Nos. 73-434, 73-435, 73-436
4n tit ,Oupuntt elourt of tht 1:1 Wiled Obits
OCTOBER TERM, 1973
WILLIAM G. MILLIKEN, ET AL., PETITIONERS
V.
RONALD G. BRADLEY, ET AL.
ALLEN PARK PUBLIC SCHOOLS, ET AL., PETITIONERS V.
RONALD G. BRADLEY, ET AL.
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, PETITIONER V.
RONALD G. BRADLEY, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE
ROBERT H. BORK, Solicitor General,
J. STANLEY POTTINGER, Assistant Attorney General, Department of Justice, Washington, D.C. 20530.

11,

INDEX

Page

Interest of the United States

1

I. Introductory statement

2

II. The remedy for unconstitutional school segregation

may extend beyond the boundaries of a single dis-

trict only if, and to the extent that, the violation

has directly altered or substantially affected the

racial composition of schools in more than one

district

11

III. The record in this case does not support the broad

metropolitan-wide remedy contemplated by the

court of appeals_

15

Conclusion

27

CITATIONS

Cases: Alexander v. Holmes County Board of Education, 396

U.S. 19

2

Bradley v. Milliken, 433 F. 2d 897

3, 4

Bradley v. Milliken, 468 F. 2d 902, certiorari denied,

409 U.S. 844

3, 5

Bradley v. School Board of the City of Richmond, Vir-

ginia, 338 F. Supp. 67, reversed, 462 F. 2d 1058, affirmed sub. nom. School Board of the City of Rich-

Richmond v. State Board of Education, 412 U.S. 92_ 2,

7, 12, 14

Brown v. Board of Education, 347 U.S. 483

2

Cooper v. Aaron, 358 U.S. 1

2

Goss v. Board of Education, 373 U.S. 683

2

Green v. County School Board of New Kent County,

391 U.S. 430

2

Haney v. County Board of Education of Sevier County,

429 F. 2d 364

14

Keyes v. School District No. 1, Denver, Colorado,

413 U.S. 189

2, 18

(I)

532-349-74 1

II

Cases—Continued

rage

Norwood v. Harrison, 413 U.S. 455

2

San Antonio Independent School District v. Rodriguez,

411 U.S.1

5

Spencer v. Kugler, 404 U.S. 1027, affirming 326 F.

Supp. 1235

11

Swann v. Boai d of Education, 402 U.S. 1

2, 11, 15, 23

United States v. Missouri, 363 F. Supp. 739

14

United States v. Scotland Neck Boma qf Education,

407 U.S. 484

14

United States v. Texas, 321 F. Supp. 1043, affirmed

447 F. 2d 441, certiorari denied sub. nom. Edgar v.

United States, 404 U.S. 1016

14

Wright v. Council of City of Emporia, 407 U.S. 451_ _ _ 2, 14

Statutes:

P.L. 92-318, Section 803, 86 Stat. 235, 372_

2

28 U.S.C. 1292(b)

8

28 U.S.C. 2403

2

42 U.S.C. 2000c-6

2

42 U.S.C. 2000d

2

42 U.S.C. 2000h-2_

2

^n the Ouptente out Jair the Ii nittd *atm
OCTOBER TERM, 1973
No. 73-434 WILLIAM G. MILLIKEN, ET AL., PETITIONERS
V.
RONALD G. BRADLEY, ET AL.
No. 73-435 ALLEN PARK PUBLIC SCHOOLS, ET AL., PETITIONERS
V. RONALD G. BRADLEY, ET AL.
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, PETITIONER V.
RONALD G. BRADLEY, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OP APPEALS FOR THE SIXTH CIRCUIT
MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE
INTEREST OF THE UNITED STATES
The United States has substantial responsibility under 42 U.S.C. 2000c-6,2000d, and 2000h-2, with respect
(1)

to school desegregation. This Court's resolution of the issues presented in this case will affect that enforcement responsibility. The United States participated as an intervenor in this case in the court of appeals 1 and has participated as amicus curiae or as a party in most of this Court's previous school desegregation cases, including Brown v. Board of Education, 347 U.S. 483; 349 U.S. 294; Cooper v. Aaron, 358 U.S. 1 ; Goss v. Board of Education, 373 U.S. 683; Green v. County School Board of New Kent County, 391 U.S. 430; Alexander v. Holmes County Board of Education, 396 U.S. 19; Swann v. Board of Education, 402 U.S. 1; Wright v. Council of City of Emporia, 407 U.S. 451; School Board of the City of Richmond v. State Board of Education, 412 U.S. 92; Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189; and Norwood v. Harrison, 413 U.S. 455.
I
INTRODUCTORY STATEMENT
The issue in this case is whether the remedy for illegal racial segregation of the Detroit public schools may properly include a cross-district pupil assignment plan between the Detroit school district and neighboring districts, where the record does not show whether
1 The United States intervened in the court of appeals pur-
suant to 28 U.S.C. 2403, because the constitutionality of an Act of Congress (Section 803 of P.L. 92-318, 86 Stat. 235, 372) had been called into question. The court of appeals found it unnecessary to consider the applicability or constitutionality of the statute in question (Pet. App. 189a), which, by its terms, expire.d on January 1, 1974.

3
constitutional violations affected the racial composition of schools outside the Detroit district and where the suburban districts have had no effective opportunity to be heard on the propriety of a metropolitan-wide remedy.
This case began in August 1970 when certain of the respondents, primarily black parents and their children who attended schools in the Detroit public school system, sued city and state officials, alleging that the officials had pursued a policy and practice of racial discrimination in the operation of the Detroit public schools, which had resulted in a racially segregated school system.' The plaintiffs sought, inter alia, an order requiring the defendants to present a plan "for the elimination of the racial identity of every school in the [Detroit] system and to maintain now and hereafter a unitary, nonracial school system" (Pet. App. 15a). The case was twice before the court of appeals on preliminary matters (433 F. 2d 897, 438 F. 2d 945), and a trial on the merits was held from April to July of 1971.
In September 1971, the district court entered its findings of fact and conclusions of law on the issue of racial segregation in the Detroit schools (Pet. App. 17a-39a). It found that the Detroit school board had engaged in official acts of racial discrimination that
2 The complaint also alleged that a recently-adopted Act of
the state legislature unconstitutionally interfered with a. voluntary plan of desegregation adopted by the Detroit Board of Education (Pet. App. 8a-10a). The Act was held unconstitutional by the court of appeals in an earlier phase of this liti-
gation (433 F. 2d 897).

had contributed to racial segregation in the school system. The board's use of optional attendance zones in
areas undergoing racial transition and between schools
of opposite predominant racial composition "allowed whites to escape integration" (id. at 25a) ; the board transported children on a racially discriminatory basis (ibid.); it gerrymandered attendance zones and altered grade structures "in a manner which has had the natural, probable and actual effect of continuing black and white pupils in racially segregated schools" (id. at 25a-26a) ; and it pursued discriminatory school construction policies (id. at 27a, 28a).
The court also found that official acts of state agencies contributed to the racial segregation in Detroit's
schools. The enactment of state legislation rescinding a voluntary plan of desegregation that had been adopted by the Detroit board was designed, the court held, "to impede, delay and minimize racial integration in Detroit schools" (id. at 28a) ; 3 and state officials, as well as the Detroit board, participated in racially discriminatory decisions concerning school construction (ibid.).4 The court also concluded that Michigan law vests in the State Board of Education "supervision over all public education" (id. at 36a).
3 The details of the statute are set forth in the. opinion of the court of appeals holding it unconstitutional (433 F. 2d 897).
4 The, court also noted that state law did not provide funds or authority for the transportation of pupils in Detroit, though it did provide for transportation of some pupils attending suburban . districts. The court stated that this "and other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax

Turning to the question of an appropriate remedy for the constitutional violations, the district court addressed a pending motion by intervening defendants to join as additional parties defendant 85 school districts in the three counties surrounding Detroit, on the ground that effective relief could not be achieved without their presence (see I App. 119-129).3 The court deferred ruling on that motion, pending the submission of proposed remedies by existing parties (Pet. App. 38a-39a). In a subsequent hearing, the court stated that "perhaps only a plan which embraces all or some of the greater Detroit metropolitan area can hope to succeed" (id. at 40a). It ordered the Detroit school board to submit a proposed plan for desegregation within its district and ordered the state defendants to submit a "metropolitan plan of desegregation" (id. at 43a).6
Before ruling on the plans submitted by the state and city defendants, the district court granted motions by some of the suburban school districts to intervene in the proceeding, but restricted their participation essentially to advising the court on the propriety of a metropolitanwide remedy in general and on the merits of the par-
effort, have, created and perpetuated systematic educational inequalities" (Pet. App. 27a). The court did not indicate whether any such disparities had affected the racial composition of the school districts. Cf. San Antonio Independent School Dstr;ct v. Rodriguez, 411 U.S. 1.
5 "App." refers to the five-volume joint appendix, each volume of which is separately paginated.
The court of appeals held that this order was not appealable (468 F. 2d 902), and this Court denied certiorari (409 U.S. 844).

6

ticular desegregation plan submitted to the court

(I App. 204-207).

The district court thereafter issued the three rul-

ings that were principally at issue in the court of

appeals.

(1) On March 24, 1972, in its ruling on the pro-

priety of considering a metropolitan-wide remedy

(Pet. App. 48a-52a), the district court addressed the

question whether it could "consider relief in the form

of a metropolitan plan, encompassing not only the

City of Detroit, but the larger Detroit metropolitan

area" (id. at 49a). It rejected both the state defend-

ants' argument that no state action caused the seg-

regation of the Detroit schools, and the suburban

districts' contention that interdistrict relief is inappro-

priate unless the suburban districts have themselves

committed violations. The court concluded (id. at

51a) :

[I]t is proper for the court to consider metropolitan plans directed toward the desegregation of the Detroit public schools as an alternative to the present intra-city desegregation plans before it and, in the event that the court finds such intra-city plans inadequate to desegregate such schools, the court is of the opinion that it is required to consider a metropolitan remedy for desegregation.

