540 F.2d 229 (6th Cir. 1976), 75-2018, Bradley v. Milliken

Docket Nº:75-2018, 75-2295, 75-2296, 75-2443, 76-1635, 76-1678.
Citation:540 F.2d 229
Party Name:Ronald BRADLEY et al., Plaintiffs-Appellants, v. William G. MILLIKEN, Governor of Michigan, et al., Defendants-Appellees andCross-Appellants, Board of Education of the City of Detroit, Defendants-Appellees and Cross-Appellants, Detroit Federation of Teachers, Intervening Defendant and Cross-Appellant.
Case Date:August 04, 1976
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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540 F.2d 229 (6th Cir. 1976)

Ronald BRADLEY et al., Plaintiffs-Appellants,

v.

William G. MILLIKEN, Governor of Michigan, et al.,

Defendants-Appellees andCross-Appellants,

Board of Education of the City of Detroit,

Defendants-Appellees and Cross-Appellants,

Detroit Federation of Teachers, Intervening Defendant and

Cross-Appellant.

Nos. 75-2018, 75-2295, 75-2296, 75-2443, 76-1635, 76-1678.

United States Court of Appeals, Sixth Circuit

August 4, 1976

Argued June 15, 1976.

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Louis R. Lucas, Ratner, Sugarmon, Lucas & Salky, Memphis, Tenn., Thomas I. Atkins, Boston, Mass., John A. Dziamba, Williamantic, Conn., Nathaniel R. Jones, Gen. Counsel, NAACP, New York City, Elliot S. Hall, Detroit, Mich., Rose Mary C. Robinson, Sol Plafkin, Detroit, Mich. (for Leah Maddox and others), J. Harold Flannery, Paul R. Dimond, William E. Caldwell, Washington, D. C., for appellants in No. 75-2018.

Frank J. Kelley, Atty. Gen. of Mich., Gerald F. Young, Lansing, Mich., Charles E. Keller, Keller, Thoma, McManus, Toppin & Schwarze, Detroit, Mich., for Northville Public Schools and others.

John T. Shantz, Dell, Shantz, Booker & Schulte, Royal Oak, Mich., for Clarenceville School Dist. and others.

Donald J. Miller, Helm, Schumann & Miller, Detroit, Mich., for Huron School Dist.

John Wm. Thomas, Thomas & Delaney, Flint, Mich., for Holly Area Schools.

Douglas H. West, Hill, Lewis, Adams, Goodrich & Tait, Detroit, Mich., for Grosse Pointe Public Schools.

Kenneth McConnell, Hartman, Beier, Howlett, McConnell & Googasion, Bloomfield Hills, Mich., for School Dist. City Royal Oak.

William M. Saxton, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for Farmington Public Schools.

Raymond G. Glime, Glime, Daoust & Wilds, Mount Clemens, Mich., for Fraser Public Schools and Clintondale Romeo Community School.

Kenneth E. Scherer, Daner, Freeman, McKenzie & Matthews, Mount Clemens, Mich., for Utica Community School Anchor Bay.

William Ross, Ross, Bruff & Henriksen, Mount Clemens, Mich., for Personnel of Van Dyke.

Robert J. Lord, Fair Haven, Mich., for Kerry Green and others.

George Roumell, Jr., Riley & Roumell, Detroit, Mich., for Allison Green.

Jane Keller Souris, Thomas M. J. Hathaway, John F. Brady, Samuel E. McCargo, Theodore Sachs, Detroit, Mich., for Detroit Federation of Teachers.

Noel A. Gage, Mark E. Reizen, Gage, Brukoff, Dubin & Siudara, Southfield, Mich., for Latin Amer. for Social etc.

James K. Robinson, Detroit, Mich., for Coleman A. Young.

Theodore Sachs, Marston, Sachs, O'Connell, Nunn & Freid, Detroit, Mich., for appellants in No. 75-2295.

Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Gerald F. Young, George L. McCargar, Lansing, Mich., Louis R. Lucas,

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Memphis, Tenn., Thomas I. Atkins, Boston, Mass., John A. Dziamba, Williamantic, Conn., Nathaniel R. Jones, Gen. Counsel, NAACP, New York City, for appellees in Nos. 75-2295, 75-2296 and 75-2443.

George T. Roumell, Jr., Detroit, Mich., for appellee Detroit Board.

George T. Roumell, Jr., Riley & Roumell, Detroit, Mich., for appellants in Nos. 75-2296, 75-2443.

Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Gerald F. Young, George L. McCargar, Lansing, Mich., for appellants in No. 76-1635.

Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., Thomas I. Atkins, Boston, Mass., John A. Diziamba, Williamantic, Conn., George T. Roumell, Jr., Riley & Roumell, Detroit, Mich., for appellees in No. 76-1635.

George T. Roumell, Jr., Riley & Roumell, Jane Keller Souris, Thomas M. J. Hathaway, Detroit, Mich., for appellant in No. 76-1678.

