Appendix — Milliken v. Bradley

Supreme Court brief1974

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INDEX TO APPENDIX

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Ruling on Issue of Segregation, dated September 27, 1971 17a

Ruling on Propriety of Considering a Metropolitan

“Remedy to Accomplish Desegregation of the Public

ndings of Fact and Conclusions of Law on Detroit-Only

> "Plans of Desegregation, March 28, 1972 ............. 53a

2 “Findings of Fact and Conclusions of Law in Support of

f Ruling on Desegregation Area and Development of

Eo > SE er er er ee 59a

on Desegregation Area and Order for Development

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. of Plan of Desegregation, June 14,1972 ............ 97a

| Order for Acquisition of Transportation, July 11,1972 .. 106a

der, United States Court of Appeals for the Sixth

———,

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

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RONALD BRADLEY and RICHARD

BRADLEY, by their Mother and Next

Friend, VERDA BRADLEY; JEANNE GO-

INGS, by her Mother and Next Friend,

BLANCHE GOINGS; BEVERLY LOVE,

JIMMY LOVE and DARRELL LOVE, by

their Mother and Next Friend, CLARISSA

LOVE; CAMILLE BURDEN, PIERRE

BURDEN, AVA BURDEN, MYRA BUR-

DEN, MARC BURDEN and STEVEN

BURDEN, by their Father and Next

Friend, MARCUS BURDEN; KAREN

WILLIAMS AND KRISTY WILLIAMS, by

their Father and Next Friend, C. WIL-

LIAMS; RAY LITT and Mrs. WILBUR

BLAKE, parents; all parents having chil-

dren 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 situ-

ated; and NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF COLOR-

ED PEOPLE, DETROIT BRANCH,

Plaintiffs, CIVIL ACTION

vs. NO. 35257

WILLIAM J. MILLIKEN, Governor of the

State of Michigan and ex-officio member of

Michigan State Board of Education;

FRANK J. KELLEY, Attorney General of

the State of Michigan; MICHIGAN STATE

BOARD OF EDUCATION, a constitutional

body corporate; JOHN W. PORTER, Act-

ing Superintendent of Public Instruction,

Department of Education and ex-officio

Chairman of Michigan State Board of Edu-

cation; BOARD OF EDUCATION OF THE

CITY OF DETROIT, a school district of

Smee ee eee ee ee eee ee eee ee ee ee”

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the first class; PATRICK McDONALD,

JAMES HATHAWAY and CORNELIUS

GOLIGHTLY, members of the Board of

Education of the City of Detroit; and

NORMAN DRACHLER, Superintendent of

the Detroit Public Schools,

Defendants.

COMPLAINT

The jurisdication of this Court is invoked under 28 U.S.C.

Sections 1331(a), 1343(3) and (4), this being a suit in equity

authorized by 42 U.S.C. Sections 1983, 1988 and 2000d, to re-

dress the deprivation under color of Michigan law, statute, custom

and/or usage of rights, privileges and immunities guaranteed by the

Thirteenth and Fourteenth Amendments to the Constitution of

the United States. This action is also authorized by 42 U.S.C. Sec-

tion 1981 which provides that all persons within the jurisdiction

of the United States shall have the same rights to the full and

equal benefits of all laws and proceedings for the security of per-

sons and property as is enjoyed by white citizens. Jurisdiction is

further invoked under 28 U.S.C. Sections 2201 and 2202, this be-

ing a suit for declaratory judgment declaring certain portions of

Act No. 48 of the Michigan Public Acts of 1970 (a copy of which

is attached hereto as Exhibit A) unconstitutional. This is also an

action for injunctive relief against the enforcement of certain por-

tions of said Act No. 48 and to require the operation of the

Detroit, Michigan public schools on a unitary basis.

Il.

Plaintiffs, Ronald Bradley and Richard Bradley, by their

Mother and Next Friend, Verda Bradley; Jeanne Goings, by her

Mother and Next Friend, Blanche Goings; Beverly Love, Jimmy

Love and Darrell Love, by their Mother and Next Friend, Clarissa

Love; Camillé Burden, Pierre Burden, Ava Burden, Myra Burden,

Marc Burden and Steven Burden, by their Father and Next Friend,

3a a

Marcus Burden; Karen Williams and Kristy Williams, by their

Father and Next Friend, C. Williams; Ray Litt and Mrs. Wilbur

Blake, parents, are all parents or minor children thereof attending

schools in the Detroit, Michigan public school system. All of the

above-named plaintiffs are black except Ray Litt, who is white

and who joins with them to bring this action each in their own

behalf and on behalf of their minor children and all persons simi-

larly situated.

Plaintiff, National Association for the Advancement of

Colored People, Detroit Branch, is an unincorporated association

with offices at 242 East Warren Avenue, Detroit, Michigan, which

sues on behalf of its membership who are members of the plaintiff

class. Plaintiff, N.A.A.C.P., has as one of its purposes the advance-

ment of equal educational opportunities through the provision of

integrated student bodies, faculty and staff.

>)

Ill.

Plaintiffs, pursuant to Rule 23 of the Federal Rules of Civil

Procedure, bring this action on their own behalf and on behalf of

all persons in the City of Detroit similarly situated. There are com-

mon questions of law and fact affecting the rights of plaintiffs and

the rights of the members of the class. The members of the class

are sO numerous as to make it impracticable to bring them all be-

fore the Court. A common declaratory and injunctive relief is

sought and plaintiffs adequately represent the interests of the

members of the class.

IV.

The defendants are:

1. William J. Milliken, Governor of the State of Michigan

and ex-officio member of the State Board of Education;

2. Frank J. Kelley, Attorney General of the State of

Michigan, who is responsible for enforcing the public acts and laws

of the State of Michigan;

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3. The Michigan State Board of Education, a constitutional

body corporate, which is generally charged with the power and re-

sponsibility of administering the public school system in the State

of Michigan, including the City of Detroit;

4. John W. Porter, Acting Superintendent of Public Instruc-

tion, Department of Education, in the State of Michigan, and ex-

officio member of the State Board of Education;

5. The Board of Education of the City of Detroit, a school

district of the first class, organized and existing in Wayne County,

Michigan, under and pursuant to the laws of the State of Michigan

and operating the public school system in the City of Detroit,

Michigan;

6. Patrick McDonald, James Hathaway and Cornelius

Golightly, all residents of Wayne County, Michigan, and elected

members of the Board of Education of the City of Detroit;

7. The remaining board members of the Board of Education

of the City of Detroit ;

8. Norm ] chler, a resident of Wayne County, Michigan,

and the appointed Superintendent of the Detroit Public Schools.

V.

Plaintiffs seek a declaratory judgment declaring the last sen-

tence of the first paragraph of Section 2a and the entirety of Sec-

tion 12 of Public Act No. 48 of the Michigan Public Acts of 1970

unconstitutional.

The challenged portion of Section 2a reads as follows:

Regions shall be as compact, contiguous and nearly equal as

practicable.

Section 12 reads as follows:

The implementation of any attendance provisions for the

Sa al

1970-71 school year determined by any first class school dis-

trict board shall be delayed pending the date of commence-

ment of functions by the first class school district boards

established under the provisions of this amendatory act but

such provision shall not impair the right of any such board to

determine and implement prior to such date such changes in

attendance provisions as are mandated by practical necessity,

In reviewing, confirming, establishing or modifying atten-

dance provisions the first class school district boards esta-

blished under the provisions of this amendatory act shall have

a policy of open enrollment and shall enable students to

attend a school of preference but providing priority accep-

tance, insofar as practicable, in cases of insufficient school

capacity, to those students residing nearest the school and to

those students desiring to attend the school for participation —

in vocationally oriented courses or other specialized curri-

culum.

Plaintiffs also seek a temporary restraining order and pre-

liminary and permanent injunctions against the enforcement of

said provisions of Act 48.

VI.

This is also a proceeding for a permanent injunction enjoining

the defendant, Board of Education of the City of Detroit, its

members and the Superintendent of Schools from continuing their

policy, practice, custom and usage of operating the public school

system in and for the City of Detroit, Michigan in a manner which

has the purpose and effect of perpetuating a biracial segregated

public school system, and for other relief, as hereinafter more

fully appears.

Vil.

On August 11, 1969, the Governor of the State of Michigan

approved Act No. 244 of the Public Acts of 1969 (Mich. Stats.

Ann. Section 15.2298), said Act being entitled, ““AN ACT to re

quire first class school districts to be divided into regional districts

and to provide for local district school boards and to define their

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powers and duties and the powers and duties of the first class dis-

trict board.” (A copy of Act No. 244 is attached hereto as Exhibit

B). Act No. 244 applies exclusively to the Board of Education of

the School District of the City of Detroit, that being the only first

class school district in the State of Michigan. The essence of Act

No, 244 is that it provides the mandate and means for the admini-

strative decentralization of the Detroit school system and the ex-

tent thereof.

On March 2, 1970, the Detroit School Board’s attorney ren-

dered an opinion (attached hereto as Exhibit C) advising the Board

that in effectuating decentralization under Act No. 244 the law

imposed three limitations:

1. The Act itself required each district to have not less than

25,000 nor more than 50,000 pupils;

2. The United States Constitution required each district to

be in compliance with the “‘one man, one vote” principle;

3. The United States Constitution, above all, required that

the districts be established on a racially desegregated basis.

VII.

In the 1969-70 school year, the Detroit Board of Education

operated 21 high school constellations providing a public educa-

tion for 281,101 school children (excluding 12,758 students not

listed in high school constellations and in adult programs). 61.9%

of these students were Negro, 36.4% were white, and 1.7% were of

other racial-ethnic minorities. Of the 21 high school constellations

operated by the Detroit School Board in 1969-70, 14 were racially

identifiable as “‘white” or “Negro” constellations. The high school

constellations contain within them 208 elementary schools, 53

junior high schools, and 21 senior high schools. Of the 208 ele-

mentary schools (enrolling 166,258 pupils), 114 (enrolling 92,225

pupils) are identifiable as “Negro” schools and 7] (enrolling

46,448 pupils) are identifiable as “white” schools. Of the 53

junior high schools (enrolling 63,476 pupils), 24 (enrolling 31,201

pupils) are identifiable as “Negro” schools and 18 (enrolling

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21,507 pupils) are identifiable as “‘white” schools. Of the 2]

senior high schools (enrolling 54,394 pupils, 11 (enrolling 25,35)

pupils) are identifiable as “Negro” schools and 6 (enrolling 19,183

pupils) are identifiable as “white” schools.

IX.

On April 7, 1970, the Detroit Board of Education adopted a

limited plan of desegregation (Exhibit D, attached hereto) for the

senior high school level, which plan was to take effect on a stair-

step basis over a period of four years so that by 1972, there

would be substantially increased racial integration. This plan for

high school desegregation comtemplated a change in high school

boundary lines, thereby changing the junior high feeder patterns in

twelve of Detroit’s 21 senior high schools. The plan was designed

so that by the year 1972, only three (as compared to the present

17) of Detroit’s senior high schools would be racially identifiable

as “‘Negro” or “white” high schools. The plan also provided that a

student presently enrolled in a junior high school and who has a

brother or sister presently enrolled in a senior high school would

continue in senior high school at the school his brother or sister

was presently attending. All those presently enrolled in senior high

school would not, due to the stair-step feature of the plan, be

affected and they would continue through graduation at the segre-

gated senior high school they were presently attending. The April

7 plan did not involve, nor did it affect, the existing racially segre-

gated pattern of pupil assignments in the elementary and junior

high schools.

X.

On April 7, 1970, the Detroit Board of Education by a four-

to-two vote (the seventh member, now deceased, expressing his

approval by letter from his hospital bed) adopted a regional

boundary plan (attached hereto as Exhibit D) for administrative

decen tion consisting of seven regions. The seven regions as

established by the Board on April 7, 1970 contained an average of

38,802 pupils per region with the smallest region containing

33,043 pupils and the largest region containing 46,592 pupils, ora

range of deviation of 13,549 pupils with an average deviation of

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2,892 pupils per region. The racial complexion of the pupil enroll-

ment in the seven regions averaged 61.7% Negro with the lowest

percent Negro region being 34.4% and the largest percent Negro

region being 76.7%, or a range of deviation of 42.3% Negro with

an average regional deviation of 10.5% Negro.

XI.

The actions of the Detroit School Board on April 7, 1970

approving a desegregation plan resulted in expressions of

“community hostility”. A movement to recall the four members

of the Detroit School Board who voted in favor of the April 7,

1970 action was initiated by white citizens. The recall movement

was resolved by the Detroit voters (of which a’ majority are white)

at the August 4, 1970 election, which resulted in the removal of

the four board members who had voted in favor of the April 7,

1970 plan. The April 7th plan created a similar reaction in the

Michigan State Legislature which culminated in the passage of

Public Act 48, interposing the State and voiding the partial dese-

gregation plan, which Act was approved by the defendant,

Governor Milliken, on July 7, 1970.

XII.

On July 28, 1970, the attorney for the Detroit Board of

Education rendered an opinion (attached hereto as Exhibit E) that

Act 48 has both the design aid the effect of completely elimi-

nating the provisions of the April 7th plan adopted by the Board.

Section 2a of the Act provides that “[r]egions shall be as com-

pact, contiguous and nearly equal in population as practicable.”

This. provision was intended to and does eliminate the efforts of

the Board on April 7, 1970 to create racially integrated regions.

Section 12 of Act 48 eliminates all provisions of the Board’s April

7th plan aimed at desegregation of the Detroit public schools by,

first, delaying the implementation of the attendance provisions

until January 1, 1971 and, second, by mandating an open enroll-

ment (“freedom of choice”) policy qualified only by a provision

providing students residing nearest a school with an attendance

Priority over those residing farther away. Section 12 has the fur-

ther effect of eliminating two policies of the Detroit Board of

——

Education: (1) prior to the adoption of Act 48, a student could

transfer to a school other than the one to which he was initially

assigned only if his transfer would have the effect of increasing

desegregation in the Detroit school system; (2) prior to the adop-

tion of Act 48, whenever pupils had to be bused to relieve over-

crowding, they were transported to the first and nearest school

where their entry would increase desegregation.

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XIll.

Pursuant to the provisions of Section 2a of Act 48, the defen-

dant, Governor William G. Milliken, on July 22, 1970 appointed a

three-member commission known hereafter as the Detroit Boun-

dary Line Commission to draw the boundary lines for the eight

public school election regions mandated by Act 48. On August 4,

1970 the Detroit Boundary Line Commission adopted its plan and

presented its boundary lines for the eight election regions as called

for in Act 48. The Boundary Line Commission’s August 4th plan

(a copy of which is attached hereto as Exhibit F) is a complete

negation of the Board’s April 7th region plan. The August 4th plan

creates eight regions with an average of 33,582 pupils in each

region with a range of deviation of 19,942 (the largest region con-

tains 43,025 pupils while the smallest region contains 23,083) and

an average deviation for each region of 22.9%. Under the plan

adopted by the Detroit Boundary Line Commission on August 4,

1970, there will be new racially segregated school regions estab-

lished in the defendant school system.

XIV.

Section 12 of the Act was enacted with the express intent of

preventing the desegregation of the defendant system. It applies to

but one school district in the State and reestablishes a policy

found by the United States Supreme Court to be an inadequate

method for elimination of segregated school attendance patterns.

It seeks to reverse a finding of the United States District Court for

the Eastern District of Michigan in Sherrill School Parents Com-

mittee v. The Board of Ed. of the School District of the City of

Detroit, Michigan, No. 22092, E.D. Mich. Sept. 18, 1964, that the

“Open School” program does not appear to be achieving substan-

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tial student integration in the Detroit Sheet System presently or

within the foreseeable future.

XV.

Plaintiffs allege that in the premises Public Act 48 on its face

and as applied violates the Fourteenth Amendment to the Consti-

tution of the United States; the Act pertains solely to the Detroit

Board of Education and thereby deliberately prohibits the Detroit

Board of Education from making pupil assignments and estab-

lishing pupil attendance zones in a manner which all other school

districts in the State of Michigan are free to do. Public Act 48

thereby creates an irrational, unreasonable and arbitrary classifi-

cation which contravenes the equal protection and due process

causes of the Fourteenth Amendment. The distinction made by

Public Act 48 is further unconstitutional by the fact that it applies

solely to the Detroit school district where the bulk of Negro

school children in the State of Michigan are concentrated.