(2) On March 28, 1972, the court issued its findings

and conclusions on the three "Detroit-only" plans

submitted by the city board and the plaintiffs (id. at

53a-58a). It found that the best of the three plans

"would make the Detroit system more identifiably

Black *

thereby increasing the flights of Whites

7
from the city and the system" (id. at 55a). From this the court concluded that the plan "would not accomplish desegregation" and that desegregation "cannot be accomplished within the corporate geographical limits of the city" (id. at 56a). It accordingly held that it "must look beyond the limits of the Detroit school district for a solution to the problem of segregation" (id. at 57a). Relying on Bradley v. School Board of the City of Richmond, Virginia, 338 F. Supp. 67 (E.D. Va.), reversed, 462 F. 2d 1058 ( C.A. 4), affirmed by an equally divided Court, 412 U.S. 92, the court held that [s] chool district lines are simply matters of political convenience and may not be used to deny constitutional rights" (Pet. App. 57a) .
(3) On June 14, 1972, the district court issued a ruling on the desegregation area (id. at 97a-105a) and related findings and conclusions (id. at 59a-96a). The court acknowledged at the outset that it had "taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties [in the Detroit area], nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation" (id. at 60a). Nevertheless, it designated 53 of the suburban school districts plus Detroit as the "desegregation area" (id. at 101a) and appointed a panel to prepare and submit "an effective desegregation plan" for the Detroit schools that would encompass the entire desegregation area (id. at 99a). The plan was to be based on 15 clusters, each containing part of the Detroit system and two or more suburban districts (V App. 111-115), and was to "achieve the
532-849 74 2

8
greatest degree of actual desegregation to the end that,
upon implementation, no school, grade or classroom
[be] substantially disproportionate to the overall pupil
racial composition" (Pet. App. 101a-102a).
A divided court of appeals, sitting en bane, affirmed
in part, vacated in part, and remanded for further
proceedings (Pet. App. 110a-240a). 7 The court held,
first, that the record supports the district court's
findings on the constitutional violations committed
by the Detroit board (id. at 118a-151a) and by the state defendants (id. at 151a-157a).' It stated that
7 The district court had certified most of the foregoing rulings for interlocutory review pursuant to 28 U.S.C. 1292(b) (I App. 265-266), and a panel of the court of appeals had granted leave to appeal (Pet.. App. 108a-109a). The. case was initially decided on the merits by a panel, but the panel's opinion and judgment were vacated when the court determined to rehear the case en bane (see Pet. App. 111a-112a).
S With respect to the State's violations, the. court of appeals held : (1) that, since the city board is an instrumentality of the State and subordinate to the state board, the segregative actions of the Detroit board "are the actions of an agency of the State" (Pet. App. 151a) ; (2) that the state legislation rescinding Detroit's voluntary desegregation plan (see p. 4, supra) contributed to increasing segregation in the Detroit
!cools (ibid.); (3) that under state law prior to 1962 the state yard had authority over school construction plans and must erefore be held responsible "for the segregative results" (ibid.); (4) that the "State statutory scheme of support of transportation for school children directly discriminated against Detroit" (id. at 154a) by not providing transportation funds to Detroit on the same basis as funds were provided to suburban districts (id. at 151a) ; and (5) that the transportation of black students from one suburban district to a black school in Detroit must have had the "approval, tacit or express, of the State Board of Education" (id. at 152a).

9
the acts of racial discrimination shown in the record are "causally related to the substantial amount of segregation found in the Detroit school system" (id. at 157a), and that "the District Court was therefore authorized and required to take effective measures to desegregate the Detroit Public School System" (id. at 158a).
The court of appeals also agreed with the district court that "any less comprehensive a solution than a metropolitan area plan would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area" (id. at 163a-164a). It stated that it could "not see how such segregation can be any less harmful to the minority students than if the. same result were accomplished within one school district" (id. at 164a).
The court of appeals accordingly concluded that "the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan" (id. at 172a). It reasoned that such a plan would be appropriate because of the State's violations, and could be implemented because of the State's authority to control local school districts. "[T]he State has committed de jure acts of segregation and * * the State controls time instrumentalities whose action is necessary to remedy the harmful effects of the State acts" (ibid.). An inter-

10
district remedy is thus "within the equity powers of the District Court" (id. at 173a).'
The court of appeals expressed no views on the propriety of the district court's "desegregation area." It held that all suburban school districts that might be affected by any metropolitan-wide remedy should be made parties to the case on remand and be given an opportunity to be heard with respect to the scope and implementation of such a remedy (id. at 177a). Under the terms of the remand, however, the district court need not receive further evidence on the issue of segregation in the Detroit schools or on the propriety of a Detroit-only remedy (id. at 178a).
It is our view that the remedy for unconstitutional segregation of the public schools in a school district can properly extend beyond the boundaries of the district only where the violation has directly altered or substantially affected the racial composition of schools outside the district and only to the extent necessary to eliminate the segregative effects of the violation. Where the schools of only one district have been affected, there is no constitutional requirement that the relief include a balancing of the racial composition of that district's schools with those of surrounding districts.
The record does not support the ruling of the court
9 The court sought to distinguish Bradley v. School Board of the City of Richmond, Virginia, 462 F. 2d 1058 (C.A. 4), affirmed
by an equally divided Court, 412 U.S. 92, on the grounds that the district court in that case had ordered an actual consolidation of three school districts and that Virginia's constitution and statutes, unlike Michigan's gave the local boards exclusive power to operate the public schools (Pet. App. 175a) .

11
of appeals that a metropolitan-wide remedy is appropriate to cure the violations found in this case, virtually all of which affected only the schools in the Detroit system. The case should be remanded to permit all the parties, many of whom have not yet been heard in the district court, to present evidence and argument on the existence of any constitutional violations that have directly altered or substantially affected the racial composition of schools outside Detroit, and on the appropriate remedy for any such violation.
II
THE REMEDY FOR UNCONSTITUTIONAL SCHOOL SEGREGATION MAY EXTEND BEYOND THE BOUNDARIES OF A SINGLE DISTRICT ONLY IF, AND TO THE EXTENT THAT, THE VIOLATION HAS DIRECTLY ALTERED OR SUBSTANTIALLY AFFECTED THE RACIAL COMPOSITION OF SCHOOLS IN MORE THAN ONE DISTRICT
This Court held in Swann v. Board of Education, 402 U.S. 1, 16, that the task in fashioning school desegregation relief "is to correct * * the condition that offends the Constitution." It follows that "the nature of the violation determines the scope of the remedy" (ibid.).
The mere co-existence, within a State, of adjacent school districts having disparate racial compositions is not itself a constitutional violation. Spencer v. Kugler, 404 U.S. 1027, affirming 326 F. Supp. 1235 (D. N.J.)." As Solicitor General Griswold explained
" In Spencer this Court affirmed the district court's decision
that, at least in States not recently operating dual school systems, extreme racial imbalance, without more, does not authorize—let alone require—the court to revise neutrally established school district lines.

12
last Term in the Memorandum for the United States
as Amiens Curiae in School Board of the City of Richmond, Virginia v. State Board of Education (No. 72549), supra, at pp. 13-15 (footnote omitted) :
In determining that one school system for the entire region should be created, the district court relied upon (Pet. App. 187'a) this Court's statement in Swann, supra, 402 U.S. at 26, that for remedial purposes, there is "a presumption against schools that are substantially disproportionate in their racial composition." But disproportionate in relation to what? Surely not to some absolute standard, for the Constitution does not establish any fixed ratio of black students to white students that must be achieved. Instead, whether a particular school is racially imbalanced or identifiable can be determined only by comparing it with "the racial composition of the whole school system." Swann v. Board of Education, supra, 402 U.S. at 25; see also id. at 24.
Thus, the question whether, for example, an elementary school having a student body 70 percent black and 30 percent white is racially imbalanced or has a substantially disproportionate racial composition is in itself unanswerable. Some frame of reference is needed and, as Swann indicates, the proper comparison (to the extent that racial balance is relevant) is with the racial composition of the population in the school system operating the particular school since the purpose is to ensure complete elimination of the dual system by having one set of schools for both blacks and whites. And under Swann there would be no presumption against schools, such as the one in the example above, if

13
these schools reflected the black-white ratio of the entire school system. 402 U.S. at 25-26.
Why then would there be a presumption against the school system itself with the same 70 : 30 ratio of blacks to whites, as the district court concluded here with respect to the school system of the City of Richmond? (Pet. App. 186a-188a.) Stated differently, on what basis could the district court conclude that its remedy should reach outside the school system of the City of Richmond? Apparently, the court believed that it must look beyond the Richmond system in fashioning relief because the City school system is racially disproportionate or Unbalanced in relation to the adjacent County school systems, thereby resulting in racial identifiability of the three systems (e.g., Pet. App. 185a-187a, 230a, 237a-238a). But the court had to look beyond the Richmond system and compare it with the surrounding Counties in the first place in order to determine whether the Richmond system is racially imbalanced in comparison with the adjacent systems. This is not only circular as a reason for fashioning relief beyond the Richmond system, but also heedless of the extent of the constitutional violation being remedied.
Thus, in our view, an interdistrict remedy, requiring
the restructuring of state or local government entities,
is appropriate only in the unusual circumstance where it is necessary to undo the interdistrict effect of a con-
stitutional violation. Specifically, if it were shown that
the racially discriminatory acts of the State, or of sev-
eral local school districts, or of a single local district,
have been a direct or substantial cause of interdistrict

14
school segregation, then a remedy designed to eliminate the segregation so caused would be appropriate.
One example of circumstances warranting interdistrict relief is where one or more school systems have been created and maintained for members of one race. See, e.g., United States v. Texas, 321 F. Supp. 1043 (E.D. Texas), affirmed, 447 F. 2d 441 (CA. 5), certiorari denied sub nom. Edgar v. United States, 404 U.S. 1016; Haney v. County Board of Education of Sevier County, 429 F. 2d 364 (C.A. 8). Similarly, where the boundaries separating districts have been drawn on account of race, an interdistrict remedy is appropriate. See, e.g., United States v. Missouri, 363 F. Supp. 739 (E.D. Mo.)." Some form of interdistrict relief may also be appropriate where pupils have been transferred across district lines on a racially discriminatory basis.
In each instance of an interdistrict violation, the remedy should, in accordance with traditional principles of equity and the law of remedies, be tailored to fit the violation, particularly in view of the deference owed to existing governmental structures. See, e.g., Bradley v. School Board of the City of Richmond, Virginia, supra, 462 F. 2d at 1067-1069; cf. Wright v. Council of City of Emporia, supra, 407 U.S. at 478 (Burger, C.J., dissenting). Any modification of those structures
Cf. Wright v. Council of City of Emporia, 407 U.S. 451; United States v. Scotland Neck Board of Education, 407 U.S. 484. In those cases, this Court held that an "attempt by state or local officials to carve out a new school district from an existing district that is in the process of dismantling a dual school system" may be enjoined by the district court if it would impede the dismantling of the dual system (id. at 489).

