Opposition Brief — Milliken v. Bradley
Supreme Court brief1974
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SCHOOLS, SCHOOL DISTRICT OF THE CITY OF BERK-
) SCHOOLS, WARREN WOODS PUBLIC SCHOOLS, WAYNE-
ITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT, and
“PUBLIC SCHOOLS; SOUTHFIELD PUBLIC SCHOOLS; and
OF THE CITY OF ROYAL OAK, Peti
Vs.
and RICHARD BRADLEY, by their Mother and Next Friend,
; JEANNE GOINGS, by her Mother cee ago Friend, BLANCH
LY LOVE, JIMMY LOVE end D ELL LOVE, by their Mother
CLARISSA LOVE; CAMILLE BURDEN, PIERRE BURDEN,
MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by
end Next Friend, MARCUS BURDEN; KAREN WILLIAMS and
iS, by their Father and Next Friend, C. WILLIAMS; RAY LITT
“BUR BLAKE, parents; all parents having children attending the pub-
of the City of Detroit, Michigan, on their own behalf and on behalf of
lildren, all on behalf of any person similarly situated; and NATIONAL
FOR THE ADVANCEMENT OF COLORED PEOPLE, DETROIT
G. MILLIKEN, Governor of the State of Michigan and ex-of-
# of the Michigan State Board of Education; FRANK J. KELLEY,
of the State of Michigan; MICHIGAN STATE BOARD OF EDU-
ional body corporate, and JOHN W. PORTER, Superintendent -
bn, Department of Education of the State of Michigan; ALLISON
ea of the State of Michigan; BOARD OF EDUCATION OF THE CITY
MIT, a school district of the first class; PATRICK McDONALD, JAMES
. ‘and CORNELIUS GOLIGHTLY, members of the Board of Education
Detroit; and NORMAN DRACHLER, Superintendent of the Detroit
“DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERI-
RATION OF TEACHERS, AFL-CIO; DENISE MAGDOWSKI and
OWSKI, by their Mother and Next , JOYCE MAGDOWSKI,
TI, by his Mother and Next Friend, VIOLET VIETTI, and the CITI
TTE! on BETTER EDUCATION OF THE DETROIT METRO-
“AR a Michigan non-profit Corporation; KERRY GREEN and
EEN, by their Father and Next Friend, DONALD G. GREEN,
C 1K and KATHLEEN ROSEMARY, by their Mother and Next Friend,
3. ROSEMARY, TERRI DORAN, by her Mother and Next Friend,
» SHERRILL, KEITH, JEFFREY and GREGORY COULS, by
(Continued on Reverse Side)
ARLEDGE, SHERYL and RUSSELL
MARY LOU PAUL, TRACY QUIG:
SE POINTE PUBLIC SCHOOL SYSTEM,
vs.
‘1D BRADLEY and RICHARD BRADLEY, by their Mother and Next
nd. VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next
ad, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE and
SLL LOVE, by their Mother and Next Friend, CLARISSA LOVE;
f BURDEN, PIERRE BURDEN, AVA BURDEN, MYRA BUR-
N, MARC BURDEN and STEVEN BURDEN, by their Father and Next
Friend, MARC!’S BURDEN; KAREN WILLIAMS and KRISTY WIL-
-LIAMS, by their Father and Next Friend, C. WILLIAMS; RAY LITT and
~ MRS. WILBUR BLAKE, parents; all parents having children attending the
_ spublic schools of the City of Detroit, Michigan, on their own behalf and on
pehalf of their minor children, all on behalf of any person similarly situ-
ated; and NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
. COLORED PEOPLE, DETROIT BRANCH; DETROIT FEDERATION OF
‘TEACHERS, LOCAL 231, AMERICAN FEDERATION OF TEACHERS,
AFL-CIO; BOARD OF EDUCATION OF THE CITY OF DETROIT, a
school district of the first class; PATRICK McDONALD, JAMES HATHA-
WAY and CORNELIUS GOLIGHTLY, members of the Board of Educa-
tion of the City of Detroit; and NORMAN DRACHLER, Superintendent
of the Detroit Public Schools; WILLIAM G. MILLIKEN, Governor of the
State of Michigan and ex-officio member of the Michigan State Board of
Education; FRANK J. KELLY, Attorney General of the State of Michigan;
MICHIGAN STATE BOARD OF EDUCATION, a constitutional body
and JOHN W. PORTER, Superintendent of Public Instruction,
of Education of the State of Michigan, ALLISON GREEN,
State Treasurer; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT
OF THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE
PUBLIC SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEWA
VALLEY PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF
CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEARBORN PUBLIC
SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, EAST
DETROIT PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF
FERNDALE, FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY
PUBLIC SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL
DISTRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT
OF THE CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT
OF THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS,
LAKEVIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LINCOLN
PARK PUBLIC SCHOOLS, MADISON DISTRICT PUBLIC SCHOOLS,
MELVINDALE-NORTH ALLEN PARK SCHOOL DISTRICT, SCHOOL
DISTRICT OF NORTH DEARBORN HEIGHTS, NOVI COMMUNITY
SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA
COMMUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT NO.
1, RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE
CITY OF RIVER ROUGE, RIVERVIEW COMMUNITY SCHOOL
DISTRICT, ROSEVILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS,
TAYLOR SCHOOL DISTRICT, WARREN CONSOLIDATED SCHOOLS,
WARREN WOODS PUBLIC SCHOOLS, WAYNE-WESTLAND COM-
_ MUNITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT and WYAN-
_ DOTTE PUBLIC SCHOOLS; KERRY and COLLEEN GREEN, by their
_ Father and Next Friend, DONALD G. GREEN; JAMES, JACK and KATH-
IN ROSEMARY, by their Mother and Next Friend, EVELYN G.
(Continued on Reverse Side)
eer ereweeeee eee ererer eee ereee eee eee
. SOF Ci ATONE noice hes as CRED Nee Seas
Reasons for Denying the Writs ................0 esses
1. Certiorari should be denied as this is not an appeal from
a final decision since the Sixth Circuit has remanded the
case to the district court to determine what type of
remedy should be ordered, and what districts, if any,
should be included in that remedy. ................
2. Certiorari should be denied because this Honorable
Court cannot properly assess the propriety of a multi-
district remedy when all factual aspects of the remedy
are hypothetical and speculative and their impact, if
any, upon each Petitioner is unknown at this time. ....
3. The metropolitan desegregation remedy ordered by the
courts below is based on specific Michigan public school
law, set in the context of the relevant metropolitan
Detroit community, and thus certiorari should be
NE a aie Bas, 4N 6 os RON eS ORAS
4 Certiorari should be denied as the courts below did not
err in ordering a metropolitan remedy, without regard
to artificial city or boundary lines, to eliminate uncon-
stitutional, racially identifiable schools in the metropoli-
tan Detroit community, since the State of Michigan, in
and of itself, has sole responsibility for education within
NE Oar ee re PECTS Pe er eo ee
$.Since this Honorable Court has encouraged district
- gourts to fashion broad, tailor-made, equitable remedies
_ for the elimination of constitutional violations in each
13
17
19
27
ee
given situation, there is nothing unconstitutional in the
instant remedy, pursuant to established Michigan public
school law, so as to justify certiorari. ..............
6. The courts below found systematic acts of segregation
affecting the constitutional rights of black children for
which the State Defendants are responsible. .......,.
7. The Petitioner school districts have not been denied
due process of law since they are agencies of the State
Board of Education which has been a party to this
litigation from its inception, and which has adequately
protected the interests of the Petitioner school dis- .
I es ean ae Wig vas sea oe os hs aac a a
TABLE OF AUTHORITIES
ies Construction Company v. Jacksonville T & K.W.R.
_ Company, 148 U.S. 372 (1893) ...... 0... e eee ee ee 13
_ fttomey General, ex rel Kies v. Lowrey, 131 Mich. 639
_ (1902), aff'd, 199 U.S. 233 (1905)..............2... 19
Baker v. Carr, 369 U.S. 186 (1962) .................... 36
Bradley et al. v. Milliken et al., 433 F2d 897 (6th Cir., 1971) . 2, 7
Bradley et al. v. Milliken et al., 438 F2d 945 (6th Cir., 1971). 2, 7
Bradley et al. v. Milliken et al., 468 F2d 902 (6th Cir., 1972),
cert, denied, 409 U.S. 874 (1972) . 2... oe eee 2
esos vs cee ve aNs Ce ds cee Cs cee OAD 54
Bradley v. School Board of the City of Richmond, §1 F.R.D.
Me WO SITE os ons sos ot dnkedeccae 53
Bradley v. School Board of the City of Richmond, 462 F.2d
1058 (4th Cir., 1972), aff'd, _._U.S.____ , 93 S.Ct. 1952
PE Cl Se oo kk Chk Male iwi, Ck 26, 42
Brotherhood of Locomotive Firemen and Enginemen v.
Bangor & Aroostook R. Co., 389 U.S. 327 CGT = Sees 14
Brown v. Board of Education of Topeka, 347 U.S. 483
MM Nec tete eer ceils ca fe 28, 31
Brown v. Board of Education of Topeka, 349 U.S. 294
ee 8s Fs NS COA PE 17, 31, 45
Burleson v. County Board of Election Commissioners of
Jefferson County, 308 F.Supp. 352 (E.D. Ark. 1970),
aff'd per curiam, 432 F.2d 1356 (8th Cir. 1970) ....... 41
Catlin v. U.S., 324 U.S. 229 (1945) .................... 13
ark v. Board of Education of Little Rock School District,
426 F.2d 1035 (8th Cir. SPT heck eee 35
Cooper v. Aaron, 358 U.S. 1(1958) ................... 50
Davis v. Board of School Commissioners of Mobile County,
402 US. MENTS 8 oceans a 33, 34, 40
Dickinson v. Petroleum Conversion Corp., 338 U.S. 507
; (1950) SPERM eS Se heey FETS lesen cto ee 14
Gillespie y, U.S. Steel Corporation, 379 U.S. 148 (1964). ... 14
Goldberg v. Kelly, 397 U.S. 254 (1970)... 0.2 ee eee 54
Gomillion v. Lightfoot, 364 U.S. 339 (1960) .......... 36, 40
Goss v. Board of Education of the City of Knoxville, Civil
Nos. 72-1 766-1767 (6th Cir. July 18, 1973) ........... B
Green v. County School Board of New Kent County, 391
US AIO CHIOEP CSR a ER a 17, 36
Griffin y. School Board of Prince Edward County, 377 US.
MRRP OGD in vin ss k ME eptkch Hach = (even .eseiPlGAAh »ie: ei via-sineh )
Hall v. St. Helena Parish School Board, 197 F.Supp. 649
(E.D. La. 1961), aff'd, 287 F.2d 376 (Sth Cir. 1961), aff'd
POF Copan, FOG Ue STS CFSE) ek ce eee css een 4
Hamilton-Brown Shoe Co. v. Wolf Bros., 204 U.S. 251(1916) 14
Haney v. County Board of Education of Sevier County, 410
AN: CPE ae 6 CCAS Sek SOS Oct Onkia cane 4]
Hatton v. County Board of Education of Maury County, 422
Re ae FCN TUR RPI og 6.6 KO hull bc ake wo Vike 48d eae 54
Higgins v. Board of Education, City of Grand Rapids, No.
6386 (D.C. W.D. Mich., July 18, 1973). .........-.005, 53
Isdaner v. Beyer, 53 F.R.D. 4 (D.C. Pa. 1971) .........455 53
Jenkins v. Township of Morris School District, 58 N.J. 483,
FIP Oe CLOT ED. ncwk ce eek a cee xk RAR 43
Kelley v. Metropolitan County Board of Education of Nash-
ville and Davidson County, 463 F.2d 732 (1972), cert. _
Genta, GIF US. FOOT GIST 2) soci: 6 ahi g 0 03h) 8.0.0'6 nse cg 3B
Keyes v. School District No. 1, Denver,___US.___., 37 L.Ed. |
De SR CATS 6 oi bh OG Oe Bee 47, 48, 49, 50
Lee v. Macon County Board of Education, 448 F.2d 746 (Sth —
CB TOT rs ss ceeds ee Ml
Lemon v. Bossier Parish School Board, 446 F.2d 911 <sth
CM BPTI) iwc ei ei tees cee ue cen ke eee 3
Lindsey v. Normet, 405 U.S. 56 (1972)... 2... eee en ene
Louisiana v. United States, 380 U.S. 145 (1965) .....-++5:
Morgan v. Thompson, 124 F. 203 (8th Cir. 1903) ....... OF
Be
PAGE
Northcross v. Board of Education of Memphis, 420 F.2d 546
(1969), aff'd per curiam, 397 U.S. 232 (1970)......... 28
Owenby v. Morgan, 256 U.S. 94 (1921) ................ 54
Raney v. Board of Education of Gould School District, 391
A EID ie asta bs Ak es pigieo vin wich ann WR Mg eas 28
Reynolds v. Sims, 377 U.S. 533 (1964) ................. 40
San Antonio Independent School District v. Rodriguez, 411
SU RAEUTOD. oo ep 0'h io ans vom dbe humus meh bes wem evens 50
Spencer v. Kugler, 326 F.Supp. 1235(D. N.J. 1971), aff'd,404
REE EOE” eh RITE URAL I 8 43
St. Louis, LM. and S.R.R. v. Southern Express Company,
ESN oS lnc <U oa 00 e CURSES Oho dace lee tt 13
Swann v. Charlotte-Mecklenburg Board of Education, 318
aD. TOO CUD. NA ISTO) i ak AL A 51
Swann v. Charlotte-Mecklenburg Board of Education, 402
MCL OP ED fier Wrisivs 11, 17, 27, 28, 33, 34, 35, 44, 45
Taylor v. Board of Education of New Rochelle, 288 F.24 600
EE Cis phd Al SG ak COTS wae EN Sue wie 25 14
Turmer v. Warren County Board of Education, 313 F.Supp.
ae PA AOE ie See abies SBE NE ERC Baie 41
United States v. Scotland Neck City Board of Education, 407
NORTE 6S ors pO Ska UN ee keaen ota 28, 41
United States v. State of Texas, 447 F.2d 441 (Sth Cir..1971) 41
Wright v. Council of City of Emporia, 407 U.S. 451 (1972)28, 41
Pade: emer MP ee 4, 50, 51, laa
US. Const, amend. XIV .... 2... een cease 4, 35, 42, 51, laa
PR IN Ne on ait a hye: 4, 35, laa
Michigan Const. art. VIII, $2......... 00.00.0000 4, 6, laa
Judicial Code, 28 U.S.C. $1292(b) ............... 4, 9, 2aa
Act 48, Sec. 12, Mich. Pub. Acts of 1970 .......
cep eee ee ew ee ewe sceeesseeensese een
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1973
No. 73-434
No. 73-435
No. 73-436
WILLIAM G. MILLIKEN, et al.,
Petitioners,
“VS~
RONALD BRADLEY, etal.,
Respondents,
ALLEN PARK PUBLIC SCHOOLS, et al.,
Petitioners,
-VS-
RONALD BRADLEY, et al.,
Respondents.
GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,
-Vs-
RONALD BRADLEY , et al.,
Respondents.
BRIEF IN OPPOSITION TO PETITIONS FOR
WRITS OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Respondents, the Board of Education for the School District
of the City of Detroit, a school district of the first class, Patrick
McDonald, James Hathaway, Cornelius Golightly and Normat
Drachler, respectfully pray that these Petitions for Writs of € et
tiorari should be denied. a
OPINIONS AND ORDERS BELOW
The opinion of the Sixth Circuit, not yet reported, appears in
a Appendix, at 110a-240a.! Other opinions delivered in the
courts below are:
United States District Court for the
Eastern District of Michigan, Southern Division
September 27, 1971, Ruling on Issue of Segregation, 338
‘ F.Supp. 582. (1 7a-39a).
November 5, 1971, Order [for submission of Detroit-only
and metropolitan desegregation plan] , not reported. (46a-47a).
March 24, 1972, Ruling on Propriety of Considering a Metro-
politan Remedy to Accomplish Desegregation of the Public
Schools of the City of Detroit, not reported. (48a-52a).
March 28, 1972, Findings of Fact and Conclusions of Law on
Detroit-ofily Plans of Desegregation, not reported. (53a-5S8a).
_ June 14, 1972, Ruling on Desegregation Area and Order for
Development of Plan, and Findings of Fact and Conclusions of
Law in Support of Ruling on Desegregation Area and Develop-
ment of Plan, 345 F.Supp. 914. (59a-105a).
July 11, 1972, Order for Acquisition of Transportation, not
reported. (106a-107a).
United States Court of Appeals for the
Sixth Circuit
July 20, 1972 Order [granting leave to appeal] , not reported.
(108a-109a).
_ Other opinions of the Sixth Circuit rendered at prior stages
of the present proceedings are reported in 433 F.2d 897, 438 F.2d
- 945 and 468 F.2d 902, cert. den., 409 U.S. 844 (1972).
Bak Hereinafter references to the Petitioners’ Appendix already filed herein
- will be indicated by page numbers enclosed in parentheses and desig-
nated by the letter “a”. Appendix references followed by the letters
ond gggad to the Appendix to this Brief commencing at page laa
JURISDICTION
There is no jurisdiction in this Honorable Court because th
decision of the district court is not final and is not at an approps-
ate stage for review.
QUESTIONS PRESENTED
1. Should certiorari be denied since this is not an appeal from
a final decision and since the Sixth Circuit has remanded the cag
to the district court to determine what type of remedy should be
ordered, and what districts, if any, should be included in that
remedy?
2. Should certiorari be denied because this Honorable Court
cannot properly assess the propriety of a multidistrict remedy
when all factual aspects of the remedy are hypothetical and specv-
lative and their impact, if any, upon each Petitioner is unknown at
this time?
3. Should certiorari be denied where the metropolitan de
segregation remedy ordered by the courts below is based on spe
cific Michigan public school law, set in the context of the relevant
metropolitan Detroit community?
4. Should certiorari be denied when the courts below did
not err in ordering a metropolitan remedy, without regard to arti-
ficial city or municipal boundary lines, to eliminate unconstitv-
tional racially identifiable schools in the metropolitan Detnit
community, since the State of Michigan, in and of itself, has sok
responsibility for education within its boundaries?
5. Should certiorari be denied where this Honorable Court
has encouraged district courts to fashion broad, tailor-made, equit-
able remedies for the elimination of constitutional violations in
each given situation, and where there is nothing unconstitutional
in the instant remedy, pursuant to established Michigan public
school law?
6. Should certiorari be denied where the courts below
found systematic acts of segregation affecting the constitutional
rights of black children for which the State Defendants are respor
sible? 4
“ka
EE
7. Should certiorari be denied where the Petitioner school
districts have not been denied due process of law since they are
agencies of the State Board of Education, which has been a
to this litigation from its inception, and which has ade-
quately protected the interests of the Petitioner school districts?
CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES INVOLVED
The constitutional provisions, statutes and rules relevant to
the issues in this case are: U.S. Constitution Amendment XI; U.S.
Constitution Amendment XIV; U.S. Constitution Amendment
XV; Michigan Constitution Art. VIII, Sec. 2; Judicial Code, 28
US.C. §1292(b); Fed. R. Civ. P. 19 and 24(a) (2); and Michigan
Public Acts of 1970, Act 48, Sec. 12, which are set forth in
relevant part in the Appendix to this Brief in Opposition to Peti-
tions for Writs of Certiorari.
5
STATEMENT OF THE CASE
The School District of the City of Detroit is one of 85 school
districts in the metropolitan Detroit community and one of about
600 school districts in the State of Michigan. Unlike most of the
school districts in Michigan, the Detroit School District is cotep.
minous with a political boundary (i.e. the city limits of Detroit),2
At the time the district court rendered its decision on the issue of
segregation, September 27, 1971, the Detroit School District ser.
viced some 280,000 school children, 180,000 of whom wer
black. (20a). This resulted in a school population ratio of approxi-
mately 65% black and 35% white, though the City of Detroit itself
had a population ratio of 56% white and 44% black. (21a). With
some exceptions, the surrounding school districts in the metro
politan Detroit community have overwhelmingly white oniee
populations. (66a).
The City of Detroit is part of the metropolitan Detroit
community which is intensely interrelated in terms of social and
economic activities. The metropolitan Detroit community is
viewed by the United States Census Bureau as a single standard
metropolitan statistical area. Metropolitanization has become a
growing hallmark of government services in the metropolitan
Detroit community. There is a metropolitan transit system
(SEMTA), a metropolitan park authority (Huron-Clinton Metro
politan Authority), a metropolitan water system, a metropolitan
sewage system and a metropolitan council of governments (SEM-
COG). (80a).
[2] At least the following Petitioner school districts are not coterminow
with political boundary lines of any municipality or county, to wit:
Brandon Schools, Cherry Hill School District, Chippewa Valley Public
School District, Crestwood School District, Dearborn Heights School
District No. 7, Flatrock Community Schools, Lakeshore Public Schook,
Lakeview Public Schools, The Lamphere Schools, Melvindale-North
Allen Park School District, Allen Park Public Schools, Schoo! District of
North Dearborn Heights, Oxford Area Community Schools, Redford
Union School District No. 1, Richmond Community Schools, South
Lake Schools, Warren Consolidated Schools, Warren-Woods Pul
Schools, Wayne-Westland Community Schools, Grosse Pointe
Schools. AF
herd
Oye
a
6
s
the field of education, children in the metropolitan
Detroit community have crossed school district lines to attend
school or to receive educational services. Some educational
services in the metropolitan Detroit community are already
provided to students on an inter-district, inter-county, or metro-
‘politan basis by county-wide intermediate school districts and the
State Department of Education. (79a). Education in Michigan has
‘been a function of the State since the Northwest Ordinance of
1787 which governed the then Territory of Michigan, (165a). The
current Constitution of Michigan, the Constitution of 1963, Ar-
ticle Vill, Section 2, provides in part as follows:
“The legislature shall maintain and support a system of free
public elementary and secondary schools as defined by law.”
The Michigan legislature, exercising the aforementioned constitu-
tional mandate, which was also found in Michigan’s preceding
three constitutions, established numerous school districts. These
school districts under Michigan law are creatures of the State of
Michigan and act as instrumentalities of the Michigan legislature
under the control of the State Board of Education. (167a). School
district boundaries in Michigan are not sacrosanct. (167a). This is
evidenced by the fact that the State Board of Education had
between 1964 and 1968, eliminated 700 school districts. (168a).
Since that time the State Board of Education has eliminated
additional school districts.
Detroit is located in Wayne County, where a number of
school districts have been merged and consolidated by the State
Board of Education primarily for financial and educational service
feasons. (168a). The pervasiveness of State control over its school
districts is further illustrated by the fact that the State provides
Massive State financing, dictates the number of school days, re-
quires certain courses to be taught, controls the use of particular
text books, and imposes many other details of regulatory control.
(170a-17 1a).
__ On April 7, 1970, the Detroit Board of Education adopted a
desegregation plan for its high schools. (17a). However, before the
Vetroit Board of Education could implement its April 7, 1970
desegregation plan, the State of Michigan exercising its plenary
powers of control over local school districts enacted Act 48 of
Public Acts of 1970 which automatically invalidated the April 7,
1970 plan, thereby frustrating the execution and operation of the
Detroit School Board’s attempts to desegregate. (15 1a).
It was this action of the State of Michigan that precipitated the
complaint filed herein by plaintiffs alleging acts of de jure segregs.
tion on the part of the Board of Education for the School District
of the City of Detroit, as well as the Superintendent of Public
Instruction for the State of Michigan, the Michigan State Board of
Education, the Governor of the State and its Attorney General,
Although Michigan does have a procedure whereby the Attorney
General may render opinions as to the legality of legislation and
the Governor is accorded the privilege of addressing the legislature
on matters of public importance, there is nothing in the record
below to indicate that the Attorney General or the Governor took
any action as State officers to advise the legislature of the uncon
stitutional aspects of Act 48 in depriving black children of their
constitutional rights. The same is true as to the Superintendent of
Public Instruction and the State Board of Education.
The plaintiffs originally filed their preliminary injunction to
reinstate the Detroit Board’s April 7, 1970 plan which had been
thwarted by Act 48. The district court denied the injunction. On
appeal, the Sixth Circuit affirmed the denial of the injunction
while properly holding that Act 48 was unconstitutional insofar as
it nullified the implementation of the Detroit Board’s April 7th
Plan. 433 F.2d 897 (1971).
On remand, the plaintiff sought implementation of a tempor-
ary plan of desegregation. The district court permitted the
Detroit Board to introduce three temporary desegregation plans,
one of which, the so-called Magnet Plan was approved by the
court for implementation pending the trial on the merits.
Plaintiff again appealed this order of the district court, but
the Sixth Circuit remanded with instructions that the case “beset
forthwith and heard on its merits.” 438 F.2d 945, 946 (1971). _
The trial on the merits began on April 6, 1971 and laste
forty-one trial days through the spring and summer, 1971,
parties were ably represented by counsel, had the o
:
8
evidence and fully participate in the trial. On September
27, 1971, the district court issued its Findings of Fact and Con-
dusions of Law, (17a), holding inter alia that the State of Michigan
was guilty of de jure segregation committed directly by bodies or
officers with state-wide jurisdiction and by its local subordinate
agent, the Detroit Board of Education. The State Defendants and
‘the Detroit Board appealed these Findings, but the Sixth Circuit,
dlismissed the Appeal as being untimely.
Subsequently, the district court ordered the Detroit Board
to present Detroit-only desegregation plans and the State De-
fendants to present metropolitan plans of desegregation. After
such plans had been presented to the trial court, a hearing on
plans of desegregation limited to the geographic boundaries of the
City of Detroit commenced. The State Defendants vigorously
urged a Detroit-only remedy.
On March 28, 1972 the district court issued its ruling on the
Detroit-only plan. The district court properly concluded that no
Detroit-only plan could constitutionally desegregate the Detroit
school system, because of this stark reality: without some
700,000 white students in the surrounding metropolitan Detroit
community, any desegregation plan directed towards the 180,000
black school children and the 100,000 white school children with-
in the Detroit School District would have resulted in unconstitu-
tional black racially identifiable schools, encircled by schools ra-
cially identifiable as white, thereby continuing to racially isolate
black children in the metropolitan Detroit community. The Chief
Education Officer of Michigan, the Chief Executive of the State of
Michigan and the Chief Legal Officer of the State of Michigan
could not convince the district court otherwise though they at-
tempted to do so.
It should be noted that the State Defendants were parties
throughout this litigation who adequately represent the interests
of their subordinate agents, the local school districts. Despite mas-
sive publicity received by this litigation, Petitioner school districts
were apparently satisfied that their interests were properly repre-
sented for it was not until February 9, 16 and 17, 1972 that the
Petitioner school districts asked for the right to intervene. The
district court granted intervention on March 15, 1972. In passing
9
be
:
it should be noted that the publicity of the case resulted in th
Detroit Federation of Teachers and a group representing hom
owners within the City of Detroit intervening as party defendants
even prior to the trial on the issue of segregation.
The Petitioner districts had every opportunity to participate
in the hearing on metropolitan plans and were not denied the right
to present any evidence as to metropolitan plans. As proof of thes
fact, several school districts prevailed in limiting the metropolitan
desegregation plan to exclude their school districts.
The district court, on June 14, 1972, (97a), adopted certain
basic guidelines for metropolitan desegregation plans designed to
eliminate the isolation of black children within the metropolitan
Detroit community. The court used the guidelines announced by
this Honorable Court designed to eliminate the vestiges of segreg:-
tion “root and branch”’, and to do it in the most practical, con-
venient manner employing all known techniques of desegregation
approved by this Honorable Court.
Of course, the findings of fact and conclusions of law as to
the metropolitan desegregation plans announced on June 14,
1972, were far from complete, and the district court acknowl
edged this. The district court established a desegregation panel to
develop a plan for further hearings. The Petitioner school districts
were granted répresentation on that panel. The Superintendent of
Public Instruction was also on that panel. The panel was directed
to develop a metropolitan plan of desegregation consistent with
the court’s findings of fact and conclusions of law under a clear
mandate that further hearings would be held on the plan. Peti-
tioners, at all times, had full opportunity to participate in this
procedure.
At the request of both the Attorney General of the State of
Michigan, who has always represented the State Defendants and
the Petitioner school districts, the District Judge certified the case
for review pursuant to 28 U.S.C. 1292(b). The Court of Appeals
for the Sixth Circuit in a three judge panel reviewed the entir
proceedings. After the Petitioners were given every maha
file briefs along with the original parties and to argue orally, the
Sixth Circuit on December 11, 1972, unanimously affirmed the
district court. he
Secu
<3
10
On petition for rehearing en banc, the Sixth Circuit granted
the petition, and again, the Sixth Circuit en banc affirmed the
district court on all matters save the final form of the metropoli-
tan remedy which they remanded to the district court with
instructions to permit those districts which had not chosen to
intervene in the hearing to develop a metropolitan plan.
~ On remand, the district court is proceeding to hold hearings
to determine, with all petitioners present, what other local school
districts should be brought into the hearings, and what procedure
should be followed in developing the metropolitan plan. The hear-
ings are not complete. There is much work to be done. The oppor-
tunity to provide additional legal input by interested parties is
present and pending. The case, at this point, is still incomplete,
making an appeal to this Honorable Court, most premature and
most untimely.
11
SUMMARY OF ARGUMENT
The Sixth Circuit sitting en banc remanded this case to the
district court for the development of a desegregation remedy pur-
suant to the guidelines previously announced by this Honorable
Court, including the use of “mathematical ratios” as a “starting
point in the process of shaping a remedy”. Swann v. Charlotte.
