and other defendants only for their “reactions” to

changing residential patterns and has never held these defen-

dants responsible or accountable for individual citizen choice

and location of personal housing. Milliken v. Bradley, 418

U.S. 745 (1974). Yet, by classifying the current residential

patterns as “vestiges” of school segregation, the Court of

Appeals sua sponte opens the door to a never-ending obliga-

tion*5 on school officials to remedy alleged discriminatory

metropolitan housing patterns which are totally beyond the

control of and in this case, outside the cause of school officials.

School desegregation is a remedy for ills within schools and

school systems. To collaterally attack housing patterns through

poorly disguised token integration attempts for schools ignores

34 Compare, Pasadena City Board of Education, supra; Dayton I,

supra, Calhoun v. Cook, supra; Lee v. Eufaula City Board of Education,

supra; Columbus Board of Education v. Penick, supra; and, School Dis-

trict of Omaha v. U.S., supra.

35 See South Park Independent School District v. U.S., supra, (Rehn-

quist, Jr., dissenting) :

“So far as I can tell from the remand order of the Court of Appeals,

the District Court appears condemned to a fate akin to that of

Sisyphus, the mythical King of Corinth who was sentenced by

Zeus to an eternity in Hades trying ‘to roll a rock uphill which

forever rolled back upon him.’ Such a result, in my view, repre-

sents a departure ‘from the accepted and usual course of judicial

proceedings’ sufficient to warrant a grant of certiorari pursuant to

our Rule 19(1)(b).” (footnote deleted) 58 L.Ed2d at 686.

the objective of the remedy, i.e. to transform formerly segre-

gated schools into a unitary system “. . . within which no

person is . . . effectively excluded from any school because

of race or color’. Alexander v. Holmes County Board of

Education, 396 U.S. 19, 20 (1969); Northcross v. Board of

Education of Memphis, 397 U.S. 232, 239 (1970).

This Court has made it evident that the expansive approach

of the Court of Appeals here is improper because:

“One vehicle can carry only a limited amount of baggage.

It would not serve the important objective of Brown I

to seek to use school desegregation cases for purposes

beyond their scope, although desegregation of schools

ultimately will have impact on other forms of discrimina-

tion.” Swann, supra at 22-23.

Contrary to the implications of the Sixth Circuit ruling, a

pupil reassignment component of a desegregation plan “

does not and cannot embrace all the problems of racial preju-

dice, even when those problems contribute to disproportionate

racial concentrations in some schools”. Swann, supra at 23.

Therefore, the Sixth Circuit’s preoccupation with a remedy for

residential patterns by construing them de hors the record as

a “vestige” of now discontinued prior school segregation is a

flagrant assault on this Court’s directive to the federal courts:

“Our function as stated by Mr. Justice White, is ‘to

desegregate an educational system in which the races

have been kept apart without, at the same time, losing

sight of the central educational function of the schools’

Milliken I, supra .. .” Milliken II, supra at 280, n. 15.

The Sixth Circuit’s willingness to employ token integration,

disrupt the educational processes and endanger the stability of

the present unitary system in Detroit, demonstrates that the

Court, in its blind pursuit of a remedy for “residential vestiges”,

has indeed lost sight of the central “educational” function of

both schools and desegregation remedies.

To this extent, the decision of the Sixth Circuit is in conflict

with prior decisions of this Court and with other federal courts

of appeals on the same matter, thus warranting review on

certiorari.

F. The Sixth Circuit Erred By Improperly Ordering A

Hearing To Determine The Racial Classification Of

Hispanics

The Keyes v. School District No. 1, 413 U.S. 189 (1973),

definition of “hispano” states:

“... ‘Hispano’ is the term used by the Colorado Depart-

ment of Education to refer to a person of Spanish, Mexi-

can, or Cuban heritage. Colorado Department of Educa-

tion Human Relations in Colorado, A Historical Record

203 (1968). In the Southwest, the ‘Hispanos’ are more

commonly referred to as “Chicanos’ or “Mexican-Amer-

icans ...” Keyes, supra, at 196, n.6.

This definition of Hispanos is no way conditioned upon dis-

crimination for or against Hispanos in education.

