Berry v. School Dist. of City of Benton Harbor

• Decision Date: 15 December 1978
• Docket Number: No. C.A. 9.,C.A. 9.
• Parties: Barbara Jean BERRY et al., Plaintiffs, v. SCHOOL DISTRICT OF the CITY OF BENTON HARBOR et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

467 F. Supp. 721

Barbara Jean BERRY et al., Plaintiffs, v. SCHOOL DISTRICT OF the CITY OF BENTON HARBOR et al., Defendants.

No. C.A. 9.

United States District Court, W. D. Michigan, S. D.

December 15, 1978.

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Louis R. Lucas, Elijah Noel, Jr., Ratner, Sugarmon & Lucas, Memphis, Tenn., Thomas Atkins, Roxbury, Mass., John A. Dziamba, Willimantic, Conn., Stuart J. Dunnings, Jr., Dunnings & Gibson, Lansing, Mich., Nathaniel R. Jones, Gen. Counsel, NAACP Special Contribution Fund, New York City, for plaintiffs.

John D. Tully, Warner, Norcross & Judd, Grand Rapids, Mich., Roccy M. DeFrancesco, Adams & DeFrancesco, St. Joseph, Mich., for Benton Harbor School Bd.

John L. Crow, Francis A. Jones, Hartwig, Crow, Jones & Postelli, St. Joseph, Mich., for Eau Clair School Dist.

George L. McCargar, Jr., Asst. Atty. Gen., Lansing, Mich., for State of Mich.

E. Michael Stafford, Farhat, Burns & Story, Lansing, Mich., for Coloma School Dist.

Lee Boothby, Boothby & Huff, Berrien Springs, Mich., for Sodus Tp./Fellner Group.

Andrew J. Burch, Coloma, Mich., for intervening defendants Baldwin and Concerned Parents of Hagar Tp. School Dist. No. 4.

Thomas J. Nordberg, Lansing, Mich., for Berrien County Intermediate School Dist.

FOX, Chief Judge.

PREFACE

A

Statements made during the Michigan Constitutional Convention of 1961 indicate that the drafters were fully aware of the Supreme Court's school desegregation decisions. The committee which proposed Article VIII, section 2 made the following statement in its support:

The anti-discrimination clause is placed in this section with the full knowledge that some may say it is unnecessary because of the rights established in our federal constitution and United States supreme court decisions.

The committee feels this concept is so important to the preservation of our democracy that it wishes to leave no doubt as to where Michigan stands on this question. (Emphasis supplied.)

Official Minutes, Michigan Constitutional Convention of 1961, at 762-763.

B

guidelines for providing integrated education within school districts

June, 1977

If Michigan is to achieve equal education opportunity, each arm of the educational community — educational agencies and their governing boards, teachers and support staff, parents, students, and citizens in the community, along with each unit of the Michigan Department of Education — must act with commitment and dedication as one body.

C

In part because of segregated schools, as Charles E. Silberman has written:

"The public schools are failing dismally in what has always been regarded as one of their primary tasks — in Horace Mann's phrase, to be `the great equalizer of the conditions of men,' facilitating the movement of the poor and disadvantaged into the mainstream of American economic and social life. Far from being `the great equalizer,' the schools help perpetuate the differences in conditions, or at the very least, do little to reduce them. If the United States is to become a truly just and humane society, the schools will have to do an incomparably better job than they are now doing of educating youngsters from minority-group and lower-class homes." (Emphasis supplied.)

Berry v. School District of City of Benton Harbor, 442 F.Supp. 1280, 1289-1290 (W.D. Mich.1977).

D

Thomas Jefferson saw clearly the moral danger of the slavery institution:

"`The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it. * * * The man must be a prodigy who can retain his manners and morals undepraved by such circumstances. And with what execration should the statesman be loaded, who, permitting one half the citizens to trample on the rights of the other, transforming those into despots, and these into enemies, destroys the morals of one part, and the amor patriae of the other. * * * Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath? Indeed, I tremble for my country when I reflect that God is just; that His justice cannot sleep forever.'" (Emphasis supplied.)