Mecklenburg Board of Education, 402 US 1, 17-18 (1971). This
case does not, and never has, involved a racial balance remedy,
Among the issues which must yet be resolved in a final metropoi-
tan desegregation plan are the extent and type of transportation to
be required, the precise method of crossing school district bouné-
aries to exchange pupils, the number of pupils to be exchanged
and the faculty to be exchanged, if any. A case which is in this
posture does not represent a final decision for which this Honor
able Court should grant certiorari.
If this Honorable Court were to grant certiorari, it would
place itself in the novel position, which it has consistently con-
demned, of deciding hypothetical, speculative and abstract ques-
tions as there is no specific desegregation plan now before this
Court for review.
Under Michigan public school law, the sole responsibility for
education rests with the State, and Michigan school districts ar
mere instrumentalities of the State subordinated to the State
Board of Education and the Legislature and subject to pervasive
State control. Thus, the de jure actions of the subordinate agent
Detroit School District are binding on the State of Michigan just a
the de jure actions of the State of Michigan are binding on the
Detroit School District. It is the State of Michiganj and only th
State of Michigan, that has committed de jure acts of segregation,
and it is the State alone that must provide a remedy.
A Detroit-only desegregation plan would not eliminate ut
constitutional racial isolation in the relevant metropolitan Detroit
community. There are 180,000 black children and 100,000 white
children in the Detroit School System — a system surrounded by
700,000 white school children in the metropolitan Detroit com
munity.
The relevant metropolitan Detroit community is an intensely
interrelated community both socially and economically with many
oo
z
12
forms of metropolitan governmental services. Students in the
metropolitan Detroit community already cross school district lines
- to attend school. Educational services are already provided to the
Se eogelitan sradeats on an inter-district basis. The boundaries of
Michigan school districts in general bear no relationship to the
4 eee of other municipal or county governments.
The arguments presented by the Petition of the State Defen-
‘eis have failed to explain that if the State can eliminate 700
school districts out of 1438 school districts in a five-year period
(1964-1968), including districts in the metropolitan Detroit com-
‘munity, for financial and educational reasons, then why are the
- Michigan school district lines so sacrosanct when it comes to pro-
‘tecting constitutional rights of black children?
The Michigan State Board of Education has always been a
party to this litigation and has adequately represented the interests
of its subordinate districts. Petitioner school districts, although
having every opportunity to intervene in a case that had great
publicity, chose to intervene in February, 1972. The Sixth Circuit
in its remand has made it clear that all districts may participate in
the fashioning of a metropolitan remedy, which still is in the
process of being developed.
If the State of Michigan can continue to provide educational
services for students on an inter-district basis and continue to
transport students across school district lines, then a multi-district
desegregation remedy is consistent with Michigan school law. It is
‘Mandatory for the district court, exercising its equity powers, to
temedy the constitutional violation of the rights of 180,000 black
school children isolated from the rest of the relevant metropolitan
Detroit community. By practical necessity, this requires a multi-
district remedy .
\ (acting alone or through its agent,
the Detroit School District),
13
REASONS FOR DENYING THE WRITS
I. CERTIORARI SHOULD BE DENIED AS THIS IS NOT Ay
APPEAL FROM A FINAL DECISION SINCE THE SIXTH
CIRCUIT HAS REMANDED THE CASE TO THE Djs.
TRICT COURT TO DETERMINE WHAT TYPE OF
REMEDY SHOULD BE ORDERED, AND WHAT Dis
TRICTS, IF ANY, SHOULD BE INCLUDED IN THAT
REMEDY.
A grant of certiorari would be improvident in this case as the
decision of the Sixth Circuit is not a final decision. The Sixth
Circuit agreed with the district court on its conclusion to consider
a metropolitan remedy and remanded the case for the joinder of
additional parties and for a determination of the relief to be
granted the plaintiffs; namely what type of metropolitan remedy
should be ordered. The district court has begun proceedings in
compliance with the instructions of the Sixth Circuit.
Among the issues that must be resolved in the district court
are (1) the identities of the school districts to be included ina
final desegregation plan, (2) the extent and type of transportation
to be required, (3) the precise method of crossing school district
boundaries to exchange pupils, (4) the number of pupils to be ex-
changed, and (5) the faculty involved.
If “a ‘final decision’ generally is one which ends the litigation
on the merits and leaves nothing for the Court to do but execute
the judgment,” Catlin v. U.S., 324 U.S. 229, 233 (1945), the June
12, 1973 decision of the Sixth Circuit is not a final decision, Se
St. Louis, ILM. and S.R.R. v. Southern Express Company, 108 US.
_ 24, 28 (1883); Morgan v. Thompson, 124 F. 203, 204 (8th Gi.
1903).
This Honorable Court admittedly has power to grant certio
rari in cases that are not yet final, but it has consistently refused
to review interlocutory, orders of the courts of appeals “‘unlessitis
necessary to prevent extraordinary inconvenience and embarrass
ment to the conduct of the cause.” American Construction Com-
pany v. Jacksonville T & K.W.R. Company, 148 U.S. 372, 384
(1893). This refusal to review especially follows when the cons
14
been remanded to the district court for further proceedings. See
Hamilton-Brown Shoe Co. v. Wolf Bros., 204 U.S. 251, 257-58
(1916); Brotherhood of Locomotive Firemen and Enginemen v.
Bangor & Aroostook R. Co., 389 U.S, 327, 328 (1967).
The possibility that the Sixth Circuit has erred may present
some slight inconvenience, but that inconvenience is much less
than would result from repeated piecemeal appeals. On the facts
of this case the inconvenience, if any, is hardly extraordinary, nor
will delay in Supreme Court review cause any “embarrassment to
the conduct of the cause.” Neither the State of Michigan nor the
Petitioner school districts are placed in any danger of being de-
prived of rights which cannot be vindicated by an appeal in the
normal course of litigation. Assuming, arguendo, that the State
and Petitioner school districts should be entitled to prevail on
every substantive point they raise, those points will still be capable
of vindication after the district court has concluded its hearing.
Consequently, there is no “danger of denying justice by delay.”
Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511
(1950); Gillespie v. U.S. Steel Corporation, 379 U.S. 148 (1964).
Judge Friendly’s opinion for the Second Circuit in Taylor v.
Board of Education of New Rochelle, 288 F.2d 600, 602
(1961) dealt decisively with the related issue of finality of a dis-
trict court decision after a finding of segregation and before the
ordering of a remedy:
“Upon full consideration, we conclude that we have no
power to entertain the Board’s appeal until the District Court
has finished its work by directing the Board to take or refrain
from action.
“Familiar decisions of the Supreme Court establish the con-
trolling principles. ‘Finality as a condition of review is an
_ historic characteristic of federal appellate procedure. It was
bs written into the first Judiciary Act and has been departed
~ from orfly when observance of it would practically defeat the
“right to any review at all:’ Cobbledick-v. United States, 1940,
- 309 U.S. 323, 324-325, 60 S.Ct. 540, 541, 84 L.Ed, 783.
_ ‘The foundation of this policy is not in merely technical
ee conceptions of ‘finality.’ It is one against piecemeal litigation.
15
‘The case is not to be sent up in fragments * * *’ Luxtony,
‘North River Bridge Co., 147 U.S. 337, 341 [13 S.Ct. 356,
358, 37 L.Ed. 194]. Reasons other than conservation of
judicial energy sustain the limitation. One is elimination of
delays caused by interlocutory appeals.’ Catlin v. United
States, 1945, 324 U.S. 229, 233-234, 65 S.Ct. 631, 634, 89
L.Ed. 911.
“*A ‘final decision’ within 28 U.S.C. $1291, the basic
statute authorizing appeals to the courts of appeals, and
its predecessors going back to §§ 21 and 22 of the Act of
Sept. 24, 1789, c. 20, 1 Stat. 73, 83-84, ‘is one which ends
the litigation on the merits and leaves nothing for the court
to do but execute the judgment.’ Gatlin v. United States,
supra, 324 U.S. at page 233, 65 S.Ct. at page 633. Plainly
Judge Kaufman’s decision of January 24, 1961 does not fit
that description. It constituted only a determination that
plaintiffs were entitled to relief, the nature and extent of
which would be the subject of subsequent judicial considera-
tion by him. What remained to be done was far more than
those ministerial duties the pendency of which is not fatal to
finality and consequent appealability, Ray v. Law, 1805, 3
Cranch 179, 180, 2 L.Ed. 404. An order adjudging liability
but ee of relief still to be determined has
been a classic example of non-finality and non-appealability
from the time of Chief Justice Marshall to our own, The
Palmyra, 1825, 10 Wheat. 502, 6 L.Ed. 375; Barnard v. Gib
son, 1849, 7 How. 650, 12 L.Ed. 857; Leonidakis v. Inter-
national Telecoin Corp., 2 Cir., 1953, 208 F.2d 934; 6
Moore, Federal Practice (1953 ed.), p. 125 and fn. 5, ak
though in all such cases, as here, this subjects the defendant
to further proceedings in the court of first instance that will
have been uncalled for if that court’s determination of liabi-
lity is ultimately found to be wrong.
* * *
“Here, while we understand defendants dislike of presenting
a plan of desegregation and attending hearings thereon that
would be unnecessary if the finding of liability were ultt
- mately to be annulled, and also the possibly unwarranted —
16
~~ expectations this course may create, this is scarcely injury at
- all in the legal sense and surely not an irreparable one.
~’ Equally inapposite is the doctrine of Cohen v. Beneficial In-
dustrial Loan Corp., 1949, 337 U.S. 541, 545-547, 69 S. Ct.
1221, 1225, 93 L. Ed. 1528, also advanced: by appellants,
‘permitting review of orders ‘which finally determine claims
of right separable from, and collateral to rights asserted in the
_-action, too important to be denied review and too indepen-
_ dent of the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated.’ Here the
» issue sought to be reviewed, far from being collateral to the
_ main litigation, represents the very findings and conclusions
upon which any final judgment against the defendants must
rest.”
Judge Friendly’s rationale is equally persuasive and dispositive
of this case.
For these reasons, certiorari should be denied.
17
fl. CERTIORARI SHOULD BE DENIED BECAUSE THis
HONORABLE COURT CANNOT PROPERLY ASSESS THE
PROPRIETY OF A MULTI-DISTRICT REMEDY WHEN
ALL FACTUAL ASPECTS OF THE REMEDY ARE Hypo.
THETICAL AND SPECULATIVE AND THEIR IMPACT, IF
ANY, UPON EACH PETITIONER IS UNKNOWN AT THis
TIME.
At this stage of the case there are too few firm facts available
to this Honorable Court in reviewing the work of the courts
below. Petitioners’ objections are to hypothetical conditions,
Remedies in school segregation cases, being matters of equity, are
characterized by a flexibility deeply rooted in the facts of each
case. See Brown v. Board of Education of Topeka, 349 U.S. 294,
299-300 (1955); Swann v. Charlotte-Mecklenburg Board of Educe-
tion, 402 U.S. 1, 12-13, 15,1971). As this Honorable Court has
said, “There is no universal answer to complex problems of deseg-
regation; there is obviously no one plan that will do the job in
every case. The matter must be assessed in light of the cir
cumstances present and the options available in each instance.”
Green v. County School Board of New Kent County, 391 US.
430, 439 (1968). That task cannot be done well if this Honorable
Court is not fully informed of the circumstances and options. The
Supreme Court cannot properly evaluate the decisions of the
courts below in the factual vacuum that exists at this point in this
case. Every major measureable aspect of a desegregation remedy is
unsettled in this case, as indicated in Reason I, supra at 13.
The Petitions for certiorari show on their face that they
present hypothetical questions divorced from the concrete facts
necessary to sound judicial decision-making. Petitioner Grose
Pointe Public School System refers to “the impact of the lower
courts’ proposed remedy upon the residents of every school dis
trict in the Detroit Metropolitan Area”. Grosse Pointe Public
School System, Petition for Writ of Certiorari, at 14. Yet that
petition cannot point to an actual remedy agreed upon by thos
courts. Rather, Petitioner concedes that the district court's plan
was vacated by the Sixth Circuit. (/d. at 16.) Nevertheless, in the
eyes of Petitioner Grosse Pointe Public School System, the vacated
plan “remains fully illustrative of the magnitude of a plan” the
Petitioner. wants to attack. Only if one assumes that the lower
RS
courts are playing games with the parties, can one assume before
tehearing that a vacated plan is “fully illustrative” of the ultimate
plan. This Honorable Court does not sit to resolve “illustrative”
issues but to deal with concrete legal issues. Petitioner jumbles
statistics based on a vacated plan and statistics from a much larger
metropolitan area in an effort to discredit a remedy that has not
yet been ordered. (/d. at 16). Petitioner admits that “the exact
geographical area and the number of students to be involved” are
unsettled, but asserts that the consequences of a remedy will be
“important” to Petitioner. Significantly, Petitioner cannot assert
with absolute certainty that it will be included in the geographical
area of the ultimate plan. Petitioner Grosse Pointe Public School.
System in effect concedes that all the critical facts are unknown:
pupil reassignment and transportation, faculty reassignment,
“governance, finance and administrative arrangements.” (/d. at 17,
note 25). Yet it asserts, as a justification for premature interven-
tion of this Honorable Court, that the cost of the unknown factors
‘is “inestimable”. (/d. at 17, note 25). The fact that all aspects of
the remedy are inestimable is good cause for this Honorable Court
to stay its hand and allow the district court to finish its work.
Petitioners Allen Park Public Schools, ef ai., are similarly un-
certain of the scope of the remedy. They also vacillate between
the vacated plan and the outer limits of the three county metro-
politan area in asserting the unreasonableness of a remedy that has
not yet been announced. Allen Park Public Schools, et ai., Petition
for Writ of Certiorari, at 14-15. Their uncertainty is reflected in
the very terms of the Statement of Questions Presented. Question
ll refers to an order “embracing up fo eighty-five (85)” school
districts and requiring the transportation of “hundreds of
thousands” of children. (/d. at 3, emphasis added). Precision was
obviously impossible at this stage of the case. Question III asserts a
failure to afford a meaningful hearing to “Petitioners against
whom relief is imposed.” (Id. at 4, emphasis added.) The wording
of the question obscures the fact that relief has never been “im-
posed” against some of those petitioners and, for all that is now
known, never will be. Other petitioners were included in the vacat-
ed plan but may or may not be affected by the next one.
Sound judicial administration will not be served by deciding
. Major issues of constitutional law on the speculative factual basis
tly available to this Honorable Court.
19
Ill. THE METROPOLITAN DESEGREGATION REMEDY Op.
DERED BY THE COURTS BELOW IS BASED ON Spr.
CIFIC MICHIGAN PUBLIC SCHOOL LAW, SET IN THE
CONTEXT OF THE RELEVANT METROPOLITAN De.
TROIT COMMUNITY, AND THUS CERTIORARI SHOULD |
BE DENIED. |
The Sixth Circuit correctly concluded that the Public School _
System in Michigan is a State function and that the local school
districts are mere “instrumentalities of the State created for
administrative convenience’. (165a). More succinctly stated,
under Michigan law, “the school district is a State agency”. —
Attorney General, ex rel Kies v. Lowrey, 131 Mich. 639, 644,92 |
N.W. 289, 290 (1902), aff'd, 199 U.S. 233 (1905). |
Tracing the long history of State control over local public
education in Michigan the Sixth Circuit noted as follows:
“The Northwest Ordinance of 1787 governing the Tert-
tory of Michigan provided:
‘Religion, morality and knowledge, being necessary to
good government and the happiness of mankind, schools
and the means of education shall forever be encouraged.’