In holding that Hispanic students “must be grouped with

blacks rather than whites . . .” only when and if it “appears”

that Hispanics have been discriminated against historically by

the school system, the Sixth Circuit totally ignored the Keyes

finding that the historical discrimination, if any, was no more

than one of the consequences of Hispanic similarity with

blacks in two specific areas, ie. (1) “. . . Hispanics suffer from

the same educational inequities” and (2) “. . . economic and

cultural deprivation and discrimination”. No hearing or factual

findings are necessary to conclude, as a matter of law, that

Hispanics should not be treated as white in this case. See

Keyes, supra at 197-198.%*

36 Cf., Native Americans in Bcoker v. Special School District No. 1,

585 F.2d 347 (CA 8 1978); U.S. v. Antelope, 430 U.S. 641 (1977);

Moe v. Confederated Tribes, 425 U.S. 463 (1976); Fisher v. Dist.

Court, 424 U.S. 382 (1976); Morton v. Mancari, 417 U.S. 535 (1974).

As a factual and biological matter, Hispanic students may

be treated as non-white or non-black because Hispanos are a

distinct biological and racial classification separate and apart

from whites and blacks. They are, like blacks, an ethnic

minority which suffers from the same discrimination and dis-

advantages as blacks when compared to whites. Keyes, supra,

197-198.

The presence or absence of segregation does not change the

color of a person’s skin or their ethnic origin. This court has

consistently:

“

. held that Hispanos constitute an identifiable class

for purposes of the Fourteenth Amendment. Hernandez

v. Texas, 047 U.S. 475, . . . (1954). See also United

States v. Texas Education Agency, 467 F.2d 848 (C.A.

5, 1972) (en banc); Cisneros v. Corpus Christi Indepen-

dent School District, 467 F.2d 142 (C.A. 5, 1972) (en

banc); Alvarado v. El Paso Independent School District,

455 F.2d 1011 (C.A. 5, 1971); Soria v. Oxnard School

District, 325 F. Supp. 155 (C.D. Cal., 1971); Romero v.

Weakley, 226 F.2d 399 (C.A. 9, 1955).” Keyes, supra,

at 197.

Hispanics have been treated separately from “white” stu-

dents in other desegregation cases without the necessity of

establishing prior segregation. In Evans v. Buchanan, 416

F.Supp. 328, 359-360 (D Del 1976) and in Morgan v. Kerrigan,

401 F.Supp. 216, 242 (D Mass 1975), aff'd, 530 F.2d 401 (CA

1) cert denied sub nom, White v. Morgan, 426 U.S. 935

(1976), the district courts ordered desegregation plans which

would assure that “other minority” students, such as Hispanics,

would not be involved in excessive dispersal from bilingual

education programs, and would not be aggregated with black

students.

The color of Hispanic skin may well be a factor in deter-

mining whether a school is segregated or not, but the presence

or absence of segregation in a school does not determine

whether Hispanics are black or white . . . they are neither.

Keyes, supra at 198.

Hispanics do not have to litigate the fact that they are a

“minority” group and th: «&ixth Circuit requirement to do so

is error.

VI. CONCLUSION

This case does not simply demand a restatement of estab-

lished principles. It requires the pronouncement of consid-

erations relevant to framing a remedy in a desegregation suit’

For all of the compelling reasons stated above, it is respect-

fully submitted that a Writ of Certiorari should issue to review

the judgment and opinion of the United States Court of Ap-

peals for the Sixth Circuit.

Respectfully submitted,

GEORGE T. ROUMELL, JR.

THOMAS M. J. HATHAWAY

Of Counsel

RILEY AND ROUMELL

SAMUEL E. McCARGO

7th Floor Ford Building

Detroit, Michigan 48226

(313) 962-8255

Counsel For The Board Of Education

Of The School District Of The City

Of Detroit, Michigan, a School district

of the first class and other named

Petitioners

DATED: July 4, 1980

Detroit, Michigan

APPENDIX

OPINION OF THE U.S. COURT OF APPEALS FOR THE

SIXTH CIRCUIT OF APRIL 14, 1980

Nos. 78-1597 and 79-1005

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, ET AL., ;

Plaintiffs-Appellees,

Vv.

WiuiaM G. MILLIKEN, GOVERNOR, ET] A ppeay from the

AL s . .

” United States District

Defendants-Appellees,| Court for the Eastern

and District of Michigan.

BOARD OF EDUCATION OF THE SCHOOL

District OF THE Crry or DEtTroIT,

ET AL.,

Defendants-Appellants.

Decided and Filed April 14, 1980.

Before Epwarps, Chief Judge, and Pumps and Peck, Sen-

ior Circuit Judges.

