Bradley v. Milliken

• Decision Date: 13 October 1970
• Docket Number: No. 20794.,20794.
• Citation: 433 F.2d 897
• Parties: Ronald BRADLEY et al., Plaintiffs-Appellants, v. William G. MILLIKEN, Governor of Michigan, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

433 F.2d 897 (1970)

Ronald BRADLEY et al., Plaintiffs-Appellants, v. William G. MILLIKEN, Governor of Michigan, et al., Defendants-Appellees.

No. 20794.

United States Court of Appeals, Sixth Circuit.

October 13, 1970.

Louis R. Lucas, Memphis, Tenn., and Paul Dimond, Center of Law and Education, Harvard University, Cambridge, Mass., William E. Caldwell, Ratner, Sugarmon & Lucas, Memphis, Tenn., Nathaniel Jones, General Counsel, N. A. A. C. P., New York City, Bruce Miller and Lucille Watts, Detroit, Mich., for Legal Redress Committee, N. A. A. C. P., Detroit Branch, on the brief; J. Harold Flannery, Cambridge, Mass., of counsel, for appellants.

Eugene Krasicky, Lansing, Mich., and George E. Bushnell, Jr., Detroit, Mich., for appellees.

Frank J. Kelley, Atty. Gen., Eugene Krasicky, Asst. Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., on the brief, for William G. Milliken, Frank J. Kelley and John W. Porter.

Miller, Canfield, Paddock and Stone, by George E. Bushnell, Jr. and Carl H. von Ende, Detroit, Mich., on the brief for Board of Education, Patrick McDonald, James Hathaway and Cornelius Golightly and Norman Drachler.

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

PHILLIPS, Chief Judge.

This case involves an effort by the Detroit Board of Education, as constituted on April 7, 1970, to effect a more balanced ratio of Negro and white students in twelve senior high schools. This effort was thwarted by an Act of the Michigan Legislature, Act No. 48, effective July 7, 1970, a copy of which is made an appendix to this opinion.

The appeal is under 28 U.S.C. § 1292 (a) from the interlocutory order of the District Court entered September 3, 1970, which, among other things, refused to grant a preliminary injunction.

The plaintiffs are pupils and parents of pupils who attend the Detroit Public Schools, and the Detroit Branch of the National Association for the Advancement of Colored People. The defendants are the Governor of Michigan, the Attorney General of Michigan, the Acting State Superintendent of Public Instruction, the State Board of Education, the Board of Education of the City of Detroit, three members of the latter board,¹ and the Superintendent of the Detroit Public Schools.

On April 7, 1970, the Detroit Board of Education adopted a plan which provided for changes in twelve high school attendance zones, designed to effect a more balanced ratio of Negro and white students at the senior high school level. The plan was applicable to twelve of the twenty-one high schools in Detroit that serve particular neighborhood or geographical areas. The April 7 plan was to take effect over a three-year period, applying initially to those students entering the tenth grade in September 1970 at the beginning of 1970-71 school year. In successive stages the eleventh grade was to have been affected at the opening of the 1971-72 school year, and the twelfth grade at the beginning of the 1972-73 school year.

Dr. Norman Drachler, the Superintendent of the Detroit Public Schools, testified that the plan was adopted after an extended study. He described the purpose of the plan as follows:

"Q What was the purpose of the plan as adopted?

"A The purpose of the plan was, in addition to complying with the regulations of the State Act 244, to bring about a decentralized school system within the city which would allow for the election of regional boards which would bring about greater participation at the local level by the community. That it would undoubtedly, in the opinion of most of us, add towards the improvement of quality education, quality integrated education insofar as possible.

"The Board of Education has, as long as I can recall, always accepted the premise that the task of improving education is a very complex one in a large city, but they have consistently held to the premise that wherever possible, wherever reasonably we can bring about integration in the process of developing our educational program, that this would enhance the opportunity of all children, black and white, both in terms of their educational achievement as well as their potential as responsible citizens in a democracy.