XVI.

Bublic Act 48 further violates the Fourteenth Amendment to

the United States Constitution in that the Act impedes the legally

mandated integration of the public schools; the effect of the Act is

to perpetuate the segregation and racial isolation of the past and

give it the stamp of legislative approval. The Act, building upon

__ the preexisting public and private housing segregation, has the pur-

pose, intent and effect of intensifying the present segregation and

racial isolation in the Detroit public schools. The Act further vio-

lates the Fourteenth Amendment in that it constitutes a reversal

by the State of Michigan of action taken by the Detroit School

Board which action was consistent with and mandated by the Con-

stitution of the United States. In addition, Public Act 48 infringes

upon the Thirteenth Amendment in that its effect is to relegate

Negro school children in the City of Detroit to a position of

inferiority and to assert the inferiority of Negroes generally, there-

by creating and perpetuating badges and incidents of slavery; and,

also, in that it denies to black perséns in Detroit the same rights to

the full and equal benefit of all laws and proceedings as white

citizens enjoy.

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lla

The defendants, Board of Education of the City of Detroit

and Michigan State Board of Education, are charged under

Michigan law and the Constitution and laws of the United States

with the responsibility of operating a unitary public school system

in the City of Detroit, Michigan.

XVIll.

Plaintiffs allege that they are being denied equal educational

opportunities by the defendants because of the segregated pattern

of pupil assignments and the racial identifiability of the schools in

the Detroit public school system. Plaintiffs further allege that said

denials of equal educational opportunities contravene and abridge

their rights as secured by the Thirteenth and Fourteenth Amend-

ments to the Constitution of the United States.

XIX.

The plaintiffs allege that the defendants herein, acting under

color of the laws of the State of Michigan, have pursued and are

presently pursuing a policy, custom, practice and usage of oper-

ating, managing and controlling the said public school system ina

manner that has the purpose and effect of perpetuating a segre-

gated public school system. This segregated public school system is

based predominantly upon the race and color of the students

attending said school system; attendance at the various schools is

based upon race and color; and the assignment of personne! has in

the past and remains to an extent based upon the race and color of

the children attending the particular school and the race and color

of the personnel to be assigned.

=

XX.

The plaintiffs allege that the racially discriminatory policy,

custom, practice and usage described in paragraph XIX has in-

cluded assigning students, designing attendance zones for elemen-

tary junior and senior high schools, establishing feeder patterns to

secondary schools, planning future public educational facilities,

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constructing new schools, and utilizing or building upon the

existing racially discriminatory patterns in both public and private

housing on the basis of the race and color of the children who are

eligible to attend said schools. The said discriminatory policy, cus-

tom, practice, and usage has resulted in a public school system

composed of schools which are either attended solely or pre-

dominantly by black students or attended solely or predominantly

by white students.

XXI.

The plaintiffs allege that the racially discriminatory policy,

custom, practice and usage described in paragraph XIX has also

included assigning faculty and staff members employed by defen-

dants to the various schools in the Detroit school system on the

basis of the race and color of the personnel to be assigned. Conse-

quently, a general practice has developed whereby white faculty

and staff members have been assigned on the basis of their race

and color to schools attended solely or predominantly by white

students and Negro faculty and staff members have been assigned

on the basis of their race and color to schools attended solely or

predominantly by black students.

XXil.

The defendants have failed and refused to take all necessary

steps to correct the effects of their policy, practice, custom and

usage of racial discrimination in the operation of said school

system and to insure that such policy, custom, practice and usage

for the 1970-71 school year, and thereafter, will conform to the

requirements of the Thirteenth and Fourteenth Amendments.

XXIl.

Plaintiffs and those similarly situated and affected on whose

behalf this action is brought are suffering irreparable injury and

will continue to suffer irreparable injury by reason of the pro-

visions of the Act complained of herein and by reason of the

failure or refusal of defendants to operate a unitary school system

in the City of Detroit. Plaintiffs have no plain, adequate or com-

13a,

plete remedy to redress the wrongs complained of herein other

than this action for declaratory judgment and injunctive relief.

Any other remedy to which plaintiffs could be remitted would be

attended by such uncertainties and delays as to deny substantial

relief, would involve a multiplicity of suits and would cause fur-

ther irreparable injury. The aid of this Court is necessary in

assuring the citizens of Detroit and particularly the black public

school children of the City of Detroit that this is truly a nation of ©

laws, not of men, and that the promises made by the Thirteenth

and Fourteenth Amendments are and will be kept.

WHEREFORE, plaintiffs respectfully pray that upon the

filing of this complaint the Court:

1. Issue, pendente lite, a temporary restraining order and a

preliminary injunction:

a. Requiring defendants, their agents and other persons

acting in concert with them to put into effect the partial plan

of senior high school desegregation adopted by the defendant,

Detroit Board of Education, on April 7, 1970, which plan

called for its implementation at the start of the 1970-7!

school term, provided, however: (1) that the plan shall not be

effected on a stair-step basis, but shall, in accord with

Alexander vy. Holmes County Board, 396 U.S. 19 (1969), be-

come completely and fully effective at the beginning of the

coming (1970-71) school year; and (2) that those provisions

which exclude a pupil who has a brother or sister presently

enrolled in a senior high school from being affected by the

plan shall be deleted in accord with Ross v. Dyer, 312 F.2d

191 (Sth Cir. 1963);

b. Restraining defendants, their agents and other per-

sons acting in concert with them from giving any force or

effect to Sec. 12 of Act No. 48 of the Michigan Public Acts of

1970 insofar as its application would impair or delay the dese-

gregation of the defendant system;

c. Restraining defendants from taking any steps to

implement the August 4, 1970 plan, or any other plan, for

14a

\

new district or regional boundaries pursuant to Act 48, or

from taking any action which would prevent or impair the

implementation of the regions established under the

defendant Board’s earlier plan which provided for non-racially

identifiable regions;

d. Restraining defendants from all further school con-

struction until such time as a constitutional plan for

operation of the Detroit public schools has been approved and

new construction reevaluated as a part thereof;

e. Requiring defendants to assign by the beginning of

the 1970-71 school year principals, faculty, and other school

personnel to each school in the system in accordance with the

ratio of white and black principals, faculty and other school

personnel throughout the system. ;

2. Advance this cause on the docket and order a speedy

hearing of this action according to law and upon such hearing:

a. Enter a judgment declaring the provisions of Act No.

48 complained of herein unconstitutional on their face and as

applied as violative of the Thirteenth and Fourteenth Amend-

ments to the United States Constitution;

b. Enter preliminary and permanent decrees perpetu-

ating the orders previously entered;

c. Enter a decree enjoining defendants, their agents,

employees and successors from continuing to employ policies,

customs, practices and usages which, as described herein-

above, have the purpose and effect of leaving intact racially

identifiable schools;

d. Enter a decree enjoining defendants, their agents,

employees and successors from assigning students and/or

operating the Detroit school system in a manner which re-

sults in students attending racially identifiable public schools;

e. Enter a decree requiring defendants, their agents,

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15a

employees and successors to assign teachers, principals and

other school personnel to schools to eliminate the racial

identity of schools by assigning such personnel to each school

in accordance with the ratio of white and black personnel

throughout the system.

f. Enter a decree enjoining defendants, their agents,

employees and successors from approving budgets, making

available funds, approving employment and construction con-

tracts, locating schools or school additions geographically, and

approving policies, curriculum and programs, which are de-

signed to or have the effect of maintaining, perpetuating or

supporting racial segregation in the Detroit school system.

g. Enter a decree directing defendants to present a com-

plete plan to be effective for the 1970-71 school year for the

elimination of the racial identity of every school in the system

and to maintain now and hereafter a unitary, nonracial school

system. Such a plan should include the utilization of all

methods of integration of schools including rezoning, pairing,

grouping, school consolidation, use of satellite zones, and

transportation.

h. Plaintiffs pray that the Court enjoin all further con-

struction until such time as a constitutional plan has been

approved and new construction reevaluated as a part thereof.

i. Plaintiffs pray that this Court will award reasonable

counsel fees to their attorneys for services rendered and to be

rendered them in this cause and allow them all out-of-pocket

expenses of this action and such other and additional relief as

may appear to the Court to be equitable and just.

Respectfully submitted,

Nathaniel Jones, General Counsel

N.A.A.C.P.

1790 Broadway

New York, New York

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Louis R. Lucas

Ratner, Sugarmon & Lucas

525 Commerce Title Building

Memphis, Tennessee

Bruce Miller and

Lucille Watts, Attorneys for

Legal Redress Committee

N.A.A.C.P., Detroit Branch

3426 Cadillac Towers

Detroit, Michigan, and

Attormeys for Plaintiffs

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17a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al.,

Plaintiffs

v.

WILLIAM G. MILLIKEN, et al.,

Defendants

DETROIT FEDERATION OF TEACH-

ERS, LOCAL NO. 231, AMERICAN

FEDERATION OF TEACHERS, AFL-CIO,

CIVIL ACTION

NO: 35257

SemNet eee ee eee ee ee ee”

Defendant-Intervenor

and

DENISE MAGDOWSKI, et al.,

Defendants-Intervenor

RULING ON ISSUE OF SEGREGATION

This action was commenced August 18, 1970, by plaintiffs,

the Detroit Branch of the National Association for the Advance-

ment of Colored People* and individual parents and students, on

behalf of a class later defined by order of the Court dated February

16, 1971, to include “all school children of the City of Detroit

and all Detroit resident parents who have children of school age.”

Defendants are the Board of Education of the City of Detroit, its

members and its former superintendent of schools, Dr. Norman A.

Drachler, the Governor, Attorney General, State Board of Educa

tion and State Superintendent of Public Instruction of the State of

Michigan. In their complaint, plaintiffs attacked a statute of the

State of Michigan known as Act 48 of the 1970 Legislature on the

ground that it put the State of Michigan in the position of uncon-

stitutionally interfering with the execution and operation of a

voluntary plan of partial high school desegregation (known as the

April 7, 1970 Plan) which had been adopted by the Detroit Board

of Education to be effective beginning with the fall 1970 semester.

* The standing of the NAACP as a proper party plaintiff was not contested

by the original defendants and the Court expresses no opinion on the matter.

18a

Plaintiffs also alleged that the Detroit Public School System was

and is segregated on the basis of race as a result of the official

policies and actions of the defendants and their predecessors in

office. ;

Additional parties have intervened in the litigation since it was

commenced. The Detroit Federation of Teachers (DFT) which re-

presents a majority of Detroit Public school teachers in collective

bargaining negotiations with the defendant Board of Education,

has intervened as a defendant, and a group of parents has inter-

vened as defendants.

Initially the matter was tried on plaintiffs’ motion for pre-

liminary injunction to restrain the enforcement of Act 48 so as to

permit the April 7 Plan to be implemented. On that issue, this

Court ruled that plaintiffs were not entitled to a preliminary in-

junction since there had been no proof that Detroit has a segre-

gated school system. The Court of Appeals found that the ““imple-

mentation of the April 7 Plan was thwarted by State action in the

form of the Act of the Legislature of Michigan,” (433 F.2d 897,

902), and that such action could not be interposed to delay,

obstruct or nullify steps lawfully taken for the purpose of protect-

ing rights guaranteed by the Fourteenth Amendment.

The plaintiffs then sought to have this Court direct the de-

fendant Detroit Board to implement the April 7 Plan by the start

of the second semester (February, 1971) in order to remedy the

deprivation of constitutional rights wrought by the unconstitu-

tional statute. In response to an order of the Court, defendant

Board suggested two other plans, along with the April 7 Plan, and

noted priorities, with top priority assigned to the so-called “Magnet

Plan.” The Court acceded to the wishes of the Board and approved

the Magnet Plan. Again, plaintiffs appealed but the. appellate court

tefused to pass on the merits of the plan. Instead, the case was

remanded with instructions to proceed immediately to a trial on

the merits of plaintiffs’ substantive allegations about the Detroit

School System. 438 F. 2d 945 (6th Cir. 1971).

Trial, limited to the issue of segregation, began April 6, 1971

and concluded on July 22, 1971, consuming 41 trial days, inter-

19a

spersed by several brief recesses necessitated by other demands

upon the time of Court and counsel. Plaintiffs introduced sub-

stantial evidence in support of their contentions, including expert

and factual testimony, demonstrative exhibits and school board

documents. At the close of plaintiffs’ case, in chief, the Court

ruled that they had presented a prima facie case of state imposed

segregation in the Detroit Public Schools; accordingly, the Court

enjoined (with certain exceptions) all further school construction

in Detroit pending the outcome of the litigation.

The State defendants urged motions to dismiss as to them.

These were denied by the Court.

; At the close of proofs intervening parent defendants (Denise

Magdowski, et al.) filed a motion to join, as parties 85 contiguous

“suburban” school districts — all within the so-called Larger

Detroit Metropolitan area. This motion was taken under advise-

ment pending the determination of the issue of segregation.

It should be noted that, in accordance with earlier rulings of

the Court, proofs submitted at previous hearings in the cause, were

to be and are considered as part of the proofs of the hearing on

the merits.

In considering the present racial complexion of the City of

Detroit and its public school system we must first look to the past

and view in perspective what has happened in the last half century.

In 1920 Detroit was a predominantly white city — 91% — and its

population younger than in more recent times. By the year 1960

the largest segment of the city’s white population was in the age

range of 35 to 50 years, while its black population was younger

and of childbearing age. The population of 0-15 years of age con-

stituted 30% of the total population of which 60% were white and

40% were black. In 1970 the white population was principally

aging—45 years—while the black population was younger and of

childbearing age. Childbearing blacks equaled or exceeded the

total white population. As older white families without children of

school age leave the city they are replaced by younger black

families with school age children, resulting in a doubling of enroll

ment in the local neighborhood school and a complete change in

20a

student population from white to black. As black inner city re-

sidents move out of the core city they “leap-frog” the residential

areas nearest their former homes and move to areas recently

occupied by whites.

The population of the City of Detroit reached its highest

point in 1950 and has been declining by approximately 169,500

per decade since then. In 1950, the city population constituted

61% of the total population of the standard metropolitan area and

in 1970 it was but 36% of the metropolitan area population. The

suburban population has increased by 1,978,000 since 1940.

There has been a steady out-migration of the Detroit population

since 1940. Detroit today is principally a conglomerate of poor

black and white plus the aged. Of the aged, 80% are white.

If the population trends evidenced in the federal decennial

census for the years 1940 through 1970 continue, the total black

population in the City of Detroit in 1980 will be approximately

840,000, or 53.6% of the total. The total population of the city in

1970 is 1,511,000 and, if past trends continue, will be 1,338,000

in 1980. In school year 1960-61, there were 285,512 students in

the Detroit Public Schools of which 130,765 were black. In school

year 1966-67, there were 297,035 students, of which 168,299

were black. In school year 1970-71 there were 289,743 students

of which 184,194 were black. The percentage of black students in

the Detroit Public Schools in 1975-76 will be 72.0%, in 1980-81

will be 80.7% and in 1992 it will be virtually 100% if the present

trends continue. In 1960, the non-white population, ages 0 years

to 19 years, was as follows:

O— 4 years 42%

S— 9 years 36%

10 — 14 years 28%

15 —19 years — 18%

In 1970 the non-white population, ages 0 years to 19 years, was as

follows:

ee Er eee

2la

O— 4 years 48%

5— 9 years i 50%

10 — 14 years 50%

15 — 19 years 40%

The black population as a percentage of the total population in

the City of Detroit was:

(a) 1900 1.4%

(b) 1910 1.2%

(c) 1920 4.1%

(d) 1930 7.7%

(e) 1940 9.2%

(f) 1950 16.2%

(g) 1960 28.9%

(h) 1970 43.9%

The black population as a percentage of total student population

of the Detroit Public Schools was as follows:

(a) 1961 45.8%

(b) 1963 51.3%

(c) 1964 53.0%

(d) 1965 54.8%

(e) 1966 56.7%

(f) 1967 58.2%

(g) 1968 59.4%

(h) 1969 61.5%

(i) 1970 63.8%

For the years indicated the housing characteristics in the City of

Detroit were as follows:

(a) 1960 _ ___ total supply of housing

units was 553,000

(b) 1970 . total supply of housing

units was 530,770

22a

The percentage decline in the white students in the Detroit

Public Schools during the period 1961-1970 (53.6% in 1960;

34.8% in 1970) has been greater than the percentage decline in the

white population in the City of Detroit during the same period

(70.8% in 1960; 55.21% in 1970), and correlatively, the percent-

age increase in black students in the Detroit Public Schools during

the nine-year period 1961-1970 (45.8% in 1961; 63.8% in 1970)

has been greater than the percentage increase in the black popula-

tion of the City of Detroit during the ten-year period 1960-1970

(28.9% in 1960; 43.9% in 1970). In 1961 there were eight schools

in the system without white pupils and 73 schools with no Négro |

pupils. In 1970 there were 30 schools with no white pupils and 11

schools with no Negro pupils, an increase in the number of schools

without white pupils of 22 and a decrease in the number of

schools without Negro pupils of 62 in this ten-year period.

