|Milliken v. Bradley
[ Burger ]
[ Stewart ]
[ Douglas ]
[ White ]
[ Marshall ]
Milliken v. Bradley
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join, dissenting.
The District Court and the Court of Appeals found that, over a long period of years, those in charge of the Michigan public schools engaged in various practices calculated to effect the segregation of the Detroit school system. The Court does not question these findings, nor could it reasonably do so. Neither does it question the obligation of the federal courts to devise a feasible and effective remedy. But it promptly cripples the ability of the judiciary to perform this task, which is of fundamental importance to our constitutional system, by [p763] fashioning a strict rule that remedies in school cases must stop at the school district line unless certain other conditions are met. As applied here, the remedy for unquestioned violations of the equal protection rights of Detroit's Negroes by the Detroit School Board and the State of Michigan must be totally confined to the limits of the school district, and may not reach into adjoining or surrounding districts unless and until it is proved there has been some sort of "inter-district violation" -- unless unconstitutional actions of the Detroit School Board have had a segregative impact on other districts, or unless the segregated condition of the Detroit schools has itself been influenced by segregative practices in those surrounding districts into which it is proposed to extend the remedy.
Regretfully, and for several reasons, I can join neither the Court's judgment nor its opinion. The core of my disagreement is that deliberate acts of segregation and their consequences will go unremedied not because a remedy would be infeasible or unreasonable in terms of the usual criteria governing school desegregation cases, but because an effective remedy would cause what the Court considers to be undue administrative inconvenience to the State. The result is that the State of Michigan, the entity at which the Fourteenth Amendment is directed, has successfully insulated itself from its duty to provide effective desegregation remedies by vesting sufficient power over its public schools in its local school districts. If this is the case in Michigan, it will be the case in most States.
There are undoubted practical as well as legal limits to the remedial powers of federal courts in school desegregation cases. The Court has made it clear that the achievement of any particular degree of racial balance in the school system is not required by the Constitution; [p764] nor may it be the primary focus of a court in devising an acceptable remedy for de jure segregation. A variety of procedures and techniques are available to a district court engrossed in fashioning remedies in a case such as this; but the courts must keep in mind that they are dealing with the process of educating the young, including the very young. The task is not to devise a system of pains and penalties to punish constitutional violations brought to light. Rather, it is to desegregate an educational system in which the races have been kept apart without, at the same time, losing sight of the central educational function of the schools.
Viewed in this light, remedies calling for school zoning, pairing, and pupil assignments, become more and more suspect as they require that schoolchildren spend more and more time in buses going to and from school and that more and more educational dollars be diverted to transportation systems. Manifestly, these considerations are of immediate and urgent concern when the issue is the desegregation of a city school system where residential patterns are predominantly segregated and the respective areas occupied by blacks and whites are heavily populated and geographically extensive. Thus, if one postulates a metropolitan school system covering a sufficiently large area, with the population evenly divided between whites and Negroes and with the races occupying identifiable residential areas, there will be very real practical limits on the extent to which racially identifiable schools can be eliminated within the school district. It is also apparent that the larger the proportion of Negroes in the area, the more difficult it would be to avoid having a substantial number of all-black or nearly all-black schools.
The Detroit school district is both large and heavily populated. It covers 139.6 square miles, encircles two [p765] entirely separate cities and school districts, and surrounds a third city on three sides. Also, whites and Negroes live in identifiable areas in the city. The 1970 public school enrollment in the city school district totaled 289,763 and was 63.6 Negro and 34.8 white. [n1] If "racial balance" were achieved in every school in the district, each school would be approximately 64% Negro. A remedy confined to the district could achieve no more desegregation. Furthermore, the proposed intra-city remedies were beset with practical problems. None of the plans limited to the school district was satisfactory to the District Court. The most promising proposal, submitted by respondents, who were the plaintiffs in the District Court, would "leave many of its schools 75 to 90 percent Black." 484 F.2d 215, 244 (CA6 1973). [n2] Transportation on a "vast scale" would be required; 900 buses would have to be purchased for the transportation of pupils who are not now bused. Id. at 243. The District Court also found that the plan "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 population." Id. at 244. For the District Court,
[t]he conclusion, under the evidence in this case, is inescapable that relief of segregation in the public schools of the [p766] City of Detroit cannot be accomplished within the corporate geographical limits of the city.