15
should be narrowly framed to eliminate the interdistrict segregation that has been caused by the particular violation, so as to avoid unnecessary judicial interference with state prerogatives concerning the organization of local governments. Thus, a single instance of discriminatory cross-district transfers between only two school districts (see pp. 19-20, infra) would not warrant the kind of metropolitan-wide interdistrict remedy involving 54 districts that the courts below contemplate here. The appropriate relief should be limited to correcting the segregative conditions caused by the transfers.'
III
THE RECORD IN THIS CASE DOES NOT SUPPORT THE BROAD METROPOLITAN-WIDE REMEDY CONTEMPLATED BY THE COURT OF APPEALS
This Court does not have before it a final order adopting a particular plan of desegregation. It is reviewing, instead, a general determination that the segregation of the Detroit public schools shown on this record warrants an interdistrict remedy potentially embracing much or all of the 86-district metropolitan
12 Moreover, even a finding of some interdistrict violations
would not mean that extensive interdistrict bussing should be required as a remedy regardless of its disruptive effects or other costs. This Court specifically stated in Swann that "[a]n objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process" (402 U.S. at 30-31), and it indicated that in remedying school segregation the courts should engage in the process of informed "reconciliation of competing values" that "courts of equity have traditionally employed" (402 U.S. at 31).

16
area. In our view, the record does not support such a remedy, because it does not show that the constitutional violations have directly altered or substantially affected the racial composition of schools in districts outside of Detroit.
Neither the district court nor the court of appeals predicated its conclusion concerning the propriety of a metropolitan-wide remedy on the existence of any violation caused by or affecting more than one district. There is, first of all, no finding that any school district other than Detroit has engaged in racial discrimination : the district court specified that it had taken no evidence on whether the suburban districts "have committed acts of de jure segregation" (Pet. App. 60a). Nor is there any proof that state or local officials gerrymandered district lines for purposes of racial discrimination. On this point, too, the district court took no evidence (ibid.).
The district court found—and the court of appeals upheld the findings—that the Detroit school board had committed unlawful acts of discrimination causing substantial racial segregation in the Detroit schools and that the state defendants had also committed violations contributing to the segregation in those schools (id. at 118a-157a see id. at 24a-28a, 33a38a). But the record thus far does not establish any basis for concluding that the state or city violations have directly altered or substantially affected the racial composition of schools outside Detroit.
The district court, in its September 27, 1971, ruling on the issue of segregation, considered "the present racial complexion of the City of Detroit and its

17
public school system" in light of "what has happened in the last half century" in the Detroit metropolitan area (Pet. App. 19a). In the course of that general historical review, the court stated (id. at 23a) : "Governmental actions and inaction at all levels, federal, state, and local, have combined, with those of private organizations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of residential segregation throughout the Detroit metropolitan area." While the court also noted that "there is an interaction between residential patterns and racial composition of the schools" (id. at 24a), its findings of constitutional violations and racial segregation in the schools were limited to "the Detroit school system" (ibid.)." It did not find that any suburban school segregation was caused by any state or local acts of de jure racial discrimination.
Similarly, the court of appeals concluded that the discriminatory practices of the state and city defendants are "causally related to the substantial amount of segregation found in the Detroit school system" (id. at 157a.; emphasis added) and that the district court was required "to desegregate the Detroit Public School System" (id. at 158a; emphasis added)." The
13 The district court's conclusions were that "[t]he public schools operated by defendant Board are * * segregated on a racial basis" (Pet. App. 26a; emphasis added) and that the State and the Detroit board "have committed acts which have been causal factors in the segregated condition of the public schools of the City of Detroit" (id. at 33a; emphasis added).
14 The decision of the court of appeals dealt at some length with the question of violations within the city of Detroit (see Pet. App. 118a-151a). Although one of the petitioners appears

18
court of appeals also stated, however, that "the State has been guilty of discrimination which had the effect of creating and maintaining racial segregation along school district lines" (id. at 172a). That statement appears in the section of the court's opinion relating to the propriety of an interdistrict remedy in circumstances where a Detroit-only remedy would lead to an overwhelmingly black city school system. The statement is followed by a reference to an earlier section of the opinion concerning the violations committed by the State (id. at 151a-157a). The earlier section itself, however, cites only one instance of a possible interdistrict violation.
As we indicated above zi13:e4at . (p. 8, n. 8, supra), the court of appeals found that the State committed five constitutional violations. With respect to four of those violations, there is nothing to indicate that any of them affected the racial character of schools outside the Detroit system. First, the court held that the State was derivatively responsible for the Detroit board's violations (Pet. App. 151a), but, so far as this record shows, those violations themselves affected only the schools within the Detroit district. Second, the State's legislative interference with Detroit's voluntary desegregation plan contributed, in the court's words, only to "segregation of the Detroit school system"
now to challenge the affirmance by the court of appeals of the findings concerning intra-Detroit violations (see Brief for Petitioner in 73-436, pp. 15-18), the correctness of that aspect of the decision was not questioned in any of the petitions. In any event, this aspect of the decisions below appears consistent with this Court's decision last Term in Keyes v. School District No.
1, Denver, Colorado, 413 U.S. 118, / P7

19
(ibid.). Third, the court held that the State's authority to supervise school site selection and to approve building construction plans means that the State is responsible for "the segregative results" of "Detroit's school construction program" (ibid.); again, there is no basis for concluding that Detroit's construction program affected suburban districts." Fourth, there is no indication in the record or in the opinions below how, i.f 'at all, the availability of state-financed transportation for some Michigan students outside Detroit but not within Detroit (ibid.) might have affected the racial character of any of 'the State's school districts.
The fifth violation that the court of appeals attributed to the State is the only one that can be said, on the present record, to have had some interdistrict racial impact. In one instance, the suburban Carver school district arranged by contract to have its black high school students educated in a predominantly black Detroit high school, because "no white suburban district (or white school in the city) would take the children" (Pet. App. 137a). The court of appeals stated that this cross-district transportation "could not have taken place without the approval, tacit or express, of the State Board of Education" (id. at 152a). Of course, such an arrangement between the Carver and Detroit school boards was state
15 The court of appeals asserted that, "as was pointed out
above, the State approved school construction which fostered segregation throughout the Detroit metropolitan area" (Pet. App. 157a). But its only reference is to an earlier section of the opinion that relates to the segregative. impact in Detroit of the school construction program in that district (id. at 144a151a).

20
action which may have amounted to unconstitutional racial segregation," regardless of whether the State Board participated in it. But the appropriate remedy would be one tailored to fit that possible violation— also regardless of State Board participation—since such participation would not change the nature or consequences of the violation. An isolated instance of cross-district transfers on account of race between only two school districts (and possibly involving refusals for racial reasons by schools in one or a small number of other districts to accept the transferred students) cannot, as a matter of equity, support a metropolitan-wide interdistrict remedy involving 54 or more school systems.
Indeed, neither the district court nor the court of appeals predicated its holding on the existence of a violation affecting the racial composition of the suburban districts. The district court determined that a metropolitan-wide remedy would be appropriate to desegregate the Detroit schools, because it concluded that any effective plan limited to Detroit "would accentuate the racial identifiability of the district as a Black school system, and would not accomplish desegregation" (Pet. App. 56a). The court of appeals reached the same conclusion : " [A] fly Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools" (id. at 172a-173a). Such .a remedy "cannot correct the constitutional violations herein found" (id. at 173a).
The prediction that massive "white flight" will result from an effective intra-Detroit desegregation
"See Pet. App. 96a, 137a-139a; II App. 109-111, 131.

plan is inherently speculative, and in any event does
not change the nature of the violation to be remedied. For that reason, such a prediction does not in itself
warrant interdistrict relief. On this aspect of the case,
also, we adhere to the following views stated last
Term by Solicitor General Griswold in response to a similar prediction by the district court in the Rich-
mond case (Memorandum for the United States as Amiens Curiae, supra, pp. 17-20; footnotes omitted or
renumbered) :
The district court also believed that the school system of the City of Richmond could not become a unitary system within its boundaries because a "viable racial mix" would not be possible in light of the racial composition of Richmond's population (Pet. App. 207a, 420a, 519a ; see, e.g., id. at 201a, 230a, 237a-238a, 436a-442a, 444a). The court pointed to evidence that the current proportion of blacks to whites in the Richmond school system has resulted in whites leaving Richmond's public schools and that unless the trend were reversed, the City's schools might become all black.
The duty of the district court in this case was to ensure that the Richmond school system converted to a unitary system. And as we have discussed, see pp. 11-17, supra, as long as the school authorities operate just schools instead of one set of schools for blacks and another for whites, it matters not at all whether the system has more black students than white students or vice-versa. The schools of Vermont are not segregated even though most of them are all white. Under the district court's theory and its consolidation order, which would reverse the racial

22
composition of the Richmond schools from majority black to majority white, the apparent goal is to have a school system with substantially more white children than black children. But the Fourteenth Amendment does not prefer predominantly white school systems over predominantly black school systems and it does not sanction the district court's transforming its preference in this regard into a constitutional command.
We of course agree that the federal courts have wide discretion to bring about unitary school systems. But as Chief Justice Marshall stated long ago, to say that the matter is within a court's discretion means that it is addressed not to the court's "inclination, but to its judgment; and its judgment is to be guided by sound legal principles." The purpose of a courtordered remedy in these cases is to cure the violation, to correct "the condition that offends the Constitution." Swann v. Board of Education, supra, 402 U.S. at 16. Yet here the district court, instead of ordering relief within the bounds of Richmond's constitutional violation, went far beyond in the hope of forestalling the result of a possible migration of whites from the City, a result not in itself unconstitutional but thought by the district court to be undesirable.
If a certain desegregation plan would become ineffective shortly after implementation this is certainly something the district court should consider. Surely it would have been proper in this case for the district court to seek a remedy within the Richmond system that promised
17 United States v. Burr, 25 Fed. Cas. 30, 35 (No. 14,692d, 1807).