Pures, 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 1). 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

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 the 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. DeM:scio 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.

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

plan by enacting § 12 of Act No. 48, Public Acts of 197). 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 pre-

liminary 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

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 segrega-

tion 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.

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).

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 I).

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 1. 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

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 I1).

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-

Ma. zio 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

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 borne 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 students

were Spanish dominant Hispanics involved in bilingual educa-

tional programs that would be disrupted by additional pupil

reassignments. However, Judge DeMascio felt this court’s

opinion mandated whatever reassignments were possible, de-

spite any burden on bilingual programs. 460 F. Supp. at 312.

In a supplemental opinion, Judge DeMascio ordered the De-

troit 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

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

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

the pupil reassignment plan. This court stayed implementa-

tion of the additional reassignment plan pending the outcome

of this appeal.

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 obliterated 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;

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-

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 zéro to 4.9 percent

white.

e ° °

“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

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 segregatec 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

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

12a

mold of separation of the races. Upon a proper showing

a district court may 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 Keyes 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

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

DeMascio’s holding, urged by the Board before 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.

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-

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

14a

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 diffiicult, 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-

ment patterns that effectively desegregate the schools in other

regions.

15a

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 3397 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

[ 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 buss-

ing”). 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

Court refused to permit isolated treatment of one part of

metropolitan Mobile, we found it “equally unacceptable to

16a

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 I, 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 carricd out a systematic program of segregation estab-

lished a predicate for finding a dual 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 rights. Milliken I, supra,

418 U.S. at 745.?

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-

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

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

the Board attempting 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

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

veassignment 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, 402 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 inte-

grated school 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

most instances, schools with white students available for re-

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

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

tinguishes this case from Calhoun v. Cook, 522 F.2d 717 (5th 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 indication those 62

identifiably black schools were concentrated in one or several administra-

tive regions left wholly untouched by the pupil reassignment plan.

Moreover, if we were convinced that the Fifth Circuit permitted At-

lanta’s desegregation plan to be limited by intra-district administrative

lines, we would be forced to disagree with its decision.

18a

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 pat-

terns.

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

for the reasons carefully spelled out therein — that gen-

19a

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 ef-

fective 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.

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

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

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

20a

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 reassigning

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 argu-

ments 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-

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

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

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

2la

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 dual 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.

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

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

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

system, we need not decide whether the concentration of bilingual pro-

grams in Region 2 is having a resegregative effect and, if so, whether

that fact standing alone would empower the district court to order addi-

tional 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

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 disrpution, 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 benefits

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 be-

tween 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

district’s history of discrimination against Hispanic students

justified treating those students as minorities for desegregation

purposes:

23a

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

treatment 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.

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

24a

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 Tasbly 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 desegrega-

tion purposes.

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

torically, the Detroit school district has discriminaed 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 hearing

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

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

25a

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 plain-

tiffs 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 evi-

dence 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-ap-

pellants 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 students

in the Detroit school system.

Unless the district court finds the defendants discriminated

against Hispanic students, it may treat such students as white

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

26a

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.

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 de-

nied 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:

“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

27a

§ 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

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 pro-

ceeding therein.”

There is agreement among the courts that the purpose of the amend-

ment was to change the standard for recusal from a subjective to an

objective one, as well as to overrule the prior concept tl.at close cases

involving disqualification should be resolved against recusal on the

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

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 § 455(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

proceeding 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 proceedings 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 Commissioners of

Alabama State Bar, 524 F.2d 98 (5th Cir. 1975) (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

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.

The plaintiffs also argue Judge DeMascic engaged in what

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

regation 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

29a

impending proceeding. A judge, however, may ob-

tain the advice of a disinterested expert on the Iw

applicable to a proceeding before him if he gives

notice to the parties of the person consulted and the

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 experts.

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

of record and were never subject to cross-examination, 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

30a

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-

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.

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 I), 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

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 Judge

DeMascio’s conduct had not created the appearance of partiality and so

did not require recusal in regard to faculty assignments.

3la

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.

32a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 78-1598

RONALD BRADLEY, et al.,

Plaintiffs,

LULAC COUNCIL NO. 11054, et al.,

Proposed Plaintiffs Intervenors-Appellants,

WILLIAM G. MILLIKEN, et al., and BOARD OF

EDUCATION of the School District of the City of

Detroit, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Michigan.

