Petition — Milliken v. Bradley

Supreme Court, U. S,

FILED

JUL 283 19809

_ MICHAEL RODAK, JR., CLERK

In the Supreme Court of the

United States

Octoper TERM 1980

Lutac Councit 11054 et al.,

Petitioner,

aise ene sote at eter cdendnp eR

Vs.

Wri C. Mikey, et al., and Boarp or Epucation

or THE Scoot District or THE Ciry or Derrort, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

Vitma S. Martinez

Peter D. Roos

Mexican American Legal Defense

and Educational Fund

28 Geary Street, 6th Floor

San Francisco, CA 94108

(415) 981-5800

Attorneys for Petitioners

— ———-

—— —

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

@.s wea

QUESTION PRESENTED

Did the Court of Appeals erroneously affirm a denial of

Intervention to Hispanic students who sought to protect

Bilingual Education programs in a District undergoing de-

segregation?

PARTIES

Lutac Councit 11054, La Sep, Danret and Eisa

Saucepa by and through their next friend and par-

ent Rosa Saucepa; Joet and Norn Lepesma by and

through their next friend and parent Soria

LEDESMA,

Petitioners,

Ronatp Brapitey, RicHarp Brapiey, by their

Mother and Next Friend, Verpa BraDLey; JEANNE

Goines, by her Mother and Next Friend, BLancusr

Goincs; Breverty Love, Jimmy Love and DarreLu

Love, by their Mother and Next Friend, Cuarissa

Love; CAMILLE BurpeNn, Pierre Burpen, Ava Bur-

DEN, Myra Burpen, Marc Burpen and STEVEN

Burney, by their Father and Next Friend, Marcus

Burpen; Karen WitiiAmMs and Kristy WILLIAMs,

by their Father and Next Friend, C. Wiis;

Ray Lirr and Mrs. WivBer Buake, parents; all par-

ents having children attending the public schools

of the City of Detroit, Michigan on their own be-

half and on behalf of their minor children, all on

behalf of any persons similarly situated; and

NaTIONAL ASSOCIATION FOR THE ADVANCEMENT OF

ContoreD Propie, Detroit BRANCH

Vv.

Wim G. Miturken, Governor of the State of

Michigan, Frank J. Ketitey, Attorney General of

the State of Michigan; Micuican State Boarp or

Epucation, a constitutional body corporate; JoHn

W. Porter, Acting Superintendent of Public In-

struction, Department of Education and ex-officio

Chairman of Michigan State Board of Education;

Respondents.

INDEX

. Page

Table of Authorities Cited—Cases ........................---.00..--- ii

ELS AROS | NS OT ili

ea cusetanemsbaswansavens iv

EES a 1

2 sssiobbidemeeseasobeosurentoubens 2

Question _ SS RE 2

OE 2

Statement of the Case .. Sone a A eR 2

I, Wi NG cn .oseccssscnrencesconcosescecenseacensvese 4

a echecntiacincsssaen opasenispactnesbecnaccanneabcseenensece 6

I. Petitioners’ Motion to Intervene Was Timely

cs vevubtnvcnwseovataseccces 6

B. Petitioners Did Not Unduly Delay in the

a sess scacnenssnsananncsnsoneee 6

C. Intervention Would Not Prejudice the Orig-

inal Parties to This Lawsuit ..............0000........ 8

II. Intervenors Are Entitled to Intervention of Right

Pursuant to Rule 24(a) (2) of the Federal Rules

I a ssnideianbamennennee 11

A. Petitioners Have a Substantial Interest in

the Outcome of the Litigation Below ............ 12

B. Petitioners’ Interests Will Be Impaired

Unless Intervention Is Granted ......0000.0.00..... 14

li INDEX

Page

C. Petitioners’ Interests and the Interests of

Those They Represent Will Not Be Ade-

quately Represented Unless Intervention Is

SR NNOIN ciscCaslaslcacsiescyicmiapelschenibpegnnthicshtinnssstasdilabsinenaee 15

i 8B A eC SR RII 1, NOLIN TRON OR MONET 18

Ny I NN oe csacccs cs ticineeesecsciennentsienicantndne 20

BE Wien ilatsh coticcenvsacsceeauiebiliaestnncoastbbbetsedsiiiibabiandad 1

TABLE OF AUTHORITIES CITED

CasES Pages

Arthur v. Nyquist, 1972-325 (W.D. NY July 9, 1976)... 13

Atkins v. Board of Education, 418 F.2d 784 (4th Cir.

TRIAS IE AEE SD Occ NES © EERO Sit REE SAO 11

Atlantis Development Corp. v. United States, 379 F.2d

RE 8 PRM lpre detent hE ROM Oa 12

Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976) aff’d

A CE SUED ac Sopra chinddascnesamcnilcsnebeateinticmenlianten 2

Cascade Natural Gas Corp. v. El Paso Natural Gas

Ci ee MPI RU CRIED pniscnncinccsictcnnsipiassctecedohendopianatsiiians 12

Dowell v. Board of Education of Oklahoma City Public

Schools, 420 F.2d 865 (10th Cir. 1970) -..0.00.2222.222...--- 11

Evans v. Buchanan, 416 F. Supp. 328, (D. Del. 1976) .. 6,13

Hatton v. County Board of Education, 422 F.2d 457

Ua I BORO Se silat acca hishlie nsaliitbnibenieadountiahiniene 10

Hodgson v. United Mine Workers of America, 473

Be ee Ca RR, RE es kencataeciecirecskchctlenn ts camectinstae 6, 9

Innis v. Sperden & Co. v. Food Mach. Corp., 2 F.R.D.

I -sinasieasciocasi beacon ccs ecoaiatlel absalepehaeeiccnke 10

Keyes v. School District, 380 F. Supp. 673 (D. Col.

ID PIIA’ \ iis iilestlindsscsidsdiedastncestebstianhg hihubiaiisiieiidilalainiaienidiaiidedibiiniainans 10

Kozak v. Wells, 378 F.2d 104 (8th Cir. 1960) ................ 9

Lau v. Nichols, 414 U.S. 563 (1974) 2... eeeeeeeeee 5,13

McDonald v. E.J. Lavino Co., 430 F.2d 1065 (5th Cir.

Bis aitnictatadslicintahinateondieseenshatclesaidisitoseltstinaspeabiatincssnhionen 6, 8, 9

Milliken v. Bradley, 418 U.S. 717 (1974) (Milliken I) .. 2, 3

iv TABLE OF AUTHORITIES

Pages

Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken IT) .. 2

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

aff'd, GAB F'3a OUT (hat Cir. 2GTB) ances 5, 9,14

NAACP v. New York, 413 U.S. 345 (1973) 000... 11

Neusse v. Camp, 385 F.2d 694 (D.C. Cir. 1967) ...... 10, 12, 16

Pate v. Dade County School Board, 303 F. Supp. 1068

CEs Beatie SIO eitcincnecsenibyaaineniashaabantiattak-cdeibin 10

Robinson v. Shelby County Board of Edueation, 330

F. Same Gly Ci Te te eee 10

Ross v. Eckles, 48 F.2d 651 (5th Cir. 1972) 0.000020... 6

Trbovich v. United Mine Workers of America, 404

ils GED LADUE eccnarecdpguiniiiedninauadal 16, 18

United States v. Georgia, 428 F.2d 377 (5th Cir. 1970)... 10

United States v. Jefferson County Board of Education,

SE OF ek CW CRE Ces RIE ger cnicnincjonncidececnsinnienchieeteaa 10

STATUTES

Rule 24, Federal Rules of Civil Procedure ................ passim

SR Ceo: II aicatiiastincacsasinioncisnsipitinassenintneanaiiaaaiaelaniiad 14

Be Us RII D cseevnvesciniateseiedigndanaapienenieiitiitiaaaiaae 13

OTHER AUTHORITIES

Boston Review Report. Mass. Bureau of Transitional

Bilingual Education. March, 1976 ....02...22.22.....2--00-+ 14

Report to the Congress. Bilingual Education: An

Unmet Need, Gov’t Printing Office Washington, D.C,

Oe TR, TOO cae inane scciadeheetipigitith 14

TABLE OF AUTHORITIES Vv

Pages

“State Education Agencies and Language Minority

Students”, National Center for Educational Statis-

IED Alias odltth oo nsctcahseinaicanniicietiincdatesehshiablitenracessananees 13

“Task Force Findings Specifying Remedies Available

for Eliminating Past Educational Practices Ruled

Unlawful Under Lau v. Nichols”, Summer, 1975 ...... 13

The Condition of Bilingual Education in the Nation,

HEW Publ. #(OEF) 77-01704 (Nov. 1976), p.101..... 14

The Requirement of Timeliness Under Rule 24 of the

Federal Rules of Civil Procedure, 37 VA.L. Rev.

IE ONC acid seseeescstamnccedortnentaalosneneadipilesnpsensocioaeees 7

In the Supreme Court of the

United States

OctroBer T'erm 1980

Luxac Councin’11054 et al.,

Petitioner,

Ronaup Branbey, et al.,

vs.