Between 1968 and 1970 Detroit experienced the largest increase

in percentage of black students in the student population of any

major northern school district. The percentage increase in Detroit

was 4.7% as contrasted with —

New York 2.0%

Los Angeles 1.5%

Chicago 1.9%

Philadelphia 1.7%

Cleveland 1.7%

Milwaukee 2.6%

St. Louis 2.6%

Columbus 1.4%

Indianapolis 2.6%

Denver 1.1%

Boston 3.2%

San Francisco 1.5%

Seattle 2.4%

In 1960, there were 266 schools in the Detroit School

System. In 1970, there were 319 schools in the Detroit School

System.

In the Western, Northwestern, Northern, Murray, North-

¢astern, Kettering, King and Southeastern high school service

23a

areas, the following conditions exist at a level significantly higher

than the city average:

(a) Poverty in children

(b) Family income below poverty level

(c) Rate of homicides per population

(d) Number of households headed by females

(e) Infant mortality rate

(f) Surviving infants with neurological

defects

(g) Tuberculosis cases per 1,000 population

(h) High pupil turnover in schools

The City of Detroit is a community generally divided by racial

lines. Residential segregation within the city and throughout the

larger metropolitan area is substantial, pervasive and of long stand-

ing. Black citizens are located in separate and distinct areas within

the city and are not generally to be found in the suburbs. While

the racially unrestricted choice of black persons and economic

factors may have played some part in the development of this

pattern of residential segregation, it is, in the main, the result of

past and present practices and customs of racial discrimination,

both public and private, which have and do restrict the housing

opportunities of black people. On the record there can be no other

finding.

Governmental actions and inaction at all levels, federal, state

and local, have combined, with those of private organizations,

such as loaning institutions and real estate associations and broker-

age firms, to establish and to maintain the pattern of residential

segregation throughout the Detroit metropolitan area. It is no

answer to say that restricted practices grew gradually (as the black

population in the area increased between 1920 and 1970), or that

since 1948 racial restrictions on the ownership of real property

have been removed. The policies pursued by both government and

private persons and agencies have a continuing and present effect

upon the complexion of the community — as we know, the choice

of a residence is a relatively infrequent affair. For many years

FHA and VA openly advised and advocated the maintenance of

**harmonious” neighborhoods, ie., racially and eT

24a

harmonious. The conditions created continue. While it would be

unfair to charge the present defendants with what other gov-

emmental officers or agencies have done, it can be said that the

actions or the failure to act by the responsible school authorities,

both city and state, were linked to that of these other govern-

mental writs. When we speak of governmental action we should

not view the different agencies as a collection of unrelated units.

Perhaps the most that can be said is that all of them, including the

school authorities, are, in part, responsible for the segregated con-

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

action between residential patterns and the racial composition of

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

pattern by the racial composition of the schools.

Turning now to the specific and pertinent (for our purposes)

history of the Detroit school system so far as it involves both the

local school authorities and the state school authorities, we find

the following:

During the decade beginning in 1950 the Board created and

maintained optional attendance zones in neighborhoods under-

going racial transition and between high school attendance areas of

opposite predominant racial compositions. In 1959 there were

eight basic optional attendance areas affecting 21 schools.

Optional attendance areas provided pupils living within .certain

elementary areas a choice of attendance at one of two high

schools. In addition there was at least one optional area either

created or existing in 1960 between two junior high schools of

opposite predominant racial components. All of the high school

optional areas, except two, were in neighborhoods undergoing

tacial transition (from white to black) during the 1950s. The two

exceptions were: (1) the option between Southwestern (61.6%

Dlack in 1960) and Western (15.3% black); (2) the option between

Denby (0% black) and Southeastern (30.9% black). With the

exception of the Denby — Southeastern option (just noted)

all of the options were between high schools of opposite

predominant racial compositions. The Southwestern-Western and

Denby-Southeastern optional areas are all white on the 1950,

1960 and 1970 census maps. Both Southwestern and South-

_ eastern, however, had substantial white pupil populations, and the

a

25a i

option allowed whites to escape integration. The natural,

probable, foreseeable and actual effect of these optional zones was

to allow white youngsters to escape identifiably “black” schools,

There had also been an optional zone (eliminated between 1956

and 1959) created in “tan attempt. . . to separate Jews and Gentiles

within the system,” the effect of which was that Jewish

youngsters went to Mumford High School and Gentile youngsters

went to Cooley. Although many of these optional areas had

served their purpose by 1960 due to the fact that most of the

areas had become predominantly black, one optional area (South-

western-Western affecting Wilson Junior High graduates) con-

tinued until the present school year (and will continue to effect

11th and 12th grade white youngsters who elected to escape from

predominantly black Southwestern to predominantly white

Western High School). Mr. Henrickson, the Board’s general fact

witness, who was employed in 1959 to, inter alia, eliminate

optional areas, noted in 1967 that: “In operation Western appears

to be still the school to which white students escape from pre

dominantly Negro surrounding schools.” The effect of eliminating

this optional area (which affected only 10th graders for the

1970-71 school year) was to decrease Southwestern from 86.7%

black in 1969 to 74.3% black in 1970.

The Board, in the operation of its transportation to relieve

overcrowding policy, has admittedly bused black pupils past or

away from closer white schools with available space to black

schools. This practice has continued in several instances in recent

years despite the Board’s avowed policy, adopted in 1967, to

utilize transportation to increase integration.

With one exception (necessitated by the burning of a white

school), defendant Board has never bused white children to pre-

dominantly black schools. The Board has not bused white pupils

to black schools despite the enormous amount of space available

in inner-city schools. There were 22,961 vacant seats in schools

90% or more black. KS

The Board has created and altered attendance zones,

maintained and altered grade structures and created and altered

feeder school patterns in a manner which has had the natural,

26a

“probable and actual effect of continuing black and white pupils in

racially segregated schools. The Board admits at least one instance

‘where it purposefully and intentionally built and maintained a

gchool and its attendance zone to contain black students,

Feroughout the last decade (and presently) school attendance

wones of opposite racial compositions have been separated by

north-south boundary lines, despite the Board’s awareness (since

at least 1962) that drawing boundary lines in an east-west direc-

tion would result in significant integration. The natural and actual

effect of these acts and failures to act has been the creation and

perpetuation of school segregation. There has never been a feeder

pattern or zoning change which placed a predominantly white

residential area into a predominantly black school zone or feeder

pattern. Every school which was 90% or more black in 1960, and

which is still in use today, remains 90% or more black. Whereas

65.8% of Detroit’s black students attended 90% or more black

schools in 1960, 74.9% of the black students attended 90% or

‘more black schools during the 1970-71 school year.

The public schools operated by defendant Board. are thus

segregated on a racial basis. This racial segregation is iti part the

result of the discriminatory acts and omissions of defendant

Board.

oN In 1966 the defendant State Board of Education and

Michigan Civil Rights Commission issued a Joint Policy Statement

on Equality of Educational Opportunity, requiring that

““Local school boards must consider the factor of racial

balance along with other educational considerations in making

_ decisions‘ about selection of new school sites, expansion of

~. present facilities....Each of these situations presents an

~. Opportunity for integration.”

Defendant State Board’s “School Plant Planning Handbook”

»fequires that

27a

economic lines.”

The defendant City Board has paid little heed to these statements

and guidelines. The State defendants have similarly failed to take

any action to effectuate these policies. Exhibit NN reflects con-

struction (new or additional) at 14 schools which opened for use

in 1970-71; of these 14 schools, 11 opened over 90% black and

one opened less than 10% black. School construction costing

$9,222,000 is opening at Northwestern High School which is

99.9% black, and new construction opens at Brooks Junior High,

which is 1.5% black, at a cost of $2,500,000. The construction at

Brooks Junior High plays a dual segregatory role: not only is the

construction segregated, it will result in a feeder pattern change

which will remove the last majority white school from the already

almost all-black Mackenzie High School attendance area.

Since 1959 the Board has constructed at least 13 small pri-

mary schools with capacities of from 300 to 400 pupils. This

practice negates opportunities to integrate, “‘contains” the black

population and perpetuates and compounds school segregation. |

The State and its agencies, in addition to their general re-

sponsibility for and supervision of public education, have acted

directly to control and maintain the pattern of segregation in the

. Detroit schools. The State refused, until this session of the legisla

ture, to provide authorization or funds for the transportation of

pupils within Detroit regardless of their poverty or distance from

the school to which they were assigned, while providing in many

neighboring, mostly white, suburban districts the full range of

state supported transportation. This and other financial limite

tions, such as those on bonding and the working of the state aid

formula whereby suburban districts were able to make far larger

per pupil expenditures despite less tax effort, have created and

perpetuated systematic educational inequalities.

The State, exercising what Michigan courts have held to beis

**plenary power” which includes power “to use a statutory

scheme, to create, alter, reorganize or even dissolve a school

district, despite any desire of the school district, its board, or the

inhabitants thereof,” acted to reorganize the school district of the

28a

City of Detroit.

The State acted through Act 48 to impede, delay and

minimize racial integration in Detroit schools. The first sentence

of Sec. 12 of the Act was directly related to the April 7, 1970

desegregation..plan. The remainder of the section sought to pre-

scribe for each school in the eight districts criterion of “free

choice” (open enrollment) and “neighborhood schools” (“‘nearest

school priority acceptance”), which had as their purpose and

- effect the maintenance of segregation.

In view of our findings of fact already noted we think it

unnecessary to parse in detail the activities of the local board and

the state authorities in the area of school construction and the

furnishing of school facilities. It is our conclusion that these

activities were in keeping, generally, with the discriminatory

practices which advanced or perpetuated racial segregation in these

schools.

It would be unfair for us not to recognize the many fine steps

the Board has taken to advance the cause of quality education for

all in terms of racial integration and human relations. The most

obvious of these is in the field of faculty integration. ‘

Plaintiffs urge the Court to consider alledgedly discriminatory

practices of the Board with respect to the hiring, assignment and

transfer of teachers and school administrators during a period

reaching back more than 15 years. The short answer to that must

be that black teachers and school administrative personnel were

not readily available in that period. The Board and the intervening

defendant union have followed a most advanced and exemplary

course in adopting and carrying out what is called the “balanced

staff concept” — which seeks to balance faculties in each school

with respect to race, sex and experience, with primary emphasis

on race. More particularly, we find:

1. With the exception of affirmative policies designed to

achieve racial balance in instructional staff, no teacher in the

_ Detroit Public Schools is hired, promoted or assigned to any

School by reason of his race.

—

29a

2. In 1956, the Detroit Board of Education adopted the

rules and regulations of the Fair Employment Practices Act as its

hiring and promotion policy and has adhered to this policy to

date.

3. The Board has actively and affirmatively sought out and

hired minority employees, particularly teachers and administra

tors, during the past decade.

4. Between 1960 and 1970, the Detroit Board of Education

has increased black representation among its teachers from 23.3%

to 42.1%, and among its administrators from 4.5% to 37.8%.

5. Detroit has a higher proportion of black administrators

than any other city in the country.

6. Detroit ranked second to Cleveland in 1968 among the

20 largest northern city school districts in the percentage of blacks

among the teaching faculty and in 1970 surpassed Cleveland by

several percentage points.

7. The Detroit Board of Education currently employs black

teachers i in a greater percentage than the percentage of adult black

persons in the City of Detroit.

8. Since 1967, more blacks than whites have been placed in

high administrative posts with the Detroit Board of Education.

9. The allegation that the Board assigns black teachers to

- black schools is not supported by the record.

10. Teacher transfers are not granted in the Detroit Public

Schools unless they conform with the balanced staff concept.

11. Between 1960 and 1970, the Detroit Board of Education

reduced the percentage of schools without black faculty from

36.3% to 1.2%, and of the four schools currently without black

_ faculty, three are specialized trade schools + asi minority —

cannot oT be secured.

30a

» 12. In 1968, of the 20 largest northern city school districts,

Detroit ranked fourth in the percentage of schools having one or

more black teachers and third in the percentage of schools having

three or more black teachers.

13. In 1970, the Board held open 240 positions in schools

with less than 25% black, rejecting white applicants for these

positions until qualified black applicants could be found and

assigned.

14. In recent years, the Board has come under pressure from

large segments of the black community to assign male black ad-

ministrators to predominantly black schools to serve as male role

models for students, but such assignments have been made only

where consistent with the balanced staff concept.

15. The numbers and percentages of black teachers in Detroit

“increased from 2,275 and 21.6%, respectively, in February, 1961,

*to 5,106 and 41.6%, respectively, in October, 1970.

__ 16, The number of schools by percent black of staffs changed

from October, 1963 to October, 1970 as follows:

~ Number of schools without black teachers — decreased from

41, to 4.

Number of schools with more than 0%, but less than 10%

black teachers — decreased from 58, to 8.

Total number of schools with less than 10% black teachers —

sts decreased from 99, to 12.

Number of schools with 50% or more black teachers —

increased from 72, to 124.

i i :

___ 17. The number of schools by percent black of staffs changed

from October, 1969 to October, 1970, as follows:

Number of schools without black teachers — decreased from

6, to 4.

< 3la

Number of schools with more than 0%, but less than 10%

black teachers — decreased from 41, to 8.

Total number of schools with less than 10% black teachers —

decreased from 47, to 12.

Number of schools with 50% or: more black teachers -

increased from 120, to 124.

18. The total number of transfers necessary to achieve a

faculty racial quota in each school corresponding to the system-

wide ratio; and ignoring all other elements is, as of 1970, 1,826.

19. If account is taken of other elements necessary to assure

quality integrated education, including qualifications to teach the

subject area and grade level, balance of experience, and balance of

sex, and further account is taken of the uneven distribution of

black teachers by subject taught and sex, tlhe total number of

transfers which would be necessary to achieve a faculty racial

quota in each school corresponding to the system-wide ratio, if

attainable at all, would be infinitely greater. ;

20. Balancing of staff by qualifications for subject and grade

level, then by race, experience and sex, is educationally desirable

and important.

21. It is important for students to have a successful role

model, especially black students in certain schools, and at certain

grade levels.

22. A quota of racial balance for faculty in each school which

is equivalent to the system-wide ratio and without more is educe

tionally undesirable and arbitrary.

—

23. A severe teacher shortage in the 1950s and 1960s

impeded integration-of-faculty opportunities.

es

24. Disadvantageous teaching: conditions in Detroit ta te

1960s—salaries, pupil mobility and transiency, class size,

conditions, distance from teacher residence, shortage of

g 32a

substitutes, etc.—made teacher recruitment and placement dif-

ficult.

_. 25. The Board did not segregate faculty by race, but rather

attempted to fill vacancies with certified and qualified teachers

who would take offered assignments.

26. Teacher seniority in the Detroit system, although

measured by system-wide service, has been applied consistently to

protect against involuntary transfers and “bumping” in given

schools. ;

27. Involuntary transfers of teachers have occurred only

because of unsatisfactory ratings or because of decrease of teacher

services in a school, and then only in accordance with balanced

staff concept. “

_ 28. There is no evidence in the record that Detroit teacher

seniority rights had other than equitable purpose or effect.

29. Substantial racial integration of staff can be achieved,

without disruption of seniority and stable teaching relationships,

by application of the balanced staff concept to naturally occurring

vacancies and increases and reductions of teacher services.

30. The Detroit Board of Education has entered into suc-

cessive collective bargaining contracts with the Detroit Federation

of Teachers, which contracts have included provisions promoting

integration of staff and students.

_ The Detroit School Board has, in many other instances and in

‘Many other respects, undertaken to lessen the impact of the forces

Of segregation and attempted to advance the cause of integration.