(Decided and Filed April 14, 1980. )

Before: Epwarps, Chief Judge, and Priirs and Peck,

Senior Circuit Judges.

Per CurntamM. LULAC Council No. 11054, et al. appeal

from the district court’s decision denying their application to

intervene in the remedial phase of the Detroit school desegre-

gation case. We affirm the district court’s decision, but direct

that appellants be permitted to intervene for the limited pur-

pose of presenting evidence on a question not previously

litigated in the district court.

Appellants sought to intervene in Bradley v. Milliken, Civ.

No. 35257 (E.D. Mich.), in order to protect the interest of

Detroit’s Hispanic students in receiving bilingual education.

33a

That interest, appellants felt, was imperiled by the district

court’s order that some white students in Detroit’s Adminis-

trative Region 2 be reassigned to desegregate schools in the

city’s all-black inner city. Most of Detroit's Hispanic students

live in Region 2, and all of the system’s Spanish-bilingual pro-

grams are located there. Appellants are concerned that indis-

criminate reassignment of Hispanic students to inner-city

schools will produce shortages of Spanish-bilingual teachers

and resource materials, interfere with established pilot pro-

grams, and generally impair the district’s ability to meet the

educational needs of Hispanic students. Accordingly, they

sought to participate as parties in the development of a pupil-

reassignment plan that would be sensitive to their concerns.

The district court, in an opinion reported at 460 F. Supp.

320 (E.D. Mich. 1978), denied appellants’ application to in-

tervene on the ground that it was untimely. The court un-

derstood appellants to argue that Hispanic students should be

excluded entirely from the pupil-reassignment plan. How-

ever, the court had already rejected the Board’s argument for

excluding Hispanos; it thought allowing appellants to intervene

would force relitigation of that issue. Furthermore, the court

felt the appellants’ interest was already represented by the

Detroit Board, whose expertise and resources the appellants

could not match. Accordingly, the court held appellants had

no right to intervene and declined to allow permissive inter-

vention.

We agree with the district court that appellants have no

right to intervene. Even accepting appellants’ argument that

they do not seek to exempt Hispanic students from reassign-

ment but merely to ensure that reassignments are made with

students’ bilingual-educational needs in mind, we think appel-

lants’ interest is adequately represented by the Detroit Board.

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

Detroit school system, cautioned the court that reassign-

ing Hispanic students out of Region 2 schools, let alone doing

so indiscriminately, would jeopardize the district’s ability to

34a

provide quality bilingual education as required by law. Rec-

ognizing that danger, yet faced with this court’s mandate to

desegregate inner-city schools, the district court ordered the

Detroit Board to develop a reassignment plan that would

“make provisions for bilingual/bicultural programs” and to

“create new programs [where necessary] to maintain the cur-

rent level of bilingual/bicultural offerings.” We have every

reason to believe the Board has and will continue to observe

the court’s order. Given the Board’s demonstrated concern

for preserving its bilingual programs, we thing the appellants’

interest already is adequately represented. Accordingly, we

affirm the district court’s decision that appellants are not

entitled to intervene of right.

Nor did the district court abuse its discretion by denying

permissive intervention in the pupil-reassignment proceedings.

This case is already ten years old. Permitting the appellants

to participate as parties in the development of a supplemental

reassignment plan would delay further these already pro-

tracted remedial proceedings without producing any counter-

vailing benefit.

Appellants can protect their interest, which we recognize

is legitimate and substantial, by petitioning the district court

to allow them to speak as amici curiae on behalf of the Span-

ish-speaking children of Detroit in future remand proceedings.

Correspondingly, we suggest the court encourage and con-

sider such amicus views in evaluating any reassignments of

Hispanic students.

Despite our affirmance of the district court’s ruling, we

think appellants must be permitted to intervene for the limited

purpose of presenting evidence on the question whether,

historically, the defendants have practiced de jure segregation

of Hispanos. That issue, not previously litigated, was raised

by the Board’s argument in Bradley v. Milliken, case nos. 78-

1597, 79-1005, that Hispanos cannot be treated as white for

school desegregation purposes. For the reasons stated in Part

IV of our opinion in that case, —— F.2d at ——, we think repre-

35a

sentatives of Detroit’s Hispanic community must be allowed to

participate as intervenors in the remand hearing on the lim-

ited issue of whether or not the Detroit Board has been

guilty of de jure segregation of Hispanos. Keyes v. School

District No. 1, Denver, Colo., 413 U.S. 189, 197-98 (1973);

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, 105-07 (5th Cir.), cert.

denied, 423 U.S. 939 (1975). Appeilants may participate on

other issues only if the district court permits them to do so as

amici.