Art. III.
“With this genesis, Michigan’s four Constitutions have
clearly established that the public school system in that State
is solely a State function. The Constitution of 1835 in Article
X, Section 3, provided, in part: ‘The legislature shall provide
for a system of common schools...’ The Constitution of
1850, Article XIII, Section 4, provided, in part: “The legisle-
ture shall... provide for and establish a system of primary
schools . . .’ Section | of the same Article provided, *. . . the
Superintendent of Public Instruction shall have general super
vision of public instruction . . .”
“The Constitution of 1908 in Article XI, Section 2, pro-
vided that the Superintendent of Public Instruction ‘shall
have general supervision of public instruction in the State.’
Article XI, Section 9, provided, in part as follows:
i
As
20
“The legislature shall continue a system of primary
schools, whereby every school district in the State shall
provide for the education of pupils without charge for tui-
tion...”
“The Constitution of 1963, the present Constitution of
the State of Michigan, in Article VIII, Section 2, provides, in
part, as follows:
‘The legislature shall maintain and support a system of
free public elementary and secondary schools as defined
by law.”
“In interpereting [sic] the above educational provisions of
the Constitution of 1850, the Michigan Supreme Court stat-
ed: “The school district is a State agency. Moreover, it is of
legislative creation...’ Attorney General v. Lowrey, 131
Mich. 639, 644, 92 N.W. 289, 290 (1902). Again, inter-
preting the Constitution of 1850, the Supreme Court of
Michigan in Attorney General v. Detroit Board of Education,
154 Mich. 584, 590, 118 N.W. 606, 609 (1908), adopted
lower court language which read:
‘Education in Michigan belongs to the State. It is no
part of the local self-government inherent in the township
or municipality, except so far as the legislature may chose
to make it such. The Constitution has turned the whole
subject over to the legislature . . .’
“The Supreme Court of Michigan interpreted Article XI,
Section 9, of the Constitution of 1908 to mean:
‘The legislature has entire control over the schools of
the State subject only to the provisions above referred to.
The division of the territory of the State into districts, the
conduct of the sclregl, the qualifications of teachers, the
subjects to be taught therein are all within its control.’
Child Welfare v. Kennedy School Dist., 220 Mich. 290,
296, 189 N.W. 1002, 1004 (1922).
“In the leading case concerning construction of this sec-
tion of the Michigan Constitution of 1963, the Michigan Su-
preme Court said:
the pervasive effect of State control over local school districts in
21
‘It is the responsibility of the State board of education
to supervise the system of free public schools set up by the
legislature and, as a part of that responsibility, to promul-
gate regulations specifying the number of hours necessary
to constitute a school day for elementary school students
as well as for other classifications or groupings of students,
to determine the curricula and, in general, to exercise
leadership and supervision over the public school system,’
Welling v. Livonia Board of Education, 382 Mich. 620,
624, 171 N.W.2d 545, 546 (1969). See also Governor y.
State Treasurer, 389 Mich. 1, 13, 203 N.W.2d 457 (1972).
“Michigan has not treated its school districts as sacrosanct.
To the contrary, Michigan always has regarded education as
the fundamental business of the State as a whole. Local
school districts are creatures of the State and act as instr-
mentalities of the State under State control. Cf Senghas y.
L’Anse Creuse Public Schools, 368 Mich. 557, 118 N.W.2d
975 (1962); McLaughlin v. Board of Education, 255 Mich.
667, 239 N.W. 374, (1931). (16Sa-167a)
The Sixth Circuit also cited numerous examples illustrating
Michigan. These examples serve to unequivocally substantiate the
court’s conclusion that local school districts are mere instrumen-
talities or agents of the State created for administrative conven-
ience. As cited by the Sixth Circuit, examples were as follows:
“1. Following the holding of Welling v. Livonia Board of
Education, supra, that there was no minimum length of day
required under the 1 80-day school attendance rule absent a
State Board of Education regulation, the Michigan State
Board of Education, acting under its Constitutional mandate
without legislative authority, established an administrative
rule requiring local school boards to provide a minimum
number of hours per school year. See, School Districts Child
Account for Distribution of State Aid, Bulletin No. 1005,
Michigan State Department of Education (1970).
(167a-1 68a).
“2. Public Act 289 of 1964 (MSA 15.2299 (1) et seq,
MCLA §388.681 et seq.) required Michigan school districts
3a —
22:
-- to operate K-12 systems. When Public Act 289 become effec-
~ tive, 1,438 public school districts existed in Michigan. By the
beginning of 1968, this figure had been reduced to 738,
meaning that 700 school districts in Michigan have disap-
peared since 1964 through reorganization. Annual Report,
Committee on School District Reorganization, 1968 Journal
of the Senate 422-423 (March 1, 1968). (168a).
“3. Pursuant to Act 289 of 1964, supra, the State Board
of Education ordered the merger of the Brownstown No. 10,
Hand, Maple Grove and Carson school districts, all in Wayne
County. The action is best explained by the fact that Browns-
town was, at that time, the wealthiest school district in the
State, indeed, with a property valuation of $340,000 backing
each child, perhaps the wealthiest district in the nation, while
the other three districts were extremely poor. (168a).
“4. When the Sumpter School District was on the verge
of bankruptcy in 1968, the State Board of Education, acting
under Public Act 239 of 1967 (MSA §15.2299 (51) et seq.,
MCLA 8§388.691 et seq.), merged the district with four ad-
joining districts, including the Airport School District. Signi-
ficantly, though Sumpter was in Wayne County, Airport was
in Monroe County, showing that county lines are not in-
violate in Michigan. (168a).
“5. The Nankin Mills School District in Wayne County
was beset with financial problems and had no high school.
Again, pursuant to Act 239, the State Board of Education in
1969 ordered this school district to merge with the Livonia,
Garden City and Wayne Community schools. (168a).
“6. When the Inkster School District in Wayne County
was on the verge of financial bankruptcy, the Michigan legis-
lature passed Public Act 32 of 1968 (MSA § 15.1916 et seq.,
MCLA §388.201 et seq.) enabling the district to borrow
~ $705,000 but on the condition that if the district could not
~ balance its budget the State Board of Education could reor-
ganize, merge or annex the district. The legislative history of
Act 32 indicates at least two legislators voted against the bill
_ in the House of Representatives because of the excessive con,
trol given to the State Board of Education:
23
‘I voted No on House Bill No. 3332 because in setting
up the machinery to bail out distressed districts, it takes
from the local communities the control over their own
educational system by providing for excessive arbitrary re
organization powers in the hands of the Board of Educa.
tion...’
‘This bill certainly sets up the State Board of Education
to be a dictator of all school districts that run into fi.
nancial problems.’ 1968 Journal of the House of Represen-
tatives 1965. (168a-169a).
“7. Too small and too poor to operate a high school, the
all-black Carver School District in suburban Oakland County
reached a crisis in 1960 when other surrounding white dis-
tricts refused to accept Carver pupils on a tuition basis. The
Carver district was merged with Oak Park. (169a).
“8. The State Board of Education and Superintendent of
Public Instruction may withhold State aid for failure to
operate the minimum school year. MSA §15.3575, MCLA
§ 340.575. In 1970, funds were withheld from the City of
Grand Rapids School District. 17 Michigan School Board
Journal 3 (March, 1970). For Attorney General Opinions
holding that State aid may be withheld by the State Board of
Education from the school districts for hiring uncertified
teachers, defaulting on State loans and for other reasons, see
Op. Att’y Gen. No. 880, 1949-1950 Report of the Attorney
General 104 (January 24, 1949, Roth); No. 2333, 1955
Report of the Attorney General 561 (October 20, 1955,
Kavanaugh); No. 4097, 1961-1962 Report of the Attorney
General 553 (October 8, 1962, Kelley). (169a-1 70a).
“9. The State of Michigan contributes, on the average,
34% of the operating budgets of the 54 school districts in-
cluded in the proposed Metropolitan Plan of Integration. In
eleven of the 54 districts, the State’s contribution exceeds
50% and in eight more, it exceeds 40%. State aid is appropt-
ated from the General Fund, revenue raised through state
wide taxation, and is distributed annually to the local school
districts under a formula devised by the legislature. See, ¢g, _
Public Act 134(1971), MSA §15.1919(51), MCLA $388.61 leg ly
24
“Though the local school districts obtain funds from the
assessment of local property, the ultimate authority in in-
suring equalized property valuations throughout the State is
the State Tax Commission. MSA §7.631, et seq., MCLA
§209.101, et seq.; MSA §7.206, MCLA §211.148; MSA
$7.52, MCLA $211.34. The State’s duty to equalize is re-
quired by the Michigan Constitution, Article IX, Section 3.
This ‘State equalized valuation’ serves as the basis for calcu-
lating local revenue yields. See, Ranking of Michigan Public
High School — School Districts by Selected Financial Data,
1970, Bulletin 1012, Michigan State Department of Educa-
tion (1971). (170a).
“10. The Michigan School Code reaffirms the ultimate
control of the State over public education. Local school dis-
tricts must observe all State laws relating to schools,! hold
school a minimum number of days per year,2 employ only
certified teachers, teach civics, health and physical educa-
tion and drivers’ education,4 excuse students to attend reli-
gious instruction classes,> observe State requirements when
teaching sex education,© make annual financial and other re-
ports to the Superintendent of Public Instruction,? adopt
only textbooks which are listed with the Superintendent of
Public Instruction’ and must follow all rules and regulations
of the State Department of Education.
“Local school districts, unless they have the approval of
the State Board of Education or the Superintendent of Public
MSA §15.3253(c), MCLA §340.252(c).
MSA §15.3575,MCLA $340.575.
MSA §§15.1023(10)(a), 15.3570, MCLA §$388.1010(a), 340.570.
MSA §6§15.1951, 15.3361, MCLA §§388.371, 340.361; MSA
§$15.3781, 15.3782, MCLA § §340.781, 340.782; MSA §9.2511(c),
MCLA §257.811(c).
MSA $15.3732(g), MCLA §340.732(g).
MSA $15,.3789, MCLA §340.789.
MSA §15.3612, MCLA §340.612;MSA §§15.3616, 15.3688, MCLA
§ §340.616, 340.688.
MSA $15.3887(1), MCLA $340.887(1).
25
Instruction, cannot consolidate with another school district 9
annex territory,!9 divide or attach parts of other districts,!!
borrow monies in anticipation of State aid,!2 or construct,
reconstruct or remodel school buildings or additions to
them.!3
“The power to withhold State aid, of course, effects enor.
mous leverage upon any local school district, since on the
average 34 per cent of the operation budget of the 54 school
districts included in the proposed Metropolitan Plan is paid
for by the State.
“In the instance of the City of Detroit, the State exhibited
its understanding of its power over the local school district
by the adoption of Act 48 of the Public Acts of 1970 which
repealed a high school desegregation plan previously adopted
by the Detroit Board of Education, See 433 F.2d 897.”
(170a-17 1a).
As noted in the above excerpt from the Sixth Circuit
Opinion, the State of Michigan eliminated 700 school districts be-
tween 1964 and 1968. (168a). Those school districts were elimi-
nated by the State for educational and financial reasons. The fact
that Michigan can, and did, eliminate nearly half of its local school
districts in a five year period is overwhelming evidence that, in
Michigan, local school districts are mere “‘instrumentalities of the
State” that can be created, eliminated, or consolidated for the
administrative convenience of the State. If this Honorable Court
has any doubt about the pervasive state control of education in
Michigan we urge this Honorable Court to re-read the Petition for
Writ of Certiorari of Michigan’s Attorney General and ask this
simple question: Does the Attorney General at any point deny the
“ [9] MSA §15.3402, MCLA §340.402.
[10] MSA §15.3431,MCLA §340.431.
[11] MSA §15.3447, MCLA §340.447.
[12] MSA §15.3567(1), MCLA §340,567(a).
[13] MSA §15.1961, MCLA §388.851, Op. Att’y Gen. No. 1837, 1952:
1954 Report of the Attorney General 440 (Nov. 8, 1954).”
26
finding of the district court, affirmed by the Sixth Circuit, that
jocal school districts in Michigan are mere state agencies through
which the state acts?3
_ Since the Michigan State Board of Education has previously
arranged for multi-district co-operation, and in some cases multi-
district consolidation, for educational and financial purposes,
there is no reason why the Michigan State Board of Education and
‘its agents, in the instant case the metropolitan Detroit community
school districts, cannot be involved in remedying a constitutional
violation of the rights of black children.
In Michigan, it makes no difference whether the offender of
those constitutional rights was the agent, the Detroit School Board,
or the principal, the State of Michigan, or both. The action of the
Detroit School Board is, under Michigan law, the action of the
State of Michigan. Conversely, the actions of the State are binding
on the Detroit School Board.
The instant decision by the Sixth Circuit, based on specific
Michigan public school law set in the context of the relevant
metropolitan Detroit community, is limited to Michigan and can-
not be applied to other states having different applicable public
school law. The public school law of Michigan, as enunciated by
the Michigan Constitution, the State Legislature, judicial inter- .
pretation and avowed public policy, is clear and consistent: local
school districts are mere instrumentalities or agents of the State of
Michigan. Hence, the contention that school district boundaries in
Michigan are sacrosanct, and that the Courts below have no power
to grant effective remedial equitable relief beyond established
school district boundaries, should be rejected and Certiorari
denied.
[3] Because of the unique agency relationship existing between the State
of Michigan and its local school districts, case law involving public ed-
ucation in other states may not necessarily apply. For example, in
Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (4th
Cir. 1972), aff'd by an equally divided court, U.S, ____ , 93 S.Ct.
1952 (1973) the Fourth Circuit noted that:
“The power to operate, maintain and supervise public schools in
Virginia is, and always has been within the exclusive jurisdiction of
the local school boards and not within the jurisdiction of the State
Board of Education.” 462 F.2d at 1067.
The Sixth Circuit, in the instant case, emphasized the distinction be-
tween Virginia and Michigan public school law, when it said:
“The record in the present case amply supports the finding that the
State of Michigan has not been subject to such (referring to Vir-
ginia law) limitations in its dealings with local school boards.”
27
IV. CERTIORARI SHOULD BE DENIED AS THE COURTS BE.
LOW DID NOT ERR IN ORDERING A METROPOLITAN
REMEDY, WITHOUT REGARD TO ARTIFICIAL CITY OR
MUNICIPAL BOUNDARY LINES, TO ELIMINATE UN.
CONSTITUTIONAL, RACIALLY IDENTIFIABLE
SCHOOLS IN THE METROPOLITAN DETROIT COMMU.
NITY, SINCE THE STATE OF MICHIGAN, IN AND OF IT.
SELF, HAS SOLE RESPONSIBILITY FOR EDUCATION
WITHIN ITS BOUNDARIES.
