Reply Brief of Petitioner — Milliken v. Bradley

Supreme Court brief1974

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7 ray to Astertions in Paints’ Bre the Only Con-

u Alleged and Found Extant ir This

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p Relate to the Operation of the City of Detroit

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Other School Districts ebsasa whats cS

a. of Statutory. Responsibilities. in Michigan .

pe ee ee

roe ats

of Majority White Schools Inherent in the

ies seis hatelivbcdly | Kuiniy'cl’ cod? Maio

Spas 49, the Due Process Clause and the

of the Remand Ordered by the Court of Appeals .

PSG Se Cais Wc Ses Sas RR ORs Oe RS ee

TABLE OF AUTHORITIES

Cases:

Alexander vy. Holmes County Board of Education,

BOG SRE ROHAN nc Ce OWaER a P oes eek

Airport Community Schools v. State Board of Edu-

cation, 17 Mich. App. 574; 170 N.W. 2d 193

CPs Nols eco ee iD a cs

Akron Board of Education v. State Board of Edu-

cation of Ohio, __. F. 2d ___ (CA 6, 1974);

AP TLWe 99S TAS TA eS a so

Attorney General v. Lowrey, 131 Mich. 639; 92

PET AS OEED: os CA pha Ci ca ey ae

Bradley v. Milliken, 433 F.2d 897 (CA 6, 1970) .

Bradley v. Milliken, 438 F.2d 945 (CA 6, 1971) .

Bradley v. Milliken, 484 F.24-215 (CA 6, 1973). -.

Bradley v. School Board of the City of Ride,

Virginia, 51 F.R.D. 139 (B.D. Va. 1970) ......

Bradley v. School District of the City of Rich-

mond, 462 F.2d 1058 (CA 4, 1972), affd. by

equally divided Court, 412 U.S. 92 (1973) ....

Brown vy. Board of Education of Topeka, 347 U.S.

PES. | aS eae eee eee:

SEP SARS PIRES ee

Detroit Museum of Art v. Engel, 187 Mich. 432;

Pht $5 Re 8 8 SERN SS ae eae

Dred Scott v. Sanford, 60 U.S. (19 How) 393

Bo. SRASORE, SEGRE CoE ERS epee ears

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ....

Graver Tank & Mfg. Co. y. Linde Air Products Co.,

SIT Ce Roe a Pee Poa ec

Griswold v. Connecticut, 381 U.S. 479 (1965) .

Halt v. Ira Township, 348 Mich, 402; 83 N.W. 24

Deusudiis oo a ee ee

cian

ns . Board of Education of the City of Grand

pids, F. Supp. ____ (W.D. Mich. 1973,

ET ae eg oe 14

fo :¥. Commonwealth of Pennsylvania, 359 F.

‘ 807 (W.D. Pa. PE Ss CSE 24

v. Commonwealth of Pennsylvania, 359

Supp. 925 (E.D. OU ERA ae 24

v. Grand Ledge Public Schools, 349 Mich. 1;

NW, 20 327,(1957) ©... 5. ---- ee ese 6,17

Keyes. School District No. 1, Denver, Colo., 413

US. 189(1973)..- 2.0.02 seen ene eee sees 513

* Moor v. County of Almeda, 411 U.S. 693 (1973) . 27

Weil v. Biggers, 409 U.S. 188 (1972) ........--. 10

Nelson v. Garland, 123 P. Super 257; 187 A. 316

2A ee eee eae 27

Penn School District No. 7 v. Lewis Cass Inter-

_ mediate School District Board of Education, 14

~ Mich. App. 109; 165 N.W.2d 464(1968) ...-.. 16

The People ex rel Joseph Workman v, The Board of

Education of the City of Detroit, 18 Mich. 399

oe Rage oo REPO RR LY Care eee 12,15

Pierce v. Society of Sisters, 268 U.S. 510(1925) . 26, 28

Plessy v. Ferguson, 163 U.S. $37 (1896) ......-- 30

Provident Bank v. Patterson, 390 U.S. 102 (1968) 24

Rogers'v. Commissioner, etc.; 320 U.S. 410 (1943) 3

San Antonio Independent School District v. Rodri-

gabe 029 US24-(19T73) SS... es 8, 10, 17, 27

Schoo! District of the City of Lansing v. State

Board of Education, 367 Mich. 591, 116 N.W.

2d 866 (1962) ....... ores eo eee Rar Sees 16

-Sinking-Fund Cases, 99 U.S. 700 (1878)... +. 26

South Boose pe caeeerk. 383 US. 301 atic

ser, 326 F. Supp. 1235(N.J.1971),

102 Sees ore SRR

eee Noe

“

Swann v. Charlotte-Mecklenburg Board of Educa- x

Bom, MOST T TPT E oc. eee Se ee ces HR 10, 11,17,

19, 20, 29,30.

. Township of Middletown v. Institution District, Pa.

Commonwealth, 6 Pa. Comwith,, 146; 293 A. 2d

ORT CS os ice ss vane aod) aes

Township of River Vale v. Town of Orangetown,

403 F. 24 684(CA 2, 1968) ..... 2.255.085.

United States vy. Choctaw County Board of Educa-

tion, 310 F. Supp. 804 (1969) ...... 6.6.55.

_ Wisconsin v. Yoder, 406 U.S. 205 (1972) .......

Wright v. Rockefeller, 376 U.S. 52 (1964) ......

Wright v. Council of the City of Emporia, 407 U.S.

REMUS WER oe eee Ae apse Seema’ vee

Federal Rules of Civil Procedure

Michigan Statutes

het No. 331, Public Acts of Michigan 1947

- {amended Act No. 258, Public Acts of

gan 1972; amended Act No. 101, hbase

ae CES PELE Var erehenee

Li.

No. 269, Public Acts of Michigan 1955

_.. (Michigan Compiled Laws 340.1 e7 seq.) .... 26

~~ Michigan Comipiled Laws 340.252 .........-: 23

& Michigan Compiled Laws 340.253 ..-......-- 23

. Michigan Compiled Laws 340.352 .......--.- 26

~ Michigan Compiled Laws 340.355 ........--- 18

Michigan Compiled Laws 340.356 .......-++- 18

Michigan Compiled Laws 340.582 .......-. : 17

“Ket No.’ 287, Public Acts of Michigan 1964 (as

-- amended Act No. 382, Public Acts of Michi-

gan 1965; Michigan Compiled Laws 388.1010) 7

Act No. 239, Public Acts of Michigan 1967 (as

pa amended Act No, 130, Public Acts of Michi-

_ gan 1968; Michigan Compiled Laws 388.711

SOME akc cena nears ses tha

Michigan Compiled Laws 388.711 ........--- 15,16

Michigan Compiled Laws 388.712 ........--- 16

Michigan Compiled Laws 388.713 .-........- 16 .

