Milliken v. Bradley – Oral Argument – February 27, 1974 (Part 1)

Media for Milliken v. Bradley

Audio Transcription for Opinion Announcement – July 25, 1974 in Milliken v. Bradley
Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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Warren E. Burger:

We’ll hear arguments next in No. 73-434, 35, 36, Milliken against Bradley, Allen Park Schools against Bradley, and Grosse Pointe against Bradley.

Mr. Attorney General.

Frank J. Kelley:

Mr. Chief Justice Burger, may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the Sixth Circuit.

At the commencement of trial in this matter, the plaintiffs were a group of parents and children residing in Detroit and the joint plaintiff of the Detroit branch of the NAACP.

The defendants were the Detroit Board of Education, its superintendent of schools, and my clients in this case certain named state officials, the Governor, the Attorney General, the State Board of Education, the State Superintendent of Public Instruction later prior — later on, but prior to trial, intervenors, Mcdowsky and other group of parents and the Detroit Federation of Teachers were allowed to intervene as party defendants.

These were all of the parties throughout this action during the trial stage and the appellate proceedings.

Except towards the end of the remedy — the Court — the remedy hearings, the Court on its own motion added the State Treasurer for the State of Michigan, whom I also represent.

Now although the lower court’s decision and the Court of Appeals have made frequent and numerous references to the State of Michigan, the State of Michigan is not a party to the suit and it is not considered to be a party.

Frequent references are made to the legislature of Michigan.

The legislature of Michigan is not a party, nor any member thereof.

In their original complaint, the plaintiffs made three claims.

First, with the assignment of pupils within the Detroit public school system only was based upon race.

Second, that the assignment of personnel within the Detroit public schools only to some extent was based upon race.

And third, that Section 12 of the Public Acts of the Michigan Legislature 1970 Act 48 was unconstitutional because it interfered with the implementation of what’s — was known as the Detroit Board’s April 7th Plan.

This plan altered attendance areas for 12 of 21 of Detroit’s high schools involved at the most three or four thousand students and making up one-and-a-half percent of the Detroit student body.

Now, initially the plaintiffs sought a temporary injunction asking the District Court to implement the April 7th Plan.

This was denied by the District Court and affirmed by — by the Court of Appeals.

However, the Court of Appeals, one month after the commencement for the school year that year, declared Section 12 unconstitutional.

On remand, the District Court actually came up with a plan of school attendance variance called the McDonald magnet plan involving many more students, some 8000 students.

And the District Court never made any attempt to implement the April 7th Plan itself.

Toward the end of the trial, the District Court in our judgment became preoccupied with the majority black character of the Detroit school district.

Repeatedly, questions were asked by the Court, and I quote, “How do you integrate a school district where the student population is, let’s make a guess, 85% to 95% black?”

Another reference, “There aren’t enough white students to go around.”

At the time, and the record of the trial discloses that the predominance — the black majority of students in the city of Detroit was 63.8%.

The District Court ruled at the conclusion of a — a trial of 1 that went over 40 days that on the merits that de jure segregation existed among the school buildings within the city of Detroit, not between Detroit and the other school district.

The Court also found that the principle cause undeniably had been population movements and housing patterns quoting the Court again, “No faculty segregation was found, no acts of de jure segregation with regard to the assignment of faculty was found.”

The Court then ordered intradistrict plans and multidistrict plans to be submitted.

We appealed at that point feeling that there was absolutely no basis on the trial record for the Court to entertain a multidistrict remedy, we did not prevail.

After the hearings on the intradistrict plans commenced, the Court allowed for the first time, 43 suburban school districts to intervene.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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Frank J. Kelley:

However, their intervention was limited.

After hearings on a multidistrict plan commenced, the Court issued its order rejecting any intradistrict plan.

Without stating in its order whether or not a unitary system could be found in the city of Detroit meaning a system whereby no child in that district would be excluded from a school because of race.

On June the 14th, 1972, the trial court ordered a desegregation plan, including 53 school districts involving 780,000 students and requiring at least 310,000 of them to be bused daily in the school days.

So that each school, each grade, and each classroom would reflect the racial makeup of the entire 53 school district area.The Court also ordered a 10% black faculty in each school, although in the trial court no evidence was found of any segregatory acts with regard to assignment of school personnel for Detroit at all the principal case.

Thurgood Marshall:

Mr. Attorney General, did you say the judge ordered busing?

Frank J. Kelley:

He ordered — he ordered a desegregation plan.

Thurgood Marshall:

Did he order busing?

Frank J. Kelley:

Later on, yes.

On July the 11th, he ordered to State of Michigan to buy 295 buses.

Thurgood Marshall:

Where is that?

Frank J. Kelley:

That is covered in our appendix for petition for writ of certiorari 106 and 107 — page 106 and 107.

He ordered my clients the forenamed defendants to bear the cost of 295 school buses.

Now, the Court of Appeals in substance affirmed the District Court.

Although the case was remanded for joinder of all the school districts affected by the remedy, you will recall that 43 were joined, but the remedy recommendation was 53.

They were not before the Court.

And now, more than three years after the complaint was filed, and two years after the completion of the Court’s decision, first in their amended complaint and not at this Court, the plaintiffs represented this case as one of intentional confinement of black children to an expanding core of state-imposed black schools within a three-county area.

They made no such complaint in their — they made no such allegation in their original complaint.

They made no such claim during the entire course of the trial.

They made no such claim in the Court of Appeals.

On September the 4th, 1973, the plaintiffs filed an amended bill of complaint.

And in that amended bill of complaint, they did not allege that the school boundaries have been created, ordered, or manipulated in any of the areas for the purpose of segregation nor did they allege with the exclusion Detroit that any other school district had committed any acts of de jure segregation.

William H. Rehnquist:

Do you have a handy reference to the amended complaint in the — in the appendix?

If — if not, go — go ahead.

Frank J. Kelley:

Thank you, Judge — Justice Rehnquist.

It is the position of plaintiffs that what — of the defendants and appellates that what this case is about, as the distinguished from what the plaintiffs now say this case is about is of critical importance.

We feel that this is a classic case of a remedy in search of a violation.

This case was pleaded and tried and decided by the District Court on the theory of a single school district violation.

The District Court made it abundantly clear, and I quote from the trial record when it said, “This lawsuit is limited to the city of Detroit and school system.