Wii C, Mitiikey, et al., and Boarp or Epucation

or Tue Scuoou Disrrict or THe Crry or Detroit, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

LULAC Council 11054 et al. Proposed Intervenor-Plaintiffs

Petition For A Writ Of Certiorari To Review The Opinion

Of The United States Court Of Appeals For The Sixth

Circuit.

OPINIONS BELOW

The opinion of the District Court is unreported. It is

found in the Appendix to this Petition at page 1. The Per

Curiam order of the Sixth Circuit is likewise unreported.

It is contained in the Appendix at page 6. It is this ruling

2

that the Petition is directed toward. An opinion by the same

panel on the merits of the case is included in the Appendix

at page ..... These rulings were rendered on April 14, 1980.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C, 1254(1).

QUESTION PRESENTED

1. Did the Court of Appeals erroneously affirm a denial

of Intervention to Hispanic students who sought to protect

Bilingual Education programs in a District undergoing

desegregation?

STATUTES AND RULES INVOLVED

Rule 24, Federal Rules of Civil Procedure, 42 U.S.C.

2000(d) ; 20 U.S.C. 1703(F).

STATEMENT OF THE CASE

This Court has twice ruled in this case, In Milliken v.

Bradley, 418 U.S. 717 (1974) (Milliken I), this Court

established standards for expanding a remedy beyond the

boundaries of a given school system. In Milliken v. Bradley,

433 U.S. 267 (1977) (Milliken II), this Court affirmed a

District Court order mandating certain educational pro-

grams incident to the desegregation remedy.

While numerous Hearings, Trials and Appellate rulings

have occurred during the ten (10) years of this litigation,

a proper starting point for understanding this appeal is

the last ruling of the Court of Appeals precedent to the

April 14 rulings. In that ruling, Bradley v. Milliken, 540

F.2d 229 (6th Cir. 1976) aff’d 433 U.S. 267 (1977), the

Court disapproved the total omission of three predomin-

antly Black regions from a desegregation plan adopted

3

by the District Court. Although the Sixth Circuit remanded

for reconsideration of this aspect of the District Court de-

cree, it expressed its concern that little could be done given

the ruling of this Court in Milliken I, 540 F.2d 229, 240.

In the Spring of 1978, Hearings pursuant to the remand

occurred, At the termination of those Hearings on April

24, 1978, the Court expressed its belief that additional de-

segregation could be accomplished by utilizing approxi-

mately five (5) schools which had significant numbers of

Hispanic students.’ On that date the Court further expressed

strong reservations about the need to continue bilingual

education programs as desegregation occurred. Several

excerpts from the transcript of that hearing highlight the

Court’s approach; the Court stated:

If you are going to have all that bilingual, bicultural

education down in Region 2 for Spanish, then you had

better have it up here in Reyion 1 for black people

and in Region 4 for black and white people and every-

thing else. I hope you find the money someplace be-

cause it is wrong, and it is taking this District in the

wrong direction once again. And I am not going to

start that. I will nip that in the bud right now.

(Transcript, April 28, 1978, p. 64.)

The Court concluded by observing that he had a draft

memorandum opinion which:

I am working on in this case that is going to dis-

approve the contained system for teaching bilingual

bicultural education. I will not permit it in this District

unless a higher Court tells me I must. On my authority,

your own statistical data shows that it is resegregating

1. Each of these schools also had significant numbers of Black

students. Webster School, the school that drew most of the attention

of the Court has 38.6% Black students and their percentage is in-

creasing.

4

the entire system and that is the seed for resegregating

every region in the District.

(Id. 64-65)

On July 24, 1978, the Petitioners filed a Motion to Inter-

vene, This Motion was filed in the name of two Hispanic

organizations, five sets of parents and class composed of

“all Hispanie school children who are eligible for bilingual

programs in the Detroit Public Schools who may be

affected by this Court’s impending relief in such a manner

as to be denied equal access to an equal educational oppor-

tunity”. The request for relief was the protection of the

right and interest of intervenors in all remedial actions

taken by the Court.

On August 7 the Court issued its order. It ordered the

School District to submit a further desegregation plan

within fourteen (14) days which imter alia should “make

provisions for bilingual bicultural programs .. .”. The Court

also disapproved the continued concentration of bilingual

programs in Region 2. This ruling of the Court was stayed

pending an Appeal which culminated in the April 14, 1980

rulings. On September 1, 1978, the District Court denied the

Petitioner’s Motion to Intervene.

SUMMARY OF ARGUMENTS

Reversal of the Court of Appeals ruling is of crucial im-

portance to the interests of national origin minority children

in Detroit and throughout the Country. If the rationales ad-

vanced for denying intervention are allowed to stand, then

children will be effectively precluded from participation in

the development of desegregation plans which just now are

coming to grips with the need to reconcile bilingual educa-

tion and desegregation.

The Detroit pattern is not unique. Most desegregation

cases in this country are brought by Plaintiffs representing

5

a class of Black children. At the time that the District Court

is ready to evaluate desegregation plans, it becomes appar-

ent that special thought and expertise is required to protect

the educational programs needed to assure equal educa-

tional opportunity for language minority students. Law v.

Nichols, 414 U.S. 563 (1974). As this Court is well aware the

time between the filing of the complaint and the call for

remedial plans is frequently a number of years. If, as the

Cireuit Court ruled, non-participation during the time-con-

suming “violation” stage precludes intervention under the

“Timeliness” doctrine, language minority children will rare-

ly be able to participate in protecting their rights to a lin-

guistically appropriate education.

The second rationale advanced for denial of Intervention

is likewise faulty and, if upheld, can serve as a basis for

denial in virtually all cases. The Court ruled that because

the District put on the stand their bilingual director to

justify their contention that no further busing should be

ordered, they (the Detroit School District) adequately rep-

resents the interests of language minority children. While

Petitioners in this case have no reason to question the

sincerity of the School District, it is manifest that they, as

all other Districts, have conflicting masters and objectives

in implementing a desegregation plan. Such conflicts create

the real potential for conflicts of interest which pose serious

dangers to the legal rights of language minority children.

This decision further deserves review for it conflicts with

decisions in other Circuits. As previously stated, the ques-

tion of Hispanic participation at the remedial stages of a

desegregation case has become increasingly important. In-—

tervention for purposes of protection of linguistically appro-

priate programs has been granted in Boston, Morgan v,

Kerrigan, 401 F.Supp. 216, 242, 252 (D. Mass. 1975), aff’d

7%

6

530 F.2d 401 (1st Cir. 1976) cert. denied 426 U.S. 935, and in

Wilmington, Del, Evar« v. Buchanan, 416 F. Supp. 328, 360

(D. Del. 1976) aff’d in relevant part 555 F.2d 373, 381 (3rd

Cir. 1977) Appeal dismissed 429 U.S. 973, Reh. Den. 434

U.S. 944. Cf. Ross v Eckles, 468 F 2d 651 (5th Cir. 1972).

ARGUMENT

1. Petitioners’ Motion To Intervene Was Timely

A. INTRODUCTION

Both Rule 24(a) and 24(b) require that motions for

intervention be made upon timely application, While time-

liness is a matter to be left to sound judicial discretion, it

must be construed broadly in the context of the liberal con-

struction accorded the Federal Rules of Civil Procedure.

Such liberal construction is particularly appropriate in

light of the underlying purpose of the intervention rules

themselves—that of protecting the rights of unrepresented

third parties; as many courts have noted:

Timeliness is not a word for exactitude or of precisely

measurable dimensions. The requirement of timeliness

must have accommodating flexibility toward both the

court and the litigants if it is to be successfully em-

ployed to regulate intervention in the interests of

justice. McDonald v. E.J. Lavino Co., 430 F.2d 1065,

1074 ‘5th Cir, 1970). See also Hodgson v. United Mine

Workers of America, 473 F2d 118 (D.C. Cir. 1972).

B. PETITIONERS DID NOT UNDULY DELAY IN THE FILING OF THE MOTION

While this litigation has been in progress since 1970, the

timing of Petitioners’ motion was not the result of undue

and unreasonable delay. The posture of the litigation at

the time of the Motion to Intervene raised interests and

concerns to the Latino community which has not previously

arisen. The need for intervention by LULAC Council No.

7

11054, LA SED and Latino parents and students at that

time was triggered in a large part by the concerns expressed

by the Court in the April, 1978 hearing regarding the place-

ment of Latino children in bilingual programs in Region

2 schools and the effect of those programs on District-wide

desegregation. This was the first time in the history of this

protracted litigation that the placement of the minor Peti-

tioners in bilingual programs was directly at issue.

Petitioners did not unduly delay between the time their

interests were directly brought before the court in April

and the filing of their motion in July. They attempted to

come before the court before any order requiring further

remedial action was entered and were prepared to partici-

pate in any remedial planning. .

Moreover, even if intervenors are considered to have de-

layed in filing their motion, the mere passage of time, in the

absence of prejudicial effect on the original parties, does

not constitute grounds for denial of intervention. As stated

by one court:

In the present case McDonald seems to assume that

the requirement of timeliness is a tool of retribution

which can be used to punish a would-be intervenor for

allowing time to pass before moving to intervene. We

cannot agree with such a view. We think it is correct to

say that since “the privilege of intervention stems from

a desire to protect the rights of underrepresented third

parties, it becomes apparent that the timely application

requirement under Rule 24 was not intended to punish

an intervenor for not acting promptly but rather was

designed to insure the original parties should not be

prejudiced by the intervenor’s failure to apply svoner.”