23
maximum stability. But the desire to preserve the existing racial character of the City of Richmond or of its school system is not of constitutional dimensions and does not warrant including within the scope of relief other school systems that are uninvolved in Richmond's violation. Petitioners may prefer a consolidated school system with a large, stable white enrollment; the Constitution does not.
Indeed, even in the context of relief within a single district, this Court clearly indicated in Swann (402 U.S. at 31-32) that the proper remedy in school desegregation cases does not include pursuit of demographic changes. When the violations found have been cured, " [t]he [school] systems would then be 'unitary' m " (402 U.S. at 31), and "in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary" (402 U.S. at 32). Obviously, there is even less reason to extend the remedy across district lines on the basis of demographic differences (in the absence of interdistrict
violation). Nor, in our view, do the district court's general re-
marks about housing discrimination (supra, p. 17), on which its present decision apparently was not based, provide a proper foundation for the interdistrict relief contemplated by the courts below. Indeed, more specific evidence and findings of housing and other collateral discrimination were relied upon last Term in the Richmond case, and we adhere, on this point

24
as well, to the views stated in the Memorandum for
the United States as Amiens Curiae in that case (pp. 23-26; footnotes renumbered).
Petitioners rely primarily on evidence of housing discrimination and of various kinds of either intrasystem or state-wide racial discrimination to overcome this presumption." The housing pattern in the Richmond metropolitan area is similar to that found. in most metropolitan areas of this country. The inner city has a large black population and the surrounding suburbs are primarily white. While the causes of this housing pattern are manifold, the court of appeals accepted the contention "that within the City of Richmond there has been state (also federal) action tending to perpetuate apartheid of the races in ghetto patterns throughout the city, and that there has been state action within the adjoining counties also tending to restrict and control the housing location of black residents" (Pet. App. 572a).
Other acts cited as establishing an inter-system violation are Virginia's "massive resistance" campaign against school desegregation (Pet. App. 313), various types of delaying actions undertaken to resist desegregation of the Richmond schools (Pet. App. 189a), actions by state officials tending to reinforce racism (Pet. App. 189a), construction of racially identifiable schools after Brown I (Pet. App. 287a), discrimination in public employment in Henrico and Chesterfield Counties (Pet. App. 510a),
1$ They also mention past instances of transportation of black students across school division lines in the State in order to perpetuate state-enforced segregation of schools (Pet. App. 360a; cf. id. at 388a). *

25
lack of public transportation for poor persons (Pet. App. 514a), past state restrictions on inter-racial contacts of various kinds," and state approval of school construction sites without regard to the impact on school desegregation (Pet. App. 206a).
Such acts are a shameful part of our history, and the Nation has in recent years enacted laws to remedy many of them. See, e.g., 42 U.S.C. 1973 (voting), 2000e (employment), and 3601-3619 (housing). See also the Virginia Fair Housing Law, enacted in 1972, Code of Virginia, Title 36, Chapter 5. But even if some or all of these acts, including participation in residential housing discrimination, have contributed in some degree to the present racial composition of the public schools in the three school systems within the metropolitan Richmond area, the question remains whether there is a sufficiently proximate and substantially causal relationship to the racial disparity between school systems to warrant a conclusion that state-enforced racial discrimination in the public schools has resulted.'"
Racial discrimination in such areas as housing, employment, and public expenditures are
19 See, e.g., Boynton v. Virginia, 364 U.S. 454; Loving v. Virginia, 388 U.S. 1 ; NAACP v. Button, 371 U.S. 415.
20 The past existence of state-imposed discrimination, including school segregation, might, for example, also have contributed in some degree to decisions by individuals to discriminate in their social relationships, but this does not in itself necessarily convert what would otherwise be private discrimination into state action. Compare _Moose Lodge No. 107 v. Irvis, 407 U.S. 163, and Evans v. Abney, 396 U.S. 435, with Lombard v. Louisiana, 373 U.S. 267, Robinson v. Florida, 378 U.S. 153, and Burton v. TVilmington Parking Authority, 365 U.S. 715.

26
serious problems that must be attacked directly so that they can be eliminated from our society. But as this Court said in Swann, supra, 402 U.S. at 22-23:
The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope although desegregation of schools ultimately will have impact on other forms of discrimination.
We therefore conclude that the record in the present case does not warrant the fashioning of a metropolitan-wide remedy. We recognize, however, that, for practical purposes, the record was made at a time when only an intra-Detroit remedy was sought (see Pet. App. 13a-15a) and when many of the suburban school districts were not parties. We submit that the appropriate disposition in these circumstances is to remand the case to the district court with instructions to join as parties all the school districts in the threecounty metropolitan area. The district court should take evidence and make findings of fact concerning any constitutional violations involving the suburban districts and any interdistrict racially segregatory impact of the Detroit violations. If no such violation or impact is shown, relief should be limited to Detroit. If any such violation or impact is shown, the district court should, after considering the evidence and argu-

27
ment of all affected school districts, fashion appropriate relief to remedy the particular violations found.
CONCLUSION
For the foregoing reasons, the judgment of the court of appeals should be vacated and the case should be remanded for further proceedings in accordance with the principles stated herein.
Respectfully submitted. ROBERT H. BORK, Solicitor General.
J. STANLEY POTTINGER, Assistant Attorney General.
FEBRUARY 1974.
O.S. GOVERNMENT PRINTING OFFICE:1974

 
 918 F.2d 178 Unpublished Disposition NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court’s decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Sixth Circuit.
Ronald BRADLEY, Plaintiff, Thomas I. Atkins, Jeanne Mirer, and Michael Barnhart, Petitioners-Appellants,
v. William G. MILLIKEN, et al., Board of Education of the School Distirct of the City of Detroit, Defendants-
Appellees.
No. 89-1986. |
Nov. 14, 1990.
On Appeal from the United States District Court for the Eastern District of Michigan, 70-35257, Cohn, J.
Synopsis E.D.Mich.
AFFIRMED.
Before MERRITT, Chief Circuit Judge, and RYAN and ALAN E. NORRIS, Circuit Judges.
Opinion
RYAN, Circuit Judge.
*1 This case presents the question whether attorneys may seek and obtain an award of attorney fees, under 42 U.S.C. § 1988, in their own name and in their own behalf. We hold that they may not and that such fees are awardable only to a prevailing party. Therefore, we shall affirm the district court’s decision to deny plaintiffs’ application for attorneys’ fees.

I.
This issue we address arises from more than twenty years of litigation over the State of Michigan’s and the City of Detroit’s policies regarding the racial composition of the Detroit school system. Plaintiffs, a class composed of Detroit school children and their parents, represented by the National Association for the Advancement of Colored People (“NAACP”), alleged that state and local officials had intentionally maintained segregated public schools in Detroit. Plaintiffs ultimately prevailed in their claim of intentional discrimination, see 345 F.Supp. 914 (E.D.Mich 1972), aff’d in part and rev’d in part, 484 F.2d 215 (6th Cir.1973) (en banc), aff’d in part, 418 U.S. 717 (1974), and succeeded in setting up a desegregation plan. See 540 F.2d 229 (6th Cir.1976) (en banc ), aff’d, 433 U.S. 267 (1977).
The dispute involves a claim for attorney fees sought under 42 U.S.C. § 1988 brought by three attorneys who participated in various stages of the litigation. Thomas Atkins, who began working on the case in 1975, filed an application for an award of $157,465.20 for services rendered and $8,880.02 for costs incurred between 1984 and 1987. Jeanne Mirer and Michael

.

1

Barnhart, who worked on the case beginning in 1984, filed applications for fees awards of $26,775 and $7,262.50, respectively. Ms. Mirer also sought costs of $1,433.59 for the period of 1984 through 1989. Mr. Atkins’ service was performed in his capacity as counsel for the NAACP, a position he no longer holds. Ms. Mirer and Mr. Barnhart were local counsel assisting Mr. Adkins. The three plaintiffs are not presently counsel of record for the prevailing plaintiffs. The petition for fees and costs was brought in the name of the plaintiff attorneys and not in the name of the prevailing parties.
The district court conducted a hearing on the petitions and rejected the attorneys’ applications because the applicants were attorneys, not parties to the suit, and because the attorneys had not shown that they sought the fees and costs on behalf of any prevailing party as required by 42 U.S.C. § 1988. The court’s order dismissing the action stated that the applications were denied “without prejudice.” Moreover, the order provided that the petition for fees and costs must be filed in the name of the NAACP and the NAACP Special Contribution Fund by their current general counsel who represents the plaintiff class.
II.
A. Jurisdiction
As a threshold matter, we must decide whether the district court’s order is appealable. This court’s jurisdiction is limited to appeals from final decisions of the district courts. 28 U.S.C. § 1291. A final order is one which disposes of all issues and leaves no questions to decide. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981).
*2 Defendants argue that the district court’s decision denying the attorneys’ fees and costs is not appealable since it was entered “without prejudice.” However, the statement “without prejudice” is mere surplussage and merely leaves open the possibility of the NAACP seeking attorneys’ fees. The denial of fees and costs is final as to the plaintiffs in this action. Therefore, we hold that the district court’s decision is a final judgment from which an appeal may be taken pursuant to 28 U.S.C. § 1291.
B. Denial of Attorneys’ Fees
Section 1988 provides that “[i]n any action or proceeding to enforce a provision of [certain civil rights actions] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The United States Supreme Court has held that “Section 1988 makes the prevailing party eligible for a discretionary award of attorney’s fees.” Venegas v. Mitchell, 495 U.S. 82, 110 S.Ct. 1679, 109 L.Ed.2d 74, 82 (1990)(citing Evans v. Jeff D., 475 U.S. 717, 730 (1986) (emphasis in original)). In holding that statutory fees awards may coexist with private fee arrangements, the Supreme Court noted that “it is the party, rather than the lawyer,” who is eligible for fees under section 1988. Id. at 82-83.
Moreover, the Supreme Court noted in Evans that “the language of the Act, as well as its legislative history, indicates that Congress bestowed on the ‘prevailing party’ (generally plaintiffs) a statutory eligibility for a discretionary award of attorney’s fees in specified civil rights actions.” 475 U.S. at 730 (emphasis in original). In holding that a settlement of a civil rights case may be conditioned on a waiver of attorney’s fees, the Court specifically stated that section 1988 did not bestow fee awards upon attorneys. Id. at 731.
Following Venegas and Evans, we hold that it is the prevailing party and not his attorney who is entitled to fees and costs under section 1988. Thus, Messrs. Atkins and Barnhart, and Ms. Mirer are not the proper parties to seek attorney’s fees under section 1988. Having so concluded, we need not address the subsidiary issue whether these attorneys represent prevailing parties.

.

2

III. The district court’s decision denying plaintiffs’ applications for attorneys’ fees is AFFIRMED.
All Citations 918 F.2d 178 (Table), 1990 WL 177183

.

