# Appendix — Milliken v. Bradley

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0342%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1974
- **Citation:** 418 U.S. 717

## Text

INDEX TO APPENDIX

a ees ok es een oa eeu 2a
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

¥
. 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

la

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”

2a

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

6a

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

BS

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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.

9a

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-

10a

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.

—

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,

12a

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

16a

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.

‘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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0342%3A07. Public record. Not legal advice.