Note, The Requirement of Timeliness Under Rule 24 of

the Federal Rules of Civil Procedure, 37 VA.L. REV.

8

863, 867 (1951). Accordingly, it has been the traditional

attitude of the federal courts to allow intervention

“where no one would be hurt and greater justice would

be attained. ” Jd. at 868. McDonald v. E.J. Lavino, Co.,

supra, 430 F.2d at 1074.

C. INTERVENTION WOULD NOT PREJUDICE THE ORIGINAL PARTIES TO

THIS LAWSUIT

The existing parties to this action would not be prejudiced

by granting of the motion to intervene. Despite the fears

expressed by the District Court that “if [it] were to allow

intervention, the parties would have to relitigate issues that

have already been extensively litigated at great expense”,

Petitioners did not seek to and do not intend to relitigate

any issue previously adjudicated. They merely seek to pro-

tect the rights of limited English speaking Latino children

in any future remedial action.

Petitioners’ desire to protect their interest in bilingual

education does not require the wholesale exclusion of Latino

or Spanish-surnamed students from a pupil reassignment

remedy, as the District Judge apparently feared. At the out-

set, Petitioners do not seek to represent all Spanish-

surnamed students, but only those students whose limited

English speaking ability and special linguistic needs make

bilingual education appropriate and necessary.

Additionally, Petitioners do not claim that the interests

of even these students must be served by their exclusion

from a pupil reassignment plan. Rather, we claim that these

students’ needs must be taken into account in the event that

they are to be reassigned. Petitioners’ sole desire in this

litigation is to assist the parties and the Court in formula-

ting future remedial plans in which the concepts of bilingual

BT

9

education and desegregation are compatibly resolved.? We

do not argue, as the District Judge believed, that certain

students should not have to participate in the desegregation

remedy.

Under these circumstances, Petitioners’ participation in

the proceedings would be limited to hearings yet to come

at the time of their motion and to issues yet to be resolved.

There would be no need to relitigate the issue of liability

nor any remedial action already taken in this action. Thus,

the existing parties would in no way be prejudiced.

Absent prejudice to existing parties, both mandatory and

permissive intervention, with appropriate limitation where

necessary, have been granted at virtually all stages of judi-

cial proceedings. Thus, the case law is replete with grants

of intervention at post-trial, post-judgment, post-consent

decree, and post-appeal stages. See, Hodgson v. United Mine

Workers of America, 473 F.2d 118 (D.C. Cir. 1972) (applica-

tion timely seven vears after trial); McDonald v. E.J.

Lawino Co., 430 F.2d 1065 (5th Cir. 1970) (application timely

even though filed after entry of judgment) ; Kozak v. Wells,

2. To this end Petitioners presented the Distriet Court with

examples of other litigation in which courts successfully struck a

balance between bilingual education and desegregation in remedial

pupil reassignment plans. (A. 75-76 and A. 160). The Boston dese-

gregation case, Morgan v. Kerrigan, 401 F. Supp. 216 (D. Mass.

1975), aff'd 523 F.2d 917 (1st Cir. 1975) was the first to address

the issue. The Court resolved the problem by first determining the

percentage of minority and non-minority students who should be

in each school. For example, a school might be required to have a

40% composition of minority students. The Court then determined

that three consecutive bilingual classes was the minimal number

necessary for effective programming. Three classes are comprised of

sixty students. If those sixty students brought the minority per-

centage of the school to 20%, then there was space available for

20% black students and 60% Anglo. To effectuate this process, it

was necessarv first to identify limited English-speaking students;

secondly, to determine minimally acceptable numbers for program-

ming; and thirdly. to assign these students first and then to fill in

other students. 401 F.Supp. 216, 242, 252.

10

278 F.2d 104 (8th Cir. 1960) (application timely after one

year) ; Innis v. Sperden & Co. v. Food Mach, Corp., 2 F.R.D.

261 (application timely after four years) ; Nuesse v. Camp,

385 F.2d 694 (D.C. Cir. 1967) (application timely after six

months).

Moreover, school desegregation cases such as the instant

case, have long been recognized as deserving of judicial soli-

citude, and protected from ordinary procedural technicali-

ties whenever possible. See, e.g., United States v. Georgia,

428 F.2d 377, 378 n.1 (5th Cir. 1970). The cases go over-

whelmingly in favor of hoiding an intervention timely when

not intended to impede desegregation.® See, e.g., Pate v.

Dade County School Board, 303 F.Supp. 1068 (S.D. Fla.

1969) (intervention allowed to re-open school desegregation

suit nine years after original court decree) ; Keyes v. School

District, 380 F.Supp. 673, 694 (D. Col. 1974) (intervention

by Mexican Americans allowed eight years after original

fling, and following numerous court decrees, including an

appeal to the Tenth Circuit and this Court) ; United States

v. Jefferson County Board of Education, 372 F.2d 836, 896

(5th Cir. 1966) (intervention timely after school board sub-

mitted plan in compliance with court decree) ; cf. Robinson

v. Shelby County Board of Education, 330 F.Supp. 837

(W.D. Tenn. 1971) (dicta) (intervention would have been

3. Appellants do not seek to impede desegregation in the instant

case, but only to avoid random dispersal of students and teachers in

bilingual programs with the subsequent destruction of such pro-

grams. They seek only to assist the court in formulating a reassign-

ment plan which would allow the programs to continue as con-

stituted or to be reconstituted effectively in another, possibly more

integrated setting (A. 66-77). Thus, they are not in the same ecate-

gory as the proposed intervenors in Robinson v. Shelby County

Board of Education, 330 F.Supp. 837 (W.D. Tenn. 1971) or Hatton

v. County Board of Education, 422 F.2d 457 (6th Cir. 1970) relied

on by the District Judge in denying their motion.

11

timely after two district court and one appellate court deci-

sions); Atkins v. Board of Education, 418 F.2d 784 (4th

Cir. 1969) (intervention timely where delay due to lack of

funds).

Since most school desegregation cases involve relief of an

injunctive nature which must prove its efficacy over a period

of time, the timeliness requirement for intervention in these

cases must be one of substantive timeliness. As was stated

by the Tenth Cireuit in a per curiam opinion:

...[P]roceedings of this nature (school desegregation )

which continue over such an extended period of time

are unique in respect to the timing of the arrival and

departure of parties. In our opinion, intervention and

withdrawal should be freely granted so long as it does

not seriously interfere with the actual hearings.

Dowell v. Board of Education of Oklahoma City Public

Schools, 420 F.2d 865, 868 (10th Cir, 1970). Thus, timeliness

should not be perfunctorily rejected due to time elapsed, but

is to be guided by the established rule that “(Timeliness is

to be determined from all the circumstances.” NAACP v.

New York, 413 U.S, 345, 366 (1973).

Under these standards, Petitioners’ Motion to Intervene

was timely. If granted, the intervention would not have

interferred with past developments in the case and would

have had an impact only on future remedial hearings.

ll. Intervenors Are Entitled To Intervention of Right Pursuant

To Rule 24(a)(2) of the Federal Rules of Civil Procedure

Rule 24(a) (2) of the F.R.Civ.P. provides:

(a) Intervention of Right. Upon timely application,

anyone shall be permitted to intervene in an action:

... (2) when the applicant claims an interest relat-

ing to the property or transaction which is the sub-

ject of the action and he is so situated that the dis-

position of the action may, as a practical matter,

impair or impede his ability to protect that interest,

12

unless the applicant’s interest is adequately repre-

sented by existing parties.

Thus, the Rule sets forth three requirements for inter-

vention of right: (1) substantial interest; (2) possible im-

pairment of the interest; and (3) inadequate representation

—all of which were and are present in this case.

A. PETITIONERS HAVE A SUBSTANTIAL INTEREST IN THE OUTCOME OF

THE LITIGATION BELOW

While the “interest” necessary to satisfy the require-

ments of Rule 24(a)(2) is not susceptible to precise defini-

tion, courts generally have agreed that a sufficient interest

is Shown where a prospective intervenor has demonstrated

a meaningful stake in the outcome of an action. This liberal

interpretation is consonant with the broad intent of the

Federal Rules to assure all interested parties their day in

court, and to dispose of lawsuits”... by involving as many

apparently concerned persons as is compatible with effici-

ency and due process.” Nuesse v. Camp, 385 F.2d 694, 700

(D.C. Cir. 1967).

Intervention of right is repeatedly granted to commer-

cial interests concerned with the potential loss of their

profits. See Cascade Natural Gas Corp. v. El Paso Natural

Gas Co., 368 U.S. 129 (1967) (a gas purchaser guarding

against a competitive disadvantage by its supplier as the

result of an antitrust suit); Atlantis Development Corp. v.

United States, 379 F.2d 818 (5th Cir. 1967) ( a development

corporation seeking to assert its ownership over a coral reef

as against the United States and two other companies)

Nuesse v. Camp, supra, 385 F.2d 694 (D.C. Cir. 1967) (a

state banking commissioner in an action brought by a state

bank against the United States Comptroller of Currency

seeking to enjoin the authorization of a particular national

bank).