Perhaps the most obvious one was the adoption of the April 7

Plan. Among other things, it has denied the use of its facilities to

‘gfoups which practice racial discrimination; it does not permit the

“use of its facilities for discriminatory apprentice training programs;

“it has opposed state legislation which would have the effect of

-Sgregating the district; it has worked to place black students in

~ttaft positions in industry and the building trades; it has brought

ae ae oe ge om 4 te aap aR as ee eo a eo et ee

—

33a

about a substantial increase in the percentage of black students in

manufacturing and construction trade apprenticeship classes; it

became the first public agency in Michigan to adopt and

implement a policy requiring affirmative act of contractors with

which it deals to insure equal employment opportunities in their

work forces; it has been a leader in pioneering the use of multi

-ethnic instructional material, and in so doing has had an impact

on publishers specializing in producing school texts and

intructional materials; and it has taken other noteworthy

pioneering steps to advance relations between the white and black

races.

In conclusion, however, we find that both the State of Michi-

gan and the Detroit Board of Education have committed acts

which have been causal factors in the segregated condition of the

public schools of the City of Detroit. As we assay the principles

essential to a finding of de jure segregation, as outlined in rulings

of the United States Supreme Court, they are:

1. The State, through its officers and agencies, and usually,

the school administration, must have taken some action or actions

with a purpose of segregation.

2. This action or these actions must have created or

aggravated segregation in the schools in question.

3. Acurrent condition of segregation exists. We find these tests

to have been met in this case. We recognize that causation in the case

before us is both several and comparative. The principal causes

undeniably have been population movement and housing patterns,

but state and local governmental actions, including school board

actions, have played a substantial role in promoting segregation. It

is, the Court believes, unfortunate that we cannot deal with public

school segregation on a no-fault basis, for if racial segregation in

our public schools is an evil, then it should’ make no difference

whether we classify it de jure or de facto. Our objective, logically,

it seems to us, should be to remedy a condition which we believe

needs correction. In the most realistic sense, if fault or blame must

be found it is that of the community as a whole, including, of

34a

course, the black components. We need not minimize the effect of

the actions of federal, state and local governmental officers and

agencies, and the actions of loaning institutions and real estate

firms, in the establishment and maintenance of segregated

tesidential patterns — which lead to school segregation — to

observe that blacks, like ethnic groups in the past, have tended to

separate from the larger group and associate together. The ghetto

is at once both a place of confinement and a refuge. There is

enough blame for everyone to share.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of the parties and the subject

matter of this action under 28 U.S.C. 1331 (a), 1343 (3) and (4),

2201 and 2202; 42 U.S.C. 1983, 1988, and 2000d.

2. In considering the evidence. and in applying legal stand-

ards it is not necessary that the Court find that the policies and

practices, which it has found to be discriminatory, have as their

motivating forces any evil intent or motive. Keyes v. Sch. Dist. No.

I, Denver, 383 F. Supp. 279. Motive, ill will and bad faith have

long ago been rejected as a requirement to invoke the protection

of the Fourteenth Amendment against racial discrimination. Sims

¥. Georgia, 389 U.S. 404, 407-8.

3. School districts are accountable for the natural, probable

and foreseeable consequences of their policies and practices, and

where racially identifiable schools are the result of such policies,

the school authorities bear the burden of showing that such

policies are based on educationally required, non-racial con-

siderations. Keyes v. Sch. Dist., supra, and Davis v. Sch. Dist. of

Pontiac, 309 F. Supp. 734, and 443 F.2d 573.

~ 4. In determining whether a constitutional violation has

occurred, proof that a pattern of racially segregated schools has

existed for a considerable period of time amounts to a showing of

facial classification by the state and its agencies, which must be

justified by clear and convincing evidence. State of Alabama vy.

US., 304 F.2d 583.

A

ee a

3Sa

$. The Board’s practice of shaping school attendance zones

on a north-south rather than an east-west orientation, with the

result that zone boundaries conformed to racial residential

dividing lines, violated the Fourteenth Amendment. Northcross y,

Bd. of Ed., Memphis, 333 F. 24 661.

6. Pupil racial segregation in the Detroit Public School

System and the residential racial segregation resulting

primarily from public and private racial discrimination are interde-

pendent phenomena. The affirmative obligation of the defendant

Board has been and is to adopt and implement pupil assignment

practices and policies that compensate for and avoid incorporation

into the school system the effects of residential racial segregation.

The Board’s building upon housing segregation violates the Fourte-

enth Amendment. See, Davis v. Sch. Dist. of Pontiac, supra, and

authorities there noted.

7. The Board’s policy of selective optional attendance

zones, to the extent that it facilitated the separation of pupils on

the basis of race, was in violation of the Fourteenth Amendment.

Hobson v. Hansen, 269 F. Supp. 401, aff'd sub nom., Smuck »,

Hobson, 408 F.2d 175.

8. The practice of the Board of transporting black students

from overcrowded black schools to other identifiably black

schools, while passing closer identifiably white schools, which

could have accepted these pupils, amounted to an act of segre

gation by the school authorities. Spangier: Pasadena City Bd. of

Ed., 311 F. Supp. 501.

9. The manner in which the Board formulated and modified

attendance ones for elementary schools had the natural and pre

dictable effect of perpetuating racial segregation of students. Such

conduct is an act of de jure discrimination in violation of the

Fourteenth Amendment. U.S. v. School District 151, 286 F. Be

786; Brewer v. City of Norfolk, 397 F. 2d 37.

10: school Send may: net, coblstent. with the Rowtiill

Amendment maintain segregated elementary schools or permit

educational choices to be influenced by community sentiment or

URNA

.

the wishes of a majority of voters. Cooper v. Aaron, 358 U.S. l,

92-13, 15-16.

| “A citizen's constitutional rights can hardly be infringed

_ simply because a majority of the people choose that it be.”

- Lucas v. 44th Gen’l Assembly of Colorado, 377 U.S. 713,

. 736-737.

11. Under the Constitution of the United States and the con-

stitution and laws of the State of Michigan, the responsibility for

providing educational opportunity to all children on constitutional

‘terms is ultimately that of the state. Turner vy. Warren County

Board of Education, 313 F. Supp. 380; Art. VIII, $84 and 2,

Mich. Constitution; Dasiewicz v. Bd. of Ed. of the City of Detroit,

3.N.W. 2d 71.

12. That a state’s form of government may delegate the

power of daily administration of public schools to officials with

less than state-wide jurisdiction does not dispel the obligation of

those who have broader control to use the authority they have

consistently with the constitution. In such instances the constitu-

tional obligation toward the individual school children is a shared

one. Bradley v. Sch. Bd., City of Richmond, $1 F.R.D. 139, 143.

13. Leadership and general supervision over all public educa-

tion is vested in the State Board of Education. Art. VII, § 3,

Mich. Constitution of 1963. The duties of the State Board and

superintendent include, but are not limited to, specifying the

tumber of hours necessary to constitute a school day; approval

37a

Bridgehampton School District No. 2 Fractional of Carsonville,

Mich. v. Supt. of Public Instruction, 323 Mich. 615. In general, the

state superintendent is given the duty “[t] 0 do all things necessary

to promote the welfare of the public schools and public educa

tional instructions and provide proper educational facilities for the

youth of the state.*” M.S.A. 15.3252. See also MSA.

15.2299(57), providing in certain instances for reorganization of

school districts.

14. State officials, including all of the defendants, are charged

under the Michigan constitution with the duty of providing

pupils an education without discrimination with respect to race.

Art, VIII, $2, Mich. Constitution of 1963. Art. 1, §2, of the con-

stitution provides:

“No person shall be denied the equal protection of the laws;

nor shall any person be denied the enjoyment of his civil or

politicial rights or be discriminated against in the exercise

thereof because of religion, race, color, or national origin. The

legislature shall implement this section by appropriate legisla-

tion.”

15. The State Department of Education has recently estab-

lished an Equal Educational Opportunities : section having respon-

sibility to identify racially imbalanced school districts and develop

desegregation plans. M.S.A. 15.3355 provides that no school or

department shall be kept for any person or persons on account of

race or color.

16. The state further provides special funds to local districts

for compensatory education which are administered on a per

school basis under direct review of the State Board. All other state

aid is subject to fiscal review and accounting by the state. M.S.A.

15.1919. See also M.S.A. 15.1919(68b), providing for special sup

plements to merged districts “for the purpose of bringing about ur-

iformity of educational opportunity for all pupils of the district.”

The general consolidation law M.S.A. 15.3401 authorizes annexe

tion for even noncontiguous school districts upon approval of the

superintendent of public instruction and electors, as provided by

law. Op. Atty. Gen., Feb. 5, 1964, No. 4193. Consolidation with

nas

17, Where a pattern of violation of constitutional rights is

established the affirmative obligation under the Fourteenth

Amendment is imposed on not only individual school districts, but

_ upon the State defendants in this case. Cooper v. Aaron, 358, U.S.

\ 1; Griffin v. County School Board of Prince Edward County, 337

US. 218; U.S. v. State of Georgia, Civ. No. 12972 (N.D. Ga.,

December 17, 1970), rev'd on other grounds, 428 F.2d 377;

Godwin v. Johnston County Board of Education, 301 F. Supp.

_ 1337; Lee v. Macon County Board of Education, 267 F. Supp.

458 (M.D. Ala.), aff'd sub nom., Wallace v. U.S., 389 U.S. 215;

Franklin v. Quitman County Board of Education, 288 F. Supp.

509; Smith v. North Carolina State Board of Education, No.

15,072 (4th Cir., June 14, 1971).

The foregoing constitutes our findings of fact and conclusions

of law on the issue of segregation in the public schools of the City

of Detroit.

Having found a de jure Segregated public school system in

operation in the City of Detroit, our first step, in considering what

judicial remedial steps must be taken, is the consideration of

intervening parent defendants’ motion to add as parties defendant

a great number of Michigan school districts located out county in

Wayne County, and in Macomb and Oakland Counties, on the

principal premise or ground that effective relief cannot be achiev-

‘ed or ordered in their absence. Plaintiffs have opposed the motion

to join the additional school districts, arguing that the presence

of the State defendants is sufficient and all that is required, even

if, in shaping a remedy, the affairs of these other districts will be

affected.

In considering the motion to add the listed school districts we

Pause to note that the proposed action has to do with relief.

Having determined that the circumstances of the case require

‘Wdicial intervention and equitable relief, it would be improper for

EEE EES<TL EE

—,

us to act on this motion until the other parties to the action have

had an opportunity to submit their proposals for desegregation.

Accordingly, we shall not rule on the motion to add parties at this

time. Considered as a plan for desegregation the motion is lacking

in specifity and is framed in the broadest general terms. The

moving party may wish to amend its proposal and resubmit it asa

comprehensive plan of desegregation.

39a

In order that the further proceedings in this cause may be

conducted on a reasonble time schedule, and because the views of

counsel respecting further proceedings cannot but be of assistance

.to them and to the Court, this cause will be set down for pre-trial

conference on the matter of relief. The conference will be held in

our Courtroom in the City of Detroit at ten o’clock in the

morning, October 4, 1971.

DATED: September 27, 1971

ls/

Stephen J. Roth

United States District Judge

40a

~ Proceedings had in the above-entitled’ matter before

“Honorable Stephen J. Roth, United States District Judge, at

Detroit, Michigan on Monday, October 4, 1971.

Fe ee

[3] THE CLERK: Case No. 35257 Bradley versus Milliken.

THE COURT: Are all the parties represented this morning?

MR. LUCAS: Yes.

THE COURT: I take it they are.

As I indicated at the close of my opinion recently rendered, I

thought it would be advisable for me to get together with counsel

“on this occasion so that we might chart our course from here on in

The Court has made its determination of things as they are, or

as it found things in the public school system of the City of

Detroit. Our concern now-to take a thought from Aristotle—is of

things as they might be, or ought to be.

__ Before ordering the local and state school authorities to

present desegregation plans, the Court thought it best to call this

conference so that it might have the benefit of your views with

respect to a timetable for further proceedings, and so that you

might have the benefit of some of the thoughts of the Court.

As the Court indicated during the course of [4] the taking of

proofs, it entertains serious reservations about a plan of

integration, which encompasses no more than the public schools

of the City of Detroit. It appears to us that perhaps only a plan

which embraces all or some of the greater Detroit metropolitan

area can hope to succeed in giving our children the kind of

education they are entitled to constitutionally. And we note here

that the metropolitan area is like a giant jig-saw puzzle, with the

- School districts cut into irregular pieces, but with the picture quite

Plainly that of racial segregation.

We need not recite the many serious problems such a plan

entails, suffice it to say that a plan of such dimensions can hardly

be conceived in a day, to say nothing of the time it will require for

implementation. A large metropolitan area such as we have in our

tase can not be made the subject of instant integration. We must

~ bear in mind that the task we are called upon to perform is a social

of 3

4la

one, which society has been unable to accomplish. In reality, our

courts are called upon, in these school cases, to.attain a social goal,

through the educational system, by using law as a lever.

If a metropolitan plan is our best answer to the problem, its

formulation and implementation with require both time and

patience. As Senior Circuit Judge _— said in the Knoxville,

Tennessee school case:

[5] “The hope, or dream, that one day we will have become a

people without motivations born of our differing racial beginnings

will have a better chance of fulfillment if patience accompanies

our endeavors.”

I would sum up our endeavors in developing a metropolitan

plan as an embarkation on an uncharted course in strange waters

in an effort to rescue disadvantaged children. It behooves us to

take proper soundings and proceed with care. To use the

vernacular “Right on!” but steady as we go.

My comments respecting a metropolitan plan should not be

understood to mean that there should be any pause in Detfoit

Board’s efforts to affirmatively desegregate its schools. The Court

envisions no real conflict between early desegregation or

integration of its schools and the possible adoption later of a

metropolitan plan.

Earlier in this case the Court acceded to the wish of the Board

to adopt the so-called Magnet Plan. We do not presently have

before us enough information or evidence on the question of its

worth or value in terms of experience. In this respect the Court

wishes to be better informed.

If that plan is not delivering on its promise to provide an

improved integrated quality education it should be abandoned,

and the Board should consider putting before [6] the Court an

up-dated April 7 Plan, or such other plan as, in its judgment, will

most effectively accomplish desegregation in its schools. If the

Magnet Plan is proving itself then the Board might well consider

whether features of the April 7 Plan, for example, the change to

an east-west, rather than north-south orientation of attendance

zones, can be incorporated in < in the interest of advancing

integration.

What we have said are all generalities. They have to do with

ee 42a

possible courses of action. My remarks, however, are not intended

as a limitation on the Board or on the state authorities in

discharging their duties to move as rapidly as possible toward the

Som of desegregation.

I want to make it plain I have no preconceived notions about

i schetions or-serpation hich. will be semsiond beac Of course,

_the primary and basic and fundamental responsibility is that of the

school authorities. As Chief Justice Burger gaid in the recent case

of Davis v Board of School Commissioners:

__ “school authorities should make every effort to achieve

the greatest possible degree of actual desegregation, taking

into account the practicalities of the situation.”

“Because these cases arise under different local conditions and

involve a variety of local problems their [7] remedies likewise will

‘Tequire attention to the specific case. It is for that reason that the

‘Court has repeatedly said, the Supreme Court, that each case must

be Eee by itself in its own peculiar facts.

As early as Brown II the court had this to say:

“Full implementation of these constitutional principles may

require solution of varied local school problems. School

authorities have the primary responsibility for elucidating,

assessing, and solving these problems; courts will have to

consider whether the action of school authorities constitutes

good faith implementation of the governing constitutional

principles.

“In fashioning and effectuating the decrees, the courts will

be guided by equitable principles .... At stake is the personal

interest of the plaintiffs in admission to public schools as soon

as practicable on a nondiscriminatory basis.”

I might say in that regard, as you lawyers know the Supreme

Court took a little over a year to implement Brown I and Brown

Il. So they themselves, with better minds than mine and to the

number of nine, had difficulty in resolving the problems that those

four cases presented.

would like to hear from counsel with respect [8] toa

Ties for the formulation and presentation of a plan of

Aesegregation; first by the Board of the City of Detroit and then

43a

by the state officials.

eek

[26] THE COURT: Within thirty days the Detroit Board of

Education should submit to the Court a concise report of progress

on the Magnet Plan, and along with it an evaluation of its worth in

helping to bring about a better and higher quality of education.