The case is remanded to the district court for further action

consistent with this opinion. No costs are taxed. Each party

will bear its own costs on this appeal.

36a

OPINION AND ORDER OF THE DISTRICT COURT

ON STUDENT REASSIGNMENT OF AUGUST 7, 1978

[460 F Supp 299]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil No. 35257

RONALD BRADLEY, et al.,

Plaintiffs,

WILLIAM G. MILLIKEN, Governor

of the State of Michigan, et al.,

Defendants.

OPINION

(August 7, 1978)

We have re-examined carefully the demographic data char-

acterizing the Detroit City Schools to determine whether

further desegregation of Regions 1, 5 and 8 is possible. We

undertake this task following an appeal of our remedial guide-

lines to the U. S. Sixth Circuit Court of Appeals. That court

held our August 15, 1975 remedial guidelines for desegregation

“insufficient as to Regions 1, 5 and 8” and remanded “for

further consideration in regard to the[se] three central re-

gions.” Bradley v. Milliken, 540 F.2d 229, 239, 240 (6th Cir.

1976). |

When considering all of the Regions collectively, the late

Judge Stephen Poth found in 1972 that an adequate remedy

based on pupil reassignments limited to the corporate limits

37a

of Detroit would be impossible. The U. S. Supreme Court

did not disturb this finding. See Bradley v. Milliken, 402 F.

Supp. 1096, 1104 (E.D. Mich. 1975). We also agreed with

Judge Roth’s conclusion. We stated that:

If Detroit’s school population were more equally divided

between black and white or if the desegregation area

were sufficiently large to permit greater equalization, it

would be possible to diminish the inevitable limitations

on the task of eliminating racially identifiable schools in

the district.

° ° Qo

Limitations may be imposed by the desegregation

area, For example, the black proportion of the popula-

tion can be so great that racial balance will inevitably

result in majority black schools. In such an area, only

two alternatives are available: The desegregation area

must be enlarged or flexibility must be permitted in

defining a desegregated setting. 402 F.Supp. at 1102,

1131 (emphasis added).

The Sixth Circuit Court of Appeals has agreed on several

occasions that desegregation within the geographic limitations

of Detroit is “extremely difficult (if not impossible).” See,

e.g., Bradley v. Milliken, 540 F.2d 229, 236 (1976).

As we seek to determine whether further desegregation is

possible, it has become apparent that the litigants have not

retained the adversary posture that characterized the liability

issues tried before Judge Roth.’ This changing adversary

posture is only natural since the Detroit Board of Education

has been willing to desegregate the school district without

court prodding. Even before this action was filed in 1971,

the Detroit Board planned the first stage for dismantling the

dual system existing in the Detroit City Schools but was

' 1 This observation did not escape the scrutiny of the Supreme Court.

See Bradley v. Milliken, 433 U.S. 267, 292 (1977) (Milliken II) (Powell,

J., concurring).

38a

prevented from carrying it out by an act of the state legis-

lature. In response to our April 1975 order, the Detroit Board

submitted a plan for reassigning 51,000 students to desegregate

the school district. At the hearings following the Court of

Appeals remand, the Detroit Board produced demographic

data to establish that it had accomplished all the desegregative

pupil reassignments possible and that additional reassignments

were not feasible. In addition, the Detroit Board offered

extensive testimony to support a three-part plan for desegre-

gating faculty and staff.

The plaintiffs are well aware that the Detroit Board of

Education is striving to desegregate the school district. The

plaintiffs persist, however, in their conclusion that a school

district is desegregated only when the racial composition of

each school mirrors the system-wide racial ratio within 15% in

either direction. On the other hand, the defendant Detroit

Board, charged with the primary responsibility for maintaining

a viable school system, insists that a sound plan for desegrega-

tion must take into account the hard realities at hand. During

the most recent evidentiary hearings, the plaintiffs did not

produce any evidence to refute the Detroit Board’s conten-

tion that inclusion of Regions 1, 5 and 8 in the desegregation

plan is no longer feasible. The plaintiffs argued instead that

the Detroit Board’s “contained classroom” method of delivering

bilingual instruction is resegregating Region 2 and is providing

neighborhood schools for one ethnic group. Tr. Sept. 7, ’77

at 211. Thus, although the parties continue to disagree on

an acceptable formula for desegregation, they are not and

cannot be true adversaries.