3

 
 438 F.2d 945 (1971)
Ronald BRADLEY et al., Plaintiffs-Appellants, v.
William G. MILLIKEN et al., Defendants-Appellees, and Detroit Federation of Teachers, Local 231, American Federation of
Teachers, AFL-CIO, Defendant-Intervenor.
No. 21036.
United States Court of Appeals, Sixth Circuit.
February 22, 1971.
946*946 Louis R. Lucas, Memphis, Tenn., for plaintiffs-appellants; William E. Caldwell, Ratner, Sugarmon & Lucas, Memphis, Tenn., E. Winther McCroom, Cincinnati, Ohio, Nathaniel Jones, Gen. Counsel, N.A.A.C.P., Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, New York City, Bruce Miller, Lucille Watts, Legal Redress Committee, N.A.A.C.P., Detroit Branch, Detroit, Mich., on brief; J. Harold Flannery, Paul Dimond, Center for Law and Education, Cambridge, Mass., of counsel.
George E. Bushnell, Jr., Carl H. Von Ende, Detroit, Mich., Eugene Krasicky, Lansing, Mich., for defendants-appellees; Miller, Canfield, Paddock & Stone, Detroit, Mich., Frank J. Kelley, Atty. Gen., Eugene Krasicky, Asst. Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., on brief.
Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
PER CURIAM.
This is the second appeal to this court in a case in which there has been no hearing on the merits.
Plaintiffs-appellants have alleged that the school system of the City of Detroit is being operated in an unconstitutional manner by failing to conform to the standards enunciated in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19, and other decisions of the Supreme Court on the issue of desegregation of the public schools. As a consequence, it is asserted that remedial orders by the District Court are necessary to correct the situation. On the present appeal relief is sought in this court in the form of a motion for summary reversal or in the alternative for injunction pending appeal.
In our decision on the previous appeal, Bradley v. Milliken, 433 F.2d 897 (6th Cir.), this court affirmed the order of the District Court refusing to grant a preliminary injunction and remanded the case for a hearing on its merits.

The issue in this case is not what might be a desirable Detroit school plan, but whether or not there are constitutional violations in the school system as presently operated, and, if so, what relief is necessary to avoid further impairment of constitutional rights. There must be a trial on the merits as to the alleged constitutional violations as a predicate to relief in the federal courts. On the present appeal a second effort is made to persuade this court to grant summary relief. The trouble with this procedure is that there has never been an evidentiary hearing on the 947*947 charges set forth in the complaint nor any findings of fact with respect to these charges.
At the time of the hearing of the previous appeal, representations were made to this court that an early trial on the merits would be conducted in the District Court. The opinion recited that the District Judge not only conducted an expeditious hearing on the application for a preliminary injunction but had advanced the case on his docket to early in November 1970, and alloted two weeks for the trial. This court further said: "We conclude that the issues presented in this case, involving the school system of a large city, can best be determined only after a full evidentiary hearing." 433 F.2d at 905.
In an effort to facilitate the hearing in the District Court of the case on its merits, this court expedited the rendering of its decision on the former appeal, releasing its opinion October 13, 1970, two weeks after oral argument.
Against this background, we do not consider the actions of the parties or the District Judge to have been in accord with the directive of this court.
Instead of proceeding with the trial on its merits as scheduled, plaintiffs-appellants filed in the District Court a motion for the immediate implementation of the "April 7 Plan." The District Court thereupon postponed the hearing on the merits to December 8, 1970, and conducted a hearing on the motion. On November 6, 1970, the District Court entered an order directing that the Detroit Board of Education submit a high school attendance area plan "consisting of that portion of the action taken by the Defendant Detroit Board of Education on April 7, 1970, going to the changing of attendance areas of certain named high schools in the City of Detroit, or an updated version thereof which achieves no less pupil integration."
Instead of submitting one plan as directed by the District Court, the Board of Education on November 16, 1970, submitted to the court three alternative plans assigning first priority to the "McDonald Plan" or "Magnet School Plan," second priority to the "Magnet Curriculum Plan" and third priority to the "April 7 Plan."
On December 3, 1970, the District Court entered an order directing that the Board implement the "McDonald Plan" at the beginning of the next full school year in September 1971 and continued the trial, theretofore scheduled to commence on December 8, 1970, "to a date to be fixed by the Court after a review of its calendar and its readjustment." Plaintiffs-appellants filed a notice of appeal from that order.
In our former opinion this court said:
"[W]e express no opinion at the present stage of the case as to the merits of the plan adopted by the School Board on April 7, 1970, or as to whether it was the constitutional obligation of the School Board to adopt all or any part of that plan." 433 F.2d at 904.
Likewise in the present opinion this court expresses no views as to the "McDonald Plan,"[1] the "April 7 Plan" or any other plan proposed by any of the parties to this litigation, or as to the constitutional obligation of the School Board to adopt any of these plans.

Since there has been no trial to determine whether the school system of Detroit is now operated under an unconstitutional plan, nor any finding to that effect, the motion for summary reversal is overruled. The case is remanded to the District Court with instructions that the case be set forthwith and heard on its merits and that appropriate findings of fact and conclusions of law be made 948*948 in accordance with Rule 52(a), Fed.R. Civ.P.
No costs are assessed. Each party will bear his own costs on this appeal.
Remanded.
[1] But see, Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed. 2d 716; Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed. 2d 727; Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733.

 
 460 F.Supp. 299 (1978)
Ronald BRADLEY et al., Plaintiffs, v.
William G. MILLIKEN, Governor of the State of Michigan, et al., Defendants.
Civ. A. No. 35257.
United States District Court, E. D. Michigan, S. D.
August 7, 1978.
300*300 301*301 Louis R. Lucas, Memphis, Tenn., Thomas Atkins, Boston, Mass., for plaintiffs.
George T. Roumell, Jr., Theodore Sachs, Detroit, Mich., George L. McCargar, Jr., Asst. Atty. Gen., Lansing, Mich., for defendants.
OPINION
DeMASCIO, District Judge.
We have re-examined carefully the demographic data characterizing the Detroit City Schools to determine whether further desegregation of Regions 1, 5 and 8 is possible. We undertake this task following an appeal of our remedial guidelines to the U.S. Sixth Circuit Court of Appeals. That court held our August 15, 1975 remedial guidelines for desegregation "insufficient as to Regions 1, 5 and 8" and remanded "for further consideration in regard to the[se] three central regions." Bradley v. Milliken, 540 F.2d 229, 239, 240 (6th Cir. 1976).
When considering all of the Regions collectively, the late Judge Stephen Roth found in 1972 that an adequate remedy based on pupil reassignments limited to the corporate limits of Detroit would be impossible. The U.S. Supreme Court did not disturb this finding. See Bradley v. Milliken, 402 F.Supp. 1096, 1104 (E.D.Mich.1975). We also agreed with Judge Roth's conclusion. We stated that:
If Detroit's school population were more equally divided between black and white or if the desegregation area were sufficiently large to permit greater equalization, it would be possible to diminish the inevitable limitations on the task of eliminating racially identifiable schools in the district. * * * * * * Limitations may be imposed by the desegregation area. For example, the black proportion of the population can be so great that racial balance will inevitably result in majority black schools. In such an area, only two alternatives are available: The desegregation area must be enlarged or flexibility must be permitted in defining a desegregated setting. 402 F.Supp. at 1102, 1131 (emphasis added).

The Sixth Circuit Court of Appeals has agreed on several occasions that desegregation within the geographic limitations of 302*302 Detroit is "extremely difficult (if not impossible)." See, e. g., Bradley v. Milliken, 540 F.2d 229, 236 (6th Cir. 1976).
As we seek to determine whether further desegregation is possible, it has become apparent that the litigants have not retained the adversary posture that characterized the liability issues tried before Judge Roth.[1] This changing adversary posture is only natural since the Detroit Board of Education has been willing to desegregate the school district without court prodding. Even before this action was filed in 1971, the Detroit Board planned the first stage for dismantling the dual system existing in the Detroit City Schools but was prevented from carrying it out by an act of the state legislature. In response to our April 1975 order, the Detroit Board submitted a plan for reassigning 51,000 students to desegregate the school district. At the hearings following the Court of Appeals remand, the Detroit Board produced demographic data to establish that it had accomplished all the desegregative pupil reassignments possible and that additional reassignments were not feasible. In addition, the Detroit Board offered extensive testimony to support a three-part plan for desegregating faculty and staff.
The plaintiffs are well aware that the Detroit Board of Education is striving to desegregate the school district. The plaintiffs persist, however, in their conclusion that a school district is desegregated only when the racial composition of each school mirrors the system-wide racial ratio within 15% in either direction. On the other hand, the defendant Detroit Board, charged with the primary responsibility for maintaining a viable school system, insists that a sound plan for desegregation must take into account the hard realities at hand. During the most recent evidentiary hearings, the plaintiffs did not produce any evidence to refute the Detroit Board's contention that inclusion of Regions 1, 5 and 8 in the desegregation plan is no longer feasible. The plaintiffs argued instead that the Detroit Board's "contained classroom" method of delivering bilingual instruction is resegregating Region 2 and is providing neighborhood schools for one ethnic group. Tr. Sept. 7, 1977 at 211. Thus, although the parties continue to disagree on an acceptable formula for desegregation, they are not and cannot be true adversaries.
Moreover, the state defendants are not in an adversary posture with either the Detroit Board of Education or the plaintiffs. They did not even participate in this last round of hearings. The state defendants have not really opposed the Detroit Board's efforts to desegregate; they only oppose paying the cost of desegregation. As a practical matter, the state's opposition to paying one half the cost for its own segregative acts is not always clear. After agreeing to pay 50% of the construction costs for five area vocational centers, the state appealed to the Supreme Court this court's order requiring them to pay for one half of the other remedial programs. At the same time, the state voices no opposition to this court's order requiring them to provide the budgetary requirements of the courtcreated Monitoring Commission and has not sought an annual review of that order.
No party has ever taken the initiative in the remedial phase of these proceedings. For example, although unfavorable Monitoring Commission Reports of lagging implementation of court-ordered remedial programs provided many opportunities for initiative, the plaintiffs have failed to take any action. In addition, following each appellate court mandate, it has been necessary for this court to order a status conference to determine how the parties intended to proceed. In each instance, the court then had to order one party or the other to proceed. Now that demographic projections predict that the school district will be 87% black in 1979, the prospect that the 303*303 parties will take adversary initiative in future proceedings is unlikely.
With the Court of Appeals remand in hand, we convened a status conference on October 27, 1976, to determine how the parties intended to proceed. Order of October 14, 1976. Five months later, with no party having moved for a hearing, we sua sponteordered that hearings on the issue of faculty assignments begin on April 21, 1977. The plaintiffs then filed a motion to compel the Detroit Board to