Copies of both the report and also the [27] evaluation shall be

made available to the other parties litigant at the same time.

Such other parties may have ten additional days in which to

submit their views and evaluations of the progress under the

Magnet Plan.

It is further ordered that the Detroit Board of Education

submit its plan for desegregation of its schools within sixty days.

It is ordered that the State defendants submit a metropolitan

plan of desegregation, perhaps in more or less skeletal form, within

one hundred twenty (120) days.

Objections to each plan, city and metropolitan, may be filed

by the other parties litigant not later than thirty days after the

expiration of the time set. Such objections may be accompanied

by alternate plans.

I want to underline something I already said and add to ita

general observation to sumup. Lest there be some

misunderstanding, because of the observations I made, let it be

understood I had no preconceived notion about what the Board of

Education should do in the way of desegregating its schools nor

the outlines of a proposed metropolitan plan. The options are

completely open.

With respect to matters of speed in having a plan or having

plans and proceeding on them, I think you should [28] know

something about my manner of working. In a case, particularly

like this, I feel my way to a decision and I certainly don’t propose

to jump to judgment.

I would remind counsel as I keep reminding myself in the

case that our objective is quality education for all of our children.

I am not too concerned about the parties litigant here. Depending

on what rede mgependvdceeetarcgs patie

children now living, as well as those yet to be born. I am

Sere

a ta)

Bs

‘of that by Mr. Ritchie’s observation that he considers his plan one

‘that will reach into the future.

With respect to remarks you gentlemen have made about

other school districts, I am not going to make any definitive ruling

at this time. We haven’t come to that pass yet. I don’t see much

‘disagreement, Mr. Krasicky, between you and Mr. Lucas on that

point. I don’t think Mr. Lucas said that they should not be heard.

‘He is addressing himself to the matter of mechanics, how you do

‘it, and, of course, as you well know it is overwhelming to consider

‘joining 50, 60, or 80 other parties to this law suit, each of which is

composed of superintendents and boards.

i. On the other hand I do not propose to stop the voice of

anybody who is apt to be affected by the plan. So this is a matter

‘of mechanics. When the time comes that [29] action has to be

taken in that regard we will give it further thought and make a

decision that we believe will be a fair one and yet will permit us to

proceed with some dispatch in achieving some remedial effects and

perhaps putting into effect some plans for desegregation.

__ The time table is understood, is it?

MR. BUSHNELL: Yes, sir.

MR. LUCAS: Yes.

THE COURT: I am not going to-unless you gentlemen

want-to prepare an order, I am not going to prepare a formal

order.

MR. BUSHNELL: I don’t believe it is necessary, your Honor.

We understand the timetable.

THE COURT: Anybody disagree with that?

_ Anything further at this time, gentlemen, with respect to the

Matter before us?

__ MR. KRASICKY: I take it if there will be further hearings we

will be notified in due time?

_ THE COURT: Yes. I have not come back to the point

‘brought out by Mr. Bushnell. I don’t know what the report and

the evaluation by the Board and the criticisms that might be

og by other parties litigant will amount to. Should it develop

that I wish to have testimony on disputed points we may schedule

= __—

—,

them. That will just have to wait until I have received [30] the

report and evaluations.

Gentlemen, thank you for your attendancé: and your

assistance.

45a

We will be in recess.

38 UNITED STATES DISTRICT COURT

: EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al., )

: Plaintiffs )

yy. )

( G. MILLIKEN, et al., )

; Defendants )

DETROIT FEDERATION OF TEACH- )

ERS, LOCAL NO. 231, AMERICAN FED- ) CIVIL ACTION

ERATION OF TEACHERS, AFL-CIO, ) NO. 35257

Defendant- )

Intervenor )

and )

DENISE MAGDOWSKI, et al., )

Defendants- )

Intervenor )

ORDER

At a session of said Court held in the Federal Building, City of

Detroit, on this 4th day of OCTOBER, A.D. 1971.

PRESENT: HONORABLE STEPHEN J. ROTH

United States District Judge

The Court having entered its findings of fact and conclusions

of law on the issue of segregation on September 27, 1971;

IT IS ORDERED that the Detroit Board of Education submit

a report on and an evaluation of the so-called Magnet Plan within

30 days; and that other parties litigant may within 10 days there-

after file responses to such report and evaluation.

IT IS FURTHER ORDERED that the Detroit Board of

Education submit a plan for the desegregation of its schools within

60 days.

LLL SLESSE/ “=

vavcemoanemaes

47a

IT IS FURTHER ORDERED that the State Defendants

submit a metropolitan plan of desegregation within 120 days.

IT IS FURTHER ORDERED that as to both the Detroit and

the State plans, other parties litigant shall have an additional 30

days in which to submit objections and/or alternate plans.

/s/ STEPHEN J. ROTH

UNITED STATES DISTRICT JUDGE

DATE: November 5, 197}.

SIGNED:

48a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al,

¥.

WILLIAM G. MILLIKEN, et al.,

Bi : Defendants 7

‘DETROIT FEDERATION OF TEACH- CIVIL ACTION

ERS, LOCAL NO. 231, AMERICAN NO. 35257

FEDERATION OF TEACHERS, AFL-CIO,

Defendant-

fi Intervenor

MAGDOWSKI., et al.,

Intervenor

ee ee ee ee we ee wes GS

etal.

RULING ON PROPRIETY OF CONSIDERING A METROPOLITAN

_ REMEDY TO ACCOMPLISH DESEGREGATION OF THE PUBLIC

SCHOOLS OF THE CITY OF DETROIT

In its prior ruling, “Ruling on Issue of Segregation”

(eptember 27, 1971), the court has found that segregation exists

in the public schools of the City of Detroit because of, among

other causes, the acts of the State of Michigan and the Detroit

Board of Education. In the language of Swann,[1] «g right and a

Violation have been shown.”[2] Given the constitutional violation,

judicial authority, when Properly invoked, must be exercised to

Tight the wrong. In addressing itself to this task the Supreme Court

has said that the “scope of a district court’s equitable powers to

temedy past wrongs is broad, for breadth and flexibility are

49a

inherent in equitable remedies.”[3) And, it pointed out, “a school

desegregation case does not differ fundamentally from other cases

aptenerdnegrmmt we geostiy nan tgentg eaten tas ata

a constitutional right.”[4 The task is to correct the condition

which offends the Constitution. Illustrative of what was meant by

the Supreme Court, see the legislative and congressional

reapportionment ceses.(5)

Under the circumstances of this case,{6] the question

presented is whether the court may consider relief in the form of a

metropolitan plan, encompassing not only the City of Detroit, but

the larger Detroit metropolitan area which, for the present

purposes, we may define as comprising the three counties of

Wayne, Oakland and Macomb. It should be noted that the court

has just concluded its hearing on plans submitted by the plaintiffs

and the Detroit Board of Education for the intre<ity

desegregation of the Detroit public schools. A ruling has not yet

been made on these plans, but in accordance with the mandate of

the Court of Appeals that a hearing on the merits be concluded at

the earliest possible time, we consider it necessary to proceed

apace with a resolution of the issue before us, i.e.,the propriety of

weighing the legal availability of a metropolitan remedy for

segregation.

The State defendants in this case take the position, as we

understand it, that no “state action’ has had a part in the

segregation found to exist. This assertion disregards the findings

already made by this court, and the decision of the Court of

Appeals as well.(7] Additionally, they appear to view the

_>

‘delegation of the State’s powers and duties with respect to

‘education to local governmental bodies as vesting the latter with

sovereign powers which may not be disturbed by either the State

or the court. This we cannot accept. Political subdivisions of the

‘states have never been considered sovereign entities, rather “They

have been traditionally regarded as subordinate governmental

instrumentalities created by the state to assist it in carrying out of

state governmental functions.” Reynolds v. Sims, 377 U.S. 533,

575. Perhaps the clearest refutation of the State’s asserted lack of

power to act in the field of education is Act 48 of 1970. The State

cannot evade its constitutional responsibility by a delegation of

powers to local units of government. The State defendants’

position is in error in two other respects: 1. The local school

districts are not fully autonomous bodies, for to the extent it has

seen fit the State retains control and supervision; and 2. It

assumes that any metropolitan plan, if one is adopted, would, of

necessity, require the dismantling of school districts included in

the plan.

The main thrust of the objections to the consideration of a

metropolitan remedy advanced by intervening school districts is

that, absent a finding of acts of segregation on their part,

individually, they may not be considered in fashioning a remedy

for relief of the plaintiffs. It must be conceded that the Supreme

Court has not yet ruled directly on this issue; accordingly, we can

only proceed by feeling our way through its past decisions with

Tespect to the goal to be achieved in school desegregation cases.

Green v. County School Board, 391 US. 430, teaches us that it is

our obligation to assess the effectiveness of proposed plans of

desegregation in the light of circumstances present and the

available alternatives; and to choose the alternative or alternatives

Which promise realistically to work now and hereafter to produce

the maximum actual desegregation. As Chief Justice Burger said in

Swann, “in seeking to define the scope of remedial power of

courts in an area as sensitive as we deal with here, words are poor

instruments to convey the sense of basic fairness inherent in

equity.” Substance, not semantics, must govern.

eneneneien

Sila

It seems to us that Brown|81] is dispositive of the issue:

“In fashioning and effectuating the decrees, the courts will be

guided by equitable principles. Traditionally, equity has been

characterized by a practical flexibility in shaping its remedies

and by a facility for adjusting and reconciling public and

private needs. These cases call for the exercise of these

traditional attributes of equity power. At stake is the personal

interest of the plaintiffs in admission to public schools as soon

as practicable on a nondiscriminatory basis. To effectuate this

interest may call for elimination of a variety of obstacles in

making the transition to school systems. operated in

accordance with the constitutional principles set forth in our

May 17, 1954, decision. Courts of equity may properly take

into account the public interest in the elimination of such

obstacles in a systematic and effective manner. But it should

go without. saying that the vitality of these constitutional

principles cannot be allowed to yield simply because of

disagreement with them.”

ses

““*** the courts may consider problems related to administra-

tion, arising from the physical condition of the school plant,

the school transportation systems, personnel, revision of

school districts and attendance areas into compact units to

achieve a system of determining admission to the public

schools on a nonracial basis, and revision of local laws and

regulations which may. be necessary in solving the foregoing

problems.”

We conclude that it is proper for the court to consider

metropolitan plans directed toward the desegregation of the

Detroit public schools as an alternative to the present intra-ity

desegregation plans before it and, in the event that the court finds

such intra-city plans inadequate to desegregate such schools, the

court is of the opinion that it is required to consider a

metropolitan remedy for desegregation.

S2a

__. The schedule previously established for the hearing on

metropolitan plans will go forward as noticed, beginning March

28, 1972.

‘DATE: March 24th, 1972.

Ls/

Stephen J. Roth

United States District Judge

fi)

Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1.

Ibid., p. 15.

Ibid., p. 15.

Ibid., pp. 15, 16.

Reynolds v. Sims, 377 U.S. 533.

See “Ruling on Issue of Segregation,” supra, indicating a black student

projection for the school year 1980-81 of 80.7%.

[7]

See “Ruling on Issue of Segregation,” supra; Bradley v. Milliken, 433

F.2d 897.

{8}

Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, at 300 and 301.

ED SESNSSSS Se

—_ —

53a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al.,

Plaintiffs

v.

WILLIAM G. MILLIKEN, et al.,

Defendants

DETROIT FEDERATION OF TEACH-

ERS, LOCAL NO. 231, AMERICAN FED-

ERATION OF TEACHERS, AFL-CIO,

CIVIL ACTION

NO: 35257

Defendant-

Intervenor

and

DENISE MAGDOWSKIL, et al.,

Defendants-

Intervenor

et al.

i

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ON

DETROIT-ONLY PLANS OF DESEGREGATION

In accordance with orders of the court defendant Detroit

Board of Education submitted two plans, limited to the corporate

limits of the city, for desegregation of the public schools of the

City of Detroit, which we will refer to as Plan A and Plan C; plain-

tiffs submitted a similarly limited plan, which will be referred to as

the Foster Plan. Hearings were had on said plans on March 14, 15,

16, 17 and 21, 1972. In considering these plans the court does not

limit itself to the proofs offered at the hearing just concluded; it

considers as part of the evidence bearing on the issue ( ie., City-

Only Plans) all proofs submitted in the case to this point, and it

specifically incorporates herein by reference the Findings and Con-

clusions contained in its “Ruling on Issue of Segregation,” filed

September 27, 1971.

The court makes the following factual findings:

S4a

PLAN A.

1. The court finds that this plan is an elaboration and exten-

sion of the so-called Magnet Plan, previously authorized for imple-

mentation as an interim plan pending hearing and determination

on the issue of segregation.

2. As proposed we find, at the high school level, that it offers

a greater and wider degree of specialization, but any hope that it

would be effective to desegregate the public schools of the City of

Detroit at that level is virtually ruled out by the failure of the cur-

rent model to achieve any appreciable success.

3. We find, at the Middle School level, that the expanded

model would affect, directly, about 24,000 pupils of a total of

140,000 in the grades covered; and its effect would be to set upa

school system within the school system, and would intensify the

segregation in schools not included in the Middle School program.

In this sense, it would increase segregation.

4. As conceded by its author, Plan A is neither a desegre-

gation nor an integration plan.

PLAN C.

1. The court finds that Plan C is a token or part-time desegre-

gation effort.

2. We find that this plan covers only a portion of the grades

and would leave the base schools no less racially identifiable.

PLAINTIFFS’ PLAN.

1. The court finds that Plaintiffs’ Plan would accomplish

more desegregation than now obtains in the system, or would be /

achieved under Plan A or Plan C.

2. We find further that the racial composition of the student

body is such that the plan’s implementation would clearly make

the entire Detroit public school system: racially identifiable as

Black.

IE _

55a :

%

3. The plan would require the development of transportation

on a vast scale which, according to the evidence, could not be

furnished, ready for operation, by the opening of the 1972-73

school year. The plan contemplates the transportation of 82,000

pupils and would require the acquisition of some 900 vehicles, the

hiring and training of a great number of drivers, the procurement

of space for storage and maintenance, the recruitment of main-

tenance and the not negligible task of designing a transportation

system to service the schools.

4. The plan would entail an overall recasting of the Detroit

school system, when there is little assurance that it would not have

to undergo another reorganization if a metropolitan plan is

adopted.

5. It would involve the expenditure of vast sums of money

and effort which would be wasted or lost.

6. The plan does not lend itself as a building block for a met-

ropolitan plan.

7. The plan would make the Detroit school system more

identifiably Black, and leave many of its schools 75 to 90 per cent

Black.

8. It would change a school system which is now Black and

White to one that would be perceived as Black, thereby increasing

the flight of Whites from the city and the system, thereby in-

creasing the Black student population.

9. It would subject the students and parents, faculty and

administration, to the trauma of reassignments, with little likeli-

hood that such reassignments would continue for any appreciable

time.

In summary, we find that none of the three plans would result

in the desegregation of the public schools of the Detroit school

district.

56a

CONCLUSIONS OF LAW

1. The court has continuing jurisdiction of this action for all

purposes, including the granting of effective relief. See Ruling on

Issue of Segregation, Sepember 27, 1971.

2. On the basis of the court’s finding of illegal school segre-

' gation, the obligation of the school defendants is to adopt and

implement an educationally sound, practicable plan of desegre-

gation that promises realistically to achieve now and hereafter the

greatest possible degree of actual school desegregation. Green v.

County School Board, 391 U.S. 430; Alexander v. Holmes County

Board of Education, 396 U.S. 19; Carter v. West Feliciana Parish

School Board, 396 U.S. 290;Swann y. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1.

3. Detroit Board of Education Plans A and C are legally insuf-

ficient because they do not promise to effect significant desegre-

gation. Green V. County School Board, supra, at 439-440.

4. Plaintiffs’ Plan, while it would provide a racial mix more in

keeping with the Black-White proportions of the student popula-

tion than under either of the Board’s plans or as the system now

stands, would accentuate the racial identifiability of the district as

a Black school system, and would not accomplish desegregation.