Michigan Compiled Laws 388.715 ........--. 16

Michigan Compiled Laws 388.716. ......-+++> 16

“Act No. 244, Public Acts of Michigan 1969

_ (amended Act No. 48, Reeen Are of ever

Cr, SCR we ats nr Sich siete Wa Ree #88 11

Act No, 48, Public Acts of Michigan 1970

(Michigan Compiled. Laws 388.171 et seq.) .. 11,12,13,15

Act No. 101, Public Acts of Michigan 1973

(Michigan Compiled Laws 388.1101 ef seq.) © 9

Michigan Compiled Laws 388.1111 .......... 16

Michigan’Compiled Laws 388.1177 ....0..+++ 9

“Official Record, Michigan Constitutional Conven- ’

Sco Manna ehh PUK aGleee § 2 <> aes vaaceee

SUPREME COURT OF THE UNITED STATES

October Term 1973

No. 73-434

WILLIAM G. MILLIKEN, Governor of the State

of Michigan, et al., Se

~v- o

RONALD BRADLEY, et al., Pe

No. 73-435

ALLEN PARK PUBLIC SCHOOLS, et al.,

Petitiongyg |

~~ ae

RONALD BRADLEY, et al., eS

. No. 73-436 _ se

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, ©

i a ee .

RONALD BRADLEY, et al.,

Respondent,

ON WRITS OF CERTIORARI TO THE UNITED STATES _

COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF OF PETITIONERS, MILLIKEN, ET AL, a

ALLEN PARK PUBLIC SCHOOLS, ET AL. AND

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM.

_ INTRODUCTION

This Joint Reply Brief is filed on behalf of Petitioners

ken, et al., Allen Park Public Schools, et al., aie The Ge

Public School System. 7

‘The filing of this Joint Reply Brief is occasioned by the

ranted: license taken by Plaintiffs-Respondents Bradley, et

~ 4h, in regard to the record. below in an attempt to manufacture

‘some hopefully. supportive basis for their argument to this Court.

"the short’ period of intervening time between the receipt of

nit treatment of each and every gross misstatement and exaggera-

tion ‘of fact and law ihade by Respondents. Petitioners, however,

urge the Court to give most searching scrutiny to Respondents’

citations of fact and law in relation to the propositions which: such

Seek ae

Salthe. of Plaintiffe-Respondents Bradley, et al., argu-

ment is the completely unfounded’ assertion that. the District

ally confined black children to a nucleus of black schools by main-

taining a reciprocal ring of white schools in’ the “suburbs”

(Bradley ‘Brief, page 38). Such unfounded assertion is laced

holds Respondents" argument together. RSE

<3 t $s) ‘ “

~.-~As will be discussed more fully hereinafter, the actual facts

ate that this case was commenced, tried and decided on the

grounds of a constitutional violation with respect to the operation .

of a single school district, i.e. Detroit. ake

Zealous pursuit of a cause is an understandable ingredient o

effective advocacy, but does not justify an attempt to trans-

mogrify a case on appeal.

I. ft

- CONTRARY TO ASSERTIONS IN PLAINTIFFS’ BRIEF,

. AND FOUND EXTANT IN THIS CASE RELATE TO THE

Plaintiffs, in their Statement of Questions and throughout

cot ir tacs sanuees td Eaten Gator Narccs ty ec

local school district boundaries. As Mr. Justice Frankfurter once

observed, the right answer depends on putting the right

Rogers v. Commissioner, etc., 320 U.S. 410, 413 (1943). Plaintiff

in their complaint never alleged any purp ea ast ss te repate.

black children in the Detroit school district vis-a-vis other sch 7

_ districts (Pet. A. la-16a).* There has been_no hearing on

asserted question of alleged o ent of black children wit

the Detroit school district (Pet. A. 18a) and the findings ¢

District Court were, like the trial on the merits, expressly li

to a finding of “a de jure public segregated school system in open.

tion in: the City ‘of Detroit.”” (Pet. A. 38a, Emphasis added.)

Plaintiffs have not put the right ‘question. Whatever decision.

_ emanates from the Court, Petitioners feel it should be foun

Psi ceriaserpaactnide absbare snare

_ Examination of Plaintiffs’ complaint eri prayer for

(Pet. A. la-16a), their claims in the pre-trial statements (A.

4a103-104), and their opening statement by. counsel (R. |

conclusively demonstrate that Plaintiffs’ claims of unconstit

ality. were limited to. the internal operation of the Detroit

‘district. Plaintiffs thus slleged racial discrimination in pupil

<petablistiment of &-tinitary systein ‘of ‘schools therein.

case did not relate, in any manner, to alleged pupil «

by race deriving from any school district’s creation or b

Until it reached the question of remedy, the trial court pr

on this basis, as set forth in the following quote: _ |

“Well, I don’t know whether fortunately: or

tunately this lawsuit is limited to the City of Detroit and

een EO ay Sat A

_ othe volume and page of he Gr (5) volume dag App

> denoted “(aa)” refer to the single volume Appendix

of the transcript of testimony below not included in |

sea 1 addition ‘to the Detroit defendants, the Governor, the At-

‘torney General, ‘State Board of Education and Superintendent of

Public Instruction of Michigan were named as defendants. Neither

“the State of Michigan nor the Michigan legislature was named as a

‘party defendant. No school district other than Detroit was named

\s dan “Purther, no claim was made that any alleged state

‘Sytem of public schools was established or operated in ade jure

“segregatory, manner as between Detroit and any: of the other

ee A.

Case Was tried on the basis of. a Detroit-only, violation

an 1 nid apollo yi arate prom

from.remedy, was limited to de jure pupil segrega-

‘tion within Detroit (Pet. A. 33a). In its Ruling On Issue of Segre-

‘gation, the trial.court madeno finding that black students were

confined within. Detroit and excluded from any other school dis-

diets tale of anycactions by defendants: Milliken, e% al; or

Jocat:schoo!: authorities (Pet A. 17a-39a). Subsequently, the trial

-court expressly stated that: it took no roofs with respect to es-

-tablishment. of any. school district or with respect to

-whether segregatory actions were committed by any local school

ee as follows:

=.» “yy. 1t should be noted that the court has taken no

Seales es a acebieenenot to taeda

i goto: 86. public. sehool sistrints in. the counties of Wayne. Osk-

_ land and-Macomb, nor on the issue of whether, with the ex-

clusion of the..city. LOE ee

| Bae cos cece (Pet. A

In the Court of Appeals, the.case was argued and decided-on

_ questions of violations in ‘the operation of the Detroit schoo! dis

> Weape'oP tie "seimedy (Pet? 4-11 te,

titi veation El siciaseaod SBE, ‘this

d -scaamaonanentiaes anne en eet

te the true nature of this cause. Plaintiffs seek to a

Le ak iegr eb maeeea’ peabaagie In:

ceakeberre Fem age by race as i

amaparneny t ‘Denver, Cleat, 413 US. 189 (197),

“shouldbe dismissed.

Wile Hes 6 aa as

paasgae RES ase

abe fs sekace: nox tadigsalbeatieitrisheaae.

j-onorevcrasananer personne ae

et ee ee oe ee ;

“Tey Bret, sas av aas haohad foundation for extend

— se Detroit is fabricated out: of whole cloth

‘ oh rT yb

idectis ta see ae ace Vea > fue ¢

, Ta on oot oat a ;

| isaaiapanton is a response to population growth, not

: in this regard Pinietieee expert witness testified

notice the contradiction in the cross. examination of

1$ counst , Dr. Foster. On the one hand Mr. Beer asked

: f growth in their area, had built substantial

acity which was just waiting for people to move

on the other hand Mr. Saxton ’s question was to the

at did you know whether or not any of the districts

double Sessions ‘ao dnigistoen, -seied tha, _—

:: on, have a great deal of capacity built in advance, ready

"for use before the students are actually there [on] hand, or

do school districts generally play catch up?