The District Court therefore considered extending its remedy to the suburbs. After hearings, it concluded that a much more effective desegregation plan could be implemented if the suburban districts were included. In proceeding to design its plan on the basis that student bus rides to and from school should not exceed 40 minutes each way as a general matter, the court's express finding was that,
[f]or all the reasons stated heretofore -- including time, distance, and transportation factors -- desegregation within the area described is physically easier and more practicable and feasible than desegregation efforts limited to the corporate geographic limits of the city of Detroit.
345 F.Supp. 914, 930 (ED Mich.1972).
The Court of Appeals agreed with the District Court that the remedy must extend beyond the city limits of Detroit. It concluded that,
[i]n the instant case, the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan.
484 F.2d at 249. (Emphasis added.) It also agreed that
any Detroit-only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black.
Ibid. There was
more than ample support for the District Judge's findings of unconstitutional segregation by race resulting in major part from action and inaction of public authorities, both local and State. . . . Under this record, a remedial order of a court of equity which left the Detroit school system overwhelmingly black (for the foreseeable [p767] future) surrounded by suburban school systems overwhelmingly white cannot correct the constitutional violations herein found.
Id. at 250. To conclude otherwise, the Court of Appeals announced, would call up "haunting memories of the now long overruled and discredited ‘separate but equal doctrine' of Plessy v. Ferguson, 163 U.S. 537 . . . (1896)," and "would be opening a way to nullify Brown v. Board of Education, which overruled Plessy. . . ." 484 F.2d at 249.
This Court now reverses the Court of Appeals. It does not question the District Court's findings that any feasible Detroit-only plan would leave many schools 75 to 90 percent black, and that the district would become progressively more black as whites left the city. Neither does the Court suggest that including the suburbs in a desegregation plan would be impractical or infeasible because of educational considerations, because of the number of children requiring transportation, or because of the length of their rides. Indeed, the Court leaves unchallenged the District Court's conclusion that a plan including the suburbs would be physically easier and more practical and feasible than a Detroit-only plan. Whereas the most promising Detroit-only plan, for example, would have entailed the purchase of 900 buses, the metropolitan plan would involve the acquisition of no more than 350 new vehicles.
Despite the fact that a metropolitan remedy, if the findings of the District Court accepted by the Court of Appeals are to be credited, would more effectively desegregate the Detroit schools, would prevent resegregation, [n3] and would be easier and more feasible from many [p768] standpoints, the Court fashions out of whole cloth an arbitrary rule that remedies for constitutional violations occurring in a single Michigan school district must stop at the school district line. Apparently, no matter how much less burdensome or more effective and efficient in many respects, such as transportation, the metropolitan plan might be, the school district line may not be crossed. Otherwise, it seems, there would be too much disruption of the Michigan scheme for managing its educational system, too much confusion, and too much administrative burden.
The District Court, on the scene and familiar with local conditions, had a wholly different view. The Court of Appeals also addressed itself at length to matters of local law and to the problems that inter-district remedies might present to the State of Michigan. Its conclusion, flatly contrary to that of this Court, was that "the constitutional right to equality before the law [is not] hemmed in by the boundaries of a school district," and that an inter-district remedy
is supported by the status of school districts under Michigan law and by the historical control exercised over local school districts by the legislature of Michigan and by State agencies and officials. . . . [I]t is well established under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative convenience. [n4]
484 F.2d at 245-246. [p769]
I am surprised that the Court, sitting at this distance from the State of Michigan, claims better insight than the Court of Appeals and the District Court as to whether an inter-district remedy for equal protection violations practiced by the State of Michigan would involve undue difficulties for the State in the management of its public schools. In the area of what constitutes an acceptable desegregation plan,
we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeal.
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28 (1971). Obviously, whatever difficulties there might be, they are surmountable, for the Court itself concedes that, had there been sufficient evidence of an inter-district violation, the District Court could have fashioned a single remedy for the districts implicated, rather than a different remedy for each district [p770] in which the violation had occurred or had an impact. I am even more mystified as to how the Court can ignore the legal reality that the constitutional violations, even if occurring locally, were committed by governmental entities for which the State is responsible, and that it is the State that must respond to the command of the Fourteenth Amendment. An inter-district remedy for the infringements that occurred in this case is well within the confines and powers of the State, which is the governmental entity ultimately responsible for desegregating its schools. The Michigan Supreme Court has observed that "[t]he school district is a State agency," Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 644, 92 N.W. 289, 290 (1902), and that
"[e]ducation in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature. . . ."