Moreover, the state defendants are not in an adversary

posture with either the Detroit Board of Education or the

plaintiffs. They did not even participate in this last round of

hearings. The state defendants have not really opposed the

Detroit Board’s efforts to desegregate; they only oppose paying

the cost of desegregation. As a practical matter, the state’s

opposition to paying one half the cost for its own segregative

acts is not always clear. After agreeing to pay 50% of the

39a

construction costs for five area vocational centers, the state

appealed to the Supreme Court this court’s order requiring

them to pay for one half of the other remedial programs.

At the same time, the state voices no opposition to this court’s

order requiring them to provide the budgetary requirements

of the court-created Monitoring Commission and has not

sought an annual review of that order.

No party has ever taken the initiative in the remedy phase

of these proceedings. For example, although unfavorable

Monitoring Commission Reports of lagging implementation of

court-ordered remedial programs provided many opportunities

for initiative, the plaintiffs have failed to take any action.

In addition, following each appellate court mandate, it has

been necessary for this court to order a status conference to

determine how the parties intended to proceed. In each

instance, the court then had to order one party or the other

to proceed. Now that demographic projections predict that

the school district will be 87% black in 1979, the prospect

that the parties will take adversary initiative in future pro-

ceedings is unlikely.

With the Court of Appeals remand in hand, we convened a

status conference on October 27, 1976, to determine how the

parties intended to proceed. Order of October 14, 1976. Five

months later, with no party having moved for a hearing, we

sua sponte ordered that hearings on the issue of faculty assign-

ments begin on April 21, 1977. The plaintiffs then filed a

motion to compel the Detroit Board to submit a further pupil

reassignment plan and to adjourn the faculty assignment hear-

ings pending resolution of the reassignment issue. We de-

clined to adjourn the faculty hearings and subsequently or-

dered the Detroit Board to show cause why it should not be

compelled to include Regions 1, 5 and 8 in the pupil reassign-

ment plan. Order of April 20, 1977. The show cause hearing

was subsequently adjourned at plaintiffs’ request until Septem-

ber 6, 1977. The hearings on both issues have been com-

pleted and the parties have been afforded an opportunity

40a

to argue and submit proposed findings, briefs, and responsive

briefs, 3

SUMMARY OF PRIOR PROCEEDINGS

Four years ago, this cause was remanded by the Supreme

Court for the “prompt formulation of a decree directed to

eliminating the segregation found to exist in Detroit City

Schools . . .” Milliken v. Bradley, 418 U.S. 717, 753 (1974)

(Milliken I). Upon receipt of that mandate, we convened

a pretrial conference to determine how the parties intended

to proceed. We ordered the plaintiffs and the defendant

Detroit Board of Education to submit plans for desegregating

the Detroit school district and we afforded each of the parties

an opportunity to critique each of the plans submitted. Fol-

lowing lengthy hearings, we found both plans unacceptable.

We then issued guidelines for desegregation and required the

Detroit Board to submit plans which conformed to those guide-

lines.

Under the plaintiffs’ plan, any school that varied more than

15% in either direction from the system-wide racial ratio was

a racially identifiable school in need of desegregation. We

found the plaintiffs’ plan unacceptable because it steadfastly

relied upon an arbitrary ratio for defining racially identifiable

schools. We also rejected plaintiffs’ plan because it involved

extensive pupil transportation that achieved only negligible

desegregative results. Black students would be frequently

transported from one identifiably black school to another for

the sole purpose of achieving a predetermined racial mix. 402

F.Supp. at 1122-25. The Court of Appeals also declined to

implement plaintiffs’ plan. 540 F.2d at 239.

We found that the Detr<it Board’s plan also impermissibly

sought to achieve rigid racial ratios in each school. The

Detroit Board believed that schools that were 40-60% black

(50-50% plus or minus 10%) were less susceptible to demo-

graphic change. We rejected the Board’s plan because it

paired schools located in naturally integrated neighborhoods

4la

and transported white or black children for the sole purpose of

accommodating a racial pattern. We agreed with the Detroit

Board, however, that an acceptable desegregation plan within

the meaning of Milliken I required the elimination of racially

identifiable white schools in the City of Detroit. We reasoned:

[T]he evil of segregation lies in the devasting psycho-

logical impact upon black children of the knowledge

that they are being excluded from white schools, .. .