So that we are only concerned with the city itself, and we are not talking about the metropolitan area.”

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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Frank J. Kelley:

However, the District Court of the remedy stage candidly revealed what we feel as a self-assumed role to pursue a social goal.

Quoting the Court, “The task that we are called upon to perform is a social one, which the society has been unable to accomplish, to attain a social goal through the education system by using the law as a lever.”

Warren E. Burger:

What’s your appendix reference on that?

Frank J. Kelley:

That Your Honor, is our Joint Appendix for the petition for — our petition for — our appendix for petition for writ of certiorari page 40 and 41.

Thurgood Marshall:

Mr. Attorney General, I have trouble with this appendix, each Volume goes just a hundred and some pages, and I’ve been unable to find this.

Frank J. Kelley:

Well that’s — the appendix I referred to is — we have filed a separate appendix, Your Honor as to our petition for writ of certiorari, —

Thurgood Marshall:

Right.

Frank J. Kelley:

Separate from the five volume appendix.

Thurgood Marshall:

Right.

Right.

Frank J. Kelley:

The District Court then acknowledged in its ruling on the metropolitan desegregation area and quoting the Court again that, “The Court has taken no proofs with respect to the establishment of boundaries of the 86 school districts in the counties of Wayne, Oakland, and Macomb, nor on the issue of whether with the exclusion of the city of Detroit, such school districts have committed acts of de jure segregation.”

Now, all of this is important, we submit when we consider the nature of the violation found by the District Court and the proofs rely to support that violation.

We respectfully submit that the underpinnings are fragile and slender reeds upon which to build a — edifies of achieving a social goal or a multidistrict remedy regardless of how worthy that goal might be from a standpoint of a social goal.

I wish to examine the rulings against the clients that I represent here, because the only client as far as the State of Michigan are concerned that are before this Court are the Governor, the Attorney General, the State Superintendent of Public Instruction, State Treasurer, and the State Board of Education.

Much has been made at the lower court stage about the transportation of some school students from a Carver School District outside of Detroit back in the 1950s.

As a matter of fact, the Court of Appeals stated that this busing of students from a Carver School District in the Detroit was done or could not have taken place I should say without the tacit approval, expressed or implied of the State Board of Education.

Well I submit that there is no obligation on the State Board of Education to be notified of any transportation of that type.

That was not their responsibility, nor is there anything in the record to support the conclusion that it could not have been taken without the tacit or implied approval of the State Board of Education.

The Court of Appeals also upheld the conclusion that for years, black children in the Carver School District were assigned to black schools in Detroit, because no white suburban district would take the children.

We say that that is exceptional error there is nothing in the record of this case to base that conclusion.

Actually, members of the Court; the Carver School District was an independent school district from the 1850s, that did not have a high school.

Detroit reached out, took these children in and gave them an education — a high school education that they wouldn’t have otherwise had.

Under Michigan — established Michigan law, there is no obligation for any school district in Michigan to accept pupils or take pupils for any other — from any other school district.

But Detroit did take these pupils, give them an education.

Then some 13 years ago, the Oak Park School District, through the initiative of local officials, annexed the Carver School District.

So that now, the Carver students are a part of the Oak Park School District which is a suburban school district, predominantly white and which has the riches for pupil contribution of any state — any — any district in the state.

This I believe gives lie to the plaintiffs’ theory that there is some containment going on, because if that were true, these students would not have been annexed to the Oak Park School District.

But would been annexed and confined to the city of Detroit.

In other words, I believe that the Carver example, rather than showing a willful purpose to segregate shows a willful act of trying to integrate.

The merger of the entire Carver School District in 1960 I believe, under the theory expressed in Kies shows that the — something going back in the 1950s are so attenuated now in any event, not to establish — so that it could not establish at present or an act of de jure segregation in the 1970s.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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Potter Stewart:

Was that Carver contiguous to Detroit — to the (Voice Overlap) —

Frank J. Kelley:

It was contiguous.

I believe the Detroit is also contiguous to Oak Park who — who’s — through initial or local —

Potter Stewart:

And Carver itself did not have a high school?

Frank J. Kelley:

Carver did not have a high school.

It never had one.

Potter Stewart:

Is there no obligation on the school district in Michigan as the matter of state law to have a high school?

Frank J. Kelley:

No, there is not, as a matter of fact, there is a case directly in point which occurred in outstate Michigan at 349 Michigan.

One, called Jones versus Grand Ledgewhich indicates that that is not the case.

Incidentally, that was a case in outstate Michigan.

There was no racial fact involved.

Potter Stewart:

What is the obligation of the school district with respect to having schools?

Do they have to have high school?

And if not, what’s the point of having a school district?

Frank J. Kelley:

The — no, I think there is an obligation of a school district to have schools and they did have schools in Carver but they were not — they do not have a tax-base and could not tax themselves to the point to build a high school.

I believe there were efforts made.

They just were never able to build a high school in this — in which — from its tax-base standpoint, as I understand it, Mr. Justice Stewart, was a very poor area — tax wise.

Potter Stewart:

Was Carver — was Carver back in the 1950s, a predominantly Negro area?

Frank J. Kelley:

To the best of my knowledge, it was always predominantly Negro from the time it received its — not only the school district, but from the time it became a charter township.

Another pivot of the plaintiffs’ brief that attempts to bring state involvement into this matter as a predicate from all the district remedy is the reference to Section 12 of 1970 Acts of the legislature, the act being Act 48.

This piece of legislation actually provided for more local control to the parents within the Detroit School System.

Thirteen sections which intensified and gave the parents more local control.

Following the situation in New York that occurred prior to that time where the parents want a more local control.

All that Section 12 did in our judgment was to delay an attendance plan that had been put out until the the new board took over on January the 1st but at point of fact that the — and — and have also provided that if — there needs to be any school attendance change of practical necessity, they could continue to do it.

But that section was only in effect for a month because the Court of Appeals declared it unconstitutional.

Any effect it had was de minimis and any effect it had would be applied solely to the single Detroit School District as a statute applied only to the single Detroit School District and had no bearing on any other school district in Michigan.

There is no evidence that the defendants who I represent, the state defendants had anything to do with the passage of the statue, nor does it — nor does it show that there was segregatory effect caused in any other school district of Michigan in the record is bearing of that of what is also made by the plaintiffs that the Sixth Circuit especially, reached the same conclusion that — that construction in Detroit in the mid and late 1960s is a — a basis for involving my state defendants in — in a predicate for a multidistrict remedy.