"So in this plan the Board saw an opportunity, the majority, that we could at the high school level in some twelve high schools bring about over a three-year period a certain amount of integration although it involved only the movement of some ten to twelve thousand children over the three-year period, nevertheless, that is, the transfer of 12,000 children in three years — nevertheless these children were in twelve schools which involved about 35,000 students, which is over 50 per cent of our total high school enrollment.

"We have certain high schools that are already integrated. Thus, we saw this as a step not only toward achieving a goal of the decentralization act but also the broader goal which the Board has always had of quality integrated education."

The Board of Education adopted the plan by a vote of four to two, with one member absent because of illness. This seventh member, who is represented to have favored the plan but was unable to vote, has since died and his vacancy has been filled.

At the time the April 7 plan was adopted, Dr. Drachler, the Superintendent of Public Schools, issued the following statement:

"As an educator I support the proposed plan because I believe that it is educationally, morally and according to our attorney legally sound. Most of the research and scholarship, both by blacks and whites that I respect, supports the view that integration, racial, religious and economic, has a positive effect on the learning of all children in a pluralistic society. As a student of American educational history I recognize that the above goal has been the dream of our nation for over a century. Local, state and national polls assert that the majority of our people concur with the desirability of integration and believe that eventually it will be a reality in our nation.

"Let us, therefore, have a plan for self renewal of our schools and our community rather than drift in the climate of uncertainty, fear and frustration. I recognize that our primary objective as teachers is quality education but to repeat, the majority of accepted research and scholarship asserts that quality education in a heterogeneous society such as ours can not be attained to its fullest measure without integration. It is essential for white and black, for poor and rich.

"This plan directly affects only our high school students. Without it each constellation will continue a growing pattern of segregated racial or economic enclaves and be concerned only with the educational welfare of its own immediate area. This proposal, however, encourages a broader community concern for educational improvement and assures greater interest and support for quality education for tens of thousands of children wherever they attend school.

"Since as a people we concur with the necessity for eliminating religious, racial and economic barriers, let us, therefore, begin with a plan, however limited it is, let us begin where we are and move forward.

"America has been willing to deprive itself of billions of dollars to travel 250,000 miles in space to reach the moon, I am confident Detroiters will be willing to accept the idea of traveling one or two additional miles to school for the sake of a better education for our young people and for a better future for our city."

The plan was approved by the Michigan Association for Supervision and Curriculum Development by the following resolution:

"Whereas racial integration is legally, morally and scientifically right, and Whereas, the President of the United States has stated that `quality is what education is all about\' desegregation is vital to that quality, and, Whereas, the Board of Education of the Detroit Public Schools has approved a plan for high school students which effectively increases racial integration, therefore, Be It Resolved, that the Michigan Association for Supervision and Curriculum Development recognizes, endorses and vigorously supports this long needed and forward step for the future of America."

The plan was endorsed by other national and local agencies and organizations, including the United States Office of Education, the defendant Michigan State Board of Education and the Michigan Civil Rights Commission.

Following adoption of the plan on April 7, 1970, Detroit School officials began to prepare procedures to carry it into effect at the beginning of the 1970-71 school year.

The Michigan Legislature enacted, and on July 7, 1970, the Governor of Michigan signed into law, Act No. 48, Public Acts of 1970.

Section 12 of this Act is as follows:

"Sec. 12. The implementation of any attendance provisions for the 1970-71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school district boards established under the provisions of this amendatory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. In reviewing, confirming, establishing or modifying attendance provisions the first class school district boards established under the provisions of this amendatory act shall have a policy of open enrollment and shall enable students to attend a school of preference but providing priority acceptance, insofar as practicable, in cases of insufficient school capacity, to those students residing nearest the school and to those students desiring to attend the school for participation in vocationally oriented courses or other specialized curriculum."

By its terms this statute applies only to "first class school districts." The Detroit School system is the only "first class school district" in Michigan. Although on its face the statute is a...