Louis R. Lucas, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., Frank J. Kelley, Atty. Gen. of Mich., Gerald F. Young, Lansing, Mich., Theodore Sachs, Marston, Sachs, O'Connell, Nunn & Freid, Detroit, Mich., Nathaniel R. Jones, Gen. Counsel, NAACP, New York City, Thomas I. Atkins, Boston, Mass., for appellees in No. 76-1678.

Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.

PHILLIPS, Chief Judge.

When this school desegregation case was filed in August 1970, Ronald Bradley, one of the black plaintiffs, had been assigned to enter the kindergarten of a Detroit school whose enrollment was 97 per cent black. There have been numerous court proceedings since that time, culminating in the opinion of the Supreme Court in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), reversing the en banc decision of this court reported at 484 F.2d 215 (1973). The Supreme Court remanded with directions for "prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970." 418 U.S. at 753, 94 S.Ct. at 3131.

This court now reviews appeals and cross-appeals from various orders and decisions of the District Court, two of which are reported at 402 F.Supp. 1096 (1975) and 411 F.Supp. 943 (1975).

In September 1976 Ronald Bradley is scheduled to enter the sixth grade of the Clinton School, which now is more than 99 per cent black. 1 The decisions of the District Court which we now review do nothing to correct the racial composition of the Clinton School. They grant no relief to Ronald Bradley nor to the majority of the class of black students he represents.

Nevertheless, this court finds itself in the frustrating position of having to leave standing the results reached by the District Judge on the issue of assignment of students, although we disagree with parts of his opinions and orders. Our affirmance is found to be necessary for the simple reason that reversal would be an exercise in futility under the situation now existing in the Detroit school system and the law of this case as established by the Supreme Court in Milliken v. Bradley.

Other questions raised by the appeals of various parties will be discussed later in this opinion.

I. Prior Findings as to Constitutional Violations

This litigation had its genesis under modest circumstances. On April 7, 1970, before the filing of any suit, the Detroit Board of Education on its own initiative adopted a plan to effect a more balanced distribution of black and white students in 12 of the 21 Detroit high schools. The April 7 plan was to take effect over a three-year period, applying initially to those students entering

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the tenth grade in September, 1970. In the eleventh grade the plan was to have been effected at the opening of the 1971-72 school year and the twelfth grade at the beginning of the 1972-73 school year. The plan was designed to reduce segregation in a school system that then was 63.6 percent black.

On July 7, 1970, however, the Governor of Michigan signed into law Act No. 48, Public Acts of 1970. Section 12 of this Act had the effect of delaying and ultimately blocking the implementation of Detroit's April 7 plan. The four members of the Detroit Board of Education who supported the April 7 plan were removed from office through a recall election. Four new members were appointed by the Governor of Michigan. These four members, together with the incumbent members, who had opposed the April 7 plan from its inception, thereafter rescinded it.

The complaint in the present case was filed August 18, 1970. Among other things, the complaint prayed for a preliminary injunction requiring defendants to put into effect the plan adopted by the Detroit Board of Education on April 7 and restraining the defendants from giving any force or effect to § 12 of Act 48 insofar as it would inhibit immediate implementation of the April 7 plan. On September 3, 1970, the late District Judge Stephen J. Roth denied plaintiffs' application for a preliminary injunction. Plaintiffs immediately filed a notice of appeal and a motion in this case for injunction pending appeal.

On September 8, 1970, the day of the opening of the 1970-71 Detroit school term, the Chief Judge of the Sixth Circuit heard oral arguments on the application for an injunction to place the April 7 plan in effect pending appeal. The Chief Judge entered an order denying the application for injunction pending appeal and advanced the case on the docket of this court for argument on its merits. In an opinion announced October 13, 1970, reported at 6 Cir., 433 F.2d 897, this court held § 12 of Michigan Act 48 to be unconstitutional, ruled that the District Court did not abuse its discretion in denying the preliminary injunction and remanded the case for a trial on the merits. On remand, the District Court again refused to put the April 7 plan into effect. The plaintiffs moved for summary reversal or injunction pending appeal. In an opinion reported at 6 Cir., 438 F.2d 945 (1971), this court again remanded the case to the District Court for a hearing on the merits.

After extensive hearings, Judge Roth found as a fact that de jure segregation existed in the Detroit public schools. D.C., 338 F.Supp. 582 (1971). Included in his findings of fact were the following:

(W)e find that both the State of Michigan and the Detroit Board of Education have committed acts which have been causal factors in the segregated condition of the public schools of the City of Detroit. 338 F.Supp. at 592.

This court held that the foregoing findings of fact by Judge Roth were not clearly erroneous, Fed.R.Civ.P. 52(a), but to the contrary were supported by ample evidence. We said:

The discriminatory practices on the part of the Detroit School Board and the State of Michigan revealed by this record are significant, pervasive and causally related to the substantial amount of segregation found in the...

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