On what this Court recognized in Rodriguez and in other cases that school construction is primarily a function of the local school district cite acquisition the purchase, the right of eminent domain is given to our school districts in Michigan.

We — the state — board at the state level — that the capital has very little ado with the acquisition in construction of schools.

As a matter of fact, the only contact by law in Michigan is that the State Superintendent of Public Instruction approves them, as the fire and safety regulations and prior to 1962, he approved the cite as to its adequacy after the fact.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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William J. Brennan, Jr.:

Mr. Attorney General, how are the funds raised for capital improvements in school districts?

Frank J. Kelley:

I would say that overwhelming — the majority of funds are raised locally by taxation and bonding.

William J. Brennan, Jr.:

That bonding, who issues all the bonds?

Frank J. Kelley:

The district issues the bonds Your Honor.

William J. Brennan, Jr.:

The district is — that make out of the bond.

Frank J. Kelley:

That’s correct.

William J. Brennan, Jr.:

They’re not general obligations in the state

Frank J. Kelley:

No.

William J. Brennan, Jr.:

And — and requires a vote of the people in the district to authorize a bond issue?

Frank J. Kelley:

In most cases Your Honor.

William J. Brennan, Jr.:

As a matter of fact, one of the — one of the allegations in this case was that Detroit was — was contributing less for pupil than the other districts in tri-county area and the Court concluded that that was a fact.

The actual fact is, that Detroit during this period has been — had more — has had higher for pupil contributions for a student than most of the other districts in the area.

In the areas of school financing, I believe that there is an example here of straining in order to involve my client’s name as a predicate for a multidistrict ruling.

And also, there is a point made about the transportation, an act that statute passes with regard to transportation based on an urban — rural classification.

A statute passed in 1947 that provided that all home rule cities, all home rule municipalities in the state.

And certain villages were to be ex — excluded from appropriations for certain transportation funds.

It was certainly not racially motivated, it was certainly an equal classification that applied to all the cities including the city that I was a city attorney in at the time Alpena, Michigan which had no black population whatsoever applied to hundreds of cities like that.

And that the plaintiffs have tried to show that this statute was an example of a violation of Equal Protection of their client’s rights that was not — as a matter a fact since 1972, the legislature has been making specific appropriations to villages and cities separated apart from the previous statute.

Potter Stewart:

That previous statute applied to home rule cities?

Frank J. Kelley:

All of home rule cities.

Potter Stewart:

And Detroit is a home rule city.

Frank J. Kelley:

Home — It was one of many — one of hundreds.

Potter Stewart:

One of hundreds in the state and —

Frank J. Kelley:

That’s correct.

Potter Stewart:

And — And these satellite communities of Detroit are not home rule cities?

Frank J. Kelley:

Some of them were and some of them did not —

Potter Stewart:

Some were and some were not.

Frank J. Kelley:

Some of them were and some did not reach the funds, Your Honor, but were incorporated in that matter.

Now, it is our position that the findings against my client and I can only speak for my client.

As you know, the city of Detroit School District does not seem fit to appeal or participate in this appeal.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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Frank J. Kelley:

But they have their own attorneys, their own counsel and they make their own decisions in this area.

I am here representing only the Governor, the Attorney General, the State Board of Education, the State Treasurer, and the State Superintendent of Public Instruction.

I submit to this Court that the record in this case is devoid of any action by any of my clients that we could — could be said to be a purposeful act as a public official with an intent to segregate anybody at any time.

And I think also that if we are to allow the Courts to engage in — in — in social goals rather than confine themselves to the scope of the remedy that the violation requires and in order to predicate a remedy for those goals, we allowed them to trample on the rights of clients, such as mine here today, who in the record, are devoid of any acts than really the ends of justice are not served.

Thurgood Marshall:

Can it be satisfied if we just let you out of the case?

Frank J. Kelley:

No, I don’t think that would be proper.

I think that — I think that what’s more important here Your Honor is that, the lower courts have failed to read Swann and Kies and the other more recent rulings of this Court as I understand them.

This is a single district case, a single district allegation —

Thurgood Marshall:

You said that you don’t represent the city.

Frank J. Kelley:

That’s correct Your Honor.

Thurgood Marshall:

You don’t represent the school board.

Frank J. Kelley:

That’s correct.

Thurgood Marshall:

And that nobody here represents them.

Frank J. Kelley:

That’s correct Your Honor.

But at the — by the — by the same token I — I do — I do feel Your Honor that that — that we — my clients are being used as the predicate for a multidistrict remedy when it is not warranted by the facts.

And if we are not, if we are dismissed from the case, then this case should not be remanded but should be ended because the plaintiffs have had their day court on a single district allegation.

Everything they alleged was tried and there is testimony that we can have a unitary solution within the city of Detroit because this Court has never said that there should be — a — that a — a predominantly black school district can’t meet the test of Brown and the other cases, and I think that that is the issue in this case.

Warren E. Burger:

General, your time I think has now expired.

Frank J. Kelley:

Thank you Mr. Chief Justice.

Warren E. Burger:

Mr. Saxton.

William M. Saxton:

Mr. Chief Justice, may it please the Court.

My name is William Saxton and I appear here in behalf of 44 school districts, who are listed as petitioners in this case.

Each of these petitioner school districts is a body corporate under Michigan law and possessed under Michigan law was a right to sue, to be sued in its own name, the right to possess property in the whole — both real and personal property for educational purposes.

The school districts are located in varying degrees of geographical proximate in Detroit, some raging up to 30 to 35 miles away.

In most instances, the school districts are predominantly white in both their population make-up as a whole and in the racial population —

William J. Brennan, Jr.:

Excuse me, Mr. Saxton, you said you were repairing for 44.

William M. Saxton:

Yes, Your Honor.

William J. Brennan, Jr.:

But there are 53 involved —

William M. Saxton:

There are 53 involved in the Law suit Mr. Justice Brennan —

William J. Brennan, Jr.:

Are there —

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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William M. Saxton:

Some of whom have never been before the Court in any capacity.

William J. Brennan, Jr.:

Along the other nine represented here today.

William M. Saxton:

They are not represented here today Your Honor.

I might also — so, it is a little confusing.

Some of the school districts whom I represent and for whom I speak in this argument were not included in the metropolitan remedy decreed by the lower court.