. Except. for building specifically for something: like a

using project that’s going up, and, then it wouldn’t be

dated very far ahead. Quite often thats a catch up proposi-

- tion, Also, most. school districts do not have. the. financial

"means to build well ahead of occupancy, I would say.” (A.

ae ~ 1Va260)..

Local school districts would indeed be remiss'if they ignored the

need for ‘additional school facilities to meet the educational needs

of their respective communities. Moreover, the fact that construc-

tion of local school district facilities was paid for from taxes levied

against ‘only the property owners in the school district provides

further rational basis for constructing school facilities to meet the

seed ofthe local school district community.

~ Noe of defendants Milliken, et al., had or has any authority

to require a local schoo! district to build school facilities to serve

outside that ‘school district or to require a local ‘school

mit non-resident pupils in attendance. Jones v. Grand

lic Schools, 349. Mich. 1;84.N.W. 24 327 (1957). Plain-

argument relative to. the purpose and effect of

aaa ere tenet wbrattered vane sd yaictg

> =

a eS

Plaintiffs’ reliance on “merger of districts” and “pupil astign.

ment across school district boundaries for the purpose of segregs.

of merit. The single alleged instance of crossing

school district boundary lines for alleged segregatory purposes re

n by Detroit occurring during the 1950's. See

, and $ 10(c) of 1964 PA 287, M:

Further, Plaintiffs’ allegation (Bradley Brief, pages 19-20,

14) that a portion of the Carver School District was merged into.

Ferndale School District is absolutely untrue. Both the record ar

the ruling below conclusively demonstrate that ail of the

School District was merged with the contiguous Oak Park

district in 1960. (See A. Ilal109-110, Val81, Val 86; aoe

a Further, the HEW proceeding against Ferndale i

claim that, out of twelve (12) schools, including one junior

and one high school, only the Grant emeeey Sa ae

structed in 1926, was de jure segregated. The hearing

sft i “ff “ val oy % *

P 4 te ee Shihentit., Met is a4

iY pe Spe SWE phe fs gta) th? aoe

Carver a:fuann, What the sano Goat etiect talti® ontraty

Plaintiffs’ ‘confinement argument, the predominantly black p

lation in Carver was attached by local school au fies to

; f

, * ig

5 - .

dominantly white Oak Park in 1960, not confined to Detroit (Pet.

AM a, A. Val 13). This is the only “merger of districts” alluded

to in tt Gree pred st. -demonetraten: that. ERMONPE SUNN. a0

air bowic ecerts velo dn whsgod inter-Aasict Mita th

atities in ruling against defendants Milliken, et al. (Pet. A. 27a,

12a), However, only the Michigan legislature, not a party to this

n, tions for public education. Mich Const

9, $11. It has been demonstrated that Detroit has one of

‘school operating tax rates in the tri-county area (Brief

1, et al., page 28) and yet, as admitted by the Detroit

Gdaatidisd:tn than Coun, it “. . . does make higher general fund

expenditure per pupil than most of the other school districts.”

(Detroit Brief, page 75). The reliance by the lower courts on al-

leged inter-district financial disparities is exceptional error. San

ee re ee 411 US. 1

(1973). —

> Plaintiff reliance on alleged “disparity of bonding author

(a Rachlin eee ge senate

in this regard. Compare pages 41, 47-49 of the opinion of

8, 1972, and 484 F. 2d 215, 238-241 (1973), (Pet. A.

SSASTA) of fas ‘optnion sind Summ 12, 1973. It is uncontro-

verted that Detroit’s three percent (3%) bonding authority, with-

out a vote of the people, had never been exhausted by Detroit

when it was increased to five percent (5%) of the state-equalized

valuation of taxable property within the district, thus bringing it

in percentage harmony with all other classes of school districts

(R. 3547-3549; 17aa-18aa, 25aa-26aa, 31aa, 33aa-34a2). Having

the greatest aggregate tax base of any school district in the State,

at three percent (3%) Detroit could issue bonds for school con-

struction in an amount exceeding 150 million dollars, thus putting

it far ahead of any other school district in terms of actual dollar

volume for bonding without a vote of the people. The increase

from. three percent (3%) to five percent (5%) for Detroit added

another 114 million dollars in non-voted bonding authority (R.

Tere ee npe iemtiateion in, Setend tne.

-. Plaintiffs’ reliance on “disparity of . . . transportation fund-

: Aig? Sina We a eneennehy- gongraphical: vleetcaticn for" par

9) Soo ote ene sali ape mien tere gre

SR | be SA.

school districts that limits reimbursement to students living ou

side city or village limits. This statutory classification is of long

standing and totally unrelated to racial motivation. For example,

in $34 (b) of 1947 PA 331, the legislature provided that “[a} dd}.

abak aietinints Fo kuihaseianitn publ aaalt tacsense to

school districts transporting pupils within the district but liviig

outside the village or city corporate limits. . .” In 1950, the black

population of the City of Detroit was only 16.2% of the tota

population (Pet. A. 21a). Further, in §77 of 1973 PA 101, MCL.

388.1177, the legislature has made an initial categorical appropris

tion of $1,500,000.00 for transportation within cities and villages.

Plaintiffs’ reference to “ ‘walk-in’ desegregation” (Bradley

Brief, page 36, n. 34) is put to rest by the District Court’s ruling”

that “... 310,000 of the 780,000 children within the desegrege

tion area will require transportation in order to. accomplish

maximum actual desegregation” (Pet. A. 72a) within a“. . . rough,

TALUS 40-minute travel time line” one way (Pet. A. 69a), This.

conjectural one way travel time projection is based upon average

driving time from a central point in downtown Detroit to certain |

perimeter lines along a minimum time path (R. Metro Plans,

1105-1109). However, students do not live at a central point within

the school district 2nd must either walk to a central point or be

picked up by the bus prior to arriving at a central point for depar-

ture to a school within another school district. Moreover, students -

would be transported during peak traffic periods. Thus, from the |

student’s point of view, the conjectural forty (40) minute travel time

one way does not accurately reflect the substantially longer

of his time that would actually be consumed daily by virtue of

multi-district remedy (Deposition of Harold Wagner, pages 81-83),

Any contention that any substantial number of school chit

dren are presently transported to school districts other than thos

in which they reside is without support. Less than 1/2 of 1% of al

the school children in the tri-county area reside in one schodl °

district and receive their education in another school district inthe

Ub-canaty ween, Sach etacation ts prpeitek tn ib ereerets pee :

Plaintiffs Bradley et al., ask this Court to invoke the “t bs

op hecer yng raga a a ape x

of essential facts. Petitioners submit that this case comes s

within the two well-recognized exceptions to the rule. F

s stated by Petitioners Milliken, et al. in its Petition

ni was the obvious and exceptional error of the ““fac-

etermir s of the lower courts. Graver Tank & Mfg. Co.

