Bradley v. Detroit Bd. of Ed.

• Decision Date: 08 June 1978
• Docket Number: Nos. 76-2311,76-2312,s. 76-2311
• Parties: Ronald BRADLEY et al., Plaintiffs, William G. Milliken, Frank J. Kelley, Allison Green and Perry Johnson, in their official capacities, Michigan Department of Corrections and Michigan Commission of Corrections, Defendants- Appellants, v. DETROIT BOARD OF EDUCATION, Defendant-Appellee. Ronald BRADLEY et al., Plaintiffs, The Salvation Army, Defendant-Appellant, v. DETROIT BOARD OF EDUCATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1032

577 F.2d 1032

Ronald BRADLEY et al., Plaintiffs,

William G. Milliken, Frank J. Kelley, Allison Green and

Perry Johnson, in their official capacities,

Michigan Department of Corrections and

Michigan Commission of

Corrections, Defendants- Appellants, v. DETROIT BOARD OF EDUCATION, Defendant-Appellee.

Ronald BRADLEY et al., Plaintiffs, The Salvation Army, Defendant-Appellant, v. DETROIT BOARD OF EDUCATION, Defendant-Appellee.

Nos. 76-2311, 76-2312.

United States Court of Appeals Sixth Circuit.

Argued Feb. 17, 1978.

Amended Opinion June 8, 1978.

Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Charles Hackney, Lansing, Mich., for defendants-appellants in No. 76-2311.

George T. Roumell, Jr., Jane K. Souris, John F. Brady, Samuel E. McCargo, Riley & Roumell, Detroit, Mich., for defendant-appellee in No. 76-2311.

Wilber M. Brucker, Jr., McInally, Rockwell, Brucker, Newcombe & Wilke, Wayne G. Wegner, Detroit, Mich., for defendant-appellant in No. 76-2312.

George T. Roumell, Jr., Jane K. Souris, John F. Brady, Samuel E. McCargo, Riley & Roumell, Detroit, Mich., Frank J. Kelley, Atty. Gen. of Mich., Charles D. Hackney, Lansing, Mich., for defendant-appellee in No. 76-2312.

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

JOHN W. PECK, Circuit Judge.

This matter, in the form of a school desegregation case, has over a protracted period of time been the subject of attention of the district court, this Court and of the Supreme Court. See 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 most recent decision of this Court is reported at 540 F.2d 229 (1976). The matter which is the subject of the present appeal, however, while having at its core issues arising out of the desegregation orders which have emanated from the earlier litigation, varies in form from that of the typical school desegregation proceeding. At its heart is a contract to sell real estate under circumstances and with a potential result which are alleged to be inimical to the desegregation of the Detroit School System.

The real estate involved is a parcel of land on which stands the Evangeline Residence which is owned by added defendant-appellant Salvation Army, and operated by it for a number of years as a resident facility for unmarried working women. A portion of the property located at the northeast corner of Henry Street and Second Avenue in the City of Detroit serves it as a parking area, the building itself being approximately 100 feet north from the intersection. Cass Technical High School, one of the twenty-one general high schools in the Detroit Public School System and a magnet school in the desegregation program, is situated in a multi-story building which occupies most of the block which is south of Henry Street and west of Second Avenue. The school itself is located one block south of the Evangeline Residence, which is directly across the street from the area owned by the school district and used for the school's playing fields, tennis courts and running tracks in connection with its athletic and physical education activities.

I

The difficulty giving rise to the present appeal developed when the Michigan Department of Corrections became aware of the availability of the Evangeline Residence and, following negotiations, a purchase contract was entered into and a proposed closing date of May 24, 1976, was agreed upon. The Salvation Army immediately proceeded to vacate the premises, which were in fact empty as of May 21, 1976.

The Department of Corrections contemplated using the 180 room Evangeline Residence in connection with its program of community corrections centers, generally referred to as "half-way houses." Residents in this system are approaching the earliest date upon which they could be granted parole, and usually are within six months of their earliest release dates when placed in a center, although those having assured employment may be assigned there as early as one year prior to the earliest release date. Applicants for participation in this voluntary program are carefully screened at several levels, and several categories, such as those having a history indicating a pattern of assaultive crimes, having had a previous association with organized criminal activities, having a history of predatory sex offenses, or having a history of dealing in drugs more extensively than occasional sporadic sales to support the seller's personal habit, are automatically excluded.