Nevertheless, they are still intervenors in the case and petitioners in this lawsuit.

So it isn’t really fair to say that there are only nine left, there are really 18 school districts, Your Honor, Mr. Justice Brennan, that was never been before the Court that were included in the claim.

Potter Stewart:

Because you represented of these nine who were not included in the claim, is that it?

William M. Saxton:

No Mr. Justice Stewart.

I represent 30 some who were included —

Potter Stewart:

Yes.

William M. Saxton:

In the plan and 12 of some who were excluded and none of those who have never been before the Court.

Potter Stewart:

Now 12 is at least nine.

William M. Saxton:

Right —

William H. Rehnquist:

But all of your client —

William M. Saxton:

(Voice Overlap)

William H. Rehnquist:

All of your clients are intervenors, even though they may not have been included.

William M. Saxton:

That is correct Mr. Justice Rehnquist.

As I was going to point out, in most cases, the petitioner school districts, racial composition in terms of its pupil composition is majority white.

This is not true in all cases — well, its majority in all cases.

But for instance, in the case of River Rouge which is roughly 43.5% black pupil population and one or two other districts, the racial composition is from 10 to 15 percent black.

It might point out to the Court that there is an exhibit contained in volume five of the five volume appendix which I believe was exhibit 12 which will give the racial composition school district wise of all the school districts involved in the plan.

If I may to digress a moment Mr. Justice Burger, I believe of Chief Justice asked about the amended complaint.

I think that’s at volume one of the five volume work in page 294, 1a 290 and I believe the particular part that the Attorney General referred is at page 294.

At the outset, it should be emphasized that there is absolutely no claim and there is absolutely no finding in this case that any school district in the entire State of Michigan with a singular exception of the city of Detroit school district has created any as — has committed any act of de jure segregation, and that includes all of these petitioner school districts.

There is no claim in this case.

There is no evidence in this case, that any school district in the State of Michigan including Detroit was established or created for the purpose of fostering racial segregation in the public schools.

The city of Detroit school district was created as coterminous for the city boundaries over a hundred years ago.

Unlike cases like US versus Missouri, US versus Texas, there had been no gerrymandering of school district boundary lines or changes for the purpose of including or excluding black students.

The District Court in this case at the — conducted this trial on the merits on the sole and singular issue of whether or not the Detroit school system was operated as a de jure segregated school system.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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William M. Saxton:

Not established but operated.

In September 27th of 1971, he issued a so-called ruling on segregation in which he found that as a result of acts committed by the Detroit School Board which he also found were aided and abetted by acts of certain officials of the State Government that the Detroit School District was operated as a de jure system.

In October of 1971, the first inkling came that the remedy might exceed to trial on the merits, when the newspapers carried a story that the District Court was requiring the state defendants to submit plans for so-called metropolitan desegregation.

I submit this is a misnomer in itself because there is no evidence there is any metropolitan segregation and therefore, there is no metropolitan desegregation warning.

In some of the briefs, the petitioner school districts have been criticized for not intervening in this case sooner.

I would merely submit as it’s rather hard to get into a case, where you’re not a defendant or no claims are made against you and were the only issue relates to the city of Detroit School District.

As soon as it became obvious, that the District Judge intended to embellish the remedy beyond the scope of the trial on the merits that petitioners intervene.

All the petitioners here do not contend that the findings with respect to de jure operation of the Detroit School District are erroneous, nor that they should be set aside.

What the petitioners here do contend is, that those findings which are limited in scope of threat to the operation of the Detroit School District may not be used like a rubber band to snap in all the petitioner school districts in the so-called metropolitan remedy, which has — it’s a valid purpose under the decision of both lower courts, the desegregation of the Detroit School System.

We think, Your Honor — is that a part of the problem here arises from strain to manage.

What does desegregation mean?

It is viewed by the District Court and is viewed by the Court of Appeals, majority for the Sixth Circuit; it obviously means a minority black school system.

We submit that nothing in the constitution of the United States still prescribes nor does any decision of this Court still require.

If the mere existence of racial disparity between separate, distinct, and unrelated school districts does not offend the constitution, and we submit it does not.

Then there is absolutely no basis upon which of a multidistrict remedy can be predicative in this case.

Let me say this, you will search this record in vain to find one with one with — one jack of evidentiary material that any suburban school district committed any de jure act of segregation, either by itself in complicity with the state, or complicity with anyone else.

There is no such evidence.

The Court of Appeals tries to put together in its opinion a metropolitan remedy by the very tenuous string that there is a vicarious liability here which permits the metropolitan remedy, because state officials were involved in the desegregatory action in Detroit.

There is rather an anomaly here, and it does require the Court to follow a little bit the rulings of the Court of Appeals.

The Court of Appeals majority for the Sixth Circuit only affirmed the findings of fact in two orders issued by the District Court.

And this was found if you will at page 112 of this separate volume to the petitions for certiorari.

You will note on page 112, that the Court only affirm findings in two orders, the order on the ruling of issue of segregation and the order where the findings of fact and conclusions of law on a Detroit-only plan of desegregation.

And if you will turn to pages 177 and 178, you will note that all other orders issued by the District Court which were before the Court of Appeals and are set forth at page 112 of the record, were vacated by the Court of Appeals.

Now, I state that as background because despite having vacated, the only orders for any suburban school district is mentioned or a suburban school district, the Court uses statements and the very order did vacate it, as the grounds for premising the metropolitan remedy.

Now, I submit that somewhat of an anomaly but the Court will extract statements from rulings and orders that it did not affirm, in which it itself vacated.

There are only two mentions in this whole record of anything about suburban school district.

The first one has to do with the Carver School District.

This is mentioned by Attorney General Kelley.

I would call the Court’s attention to the fact that there are only four places in this entire record for the Carver School District as mentioned.

It initially comes into the record because it was submitted as a statement by the plaintiffs in this case as part of their proposed findings of fact and conclusions of law in support of a metropolitan remedy.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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William M. Saxton:

The plaintiffs initially made — there were two other statements that no suburban school district would accept the Carver students.

There is no evidence in this record that will support that statement.

I think it is incumbent upon the respondent’s plaintiffs in this case to indicate to the Court where it can be found.

We have searched the record in vain.

As far as the lower court’s finding on the Carver School District is concerned, it comes as a footnote to his ruling on governments for a metropolitan plan which appears at page 96A of this volume submitted with the petitions for certiorari.