Air Products Co., 336 U.S. 271, 275 (1949), Second, the

sis dak yalinas al top porte hekow ae-s0h 150th ta

i of the brief of Petitioners Milliken, et al., initial

_ s 24-46, Only one of the rulings actually even comes

pure factual determination, the gel the Carver.

age sgvenahvowens tet hint Vind on: aadvacdiad

widence (Bradley Brief, p. 19, n. 14). The other rulings chal

of Michigan enacted by the legislature, and, thus, there is put

squarely in issue before this Court the question whether the cor-

| standards were applied by the courts below.

For example, in the areas of alleged disparities in inter-district

ere. ca peste caetonaaee

t's | in San Antonio Independent School District v.

ir Rodigus, AIT US. 1 (1979) Pe. A 27a, 15ta-1S7a)y

Error should not be sanctified by repetition. Rate

PlbbiniPts-atternpt;: through’ the echployment: of steained se

<dieaeiladcimanad tones, #3 wad ceo-Goure stents

Os ae eye pantareigamesaplhetine tinned

tmed and deci : preey egppaalleng celia .csesies

er tion of the Detroit school district only, and there is no basis

- ‘extending beyond the nature of the violation.

Board of Education, 402 US. 1,

SECTION 12 OF ACT 48, PA 1970, HAD NO

MATERIAL EFFECT ON THE RACIAL COMPOSITION

OF DETROIT SCHOOLS AND NO EFFECT WHATSOEVER

ON THE RACIAL COMPOSITION OF DETROIT :

VIS-A-VIS OTHER SCHOOL DISTRICTS

“As with any equity case, the nature of the violation deter.

mines the scope of the remedy.” Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1, 16 (1971). When a case is pleaded

and tried on the theory that the Detroit school district is de jure

segregated with respect only to the operation of its schools,

the District Court’s limited finding that the Detroit school district

has been operated as a de jure segregated school district does not

constitutionally permit a remedy extending beyond the Dente

school district (Pet. A. 17a, 38a).

It is within this overall framework that this Court should

examine Plaintiffs’ effort. to advance a theory of multi-district

remedy based primarily upon a philosopher’s stone of the uncon

stitutionality of 1970 PA 48, 812 (54aa-S8aa), that is, a trans

mutation of something that involved only the Detroit school dis

trict into something that involves not only the Detroit school

district but all of the other school districts in Michigan (Bradley

Brief, pages 52-53, n. 45). As previously noted in the earlier brief

of defendants Milliken, et al. (page 40), 1970 PA 48 consisted of

fourteen (14) sections and was an amendment to a prior act, 1969

ee ee een ae

(Detroit school district) to provide even greater voice in

school district affairs by persons residingtherein.[1]

Although 1970 PA 40: hse Dove: before the: courts sinceili:

beginning of this lawsuit, the only section thereof found to be.

unconstitutional was $12, for the stated reason that it “thwarted, -

or at least delayed” (2] (not, “obstruct such action forever

(11 phaintiffs make the unsupported assertion that 1970 PA 48

dated” the external boundaries of the Detroit school district (Bradley Bn

page 12). The simple answer to this assertion is that the Act did not ¢

the external boundaries of the Detroit school district.

[2] 433 F, 2d 897, 904 (CA 6, 1970).

~ daimed by. Plaintiffs, Bradley Brief, page 12) the effectuation of

the Detroit Board of Education’s April 7 racial balance plan to be

“effected in September, 1970, involving at most 3,000 to 4,000

“tenth grade students in 12 of 21 high schools, or less than 1.5% of

the total number of students in the Detroit school district. The

April 7 tacial balance plan was endorsed by defendant State Board

of Education. [3}

Plaintiffs say that 1970 PA 48, $12, is evidence of a policy

of segregation not only in the Detroit school district but state-

wide, This is pure fi . The policies of the State are set forth

in its egg ee onstitution, and since at least 1867 the

statutes or itution of Michigan, or both, have prohibited

the segregation of the races in the public schools. The People ex

rel Workman v. Board of Education of Detroit, 18 Mich, 399

(1869); Mich Const 1963, art 8, $2.

- ‘The insignificance of the effect of Section 12. within the

Detroit school district (to say nothing of its total lack of signifi-

cance outside of the Detroit school district) is probably best illus-

trated by the fact that neither the District Court nor the Court of

Appeals ordered into effect the April 7 plan, despite Plaintiffs’

repeated requests, after Section 12 was declared unconstitutional.

In fact, the Detroit Board of Education discarded the April 7 plan

and recommended instead the MacDonald Magnet Plan, affecting

8,174 children in both junior and senior high schools, !4] which

re eet nee ret arcs fet the Dinirict Conk and. oP

appeal.

- The assertion by Plaintiffs that 1970 48, $12, so con-

taminated not only the Detroit school district but all. other

districts in Michigan, particularly those in Wayne, Oakland and

Macomb. counties, so as to require a multi-district remedy for de

jure segregation with respect to pupil assignments within Detroit,

is not only frivolous but also unsound as a matter of logic. The

effect of 1970 PA 48, $12, affecting less than 1.5% of the enroll-

(31 433 F, 24 897, 900 (CA6, 1970).

{41 A. 1290-194; Report of the Detroit Board of Education On the Magnet

Plan, page 1.

(S} 438 F. 24 945 (CA6, 1971).

ed pupils in the Detroit sesicat bieieictTob a perkid'oF tot aie

than ninety-cight (98) days [July 7, 1970, the effective date of the

Act to October 13, 1970, the date of the Court of Appeals de

cision, 433 F. 2d 897 (CA 6, 1970)], is de minimis.

Nowhere is Plaintiffs’ philosopher's stone approach more evi

dent than in their assertion (Bradley Brief, pages 52-53, n. 45) that

the unconstitutionality of 1970 PA 48, 12, shifts the burden of

proof to defendants Milliken, et al. to establish “that racial sep-

aration of children in the Detroit area is in no part attributable {0 ~

other state-level discriminations against the DSD, and that state

ever es tps tga Se ee

not intended”.

. As authority for this astounding assertion Plaintiffs cite “Cf

Keyes v. School Dist. No. 1,” 413 U.S. 189 (1973), First, 1970 PA

48 was enacted by the legislature, not a party to this suit. Second,

as indicated above, the effect of 1970 PA 48, $12, within the

Detroit school district was de minimis. Third, Keyes involved the

conduct of a single board of education defendant and the burden

of proof was ‘shifted only as to the same defendant who had

committed purposeful acts of segregation within a portion of a

single schoo! district. Fourth, the logical conclusion of Plaintiffy’

Coin ty wanéadidanes cde ce ee

statute of limited application raises a presumption of unco

tionality of all statutes enacted by the same state legislature af :

shifts the burden of proof upon parties, who did not ¢ act such

statute, as to their conduct in office unrelated to the scatute. zs

In their attempt to bootstrap the unconstitutionality of 197)

PA 48, $12, intoa multi-istrict remedy in this case, which wa

pleaded and tried’ on their own theory of single district 2

and single district remedy, Plaintiffs, in obvious ot,

depart entirely from the facts of this case and, aided by their own

gratuitous term “pervasive”, rteclonfesag alierge torte

local schoo] districts of Pontiac, Benton Harbor, Grand pids,

Kalamazoo and Lansing (Bradley Brief, pp. 21-22, n. 17).(61 In

Grand Rapids,{7) the Governor, Attorney General, State Board of

relief.

by Plaintiffs

merits all of the eleven (11) adjacent districts and the Governor,

Attorney General, State Board of Education and Superintendent

of Public Instruction were dismissed from the case. Further, the

Grand Rapids Board of Education was found not to have

discriminated in the assignment of children to its schools. Higgins

y. Board of Education of the City of Grand Rapids, __ F.

