# Opposition Brief — Milliken v. Bradley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0342%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1974 - **Citation:** 418 U.S. 717 ## Text 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 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 — 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0342%3A10. Public record. Not legal advice.