A typical public reaction to the corrections centers program is that it is a good one, "but don't put a half-way house in my neighborhood," and that in effect was the reaction of the defendant-appellee Detroit Board of Education to the idea of using the Evangeline Residence for that purpose. The Board filed its petition for an injunction and in due course the district court filed its Memorandum Opinion finding that the community perceptions of the intended corrections center's use of Evangeline Residence would substantially impede the plan to desegregate the Detroit School System and holding the State Agencies and the Salvation Army permanently enjoined from consummating the sale/purchase agreement and from converting the property to corrections center use.

In the course of amassing an extensive record prior to the issuance of the injunction, the district court heard a great deal of testimony concerning what it termed the "community perception" of the disastrous results to the Cass Technical High School of permitting the Evangeline Residence to become a half-way house. The principal thrust of this evidence was that the community perceived that students and school personnel would be the subjects of attack and molestation, and that this perception would cause parents to refuse to enroll their children as students there, and to remove those previously enrolled. In basing his entire conclusion squarely on this community perception theory, a phrase which has never been used by any other court in this context, the district judge specifically rejected as irrelevant the evidence tending to show that such perception was either totally unreasonable and founded on a total lack of factual basis, or was founded upon misunderstandings of fact. Thus in its opinion, the district court stated:

"The state defendants (Milliken et al.) argue that the fears expressed at the hearing by parents and students were not founded in fact and should be disregarded by the court. The state defendants presented testimony that, although the placement of a correctional institution in a community is always met with initial opposition, resistance soon subsides and the community learns that the presence of a half-way house has little or no effect upon the community. However, even if we were to credit this testimony completely, we do not find such evidence relevant to the issue before us. Whether the apprehensions or fears in the community are justified is irrelevant. The court is concerned with the response of the community and the action the community may take as a result of those fears. Cass is a city-wide high school; even were resistance in the immediate area to subside in time, parents and children residing in other areas of the city would still perceive Cass as an unsafe place to send their children. It is this perception, the reasonableness of which is completely irrelevant for our purposes, that forces us to conclude that the conversion of the Evangeline Home into a correctional institution would have a devastating effect upon Cass' ability to contribute to the desegregation effort and to continue offering quality desegregated education. That the fears are not founded in fact, which we do not concede, does not make it less likely that these fears will have an adverse impact upon Cass' ability to function as the principal magnet school. Cass has been, for the past several years, struggling to overcome other 'practicalities of the situation' found to exist in the city. The apprehensions expressed at the hearing, founded in reason or not, can precipitate reactions that make it difficult for Cass to successfully continue its participation in the desegregative effort." (Emphasis supplied.)

Referring to the State's offer of evidence tending to show that other community corrections centers operated by the Department of Corrections had not generated criminal activity in the immediate vicinity, the district judge observed:

". . . We do not agree that this evidence is relevant. It is not the impact of the correctional facility on the crime rate of an immediate area that we deem important; it is the community perception of its impact with which we are concerned. It is this community perception that will cause parents to react by withdrawing children from attendance, that will cause students to withdraw from attendance at Cass, decrease participation in the community relations program, and curtail the extracurricular activities. It is this very community perception of the impact, founded or unfounded in fact, that can bring about a devastating change in Cass' ability to fully participate in this Court's desegregation order." (Emphasis supplied.)

We do not perceive that a community perception, whether sound or unsound, or whether based on fact, myth, or misinformation, could or should provide the basis of a finding of fact or a conclusion of law to warrant injunctive relief here.

II

As earlier indicated, the record contains testimony of both black and white parents stating that if the Evangeline Residence became a half-way house they would not enroll or re-enroll their children in Cass Technical High School. On this record, the district court found that the "community perceptions" of a half-way house would seriously impair the ability of the Cass School to operate as a magnet school in the Detroit desegregation plan. The theory of the district court...