13

In this'case, Petitioners seek to protect a more vital and

substantial interest: the right of limited English speaking

children to an equal educational opportunity. In Law v.

Nichols, 414 U.S, 563 (1974) this Court upheld the authority

of the Department of Health, Education and Welfare

(HEW) to require School Districts to take affirmative steps

to overcome the English language handicaps of national

origin minority children. Since that time Congress has

passed legislation embodying and expanding this obligation

(20 U.S.C. 1703(F)) ; HEW has issued clarifying guidelines

requiring that elementary school students be taught in a

language they understand while learning English*, and

many states have passed Bilingual Education legislation.®

While each of these pedogogical and legal initiatives can be

accommodated in a desegregation plan, conflict will neces-

sarily occur if expertise and thought are not brought to

bear on the issue. For example, the dispersal of limited

English proficient students without consideration of their

educational needs and legal rights can lead to the destrue-

tion of clusters which are needed to provide administra-

tively viable programs. These interests have been protected

where intervention has been granted. Morgan v. Kerrigan,

supra; Evans v. Buchanan, supra; Arthur v. Nyquist, 1972-

325 (W.D. NY July 9, 1975). Thus Petitioners’ interest can

and must be addressed in this and other desegregation

litigation.

4. “Task Force Findings Specifying Remedies Available For

Eliminating Past Educational Practices Ruled Unlawful Under

Lau v, Nichols”, Summer, 1975.

5. As of June 1976, 23 states had bilingual education legislation

or other special authorization for the teaching of limited English

proficient students. “State Education Agencies and Language Mi-

nority Student”’, National Center For Education Statisties (1978).

It is believed that this number has substantially increased in the

past four (4) years.

14

B. PETITIONERS’ INTERESTS WILL BE IMPAIRED UNLESS INTERVENTION IS

GRANTED

Although pupil reassignment to achieve desegregation

does not necessarily spell the destruction of bilingual pro-

grams, random dispersal of students and teachers in De-

troit’s programs could cause their demise. At the time of

Petitioners’ motion, no one was addressing how bilingual

programs could be preserved in the context of desegrega-

tion orders. Unless Petitioners are allowed to participate

in future remedial hearings, there is no guarantee that

anyone will address this crucial issue.

The need to cluster students in order to achieve the

fundamental objectives of bilingual-bicultural education is

inescapable. The Office of Education has recently recom-

mended that legislation designed to deal with the more

general problem of discrimination be modified to accomodate

the desperate need for ethnically identifiable groupings in

bilingual programs.® The Massachusetts Bureau of Bilingual

Education, the state agency, has found the failure to cluster

students the single most debilitating feature of the Boston

program.’ The Comptroller General’s Report to Congress

concludes that concentration of students is essential.’ The

Bilingual Education Act (20 U.S.C. 880(b)) stipulates that

age-grouping must be priority. In fact, the requirement in

the Michigan law which mandates bilingual programing

when the District has 20 or more students of a given lan-

guage classification is an implicit acknowledgment of the

6. U.S. Commissioner of Education. First Report to the Presi-

dent and the Congress. The Condition of Bilingual Education in

the Nation. HEW Publ. #(OE) 77-01704 (Nov. 1976), p. 101.

7. Mass. Bureau of Transitional Bilingual Education. Boston

Review Report. March, 1976. p. 3.

8. Comptroller General of the United States. Report to the Con-

gress. Bilingual Education: An Unmet Need, Gov’t Printing Office,

Washington, D.C., May 19, 1976.

15

administrative and financial difficulties of providing for a

few widely dispersed children.

Despite the need to cluster students for bilingual educa-

tion to ensure a sufficient number for three or four consecu-

tive classes in a given school and the need to place the

teachers where the students are, the Detroit School Board’s

first plan pursuant to the August 7 order did not address

these issues. It merely provided that children be moved

from schools in Region 2 to schools in Region 1.

The plan did not provide for identification of limited.

English speaking ability or for concentration of these chil-

dren in clusters adequate to pursue needed educational pro-

grams. It thus contained the seeds for destruction of

existing programs without the mechanism for creating new

programs. If children are dispersed randomly, there are

unlikely to be sufficient clusters for conducting quality pro-

grams or sufficient numbers of qualified teachers to serve

the needs of individual children scattered throughout the

system.

If existing bilingual programs are disbanded and not re-

placed, the educational careers of Petitioners will be irrep-

arably damaged and they will be deprived, at least for a

time, of their right to bilingual instruction. Further, it may

take years to reconstitute adequate programs.

C. PETITIONERS’ INTERESTS AND THE INTERESTS OF THOSE THEY REPRE-

SENT WILL NOT BE ADEQUATELY REPRESENTED UNLESS INTERVENTION

IS GRANTED

Rule 24(a)(2) mandates that prospective intervenors,

who otherwise meet its requirements, be granted interven-

tion of right “unless their asserted interests are adequately

represented by other parties”.® The clear language of the

9. Prior to the 1966 Amendment to the Rule, it required an

affirmative showing that the existing representation of the prospec-

tive intervenor’s interest “is or may be adequate’’.

16

Rule thus thrusts the burden on those opposing interven-

tion to affirmatively demonstrate the adequacy of repre-

sentation. This provision, like the other provisions of Rule

24, is to be construed liberally to permit intervention.

Nuesse v. Camp, supra, 385 F.2d at 702. This Court has held

that this requirement for intervention is satisfied:

. . if the applicant shows that representation of his

interest may be inadequate, and the burden of making

that showing should be treated as minimal. (emphasis

supplied)

Trbovich v. United Mine Workers of America, 404

U.S. 528, 538 (1972).

The Black plaintiffs who are the original plaintiffs in this

action do not adequately represent Petitioners’ interests in

securing equal educational opportunity for limited English

speaking Latino children. While the District Judge errone-

ously believed that Petitioners, by their Motion to Intervene

sought to exempt the Spanish-speaking from desegregation

efforts, he correctly perceived that the plaintiffs did not

represent Spanish-speaking interests. In the Memorandum

and Order denying Petitioners’ motion, he stated:

Plaintiffs’ only goal is to pursue their constitutional

right to a unitary school system, and not to continue

the concentration of bilingual programs in Region 2.

The intervenors, on the other hand, seek a statutory

right to bilingual programs. (A. 165)

The District Judge erroneously ruled and the Circuit

Court affirmed, however, that the Detroit School Board

adequately represented Petitioners’ interests. This finding

was based on the fact that the Detroit District had made

a presentation concerning its bilingual programs to the

Court and had opposed the Court’s idea to disperse the

17

programs located in Region 2. The Court was of the im-

pression that “the proposed intervenors could not have

presented better evidence on their behalf”, and that inter-

venors could not possibly match the District’s expertise in

bilingual education.

While Petitioners do not dispute that the District is

conducting bilingual educational programs in Region 2, that

the District’s director of bilingual education can describe

these programs, and that the District would prefer that the

programs remain in Region 2, these factors do not in them-

selves indicate the highest possible degree of expertise.

Neither do they necessarily indicate identity of interest and

adequacy of representation. For example, after the August

7 order indicated that students must be reassigned from

Region 2 to Region 1, it was Petitioners, not the District,

who provided the Court with examples of pupil reassign-

ment orders compatibly dealing with the concepts of bi-

lingual education and desegregation.

While the school district has not affirmatively opposed

the position taken by appellants and in fact agrees in some

measure with their position, it does not adequately repre-

sent their interests within the meaning of Rule 24. The

Board of School Directors has a potential conflict of interest

in representing the school community at large and the par-

ticular interests of limited English speaking children.

One example of the type of conflict that can arise is

reflected in the instant litigation. The School District has

taken the position that the desegregation of Hispanic and

Black students is counterproductive. This has led them, at

various junctures, to gloss over the difference between

Hispanic limited English speaking students and Hispanic

students not in need of bilingual programming. In part,

r

18

these efforts triggered the District Court’s antagonism

toward bilingual education which led to the necessity of

the intervention.

Tn a somewhat analogous situation, this Court held that an

individual had a right to intervene in a lawsuit brought by

the government to protect that individual’s rights. Trbovich

v, United Mine Workers, supra. There, the Secretary of

Labor pursuant to his powers under the Labor Management

Reporting and Disclosure Act sued to set aside certain union

elections. A union member had unsuccessfully sought to

intervene in that action.

This Court recognized that the Secretary had two dis-

tinct duties: one, to act as the “lawyer” of the individual

union members to enforce their rights; and two, to protect

the public interest in assuring democratic unions,

Both functions are important, and they may not always

dictate precisely the same approach to the conduct of

litigation. Even if the Secretary is performing his

duties, broadly conceived, as well as can be expected,

the union members may have a valid complaint about

the performance of “his lawyer”. Such a complaint...

should be regarded as sufficient to warrant relief in the

form of intervention under Rule 24(a)(2). 7d. at 538-

539.

Similar potential conflicts exist in the instant situation.

The Cireuit Court failed to consider this fact, and thus mis-

applied the law.