Supp._2, W.D. Mich. 1973, Case No. 6386). The only constitu-

tional violation found was in the assignment of teachers. within

Grand Rapids and this was promptly remedied solely by the Grand

Rapids Board of Education, since teacher assignment is a matter of

local control. Only the plaintiffs have appealed from that decision:

It is significant that, with the sole exception of 1970 PA 4

_ $12, in the few “school desegregation cases” brought in Michigar

Ro state statute or administrative rule has been declared uncongt

tutional. ‘The reason is obvious: since at least 1869 under Michig,

Jaw racial segregation in the public schools has been, and is, prok

bited: The People..ex.rel Workman v. Board of Education

Detroit, 18 Mich 399 (1869). ee

THE DIVISION OF STATUTORY RESPONSIBILITIES ae

_ IN MICHIGAN PLACES THE DAY-TO-DAY AUTHORITY

OVER THE MANAGEMENT AND CONTROL OF PUBLIC

SCHOOLS SQUARELY ON THE LOCAL SCHOOL DISTRICT

- Since the brief of Respondents Detroit Board, et al. esser

tially tracks the argument of Plaintiffs Bradley, et al., Petitione

find no need for protracted reply thereto. However, certain em

neous conclusions made by Respondents Detroit Board, “4

should be noted.

Admittedly, ultimate control over public education aa

State of Michigan is reposed in the State legislature, which is not

party to this cause. However, the statutory division of responsibil

ties places the day-to-day authority over management and yn

of the public schools in local school boards. An i

the enumerated powers confided to local school districts (li

pages 42-44 and 47-48 of the Respondents Detroit Board B

negates the contention Se nee On Ea ee

the local school districts. ais

In seeking to divert attention from the extensive power a

pasar dtcgrp remem nies siesae trent ee

have, in some instances, erroneously characterized statutory ay

and. purposefully avoided providing the Court with any i ef

“explication: of the power and authority of local school be

‘As an example; Respondents Detroit Board, etehrcite MCI

‘$388,711 for their proposition that said Act “gives the Mich

State. Board of Education ultimate control over alteration of id

school district boundaries” (Detroit. Board Brief, page 47, 0.3

Such broad contention is patently wenn as begin with,

statute is expressly limited in application to “emergency” reorgan-

ization of primary and fourth class school districts: in Wayne

County..See M.C.L.. $388.711, (65aa); and Airport Community

‘Schools v. State Board .of Education, 17. Mich. App. 574; .170

N.W.2d 193 (1969). Further, emergency reorganization must be

initiated by either the local school board or electors of the local

school district. M.C.L. $388.712°(65aa). Also, the holding of a

public hearing and a finding by a state committee that conditions

instance delegated “ultimate control over alteration of local school

district boundaries” to any of the defendants herein.

Under Michigan law, plenary authority over the establish-

ment and alteration of local school district boundaries rests in the

State legislature. Mich Const 1963, art 8, $2 (3aa); School Dis-

trict of the City of Lansing v. State Board of Education, 367 Mich.

591, 595-596; 116 N.W.2d 866, 868-869 (1962); Penn School Dis-

trict No. 7-v. Lewis Cass Intermediate School District Board of

Education, 14 Mich. App. 109, 120; 165 N.W.2d 464, 470 (1968).

No party to this case has ever disputed this state of the law.

With respect to the area of school finance, neither the State

Board of Education nor any State officials have authority to with-

hold state aid funds from local school districts except for failure

to comply with legislative mandates. The power of appropriation

of state school aid funds to school districts is reposed solely in the

Michigan legislature with “*. . [p]ayments from the fund ; . . to be

made in full on a basis scheduled by legislative enactment. . .”

Mich Const 1963, art 9, $11 (Saa), accompanying Address to the

People, Constitutional Convention, Official Record, 1961, Vol. Il,

P 3400. Further, by statute state school aid funds “shall be allo-

cated” to school districts “as provided in this act.” M.C.L.

— $388.1111.

Respondents would have this Court labor under the fale

impression: that: the! defendants Milliken,-et al:;possess the pom

to require the cross-school district reassignment of schoo! children

‘necessary to implement the remedy ‘decreed by the District Court,

The decision to admit non-resident students, however, is ex

clusively a matter of local school board control. Jones v. Grand

Ledge “Public Schools, 349 Mich. 1; 84 N.W. 24 327 (1957,

M.C.L. $340,582 (49aa). z ee

~ No party to this case has cited any. Michigan law under which

the defendants State Board of Education, its members and super.

intendent, the Governor, the Attorney General, or the State Tree :

surer, is empowered to unilaterally alter school district boundaries,

establish attendance zones, determine school site locations or is

burse or withhold legislatively appropriated school funds. No bi :

authority exists. _

Any contention that pervasive and gennine local control ang

the day-to-day operation of school districts. in the State of

Michigan does not exist. simply cannot be supported. San Antonio

Independent School District v. Rodriguez, 411 US, :1, ae |

108 (1973).

THERE IS NO CONSTITUTIONAL VIOLATION TO —

SUPPORT THE MULTI-SCHOOL DISTRICT RACIAL —

BALANCING REMEDY DECREED BY THE COURTS BE v

Plaintiffs and Respondents Detroit Board, et al.’s n

support of a multi-school district remedy pretermits the expr

limitation on judicial power as expressed by the unanimous opin-

ion of this Court in Swann v. Charlotte-Mecklenburg Board

haere tenkie 1, 16 (1971) ="

. the nature of the violation determines the s

‘the aa ts

The record in this’ case shows that the Plaintiffs’ ‘

action was predicated solely on alleged constitutional v

with respect to the operation'#! of the City of Detroit

(8) Plaintiffs. have noises ‘oontinded: thet: Vie ‘bbsindaridis 0 'thb il

schoo! district, or any other school district, were established with segreg

intent and no evidence was offered to such effect (P A. 398-608), :

“disttict (Pet. A. 1a-16a);' the trial-on the merits was limited to the

jssue of the alleged segregatory operation of the Detroit school

district (A. 1la41);and the findings resulting from the trial on the

merits were limited to “the issue of segregation in the. public

schools of the City of Detroit” (Pet. A. 38a). "

”

that the trial on the merits resulted in a finding that defendants

Milliken, et al., and Detroit Board, et al.’s actions were calculated

to “confine” black children to a nucleus of schools in the Detroit

school district while maintaining schools “for white children” in

school districts beyond Detroit (Bradley Brief, page 53). This argu-

ment, verbalized in various fashion, is repeated again and again

throughout Plaintiffs’ brief in the apparent belief that constant

repetition will convince the reader of the credibility of such asser-

Argument is not evidence. The Court should note that Plain-

iffs’ “‘confinement” theory is not accompanied by any eviden-

tiary citations to the record inthis case. That such argument is

without support is further attested to by the plain fact that the

District Court took no proofs with respect to the establishment of

the boundaries of any school district or, with the exclusion of

Detroit, whether any school district has committed any acts of de

jure segregation (Pet. A. 59a-60a).