Attorney General ex rel. Zacharulis v. Detroit Board of Education, 154 Mich. 584, 590, 118 N.W. 606, 609 (1908).
It is unnecessary to catalogue at length the various public misdeeds found by the District Court and the Court of Appeals to have contributed to the present segregation of the Detroit public schools. The legislature contributed directly by enacting a statute overriding a partial high school desegregation plan voluntarily adopted by the Detroit Board of Education. Indirectly, the trial court found the State was accountable for the thinly disguised, pervasive acts of segregation committed by the Detroit Board, [n5] for Detroit's school construction [p771] plans that would promote segregation, and for the Detroit school district's not having funds for pupil transportation within the district. The State was also chargeable with responsibility for the transportation of Negro high school students in the late 1950's from the suburban Ferndale School District, past closer suburban and Detroit high schools with predominantly white student bodies, to a predominantly Negro high school within Detroit. Swann v. Charlotte-Mecklenburg Board of Education, supra, at 402 U.S. 20"]20-21, and 20-21, and Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189 (1973), make abundantly clear that the tactics employed by the Detroit Board of Education, a local instrumentality of the State, violated the constitutional rights of the Negro students in Detroit's public schools and required equitable relief sufficient to accomplish the maximum, practical desegregation within the power of the political body against which the Fourteenth Amendment directs its proscriptions. No "State" may deny any individual the equal protection of the laws; and if the Constitution and the Supremacy Clause are to have any substance at all, the courts must be free to devise workable remedies against the political entity with the effective power to determine local choice. It is also the case here that the State's legislative interdiction of Detroit's voluntary effort to desegregate its school system was unconstitutional. See North Carolina State Board of Education v. Swann, 402 U.S. 43 (1971).
The Court draws the remedial line at the Detroit school district boundary, even though the Fourteenth Amendment is addressed to the State and even though [p772] the State denies equal protection of the laws when its public agencies, acting in its behalf, invidiously discriminate. The State's default is "the condition that offends the Constitution," Swann v. Charlotte-Mecklenburg Board of Education, supra, at 16, and state officials may therefore be ordered to take the necessary measures to completely eliminate from the Detroit public schools "all vestiges of state-imposed segregation." Id. at 15. I cannot understand, nor does the majority satisfactorily explain, why a federal court may not order an appropriate inter-district remedy if this is necessary or more effective to accomplish this constitutionally mandated task. As the Court unanimously observed in Swann:
Once 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.
Ibid. In this case, both the right and the State's Fourteenth Amendment violation have concededly been fully established, and there is no acceptable reason for permitting the party responsible for the constitutional violation to contain the remedial powers of the federal court within administrative boundaries over which the transgressor itself has plenary power.
The unwavering decisions of this Court over the past 20 years support the assumption of the Court of Appeals that the District Court's remedial power does not cease at the school district line. The Court's first formulation of the remedial principles to be followed in disestablishing racially discriminatory school systems recognized the variety of problems arising from different local school conditions and the necessity for that "practical flexibility" traditionally associated with courts of equity. Brown v. Board of Education, 349 U.S. 294, 299-301 (1955) (Brown II). Indeed, the district courts to which [p773] the Brown cases were remanded for the formulation of remedial decrees were specifically instructed that they might consider, inter alia,
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. . . .
Id. at 300-301. The malady addressed in Brown II was the state-wide policy of requiring or permitting school segregation on the basis of race, while the record here concerns segregated schools only in the city of Detroit. The obligation to rectify the unlawful condition nevertheless rests on the State. The permissible revision of school districts contemplated in Brown II rested on the State's responsibility for desegregating its unlawfully segregated schools, not on any segregative effect which the condition of segregation in one school district might have had on the schools of a neighboring district. The same situation obtains here, and the same remedial power is available to the District Court.