On the basis of the Record in this case the courts below
correctly ordered a metro litan remedy.
1. This is not a racial balance case. Instead the courts below
used a racial proportion of the relevant community as a
starting point for desegregation as specifically endorsed by
Swann Vv. Charlotte-Mecklenburg Board of Education, 402
U.S. 1 (1971).
2. The relevant community is the metropolitan Detroit commv-
nity; not just the City of Detroit.
3.A finding of de jure acts on the part of the Petitioner school
districts, or the de jure establishment of school boundaries, is
unnecessary because of the legal relationship between the
Petitioner school districts and the State.
4.A Detroit-only remedy is constitutionally impermissible as
such an alleged remedy is not a remedy which results in de-
segregation.
1. THIS IS NOT A RACIAL BALANCE CASE.
This is not a racial balance case. The district court found that
the schools in Detroit, averaging 65% black, are racially identi-
fiable in a metropolitan community that is three-quarters white.
There is nothing constitutionally repugnant in having black me
jority schools per se in majority black communities. However,
what is constitutionally repugnant is a remedy which would mait-
tain a set of majority black schools, clearly identifiable as dif
ferent, in a community in which the vast majority of the rest of
the schools are all white. Swann, supra.
28
Petitioners’ reliance on Wright v. Council of City of Emporia,
407 U.S. 451 (1972) and United States v. Scotland Neck Board of
Education, 407 U.S. 484 (1972) for the proposition that pre-
dominately black schools can be tolerated in the metropolitan
Detroit community is misplaced.4 Both cases involved county-
wide black communities. For that reason, the.fact that the schools
in the relevant community were racially identifiable as black was
not constitutionally repugnant. In fact, this Honorable Court re-
jected an attempt by municipalities, within those counties, to
withdraw from the county-wide school districts after a desegrega-
tion order had been issued. Neither Emporia nor Scotland Neck is
applicable to the instant case because here the relevant community
is the metropolitan Detroit community which is urban and ma-
jority white. The maintenance of identifiably black schools in such
a community results in the racial isolation that Brown J con-
demned. Brown v. Board of Education of Topeka 347 U.S. 483
(1954).
Where the relevant community is majority white, then a rem-
edy which retains racially identifiable black schools is repugnant
to the Constitution of the United States. This Honorable Court, in
Swann, specifically held that every school, or almost everyschool,
should consist of a mixture of the races that roughly approximates
the make-up of the student community as a whole.
The courts below examined the Detroit metropolitan com-
munity of 780,000 students and, in the words of Swann, used
racial ratios as “‘a starting point in the process of shaping a rem-
edy, rather than [as] an inflexible requirement.” 402 U.S. at 25.
[4] We are unable to explain the State’s reliance, page 35 of its Petition, on
Raney v. Board of Education of Gould School District, 391 U.S. 443
(1968). The Raney case rejected ‘freedom of choice” as a tool for
desegregation. The question of “freedom of choice” is not an issue in
the instant case.
The State also has relied on a 1969 Sixth Circuit case, Northcross v.
Board of Education of Memphis, 420 F.2d 546, 548 (1969), aff'd per
curiam, 397 U.S. 232 (1970), for the proposition that a unitary school
system can be effectuated in a school district that is majority black.
The Sixth Circuit was obviously aware of its Northcross holding, and
the particular facts which supported it, when it agreed with a metro-
politan plan in principle, while remanding same to the district court
with instructions to develop a metropolitan plan of desegregation.
29
. 2. THE COMMUNITY INVOLVED IS THE METROPOLI-
TAN DETROIT COMMUNITY.
The relevant community for an appropriate remedy in the
instant case is much larger than the City of Detroit. The district
court’s. findings, adopted by the Sixth Circuit, noted the following
facts clearly establishing the metropolitan nature of the Detroit
community: |
A. Many pupils in the metropolitan Detroit community already
cross school district lines to attend school or receive edu-
cational services on an inter-district basis. (79a-80a)
B.The metropolitan Detroit area has been labeled by the
Bureau of the Census as a Standard Metropolitan Statistical
Area because of the high degree of interaction among the
populace of the tri-county (Wayne, Oakland and Macomb)
area (80a). :
C. Recognizing the interdependence of its citizens, the Detroit
metropolitan community has joined together in establishing
the Metropolitan Detroit Water System. (80a).
D.The metropolitan Detroit community has joined together to
establish a joint transportation system known as the South-
eastern Michigan Transportation Authority (SEMTA). (80a)
E. The metropolitan Detroit community has joined together in
establishing a Metropolitan Sewage System. (80a).
F. The metropolitan Detroit community has joined together in
establishing a metropolitan park authority known as the
Huron-Clinton Metropolitan Authority. (80a).
G.The local governments have recognized their interdependence
by creating the Southeastern Michigan Council of Govern-
ments (SEMCOG). (80a).
H.The school authorities have recognized the metropolitan
nature of education by creating intermediate school districts
which provide educational serviceson an inter-district basis in
each of the three counties. (80a).
30
_ 1. A number of school districts encompass more than one city.
For example, Petitioner, Grosse Pointe School System,
encompasses five separately incorporated cities (Grosse
Pointe Park, Grosse Pointe City, Grosse Pointe Farms, Grosse
Pointe Woods, and Grosse Pointe Shores) and part of a sixth
(Harper Woods), most of which have at least one common
indistinguishable pavement border with the City of Detroit.
(80a).
J. The economic and social life of metropolitan Detroit is
metropolitan in scope. (70a-80a).
Subjective perceptions as to the metropolitan nature of the
Detroit community coincide with above objective data. Metropoli-
tan Detroit residents cross indistinguishable political lines casually
in shopping, commuting to work, seeking recreation and seeking
private or higher education. Dr. Robert Green, an expert witness
in the trial below, testified to those perceptions when he referred
to the stream of whites driving down the freeway from the sub-
urbs to Detroit in the morning rush hour traffic and when he
described how Detroit-educated whites have fled to the suburbs.
Just as black children in a 90% black school still perceive their
school as identifiably black, even though all children in the atten-
dance zone go to the same school, children in a 60% to 80% black
Detroit school will continue to perceive their school as identifiably
black even though it is no different from any other school in
Detroit — precisely because they know that there are nearby
suburbs full of white youngsters receiving educations in all-white
schools.
It would be a most unusual third grader of any race who
could stand on Tireman Street, a paved indistinguishable boundary
line, separating overwhelmingly white Dearborn from Detroit, and
explain that a political boundary, rather than race, was the reason
the white children south of Tireman attended a white school and
the black children north of Tireman attended a black school. His
Perception of the metropolitan community also is conditioned by
the metropolitan orientation of the communication media — news-
31
papers, television, radio — to which he is exposed. There is no
evidence in the Record which permits an assumption that the per.
ception of the community felt by a black child in Detroit is limit.
ed to the:irregular boundaries of the school district of the City of
Detroit and further limited to the racial composition of the stu.
dents in the Detroit school system. It is obvious, in a community
that is so interrelated between city and suburbs, that the black
child would wonder why his school does not reflect the total racial
composition of the metropolitan Detroit community, and why he
has been racially isolated.
The avoidance of racial isolation has been a part of the law of
school desegregation for 19 years. Mr. Chief Justice Warren form-
ulated this issue for a unanimous Court in Brown v. Board of
Education of Topeka, (Brown I), 347 U.S. 483 (1954) when he
said:
“To separate them (blacks) from others of similar age and
qualification solely because of their race generates a feeling
of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely ever to b
undone.” 347 U.S. at 494.
There are over a million children of school age in the metro
politan Detroit area. There are 280,000 school children in the
Detroit system, of which 180,000 are black children. It would be
unconstitutional racial isolation to confine these children to the
city limits of Detroit. Their education is the responsibility of the
State of Michigan. And the State of Michigan has established, for
its own administrative convenience, the Detroit school system and
the surrounding, basically all-white school districts. ie
We may add that in Brown JI, 349 U.S. 294 (1955), Chief
Justice Warren speaking to the method of desegregation, stated:
“To that end, the Courts may consider problems related to
administration, arising from the physical condition of the
school plant, the school transportation system, personnel, te
vision of school districts and attendance areas into compat
units to achieve a system of determining admission to the
public schools on a non-racial basis, and revision of local laws
and regulations which may be necessary in solving the fore
— gees
going problems. They will also consider the adequacy of any
plans the Defendants may propose to meet these problems
and to effectuate a transition to a racially nondiscriminatory
school system.” 349 U.S. at 300-301.
The district court and the Sixth Circuit, both in panel and
en banc, came to realize that the only way unconstitutional racial
school isolation in the extensively interrelated metropolitan
Detroit community can be eliminated is through a metropolitan
desegregation remedy.
3. A FINDING OF DE JURE ACTS ON THE PART OF
THE PETITIONER SCHOOL DISTRICTS OR THE DE
JURE ESTABLISHMENT OF SCHOOL BOUNDARIES
IS UNNECESSARY BECAUSE OF THE LEGAL RELA-
TIONSHIP BETWEEN THE PETITIONER SCHOOL
* DISTRICTS AND THE STATE.
The suggestion that a de jure finding must be made against
the suburbs is totally irrelevant. Assuming, arguendo, that the
Courts below proceeded on a de jure basis, and that there cannot
be any showing of de jure acts on the part of the Petitioner school
districts, or with regard to the drawing of their boundary lines, the
results here would be the same. The Sixth Circuit has demonstrat-
ed with clarity the pervasive power of the State of Michigan over
individual school districts and has shown that the districts are
mere instrumentalities or agents of the State of Michigan.
If the Detroit School Board committed de jure acts of segre-
gation, as an agent or instrumentality of the State, its actions con-
stitute State action, and the State of Michigan is responsible for a
desegregation remedy. If the State of Michigan alone committed
de jure acts of segregation, again, the State is responsible for a de-
segregation remedy. In fact, the court below found that both the
State of Michigan and the Detroit School Board had committed de
jure acts of segregation. The Petitioner school districts have con-
veniently ignored their relationship with the State of Michigan. It
makes no difference what basis was used for drawing their bound-
ay lines. These Petitioner school districts are an integral part of
’s system of education and when there is an unconstitu-
33 ae
tional violation in that system they must form part of the remedy.
If the State of Michigan is responsible for a remedy either because
of the State’s own actions or because of the actions of its agent,
the Detroit School Board, or both, the State of Michigan cap
properly be ordered to implement a remedy that involves the
school districts contained within the metropolitan Detroit com-
munity which, as State controlled agents created by the State for
its convenience, are nothing more than the State of Michigan it.
self.
There are at least four elements that must be present fora
desegregation plan to work.
(1) Every school, or almost every school, should contain a
mixture of the races that roughly approximates the make-up of
the student community as a whole. Swann, supra; Davis v. Board
of School Commissioners of Mobile County, 402 U.S. 33 (1971).
(2) The plan should be educationally sound. Swann, supra
(3) The plan should avoid resegregation. Lemon v. Bossier
Parish School Board, 446 F.2d 911 (5th Cir. 1971).
(4) The plan must be practical. Each of these elements ofa
workable plan deserves to be examined more closely. Swann,
supra; Davis, supra.
Racial Mix: We repeat that Swann validates the use of race in
student assignments where the goal is desegregation rather than
segregation. This Honorable Court has recognized the racial assign
ment concept as a primary teaching of Swann in Kelly v. Metro
politan County Board of Education of Nashville and Davidson
County, 463 F.2d 732 (1972), cert. denied, 409 US. 1001
(1972), where this Honorable Court said:
“Perhaps the primary thing that the Swann case decided was
that in devising plans to terminate such residual effects, itis
appropriate for the school system and the District Judge to
take note of the proportionof white and black students with
in the area and to seek as practical a plan as may be for ené-
ing white schools and black schools and substituting therefor
schools which are representative of the area in wae
students live.
34
We have noted that the District Judge in Swann employed a
flexible 71% white to 29% black population ratio as a guide
in seeking a practical plan. The Supreme Court specifically
approved his doing so. See Swann v. Charlotte-Mecklenburg
Board of Education, supra at 16, 23-24. The District Judge in
this case clearly read and followed the Swann guideline. As to
this issue, we find no error.” 463 F.2d at 744
In the instant case, the district court found that in the metro-
politan Detroit desegregation area the ratio of whites to blacks was
approximately 75% to 25% and, therefore, on June 14, 1972,
adopted a plan that would approximate this ratio, in the spirit of
Swann as apparently approved by this Honorable Court in Nash-
ville.
Educational soundness: No desegregation plan can function
unless it is educationally sound. The educational soundness of an
integration plan is to a large extent dependent upon how effec-
tively it gives children an opportunity to have stable multi-racial
experiences in groups composed substantially like the surrounding
" community. Such experiences, especially if begun as early as pos-
sible, give children of both major races accurate perceptions of
their own abilities and those of the members of the opposite race.
These informed self-perceptions in turn lead to more self-con-
fidence and better scholastic performance. Multi-racial education is
essential preparation for life in a multi-racial society. For this rea-
son, if no other, schools should reflect the racial composition of
the entire metropolitan community which they serve.
Practicalities: Swann and Davis obviously suggest that a plan
must be practical. The transportation plan envisioned by the dis-
trict court in its desegregation area is no more massive nor does it
require rides longer in distance than are presently being under-
taken by children in the metropolitan Detroit area. The clusters
are so designed as to provide for administrative convenience. (72a-
7Sa).
In other words, there is nothing in the plan to suggest that it
is not practical. To illustrate, a substantial part of the educational
program of the State is not conducted on a local school district
basis. The intermediate school districts provide inter-district educa-
_ tion for the physically handicapped, the emotionally disturbed
35
and vocational students. Frequently, with the exception of voca
tional education which is usually operated at large central skills
centers, these special educational programs are operated on an
inter-district basis. In point of fact, inter-district transportation has
been a common phenomenon for the special education student for
a good many years. If there is any distinction between the pro
priety of the State of Michigan providing a metropolitan desegre-
gation remedy for the purpose of terminating the violation of con-
stitutional rights and the propriety of the above inter-district activi-
ties, such distinction escapes the Detroit School Board.
Resegregation: No desegregation plan can function if it offers
a ready avenue for resegregation. Even policies pursued by school
board officials in good faith do not relieve them of their duty to
fully eradicate the vestiges of segregation. Clark v. Board of Educa-
tion of Little Rock School District, 426 F.2d 1035 (8th Cir.
1970): It follows then that the courts should require school
authorities to take steps to prevent resegregation by various
means. Lemon, supra. Similarly, in protecting Fourteenth and
Fifteenth Amendment rights, this Honorable Court has spoken of
a “need to eradicate past evil effects and to prevent the continua
tion or repetition in the future of discriminatory practices...”
Louisiana v. United States, 380 U.S. 145, 156 (1965). Were a less
rigorous standard insisted upon by the courts, the constitutional
obligation to eradicate segregation “root and branch” would be re-
duced to a pruning that would let the old evil grow back, more
vigorous and more intractable than ever. See Swann, supra.
Neither this Honorable Court nor the school authorities would be
true to their duty were they to adopt a plan that will create more,
rather than less, segregation.