__; Plaintiffs’ argument is premised on the fallacious assertion

Under Michigan law the only requirement for admission to a

school within any given, local school district is residence within the

school district. This requirement applies equally to blacks and

whites (M.C.L.. 340.355, 340.356). There is no evidence in this

case that any black children were denied admission to any school,

or assigned to any school, because of race or color, outside the

of defendants Milliken, et al. or the defendant Detroit Board acted

to preclude any black person from taking up residence outside the

is SOR tues eae acd tN

“Phere is no evidence and no. finding in this case that any

"There is-no evidence and no finding in this case that te

‘boundaries Ot “atty school: district’ were ectabliched: pursuant.

any intent to foster racial segregation. No such claim is made even

tn Plaintiffs’ WiHiinS “Complaint etontly Tes Noreth (A. ae

tn shot: shlsie' i abaibitely is: comensots pabionddae at

stitutional violations here found Se ae

Detroit school district vis-a-vis other school districts.

Plaintiffs” apparent contention that the State of Michigan ot

defendants Milliken, et al. had a constitutional duty to prevent |

school construction in school districts beyond Detroit as a means _

petra in aad int suman girbendgomndeces

Plaintiffs’ contention that defendants Milliken, et al.

constitutional duty to require local school districts beyond Det

to locate new school facilities so as to counteract racial im

in Detroit is untenable. Said defendants possess no such pow,

The Michigan Constitution provides that: a

; .

. Every school district shall provide for the idan

- tion * its pupils without discrimination as to religion, creed,

race, color or national origin.” Mich Const 1963, art 8, ae

[Emphasis added.}

To say that the construction of a new school in a school di

located ten to twenty-five (10-25) miles distant from Detroit i @

segregatory act because it will not alleviate racial imbalance }s

Detroit strains the bounds of common sense much less the mnsti-

The fallacy underlying the Respondents Detroit Board, ¢t

argument in support of the multi-district remedy is glaringly’:

parent in their contention that a required clement of ad des

tion ree is that —

Seay school, or almost every school, aot ot

tain a * wextiite of the races that rou

make-up of the student ert:

Charlotte-Mecklenburg Board of Education, 402 US. 1

(1971); Davis v. Board of School Commissioners, 402 U.S. 33

‘statement in Davis to such effect and in Swann this

1 any such contention. Swann, supra, at

- Moreover, the “student community” with respect to

school district is the City of Detroit. No one in this

‘desegregation plan which would mirror the

Detroit pupil racial composition can be effected in the Detroit

-.. Plaintiffs’ contention that the rationale requiring over-repre-

sented’ electoral districts to participate in a reapportionment

remedy furnishes a constitutional peg on which to hang the multi-

school district remedy in this case is a non-sequitur.!9} The funda-

mental difference between school districts and electoral districts is

obvious. The constitutional standard against which the validity of

electoral districts is to be measured is “practicable” equal popula-

tion. Consequently, if one electoral district is over populated, one

or more other electoral districts must be under populated. The

constitutional violation is thus interdistrict in nature, as must be

the remedy. Here the constitutional violations found are limited to

the operation of the Detroit school district, as must be the

remedy.

Stripped of rhetorical facade, Respondents’ arguments come

down to the simple proposition that racial imbalance between the

Detroit school district and other school districts gives rise to a

constitutional violation and commands a judicially-ordered dis-

persement of school children throughout such geographical area as

can be traversed by motor vehicle in forty (40) minutes to the end

that the schools, if not the local communities, will be racially

_. Neither a reasoned interpretation of the Constitution nor the

decisions of this Court permit of any such judicial disruption of

the State’s educational system or the impairment of the rights and

interests. of parents and children affected thereby because of

‘disparity of racial balance in separate school districts. Wright v.

Gouncil of City of Emporia, 407 U.S. 451, 470 (1972). |

(91 “in Wright’ v; Rockeféller, 376 U.S. 2 (1964), this Court rejected the

contention that racial imbalance as between electoral districts violates the

Vv.

THE CONCEPT OF MAJORITY WHITE SCHOOLS

INHERENT IN THE MULTI-SCHOOL DISTRICT REMEDY

Brown I, 347 U.S. 483 (1954) speaks of the feelingof

inferiority effect on children resulting from governmental action —

which dictates assignment to public schools on the basis of race @

color. The “end” tobe attained under the racial balancing “‘metmp

politan” remedy decreed by the District Court was the reassign

ment of school children so as to restrict black children to a numer

ical minority in every “‘school, grade’’ and ‘‘classroom”’ (

101a-102a). [Emphasis added.] Why should black children be»

confined? Certainly, nothing in the Constitution or the decision

of this Court so commands. How does the forced

black children to schools in limited numbers result in any k

implication of inferiority than forced assignment in lange

numbers? Petitioners assert that reassigning black children

diverse schoo! districts for the purpose of reducing them toa

er Net Se ETRE NIECE

constitutes invidious discrimination against black children

calls up haunting memories of Dred Scott v. Sanford, 60 US.

How.) 393 (1856). a

Respondents make no attempt to refute such implication but

seek to avoid the same by the false and irresponsible assertion that

Petitioners have attributed “racist” motives to some members of

the lower courts (Bradley Brief, pages 30-31, footnote 27). [10

Petitioners’ statements do not reasonably permit of any such oF

struction. The question raised by Petitioners, and we

Respondents, relates to implicit effect, not motivation.

ccidiathagi lithe pak ot Sinie bench. tutgen penned Ua

tioners. However, as noted in U.S. v. Choctaw County Board a

Education, 310 F. Supp. 804, 810 (1969): aah

. Some of history’s most glorious mistakes and 1 “'

tyrannous acts were done in the name of (misconcei¥

Plaintiffs Bradley, et al. stated on the record, “We want 06 be at

your Honor, in ur position as plaintiffs to make clear our

from any concept pda pein perp mgionona gS yng We (hind &

26, 1971, R. 4688). | Emphasis added.]

‘ VI.

_ RESPONDENTS HAVE INCORRECTLY ANALYZED

THE APPLICABILITY OF RULE 19, THE DUE

» PROCESS CLAUSE AND THE SCOPE OF THE

‘ORDERED BY THE COURT OF APPEALS

INES was 0.) seausana dsncehbuseea ie

been ordered to do nothing and therefore any infringement of

their rights is merely “potential”, and will be corrected upon

SUTET Bilasitts have Agaored, however, the fact that the Coat

of Appeals has affirmed the District Court’s holding that a

metropolitan desegregation plan is “essential”-not potential.