Unfortunately, White attitudes originally attendant to the institution of slavery persisted after the adoption of the Thirteenth Amendment. Although legal slavery died, Americans created, during the four decades after the Civil War, a new legal and social pattern of discrimination based upon race. Many of these forms of institutionalized repression have persisted to the present, with the result that Black Americans are often denied the equality to which they are entitled in our constitutional democratic republic. Berry at 1288, quoting from Gunnar Myrdal's, An American Dilemma, at 530-531 (1944).

OPINION

I

In this court's opinion and order of November 9, 1978, 467 F.Supp. 695, defendants State Board of Education, Superintendent of Public Instruction, Berrien County Intermediate School District, and Berrien County Intermediate School Superintendent were ordered to participate in a survey of the school districts in Berrien County, Michigan. They have now petitioned this court for an order certifying this decision for an interlocutory appeal under 28 U.S.C. § 1292(b). For the reasons set forth below, defendants' motions are denied.

This is a school desegregation suit involving the schools in the area of Benton Harbor, Michigan. The facts of this case are fully set forth in this court's two earlier opinions in which liability was determined, and for this reason it is unnecessary to repeat these facts. It need only be said that in this court's first opinion (referred to as Phase I) this court ruled that the Benton Harbor Area School District had failed to rebut a prima facie case of school segregation which had been established against it in an earlier trial. Berry v. School District of the City of Benton Harbor, 442 F.Supp. 1280 (W.D.Mich.1977). In the second opinion (Phase II), this court found that defendants, the Governor of the State of Michigan, the Attorney General of the State of Michigan, the State Board of Education, Superintendent of Public Instruction, Berrien County Intermediate School District, and Berrien County Intermediate School Superintendent, had helped to create and/or perpetuate the unlawfully segregated conditions in the Benton Harbor Area School District. Berry v. School District of the City of Benton Harbor, C.A.9, 467 F.Supp. 630 (W.D.Mich. July 25, 1978). On August 7, 1978, an amended order was issued which required that defendants found liable in Phases I and II formulate a plan to remedy the constitutional violations found by this court. This amended order required that the following remedial acts be undertaken:

(4) The State Board of Education and its Superintendent have been entrusted with the leadership and general supervision of all public schools in Michigan. Mich. Const., art. VIII, § 3. This court has found, however, that they have failed as both leaders and supervisors for they failed to implement the Joint Policy Statement even though they were aware of the segregation which existed in Benton Harbor. Therefore, this court permanently enjoins the State Board of Education and its Superintendent from any further acts which would maintain, create, or facilitate the existence of racial segregation and discrimination in the public schools of Berrien County, including the granting of property transfers which have racially segregative impacts.

. . . . .

(11) The State Board of Education is required to affirmatively put into practice the educational policies of the State and of the Board, and foremost among these policies is the assurance that education be provided without discrimination. Mich. Const., art. VIII, § 2. The Berrien County Intermediate School District has similar duties as this court has found it to have an affirmative duty to offer its supervisory or consultant services to local districts in order to remedy discrimination and its effects.

In light of these affirmative duties to eradicate discrimination, this court orders the State Board of Education and the Berrien County Intermediate School District to undertake a detailed examination of all school districts in Berrien County, especially St. Joseph, Watervliet, River, and Riverside, to determine if discrimination has at any time existed in these districts, and if so, to determine if all vestiges of this discrimination have been eradicated. All findings will be released to this court as soon as they are ready.

Thereafter, the Attorney General, the State Board of Education, Superintendent of Public Instruction, Berrien County Intermediate District, and Superintendent of the Berrien County Intermediate District questioned these two paragraphs. The State and intermediate school districts claimed that this court had no jurisdiction to order the survey required by Paragraph 11; the State Board of Education also wondered if it would be in violation of Paragraph 4 if it made per pupil payments to school districts other than Benton Harbor for pupils these districts accept on a tuition basis who reside within the Benton Harbor Area School District.

In this court's opinion of November 9, 1978, I responded to these challenges and ruled that the ordering of the survey was within the court's broad remedial powers. Berry v. School District of the City of Benton Harbor, 467 F.Supp. 695, C.A.9 (W.D. Mich. November 9, 1978). In particular, I ruled that I had ordered defendants to do no more than that which is mandated by the Michigan Constitution, Michigan statutes, and defendants' own public policy statements. Id.; these were surveys that should have been undertaken years ago, throughout the state. Id. I also ruled that in...