submit a further pupil reassignment plan and to adjourn the faculty assignment hearings pending resolution of the reassignment issue. We declined to adjourn the faculty hearings and subsequently ordered the Detroit Board to show cause why it should not be compelled to include Regions 1, 5 and 8 in the pupil reassignment plan. Order of April 20, 1977. The show cause hearing was subsequently adjourned at plaintiffs' request until September 6, 1977. The hearings on both issues have been completed and the parties have been afforded an opportunity to argue and submit proposed findings, briefs, and responsive briefs.
SUMMARY OF PRIOR PROCEEDINGS
Four years ago, this cause was remanded by the Supreme Court for the "prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools . . ." Milliken v. Bradley, 418 U.S. 717, 753, 94 S.Ct. 3112, 3131, 41 L.Ed.2d 1069 (1974) (Milliken I). Upon receipt of that mandate, we convened a pretrial conference to determine how the parties intended to proceed. We ordered the plaintiffs and the defendant Detroit Board of Education to submit plans for desegregating the Detroit school district, and we afforded each of the parties an opportunity to critique each of the plans submitted. Following lengthy hearings, we found both plans unacceptable. We then issued guidelines for desegregation and required the Detroit Board to submit plans which conformed to those guidelines.
Under the plaintiffs' plan, any school that varied more than 15% in either direction from the systemwide racial ratio was a racially identifiable school in need of desegregation. We found the plaintiffs' plan unacceptable because it steadfastly relied upon an arbitrary ratio for defining racially identifiable schools. We also rejected plaintiffs' plan because it involved extensive pupil transportation that achieved only negligible desegregative results. Black students would be frequently transported from one identifiably black school to another for the sole purpose of achieving a predetermined racial mix. 402 F.Supp. at 1122-25. The Court of Appeals also declined to implement plaintiffs' plan. 540 F.2d at 239.
We found that the Detroit Board's plan also impermissibly sought to achieve rigid racial ratios in each school. The Detroit Board believed that schools that were 40-60% black (50-50% plus or minus 10%) were less susceptible to demographic change. We rejected the Board's plan because it paired schools located in naturally integrated neighborhoods and transported white or black children for the sole purpose of accommodating a racial pattern. We agreed with the Detroit Board, however, that an acceptable desegregation plan within the meaning of Milliken I required the elimination of racially identifiable white schools in the City of Detroit. We reasoned:
[T]he evil of segregation lies in the devastating psychological impact upon black children of the knowledge that they are being excluded from white schools. . . . However, when blacks are represented in all schools throughout the system, i. e., when white identifiable schools are eliminated, this psychological effect no longer exists. 402 F.Supp. at 1132.
We also concluded, as had the defendant Detroit Board, that Regions 1, 5 and 8 could not be included in the pupil reassignment plan because to do so would preclude meaningful interaction between black and white students in the other regions, reasoning:
304*304 Plaintiffs refuse to acknowledge that the racial composition of these three regions precludes their inclusion in a desegregation plan. In Region V, for example, there are 31,354 students of whom (excluding the Spanish surnamed) only 989 (3.1%) are white. In Region VIII, there are 29,725 students of whom (excluding Spanish surnamed) only 1,329 (4.5%) are white. In Region I, there are 24,907 students of whom (excluding Spanish surnamed) only 2,049 (8.2%) are white. Clearly, it

would be futile to attempt desegregation within the boundaries of these regions; thus, a desegregation plan including these three regions would have to cross regional boundaries. But to include these regions in the Board's plan would bring about the same result that pertains after application of the plaintiffs' own plan. The plaintiffs' plan itself is sufficient proof that any attempt to include these regions produces only negligible results. Application of plaintiffs' plan "would make the Detroit school system more identifiably Black, and leave many of its schools 75 to 90 per cent Black. (Findings of Fact—March 28, 1972, 484 F.2d 215, 243-44 (1973.))
That inclusion of these three regions in a desegregation plan would produce only negligible desegregative results is inevitable because even excluding Regions I, V and VIII there are only 63,446 white students as compared to 103,007 black students. To attempt to disperse those white students throughout the eight regions, including the three overwhelmingly black regions, would produce such negligible desegregative benefits that the extraordinary remedy of such cross-regional bussing would be unwarranted. To do so would only serve to lessen the little community control blacks now enjoy in those regions and, therefore, injure the very class the remedy is intended to benefit. In the face of these "practicalities" there is no constitutional objection to leaving a number of one-race or predominantly one-race schools. 402 F.Supp. at 1129(footnotes and citations omitted) (emphasis added).
The Court of Appeals, although "recognizing the absence of alternatives," disapproved our exclusion of Regions 1, 5, and 8 and affirmed the pupil reassignment plan with respect to the remaining regions. The court characterized our finding of futility as "perfunctory treatment" holding that we "did not subject the exclusion of these three regions to the close scrutiny required by Swann [Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554]." 540 F.2d at 238. The court held that the record did not support the conclusion that the school board carried the heavy burden of justifying the one race schools located in these regions, and that it appeared we impermissibly considered these three regions in isolation. What neither the record before the Court of Appeals, nor this court's prior opinions revealed was the painstaking care with which the court attempted, with the assistance of its court-appointed experts, to devise a plan that would provide meaningful pupil reassignments in these regions. Three subsequent submissions by the Detroit Board were thoroughly examined, and we subsequently approved with modifications a Detroit Board plan which conformed to our guidelines. Bradley v. Milliken, 411 F.Supp. 943, 944 (E.D. Mich.1975). Given the small number of white students in the school district, we found it impossible to devise a plan which could bring meaningful pupil reassignments in each and every region. The Court of Appeals shared the same frustration that this court experienced in attempting to reassign students within these regions. The court stated:
We recognize that it would be appropriate for us at this point to supply guidelines to the District Judge as to what he should do under this remand. Omission of such guidelines is not based on any failure to consider the problem in depth. It is based upon the conviction which this court had at the time of its en banc opinion in this case . . . that genuine constitutional desegregation can not be accomplished within the school district boundaries of the Detroit School District. 540 F.2d at 240.
305*305 Our guidelines for desegregation had provided that schools should not have a black student population less than 30%, and we treated as desegregated a school whose student body was between 30% and 55% black. In order to preserve naturally integrated neighborhoods, we determined that schools already within these parameters should not be subjected to student reassignments. We required that all other available methods of pupil reassignments be exhausted prior to relying upon transportation. We further provided that the Detroit Board should achieve a racial mix of 50%-50% in zoned middle schools and should create open enrollment middle schools similar to the magnet middle schools then in existence, which would be acceptable when 55-70% black. 402 F.Supp. at 1134-38. We also ordered remedial programs which were designed to alleviate the effects of defendants' prior acts of segregation. 402 F.Supp. at 1118. These educational

components were affirmed by the Court of Appeals, 542 F.2d at 241-42, and by the Supreme Court, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II).
Finally, incidental to and concurrent with the implementation of our guidelines, we ordered that teachers in the Detroit school system be reassigned to achieve a distribution of not more than 70% of teachers of one race in each school. Order of August 28, 1975. The events leading to the entry of this order have been detailed elsewhere. Bradley v. Milliken, 426 F.Supp. 929, 940 (E.D.Mich.1977). The Court of Appeals vacated that order but agreed that a district court has equitable power to order the reassignment of faculty despite Judge Roth's prior finding that there had been no de jure segregation in faculty assignments by either the Detroit Board or the state defendants. 540 F.2d at 246-47. Our guidelines had acknowledged that there were other criteria for measuring a unitary system in addition to pupil assignments, such as faculty assignments, staff assignments, extracurricular activities, and equality of facilities. 402 F.Supp. at 1133.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Pupil Reassignments
The population shift from white to black in the district has accelerated well beyond our 1975 demographic projections. See 402 F.Supp. at 1137; see also 338 F.Supp. at 585. The official October 1976 count for the school district disclosed that it was 79.4% black. Tr. Sept. 6, 1977 at 10. By the end of the 1978-79 school year, the school district will be 87.0% black. Furthermore, the defendant Detroit Board has produced evidence, which we fully credit, that this school district will be 89.6% black by 1980 and 91.8% black by 1981. BX-C.[2]
The Detroit Board's chief demographer, Mr. Henrickson, prepared worksheets that depict the gradeto-grade survival method he utilized to arrive at the projections contained in BX-C. See BX-D. Mr. Henrickson obtained the actual number of births for the year 1966 as recorded by the Board of Health, corrected to Detroit residency. He then tracked the actual number of children, black and white, who appeared in kindergarten five years later and then followed that group of children as they progressed from grade to grade in their schools from 1971 through 1976. Tr. at 11-23; BX-D. Those computations establish that the grade retention rate for black students is much higher than for white students. For example, 97.9% of the black students entering kindergarten in 1971 remained in the school system through the sixth grade while only 78% of the white students remained. Mr. Henrickson testified that he used those retention rate percentages to project the composition of the student body through 1981 based on the trends that he observed for the period 1971-1976. Tr. at 11-12.[3] He did this for each grade individually, repeating the process for black and white students separately. Tr. at 13-17.
306*306 We find Mr. Henrickson's method of projection logical and reliably accurate. He testified that in his experience he has been able to predict future enrollment within 100 to 200 students. Tr. at 18. This is a standard procedure used in many school districts and one which he has used in the regular course of his employment to forecast future needs of the school system. Tr. at 31.
Mr. Henrickson further testified that in each year since 1971, approximately 10,000 fewer students have enrolled in the Detroit school system. Tr. at 24.[4] This downward trend is due principally to a reduction in the number of white students, and is expected to continue for at least the next five years. Tr. at 30.[5] The decline in the number of white students is attributable to the declining white birth rate, and in part to white parents who take their children out of the Detroit school system. Tr. at 22-24. During this period of decreasing enrollment, the total number of black students in the system has remained reasonably constant. Tr. at 24.[6] Considering the declining birth rate, together with the

declining retention rate for white students, Mr. Henrickson projects the racial composition in future years as follows:

YEAR 1978 1979 1980 1981

TOTAL ENROLLMENT 218,110 208,610 198,000 188,170

NUMBER/% BLACK
184,230 84.5%
181,550 87%
177,330 89.6%
172,820 91.8%

NUMBER/% WHITE
33,880 15.5%
27,060 13%
20,670 10.4%
15,350 8.2%

Thus, we are confident that Detroit will have a school system that is 91.8% black in 1981. This trend is independent of student assignments, and any changes that might be made in the pupil reassignment plan will neither accelerate nor decelerate the downward trend. Tr. at 26, 30.