CONCLUSION

The Cireuit Court found that Petitioners’ interests were

“legitimate and substantial”, yet it denied our motion to

intervene. Its ruling, allowed to stand, will affect not only

the language minority children in Detroit but will set pree-

edent which could deny participation by language minority

children throughout the Country in formulating orders

19

which are essential to their receipt of equal educational

opportunity. Because the Circuit Court ruling is bad policy

and founded on a misapplication of the law, it should be

reversed, This Petition for Writ of Certiorari should issue

to review the judgment and opinion of the Court of Appeals

for the Sixth Circuit.

Respectfully submitted,

Viema 8S. Martinez

Peter D. Roos

Mexican American Legal Defense

and Educational Fund

28 Geary Street, 6th Floor

San Francisco, CA 94108

(415) 981-5800

Attorneys for Petitioners

Dated: July 21, 1980.

Appendix

United States District Court

Eastern District of Michigan

Southern Division

September 1, 1978

CIVIL ACTION

No, 35257

Ronaup Bran.ey, et al.,

Plaintiffs,

and

Lutac Council No. 11054,

a Non-Profit Corporation, et al,

Plaintiff s-Intervenors,

VS.

WituiaM G. Mituiken, Governor of the State

of Michigan, et al.,

Defendants.

MEMORANDUM AND ORDER

LULAC Council No. 11054 and the other named inter-

vernors have filed a “Proposed Complaint in Intervention”

and a separate “Motion To Intervene As Parties Plaintiff.”

These proposed intervenors are individual children and or-

ganizations whose members include parents of Spanish-

surnamed children participating in bilingual programs in

the Detroit Public Schools. They seek intervention “to in-

sure that the Bilingual Education programs they are en-

titled to receive do not suffer as a result of the implementa-

tion of a remedial plan in Region 2 or elsewhere ... .”

Complaint {[ 3.

In their motion to intervene, the proposed intervenors

contend that they are entitled to intervene as a matter of

right, pursuant to Fed. R. Civ. P. 24(a), They argue that

2 Appendix

they, and the separate class they seek to represent, have a

substantial interest in any remedial plan adopted by the

court which includes Region 2, where they and a majority

of their class live; that they have unique :ducational needs

which require an expertise that existing plaintiffs do not

have; and that only they can protect the current program

for bilingual education in Region 2. Alternatively, the pro-

posed intervenors seek permissive intervention, pursuant to

Fed. R. Civ. P. 24(b).

Only the defendant Detroit Board and the State defend-

ants filed a response to the motion to intervene. The defend-

ant Detroit Board does not take a definitive position with

respect to the motion, but they reserved the right to appear

and argue at any future hearing, The State defendants

oppose intervention, arguing that the interest of Spanish-

surnamed students in bilingual programs is now adequately

represented by the plaintiffs. The State defendants further

argue that the petition is untimely since it was filed more

than seven years after this action was commenced and three

years after this court’s remedial decree. The moving parties

did not request a hearing, and we are now prepared to

rule on the merits of their motion to intervene.

See Local Rule [X(j).

We cannot agree with the State defendants that the inter-

ests of the proposed intervenors are adequately represented

by the plaintiffs. As we understand the proposed complaint

for intervention, the movants seek to exclude Region 2 from

any pupil reassignment plan because, in their view, the

bilingual classes they attend would otherwise be detrimen-

tally affected. Plaintiffs, on the other hand, object to re-

stricting bilingual programs to one region because it pro-

vides neighborhood schools for one ethnic group to the

exclusion of all others. Therefore, the plaintiffs did not and

Appendix 3

cannot represent the interests of the proposed intervenors.

Plaintiffs’ only goal is to pursue their constitutional right

to a unitary school system, and not to continue the concen-

tration of bilingual programs in Region 2. The intervenors,

on the other hand, seek a statutory right to bilingual

programs,

We do agree with the State defendants, however, that

this motion is untimely. LULAC did not apply for inter-

vention until long after the evidentiary hearings were over

and our opinion was prepared for filing. In that opinion

we disapproved of the Board’s wholesale exclusion of

Spanish-surnamed students from the pupil reassignment

remedy. We have already held that :

This case began as and remains a racial desegrega-

tion case, and for school assignment purposes Spanish-

surnamed students cannot be treated differently than

other white students. Bilingual education is not a justi-

fication for treating one ethnic group in isolation nor

is it a substitution for desegregation. Opinion of Au-

gust 7, 1978, at 24 (citation omitted).

In any event, the defendant Detroit Board has more than

adequately protected the interests of the proposed inter-

venors. At the latest hearings, the Detroit Board called as

an expert witness Mr. Felix Valbuena, the Director of Bi-

lingual, Bicultural Education for the Detroit Public

Schools. Mr. Valbuena made a careful presentation of the

bilingual program in the city and explained the need to

preserve those programs. The Detroit Board vigorously

opposed every suggestion that would disturb current bi-

lingual programs in Region 2. See Opinion, August 17,

1978 at 23-24. We are persuaded that the proposed inter-

venors could not have presented any better evidence in

their own behalf,

4 Appendix

In Robinson v, Shelby County Board of Education, 330

F. Supp. 837 (W.D. Tenn, 1971), the court refused to allow

white pupils and parents to intervene in order to challenge

an order clustering a white school with a black school. The

court there also indicated that the interests of the proposed

intervenors were adequately protected by the defendant

Board of Education. Jd, at 849. The instant case is very

similar in that here certain students are really arguing that

they should not have to participate in the desegregation

remedy. See Hatton v. County Board of Education, 422 F.2d

457, 461 (6th Cir. 1970) ; cf. Penick v. Columbus Education

Association, 574 F.2d 889 (6th Cir. 1978).

Tn addition, we decline to allow the proposed intervenors

to intervene under Fed. R. Civ. P. 24(b). The motion to

intervene is simply much too late, If the court were to allow

intervention, the parties would have to relitigate issues that

have already been extensively litigated at great expense.

See Penick v. Columbus Education Association, 574 F.2d

889 (6th Cir. 1978). Moreover, the intervenors could not

possibly match the expertise of the Detroit Board in Bi-

lingual/Bicultural Education. Since the Detroit Board and

the intervenors have identical goals, no useful purpose

could be served by granting intervention pursuant to Rule

24(b).

NOW, THEREFORE, IT IS ORDERED that the motion

to intervene be, and hereby, is DENIED.

Rosert FE. DeMascro

United States District Judge

Dated: September 1, 1978

Appendix 5

PURSUANT TO RULE 77(d), FED, R. CIV. P.

COPIES HAVE BEEN MAILED TO THE

FOLLOWING:

George T. Roumell, Esq.

George L. McCargar, Esq.

Theodore Sachs, Esq. 7777?

ON September 1, 1978.

Sherry Stamps

DEPUTY COURT CLERK

Appeal on old P. App. 47 Follows—

6 Appendix

Appeal from the United States District Court

for the Eastern District of Michigan.

Ronawp Brap ey, et al.,

Plaintiff s,

Luxtac Councit No, 11054, et al.,

Proposed Plaintiffs Intervenors-Appellants,

v.

WituiaM G. Mituiken, et al., and Boarp or Epucation

of the School District of the City of Detroit, et al.,

Defendants-Appellees.

Decided and Filed April 14, 1980.

Before: Epwarps, Chief Judge, and Puruurres and Pecr,

Senior Circuit Judges.

Per Curram. 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

desegregation case. We affirm the district court’s decision,

but direct that appellants be permitted to intervene for the

limited purpose 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 educa-

tion. That interest, appellants felt, was imperiled by the

district court’s order that some white students in Detroit’s

Administrative 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 programs are located there. Appellants

are concerned that indiscriminate reassignment of Hispanic

Appendix 7

students to inner-city schools will produce shortages of

Spanish-bilingual teachers and resource materials, interfere

with established pilot programs, 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.

However, the court had already rejected the Board’s argu-

ment for excluding Hispanos; it thought allowing appellants

to intervene would force relitigation of that issue, Further-

more, 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 intervention.

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

reassignment but merely to ensure that reassignments are

made with students’ bilingual-educational needs in mind,

we think appellants’ interest is adequately represented by

the Detroit Board. Dr. Felix Valbuena, the Director of

Bilingual Education for the Detroit school system, cau-

tioned the court that reassigning Hispanic students out of

Region 2 schools, let alone doing so indiscriminately, would

jeopardize the district’s ability to provide quality bilingual

education as required by law. Recognizing that danger, vet

faced with this court’s mandate to desegregate inner-city

8 Appendix

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 pro-

grams [where necessary] to maintain the current 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 think 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 proceed-

ings. 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 protracted remedial proceedings without producing

any countervailing 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

Spanish-speaking children of Detroit in future remand pro-

ceedings, Correspondingly, we suggest the court encourage

and consider such amicus views in evaluating any reassign-

ments 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 liti-

gated, 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

Appendix 9

the reasons stated in Part IV of our opinion in that case,

— F.2d at —, we think representatives of Detroit’s His-

panic community must be allowed to participate as inter-

venors in the remand hearing on the limited 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. dented, 424 U.S. 910 (1976); Tasby v.

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

939 (1975). Appellants 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.

10 Appendix

Nos. 78-1597 and 79-1005

United States Court of Appeals

For the Sixth Circut

AppraL from the United States District court

for the Eastern District of Michigan.