Later cases reinforced the clearly essential rules that state officials are fully answerable for unlawfully caused conditions of school segregation which can effectively be controlled only by steps beyond the authority of local school districts to take, and that the equity power of the district courts includes the ability to order such measures implemented. When the highest officials of the State of Arkansas impeded a federal court order to desegregate the public schools under the immediate jurisdiction of the Little Rock School Board, this Court refused to accept the local board's assertion of its good faith as a legal excuse for delay in implementing the desegregation order. The Court emphasized that, "from the point of view of the Fourteenth Amendment, they [the local school board members] stand in this litigation as the agents of the State." Cooper v. Aaron, 358 U.S. 1, 16 (1958). Perhaps [p774] more importantly for present purposes, the Court went on to state:
The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties . . . can also be brought under control by state action.
Ibid. See also Griffin v. School Board, 377 U.S. 218, 228, 233-234 (1964).
In the context of dual school systems, the Court subsequently made clear the
affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch,
and to come forward with a desegregation plan that "promises realistically to work now." Green v. County School Board of New Kent County, 391 U.S. 430, 437-438, 439 (1968). "Freedom of choice" plans were rejected as acceptable desegregation measures where "reasonably available other ways . . . promising speedier and more effective conversion to a unitary, nonracial school system . . ." exist. Id. at 441. Imperative insistence on immediate full desegregation of dual school systems "to operate now and hereafter only unitary schools" was reiterated in Alexander v. Holmes County Board of Education, 396 U.S. 19, 20 (1969), and Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970).
The breadth of the equitable authority of the district courts to accomplish these comprehensive tasks was reaffirmed in much greater detail in Swann v. Charlotte-Mecklenburg Board of Education, supra, and the companion case of Davis v. School Comm'rs of Mobile County, 402 U.S. 33 (1971), where there was unanimous assent to the following propositions:
Having once found a violation, the district judge or school authorities should make every effort to [p775] achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones. . . . The measure of any desegregation plan is its effectiveness.
Id. at 37. No suggestion was made that inter-district relief was not an available technique. In Swann v. Charlotte-Mecklenburg Board of Education itself, the Court, without dissent, recognized that the District Judge, in fulfilling his obligation to
make every effort to achieve the greatest possible degree of actual desegregation[,] will thus necessarily be concerned with the elimination of one-race schools.
402 U.S. at 26. Nor was there any dispute that, to break up the dual school system, it was within the District Court's "broad remedial powers" to employ a "frank -- and sometimes drastic -- gerrymandering of school districts and attendance zones," as well as "pairing, ‘clustering,' or ‘grouping' of schools," to desegregate the "formerly all-Negro schools," despite the fact that these zones might not be compact or contiguous and might be "on opposite ends of the city." Id. at 27. The school board in that case had jurisdiction over a 550-square-mile area encompassing the city of Charlotte and surrounding Mecklenburg County, North Carolina. The Mobile County, Alabama, board in Davis embraced a 1,248-square-mile area, including the city of Mobile. Yet the Court approved the District Court's authority to award county-wide relief in each case in order to accomplish desegregation of the dual school system.
Even more recently, the Court specifically rejected the claim that a new school district, which admittedly would operate a unitary school system within its borders, was beyond the reach of a court-ordered desegregation plan [p776] for other school districts, where the effectiveness of the plan as to the other districts depended upon the availability of the facilities and student population of the new district. In Wright v. Council of the City of Emporia, 407 U.S. 451, 470 (1972), we held "that a new school district may not be created where its effect would be to impede the process of dismantling a dual system." MR. JUSTICE STEWART's opinion for the Court made clear that, if a proposal to erect new district boundary lines
would impede the dismantling of the [preexisting] dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out.
Id. at 460. In United States v. Scotland Neck Board of Education, 407 U.S. 484 (1972), this same standard was applied to forbid North Carolina from creating a new city school district within a larger district which was in the process of dismantling a dual school system. The Court noted that, if establishment of the new district were permitted, the "traditional racial identities of the schools in the area would be maintained," id. at 490
Until today, the permissible contours of the equitable authority of the district courts to remedy the unlawful establishment of a dual school system have been extensive, adaptable, and fully responsive to the ultimate goal of achieving "the greatest possible degree of actual desegregation." There are indeed limitations on the equity powers of the federal judiciary, but, until now, the Court has not accepted the proposition that effective enforcement of the Fourteenth Amendment could be limited by political or administrative boundary lines demarcated by the very State responsible for the constitutional violation and for the disestablishment of the dual system. Until now, the Court has instead looked to practical considerations in effectuating a desegregation [p777] decree such as excessive distance, transportation time, and hazards to the safety of the schoolchildren involved in a proposed plan. That these broad principles have developed in the context of dual school systems compelled or authorized by state statute at the time of Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), does not lessen their current applicability to dual systems found to exist in other contexts, like that, in Detroit, where intentional school segregation does not stem from the compulsion of state law, but from deliberate individual actions of local and state school authorities directed at a particular school system. The majority properly does not suggest that the duty to eradicate completely the resulting dual system in the latter context is any less than in the former. But its reason for incapacitating the remedial authority of the federal judiciary in the presence of school district perimeters in the latter context is not readily apparent.