Petitioners submit that Plaintiffs’ counsel accurately portrayed the

Wusory nature of Petitioners School District's participation on

‘remand in the following colloquy which occurred subsequent to

Pee ct et. An}

ty “JUDGE DeMASCIO: The question I’m ican

= soit What wat he enon or reaone for vacating the

eeeeernes onde? ;

~ MR. LUCAS: I think simply because one of the parties

wo ald he ton tre whe he meta ened

was shaped, or a number of parties, weren’t there. /t's as if

“this Court did not grant the defendant the presence at his

__ sentencing, and the Court of Appeals sent it back and said:

He’s got to be resentenced, and that’s maybe an unfortunate

analogy, but I tried to put it within the framework of this

Court.”(12) [Emphasis added. ]

“y 4

a a

23 ‘aus

dence on ell issues is belied by! what has occurred below andé

not assuage Petitioners’ fears in the least.!!31

Assuming arguendo that this Court may remand this caus.

for further proceedings with respect to issues pertaining to th

extent and effects of segregatory acts beyond the boundaries of

the Detroit school district, it is respectfully submitted that only;

vacation of ail prior orders, and a direction that the District ¢

shail reopen the proceedings on ail issues, will adequately proted

the interests that Petitioners’ School Districts represent. nt

_. Plaintiffs also assert that the treatment of Peitioners Schoo

Districts. below is, in any event, immaterial, because the Def

dants Milliken, et al. have the power, if so ordered by the D

Court, practicably to coerce any local school district to participa

in the relief requested by Plaintiffs. Petitioners School Distric

Milliken, et al. to refuse to.certify teachers or withhold StateAid

etc.{!4] in violation of the provisions of State law gove

spect to all issues, violation and remedy, to the extent that dete

mination of such issues might have an effect on their interests.

{13} raeeky trea ger petetemrnepeg me -

tioners Schools Districts (A. Ia 206-207) were proposed by Plaintiff. a

[14] The Plaintiffs’ reference to M.C.L. $340.252-253 regarding

office particularly

ntiffs assert that Petitioners School Districts do not ob-

tain such a right to be heard on ail issues under the provisions of

ed, R. Civ. P, 19. They reason that under Rule 19(b), even with-

out joinder of Petitioners School Districts, the District Court can

Tor | them complete relief and Petitioners School Districts have

“interest cognizable under Rule 19 because they have no /egal

interest to be affected. This case, however, calls for the application

“ of Rule 19(a2Xi) and not Rule 19(b), which is totally inapplica-

ble because of Petitioners Schoo! Districts has always been

Yeasible11°!

For joinder under Rule 19(a) at the District Court level,

there must exist a possibility or potential that the party not joined

will, as a practical matter, have his ability to protect his interest in

the subject of the action impaired or impeded.!16] This Court has

also interpreted the applicability of Rule 19 at the Appellate level

saan a aaa ee ay crag

to. the absent party. Provident Bank v. Patterson, 390

S. 102 (1968).

Instead of taking steps to protect Petitioners School Districts

Tae Prien Bk Patterson, 390 U.S. 102, 109 (1968).

on Spe Biles glace woalhger aly seem th . to determine whether in

and good censcience, the Court should proceed without a party

absence from the litigation is compelled.” (Emphasis added. }

(16) Ibid at 110, 111; See also, Bradley v. School Board of the City of

, 51 FRD. 139, 141 (E.D, Va., 1970), where the District

that “to wait until all the evidence is adduced ‘to determine

t joinder of additional parties would create a risk of unjustifiable

the resolution of « controverny and 8 waste of the efforts ofall in

{Caton oma omitted.) It appear, therefore, that absent parties

lathe is probable we rddragien vambrucnigehe asia tad

Ce eT eee

that in Hoots v. Commonwealth of Pennsylvania,

DD. Pa, 1973) and Husbands v. Commonwealth of Penn-

‘ 925 (B.D. Pa. 1973), cited by Plaintiffs, the State of

named party defendant. In this case the State of Michigan

A oe,

ans

the “metropolitan” desegregation plan have not been orden |

there is no reason to believe that the basic parameters of the rep.

edy will be any different than initially decreed by the Distrig

Court. {18!

Plaintiffs also assert that although Rule 19 and equitable op.

cepts of fairness may apply to Petitioners School Districts, ty

Fifth Amendment to the United States Constitution does not

because school districts have no proprietary interests and therefor

could not be deprived of property. The Michigan authority cite

in this assertion is not supportive of said assertion.!!9] The simpk

Sa ee

reads, in part:

{18} Purthermore such relief contemplates more than merely arti

defendants Milliken, et al. exercise existing power under State law. This

indicated by the following passage from the District Court's June 14, Big

Order (Pet. A. 104a-105a) pertaining to recommendations of the State

intendent ‘Of Public Instruction On Schoo! Governance in the

area: . The Superintendent, consistent with the rulings and orders of thé

Court, may be guided, but not limited, by existing state law; where statelay:

Spray pa aaa gpa apRaptiapen anya yaaal bagenee

it should be followed, where state law either is silent or conflicts with

necessary to achieve the objectives of this order, the Superintendent §

independently recommend what he deems necessary. . - (emphass ada

[19]. Bradley Brief, p. 77,n. 62 & 64:

(a) Michigan Atty. Gen. Opinion No. 406 turned on the qouliaaah |

whether School District Property was “State property” for purposefal_

making loans from the Veterans Trust Fund in violation of Art. X, Sec.

12 of the 1908 Mich. Const., which stated: “The credit of the state shall

not be granted to, nor in aid of any person, association or corporation,

public or e.” See also Detroit Museum of Art v. Engel, 187 Mich

432 (1915), holding that a city has the same status as the “state” bg

purposes of that state constitutional provision.

(b) Michigan Atty. Gen. ap nrendo 4371 deais-culy with «quia

_ of statutory construction and eran melee

Education “State Officers” for purposes of statutory provisions

ing public construction contracts. 5

aff'd. 199 U.S. 233 (1905), holds that the state legislature has absohit

authority over school districts and municipalities, and therefore te -

legislature has the power to incorporate several primary school d -

into one union and graded school district, with the pened?

former becoming the property of the latter.

‘game provided inthis act, and may sue and be sued in BS

: “name, may acquire and take property, both real and personal,

"for educational within or without its corporate

~~ \imits, by purchase, gift, grant, devise or bequest, and hold

and use the same for such purposes, and may sell and convey

the same as the interests of such district may require. . .”

“Plaintiffs also make the assertion that schoo! districts are not

grotected by the Due Process Clause because it “. . .reads.as ff

protect natural persons or wholly private interests. . .”{20! only.

purposes...” Sin Cases, supra, at 719. This principle

was again recognized in y. Society of Sisters, 268 U.S. 510

ment.

The Due Process Clause of the Fourteenth Amendment was

specifically held applicable to the local unit of government in

(201 Bradley Brief at p. 76.

Township of River Vale v. Town of Orangetown,'22! 403 -

684, 685 (CA 2, 1968), wherein the Court stated: Bi!

“We hold that a municipal corporation like any other corpo.

ation is a ‘person’ within the meaning of the fourteen)

amendment and is entitled to its protection.” {231

The Michigan Supreme Court has declared that “{a] sched

district is a municipal corporation.” Hail v. Ira Townehae

Mich. 402, 405; 83 N.W.2d 443, 445 (1957).