RonaLp BRADLEY, ET AL.,

Plaintiff s-Appellees,

Vv.

Wiliam G. MILLIKEN, GovERNoR,

ET AL.,

Defendants-Appellees,

and

Boarp oF EpucatTION OF THE SCHOOL

District oF THE City or De-

TROIT, ET AL.,

Defendants-A ppellants.

Decided and Filed April 14, 1980.

Before Epwarps, Chief Judge, and Puiiuies and Peck,

Senior Circuit Judges.

Puiturps, Senior Circuit Judge. On July 25, 1974, the

Supreme Court remanded this case to the district court for

“prompt formulation of a decree directed to eliminating

the segregation found to exist in Detroit city schools, a

remedy which has been delayed since 1970.” Milliken v.

Bradley, 418 U.S. 717, 753 (1974) (Milliken I). Nearly six

years have elapsed since that remand, and almost ten years

since this litigation began, yet we are unable to hold on the

record before us that de jure segregation has been elimi-

Appendix 11

nated from the Detroit school system. We conclude that we

must send the case back to the district court for further

proceedings.

The present appeal presents four questions for decision:

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

and demographic changes in Detroit have obliterated all

traces and effects of past acts of discrimination by the

Detroit School Board and the State of Michigan? Part II

of this opinion rejects the ruling of the district court as

contrary to the law of this case and clearly erroneous. (2)

Was the district court correct in holding that the over-

whelming percentage of black students in the Detroit school

system precludes including 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 error, 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 additional pupil reassignments be-

tween schools in Regions 1 and 2? Part IV of the opinion

affirms in principle the propriety of additional pupil reas-

signments, but remands the case for a hearing on the ques-

tion whether Hispanic students should be treated as white

for desegregation purposes. (4) Did District Judge Robert

EK. DeMascio abuse his discretion in declining to recuse

himself from the remand proceedings in this case? Part V

finds no abuse of discretion, but suggests, in view of the

bitter feelings that have developed, that the case be reas-

signed to another judge on remand from this court’s deci-

sion on the present appeal.

12 Appendix

I

This protracted litigation began in 1970. On April 7 of

that year, the Detroit Board voluntarily adopted a modest

plan to desegregate some of the Detroit high schools. The

State legislature, however, blocked implementation of that

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

A citizen-initiated recall election resulted in the replace-

ment 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 prelimin«ry injunction requiring the Board to im-

plement the April 7 plan. The late District Judge Stephen

J. Roth denied plaintiffs’ application for a preliminary in-

junction and they appealed. This court held §12 of Act

No. 48 unconstitutional, but affirmed the denial of a pre-

liminary injunction and remanded for a trial on the merits,

433 F.2d 897 (6th Cir. 1970). On remand, Judge Roth again

refused to grant a preliminary injunction, and this court

affirmed, again directing 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 com-

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 uncon-

stitutional de jure segregation created by acts and policies of their

predecessors and former State officials. References in this opinion

to the Board’s discriminatory acts should be read as references to

the actions of past, not present, Board members.

Appendix 13

mitted “acts which have been causal factors in the segre-

gated condition of the public schools in the City of Detroit,”

338 F.Supp. 582, 592 (1.D. Mich. 1971).

Judge Roth determined that true desegregation could not

be accomplished within the geographical limits of Detroit.

Distributing the relatively small number of white students

remaining in the district throughout the schools, he held,

would render the entire system identifiably black. Accord-

ingly, he ordered the defendants to submit metropolitan

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

This court, sitting en bane, 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 T).

Judge Roth had died shortly before the Supreme Court

issued its opinion, and District Judge Robert FE. 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 T. Judge DeMascio re-

quired the parties to submit desegregation plans, but re-

jected them as unsatisfactory. His August 15, 1975 opinion,

reported at 402 F.Supp. 1096 (.D. Mich. 1975), established

guidelines to be met by an acceptable remedial plan. Here-

after, they are referred to as the August 15 guidelines.

14 Appendix

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

gation plan dri.ted by the Detroit Board in an effort to con-

form to the August 15 guidelines. 411 F.Supp. 948 (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 reme-

dial decree provided for various Educational Components,

requiring establishment of certain training, remedial, test-

ing, counseling, monitoring and public relations programs.

This court affirmed the remedial decree’s Educational

Components 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

reassignment plan left approximately 83,000 students with

no relief from unconstitutional de jure segregation. More-

over, 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 adequate 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 IT).

Before the district court commenced remand proceedings,

the plaintiffs moved Judge DeMascio to recuse himself from

Appendix 15

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 partial-

ity 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

DeMascio declined to recuse himself. 426 F.Supp. 929 (B.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

faculty 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

conclusion 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

shif’ 3, 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 assignments, 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 exelu-

sion of the inner-city regions from the pupil reassignment

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

Nevertheless, the court found there were some white

students available in Region 2 to desegregate certain Re-

gion 1 schools. The Board objected that many of these white

16 Appendix

students were Spanish dominant Hispanics involved in

bilingual educational programs that would be disrupted by

additional pupil reassignments. However, Judge DeMascio

felt this court’s opinion mandated whatever reassignments

were possible, despite any burden on bilingual programs.

460 F. Supp. at 312. In a supplemental opinion, Judge

DeMascio ordered the Detroit Board to develop a plan for

reassigning pupils between Regions 1 and 2 which would

provide for bilingual education in receiving schools. Ow

November 11, 1978, the court adopted the Board’s respon-

sive 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

reassignments between Regions 1 and 2. The plaintiffs cross-

appeal from Judge DeMascio’s decision not to recuse him-

self, his holding that demographic changes have obliterated

the effects of defendants’ prior discriminatory acts, and his

conclusion that Region 1, 5 and 8 were properly excluded

from the pupil reassignment plan. This court stayed imple-

mentation of the additional reassignment plan pending the

outcome of this appeal.

II

The first question we address is whether Judge DeMascio

was correct when he decided that demographic changes and

the growth of the Detroit school system’s proportion of

black students have obliterated the effects of defendants’

past discriminatory 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 diserim-

Appendix 17

inatory 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 re-

actions by the Detroit Board of Education to chang:

ing residential patterns. The optional and gerrymand-

ered attendance zones served the purpose of keeping

white students out of schools that, in the absence of

such polices, would have become, and in fact have be-

come, integrated naturally. Judge Roth did not find,

however, that these policies in turn created additional

residential segregation which in turn created addi-

tional 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’ ac-

tions could have had only temporary segregative effects,

effects that have been nullified by the almost total dis-

placement of whites from formerly integrated neighbor-

hoods:

These pronounced demographic shifts, first predicted

by Judge Roth, and the predominance of the black

student population have obliterated the optional and

gerrymandered attendance zones which permitted

white students to avoid attending integrated schools,

the practice of bussing black students from over-

crowded schools beyond a closer white school and the

practice of altering feeder patterns in racially chang-

ing 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.

18 Appendix

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 at-

tendance areas of opposite predominant racial composi-

tions.” 338 F. Supp. at 587. “The natural, probable, fore-

seeable and actual effects of these optional zones was to

allow white youngsters to escape identifiably ‘black’

schools.” Jd. 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.” Jd. Finally, by constructing

many small schools and locating new schools in areas of

one race, the Board negated opportunities to integrate,

contained the black population, and compounded school

segregation. Jd.

The plaintiffs presented evidence that the Board’s dis-

criminatory actions affected not only schools but residential

patterns. For example, in affirming Judge Roth’s finding

of de jure segregation, this court quoted the following ex-

change between plaintiffs’ counsel and Dr. Gordon Foster

of the University of Miami, director of the Florida School

Desegregation Consulting Center, concerning optional at-

tendance zones:

“Q. Doctor Foster, from your examination of the

1950 census and in turn the 1960 census exhibits, do

Appendix 19

you have an opinion as to the effect of such an optional

zone on the community residence pattern in the com-

munity?

* * *

“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

isolation and, in fact, physical containment.

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

the residence pattern? I believe you testified in 1950

the optional area was entirely white to zero to 4.9 per

cent white.

* * *

“A. In my opinion this tends to increase the in-

stability of the community because they generally feel

this is an ad hoe 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 respon-

sible for segregated residential patterns:

Governmental actions and inaction at all levels, fed-

eral, state and local, have combined, with those of

private organizations, such as loaning institutions and

real estate associations and brokerage firms, to estab-

lish and to maintain the pattern of residential segrega-

tion throughout the Detroit metropolitan area.

... LAJll of them, including the school authorities,

are, in part, responsible for the segregated condition

20 Appendix

which exists. And we note that just as there is an inter-

action between residential patterns and the racial com-

position of the schools, so there is a corrseponding

effect on the residential pattern by the racial composi-

tion 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 segre-

gation, we stated:

This record contains a substantial volume of testi-

mony 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 Detroit Board of Education and by

the State defendants resulting in segregated schools

in Detroit, we have not relied at all upon testimony

pertaining to segregated housing except as school con-

struction programs helped cause or maintain such seg-

regation.

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

See also Millikin 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

segregation).