The result reached by the Court certainly cannot be supported by the theory that the configuration of local governmental units is immune from alteration when necessary to redress constitutional violations. In addition to the well established principles already noted, the Court has elsewhere required the public bodies of a State to restructure the State's political subdivisions to remedy infringements of the constitutional rights of certain members of its populace, notably in the reapportionment cases. In Reynolds v. Sims, 377 U.S. 533 (1964), for example, which held that equal protection of the laws demands that the seats in both houses of a bicameral state legislature be apportioned on a population basis, thus necessitating wholesale revision of Alabama's voting districts, the Court remarked:
Political subdivisions of States -- counties, cities, or whatever -- never were and never have been considered [p778] as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.
Id. at 575. And even more pointedly, the Court declared in Gomillion v. Lightfoot, 364 U.S. 339, 344-345 (1960), that
[l]egislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution.
Nor does the Court's conclusion follow from the talismanic invocation of the desirability of local control over education. Local autonomy over school affairs, in the sense of the community's participation in the decisions affecting the education of its children, is, of course, an important interest. But presently constituted school district lines do not delimit fixed and unchangeable areas of a local educational community. If restructuring is required to meet constitutional requirements, local authority may simply be redefined in terms of whatever configuration is adopted, with the parents of the children attending schools in the newly demarcated district or attendance zone continuing their participation in the policy management of the schools with which they are concerned most directly. The majority's suggestion that judges should not attempt to grapple with the administrative problems attendant on a reorganization of school attendance patterns is wholly without foundation. It is precisely this sort of task which the district courts have been properly exercising to vindicate the constitutional rights of Negro students since Brown I and which the Court has never suggested they lack the capacity to perform. Intra-district revisions of attendance zones, and pairing and grouping of schools, are techniques unanimously approved in Swann v. Charlotte-Mecklenburg [p779] Board of Education which entail the same sensitivity to the interest of parents in the education their children receive as would an inter-district plan which is likely to employ the very same methods. There is no reason to suppose that the District Court, which has not yet adopted a final plan of desegregation, would not be as capable of giving or as likely to give sufficient weight to the interest in community participation in schools in an inter-district setting, consistent with the dictates of the Fourteenth Amendment. The majority's assumption that the District Court would act otherwise is a radical departure from the practical flexibility previously left to the equity powers of the federal judiciary.
Finally, I remain wholly unpersuaded by the Court's assertion that
the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.
Ante at 746. In the first place, under this premise, the Court's judgment is itself infirm; for had the Detroit school system not followed an official policy of segregation throughout the 1950's and 1960's, Negroes and whites would have been going to school together. There would have been no, or at least not as many, recognizable Negro schools, and no, or at least not as many, white schools, but "just schools," and neither Negroes nor whites would have suffered from the effects of segregated education, with all its shortcomings. Surely the Court's remedy will not restore to the Negro community, stigmatized as it was by the dual school system, what it would have enjoyed over all or most of this period if the remedy is confined to present day Detroit; for the maximum remedy available within that area will leave many of the schools almost totally black, and the system itself will be predominantly black, and will become increasingly so. Moreover, when a State has engaged in acts of official segregation over a lengthy [p780] period of time, as in the case before us, it is unrealistic to suppose that the children who were victims of the State's unconstitutional conduct could now be provided the benefits of which they were wrongfully deprived. Nor can the benefits which accrue to school systems in which schoolchildren have not been officially segregated, and to the communities supporting such school systems, be fully and immediately restored after a substantial period of unlawful segregation. The education of children of different races in a desegregated environment has unhappily been lost, along with the social, economic, and political advantages which accompany a desegregated school system as compared with an unconstitutionally segregated system. It is for these reasons that the Court has consistently followed the course of requiring the effects of past official segregation to be eliminated "root and branch" by imposing, in the present, the duty to provide a remedy which will achieve "the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." It is also for these reasons that, once a constitutional violation has been found, the district judge obligated to provide such a remedy "will thus necessarily be concerned with the elimination of one-race schools." These concerns were properly taken into account by the District Judge in this case. Confining the remedy to the boundaries of the Detroit district is quite unrelated either to the goal of achieving maximum desegregation or to those intensely practical considerations, such as the extent and expense of transportation, that have imposed limits on remedies in cases such as this. The Court's remedy, in the end, is essentially arbitrary and will leave serious violations of the Constitution substantially unremedied.