However, when blacks are represented in all schools

throughout the system, ie., when white identifiable

schools are eliminated, this psychological effect no longer

exists, 402 F.Supp. at 1132.

We also concluded, as had the defendant Detroit Board, that

Regions 1, 5 and 8 could not be included in the pupil reassign-

ment plan because to do so would preclude meaningful inter-

action between black and white students in the other regions

reasoning:

Plaintiffs refuse to acknowledge that the racial com-

position of these three regions precludes their inclusion

in a desegregation plan. In Region V, for example, there

are 31,354 students of whom (excluding the Spanish

surnamed) only 989 (3.1%) are white. In Region VIII,

there are 29,725 students of whom (excluding Spanish

surnamed) only 1,329 (4.5%) are white. In Region I,

there are 24,907 students of whom (excluding Spanish

surnamed) only 2,049 (8.2%) are white. Clearly, it

would be futile to attempt desegregation within the

boundaries of these regions; thus, a desegregation plan

including these three regions would have to cross region-

al boundaries. But to include these regions in the Board’s

plan would bring about the same result that pertains after

application of the plaintiff's (sic) own plan. The plaintiffs’

plan itself is sufficient proof that any attempt to include

these regions produces only negligible results. Applica-

tion of plaintiffs’ plan would make the Detroit school

42a

system more identifiably Black, and leave many of its

schools 75 to 90 per cent Black. (Findings of Fact —

March 28, 1972, 484 F.2d 215, 243-44 ( 1973.) )

That inclusion of these three regions in a desegregation

plan would produce only negligible desegregative results

is inevitable because even excluding Regions I, V and

VIII there are only 63,446 white students as compared

to 103,007 black students. To attempt to disperse those

white students throughout the eight regions, including

the three overwhelmingly black regions, would produce

such negligible desegregative benefits that the extra;

ordinary remedy of such cross-regional bussing would be

unwarranted. To do so would only serve to lessen the

little community control blacks now enjoy in those regions

and, therefore, injure the very class the remedy is in-

tended to benefit. In the face of these “practicalities”

there is no constitutional objection to leaving a number

of one-race or predominantly one-race schools. 402 F.

Supp. at 1129 (footnotes and citations omitted).

The Court of Appeals, although “recognizing the absence of

alternatives,” disapproved our exclusion of Regions 1, 5, and

8 and affirmed the pupil reassignment plan with respect to

the remaining regions. The court characterized our finding

of futility as “perfunctory treatment” holding that we “did

not subject the exclusion of these three regions to the close

scrutiny required by Swann.” Id. 540 F.2d at 238. The court

held that the record did not support the conclusion that the

school board carried the heavy burden of justifying the one

race schools located in these regions, and that it appeared

we impermissibly considered these three regions in isolation.

What neither the record before the Court of Appeals, nor

this court’s prior opinions revealed was the painstaking care

with which the court attempted, with the assistance of its

court-appointed experts, to devise a plan that would provide

meaningful pupil reassignments in these regions. Three sub-

sequent submissions by the Detroit Board were thoroughly

43a

examined, and we subsequently approved with modifications

a Detroit Board plan which conformed to our guidelines.

Bradley v. Milliken, 411 F.Supp. 943, 944 (1975). Given the

small number of white students in the school district, we found

it impossible to devise a plan which could bring meaningful

pupil reassignments in each and every region. The Court

of Appeals shared the same frustration that this court ex-

perienced in attempting to reassign students within these re-

gions. The court stated:

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 guidelines 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 ... that genuine constitutional desegregation can not

be accomplished within the school district boundaries

of the Detroit School District. 540 F.2d at 240.

Our guidelines for desegregation had provided that schools

should not have a black student population less than 30%,

and we treated as desegregated a school whose student body

was between 30% and 55% black. In order to preserve natural-

ly integrated neighborhoods, we determined that schools al-

ready within these parameters should not be subjected to

student reassignments. We required that all other available

methods of pupil reassignments be exhausted prior to relying

upon transportation. We further provided that the Detroit

Board should achieve a racial mix of 50%-50% in zoned middle

schools and should create open enrollment middle schools

similar to the magnet middle schools then in existence, which

would be acceptable when 55-70% black. 402 F. Supp at

1134-38. We also ordered remedial programs which were

designed to alleviate the effects of defendants’ prior acts of

segregation. 402 F.Supp at 1118. ‘These educational com-

ponents were affirmed by the Court of Appeals, 542 F.2d at

44a

241-42, and by the Supreme Court, 433 U.S. 267 (1977)

( Milliken IT).