As far as the Court of Appeals decision on the Carver School District is concerned, the Court of Appeals stated that the lower court was right in basing its finding on the Carver School District based upon the testimony of Dr. Norman Braker who testified that there were students from the Carver School District who were bused to the Northern High School in Detroit.

The Court of Appeals opinion embellishes on this by copying from the plaintiff’s proposed findings and says that that occurred because no white suburban school district would take these students, and because no white school district in Detroit would take them.

The Court of Appeals however did not read all of Rackler’s testimony.

In volume 5A of the — five volume appendix, page 186, the same witness upon who may rely for their findings testified that the Carver students were bus passed Mumford, the nearest white school in Detroit, not for segregatory purposes because Mumford was overcrowded.

I’d ask the Court to look carefully at the Court of Appeals’ finding based upon Dr. Norman Racker testimony.

The testimony which they rely on starts out, “I was told, I was not in the central office in 1957 and 1958.”

The most (Inaudible) form of heresy, and he was told and there is no indication on the record even by whom he was told, and on that slender thread has put together a pillar to formulate a metropolitan remedy affecting nearly a million parents and children in 53 school districts.

Now, the only other mention of any suburban school districts or any of their activities is — good to the statement that construction policies pursued in suburban areas or areas outside of Detroit caused segregation in Detroit.

Now, this can only be upheld on the sprained idea, that if the suburban areas or the independent school districts outside of Detroit had not build any schools, then no white families would have been able to move out of Detroit with children, because there wouldn’t have been any place for them to go to school.

And underlying this contention is the fallacious argument that merely by pulling a school to serve the population in that area, that that access a lure to white citizens in a central city and therefore, is an act of segregation.

We submit that’s too tenuous to support a metropolitan remedy.

The Court of Appeals and the lower court had misapprehended the controlling principles of law enunciated by this Court.

Beginning with Brown that the rule is, that if education is provided by the state, it must be made available on equal terms to all.

There is no evidence in this record that that has not been done in any school district other than Detroit.

In Swann, this Court said that the task is to correct the constitutional violation by balancing the individual and collective interest.

That means that the interest of those one million parents and children who live outside Detroit, who have paid taxes to support their school districts, who have considerable investments in home, who have input into the local school, who desire to continue the concept of local schools, also have interest in this case equally, as well as the plaintiffs.

And if those interests are to be balanced, the rights of these people may not be sacrificed on the offer of racial balance in order that their children may be judicially conscripted and interchanged with students in Detroit.

Thank you.

Warren E. Burger:

Thank you Mr. Saxton.

Mr. Solicitor General.

Robert A. Derengoski:

Mr. Chief Justice, may it please the Court.

The United States appears as amicus curiae here today because the Court’s resolution of the issues in this case will affect the government’s responsibilities in the school to segregation area.

I think I need not recite the facts or the proceedings that occurred so far.

From my point of view, the unique aspect of this case is that an extensive interdistrict remedy is contemplated, certainly — almost certainly including busing.

And it involves — and the remedy that involves not merely causes — to the children in Detroit and in the rest of the area, but also widespread disruption of long established governmentally units.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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Robert A. Derengoski:

And that remedy is ordered as — supposedly a remedy for racial discrimination found to have occurred so far only within the city of Detroit.

The Government believes that a remedy, so disproportionate to the violation found.

Is an improper exercise of judicial power and in that sense, the case involves a precedent for future remedies and also a question of the proper rule of judiciary in this — in government in this area.

The issue seems to us is fairly simple.

The reasoning of the Court of Appeals majority and of the District Court contains an obvious flaw.

That reasoning runs like this, unconstitutional segregation of school children has occurred in Detroit.

The law now requires that the unlawful dual system be converted to a unitary system.

There are too few white children in Detroit to achieve a truly integrated school system and in fact, busing or a remedy confine the Detroit, might merely hasten the departure of other whites and thus, leave the Detroit system identifiably black.

It follows according to the Court’s reasoning therefore, that the only effective remedy is for the Court to reach out to the suburban school districts to find enough white children to provide racial balance in Detroit.

The fatal defect in that reasoning is that equates the concept of unisary — unitary system with a particular ratio of black and white school children.

Those concepts may not be acquainted as this Court’s opinion in Swann makes it quite clear.

And indeed as this Court’s opinion — in its affirmance of Spencer against Kugler makes it quite clear.

A unitary school system is not one containing any particular proportion of the races.

It is simply one in which state action does not separate the races.

Thus, a remedy confined to Detroit is completely adequate to meet the laws command that the unconstitutional dual system be dismantled and converted to a unitary system.

The interdistrict remedy here, contemplated by the Court to below is not tailored to the constitutional violation shown as the Swann opinion says it should be.

If the respondents wish an interdistrict remedy, then we suggest this case should be remanded for trial and findings concerning the presence or absence of constitutional violations that directly altered or substantially affected the respective racial compositions of the Detroit school system and the specific suburban school systems.

Warren E. Burger:

Can you tell me Mr. Solicitor General, when the course of this litigation, the allegations were made that the outlying districts to — 44 or 54, whatever they amount to, have engaged in conducts violated of the constitution.

Robert A. Derengoski:

Mr. Chief Justice, it is my understanding that no such allegation had been made to date.

Warren E. Burger:

Well then, we remand you — your proposal is that, it be remanded to allow them to —

Robert A. Derengoski:

Amend their complaints.

Warren E. Burger:

Amend their complaints.

Robert A. Derengoski:

And seek a remedy along in those lines, if they feel there is a case along those lines and if they feel that that is the remedy they wish.

Warren E. Burger:

Even though the parties have been thought that there was a case along those lines after all this litigation.

Robert A. Derengoski:

I would find it difficult to say and not terribly useful to say I think, that the parties must begin a new lawsuit aimed at interdistrict violations.

In effect, it is a new lawsuit but I don’t see why it can’t be accommodated by — if — if the plaintiffs wish by a — amendment of the complaint here to allege such interdistrict violations, as they may think have occurred.

They may not think any interdistrict violations have occurred in which case, I’m sure they will not amend their complaint.

Potter Stewart:

Mr. Solicitor General, what do you mean exactly by interdistrict violations?

Robert A. Derengoski:

A violation that results in a — in altering the racial composition of two districts.