I agree with my Brother Douglas that the Court of Appeals has acted responsibly in these cases. Regrettably, [p781] the majority's arbitrary limitation on the equitable power of federal district courts, based on the invisible borders of local school districts, is unrelated to the State's responsibility for remedying the constitutional wrongs visited upon the Negro schoolchildren of Detroit. It is oblivious to the potential benefits of metropolitan relief, to the noneducational communities of interest among neighborhoods located in and sometimes bridging different school districts, and to the considerable inter-district cooperation already existing in various educational areas. Ultimately, it is unresponsive to the goal of attaining the utmost actual desegregation consistent with restraints of practicability, and thus augurs the frequent frustration of the remedial powers of the federal courts.
Here, the District Court will be forced to impose an intra-city desegregation plan more expensive to the district, more burdensome for many of Detroit's Negro students, and surely more conducive to white flight than a metropolitan plan would be -- all of this merely to avoid what the Detroit School Board, the District Court, and the en banc Court of Appeals considered to be the very manageable and quite surmountable difficulties that would be involved in extending the desegregation remedy to the suburban school districts.
I am therefore constrained to record my disagreement and dissent.
1. The percentage of Negro pupils in the Detroit student population rose to 64.9% in 1971, to 67.3% in 1972, and to 69.8% in 1973, amid a metropolitan school population whose racial composition in 1970 was 81% white and 19% Negro. 5 App. 16; Racial-Ethnic Distribution of Students and Employees in the Detroit Public Schools, October 1972, and October 1973; 484 F.2d 215, 250.
2. The District Court's ruling on the Detroit-only desegregation plans is set out in full by the Court of Appeals, id. at 242-245, and is not otherwise officially reported.
3. The Court has previously disapproved the implementation of proposed desegregation plans which operate to permit resegregation. Monroe v. Board of Comm'r, 391 U.S. 450, 459-460 (1968) ("free transfer" plan).
4. The Court of Appeals also noted several specific instances of school district mergers ordered by the State Board of Education for financial reasons. 484 F.2d at 247. Limitations on the authority, of local school districts were also outlined by the Court of Appeals:
Local school districts, unless they have the approval of the State Board of Education or the Superintendent of Public Instruction, cannot consolidate with another school district, annex territory, divide or attach parts of other districts, borrow monies in anticipation of State aid, or construct, reconstruct or remodel school buildings or additions to them.
Id. at 249. (Footnotes and supporting statutory citations omitted.) And the Court of Appeals properly considered the State's statutory attempt to undo the adoption of a voluntary high school desegregation plan by the Detroit Board of Education as evidencing state control over local school district affairs. Ibid. Finally, it is also relevant to note that the District Court found that the school district boundaries in that segment of the metropolitan area preliminarily designated as the desegregation area "in general bear no relationship to other municipal, county, or special district governments, needs or services," that some educational services are already provided to students on an inter-district basis requiring their travel from one district to another, and that local communities in the metropolitan area share noneducational interests in common, which do not adhere to school district lines, and have applied metropolitan solutions to other governmental needs. 345 F.Supp. 914, 934-935 (ED Mich.1972).
5. These included the creation and alteration of attendance zones and feeder patterns from the elementary to the secondary schools in a manner naturally and predictably perpetuating racial segregation of students, the transportation of Negro students beyond predominantly white schools with available space to predominantly Negro schools, the use of optional attendance areas in neighborhoods in which Negro families had recently begun to settle to permit white students to transfer to predominantly white schools nearer the city limits, and the construction of schools in the heart of residentially segregated areas, thereby maximizing school segregation.