Moreover, Judge Roth’s conclusion that present Detroit

housing patterns reflect the Board’s past discrimination ac-

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 com-

plex. They must decide questions of location and ¢a-

Appendix 21

pacity in light of population growth, finances, land

values, site availability, through an almost endless list

of factors to be considered, 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 location of

schools may thus influence the patterns of residential

development of a metropolitan area and have im-

portant impact on composition of inner-city neigh-

borhoods.

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 some-

times, 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 popu-

lation 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 influence the short-run com-

position of the student body of a new school. It may

well promote segregated residential patterns which,

when combined with “neighborhood zoning,” further

lock the school system into the 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

22 Appendix

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 residential 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 sub-

stantial reciprocal effect on the racial composition of

other nearby schools. So also, the use of mobile class-

rooms, the drafting of student transfer policies, the

transportation of students, and the assignment of

faculty and staff, on racially identifiable bases, have

the clear effect of earmarking schools according to

their racial composition, and this, in turn, together with

the elements of student assignment and school con-

struction, may have a profound reciprocal effect on the

racial composition of residential neighborhoods 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

defendants’ discriminatory policies helped to drive whites

from the Detroit school district and to contain blacks in an

ever-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’ dis-

criminatory policies have been obliterated by the very demo-

Appendix 23

graphic changes those policies helped to produce. We con-

clude 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

segregated residential patterns and the one race schools

that now exist in Detroit. Judge Roth found that de jure

school segregation encouraged whites to flee from racially

changing neighborhoods 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 popu-

lation changes themselves are in part vestiges of past

discrimination.

III

We turn our attention next to the holding of the district

court that the overwhelming percentage of black students

in the school district as a whole and particularly in the

inner-city regions, coupled with the small number of white

students even theoretically available for reassignment, fore-

close the possibility of including any schools located in

Regions 1, 5 and 8 in the pupil reessignment 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.”

24 Appendix

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

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

show the resultant all black schools are not the product of

past discrimination. This would be particularly difficult, we

warned, because these very regions were the ones hardest

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

cannot hold,” we concluded, “that where unconstitutional

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

which fails to deal with the three regions where the majority

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

at 240,

On remand, the Detroit Board attempted to justify its

exclusion 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 enroll-

ment. 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 district’s enrollment would be

91.8% black by 1981. Moreover, the district court found,

residential areas near the school district’s fringe are becom-

ing 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-

eity schools would require the Board to scatter the remain-

ing white students to such an extent that there would be no

meaningful interaction between the races in any school. The

Appendix 25

result would be mere token integration of the inner-city

schools achieved at the cost of disrupting previously ap-

proved assignment patterns that effectively desegregate the

schools in other regions.

To illustrate the futility of attempting to include the

inner-city regions, Judge DeMascio turned to statistics.

Pointing out that the district court had repeatedly rejected

the notion of making all schools identifiably black, Judge

DeMascio held that only the excess of non-black over black

students in any given school could be considered available

for reassignment to schools in Regions 1, 5 and 8, The

Board’s evidence showed there were 31 majority white

elementary schools in the district with 3397 students avail-

able 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 aecomplish 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 he an all-or-noth-

ing proposition. Form the outset of this litigation’s post-

Milliken T remedial phase, Judge DeMascio seems to have

assumed that the inner-city regions must he treated in isola-

tion from the rest of the district. See, e.9., 402 F. Supp. at

26 Appendix

1129 (holding that the negligible benefits of including the

inner-city do not justify “the extraordinary remedy of such

cross-regional bussing”). 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 iso-

lated treatment of one part of metropolitan Mobile, we

found it “equally unacceptable to treat Regions 1, 5 and 8

in isolation from the rest of the Detroit school system.”

540 F.2d at 238.

We see no reason to treat the borders of the Detroit

school system’s inner-city administration regions as sacro-

sanct. In the first place, Detroit’s regional scheme of school

administration originated with Act No. 48, Public Laws of

1970, the same law whose $12 we found to be an unconstitu-

tional 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 Detroit School Dis-

trict. Judge Roth’s ruling that the Detroit Board carried

out a systematic program of segregation established a pre-

dicate 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

Appendix 27

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

reassignment 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 recognized from the first that some one race schools

are unavoidable under a Detroit-only plan. See 540 F.2d at

237; 484 F.2d at 249. It, therefore, is irrelevant that there

are 11 times as many black students in all the inner-city

elementary schools combined as there are white students

available for reassignment. 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 excluding some, and perhaps

many, inner-city schools from the pupil reassignment plan.

We emphasize that the need to cross regional lines does

not justify such exclusion.’

2. In faet, Judge DeMascio’s remedial guidelines specified that,

when the Board attempted rezoning to achieve integration in other

regions without transporting students, “regional lines need not be

respected ; when the choice is between preserving regional lines and

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

3. The decision of the district court to treat the inner-city re-

gions as units and to exclude them entirely from the reassignment

plan distinguishes this ease 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 stu-

dent population, to order further pupil reassignments even though

92 of the system’s 148 schools were over 90 per cent black. However,

28 Appendix

On remand, the district court should apply substantially

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

1134, swpra, but without regard to the boundary lines of ad-

ministrative 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 integrated schools identifiably (more than 55 per

cent) black. Where practicable, attendance zones should be

redrawn across regional lines to include inner-city pupils

in integrated schools. Where rezoning is impossible, as we

anticipate it will be in most instances, schools with white

students available for reassignment should be paired with

the closest feasible inner-city school. In order to achieve

effective levels of desegregation, 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 particuiar 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 con-

sistent with the fourteenth amendment.” 540 F.2d at 240.

The district court’s error was its failure to apply its reme-

there is no indication those 92 identifiably black schools were con-

centrated in one or several administrative regions left wholly

untouched by the pupil reassignment plan. Moreover, if we were

convinced that the Fifth Cireuit permitted Atlanta’s desegregation

plan to be limited by intra-district administrative lines, we would

be forced to disagree with its decision.

Appendix 29

dial 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

interests 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 guidelines is not based on any failure to consider

the problem in depth. It is hased upon the conviction

which this court had at the time of its en bane opinion

in this case—and for the reasons carefully spelled out

therein—that genuine constitutional desegregation can

not be accomplished within the school district bound-

aries of the Detroit School District.

540 F.2d at 240.

The district court, however, apparently interpreted the

above-quoted comment as a recognition by this court that

effective pupil reassignments cannot be achieved in any of

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

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

so read. Although genuine constitutional desegregation may

be impossible within the Detroit district, this court has the

obligation to see that all practicable steps are taken to

remedy the unconstitutional segregation that has been

found to exist. To that end, the district court’s exclusion of

30 Appendix

all schools in Regions 1, 5 and 8 from the pupil reassign-

ment plan is reversed and the cause remanded for further

consideration in light of this opinion.

IV

Despite his conclusion that “no more desegregation is feas-

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

Judge DeMascio determined there are white students in

Region 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 argu-

ment. 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 De-

troit’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 311. Over all, black students accounted for only

62% of the Region’s 1977 enrollment. Furthermore, four-

teen elementary schools in Region 2 had a total of 2145

white students available for reassignment. Thus, the court

concluded, numbers alone pose no obstacle to reassigning

Region 2 whites to Region 1 schools. /d.

Judge DeMascio apparently felt the concentration in Re-

gion 2 of programs of bilingual education for Spanish dom-

inant 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

Appendix 31

provides Hispanic families not only with neighborhood

schools but with an incentive to concentrate in that region.

This artificial concentration 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 counteract this resegregative trend

and to comply with the mandate of this court that inner-

city schools be desegregated, the district 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 vet unitary, reassigning

Spanish-dominant students to Region 1 schools will disrupt

State required bilingual educational programs while achiev-

ing only token integration. Third, the Board says, His-

panic students cannot be treated as white for desegregation

purposes, We deal with these arguments 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

pattern 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 Board says. Pasadena held a district court

has no authority to order annual readjustments of attend-

ance zones to compensate 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,

32 Appendix

The short answer to this argument is that a racially neu-

tral 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 district lines and transportation problems. As

the Supreme Court recognized in Swann v. Charlotte-Meck-

lenburg Board of Education, 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 inade-

quate; such plans may fail to counteract the continuing

effects of past school segregation resulting from dis-

eriminatory location of school sites or distortion of

school size in order to achieve or maintain an artificial

racial separation. * * *

Tn 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 studnets any relief from de jure segre-

gation. Detroit is still far from achieving a racially neutral

attendance pattern. This is not a Pasadena situation.* See

Adams v. United States, supra, ...... F.2d ......, slip op. at 36

(the failure of the St. Louis Board ever to adopt a deseg-

regation plan to compensate for segregated residential pat-

terns makes Pasadena inapplicable).

The Board’s second argument is that reassigning Spanish-

dominant students to Region 1 schools will disrupt bilingual

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

unitary system, we need not decide whether the concentration of

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

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

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

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

Davis, 426 U.S. 229 (1976).