Failure to adopt a metropolitan remedy would mean that the
black children of the City of Detroit would, in effect, have had
their constitutional rights denied and would be without a remedy
required by Swann. In other words, we would have the anomaly
that there is a constitutional wrong but no remedy.
"~
am
a
SS
tae x
Sie
36
In recent years it has been urged upon the federal court sys-
tem that constitutional violations as to voting rights could not be
remedied. See Baker v. Carr, 369 U.S. 186 (1962). This Honorable
Court responded and now voting rights cases are an intricate part
of our system of constitutional protections with remedies. See,
eg., Gomillion v. Lightfoot, 364 U.S. 339 (1960). We suggest that
the remedy in the instant case must be the metropolitan remedy
adopted by the district court which considered the necessity of
racial mix, education soundness, prevention of resegregation, and
the practicalities of the situation, and which has attempted to eradi-
cate the evils of segregation “root and branch” pursuant to the dic-
tates of Green v. County School Board of New Kent County, 391
U.S. 430 (1968).
No more elegant statement of the legal and practical reasons
for a metropolitan remedy in the Detroit metropolitan community
has been made than the district court’s own statement from the
bench on July 19, 1972:
“I think it should be clearly understood, however, that in my
disposition of the motions before me today this Court does
not retreat from nor abandon... our conclusion that any
plan for the desegregation of the public schools of the City of
Detroit would not accomplish desegregation and that only a
Metropolitan Plan of desegregation would accomplish the de-
segregation of those schools.”
“The Equal Protection clause of the Fourteenth Amendment
to the Constitution of the United States, as I read it, is not
geographically limited. It is difficult for this Court to believe
that any higher judicial authority of the United States would
or, for that matter Constitutionally could, engraft on that
amendment any such geographical limitation. The vindication
of the Plaintiffs’ Constitutional right to equal education can-
not be denied on the claim of alleged sovereign powers of
local school districts.” (Tr. 1947-48).
4. A DETROIT-ONLY PLAN IS CONSTITUTIONALLY IM-
PERMISSIBLE
It is the contention of all Petitioners that the district court’s
finding that “relief of segregation in the Detroit public schools
cannot be accomplished within the corporate geographical limits
of the city”, is in error. This contention completely ignores the
37
constitutional rights of 280,000 Detroit school children.
We call this Honorable Court’s attention to what the district
court stated in its Findings of Fact and Conclusions of Law as to
Detroit-only plans in its Opinion of March 28, 1972.
With regard to Defendants’ Plan A, the district court found:
“4. As conceded by its author, Plan A is neither a desegrega-
tion nor an integration plan.” (54a).
As to Defendants’ Plan C, the district court held:
“2. We find that this plan covers only a portion of the
grades and would leave the base schools no less racially
identifiable.” (54a).
Insofar as Plaintiff's Plan was concerned, the district
court said:
“7. The Plaintiffs’ Plan would make the Detroit school
system more identifiably Black, and leave many of its
schools 75 to 90 per cent Black.” (55a).
“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 increasing the Black student popu-
lation.” (55a).
Thus, the district court’s conclusions of law on this point,
were most explicit.
“2. On the basis of the court’s findings of illegal school seg-
regation, the obligation of the school defendants is to
adopt and implement an educationally sound, practice
ble plan of desegregation 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
. 38 :
Feliciana Parish School Board, 396 U.S. 290; Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1.
(Emphasis added). (56a).
** *
“4. Plaintiffs’ Plan, while it would provide a racial mix more
in keeping with the Black-White proportions of the
student population 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.
' (Emphasis added). (56a).
“5. The conclusion, under the evidence in this case, is ines-
capable that relief of segregation in the public schools of
the City of Detroit cannot be accomplished within the
corporate geographical limits of the city.”” (Emphasis
added). (56a).
The Sixth Circuit emphatically agreed with the district court
when it said:
“At the outset it is obvious from what we have said per-
taining to the inadequacy of any Detroit only desegregation
plan that this court feels that some plan for desegregation be-
yond the boundaries of the Detroit School District is both
within the equity powers of the District Court and essential
to a solution of this problem.” (173a)
As the above citations indicate, both the district court and
the Sixth Circuit have agreed that complete relief within Detroit
is constitutionally impossible. Detroit is the hub of a highly inter-
related metropolitan area which contains a public school popula-
tion that is approximately 75% white and 25% black. Yet the
student population within the Detroit school system is 65% black
and 35% white. There are no steps the Detroit Board of Education
can take within its boundaries which would desegregate the
Detroit public schools.
39
This Honorable Court should not grant certiorari. The rem.
edy proposed is consistent with Michigan school law and the
metropolitan nature of Detroit. It recognizes the fact that in the
metropolitan Detroit community, governmental services — parks
water, sewage, transportation and education — have assumed
metropolitan dimensions. Thus, a metropolitan desegregation
remedy is compelling in its logic and irrefutable in its necessity,
40
y. SINCE THIS HONORABLE COURT HAS ENCOURAGED
‘DISTRICT COURTS TO FASHION BROAD, TAILOR-
MADE, EQUITABLE REMEDIES FOR THE ELIMINATION
OF CONSTITUTIONAL VIOLATIONS IN EACH GIVEN
SITUATION, THERE IS NOTHING UNCONSTITUTIONAL
IN THE INSTANT REMEDY, PURSUANT TO ESTAB-
LISHED MICHIGAN PUBLIC SCHOOL LAW, SO AS TO
JUSTIFY CERTIORARI.
As the courts below clearly indicated, education in Michigan
is solely a function of the State. Local school districts are mere
creatures of the State acting as agents or instrumentalities of the
State under pervasive State control.
When the district court, having heard over fifty-eight days of
testimony, including five days on a Detroit-only desegregation
remedy, ruled in favor of a metropolitan desegregation remedy, it
was simply responding to this Honorable Court’s directive to
“make every effort to achieve the greatest possible degree of
actual desegregation.” Davis v. Board of School Commissioners of
Mobile County, 402 U.S. 33, 37 (1971). The Sixth Circuit twice
(December 8, 1972 and June 12, 1973) (110a-111a) approved the
necessity of a metropolitan desegregation remedy as found by the
district court. .
The legal path for the metropolitanization of school districts
was first cleared by this Honorable Court in the so-called voting
rights cases. Those decisions established that constitutional re-
quirements supercede the importance of maintaining State created
legislative districts. Reynolds v. Sims, 377 U.S. 533 (1964);
Gomillion v. Lightfoot, 364 U.S. 339 (1960).
The concept of ignoring political division lines for purposes
of guaranteeing constitutional rights has been extended to school
districts. Where a city attempted to remove its schools from a
county system when the latter was ordered to establish a unitary
school system, the Fifth Circuit refused to permit the secession
because it would have had a substantial adverse effect on desegre-
gation. Lee v. Macon County Board of Education, 448 F.2d 746
(Sth Cir. 1971). The court observed:
“[S]chool district lines within a State are matters of political
convenience.” 448 F.2d at 752.
41
In another case, a district court refused to permit the creg
tion of two school districts where one could operate as easily as
two, and where the creation of two school districts was obviously
designed to foster racial segregation. Turner v. Warren County
Board of Education, 313 F.Supp. 380 (E.D. N.C. 1970). See algo,
Hall vy. St. Helena Parish School Board, 197 F.Supp. 649, 658
(E.D. La. 1961), aff'd, 287 F.2d 376 (Sth Cir. 1961), aff'd per
curiam, 368 U.S. 515 (1962); Burleson vy. County Board of Elec-
tion Commissioners of Jefferson County, 308 F.Supp. 352 (ED.
Ark. 1970), aff'd per curiam, 432 F.2d 1356 (8th Cir. 1970).
The principle that school district lines may not be used for
purposes of violating fundamental constitutional rights has re
cently been recognized by this Honorable Court. School districts
are not permitted to withdraw from county-wide school systems
where the effect of such a separation would impede the process of
dismantling a segregated school system. Wright v. Council of City
of Emporia, 407 U.S. 451 (1972); United States v. Scotland Neck
City Board of Education, 407 U.S. 484 (1972).
Refusal to permit the separation of school districts wher
such action would foster segregation has its counterpart in the
court-ordered merger of districts. In Haney v. County Board Edu-
cation of Sevier County, 410 F.2d 920 (8th Cir. 1969), the Eighth
Circuit ordered the merger of a white school district and a black
school district even though they had been maintained as separate
units for fourteen years. The court declared:
**[S] tate political subdivisions have long ago lost their
mastery over the more desired effects of protecting the equal
rights of all citizens.” 410 F.2d at 924.
The Eighth Circuit viewed merger of the two districts in Sevier
County as the only possible means of effectively desegregating the
schools. In Texas, the annexation and consolidation of all-black
school districts with nearby biracial units was ordered as a means
of achieving meaningful racial desegregation. United States v. State
of Texas, 447 F.2d 441 (Sth Cir. 1971). With regard to changesin
school district boundaries, the Fifth Circuit specifically directed:
‘‘Defendants shall not permit, make arrangements for,
approve, acquiesce in, or give support of any kind to changes
42
in school district boundary lines — whether by detachment,
annexation, or consolidation of districts in whole or in part —
which are designed to, or do in fact, create, maintain, rein-
force, renew, or encourage a dual system based on race,
color, or national origin.” 447 F.2d at 443-444.
In short, the courts have found that the State has an affirmative
duty to enforce Fourteenth Amendment rights.
Bradley v. School Board of the City of Richmond, 462 F.2d
1058 (4th Cir. 1972), aff'd,___U.S , 93 S.Ct. 1952 (1973) can
be clearly distinguished from the instant case. In Richmond, the
district court ordered consolidation of three separate school dis-
tricts, all of which were declared to be unitary by the Fourth
Circuit. In the instant case, there is no district court order for
consolidation of school districts, but rather an order for a study of
plans for the reassignment of pupils in school districts comprising
the metropolitan Detroit community. In Richmond, the district
court found that neither the past nor present Virginia Constitu-
tions or statutes would have permitted the State Board of Educa-
tion, acting alone, to have consolidated three school districts into
a single system under the control of a single school board. The
Fourth Circuit merely held that compulsory consolidation of poli-
tical subdivisions in the State of Virginia was beyond the power of
a federal court because of the Tenth Amendment to the Constitu-
tion of the United States. The instant case involves no such re-
structuring of school districts. Rather, it merely concerns the
transfer of students.
Moreover, as we have already pointed out in this Brief,5
the Board of Education of the State of Michigan has the power to
consolidate school districts and in fact has utilized that power to
consolidate seven hundred school districts in five years for pur-
poses that could have been no more important than remedying the
Violation of the constitutional rights of 180,000 black school
children. Given these considerable distinctions between Richmond
and the instant case, Petitioners’ substantial reliance on the Rich-
mond holding is without justification. ‘
a In the instant case, the courts below recognized — not Vir-
_ [5] See Reason III at 19, supra.
43
ginia law or the law of any other state — but only Michigan public
school law. The courts also found that: the metropolitan Detroit
community is extensively interrelated, both economically and
socially; has already taken massive steps toward the provision of
metropolitan community and government services; and that in the
relevant metropolitan Detroit community the isolation of 180,000
black school children in racially identifiable schools was in viola
tion of the Constitution of the United States and required remedy.
Petitioners’ reliance on Spencer v. Kugler, 326 F.Supp. 1235
(D. N.J. 1971), aff'd, 404 U.S. 1027 (1972) for the unique propo-
sition that there can be a finding that racially identifiable schools
violate constitutional rights, but that the remedy for the violation
may and must be the continuation of racially identifiable schools,
is wholly without foundation. Petitioners fail to distinguish be-
tween the basic right to a remedy and the remedy itself.
Spencer merely held that a statute of the State of New Jersey
making school district boundary. lines coterminous with the
boundary lines of municipalities in the State was not unconstitu-
tional. The case did not involve an effective allegation that the act
of enacting the statute was segregation by State action; rather it
contemplated an assertion that the act involved a suspect classifi-
cation based on race. On those assertions the lower court found,
and this Honorable Court affirmed, that the classification was
neutral and had a reasonable basis. The case has no application to
the appropriateness of school desegregation remedies, and -
not even attempt to establish a right to a desegregation remedy 6
“Petitioners reliance on Goss v. The Board of Education of the
City of Knoxville, Nos. 72-1766-1767 (6th Cir., July 18, 1973)is
equally misplaced. As the Sixth Circuit noted in that case:
“Appellant complained that the result in this case is incon
sistent with that reached by this Court in other school
[6] We suggest quite strongly that if Spencer were tried in the State courts
of New Jersey the result could very well have been different. in
1971, the year that Spencer was first decided, the Supreme Court of
New "Jersey held that racial imbalance is unconstitutional under the
State’s Constitution. Jenkins v. Township of Morris School District, 38
N.J. 483, 279 A.2d 619 (1971). i
44
desegregation cases. If the result is different, it is only be-
cause the evidence produced in the District Court required a
different result... This Court has consistently upheld the
decrees of District Judges of this Circuit when properly sup-
ported by the pleadings and evidence...” Slip Op. at4.
The Sixth Circuit made this same point in the instant case when it
said:
“We reject the contention that school district lines are sacro-
sanct and that the jurisdiction of the District Court to grant
equitable relief in the present case is limited to the geographi-
cal boundaries of Detroit. We reiterate-that school districts
and school boards are instrumentalities of the State. See
Cooper v. Aaron, 358 US 1, 16 (1958). As early as Brown II
the Supreme Court: pointed out that:
‘[{T]}he courts may consider problems related to adminis-
tration, arising from the physical condition of the school
plant, the school transportation system, 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, ....” 349 U.S. at 300-01.
The Supreme Court has held that school bout ary lines can-
not be changed or new school systems created where the re-
sult is a larger imbalance in racial ratios in school systems
where all vestiges of enforced racial segregation have not been
eliminated. United States v. Scotland Neck Board of Educa-
tion, 407 U.S. 484 (1972); Wright v. Council of the City of
Emporia, 407 U.S. 451 (1972). This is true regardless of
“dominant purpose.” Wright v. City of Emporia, 407 U.S. at
462.
If school boundary lines cannot be changed for an unconsti-
tutional purpose, it follows logically that existing boundary
lines cannot be frozen for an unconstitutional purpose.”
(174a)
In the instant case the Sixth Circuit correctly affirmed the
district ‘court’s use of traditional equity powers, within the guide-
lines set forth in Swann, to remedy constitutional violations. The
mSwann decision emphasized:
45
“Qnce a right and a violation have been shown, the scope of a
district court’s equitable powers to remedy past wrongs is
broad, for breadth and flexibility are inherent in equitable
remedies.” 402 U.S. at 15.
We cannot ignore the equity teachings of Brown II, which ar
as equally important today as they were in 1955 when this Honor
able Court said:
“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 pri-
vate needs. These cases call for the exercise of these tradi-
tional attributes of equity power. At stake is the personal in-
terest of the plaintiffs in admission to public schools as soon
as practicable on a non-discriminatory basis. To effectuate
this interest may call for elimination of a variety of obstacles
in making the transition to school systems operated in ac
cordance with the Constitutional principles set forth in ou
May 17, 1954, decision. Courts of equity may properly take _
into account the public interest in the elimination of suclrob
stacles in a systematic and effective manner. But it should go
without saying that the vitality of these Constitutional princi
ples cannot be allowed to yield simply because of disagree
ment with them.