5. The conclusion, under the evidence in this case, is

inescapable that relief of segregation in the public schools of the

City of Detroit cannot be accomplished within the corporate geo-

graphical limits of the city. The State, however, cannot escape its

constitutional duty to desegregate the public schools of the City

of Detroit by pleading local aurhority. As Judge Merhige pointed

out in Bradley v. Richmond, (slip opinion p. 64):

“The power conferred by state law on central and local offi-

cials to determine the shape of school attendance units cannot

be employed, as it has been here, for the purpose and with the

effect of sealing off white conclaves of a racial composition

more appealing to the local electorate and obstructing the

desegregation of schools. The equal protection clause has

IE EE

S7a |

required far greater inroads. on local government structure

than the relief sought here, which is attainable without devi-

ating from state statutory forms. Compare Reynolds v. Sims,

377 U.S. 533; Gomillion v. Lightfoot, 364 U.S. 339; Serrano

v. Priest, 40 U.S.L.W. 2128 (Calif. Sup. Ct. Aug. 30, 1971).

“In any case, if political boundaries amount to insuperable

obstacles to desegregation because of structural reason, such

obstacles are self-imposed. Political subdivision lines are crea-

tions of the state itself, after all.”

School district lines are simply matters of political con-

venience and may not be used to deny constitutional rights. If the

boundary lines of the school districts of the City of Detroit and

the surrounding suburbs were drawn today few would doubt that

they could not withstand constitutional challenge. In seeking for

solutions to the problem of school segregation, other federal

courts have not “‘treated:as immune from intervention the admini-

strative structure of a state’s educational system, to the extent

that it affects the capacity to desegregate. Geographically or

administratively independent units have heen compelled to merge

or to inititate or continue cooperative operation as a single system

for schoct desegregation purposes.” !

That the court must look beyond the limits of the Detroit

school district for a solution to the problem of segregation in the

Detroit public schools is obvious; that it has the authority, nay

more, the duty to (under the circumstances of this case) do so

appears plainly anticipated by Brown II, 2 seventeen years ago.

While other school cases have not had to deal with our exact

situation, 3 the logic of their application of the command m

Brown II supports our view of our duty.

Date: MARCH 28th, 1972.

/s/

Stephen J. Roth

United States District Judge

58a

FOOTNOTES

wae

fy ;

Bradley v. Richmond, supra [slip opinion p. 68).

il v. Bd. of Ed. of Topeka, 349 U.S. 294, pp. 300-301.

=, v. County Board of Education of Sevier County, 410 F.2d 920 (8th

Gr. 1969);Bradley v. School Board of the City of Richmond, supra, slip

opinion pp. 664-65; Hall v. St. Helena Parish School Board, 197 F. Supp. 649

(ED. La, 1961), aff'd. 287 F.2d 376 (Sth Cir. 1961) and 368 U.S. 515

(1962); Lee v. Macon County Bd. of Educ., 448 F.2d 746, 752 (Sth Cir.

1971); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Turner v. Littleton-Lake

Gaston School Dist., 442 F.2d 584 (4th Cir. 1971); United States v. Texas

447 F.2d 551 (Sth Cir. 1971); Lemon v. Bossier Parish School Board, 446

F.2d 911 (Sth Cir. 1971).

ae

59a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al.,

Plaintiffs

WILLIAM G. MILLIKEN, et al.,

Defendants

and

DETROIT FEDERATION OF TEACHERS,

LOCAL 231, AMERICAN FEDERA- ilies

TION OF TEACHERS, AFL-CIO,

Defendant-

Intervenor

and

DENISE MAGDOWSKI, et al.,

Defendants-

Intervenor

FINDINGS OF FACT AND CONCLUSIONS OF LAW

IN SUPPORT OF RULING

ON DESEGREGATION AREA AND DEVELOPMENT OF PLANS

On the basis of the entire record in this action, including

particularly the evidence heard by the court from March 28

through April 14, 1972, the court now makes the following

Supplementary Findings of Fact and Conclusions of Law. It

60a

should be noted that the court has taken no proofs with respect

to the establishment of the boundaries of the 86 public school

_ districts in the counties of Wayne, Oakland and Macomb, nor

on the issue of whether, with the exclusion of the city of

Detroit school district, such school districts have commited acts

of de jure segregation.

INTRODUCTION

1. On September 27, 1971, this court issued its Ruling on

Issue of Segregation. On October 4, 1971, this court issued

from the bench guidelines to bind the parties in the submission

of plans to remedy the constitutiona] violation found, ie.,

school segregation; and in particular this court noted that the

primary objective before us was to deveop and implement a

plan which attempts to “achieve the greatest possible degree of

actual desegregation, taking into account the practicalities of

the situation.”” The same day this court reiterated these require-

ments by orders “that the Detroit Board of Education submit a

plan for the desegregation of its schools within 60 days” and

“that the State defendants submit a metropolitan plan of de-

segregation within 120 days.” In response to these orders hear-

ings were held, and thereafter rulings issued, on Detroit-only

plans (see Findings of Fact and Conclusions of Law on Detroit-

Only Plans of Desegregation) and on the propriety of con-

sidering remedies which extend beyond the corporate

geographic limits of the City of Detroit. (See Ruling on Pro-

priety of Considering a Metropolitan Remedy to Accomplish

Desegregation of the Public Schools of the City of Detroit.)

Between March 28, 1972 and April 14, 1972, hearings were

held on metropolitan proposals for desegregation of the Detroit

public schools.

2. From the initial ruling on September 27, 1971, to this

day, the basis of the proceedings has been and remains the

violation: de jure school segregation. Since Brown v. Board of

Education the Supreme Court has consistently held that the

remedy for such illegal segregation is desegregation. The racial

history of this country is writ large by constitutional adjudica-

tion from Dred Scott v. Sanford to Plessy v. Ferguson to

ye TE'E_E_=COCOC OO

——ay

6la

Brown. The message in Brown was simple: The Fourteenth

Amendment was to be applied full force in public schooling.

The Court held that “‘state-imposed” school segregation

immeasurably taints the education received by all children in

the public schools; perpetuates racial discrimination and a his-

tory of public action attaching a badge of inferiority to the

black race in a public forum which importantly shapes the

minds and hearts of succeeding generations of our young

people; and amounts to an invidious racial classification. Since

Brown the Supreme Court has consistently, and with increasing

force, held that the remedy upon finding de jure segregation is

prompt and maximum actual desegregation of the public

schools by all reasonable, feasible, and practicable means. avail-

able. This court finds that there is nothing in the law, wisdom,

or facts, and the particular circumstances and arguments,

presented in this case which suggest anything except the affir-

mance of these principles in both fact and law.

3. The task before this court, therefore, is now, and, since

September 27, 1971, has always been, how to desegregate the

Detroit public schools. The issue, despite efforts of the inter-

venors to suggest a new rationale for a return to the discredited

“separate but equal” policy, 1 is not whether to desegregate.

That question has been foreclosed by the prior and settled com-

mands of the Supreme Court and the Sixth Circuit. Our duty

now is to,“grapple with the flinty, intractable realities” 2 of

implementing the constitutional commands.

4. In the most recent set of hearings, several issues were

addressed generally, including appropriate methods of pupils

reassignment to desegregate schools; quality and capacity of

school facilities; transportation needs incident to school de-

segregation; the effects of new school construction, and

judicially established controls thereon, on any plan of de-

segregation; the reassignment of faculty and restructuring of

facilities incident to pupil reassignment to accomplish school

desegregation; appropriate and necessary interim and final

administrative and financial arrangements; appropriate com-

munity, parental, staff, and pupil involvement in the deseg-

regation process; and attention to individual, cultural, and

62a

ethnic values, respect, dignity and identity. But the primary

question addressed by these hearings, in the absence of submis-

sion of a complete desegregation plan by the state, remains the

determination of the area necessary and practicable effectively

to eliminate “root and branch” the effects of state-imposed and

supported segregation and to desegregate the Detroit public

schools.

SUPPLEMENTARY FINDINGS OF FACT

A. The Desegregation Area

5. The State Board of Education filed six (6) “plans”

without recommendation or preference; intervening defendants

Magdowski, et al., filed a proposal for metropolitan desegrega-

tion which included most of the tri-county area; the defendant

Detroit Board of Education filed a proposal for metropolitan

desegregation which included the entire tri-county area. 3 At

_ the hearing plaintiffs presented a modification of the three pro-

posals which actually described areas within which pupil deseg-

regation was to be accomplished.

6. In the consideration of metropolitan plans of deseg-

regation of the Detroit public schools, the State defendants

stand as the primary defendants. They bear the initial burden of

coming forward with a proposal that promises to work. In the

context of this case, they represent the “school authorities ” 4

to whom ony courts traditionally have shown deference in

these matters. - Yet in its submission without recommendation

of six (6) “plans” the State Board of Education has failed to

meet, or even attempt to meet, that burden and none of the

other State defendants has filled the void.

7. The State Board refused to make any recommenda-

tions to the court about the appropriate area for desegregation.

In State Defendant Porter’s words, the State Board “didn’t

make a decision, period.” Defendants Milliken and Kelley

merely filed objections to all six (6) plans.

8. Three of the State “plans” merely proposed concepts

alternative to maximum actual desegregation. The Racial

Proportion Plan described a statistical method of determining the

63a |

number of transfers involved in achieving a particular racial

ratio in each school once an area of desegregation had been

chosen. The Equal Educational Opportunity and Quality

Integration Plan was admitted to be a non-plan and described

criteria for education which, in whole or part, might, or might

not, be applicable to any school system.

9. Only one State “plan,” the Metropolitan District Re-

organization Plan, attempted to describe an area within which

desegregation should occur, called the “initial operating zone”

(sometimes referred to hereafter as the “State Proposal’’). That

“plan,” however, was primarily concerned with discussing a new

governance structure for the desegregation area. Pupil reassign-

ment was mentioned only in passing and no foundation was laid

by State defendants for the particular area of desegregation

described. Further, it suffered from the default of the State

defendants by their stubborn insistence that under their self- __

serving, and therefore self-limiting, view of their powers they

were free to ignore the clear order of this court and abdicate

their responsibility vested in them by both the Michigan and

Federal Constitution for supervision of public education and

equal protection for all citizens.

10. From the very limited evidence in the record in sup-

port of the area in that state proposal, the primary foundation

appears to be the particular racial ratio attained in that plan,

approximately 65% black, 35% white, with the provision that

the area could be expanded if “white flight” ensued. In the

absence of any other persuasive foundation, such area is not

based on any definable or legally sustainable criteria for either

inclusion or exclusion of particular areas; and the concept of an,

“initial operating zone” raises serious practical questions, which

should be avoided if a more permanent solution is now possible.

In short, the area described by the “initial operating zone” does

not appear to be based primarily on relevant factors, like elim-

inating racially identifiable schools; accomplishing maximum

actual desegregation of the Detroit public schools; or avoiding,

where possible, maintaining a pattern of schools substantially

disproportionate to the relevant school community’s racial com-

position by force of deliberate action by public authority. Nor,

e

e

64a

on the evidence in this record, is the “initial operating zone”

based on any practical limitation of reasonable times and dis-

tances for transportation of pupils. These factors seem to have

played little part in the creation of the “initial operating zone”

and are reflected less in its result.

11. At the hearings, moreover, the State defendants did

not purport to present evidence in support, or even in opposi-

tion, to the State Proposal. The State, despite prodding by the

court, presented only one witness, who merely explained what

appeared on the face of the various State “Plans” submitted.

The State’s cross examination of witnesses was of no assistance

to the court in ascertaining any preference, legal or educational.

Put bluntly, State defendants in this hearing deliberately chose

not to assist the court in choosing an appropriate area for effec-

tive desegregation of the Detroit public schools. Their resistance

and abdication of responsibility throughout has been consistent

with the other failures to meet their obligations noted in the

court’s earlier rulings. Indeed, some of the submissions spoke as

‘ dearly in opposition to desegregation as did the legislature in

Sec. 12 of Act 48 ruled unconstitutional by the Sixth Circuit.

12. In such circumstances little weight or deference can be

given to the unsupported submission of the State Board of

Education. In light of the available alternatives and the facts

produced at the hearing bearing on the issue, the court finds

that State defendants offered no basis for ruling that the “initial

operating zone” is the appropriate area within which to effec-

tively desegregate the Detroit public schools.

13. Similarly, the newly intervening, defendant school dis-

tricts did not attempt at. the hearing to assist the court in

determining which area was appropriate to accomplish effective

desegregation. They were given the opportunity, by express

written order and several admonitions during the course of the

hearings, to assist the court in the task at hand but chose in

their best judgment instead, in the main, to suggest their view

that separate schools were preferable. The failure of the group

of 40 districts to even comment that the court should exclude

certain districts under any number of available rationales may in

65a

part be explained by the awkward position chosen by them and

their counsel of having single representation for districts on

’ different sides of the various suggested perimeters.

14. The plans of intervening defendants Magdowski, et al.,

and the defendant Detroit Board of Education are similar. With

slight variations they include the entire tri-county, metropolitan

Detroit area, with that area divided into several regions or

clusters to make the planning for accomplishing desegregation

moremanageable. Although both have as their main objective

desegregation, their larger area arises primarily from a heavy

emphasis on such factors as white flight and an appropriate |

socio-economic balance in each cluster and school. ©

15. The authors of the Detroit Board and Magdowski

plans readily admit that the regions or clusters for pupil reas-

signment which involve Mt. Clemens and Pontiac are not direct-

ly related to desegregation of the Detroit public schools and

may be disregarded without any substantial adverse effect on

accomplishing our objective. No other party has expressed any

disagreement with that view. And the court finds that these two

regions or clusters, for purposes of pupil reassignment, need not

be included at this time in the desegregation area.

16. With the elimination of these two clusters there are,

then, three basic proposals to be considered for the desegrega-

tion area: the State Proposal; the Detroit Board Proposal, and

the proposal of defendant-intervenors Magdowski, et al. In

addition, as noted, plaintiffs filed a modification of these three

proposals.

17. Each of these proposals starts from the same two

premises: (1) the tri-county area 7 constitutes the relevant

school community which can serve as an initial benchmark in

beginning the evaluation of how to effectively eliminate the

racial segregation of Detroit schools; (2) but in some instances

reasonable time and distance limitations for pupil transporta-

tion, and in other instances the actual area required to eliminate

the pattern of racially identifable schools, limit the area within

which pupil reassignment should occur. In terms of proof, put-

ting aside arguments of impotence by the State defendants,

y

there was absolutely no contradictory evidence on these two

criteria. The entire tri-county area includes areas, pupils, and

schools in 86 school districts; it includes approximately one

million students, of whom approximately 20% are black. Based

on the evidence concerning school and non-school factors, 8

and reasonable time and distance limitations for pupil transpor-

tation, the court finds that both premises are accurate.?

18. The State Proposal includes the areas, pupils and

school in 36 school districts, approximately 550,000 students

are included of whom 36% are black. The Detroit Board Pro-

posal (excluding clusters 8 and 12) includes the areas, pupils,

and schools in 69 school districts; approximately 850,000 stu-

dents are included, of whom 25% are minority. 10 The CCBE

Proposal includes the areas, pupils, and schools in some 62

school districts; approximately 777,000 students are included

of whom 197,000 (25.4%) are black. Plaintiffs’ Proposal

includes the areas, pupils, and schools in 54 school districts;

approximately 780,000 students are included, of whom

197,000 (25.3%) are black.

19. The State Proposal approaches what may be con-

sidered a substantial disproportion in the context of this case. It

is to be remembered that within any desegregation area, the

racial composition of desegregated schools will vary from the

area’s racial mix. Given the variations in school plant, demo-

graphic and geographic factors, limiting the desegregation area

to the State Proposal would result in some schools being sub-

stantially disproportionate in their racial composition to the

tri-county area, and other schools racially identifable, all with-

out any justification in law or fact. This finding is supported by

the lack of any apparent justification for the desegregation area

described by the State Proposal except a desire to achieve an

arbitrary racial ratio.

20. Transportation of children by school bus is a common

Practice throughout the nation, in the state of Michigan, and in

the tri-county area. Within appropriate time limits it is a con-

siderably safer, more reliable, healthful and efficient means of

getting children to school than either car pools or walking, and

this is especially true for younger children.

66a

—.