So that blacks tend to be confined to one and whites confine to another.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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Potter Stewart:

Does it require cooperative action on the part of two or more districts?

Robert A. Derengoski:

If that is one — I don’t think it requires that, Mr. Justice Stewart.

I think that is one way in which it could occur if a state ordered it done, even though the two districts themselves might resist it.

I assume that would be an interdistrict violation.

So the — either be action by the state at the state level or it would be collusion or cooperation between the two districts.

Potter Stewart:

By two or more districts?

Robert A. Derengoski:

That is correct.

William H. Rehnquist:

Some sort of a shifting of a district line in order to preserve segregation.

Robert A. Derengoski:

The shifting of a district line in order to preserve segregation Mr. Justice Rehnquist would do that, as would cross district busing.If a district with 20 percent black children bus all of its black children out.

William H. Rehnquist:

Without any change in the line?

Robert A. Derengoski:

Without any change in the line —

William H. Rehnquist:

Yes.

Robert A. Derengoski:

Into another black district nor to preserve segregation.

I assume that would be an interdistrict violation which would justify interdistrict remedy.

Thurgood Marshall:

Mr. Solicitor General —

Byron R. White:

(Inaudible) the interdistrict violation would not include violation in the two districts?

Robert A. Derengoski:

I think not, unless those violations in some way Mr. Justice White affected the balance — the racial composition of those two districts.

Byron R. White:

You would think the same argument that they did to the segregations of suburban — the segregation of Detroit that includes the (Inaudible)

Robert A. Derengoski:

If they had no connection Mr. Justice White, and did not alter the racial composition as between those two districts.

I think there would be no occasion for an interdistrict remedy.

Thurgood Marshall:

Mr. Solicitor, in addition to this interdistrict board, don’t you think it’s — the Court of Appeals should — or the trial court that somebody should give a new shot at this as the order yet?

I mean, you —

Robert A. Derengoski:

Oh.

Thurgood Marshall:

— mentioned busing and rightfully saw that — why would they order to bus at this case?

Robert A. Derengoski:

Mr. Justice Marshall, I certainly think they should have a new shot at this case.

I think it is undeniable that what is contemplated by the Court of Appeals and what was contemplated by the District Court is an interdistrict remedy that would necessarily involve a great deal of bus —

Thurgood Marshall:

You have (Inaudible)

Robert A. Derengoski:

No sir, and —

Thurgood Marshall:

I thought it would —

Robert A. Derengoski:

And I think —

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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Thurgood Marshall:

And don’t you think that they should have another shot at how it’s — whether it can be done, whether it should be done, and even more importantly, if they go to those two, it’s how it should be done —

Robert A. Derengoski:

I — I —

Thurgood Marshall:

And the trial court should do this.

Robert A. Derengoski:

Mr. Justice Marshall, I entirely agree that the trial court should do that, but I think the trial court should be not begin that study until it is found that interdistrict violations — that must serve as the predicate for that remedy.

It seems to me that until the showing of racial discrimination which effects cross district lines is made, then — then and an interdistrict remedy whether includes busing or not, is not designed to remedy constitutional violations but rather, it is designed to interfere with the consequence — consequences of demographic shifts.

The redesigned of democratic — demographic patterns I think is not a proper function of the Federal Courts.

This Court noted in Swann, where there were — that even whether are constitutional violations within a district.

Once those violations have been remedied, that a unitary school district created, there will be no occasion and there should be no further occasion for a Federal Court to continue to pursue demographic changes, and I would think it follows a fortiori that where there is no violation affecting the relative racial compositions of two districts.

There would certainly be no case for a Federal Court to concern itself with demographic patterns.

While that conclusion seems to me to be reinforced by the substantial interest in preserving governmentally units that is certainly present in this case including school districts in this line.

So far as we have on this record, there is no school district line that was not established for neutral reasons.

There is no school district line that we know of that was altered or established in order to affect any racial distribution.

It may be that something that — that can be shown but it hasn’t been shown yet.

But the Court of Appeals of the Sixth Circuit refers to the school district lines as artificial lines, and I think that kind of remark ought to be noted and rebutted.

These are not artificial lines.

When you first draw a line on a map, it is in some sense artificial.

You could have drawn it elsewhere, but over a period of years in this case, as the city of Detroit have a period of 142 years, people arrange their lives according to where that line rests on the map.

If you move the line, people would rearrange their lives over a period of time according to where those lines are.

They are not artificial lines, they are lines that dramatically affect individual and governmental interest.

Potter Stewart:

Well, they are artificial lines in the same sense that the boundary between Ohio and Indiana as an artificial line.

Isn’t that correct?

It’s not a natural —

Robert A. Derengoski:

Indeed it is correct Mr. Justice Stewart —

Potter Stewart:

It’s not a river, it’s not a mountain range —

Robert A. Derengoski:

It’s — it’s an artificial line (Voice Overlap) —

Potter Stewart:

Politically drawn line.

Robert A. Derengoski:

That the boundary between —

Potter Stewart:

That line is to the — all that the Court of Appeals is talking about.

Robert A. Derengoski:

Well, I think the implication in the — in the word artificial was that therefore, there is no particular reason not to shift those lines or to respect those lines, but I was suggesting that there is because people have arranged government units, funding, financing, control of local schools, they have arranged their lives according to where those lines are.

Warren E. Burger:

We have another example of that, do we not?

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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Warren E. Burger:

In the line between whether — say, the Fourth Circuit and the Fifth Circuit.

The Fourth Circuit District Court case, it would not do very well in an appeal in the Fifth Circuit would it?

Robert A. Derengoski:

I think not Mr. Chief Justice, although there probably are occasions when an attorney would like to be able to cross over.

Warren E. Burger:

Mr. Flannery.

J. Harold Flannery:

Mr. Chief Justice, may it please the Court.

To our minds, the issue here is whether the Courts below were correct in holding upon the record in this case with respect to the nature and scope of the segregation violation, that interdistrict desegregation relief must be considered.

In that context, did the Court please?

I propose to address the nature and scope or extend of the violation as a predicate for proposed interdistrict remedies and secondly, the opportunity of suburban districts to be heard both heretofore and hereafter.

My associate, subject to the concurrence of the Court, my associate, Mr. Jones will address himself primarily to the practicalities of interdistrict desegregation including Michigan law and practice with respect to its district educational units and their boundaries.