The distinction betwesn a Staté’and'one’of its local unl

government was recently discussed by this Court in Moor,

County of Alameda, 411 U.S. 693 (1973), wherein Mr. Justic.

Marshall analyzed the “persuasive indicia of the independent

status” of counties in California, to determine that such countis

were not simply “the arm or alter ego of the State” and therefor

are citizens of the State for diversity purposes. Included as such

“persuasive indicia” are the facts that the governmental unit ha

[22] jt should be specifically noted that this case followed this Court

decision in Katzenbach, supra. See also, Township of Middletown v. Instite

tion with. 146; 293 A.2d 885 (1972) and Nelson ¥. Ge

land, 123 Pa. Super. 257; 187 A. 316 (1936). me

[23] Petitioners can determine no discernible distinction between the

ing of the word “person” as used in the Fifth and

ments insofar as their applicability to “municipal corporations”

Akron Board of Education v. State Board of Education of Ohio,

(CA 6, 1974); 42 L.W. 2395, which held that a local board of

standing to sue the state board of education and

district may not be a “person” for purposes of

superintendent and members of its board of education

purpose.

(24]. with respect to the status of local school

Rodriguez, 411 U.S. 1, 51-

were arm or alter ego of the State. It is therefore submitted that

etition School Districts are entitled to protection under the

Due Process Clause of the Fifth Amendment to the United States

3 ‘The parents and school children residing in school districts

rent ‘and children, with respect to the claims made by Plaintiffs.

In this capacity, the Petitioners Schoo! Districts also represent the

interests of such parents and children, who are unquestionably

“pers » under the Fifth Amendment, and should accordingly be

afforded fundamental rights of procedural due process!27) in

Plaintifis ask this Court to declare that local school districts |

have no right in the District Courts of the United States, to appear

and meaningfully defend an action which challenges the exercise

of their State Constitutional and statutory responsibility to edu-

cate the children resident therein, and effectively strikes at their

very existence. It is respectfully submitted that this oppressive sug-

gestion should be rejected.

128] The District Court has made no certification of a class of suburban

parents or children, notwithstanding the asserted organizational purpose of

Tri-County Citizens, ete. Brief of Respondents Kerry Green, et al. P. 2

U.S. 479 (1965).

127] See Akron Board of Education v. State Board of Education of Ohio,

__. B24. (CA 6, 1974); 42 LW. 2395, wherein the Court of Appeals

held that because of the close relationship between the school district and the

standing to

S It

CONCLUSION

Neither the lower courts nor Plaintiffs in this Court tay

provided any rational basis for concluding that the alleged segrep.

tory conduct of defendants Milliken, et al. is causally related

the racial composition. of the school districts within the tri-couny

area. Plaintiffs’ eleventh hour confinement theory is without gi

stance. | po

This cause “... reveals the familiar phenomenon that |

metropolitan areas minority groups are often found concentratg

in one part ...”” Swann v. Charlotte-Mecklenburg Board of Educ

tion, 402 US. 1, 25 (1971). As stated by the trial court, “{thhe

principal causes undeniably have been population movement and”

housing patterns...” (Pet. A. 33a). There has been no showing.

here “‘... that either the school authorities or some other agency

of the State has deliberately attempted to fix or alter demographi :

patterns to affect the racial composition of the schools...” g

between Detroit and the other eighty-five (85) school districtsin

the tri-county area. Swann, supra, at page 32. . Ses

It must be stressed that the scope of the remedy is b

the nature of the constitutional violation, Swann, supra, at 16

The violation here must be limited to. the finding oi de jure segn

gation within Detroit by its school board, from which it hs

elected not to appeal. Further, with respect to relief within

Detroit, SAO ane ANN ane aR .

. any concept that a school must be majority white. en

a racist concept. . .”” (R. 4688). Bowes

Racial disparity among school districts does not violate te

Equal Protection Clause in robe coeased 9 On

district boundary lines have been manipulated for segregate

poses. Wright v. Council of City of Emporia, 407 U.S. 451, 40

(1972); Swann, supra, at 32; Spencer v. Kugler, 326 F. Supp. 12 y

(N.J. 1971), aff'd. 404 U.S, 1027 (1972); Bradley v. School Ba

of the City of Richmond, 462 F.2d 1058 (CA 4, 1972), affd@:

equally divided Court 412 U.S. 92 (1973). Here, the ist 0

took no proofs and made no findings on the establishment

school district boundaries, thus negating any mlt-district

(Pet. A. 59a-60a).

: The forced reassignment of upwards of 300,000 school

“hldren among diverse and distant school districts, as commange

by. the District Court, can only be premised on the thesis that

tions desegreg#

submitted that neither Brown nor its progeny permit the remedy

decreed in this case.

The constitutional mandate is to make public education avail-

able to all on equal terms, without regard to race or color. Brown

I, 347 US. 483 (1954). The mission of desegregation is the

" Alexander v. Holmes County Board of Education, 396 U.S. 19

(1969). The mission of desegregation is not racial balancing.

~ Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1,

231971).

“Here the constitutional violations found are limited to the

operation of the Detroit school district so as to exclude chicos

Ferguson, 163 U.S. 537 (1 96), erroneously suggests. that this

Cont’s kolding in Brown is constructed of some sort of judicial

elastic with infinite strétching qualities. As Mr. Justice Frankfurter

cautioned in Gomillion Vv. Lightfoot, 364 U.S. 339, 343-344

(1960): ef ve

“Particularly in dealing with claims under broad provi-

‘sions of the Constitution, which derive content by an inter

_ pretive process of inclusion and exclusion, it is imperative

that generalizations, based on and qualified by the concrel

situations that gives rise to them, must not be applied out of

‘context in disregard of variant controlling facts.”

On this record, the case against defendants Milliken, et al.,

— fall. And in light of Plaintiffs’ amended complaint, which

not allege any de jure segregatory control as to either the

establishmen —— at of the boundari or the operation of the other

Sa TE

eighty-five (85) school districts in the tri-county area, there ig

basis for remand. (A. Ia294-295; Bradley Brief, p. 20, ne

Petitioners respectfully submit that this Court should dis e

fendants Milliken, et al. and Petitioners Schools Distric 4

reverse the decision of the Court of Appeals for the Sixth Cir

to the extent said decision requires the imposition of a mi

school district remedy to desegregate the Detroit public sch

system. 4

Respectfully submitted,

FRANK J. KELLEY

Attorney General |

ROBERT A. DERENGOS

j Solicitor General

EUGENE KRASICKY

BUTZEL, LONG, GUST, es

KLEIN & VAN ZILE GERALD F. YOUNG

Conner GEORGE L. McCARGA

ms THOMAS F. SCHIMPF.

HILL, LEWIS, ADAMS, .

GOODRICH & TAIT 1881 First National B

Thomas E. Coulter

2 Detroit, Michigan 48226.

Of Counsel aq

Richard P. Condit, School District of the

Of Counsel Royal Oak)

HARTMAN, BEIER, HOW- DOUGLAS H. WEST

LETT, MC CONNELL & 3700 Penobscot Buildi

GOOGASIAN | Detroit, Michigan 482

Kenneth B. McConnell, Counsel for Petitioner Gro

Of Counsel Pointe Public Schools

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