“(T]he courts may consider problems relating to administre
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 non-racial basis, and revision of local laws and
regulations which may be necessary in solving the foregoing
problems.” 349 U.S. 294, 299-300.
This posture was reiterated in Swann, which quoted the above lan
guage verbatim, 402 U.S. 1, 12-13 (1971). There is absolutely n0
reason why the power of a court of equity should not be extended
to metropolitan school desegregation plans. Under prificiples of
46
equity, the remedy must be evaluated by assessing its capacity to
achieve the ultimate objective — the establishment of a unitary
school system.
Since constitutional rights have been violated, the district
court, affirmed by the Sixth Circuit, was within the scope of its
equity powers in remedying the violation by ordering a metropoli-
tan planof desegregation based upon Michigan public school law
as it applies to the relevant metropolitan Detroit community.
Returning to our initial proposition, the State of Michigan
controls all education in Michigan. The Detroit School Board is its
instrumentality. If either or both have violated the constitutional
rights of black school children, then the remedy can extend to the
other school districts in the metropolitan Detroit community, be-
cause they are mere instrumentalities of the State, and the State,
acting through its agents, must remedy the situation.
~
es
< VI. THE COURTS BELOW FOUND SYSTEMATIC ACTS OF |
SEGREGATION AFFECTING THE CONSTITUTIONAL
RIGHTS OF BLACK CHILDREN FOR WHICH THE STATE
DEFENDANTS ARE RESPONSIBLE.
The Detroit Board of Education has chosen not to appeal the
Sixth Circuit's decision because it believes that there is no appeal
‘ able issue. Keyes v. School Dist. No. 1,__U.S.___, 37 L.Ed.
548 (1973) indicates that this Honorable Court, in desegregation
cases, is more concerned with the legal standard applied by th
courts below than the specific factual findings of unconstitutional
acts of ‘segregation. Regardless of the relative culpability of De
fendants below, if a constitutional violation has been found under
the appropriate legal standard, a remedy must issue. Public school
education is a function of the State of Michigan. Clearly it is the
State of Michigan that must provide the remedy in the instant
case.
The State of Michigan functions through subordinate school
districts which are its agents. The expendability of those school
districts is illustrated by the fact the State of Michigan eliminated
seven hundred of them between 1964 and 1968, for financial and
educational purposes. Yet, what reason, other than segregatory
intent, could explain the State’s contradictory position. On th
one hand, it is willing to eliminate numerous school districts for
48
financial and educational purposes, but on the other hand, it re-
fuses to accept a necessary multidistrict solution to its own viola-
tion of black children’s constitutional rights.”
Prior to the district court’s finding of unconstitutional acts
of segregation in the Detroit School System, the Detroit School
Board, as agent of the State of Michigan, attempted to desegregate
high schools within the City of Detroit. The State of Michigan,
through the enactment of Public Act 48 of 1970, thwarted the
efforts of its agent, the Detroit School Board, to desegregate the
Detroit school system. The district court (28a) and the Sixth
Gireuit (15la) both found that the enactment of Public Act 48
was one of several systematic acts which helped to create and
maintain segregated conditions within the Detroit school system.
segregated conditions within the Detroit school system.
The State challenges the findings of the district court and
the Sixth Circuit as to the effect of Public Act 48. Public Act 48
was declared unconstitutional by the Sixth Circuit. The Act’s
statutory stigmatization of black children, because of race,
occurred as late as 1971 and would certainly fall within the Keyes
(71 ‘The State asserts in its Petition at 15, footnote 3, that the Detroit
School Board’s decision not to petition for certiorari in this
case is “proof positive that under Michigan law, the Detroit Board of
Education governs and controls the conduct of the school district of
the City of Detroit”. In light of the examples of State control cited
in this Brief and found to be true by the district court and the Sixth
Circuit, such a statement is totally without merit. It is true that under
MSA §§15.3154 and 15.3192 local school districts may sue or be sued.
However, the State fails to point out that this privilege was granted to
the local school districts by the state legislature as a matter of admin-
istrative convenience in the processing of legal matters involving the
In addition, the State in its Petition at 15-16, erroneously cites the
Sixth Circuit Opinion (177a) to substantiate its makeweight claim
that there is no agency relationship between the State Defendants and
the local school districts. To the contrary, the citation (177a) con-
tains no denial of an agency relationship — express or implied—but
rather refers to a completely different issue, the right of other school
districts to be made parties. In fact, the previous page (1 76a) states
quite specifically: “Under the authorities heretofore discussed, these
school districts are arms and instrumentalities of the State of
Michigan."
49
guidelines that racially inspired actions have an impact beyond the
particular schools that are the subjects of those actions. Public Act
48 was sufficiently proximate to other acts of segregation found
by the courts below to establish a requisite causal nexus between
those prior state acts of segregation and the resulting pattern of
unconstitutional segregation.
In its Petition for Certiorari,8 the State asserts, under Mich-
igan law, that the Michigan Superintendent of Public Instruction had
no control over school site selection prior to 1949 and after 1962.
Furthermore, the State indicates that most of the school
construction relied upon by the lower courts in finding acts of de
jure segregation occurred after 1962. This Honorable Court in
Keyes, however, pointed out that the site selection for even one
school in a school district the size of the Denver School District
(96,580 pupils in 1969 and 119 schools) can have a substantial
reciprocal effect on the racial composition of other nearby
schools.
“Similarly, the practice of building a school — such as the
Barrett Elementary School in this case — to a certain size and
in a certain location, ‘with conscious knowledge that it would
be a segregated school’, 303 F.Supp. at 285, has a substantial
reciprocal affect on the ratio composition of other nearby
schools.” US. , 37 L.Ed.2d 559.
* *
“The Court found that by building Barrett Elementary
School west of the Boulevard and by establishing Colorado
Boulevard as the Eastern boundary of the Barrett attendance
zone, the Board was able to maintain for a number of years
the Anglo character of the Park Hills School.” US.
, 37 L.Ed.2d 561.
It is apparent from Keyes that even discrimination in one
school site selection can be pervasive considering the long range
effect that school site locations can have on the racial composition
of surrounding areas. The courts below predicated their finding, in
the instant case, on this very proposition.
[8] State Petition at 22-23.
ee. es
50
The State erroneously asserts? that the late 1950's practice
of busing black Carver School District high school students to black
inner-city schools (while by-passing nearby all white high schools)
should be overlooked as evidence of discrimination in light of the
1960 merger of the Carver School District with the predominately
white Oak Park School District. The Keyes standard does not
uphold the State’s contention. Can there be any doubt that the
discriminatory treatment of the black Carver school district high
school students as late as 1959 had “‘a profound reciprocal effect
on the racial composition of residential neighborhoods within
{the} metropolitan area” of Detroit?__U.S___, 37 L.Ed. 2d
559.
The State and school district Petitioners (except Grosse
Pointe) cite San Antonio Independent School District v. Rodriguez,
411 US 1 (1973), for the rule that “this Court has never doubted
the propriety of maintaining political subdivisions within the
states and has never found in the Equal Protection Clause any per
se tule of territorial uniformity (citations omitted)”.!° But Rodri-
quez was a school finance case, not a desegregation case. The
inappropriateness of a “‘per se rule of territorial uniformity” in
that case was confined to the financing of school districts, for
which a “rational basis” legal standard was developed. The instant
case, however, is a desegregation case concerned with the denial of
equal protection on racial grounds. ! !
The State has suggested that certain State officials,
Defendants below, are improper parties to this suit by virtue of
the sovereignty provisions of the Eleventh Amendment.!2 The
argument presented by the State is not novel. It previously has
been made by states in an attempt to frustrate federal court
remedial orders in the area of school desegration. It has
consistently been laid to rest as quickly as it has been raised. The
(9) State Petition, at 21.
110] 411 U.S. 54, cited at 24 of State Petition and at 17-18 of School
District Petitions.
(1) Except for a minor finding by the District Court (152a), inter-district
financial disparities are not mentioned by the courts below.
112) The genesis of this argument dates back as early as Cooper v. Aaron,
358 U.S. 1 (1958).
$1
response to the State’s argument is the universal holding of courts
that it is the duty of state officers to support both the Constitution
and the rights guaranteed against infringement by the states under
the Fourteenth Amendment.
In Griffin v. School Board of Prince Edward County, 377 US.
218 (1964), which involved the closing of public schools and the
operation of a system of private schools by the county with the
acquiescence of the Commonwealth of Virginia, Mr. Justice Black,
speaking for a unanimous Court, summarily dismissed the
Eleventh Amendment argument.
“It is contended that the cases and action against the State, is
forbidden by the Eleventh Amendment, and therefore should
be dismissed. The complaint, however, charged that State and
county officials were depriving Petitioners of rights
guaranteed by the Fourteenth Amendment. It has been
settled law since Ex parte Young, (citation omitted), that
suits against State and County officials to enjoin them from
invading constitutional rights are not forbidden by th
Eleventh Amendment.” 377 U.S. at 228.
The Court went on to state that the district court could, in
addition to its injunctive powers, force the various Defendants, that
is, the Board of Supervisors, School Board, Treasurer, Division
Superintendent of Schools of Prince Edward County, the State
Board of Education and the State Superintendent of Education,
all of whom were held to have duties which related “directly or
indirectly to the financing, supervision, or operation of the
schools”, to undertake positive action to reopen the public schools
in the county:
“For the same reasons, the District Court may, if necessary
to prevent further racial discrimination, require the
Supervisors to exercise the power that is theirs to levy taxes
to raise funds adequate to reopen, operate and maintain with
out racial discrimination a public school system in Prine
Edward County . . .” 377 U.S. at 233.
Furthermore, as the district court correctly recognized in.
Swann v. Charlotte-Mecklenburg Board of Education, 318 F.
Supp. 786 (W.D. N.C. 1970), the implementation of procedures
$2
necessary to assure any Constitutional rights of the individual may
place, directly or indirectly, additional financial burdens upon the
State, even though it is not a formal party to the proceedings:
“However, a Constitutional right has been denied, this court
believes that it is the Constitutional right that should prevail
against the cry of ‘unreasonableness’. . .. The unreasonable-
ness of putting the State to some expense cannot be weighed
against or prevail over the privilege against self-
incrimination, or the right of people to be secure in their
homes. If, as this court and the Circuit Court have held, the
rights of children are being denied, the cost and inconve-
nience of restoring those rights is no reason under the Con-
stitution for continuing to deny them.” (Citation omitted).
318 F. Supp. at 801.
Thus, it becomes readily apparent that State Defendants,
through the exercise of inherent powers which they possess as
officers and agents of the State, can and should effectuate and
implement the remedy ordered by the courts below. School
boards in Michigan being but agents of the State, any finding of
unconstitutional segregatory actions traceable to the state, if not
clearly erroneous, compels the conclusion that the state shall be
held accountable and shall be included in a remedy.
$3
VII. PETITIONER SCHOOL DISTRICTS HAVE NOT BEEN
DENIED DUE PROCESS OF LAW SINCE THEY ARF
AGENCIES OF THE STATE BOARD OF EDUCATION,
WHICH HAS BEEN A PARTY TO THIS LITIGATION
FROM ITS INCEPTION, AND WHICH HAS ADEQUATELY
PROTECTED THE INTERESTS OF THE PETITIONER
SCHOOL DISTRICTS.
The Petitioner school districts have not been denied due pro
cess of law. Throughout the proceedings in the courts below, State
Defendants including the State Board of Education had been
joined and did participate fully in all phases of the trial and
early appeals. As the State was represented, the school districts
were represented, for under Michigan law local school districts
are mere agencies and instrumentalities of the State. Education
in Michigan is a state function and not a matter of local concem
except as the legislature may choose to maké it such.!3 Th
joinder of all possible parties need not be had if the various
interests are likely to be adequately protected by those already
parties to the cause, and joinder would be onerous or defeat
jurisdiction. Isdaner v. Beyer, 53 F.R.D. 4(D.C. Pa. 1971). The
interests of the local school districts, being identical to those of
the State, were adequately represented by the State Defendats.
Cf. Higgins v. Board of Education, City of Grand Rapids, No.
6386 (D.C. W.D. Mich., July 18, 1973), Slip Op.-at 79-80.
To have required joinder of local school districts, prior to the
ruling that a Detroit-only plan would not remedy the violation
found in this cause, would have been not only onerous, but in-
possible. Joinder is required after it becomes apparent that addi-
tional parties will be necessary in order to afford complete relief in
the proceedings. F.R.C.P. 19. Bradley v. School Board of the City
of Richmond, 51 F.R.D. 139 (D.C. Va., 1970). Prior to the hear-
ing and decision that a Detroit-only plan would not be effective,
there was no indication that additional parties would be necessary
to afford complete relief. As of that point in time, the advisability
of joinder became apparent as to Petitioners and to the district
court.
[13] See Reason III, supra, at 19-26.
54
The Sixth Circuit recognized this in vacating all proceedings
subsequent to the hearing on Detroit-only plans and remanding to
the district court for a hearing on the propriety of a Metropolitan
remedy, after joinder of the school districts likely to be affected
thereby. Bradley v. Milliken, Nos. 72-1809-1814, (6th Cir., June
12, 1973). (244(a)-245(a)). To have called for a joinder of local
school districts prior to the date that it became apparent that they
might be affected by the remedy in this cause, would have re-
quired that all local school districts throughout the State of Michi-
gan be joined, pending a determination by the district court re-
garding which of them would not be affected by the remedy
necessary to grant Plaintiffs below full relief. This would have not
only been onerous, but of no substantive merit, as the State De-
fendants had already been joined and were able to adequately
protect whatever interests local school districts may have had in
the litigation. ;
There is no indication by Petitioner school districts that the
State defendants did not adequately represent their interests in the
litigation, prior to their joinder; if such were the case, Petitioners
had adequate remedy during the course of the trial proceedings to
request intervention on that basis. F.R.C.P. 24 (a) (2); Hatton v.
County Board of Education of Maury County, 422 F. 2d 457 (6th
Cir. 1970).
Finally, Petitioners claim that the conditions imposed upon
them by the Sixth Circuit in the litigation of matters on remand
constitute a denial of due process. The hearing granted, in order to
meet requirements of due process, must be meaningful. Goldberg
v. Kelly, 397 U.S. 254 (1970). However, reasonable conditions
may be imposed upon such a hearing. Owenby v. Morgan, 256
U.S. 94 (1921).