Finally, incidental to and concurrent with the implementa-

tion of our guidelines, we ordered that teachers in the Detroit

school system be reassigned to achieve a distribution of not

more than 70% of teachers of one race in each school. Order

of August 28, 1975. The events leading to the entry of this

order have been detailed elsewhere. Bradley v. Milliken,

426 F. Supp 929, 940 (E.D. Mich. 1977). The Court of

Appeals vacated that order but agreed that a district court

has equitable power to order the reassignment of faculty

despite Judge Roth’s prior finding that there had been no

de jure segregation in faculty assignments by either the Detroit

Board or the state defendants. 540 F.2d at 246-47. Our

guidelines had acknowledged that there were other criteria

for measuring a unitary system in addition to pupil assign-

ments, such as faculty assignments, staff assignments, extra-

curricular activities, and equality of facilities. 402 F.Supp.

at 1133.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Pupil Reassignments

The population shift from white to black in the district has

accelerated well beyond our 1975 demographic projections.

See 402 F.Supp. at 1137; see also 338 F.Supp. at 585. The

official October 1976 count for the school district disclosed

that it was 79.4% black. Tr. Sept. 6, 77 at 10. By the end

of the 1978-79 school year, the school district will be 87.0%

black. Furthermore, the defendant Detroit Board has pro-

duced evidence, which we fully credit, that this school district

will be 89.6% black by 1980 and 91.8% black by 1981. BX-C.*

The Detroit Board’s chief demographer, Mr. Henrickson,

prepared worksheets that depict the grade-to-grade survival

* Detroit Board of Education Exhibits will be designated BX followed

by a letter or number.

45a

method he utilized to arrive at the projections contained in

BX-C. See BX-D. Mr. Henrickson obtained obtained the

actual number of births for the year 1966 as recorded by the

Board of Health, corrected to Detroit residency. He then

tracked the actual number of children, black and white, who

appeared in kindergarten five years later and then followed

that group of children as they progressed from grade to grade

in their schools from 1971 through 1976. Tr. at 11-23; BX-D.

Those computations establish that the grade retention rate

for black students is much higher than for white students.

For example, 97.9% of the black students entering kindergarten

in 1971 remained in the school system through the sixth grade

while only 78% of the white students remained. Mr. Henrick-

son testified that he used those retention rate percentages to

project the composition of the student body through 1981

based on the trends that he observed for the period 1971-1976.

Tr. at 11-12. He did this for each grade individually, repeat-

ing the process for black and white students separately. Tr.

at 13-17.

We find Mr. Henrickson’s method of projection logical and

reliably accurate. He testified that in his experience he has

been able to predict future enrollment within 100 to 200

students. Tr. at 18. This is a standard procedure used in

many school districts and one which he has used in the regular

course of his employment to forecast future needs of the

school system. Tr. at 31.

Mr. Henrickson further testified that in each year since

1971, approximately 10,000 fewer students have enrolled in

the Detroit school system. Tr. at 24.4 This downward trend

is due principally to a reduction in the number of white stu-

dents, and is expected to continue for at least the next five

2If Mr. Henrickson was unable to depict a clear trend, he would

use an average. Tr. at 27.

3 The city and school population has been declining steadily since

1950. 338 F.Supp. at 585.

46a

years. Tr. at 30. The decline in the number of white stu-

dents is attributable to the declining white birth rate, and in

part to white parents who take their children out of the

Detroit school system. Tr. at 22-24. During this period of

decreasing enrollment, the total number of black students in

the system has remained reasonably constant. Tr. at 24.5

Considering the declining birth rate, together with the de-

clining retention rate for white students, Mr. Henrickson

projects the racial composition in future years as follows:

Total Number/Z% Number/%

Year Enrollment Black White

1978 218,110 184,230 33,880

84.5% 15.5%

1979 208,610 181,550 27,060

87% 13%

1980 198,000 177,330 20,670

89.6% 10.4%

1981 188,170 172,820 15,350

91.8% 8.2%

Thus, we are confident that Detroit will have a school system

that is 91.8% black in 1981. This trend is independent of

student assignments, and any changes that might be made in

the pupil reassignment plan will neither accelerate nor de-

celera

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