William J. Brennan, Jr.:

Mr. Flannery you represent here Mr. Bradley and others?

J. Harold Flannery:

I do Your Honor.

It appears the petitioners at this writing, that there are proffered to the Court, different analysis of this issue.

As I understand the petitioners, Allen Park and State of Michigan, interdistrict remedies may be considered in only two situations, where there has been manipulation or gerrymandering of school district lines as in Gomillion against Lightfoot, where there has been segregative — racially exclusionary conduct on the part of suburban school districts.

Perhaps although it was not mentioned where changes in lines might impair a preexisting constitutional obligation as in Emporia and Scotland Neck.

It appears to us that the Detroit Board, in its brief, the Detroit Board respondents take a different view as we understand their position and is characterized by the Solicitor General.

As school districts, both constitutionally and under Michigan law are not more than artifacts of convenience of a state education system.

When it is — it is found that black pupils have been segregated on the basis of race by the state acting at the state level and through its local units, then practicable desegregation must the achieved for the affected children and practicable desegregation may require the crossing of school district lines unless, it can be shown that there is a countervailing — compelling state interest.

The Solicitor General offers what appears to the petitioners to be a middle ground.

If I read the Solicitor General’s brief correctly, pages — I have particular reference to pages 10 and 13 and 14.

It would be his view that the Courts below need not find segregative practices on the part of suburban districts nor need they find manipulation or gerrymandering of school district lines.

Indeed interdistrict relief could be predicated in the view of the Solicitor General.

Upon a finding that a violation either by the state or by several districts or even by one district had affected or substantially altered, I believe the phrase is, in his brief the composition of schools in a different district.

If I have correctly characterized from pages 10 and pages 13 and 14 the view of the Solicitor General, I would note parenthetically that — that we find it too cramped for the affirmative reach of the Fourteenth Amendment, but it has the virtue in this instance, may it please the Court of fitting the facts of this record.

It is the view of the petitioners, that two courts below, a total of 10 federal judges below have examined the facts in case very carefully and have come to the conclusion, if I may summarize it too cryptically.

Not only that there were conventional segregative practices affecting a limited number of school children within the Detroit district.

On the contrary, there were such segregative practices by the State of Michigan acting through its local agents, the Detroit Board and acting at the state level.

There were a variety of other governmental private and Quasi-Governmental practices which caused housing segregation and school segregation to be mutually supportive, mutually interlocking devices, with the result, may it please the Court.

If you can perceive the tri-county area in your mind’s eye with the result that black families and black children were confined to a small portion of the tri-county area and to the schools located therein.

In both directly and by the reciprocal mechanism noted by Mr. Justice Brennan’s opinion for the Court in the Kies case, the confinement of black children to an identifiable — today expanding, but always during the relevant period identifiable core of black schools inevitably created on the fringe of Detroit and beyond the border of Detroit without regard to its permeability or impermeability, a corresponding reciprocal ring of white schools.

With the Court’s indulgence, I would like to discuss briefly the segregative school practices and their reciprocal effects as addressed by the Courts below.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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J. Harold Flannery:

The pages 122a and 123 of the certiorari appendix, it was noted that as early as 1960, protests were made by a man who was subsequently an official of the Detroit school system against what was characterized as a policy of containment of minority groups within specified boundaries.

When in 1959, a school district — the center school district was created on the basis of where black people resided at that time in Detroit.

The Courts below found that the drawing of attendant zone lines along north south lines which also conformed knowingly, and deliberately to the residential configurations in the city of Detroit served to confine black families to the schools designated for that area.

The Courts further found that manipulation of attendant zones, feeder patterns and grade structures had conformed the composition of schools to the composition — racial composition of neighborhoods.

The Courts below noted and I am now referring now to the Higginbottom school, page 26a in Judge Roth’s District Court opinion volume 3a at 206 in the appendix.

The building and maintenance of a school and its attendant zone to contain black students, at times black students were transported to relieve overcrowding, passed white schools with space to other black schools.

Now, this is of course a segregative practice as described in countless cases by other Federal Courts and noted by this Court in its Kies opinion.

But the fact is, that the Courts below found that it was having an addition to school segregation, it was having a segregative effect on neighborhoods because when families seek to disperse throughout the Detroit area or on a broader basis, the phenomenon of reassigning children in those families back to black schools because they must be transported somewhere to relieve overcrowding effectively deters dispersal.

William J. Brennan, Jr.:

This was — when?

During the 60s, 50s or 60s?

J. Harold Flannery:

Oh yes.

The — The transportation of black children occurred up to at the time of trial.

William J. Brennan, Jr.:

And in the city of Detroit so far.

J. Harold Flannery:

Yes — Yes, Your Honor.

Now, for descriptive convenience of course, it — it’s helpful to an advocate I think to try to separate the role of the state from the role of the city, from the role of other governmental units, but I invite the Court’s attention to the fact that Judge Roth and the majority of the Court of Appeals underscored the facts that these were a series of mutually support of interlocking devises that were operative.

It wasn’t the state’s role in isolation today and the Detroit Board’s role in isolation tomorrow.

All of these factors especially, the segregative school practices operated in lock step with an areawide metropolitan policy of confining by housing discrimination at the local level, at the governmental levels, both state and federal, and the private level confining black families to an identifiable core in Detroit which is, to be sure expanding but still surrounded by a white ring of reciprocal corresponding schools now separated only by the border — or soon to be separated only by the boarder as Judge Roth observed.

The policies of the state — let me advert to them very briefly.

Constitutionally at all times and explicitly under Michigan law until 1962, the state level school authorities or school site selection responsibility and the Courts noted that school site selection on a segregative basis proceeded a phase during the period from 1950 to 1969.

We have noted several times that the state discriminated in its educational policies against the Detroit as a school system.

It has been observed and I acknowledge rightfully by the petitioners that such discrimination against Detroit did not have race as its primary object, it was not innately racial.

It was a common phenomenon in this country of — perhaps, two common — a form of state legislative discrimination against big cities.

But the point we were trying to make is that at the time these policies caused Detroit to be perceived as a disfavored school system, as the step child of the state education units.

At that time, the testimony is comprehensive in the record, there was throughout the metropolitan area, a policy of excluding black families from residential opportunities outside the city of Detroit.

So that families choosing to respond to the allure of more favored schools in the metropolitan area, namely those outside Detroit were only white families.

Black families’ opportunities were limited.