In addition, pronounced demographic shifts are occurring throughout the entire city. Detroit Board Exhibits H, I and J clearly depict the constant and increasing influx of black students into every region.[7] These exhibits are maps which divide the city into elementary school attendance areas and show the racial composition of students by residence in each school area for the years 1974, 1975 and February 1977. In 1974, there were 60 school attendance areas which were less than 30% black and 10 which were 30-55% black. BX-H. In 1975 there were 57 school attendance areas less than 30% black and 9 that were 30-55% black. BX-I. In February 1977, the number of school attendance areas that were less than 30% black declined to 39 while the number between 30-55% doubled. BX-J. Thus, in a brief three-year period, there were 21 fewer school attendance areas that were under 30% black, and 13 fewer school attendance areas less than 55% black. Many of the school attendance areas that remain under 30% black continue to integrate and steadily approach that percentage:

307*307 SCHOOL AREA
Burgess Lodge Houghten Healey Gompers McLean Pulaski Columbus Wilkens Marquette Hanstien

1974 % BLACK
4% 0% 4% 0% 0% 2% 2% 2% 6% 6% 0%

1977 % BLACK
24.7% 8.1%
11.4% 15.0%
6.4% 16.4% 16.0% 14.6% 14.0% 14.1%
8.0%

BX-H & J.

These changing residential patterns are occurring principally in schools that border the outer limits of the city, east and west. In just two years, many of those schools reflect black enrollment that is 3055% and over:

SCHOOL AREA 1975 % BLACK 1977 % BLACK

Holcomb Burt Harding Vetal Mann McCall Wayne Stellwagon Clark Emerson Cooke

15.0% 17.0% 29.0% 25.0% 27.0%
8.0% 9.0% 15.0% 11.0% 62.0% 38.0%

35.2% 37.0% 35.2% 45.9% 52.8% 33.0% 33.3% 43.5% 35.8% 73.1% 57.8%

BX-I & J; Tr. at 48-50.

Thus, the outer regions of the city are experiencing a steady increase in residential black population and a steady decline in white population. Mr. Henrickson concluded that this is the result of black families moving from Regions 1, 5, and 8 into regions further out from the center of the city. Tr. at 37; BX-E. He discounted the possibility that the increase in black enrollment could result from black families taking their children out of private schools and enrolling them in public schools. He based this opinion on his own experience and knowledge that few black families transfer from private to public schools, and on discussions with regional superintendents. Tr. at 42-43. We find that Mr. Henrickson has fully documented his judgment on this point. When this changing residential pattern is taken together with our reassignment plan, the result is that out of approximately 185 elementary schools, 141 are at least 55% black, 37 are 30-55% black and only 7 are less than 30% black. Tr. at 50; BX-K.[8]

We conclude that as a result of the present racial ratios in the vast majority of the schools, the predominance of black students in the school district and the accelerated population shifts, no more desegregation is feasible in Regions 1, 5 and 8 collectively. These pronounced demographic shifts, first predicted by Judge Roth,[9] and the predominance of the black student population have obliterated the optional and gerrymandered attendance zones which permitted white students to avoid attending integrated schools, the practice of bussing black students from overcrowded schools beyond a closer white school and the practice of altering feeder patterns in racially changing neighborhoods. The Supreme Court in Milliken I was unable to find from the evidence in the record below that these de jure acts of segregation found by Judge Roth had a segregative effect beyond the boundaries of the Detroit City Schools. This was so because the actions which formed the basis for Judge Roth's liability findings were basically reactions by the Detroit Board of Education to changing residential patterns. The optional and gerrymandered attendance zones served the purpose of keeping white students out of 308*308 schools that, in the absence of such policies, would have become, and in fact have become, integrated naturally. Judge Roth did not find, however, that these policies in turn created additional residential segregation which in turn created additional school segregation. Had he made such findings, and had such findings been supported in the record, we assume the Supreme Court would have affirmed the propriety of an interdistrict remedy.

The demographic data presented by the Detroit Board compels us to further conclude that it is the demographic residential patterns, operating independently of school assignments, together with the predominance of blacks in the school system, and not the segregative acts of the Detroit Board and the state that have resulted in the one race schools that remain in Regions 1, 5 and 8. Although a school district that retains one race schools bears a heavy burden to satisfy the court that their composition is not the result of present or past discriminatory action, Swann v. Board of Education, 402 U.S. 1, 26, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971), that burden is satisfied by the Detroit Board's showing that such schools are the result of population shifts, or the predominance of

black school children in the district as a whole, or both. See Calhoun v. Cook, 522 F.2d 717 (5th Cir.), rehearing denied 525 F.2d 1203 (5th Cir. 1975); Hobson v. Hansen, 327 F.Supp. 844 (D.D.C.1971); Tasby v. Estes, 412 F.Supp. 1192 (N.D.Texas 1975); United States v. Choctaw County Board of Education, 339 F.Supp. 901 (S.D.Ala.1971); Carr v. Montgomery County Board of Education, 377 F.Supp. 1123 (M.D.Ala.1974), aff'd, 511 F.2d 1374 (5th Cir.), cert. denied 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303 (1975). A school-by-school examination of student enrollment by residence and as affected by student assignment make it apparent that the school district no longer discriminates against black students. That examination discloses that the schools are increasing black enrollment through natural influxes of black families into the changing neighborhoods. The Detroit Board's desegregation plan brought schools within the parameters of our guidelines, and its present assignment pattern is free from the vestiges of prior discrimination. While there may be a presumption of system-wide impact of segregative policies, Keyes v. Denver School District No. 1, 521 F.2d 465 (10th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976), we find that the Detroit Board has overcome such presumption and established conclusively that the existence of one race schools is not the product of their past or present discriminatory acts.
In Calhoun, the court was required to determine the amount of desegregation possible in the Atlanta School District, which had become 85% black. The district court had approved a plan which achieved 30% black enrollment in every school and which left 92 of 148 schools at least 90% black. The Fifth Circuit Court of Appeals acknowledged that an 85% black student enrollment would inevitably leave a number of one race schools:
The district court also found that Atlanta's remaining one-race schools are the product of its preponderant majority of black pupils rather than a vestige of past segregation. These findings are not clearly erroneous. The aim of the Fourteenth Amendment guarantee of equal protection on which this litigation is based is to assure that state supported educational opportunity is afforded without regard to race; it is not to achieve racial integration in public schools. 522 F.2d at 719.
The court also affirmed the district court's findings that the Atlanta School Board no longer discriminated against black students, that its assignment pattern was free from the vestiges of prior discrimination and that its large number of identifiably black schools was the product of demographic factors. The court elaborated in its denial of a rehearing:
It would blink reality and authority, however, to hold the Atlanta School System to be nonunitary because further racial integration is theoretically possible and we expressly decline to do so. 525 F.2d at 1203.
309*309 Similarly, in Tasby v. Estes, 412 F.Supp. 1192 (N.D.Texas 1975), the court, in devising a remedy for the Dallas Independent School District (DISD) which was 41.1% white, 44.5% black and 13.4% Mexican-American, refused to disturb schools which had become naturally integrated through residential patterns. 412 F.Supp. at 1206. The court, after considering the geographic characteristics of the district and the small number of white students remaining, approved a plan which did not disturb the South Oak Cliffs, an area of the DISD which had become 98% black. The court emphasized that its ruling did not deny the students of South Oak Cliffs a remedy, finding that its superior facilities would make it a model for the district. 412 F.Supp. at 1204. See Hobson v. Hansen, 269 F.Supp. 401, 515 (D.D.C.1967) (refusing to disturb assignment patterns because of the ten to one ratio of black to white children and granting instead additional relief which dealt with equalizing the equality of education in the district).
In Brunson v. Board of Trustees of School District No. 1, 429 F.2d 820 (4th Cir. 1970),the court affirmed the district judge's order implementing a desegregation plan developed by the Department of Health, Education and Welfare. That plan provided for disbursing white students among the

schools so that each school had a white population between 5 and 17% in a school district which contained 2,408 black students and 256 white students. In a separate opinion, three judges criticized the HEW plan as one which "threatens to swallow up, rather than vindicate, the constitutional mandate for integrated schools in Clarendon District No. 1." 429 F.2d at 822 (Craven, Cir. J., concurring and dissenting). Judge Sobeloff concurring in the judgment, disagreed with the dissenting opinion. He found the fear of white flight irrelevant and criticized the theory of the dissent that majority white schools provide an optimum racial mix. That theory was premised on an assumption of white superiority which he found unacceptable in fact or law. 429 F.2d at 823-27 (Sobeloff, Cir. J., concurring).
We agree with Judge Sobeloff's criticism of the Brunson dissent and note that Judge Craven later acknowledged doubts about the validity of the approach of his dissent. Bradley v. School Board of City of Richmond, Virginia, 462 F.2d 1058, 1063 n.5 (4th Cir. 1972), aff'd 412 U.S. 92, 93 S.Ct. 239, 34 L.Ed.2d 171 (1973). We also agree with one basic premise of Brunson; the mere scattering of a few remaining white students does not provide a remedy consistent with the fourteenth amendment as interpreted in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). This was also the conclusion of the court in the two cases which most closely approximate the demographic data in this district, the school districts for Washington, D.C., and Atlanta, Georgia. The Court of Appeals has recognized this to be so in Detroit as well, in that it rejected the alternative of reassigning the remaining white students "among the predominantly black schools on a percentage basis somewhat along the lines originally proposed by plaintiffs. It is obvious that such a requirement would accomplish nothing more than token integration, and that of uncertain duration." Bradley v. Milliken, 540 F.2d 229, 239 (6th Cir. 1976).
We therefore adhere to our prior conclusion that a school system cannot be desegregated by making all schools racially identifiably black. This result inevitably occurs when further desegregation is attempted for Regions 1, 5 and 8 collectively. When racial proportions are so extreme that adequate interaction between children of both races cannot be accomplished, further desegregation is not possible and it is unwise to disturb assignment patterns which effectively desegregate the schools in other regions. Moreover, in a school district which has become increasingly black while undergoing a dramatic decline in white student enrollment, it is very important that naturally integrated neighborhoods not be disturbed. Judge Wright recognized this in the District of Columbia. Indeed, our own efforts to preserve the few remaining racially stable school attendance areas in Detroit received favorable comment by the Supreme Court:
310*310 [T]he District Judge took great pains to devise a workable plan with a minimum of pupil transportation. For example, he sought carefully to eliminate burdensome transportation of Negro children to predominant Negro schools and to prevent the disruption, by massive pupil reassignment, of racially mixed schools in stable neighborhoods which had successfully undergone residential and educational change. Milliken II, 433 U.S. at 288 n.19, 97 S.Ct. at 2761.
Perhaps, the most graphic evidence that Regions 1, 5 and 8, treated collectively, cannot be further desegregated is the insignificant number of white students in the city available for that purpose. To establish a pool of white students available to further desegregate Regions 1, 5 and 8, the defendant Detroit Board submitted an exhibit which summarizes, from the data contained in the 1977 fourth Friday count, the number of schools which are less than 50% black. See BX-O. We agree with the Detroit Board that this is the relevant starting point in determining whether additional pupil reassignments can occur in Regions 1, 5 and 8. We have already accepted as desegregated any school 30-55% black and further held that a school 55% or more black is a racially identifiable school. See 402 F.Supp. at 1134-35. We deemed that guideline essential to effectively utilize the white children then available to achieve the racial ratios now existing in schools throughout the city. See p. 307, supra. To use a significantly higher figure than the 50% suggested by the Detroit Board would cause all the schools to become identifiably black, a suggestion we have repeatedly