The denial by a state, through its statutes, of the right of a
litigant to raise certain defenses in an action brought against him,
does not constitute a denial of due process, Lindsey v. Normet,
405 U.S. 56 (1972). The Sixth Circuit in this cause has provided
Petitioners with a hearing which will deal with those matters
which directly affect them — the formulation of a proper remedy
within the guidelines enunciated by this Honorable Court. The
Rlitigation of issues already decided in the district court in this
55
cause would add nothing to the question of de jure segregatory
acts by the State Defendants and the Detroit Board of
Education, as found by the district court and affirmed by the
Sixth Circuit en banc. A relitigation of the issues regarding the
propriety of a Detroit-only plan would also add nothing to the
present status of this cause. Presentation of evidence regarding
the propriety of a Detroit-only plan by Petitioners would be of
no substantive merit and would be cumulative to that presented
by State Defendants including the State Board of Education in
the hearing below.
CONCLUSION
For the reasons above stated it is respectfully submitted that
this Honorable Court deny the Petitions for Writs of Certiorari.
Respectfully submitted,
RILEY AND ROUMELL
By: GEORGE T. ROUMELL, JR.
JOHN F. BRADY
THOMAS M. J. HATHAWAY
GREGORY P. THEOKAS
C. NICHOLAS REVELOS, Of Counsel
720 Ford Building
Detroit, Michigan 48226
Telephone: 313/962-8255
Counsel for Respondents,
BOARD OF EDUCATION FOR THE SCHOOL
DISTRICT OF THE CITY OF DETROIT,
a school district of the first class;
PATRICK McDONALD,
JAMES HATHAWAY and
CORNELIUS GOLIGHTLY,
members of the Board of
Education of the City of Detroit and
NORMAN DRACHLER, Superintent
of the Detroit Public Schools.
Dated: October 5, 1973
laa
APPENDIX
CONSTITUTIONAL PROVISIONS
United States Constitution, Amendment XI provides:
Limitation of judicial powers.
The Judicial power of the United States shall not be con-
strued to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.
United States Constitution, Amendment XIV, Section 1, provides:
Citizenship; security of persons and property, due process
and equal protection clauses.
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or proper-
ty, without due process of law; nor deny to any person with-
in its jurisdiction the equal protection of the laws.
United States Constitution, Amendment XV, Section 1, provides:
Right of citizens to vote; race; color.
Section 1. The right of citizens of the United States to
vote shall not be denied or abridged by the United States or
by any State on account of race, color, or previous condition
of servitude.
Michigan Constitution of 1963, Art. 8 § 2 provides:
Free public elementary and secondary schools; discrimi-
nation. ;
Section 2, The legislature shall maintain and support a
system of free public elementary and secondary schools as
defined by law. Every school district shall provide for the ed-
ucation of its pupils without discrimination as to religion,
creed, race, color or national origin.
Judicial Code, 28 U.S.C. s 1292(b) provides:
§ 1292. Interlocutory decisions
Act 48, Sec. 12, Mich. Pub. Act of 1970 provides:
ditions. [M.S.A. 15.2298(12)]
2aa
UNITED STATES STATUTES
(b) When a district judge, in making in a civil action ap
order not otherwise appealable under this section, shall be of
the opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court of
Appeals may thereupon, in its discretion, permit an appeal to
be taken from such order, if application is made to it within
ten days after the entry of the order: Provided, however
That application for an appeal hereunder shall not stay pro-
ceedings in the district court unless the district judge or the
.. Court of Appeals or a judge thereof shall so order.
MICHIGAN STATUTES
388.182 Attendance provisions, implementation; con-
Section 12, The implementation of any attendance pro
visions for the 1970-71 school year determined by any first
class school district board shall be delayed pending the date
of commencement of functions by the first class school dis-
trict boards established under the provisions of this amend
tory 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 attendance provisions the first class school district
boards established 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 pr-
ority acceptance, insofar as practicable, in cases of insuffi
cient school capacity, to those students residing nearest the
school and to those students desiring to attend the school for ,
3aa
participation in vocationally oriented courses or other
specialized curriculum.
FEDERAL RULES OF CIVIL PROCEDURE
Fed. R. Civ. P. 19 provides:
Rule 19. Joinder of Persons Needed for Just Adjudication
(a) Persons to be Joined if Feasible. A person who is sub-
ject to service of process and whose joinder will not deprive
the court of jurisdiction over the subject matter of the action
shall be joined as a party in the action if (1) in his absence
complete relief cannot be accorded among those already
parties, or (2) he claims an interest relating to the subject of
the action and is so situated that the disposition of the action
in his absence may (i) as a practical matter impair or impede
his ability to protect that interest or (ii) leave any of the per-
sons already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by
reason of his claimed interest. If he has not been so joined,
the court shall order that he be made a party. If he should
join as a plaintiff but refuses to do so, he may be made a
defendant, or, in a proper case, an involuntary plaintiff. If
the joined party objects to venue and his joinder would
render the venue of the action improper, he shall be dis-
missed from the action. "
(b) Determination by Court Whenever Joinder not Feas-
ible. If a person as described in subdivision (a) (1)-(2) hereof
cannot be made a party, the court shall determine whether in
equity and good conscience the action should proceed among
the parties before it, or should be dismissed, the absent per-
son being thus regarded as indispensable. The factors to be
considered by the court include: first, to what extent a judg-
ment rendered in the person’s abserice might be prejudicial to
him or those already parties; second, the extent to which, by
protective provisions in the judgment, by the shaping of
telief, or other measures, the prejudice can be lessened or
avoided; third, whether a judgment rendered in the person’s
_ absence will be adequate; fourth, whether the plaintiff will
Fed.
4aa
=~
have an adequate remedy if the action is dismissed
nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading as
a claim for relief shall state the names, if known to:
pleader, of any persons as described in subdivision (a) (3
hereof who are not joined, and the reasons why they are me
joined. _
(d) Exception of Class Actions. This rule is subject to th :
provisions of Rule 23.
R. Civ. P. 24 provides in part:
(a) Intervention of Right. Upon timely application amp
one shall be permitted to intervene in an action: (1) whe
statute of the United States confers an unconditional
intervene; or (2) when the applicant claims an interest ®
lating to the property or transaction which is the subject af
the action and he is so situated that the disposition of
action may as a practical matter impair or impede his ability
to protect that interest, unless the applicant's interest
adequately represented by existing parties.
TABLE OF CONTENTS
Page
I ND oo wg bc 6a 6a deus ce weductess 1
Reasons for Granting the Writ .................. 2
ecu kkk 4s boneebe sob 00d easace 5
Appendix ....... seta tees tee eeeneaeenes pore 7
INDEX OF AUTHORITIES
Cases: Page
Oliver v. School District of Kalamazoo, 448 F. 2d
EE EE oe ca uk ke hocnsbassiaeeis 3
Smuck v. Hobson, 408 F 2d 175 (Dist of Col Dis-
betas Nae so Neukan cede baksaee 3
.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1973
No.
——>—
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,
vs.
RONALD BRADLEY, et al.,
Respondents
eee See
BRIEF IN SUPPORT OF PETITIONS FOR WRIT
OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE
SIXTH DISTRICT
——+— ‘
The briefant, Professional Personnel of Van Dyke,
upon Order of the Sixths Circuit Court of Appeals, was
granted the right to intervene in this cause.
This brief is written in support of the three Petitions
for Writ of Certiorari previously filed herein. Its page
references are to the Petition of the Grosse Pointe School
System.
STATEMENT OF THE CASE
Professional Personnel of Van Dyke is an independent,
Le, unaffiliated, labor union, representing some three
hundred and fifty-three teachers in the Van Dyke School
District. It is the exclusive bargaining agent of such
teachers, having been so elected under the appropriate
statutes of the State of Michigan (423.211 M.C.L.A.). As
such exclusive bargaining agency, it has entered into a
labor contract, (called ‘‘Master Agreement” by the par-
2
ties) with the School District of Van Dyke. Such agree
ment covers the salaries, fringe benefits, class size, teacher .
assignments, grievance procedure and teacher responsibil.
ity.
The school district is located in southeast Macomb
Courty (immediately north of Detroit). It has 1,500 stu.
dents.
When, at the trial level, it first became apparent that
the trial judge might fashion a remedy that encompassed
school districts other than the defendant, School Distrie
of the City of Detroit, Professional Personnel of Van
Dyke petitioned for the right to intervene, or, in the al
ternative, for leave to intervene. This petition, filed on
February 22, 1972, was denied by order dated March 1i,
1972. Professional Personnel then filed a motion for
re-hearing of its original petition. Filed on April 11, 1972,
the re-hearing was denied on June 29, 1972.
Finally, on July 2, 1973, the United States Court of
Appeals for the Sixth District reversed. (Its Order is
appendixed herein.)
(It is noteworthy that the Detroit Federation of Teach-
ers, the bargaining agent for the teachers of the School
District of Detroit, was granted intervention early in
this matter, and without the difficulty experienced by the
Professional Personnel).
REASONS FOR GRANTING THE WRIT
Professional Personnel of Van Dyke agrees with Ree
son 1 (of Petition of Grosse Pointe School System—p§).
The Decisions Below are in Direct and IRRECOD-
CILIABLE CONFLICT WITH THE DECISIONS OF
OTHER UNITED STATES COURTS OF APPEAL, AS
WELL AS DECISION OF THE UNITED STATES SU:
PREME COURT; and Reason 2 (p. 14).
a
3
THE DECISIONS BELOW INVOLVE ISSUES
OF IMMENSE PUBLIC IMPORTANCE OF (A) THE
FAR-REACHING PRECEDENT ESTABLISHED
THEREBY, AND (B) THE IMPACT OF THE LOWER
COURTS’ PROPOSED REMEDY UPON THE RBSI-
DENTS OF EVERY SCHOOL DISTRICT IN THE DE-
TROIT METROPOLITAN AREA. It is in agreement
with Reason 3, p. 17) as well, but would restate such
reason to be more specifically applicable to this briefant,
an organization of teachers, as follows:
THE REFUSAL OF THE LOWER COURTS TO
ACCORD FUNDAMENTAL DUE PROCESS
OF LAW TO THE PROFESSIONAL PER-
SONNEL OF VAN DYKE, WHO, IT IS NOW
CONCEDED, SHOULD HAVE BEEN
GRANTED THE RIGHT TO INTERVENE
(AS OF FEBRUARY 22, 1972) REQUIRES
THE EXERCISE OF THIS COURT OF ITS
SUPERVISORY POWERS.
Professional Personnel of Van Dyke was singularly
unsuccessful, on the trial level, in its attempts to inter-
vene. Its original petition was filed on February 22, 1972
(prior to the adoption by the trial court of the so-called
Metropolitan Plan.) It was denied on March 15, 1972.
Its petition for re-hearing, filed on April 11, 1972, was
denied on June 14, 1972, after the passage of two very
critical months in the proceedings. And this in spite of
the fact that the law was clear that its motion to inter-
vene should have been granted. [Oliver v School Distnict
of Kalamazoo, 448 F 2d 635 (CA 6, 1971) and Smuck v
Hobson, 408 F 2d 175 (Dist of Col District, 1969) ].
Assuming a Metropolitan Plan, the issues to be deter-
mined by the trial court are overwhelming: Teacher place-
ment, tenure, grievance, salaries and advancements; cur-
wricula and class size are but a few of them.
4
The original input in an attempt to solve these prob.
lems is to be made by a court-appointed panel, consisting
of two members of the defendant, State Board of Educa.
tion, three members of the defendant, Detroit Board of
Education, one from the plaintiff, one from defendant ip.
tervenors, Magdowski (who favor a Metropolitan Plan
and who are essentially white home owners residing in
the City of Detroit,) one from all the intervening school
districts and one from the Michigan Civil Rights Com.
mission (Joint Appendix 99a).
It is at once noteworthy that no one from any teacher
organization is included. Yet without any teacher parti-
cipation, this panel is mandated to re-assign faculty and
staff, and to develop criteria ‘‘in the hiring, assignment,
promotion, demotion and dismissal of faculty and staff
...” (Joint Appendix 1038a). And the Court of Appeals
expressly held that such panel should proceed with its
studies and plans (Joint Appendix 178a).
It is respectfully submitted that such panel—totally
without a representative of any teacher organization or of
any teachers—is violative of elementary due process and,
indeed, contrary to the statutes of the State of Michigan
(M.C.L.A. 423.211) recognizing collective bargaining right
of public employees. It is further submitted that such
panel has been given the power to completely obliterate
the contractual rights of members of the Professional
Personnel of Van Dyke.
The grant of the Petition to Intervene, as ordered by
the Sixth Circuit Court of Appeals, is rendered totally
meaningless if Professional Personnel is foreclosed from
full and active participation in open court as well as this
most important planning panel.
5
In its appellate brief on the denial of its Petition to
Intervene, Professional Personnel wrote:
Once an order is entered herein that affects the
Van Dyke School District, the movant appellant
will be practically foreclosed from litigating its
rights in any form. Its members may be laid off,
transferred, have their salaries reduced, their con-
tractual rights decimated, have their tenure lost,
without any day in court.
In reversing the trial court and ordering intervention,
the Court of Appeals must have agreed with such think-
: ing. Yet, under the terms of the Judgment of the Sixth
Cireuit Court of Appeals, Professional Personnel will be
sent back to the trial court with naught but a hollow
“tight to intervene.” It will not have a day in court-un-
less, the Supreme Court grants the writs of certiorari re-
quested.
CON CLUSION
Wherefore, Professional Personnel of Van Dyke re-
spectfully submit that the Writs of Certiorari requested
issue.
Respectfully submitted,
ROSS, BRUFF and HENRIKSEN
By: William Ross
Attorneys for Professional
Personnel of Van Dyke
215 S. Gratiot
Mt. Clemens, Michigan
962-6281
a
APPENDIX
M.C.L.A. 423.211 Representatives designated or se-
lected for purposes of collective bargaining by the major-
ity of the public employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all
the public employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages,
hours of employment or other conditions of employment,
and shall be so recognized by the public employer: Pro-
vided, That any individual employee at any time may
present grievances to this employer and have the griev-
ances adjusted, without intervention of the bargaining
representative, if the adjustment is not inconsistent with
the terms of a collective bargaining contract or agree-
ment then in effect, provided that the bargaining repre-
sentative has been given opportunity to be present at such
adjustment.
8
ORDER
(U. S. Court of Appeals—Sixth Circuit)
(Filed July 2, 1973)
In re Appeal of
Professional Personnel of Van Dyke,
Appellants.
Ronald Bradley, et al.
v.
William G. Milliken, et al.
No. 72-2008
Before PHILLIPS, Chief Judge, and EDWARDS and
PECK, Circuit Judges.
This is an appeal by Professional Personnel of Van
Dyke, which is the exclusive bargaining agent for the
teaching personnel of the Van Dyke School District. Ap
pellants undertook-to intervene in the District Court in
the case of Bradley v. Milliken. On March 15, 1972, the
District Court denied the motion of appellants to inter-
vene. On April 11, 1972, appellants filed a petition for re
hearing of their motion to intervene. On June 29, 1972,
the District Court affirmed its previous denial of the mo-
tion.
Upon consideration, it is Ordered that the decision of &
the District Court denying to appellants the right toi —
tervene is vacated and the case is remanded to the Dis
trict Court with directions to grant the motion to inter
vene.
Entered by order of the court.
/s/ James A. Higgins, _
e
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.