67a

21. In Michigan and the tri-county area, pupils often

spend upwards of one hour, and up to one and one half hours,

one-way on the bus ride to school each day. Consistent with its

interest in the health, welfare and safety of children and in

avoiding impingement on the educational process, state educa-

tional authorities routinely fund such transportation for school

children. Such transportation of school children is a long-

standing, sound practice in elementary and secondary education

in this state and throughout the country. And the court finds

such transportation times, used by the state and recommended

here, are reasonable in the circumstances here presented and

will not endanger the health or safety of the child nor impinge

on the educational process. For school authorities or private

citizens to now object to such transportation practices raises the

inference not of hostility to pupil transportation but rather

racially motivated hostility to the desegregated school at the

end of the ride.

22. The Plaintiffs’ Proposal made reference to P.M.8,

based on the TALUS regional transportation and travel times

study. Although there was dispute over the meaning of the

study, such studies are deemed sufficiently reliable that major

governmental agencies customarily rely on their projection for a

variety of planning functions. When used by the plaintiffs, P.M.

8, in conjunction with the Detroit Board’s survey of maximum

school to school travel times, served as a rough guideline within

which the plaintiffs’ modification of other proposals attempted

to stay in an effort to provide maximum desegregation without

any more transportation time than is required to desegregate.

This court finds that the utilization of these two factors, and

the lower travel time estimates which should result, is a reason-

able basis for the modification in the circumstances of this case.

The court’s duty and objective is not to maximize transporta-

tion but to maximize desegregation and within that standard it

will always be reasonable to minimize transportation. To that

end the court has accepted the more conservative perimeter for

the desegregation area suggested as a modification by plaintiffs

because it provides no less effective desegregation.

23. Based on these criteria, the State Proposal is too nar

rowly drawn.

68a

: 24. Based on these criteria, parts of the Detroit Board

Proposal are too sweeping.

25. Based on these criteria, the CCBE Proposal and the

Plaintiffs’ Proposal, roughly approximate the area so de-

scribed !1,

26. There is general agreement among the parties, and the

court so finds, that on the west the areas, schools, and pupils in

the Huron, Van Buren, Northville, Plymouth and Novi districts

12 (1) are beyond the rough 40-minute travel time line; (2) are

not necessary to effectively desegregate schools involved in the

regions and clusters abutting those schools: and, (3) at this

writing, are not otherwise necessary, insofar as pupil assignment

is concerned, to provide an effective remedy now and hereafter.

(See Findings 63-69 below.)

27. In the southwest the school districts of Woodhaven,

Gibralter, Flat Rock, Grosse Ile and Trenton are within reason-

able time and distance criteria set forth above. These virtually

all-white districts are included in the Detroit Board Proposal but

excluded from the plaintiffs’ modification. The areas, schools

and pupils in such school districts are similarly not necessary to

effectively desegregate. (Clusters 13, 14, and 15 in Plaintiffs’

Proposal are 20.5%, 24.4% and 22.7% black respectively.) There

is nothing in the record which suggests that these districts need

be included in the desegregation area in order to disestablish the

racial identifiability of the Detroit public schools. From the

evidence, the primary reason for the Detroit School Board’s

interest in the inclusion of these school districts is not racial

desegregation but to increase the average socio-economic

balance of all the schools in the abutting regions and clusters. In

terms of what this court views as the primary obligation estab-

lished by the Constitution — racial desegregation — the court

deems the proper approach is to be more conservative: the

court finds it appropriate to confine the desegregation area to

its smallest effective limits. This court weighs more heavily the

judicially recognized concern for limiting the time and distance

of pupil transportation as much as possible, consistent with the

constitutional requirement to eliminate racially identifiable

schools, than a concern for expanding the desegregation area to

a,

69a

raise somewhat the average socio-economic balance of a rela-

tively few clusters of schools. 13

28. To the north and northeast, the only major disagree-

ment among the Detroit Board Proposal and plaintiffs’

modification relates to the areas, schools, and pupils in the

Utica School District. This district is a virtually all-white, long,

relatively narrow area extending several miles in a north-south

direction away from the city of Detroit. Only the southern part

of the district is within the rough, TALUS 40-minute travel

time line.

29. The Detroit Board argues that Utica should be includ-

ed in order to raise the average socio-economic balance of the

abutting clusters and schools. In this instance, however, the

overall racial composition of the cluster, 27.0% black, may tend

toward disproportionate black relative to the tri-county starting

point.

30. Mr. Henrickson, the planner for the Board, also sug-

gested that Cluster 3 of Plaintiffs’ Proposal, because of its

omission of Utica, might present some problems, which he

admitted could be solved, in designing a plan of pupil reassign-

ment for the desegregation of schools. (See Findings 34-39

below.)

31. In light of these relevant, and competing, considera-

tions the question presented by the Utica situation is close;

however, at this writing, the court determines that the areas,

schools, and pupils in the Utica School District need not be

included, and therefore, should not be included in the deseg-

regation area. 4

32. The court finds that the appropriate desegregation

area is described by plaintiffs’ modification of the three primary

proposals. Within that area the racial identifiability of schools

may be disestablished by implementation of an appropriate

pupil desegregation plan. The area as a whole is substantially

proportionate to the tri-county starting point. Within the area it

is practicable, feasible, and sound to effectively desegregate all

schools without imposing any undue transportation burden on

the children or on the state’s system of public schooling. The

70a

time or distance children need be transported to desegregate

schools in the area will impose no risk to the children’s health

and will not significantly impinge on the educational process.

B. Clusters

33. The Detroit Board Proposal makes use of 16 regions

or clusters. These clusters range from 36,000 to 105,000 pupils

and from 17.5% to 29.7% “minority.” The clusters are arranged

along major surface arteries and utilize the “skip,” or non-

contiguous zoning, technique to minimize the time and distance

any child need spend in transit. The use of these clusters basical-

ly subdivides the planning for pupil reassignment within the

desegregation area into a series of smaller, manageable and

basically independent plans. Thus, although as the new inter-

venors suggest devising a desegregation plan for a system with

some 800,000 pupils has never been attempted, the practical

and manageable reality is that desegregation plans for systems

with from 36,000 to 100,000 pupils has been done and such

plans have been implemented.

34. Plaintiffs’ Proposal uses the same cluster technique

and the same clusters, modified to fit the desegregation area.

The 15 clusters range from 27,000 to 93,000 pupils and from

20.5% to 30.8% black. Only three relevant objections were

raised by Mr. Henrickson, to the clusters as modified.

35. First, Cluster 4 was challenged as “concealing” a

“problem,” namely effective desegregation of other schools

resulting from the omission of Utica from plaintiffs’ modifica-

tion. On cross-examination Mr. Henrickson admitted that the

“problem” of actual pupil desegregation for these other schools

could be “solved,” that all schools within Cluster 4 could be

affectively desegregated, and that Cluster 4 was smaller than the

Detroit Board Cluster 6. The objection was thus narrowed to

the possibility that a suburban high school constellation feeder

pattern might have to be split between two Detroit high school

constellation feeder patterns in order to desergregate. Several of

the Detroit Board’s clusters, however, also contain two Detroit

high school feeder patterns.

cay

Tila

36. This objection, splitting an existing feeder pattern,

was raised directly in reference to Cluster 12. In neither

instance, however, did Mr. Henrickson suggest that the time or

distance of transportation involved was too long or that it would

present administrative difficulty in devising a pupil assignment

plan for either cluster. The objection relates solely to a matter

of administrative convenience, namely the use of existing feeder

patterns in preparing pupil assignments. For example, Mr.

Henrickson previously admitted that in drawing a pupil assign-

ment plan, an alternative to use of existing feeder patterns

would be to “wipe the slate clean,” and disregard existing

feeder patterns. In fact one of the State plans suggested use of

census tracts as an alternative. !5 On numerous occasions in the

past Mr. Henrickson himself has reassigned parts of one feeder

pattern to another school in order to relieve overcrowding

and/or accomplish desegregation. The objection to such

practice, therefore, is admittedly insubstantial.

37. The third objection relates to the exchange of Detroit

Northern for Detroit Murray in Clusters 6 and 15 requiring that

the students transported, if they proceed on their entire journey

by way of the expressway, encounter an interchange which

tends to be rather slow-moving. Such transportation time and

distance, however, is well within the rough criteria for reason-

ableness and is shorter than or comparable to the maximum

trips required in the Detroit Board’s clusters. In other instances,

Mr. Henrickson admitted that pupils in the Detroit proposal

might also have to travel through similar interchanges. More-

over, the objection to this particular increase in travel time must

be weighed against the apparent general decrease in time which

would be required in plaintiffs’ modified clusters as compared

with the Detroit Board’s clusters. In any event the desegregation

panel, based on its investigation of all aspects of pupil assign-

ment, remains free to suggest a modification of these clusters in

order to reduce the time and number of children requiring

transportation.

38. With that caveat, the court finds that plaintiffs’

modification of the Detroit Board’s clusters provides @

workable, practicable, and sound framework for the design of a

plan to desegregate the Detroit public schools.

72a

C. Pupil Assignment and Transportation.

39. Example of various methods of pupil assignment to

accomplish desegregation have been brought to the attention of

the court by the parties: pairing, grouping, and clustering of

schools; various strip, skip, island, and non-contiguous zoning;

various lotteries based on combinations of present school assign-

ment, geographic location, name, or birthday. Judicious use of

these techniques — coupled with reasonable staggering of school

hours and maximizing use of existing transportation facilities —

can lead to. maximum actual desegregation with a minimum of

- additional transportation.

40. Quite apart from desegregation, under any circum-

stances, transportation for secondary pupils living more than 1%

miles, and elementary pupils, living more thah 1 mile from

school, is often demanded by parents and should be provided.

Moreoever, it is essential to the effectiveness of any desegrega-

tion plan that transportation be provided free to all students

-Tequiring it under that criteria. (Brewer v. Norfolk Board of

_ Education, ___ F. 2d. (April 1972) (4th Cir.)

41. In the recent past more than 300,000 pupils in the

. tri-county area regularly rode to school on some type of bus;

this figure excludes the countless children who arrive at school

in car pools, which are many, many times more dangerous than

riding on the school bus.

42. Throughout the state approximately 35-40% of all stu-

dents arrive at school on a bus. In school districts eligible for

state reimbursement of transportation costs in the three

affected counties, the percent of pupils transported in 1969-70

tanged from 42 to 52%.

43. In comparison approximately 40%, or 310,000, of the

780,000 children within the desegregation area will require

transportation in order to accomplish maximum actual deseg-

_Tegation.

44. Hence, any increase in the numbers of pupils to be

transported upon implementation of a complete desegregation

plan over the number presently transported, relative to the state

SESS SPSTEESZETT COE

73a .

and the tri-county area, should be minimal. Indeed, any increase

may only reflect the greater numbers of pupils who would be

transported in any event but for the state practice, which af-

fected the segregation found in this case, and which denies state

reimbursement to students and districts wholly within city

limits regardless of the distance of the child from the school to

which assigned. 16 (Ruling ‘on Issue of Segregation at 14.) The

greatest change is the direction of the buses.

45. There is uncontradicted evidence that the actual

cost of transportation for a two-way plan of desegregation

should be no greater than 50 to 60 dollars per pupil trans-

ported, 17 comparable to the present costs per pupil through

the state. Increases in the total costs of pupil transportation in

the desegregation area, therefore, will result primarily from pro-

viding all children requiring transportation a free ride instead of

imposing the costs of transportation for many on the families in

districts which are ineligible for state reimbursement and which

fail to provide transportation.

’ 46. By multiple use of buses, careful routing, and econo-

mies of scale resulting from a comprehensive system of pupil

transportation, it may be possible to achieve savings in per pupil

costs. For example in 1969-1970 many school districts in the

tri-county area which used the same bus for even two loads per

day lowered their per pupil costs to $40 or less. In a co

ordinated, urban pupil transportation system it may be possible

to raise the bus use factor to three of more. (See “First Report”

State Survey and Evaluation.)

47. In the tri-county area in the recent past there were

approximely 1,800 buses (and another 100 smaller vans) used

for the transportation of pupils. Assuming a rough average of 50

pupils per bus carrying three loads of students per day, this

transportation fleet may prove sufficient to carry some 270,000

pupils.

48. Various public transit authorities now transport an

additional 60,000 pupils on their regular public runs.

49. The degree to which these plausible bus-use factors

T4a

can be realized to their maximum, and whether these public

transit facilities may be fully utilized ina plan of desegregation,

must be answered upon careful investigation by a panel of ex-

perts.

50. There is no disagreement among the parties, and the

court so finds, that additional transportation facilities, at least

to the number of 350 buses, will have to be purchased to meet

the increase in the number of students who should be provided

transportation for either an interim or final plan of desegrega-

51. For all the reasons stated heretofore — including time,

distance, and transportation factors — desegregation within the

area described in physically easier and more practicable and

feasible, than desegregation efforts limited to the corporate

geographic limits of the city of Detroit.

52. The issue of transportation of kindergarten children,

and their inclusion in part or in full in the desegregation plan,

may require further study. There was general agreement among

the experts who testified that kindergarten, but for “political”

considerations, should be included, if practicable, in the deseg-

regation plan. Kindergarten, however, is generally a half-day

program. Transportation of kindergarten children for upwards

of 45 minutes, one-way, does not appear unreasonable, harmful,

or unsafe in any way. In the absence of some compelling justifi-

cation, which does not yet appear, kindergarten children should

be included in the final plan of desegregation.

53. Every effort should be made to insure that transporta-

tion and reassignment of students to accomplish desegregation

is “two-way” and falls as fairly as possible on both races.

Although the number of black and white children transported

and reassigned at the outset will be roughly equal, it is

inevitable that a larger proportion of black children will be

transported for a greater proportion of their school years than

white children, if transportation overall is to be minimized. To

mitigate this disproportion, every effort should be made at the

outset to randomize the location of particular grade centers. In

the short term, full utilization of vastly under-capacity inner-

75a |

city schools may also help to mitigate the disproportion for

some black children; and in the long term, new school capacity,

consistent with other constitutional commands and the overall

needs of the desegregation area and the surrounding area, should

be added in Detroit, in relative proximity to concentrations of

black student residence.

D. Restructuring of Facilities and

Reassignment of Teachers

54. In the reassignment of pupils to accomplish deseg-

regation the court finds that facilities must be substantially

reallocated and faculty substantially reassigned by reason of the

clustering, pairing and grouping of schools.

55. In order to make the pupil desegregation process fully

effective the court finds that it is essential to integrate faculty

and staff and to insure that black faculty and staff representa-

tion at every school is more than token. The court has pre-

viously found and reaffirms that “a quota or racial balance in

each school which is equivalent to the system-wide ratio and

without more” is educationally unsound, and that the desid-

eratum is the balance of staff by qualifications for subject and

grade level, and then by race, experience and sex. It is obvious,

given the racial composition of the faculty and staff in the

schools in the metropolitan plan area, and the adjusted racial

composition of the students, that vacancies and increases and

reductions in faculty and staff cannot effectively achieve the

needed racial balance in this area of the school operation.

Active steps must be taken to even out the distribution of black

teachers and staff throughout the system.

56. In the desegration area approximately 16% of the

faculty and 12% of the principals and assistant principals are

black. In this context “token” means roughly less than 10%

black. Moreover, where there is more than one building adminis-

trator in any school, a bi-racial administrative team is required

wherever possible.

57. Every effort should be made to hire and promote, and

to increase such on-going efforts as there may be to hire and

76a

promote, additional black faculty and staff. Because of the

systematic and substantial under-employment of black

administrators and teachers in the tri-county area, an affirma-

tive program for black employment should be developed and

implemented.

58. The rated capacity of classrooms in the Detroit public

schools is 32; in some of the suburban districts the average rated

capacity is as low as 24 or 25. Utilization should be redeter-

mined on a uniform basis.

59. In respect to faculty and staff, school facilities, and

the utilization of existing school capacity, normal administra-

tive practice in handling the substantial reallocation and reas-

signment incident to pupil desegregation should produce

schools substantially alike.

60. In the circumstances of this case, the pairing, grouping

and clustering of schools to accomplish desegregation with

minimum transportation often requires use of grade arrange-

. ments such as K-4, K-5, or even K-6. In so planning pupil reas-

signments, it is sometimes necessary, and often administratively

practicable, to include grades K-8 or even K-9 to achieve the

maximum actual desegregation with the minimum trans-

portation. Grade structures in most elementary schools in the

desegregation area is a basic K-6; however, almost all other

combinations are found. They differ within and among various

districts.