So the actual workings of the transportation formula have been the subject of dispute.

The — the point is, that there was not reimbursement for Detroit and other — some other city transportation, although it’s interesting to note that when city transportation was ended in the statute referred to earlier in response of Mr. Justice Stewart’s question.

There was also a grandfather clause and today, some cities that would be ineligible remain eligible if they are outside the Detroit area by virtue of that grandfather clause that is — they have been receiving transportation reimbursement before it was cut off.

The working of the bonding formula, the working of the state aid formula; again, this is not Rodriguez, these are not cited as deficiencies inherent on constitutionality on their own.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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J. Harold Flannery:

They are cited as evidentiary of Michigan’s disfavoring of Detroit as a school system at a time when black people were confined there and white people were responding to the message that there were hundreds of thousands of new seats going up in the suburbs in attractive new schools.

Now, the culminating contribution of Detroit — of the State of Michigan rather to Detroit’s present status, the segregated district was Act 48 of 1970.

This act is fully parsed in the briefs (Inaudible) it — not imposed from the Court’s time to labor it, but I would note that for the first time, the state’s local educational agency practices effecting segregation had begun to falter.

Up to that point, the local agency had done all that needed to be done in order to accomplish the job of segregating black from white children.

In 1970, an amelioration was proposed and the state intervened promptly and decisively.

It suspended the desegregation plan.

It was addressed exclusively to Detroit, the only first class — the only first class city in the state which is only Detroit.

It proposed mandated open enrolment and neighborhood schools as the pupil assignment patterns in that school system.

With the result Your Honor, that the message was imparted it seems to us to all the citizens of Michigan and to the citizens of Detroit, that Detroit was not an autonomous school system, but the state would intervene and manage the school affairs of Detroit in the most vital day-to-day sense when the — when the objective was the retention of segregation.

So it appears to us that a variety of state practices, some implemented at the local level, some by state education officials have combined with massive housing segregation throughout the Detroit metropolitan area.

Each reinforcing the other as noted by this Court in Swann and again, in Kies each reinforcing the other and carefully parsed by the Courts below to result in this pattern.

Now, the question has arisen, whether the petitioners brought this analysis to the Court’s attention heretofore.

Is this an 11th hour consideration or have these matters been addressed in the Courts below?

I invite the Court’s attention to volume two, page 11 very early in the first week of trial, a witness is speaking of the basic containment pattern that was emerging as early as 1950.

Throughout that volume, pages 12 through 84, approximately seven or eight witnesses who repeatedly speak of the containment pattern, housing and schools that was coming to characterize the metropolitan area, not merely the city of Detroit.

I do not represent to the Court that every witness said to a man, there is an interlocking pattern of housing and schools, and it’s limited not to Detroit but includes the whole metropolitan area, but that was the testimony of a number of the witnesses.

And that more importantly, was the findings of both lower courts, and it is suggested — it is suggested that only at the 11th hour did it occur to the plaintiffs to introduce the concept of metropolitan relief.

At that same volume two of the Joint Appendix, I invite the Court’s attention to page 41 and 44 and thereafter, to page 70.

To summarize very briefly, Judge Roth admonished counsel for the plaintiffs, not to take the witness into questions involving metropolitan relief and counsel for the plaintiffs who responded on both occasions at page 44 and at page 70, in effect, Your Honor, we’ll have to see what the record will show.

It may — it may develop on the basis of the record made in this case and I remind the Court, this was during the first week of trial that Detroit only relief may be found insufficient.

I suggest earnestly to the Court that the notion of the metropolitan wide school-housing or housing-school segregation was not in the minds of the lower courts or in the minds of the plaintiffs a Johnny-come-lately objective.

And I think the notion that District Judge Roth was determined from the outset to achieve a racial balance or the Detroit board’s more recent notion of racial non-identifiably is belied by the fact that on that occasion at page 41 and at several other occasions, he admonished counsel that the initial theory of the complaint had been Detroit only violations and it was thereafter, when Judge Roth began to perceive the magnitude of the violation, as I have endeavored to describe it to the Court only thereafter, did he begin to address the question of the scope of the remedy in terms of the scope of the violation.

If the Court please, we have heard from the counsel for the petitioners that their opportunities to be heard were unconstitutionally or at least unfairly suppressed in the Courts below.

I remind the Court that no segregation violations, no segregative conduct with respect to the original creation of school district lines or on the part of suburban districts, were alleged and that those against whom violations were alleged, state level officials acting at their own level and through the Detroit Board were before the Court.

Moreover, on the basis of Lee against Macon County and United States against Texas and on the basis of District Judge Roth’s view of the plenary power of the state under Michigan law and practice, the parties necessary to grant relief, including interdistrict relief where in fact before the Court.

In addition, in our view in that of District Judge Roth, school districts are not persons under the Fifth Amendment.

Therefore, the inquiry turned to rights to be afforded suburban districts under Rule 19.

On the one hand, it appeared to us since the state has plenary power, since the state had between 1964 and 1968 for example, reduced the number of school districts in Michigan from 1400 to 700.

It appeared that the matter could proceed without those districts, and that there were difficult questions of manageability, which districts might be appropriate, and which might not, which has yet to be determined as — as the Court has heard, and which — which other public officials might possibly be affected by the remedy.

None of these questions could be answered confidently in late 1971 in September when the — when the magnitude of the violation was first held by the Courts to be as I have described it.

Audio Transcription for Oral Argument – February 27, 1974 (Part 2) in Milliken v. Bradley

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J. Harold Flannery:

Consequently, upon application thereafter, still without the claims being asserted against suburban school districts nor did we agree as to their indispensability for relief, but in an abundance of caution upon application intervention was granted.

Now, little was done with that opportunity below in our judgment and we have yet to be told what would be done, what practicalities would be advanced by local school districts, other that the jurisdictional impermeability of lines.

What (Inaudible) intractable, plenty problems as District Judge Roth or the Court of Appeals asked to come the (Inaudible), but we have not heard that, either by way of an offer of proof or otherwise.

Nevertheless, and it seemed to us another super abundance of judicial caution.

The Court of Appeals for the United States Sixth Circuit said, “Return below and you may make defendants — you are obliged to make defendants of all possibly affected school districts that has been done and let them have their say” as we say, we feel this is unnecessary, but appropriate.

Warren E. Burger:

We will resume there at 1 o’clock Mr. Flannery.