Appendix 33

educational programs while achieving only token integra-

tion. Dr. Felix Valbuena, the Director of Bilingual Eduea-

tion for the Detroit school district, testified that reassigning

Spanish speaking students currently enrolled in Region 2

bilingual programs would impede the Board’s ability to

develop a model program and train bilingual teachers; pro-

duce fear and anxiety for the students: limit community

participation and interest in the schools; produce shortages

of qualified bilingual teachers and necessary resource mate-

rials; and require the Board to adopt less efficient and

effective methods of instruction. In return for this disrup-

tion, the Board says, only 1600 students will he reassigned,

achieving token integration of only five of the thirty-one

Region 1 schools.

The Board’s coneern for the continued viability of its

bilingual educational programs is commendable, Cireum-

stances permitting, we might well agree that the desegrega-

tive 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 between maintaining optimal condi-

tions in a bilingual educational program and desegregating

all-black schools, desegregation 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 His-

panic students cannot be reassigned to desegregate identi-

fiably black schools because such students are themselves

minorities. In support of this argument, the Board cites

Keyes v. School District 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 stu-

34 Appendix

dents justified treating those students as minorities for

desegregation purposes:

We conclude, however, that the District Court erred

in separating Negroes and Hispanos for purposes of

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

nanos constitute an identifiable class for purposes of

the Fourteenth Amendment. * * * Indeed, the District

Court recognized this in classifving predominantly

Hispano schools as “segregated” schools in their own

right. But there is also much evidence that in the

Southwest Hispanos and Negroes have a great many

things in common. The United States Commission on

Civil Rights has recently published two Reports on

Hispano education in the Southwest. Focusing on stu-

dents in the States of Arizona, California, Colorado,

New Mexico, and Texas, the Commission concluded

that Hispanos suffer from the same educational in-

equities as Negroes and American Indians. Tn fact, the

District Court itself recognized that “[o]ne of the

things which the Hispano has in common with the

Negro is economic and cultural deprivation and dis-

crimination,” 313 F.Supp., at 69. This is agreement

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

predominance of Negroes and Hispanos included in

the category 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 eases cited therein.

Appendix 35

The common element justifying treatment of Hispanic

students as minorities in the Keyes, Midland, and Tasby

cases was each school system’s history of de jure segrega-

tion of Hispanos. In Keyes, the Supreme Court found

“Negroes and Hispanos in Denver suffer identical discrim-

ination.” 413 U.S. at 198. In the Midland case, “the record

clearly demonstrate[d] that the Midland School District

deliberately segregated Mexican-Americans from Anglos.”

519 F.2d at 62. The Tasby court found record evidence “to

establish the isolation of Mexican-American students in the

[Dallas school system] 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 sys-

tems that historically have discriminated against Hispanic

students, those students must be grouped with blacks rather

than whites for desegregation purposes.

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

torically, the Detroit school district has discriminated

against Hispanic students, we are unable, on the present

appeal, to affirm Judge DeMascio’s decision that “for

school assignment purposes Spanish-surnamed students

eannot be treated differently 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 re-

quire revision of the district court’s remedial guidelines

and a comprehensive review of previously approved assign-

ment patterns, at least in Region 2. This heing so, it is

36 Appendix

possible that the Board may not continue to assert its pres-

ent position on remand,

Nor is any other party to the present litigation likely to

argue there has been de jure segregation of Hispanic stu-

dents. The position of plaintiffs in the district court was

that concentrating bilingual programs in Region 2 provides

neighborhood schools which in turn induce Hispanic fami-

lies to move there. 460 F.Supp. at 312. The plaintiffs urged

that this resegregative effect should be countered by re-

assigning 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 indentifiably black schools. Thus, the plaintiffs have no

incentive to argue Hispanos have been the victims of de

jure segregation in Detroit. Simarily, the State of Michigan

defendants, who may well have to share the Board’s liability

for remedial costs if the court finds de jure segregation of

Hispanic students, seem unlikely to present evidence of

discrimination.

Because none of the existing parties is likely to argue

that Hispanic students have been victims of de jure segre-

gation in Detroit, the district court is directed to permit

individuals or organizations representing Detroit’s His-

panic community to intervene in the remand proceedings

for the limited purpose of presenting evidence on this

issue. Our opinion in the related case, No. 78-1598, —F.2d

— (6th Cir. 1980), recognizes the right of LULAC Council

No. 11054, and its co-appellants to intervene in these re-

mand proceedings solely on the issue of de jure segregation

of Hispanos. Should other individuals or organizations also

wish to intervene on behalf of the Hispanie community,

the district court will determine under Fed. R. Civ. P. 24

whether their interests are adequately represented hy

Appendix 37

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 Hispanie students

in the Detroit school system.

Unless the district court finds the defendants diserim-

inated 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 modifica-

tion thereof found to be desirable. We suggest, however,

that the district court permit LULAC Council No. 11054

et al. to participate as amici curiae in developing a reassign-

ment plan that will achieve the maximum amount of de-

segregation possible without neglecting the bilingual edu-

cational needs of Hispanic students. Before any additional

reassignments are implemented, including those contained

in the previously approved plan of the district court for

transporting Region 2 students to Region 1, they should he

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 Re-

gions 1 and 2 is vacated. The cause is remanded for a hear-

ing on the question whether Hispanic students should be

treated as white for desegregation purposes and for other

action consistent with the outcome of that hearing,

V

The final question we must address is whether Judge

DeMascio erred in declining to recuse himself from the

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

38 Appendix

Briefly, the plaintiffs argue Judge DeMascio violated 28

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

Conduct by engaging in various ex parte contacts and dis-

cussions with court-appointed experts, community groups

and representatives of the Detroit Board. In an opinion

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

DeMascio denied plaintiffs’ motion for recusal.

28 U.S.C. § 455(a), as amended,® 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

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

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

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

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

appeal, or other proceeding therein.”

There is agreement among the courts that the purpose of the

amendment was to change the standard for recusal from a subjec-

tive to an objective one, as well as to overrule the prior concept

that close eases 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 eases, such as this one, filed before

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

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

proceeding commenced prior to [Deec. 5, 1974] nor to appellate

review of any proceeding which was fully submitted to the review-

ing court prior to [that date].” The Fourth and Eighth Circuits have

held the amended version inapplicable to post amendment proceed-

ings in eases 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 Cireuit has disagreed. Potashnick v. Port City Construc-

tion Co., ........ yk OR, , 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 bane), 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.

Appendix 39

§ 455. Disqualification of justice, judge, magistrate,

or referee in bankruptcy

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

ruptey of the United States shall disqualify himself

in any proceeding in which his impartiality might

reasonably be questioned.

The plaintiffs complain that Judge DeMascio created the

appearance of partiality by meeting ex parte with the De-

troit Board’s representatives on August 15, 1975, even be-

fore plaintiffs’ counsel had received a copy of the court’s

just filed remedial guidelines, to discuss an impending

teachers’ strike. The plaintiffs also argue Judge DeMascio

engaged in what they term “negotiations” with the Board

in developing a desegregation 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 formality of an order,” he said. Jd. Concluding

that his actions were “well within [his] discretion and based

on substantial precedent.” Judge DeMascio held § 455(a)

did not require recusal. /d.

We agree. Although perhaps a bit unorthodox, Judge

DeMascio’s actions appear to us to have been judicial ac-

tivities. To make out a case for recusal under § 455(a), a

movant must rely on extra-judicial conduct rather than

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.

40 Appendix

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 decision that re-

cusal was not required.

The plaintiffs also complain that Judge DeMascio’s con-

duet 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 lawver,

full right to be heard according to law, and, except

as authorized by law, neither initiate nor consider

ex-parte or other communications concerning a

pending or impending proceeding. A judge, how-

ever, may obtain the advice of a disinterested ex-

pert on the law 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 reasonable opportunity to re-

spond.

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 edu-

eators 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 com-

plain the court’s experts did not file reports of record and

Appendix 41

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 De-

troit 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

emploved to advise the district court of any further matters

in this litigation, they shall prepare 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 responsibility of formulating a decree which

would eliminate the unconstitutional segregation found to

exist in the Detroit public schools, without transgressing

the limits established by the Supreme Court.” 540 F.2d at

236. Our review of Judge DeMascio’s various opinions and

orders inclines us not to disagree with District Judge

James P. Churchill’s assessment® of Judge DeMascio’s con-

duct in these remedial proceedings:

It is my opinion that the manner in which Judge

Robert Ff, DeMascio has presided in this ease has been

exemplary and should command the respect of the

parties, counsel, the judiciary, and the public.

426 F.Supp. at 944.

6. Judge Churehill’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 ereated the appearance of

partiality and so did not require reeusal in regard to faculty assign-

ments,

42 Appendix

However, in view of the public interest in the instant

school desegregation case, the challenge raised by the plain-

tiffs, and the bitter feelings that have developed, this court

suggests that, on remand, the Chief Judge of the District

Court for the Eastern District of Michigan reassign this

case either to himself or to another appropriate judge.

VI

It was indicated during oral argument that plaintiffs in-

tend to proceed with their efforts to establish, within the

guidelines enunciated by the Supreme Court in Milliken v.

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

for a metropolitan 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 pro-

ceed with the interdistrict litigation, if pursued by the

plaintiffs.

On remand, the district court will be empowered to make

further alterations in its previously approved remedial

plans, as the evidence may require.

The case is remanded to the district court for further

proceedings not inconsistent with this opinion and our pre-

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

Fach party will bear its own costs on this appeal.