61. In the reassignments of pupils and teachers and the

reallocation of equipment and facilities required to accomplish

desegregation, the elementary grades and schools present rela-

tively few administrative difficulties, while the high school

grades and facilities present the greater difficulties, particularly

with respect to scheduling and curriculum.

62. For these reasons, if it develops that interim choices

must be made because of the impossibility of immediate deseg-

tegation of all grades, schools, and clusters in the desegregation

area, the weight of the evidence is, and the court so finds, that

desegregation should begin first at the earliest grades for entire

AML RE

elementary school groupings throughout as many clusters as

possible.

77a

E. School Construction

63. Relative to suburban districts the Detroit public

schools, as a whole, are considerably over-capacity. (See also

Finding 58, supra.) To alleviate this overcrowding equalize rated

capacity and‘ minimize and equalize transportation burdens

borne by black pupils in the city, needed new school capacity,

consistent with other requirements of a desegregation plan,

should be added on a priority basis in the city of Detroit.

64. Relevant to the court’s choice of a desegregation area

more limited than the Detroit Board Proposal is the testimony,

elecited on cross-examination from two of the primary authors

of that proposal, related to the effects of controlling new school

construction. The broader area in the Detroit proposal was

chosen without any real consideration of the impact of control-

ling school construction in an area larger than the desegregation

area. Upon reflection, both Dr. Flynn and Mr. Henrickson

~ admitted that closely scrutinizing and limiting the addition of

capacity to areas outside the desegregation area might lead them

~ to re-evaluate the need, in the context of maintaining now and

hereafter a unitary system, to include an area as sweeping as

recommended by the Detroit Board Proposal.

65. In our Ruling on Issue of Segregation, pp. 8-10, this

court found that the “residential segregation throughout the

larger metropolitan area is substantial, pervasive and of long

standing” and that “governmental actions and inaction at all

levels, Federal, State and local, have combined with those of

. private organizations, such as loaning inStitutions and real estate

associations and brokerage firms, to establish and to maintain

the pattern of associations and brokerage firms, to establish and

to maintain the pattern of residential segregation through the

Detroit metropolitan area.” We also noted that this deliberate

setting of residential patterns had an important effect not only

on the racial composition of inner-city schools but the entire

School District of the City of Detroit. (Ruling on Issue of Seg-

regation at 3-10.) Just as evident is the fact that suburban

78a

school districts in the main contain virtually all-white schools.

The white population of the city declined and in the suburbs

grew; the black population in the city grew, and largely was

contained therein by force of public and private racial discrim-

ination at all levels.

66. We also noted the important interaction of school and

residential segregation: “Just as there is an interaction between

residential patterns and the racial composition of the schools, so

there is a corresponding effect on the residential pattern by the

racial composition of schools.” Ruling on Issue of Segregation

at 10. Cf. Swann v. Charlotte-Mecklenberg, 402 U.S. 1, 20-21

(1971); “People gravitate toward school facilities, just as

schools as located in response to the needs of people. The loca-

tion of schools may thus influence the patterns of residential

development of a metropolitan area and have important impact

on composition of inner city neighborhoods.”

67. Within the context of the segregatory housing market,

it is obvious that the white families who left the city schools

would not be as likely to leave in the absence of schools, not to

mention white schools, to attract, or at least serve, their chil-

dren. '8 Immigrating families were affected in their school and

housing choices in a similar manner. Between 1950 and 1969 in

the tri-county area, approximately 13,900 “regular classrooms,”

capable of serving and attracting over 400,000 pupils, !9 were

added in school districts which were less than 2% black in their

pupil racial composition in the 1970-71 school year. (P.M. 14;

P.M. 15).

68. The precise effect of this massive school construction

on the racial composition of Detroit area public schools cannot

be measured. It is clear, however, that the effect has been sub-

stantial. 20 Unfortunately, the State, despite its awareness of

the important impact of school construction and announced

policy to control it, acted “‘in keeping generally, with the

discriminatory practices which advanced or perpetuated racial

segregation in these schools.” Ruling on Issue of Segregation at

15; see also id., at 13.

69. In addition to the interim re-evaluation of new school

79a

construction required in the order, pursuant to the State

Board’s own requirements, the final plan will consider other

appropriate provisions for future construction throughout the

metfopolitan area.

F. Governance, Finance and Administrative Arrangements

70. The plans submitted by the State Board, the Detroit

Board, and the intervening defendants Magdowski, et al., discuss

generally possible governance, finance and administrative ar-

rangements 21 which may be appropriate for operation of an

interim or final plan of desegregation. Without parsing in detail

the interesting, and sometimes sensible, concepts introduced by

each plan, it is sufficient to note that each contemplates over-

laying some broad educational authority over the area, creating

or using some regional arrangement (with continued use or

eventual redrawing of existing districts), and considerable input

at the individual school level. The court has made no decision in

this regard and will consider the matter at a subsequent hearing.

71. Each concept needs to be “fleshed-out” in the hard

prospect of implementation of a final plan of desegregation and

what is necessary and essential, and only that, for the successful

operation of that plan of school desegregation now on an

interim basis and hereafter on a permanent footing.

72. There are now some 86 school districts in the tri-

county area of varying size, numbers of pupils, shapes, and

wealth. :

73. In another context, the State Board of Education

found each related to a “metropolitan core city” (Detroit) as

“city,” “town,” or “urban fringe” districts.

74. The boundaries of these school districts in general

bear no relationship to other vest, county, or special dis-

trict governments, needs or services. 2

75. Some educational services are already provided to stu-

dents on an interdistrict, county, intercounty, or metropolitan

basis: and many support services are provided by the inter

mediate school districts and the State. Department of

80a

Education. For various reasons many pupils already cross school

district lines to attend school or receive educational services. 23

76. In many respects — patterns of economic life, work,

play, population, planning, transportation, health services — the

tri-county area constitutes a rough series of interrelated com-

munities constituting, in the view of the United States Census

Bureau, a single standard metropolitan statistical area.

77. Local units of government in the metropolitan area

have in many instances joined together for the purpose of pro-

viding better solutions to problems confronting them. In such

instances various units of government have either disregarded

local boundaries or have concluded that the problems were such

as to call for a metropolitan solution. In some cases they have

created overlay organizations. SEMCOG, recreational autho-

rities, a metropolitan sewage system, SEMTA, and the Detroit

Water System are examples of these metropolitan approaches.

78. Indeed, the State defendants at this very moment are

attempting in state court to strike down one irrationality, and

the discriminatory effect, of the existing school district arrange-

ment, i.e., finance, apparently in the hope of moving to a virtual

state-wide assumption of costs.

79. In such circumstances there has been no showing that

the existing school district boundaries are rationally related to

any legitimate purpose; and the court finds that the particular

welter of existing boundaries for 86 school districts is not

necessary to the promotion of any compelling state interest.

80. On the basis of the present record, the court is of the

view that the shifts in faculty, staff, resources and equipment

and the exchanges of pupils necessary to accomplish maximum

actual desegregation may be made, at least on an interim basis,

by contractual agreements or otherwise among and between the

existing school districts. The court has serious reservations,

however, whether such procedures will inevitably threaten the

continuing effectiveness of a plan of desegregation over the

long-term. On these issues more evidence and further hearings

will be necessary before reaching a final decision.

a,

8la

81. The State defendants, and in particular the State

Board of Education which is charged with the primary respon-

sibility for public education in Michigan, are the primary parties

to be charged with responsibility to undertake that vital inquiry

and return with recommendations about those governance,

financial, and administrative arrangements which are necessary

and essential to the successful implementation of a plan of de-

segregation on an interim and continuing basis.

G. Involvement of Affected Persons and Communities

and Protection Against Racial Discrimination

in the Desegregation Process

82. The court has received uncontroverted evidence in the

plans filed by every party and in testimony, and advice in

several briefs amicus curiae, and the court finds, that the follow-

ing additional factors are essential to implementation and

operation of an effective plan of desegregation in the circum-

stances of this case:

(a) Bi-racial councils made up of the parents and staff,

and, where appropriate, pupils, should be set up at

each school; the persons most affected must be

encouraged and given every opportunity to parti-

cipate in the implementation of desegregation.

(b) Curriculum content, and all curriculum materials and

student codes, must be re-evaluated and reflect the

diversity of ethnic and cultural backgrounds of the

children now in the schools. As far as possible, those

immediately affected by these decisions at the indi-

vidual school level should participate in that process.

(c) In-service training for faculty and staff for multi-

ethnic studies and human relations should be

required; we must, after all, rely primarily on our

teachers and children to respect, nurture, and deal

with the diversity of students present in the deseg-

regated school.

(d) The entire grading, reporting, counselling, and testing

program should be reviewed in light of desegregated

82a

schools compared to traditional schools and to avoid

imposing the effects of past discrimination on the

children. Tracking, whether so labeled or by any test,

which has racial effects should not be utilized; within

schools a pattern of classes which are substantially

disproportionate in their racial composition from the

relevant school or grade mix should be closely

scrutinized and maintained only if necessary to pro-

mote a compelling educational objective.

83. In making the finding above, we remind the parties

that this court’s task is to enforce constitutional rights not to

act as a schoolmaster; the court’s task is to protect the con-

stitutional rights here found violated with as little intrusion into

the education process as possible. The court’s objective is to

establish the minimum constitutional framework within which

the system of public schools may operate now and hereafter in

a racially unified, non-discriminatory fashion. Within that

framework the body politic, educators, parents, and most par-

ticularly the children must be given the maximum opportunity

to experiment and secure a high quality, and equal, educational

opportunity. However, experience has proven that specific

goals, deadlines and methods of reporting and review must be

required in all desegregation cases to insure compliance.

H. Timing

84. The burden remains with State defendants to show

why desegregation for all schools, grades, classrooms, and pupils

in the desegregation area should not proceed now, i.e., in the

context of this litigation, for the 1972 fall term. The design and

implementation of desegregation plans for all grades in 15

clusters — including pupil assignments, necessary reassignment

of faculty and restructuring of facilities, planning and acquiring

the needed transportation facilities — is conceded by all parties

to be a major undertaking. Yet next fall will already be a full

year, not just four or six or even eight weeks, Cf. Carter v. West

Feliciano Parish School Bd., 396 U.S. 290 (1970), after the

initial ruling by this court of the need for maximum feasible

desegregation “now.” In such circumstances the burden to

Prove the infeasibility of implementation of complete relief is

high.

ie,

83a

85. The desegregation panel, therefore, must make every

effort to plan to implement as much actual desegregation, for as

many clusters, schools, grades, classrooms, and students as pos-

sible.

86. At a minimum, there is agreement among, and

evidence from, the experts that desegregating several grades, and

more particularly entire elementary schools, within many, if not

all, clusters may be accomplished in the fall.

87. In view of Findings 60 to 62, supra, if hard choices

must be made for the fall, any interim plan should attempt to

desegregate grades K-6, K-8, or K-9 in as many entire clusters as

possible; and, in the absence of some other showing, there

appears no reason why a complete plan may not be imple

mented by fall 1973. 2

88. A heavy burden rests with those who seek delay in

any way, shape, kind, degree or extent to convince the court

that maximum actual desegregation cannot proceed effectively

forthwith.

89. In view of the time constraints, the need to discharge

this burden forthwith, the State defendants’ default in assisting

this court to determine the appropriate desegregation area, and

the State defendants’ asserted and evident lack of available plan-

ning capacity suited to the task, the court finds that some addi-

tional entity must be charged with the task of preparing a pupil

assignment plan to accomplish maximum actual desegregation

and a transportation plan within the framework this day

established. To that end a panel of skilled experts, broadly re-

presentative of the parties and their interests, appointed by the

court and assigned that task, is required to discharge effectively

and promptly these two tasks.

90. State defendants remain charged with the duty, how-

ever, of coming forward with other necessary reports and plans

concerning those governance, administrative, and financial ar-

rangements necessary and essential to the implementation of an

effective plan of desegregation on an interim and on-going basis.

84a

I. The Plan

91. Based on the entire evidence amassed in this case, the

court finds that an educationally sound, administratively fea-

sible, constitutionally adequate, practicable and effective plan

of desegregation may be developed, implemented, and operated

hereafter for the desegregation area as set forth in findings 1-90

above.

CONCLUSIONS OF LAW

1. The court has continuing jurisdiction of this action for

all purposes, including the granting of effective relief. Bradley v.

Milliken, Ruling on Issue of Segregation, September 27, 1971;

Findifigs of Fact and Conclusions of Law on Detroit-Only Plans

of Desegregation, March 28, 1972.

2. A de jure segregation violation having been found, the

minimum remedy is maximum actual d tion, taking into

account the practicalities of the situation. 25 Bradley y. Mil-

liken, Oral Order, October 4, 1971; Findings of Fact and Con-

clusions of Law on Detroit-Only Plans of Desegregation, March

28, 1972; Brown v. Board of Education, 347 U.S. 383 (1954),

349 U.S. 294 (1954); Green v. County School Bd., 391 U.S.

430 (1968); Alexander v. Holmes County Bd. of Ed., 396 U.S.

19 (1969); Carter v. West Feliciano School Bd., 396 U.S. 290

(1970); Swann v. Charlotte Mecklenberg Bd. of Ed., 402 U.S. 1

(1971); Davis v. Board of School Commissioners of Mobile, 402

U.S. 33 (1971); Davis v. School District of City of Pontiac, 443

F, 2d 573, cert. denied, 925 U.S. 233 (1971).

__ 3. The remedial obligation rests with school authorities,

~but where in any way they fail, or are unable because of the

circumstances of the case, to fulfill any part of the obligation

promptly and fully, the court has broad equity power, and the

duty, to insure that demonstrable progress be made now; that a

schedule for planning be adopted forthwith; and that necessary

planning be specifically ordered and immediately undertaken in

order that a constitutionally adequate plan may be fashioned

and finally ordered implemented as soon as possible. Swann vy.

Charlotte-Mecklenberg Board of Education, 311 F. Supp. 265

(W.D.N.C. 1970), aff'd, 402 U.S. 1 (1971); Carter v. West

85a

Feliciano School Bd., 396 U.S. 226, 227-228 (1969), 396 U.S.

290 (1970); Acree v. County Board of Education, No. 72-1211

(Sth Cir. March 31, 1972); Rule 53, Fed. R. Civ. P., P.A.R.C. vy.

Pennsylvania, 334 F. Supp. 1247, 1266-7. (E.D. Pa. 1971).

Only then will the court in this case be apprised fully of the

practicalities of the situation, and what is reasonable and fea-

sible, in order that a final order may issue. School authorities,

of course, will be given an opportunity to (1) raise relevant

objections, (2) make suggestions for modifications, (3) or pre-

sent an alternative plan of desegregation; and their judgment

and expertise will be considered and given appropriate weight

by the court.

4. Funds must either be raised or reallocated, where

necessary, to remedy the deprivation of plaintiffs’ con-

stitutional rights and to insure that no such unconstitutional

neglect recurs again. Shapiro v. Thompson, 397 U.S. 254,

265-266 (1970); Boddie v. Connecticut, 91 S. Ct. 780, 788

(1971); Griffin v. Illinois, 351 U.S. 12 (1956); Graham y.

Richardson, 403 U.S. 365, 374-375 (1971); Mayer v. Chicago,

404 U.S. 189, 197 (1971); Griffin v. Prince Edward County,

377 U.S. 218 (1964); Hoosier v. Evans, 314 F. Supp. 316,

320-321 (D. St. Croix, 1970); United States v. School District

151, 301 F. Supp. 201, 232 (N.D. Ill. 1969), aff'd as modified,

432 F. 2d 1147 (7th Cir. 1970), cert. denied, 402 U.S. 943

(1971); Plaquemines Parish School Board v. U.S., 415 F. 2d 319

(5th Cir. 1970); Bradley v. Richmond, F,; Supp.___.,

(April 1971); Brewer v. Norfolk, No. 71-1900 (4th Cir., March

7, 1972) (Slip op. at pp. 7-8). It would be a cruel mockery of

constitutional law if a different rule were to be applied to

school desegregation cases. After all schooling is this nation’s

biggest industry and the most important tast of government left

to the states by the Constitution. In this case, were a different

rule to be applied, it would constitute a gigantic hypocrisy:

After all the money which has been spent over the years

creating and maintaining the segregated condition, the relatively

small amounts of money required to undo that segre

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