rejected. Moreover, a greater or lesser percentage starting point would materially disturb present assignment patterns and tend to increase the number of black children being bussed from one identifiably black school to another. As we stated previously, and the Sixth Circuit and Supreme Court agreed, it casts a heavy burden on black students to bus them great distances to attend another majority black school. See 402 F.Supp. 1125.
BX-O shows that there are 31 elementary schools in the district which are less than 50% black. These schools contain a total of 7,860 non-black students and 4,463 black students. BX-1 attached to Board findings. In order to assure that these schools remain desegregated, we could only reassign the excess of non-black students over black students, or 3,397. The 1977 fourth Friday count, however, shows that there are 38,259 black students in the elementary schools in Regions 1, 5 and 8, or 11 times the number of non-black students available to be reassigned among them. BXO; Tr. at 55-64; BX-2 attached to Board proposed findings. Thus, the evidence establishes that most of the white children in the school district are being utilized in the present reassignment plan for schools which are at least 55% black, and an insignificant number of white students remain to meaningfully desegregate Regions 1, 5 and 8. To disperse these few available white children among the schools in those regions would accomplish nothing more than token integration and transport black children to other majority black schools.
The situation in the middle schools is no different. There are six schools less than 50% black containing 2,305 non-black and 1,572 black students.[10] The difference, or only 733 non-black students, is all that is available to integrate the middle schools in Regions 1, 5 and 8, or fewer than the number of black students in 10 of the 21 middle schools in those three regions. The 21 schools have a combined black student population of 17,015 or 23 times the number of available non-black students. This predominance of black students is even more pronounced at the high school level. The only high school that is not over 50% black is Western High School in Region 2, which has 1,069 non-black and 894 black students. This provides a pool of 175 students to integrate the high schools in Regions 1, 5 and 8 which have a total of 17,783 black students, approximately 100 times the number of available non-black students. Assuming 311*311 the Detroit Board transferred all 175 students to Northeastern High School, the school with the smallest black population, and assigned an equal number of students from Northeastern to Western, Northeastern would have a student population of 1,210 black and 244 non-black. The maximum desegregation possible at the high school level in Regions 1, 5 and 8 would yield a high school 83.2% black, still racially identifiably black.
Having concluded that no further desegregation is possible in Regions 1, 5 and 8 collectively, we now examine all regions separately. In doing so, we note that the demographic patterns which we have described above fairly characterize every region in the district except Region 2. Black student enrollment in Region 2 has remained virtually unchanged, increasing from 60 to only 62% from 1974 to 1977. The residential trends there greatly differ from every other region. Virtually every school attendance area of Region 2 that was less than 30% black in resident student population in 1974 has remained unchanged, and, unlike the other regions, has not integrated naturally. The most extreme examples are the Higgins, Bennett, Harms, Beard, Neinas, McKinstry and Logan school attendance areas. The largest black resident population is at Logan where it was only 3.6% in February 1977, a decrease from 9%. The most extreme example is at Hunter, which was 34% black in 1974 but 1.2% black as of February 1977. BX-H, I and J. Moreover, 5 of the 6 majority white middle schools that exist in the city are located in Region 2. Western High School, located in Region 2, has a lower black enrollment than any other high school in the city.[11]
Thus, the residential patterns which are conspicuous in every other region are simply not occurring in Region 2. The impact of this demography on the racial composition of the schools is substantial and can clearly be seen when the analysis offered by the Detroit Board to prove that it is impossible to desegregate the schools of Regions 1, 5 and 8 by pupil reassignment is applied. There are

fourteen (14) elementary schools in Region 2 which are less than 50% black. These schools contain the following numbers of students:

SCHOOL
Beard Bennett Harms Higgins Holmes Hunter Jefferies Logan Maybury McKinstry Neinas McMillan Priest Webster

REGION 2

NON-BLACK BLACK

391 444 329 354 280
23 379 357 379 252 366 258 613 465 ___ 4,890

133 189 152 210 190
0 208 192 166 160 233 114 505 293 ___ 2,745

In these schools above, there are 2,145 more non-black than black students. To this may be added the excess white student population of Burton and Franklin Schools in Region 1 yielding a total of 2,459 more white students than black.[12] Exchanging students between the majority white schools in Regions 1 and 2 and the predominantly black schools in Region 1 would produce an elementary school population in Region 1 of 5,091 black and 3,248 white, or 61.1% black. Of course, we are not suggesting that this one-for-one exchange is feasible, or should be undertaken. We have already held that all pupil reassignments must be considered in the light of the practicalities of the situation. This mathematical exercise, however, does demonstrate that the numbers alone do not pose an obstacle to further desegregation of Region 1 using students from Region 2.

312*312 The Detroit Board contends that most of these non-black students in Region 2 are not available for transfer, because they are Spanish-speaking students involved in bilingual-bicultural programs in their schools.[13] There is a large number of Spanish-surnamed students residing in Region 2, and the Detroit Board argues that it cannot control where Spanish-speaking persons choose to live. That may well be. As plaintiffs contend, however, restricting bilingual programs to one region provides Spanish families with neighborhood schools not available to other Detroit children, and is an added inducement for them to move there. We cannot approve this wholesale exclusion of Spanish-speaking students from the pupil reassignment remedy. This case began as and remains a racial desegregation case, and for school assignment purposes Spanish-surnamed students cannot be treated differently than other white students. Bilingual education is not a justification for treating one ethnic group in isolation nor is it a substitute for desegregation. Keyes v. Denver School District No. 1, 521 F.2d 465, 480 (10th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976).

In a supplemental brief, the Detroit Board contends that its bilingual-bicultural program has not resegregated the schools in Region 2. We cannot agree. The influx of black families into Region 2 cannot occur naturally when bilingual programs for Spanish-surnamed persons are confined to one region.[14] The Detroit Board has produced testimony to the effect that adjustment will be made to the number of students transported to the schools we have singled out in Region 2, so that all schools will reflect at least 30% black student enrollment. Tr. at 51. This argument, however, misses one

crucial point. The Court of Appeals remanded this cause with instructions that we re-examine the issue of pupil reassignments in Regions 1, 5 and 8. The bilingual-bicultural program cannot provide wholesale justification for excluding Spanish surnamed students along with other white students from reassignments which may further desegregate Regions 1, 5, or 8. Bilingual programs, although essential, must be subordinated to a desegregation plan. Keyes, 521 F.2d at 480. The evidence, on the whole, compels us to conclude that the Detroit Board has not shown cause why there should not be additional pupil reassignments in Region 1, using students from Region 2.
2. Faculty Assignments
Our August 15, 1975, guidelines recognized that desegregation of faculty and staff was an essential indicia for measuring a unitary school system. 402 F.Supp. at 1133. We believed, however, that "it would be inappropriate for this court to order any reassignment of faculty at this time" because those changes should await the court's assessment of the effects of pupil reassignments and changed grade structures on faculty assignments.[15] Thus, we directed "the Detroit Board and the Detroit Federation of Teachers [to] begin negotiations concerning reassignments necessitated by other components of this plan." 402 F.Supp. at 1144. Thereafter, the Detroit Board and the DFT stipulated to the entry of an order, which achieved "a distribution of not more than 70% of teachers of one race in each school." Order of August 28, 1975. We must now determine whether this assignment pattern adequately desegregates faculty and staff in this school district.
The plaintiffs argue that the court must go further than the present order provides. 313*313They contend that the Detroit school system "still shows patterns of racial identifiability that have never been fully dismantled," that the school system should achieve a distribution of teachers by race that reflects, where possible, the system-wide racial ratios at each grade level, and that variances should not be greater than that required to accommodate specialization of teaching functions. Tr. April 24, 1977 at 6, 13-14. To support these contentions, the plaintiffs called as a witness Dr. Robert Green, Dean of the College of Urban Development at Michigan State University. Dr. Green defined racial identifiability:
A school can be viewed as being racially identifiable when any set of selective personnel that services that school, be they teachers or pupils, when their numbers in that particular school departs significantly, or unusually from their representation in that system on a system wide basis. That's the kind of a general rule of thumb that can be used. Tr. of April 29, 1977, at 543.
Doctor Green testified that the racial identifiability of the faculty has a significant educational impact upon students, that teachers serve as adult role models for students and hence it is important that children have teachers of both races, and that students whose environment is racially isolated will grow up with narrow, restricted views of the world. Tr. at 535-36.[16] He later explained that racial identifiability of a school is readily perceived by the community, parents and students attending that school, that a student's perception of the composition of a school's faculty as identifiably black or white affects a child's motivation to achieve, affects the general performance and conduct of black students, and finally causes black students to have a lower perception of themselves, inhibiting their educational achievement. Tr. at 1384-85, 1390-94. It is his view that students perceive majority white schools with a majority white faculty as academically superior. Tr. at 1390. Although their perceptions are not statistically accurate, students are, according to Dr. Green, generally aware of the racial composition of a school system. Tr. at 580. He concluded that students would perceive any school with a faculty which departs radically from the system wide racial ratios as one that has been given special consideration for racial reasons. Tr. at 1387.

The defendant Detroit Board called as its expert Mr. Fred Martin, Executive Director of Personnel for the Detroit School System.[17] He testified that students viewed teachers as role models and emphasized that in a system undergoing desegregation it is desirable that students have experiences with teachers of all races. Tr. at 284, 1028-33. Mr. Martin also believed that student perceptions are important; but unlike Dr. Green, Mr. Martin was concerned with the opportunities afforded students to interact with teachers of different races. Tr. at 1163-64. Thus, at the elementary school level, Mr. Martin would not only strive to achieve a faculty that reflected the racial distribution in the system as a whole, but he would also seek to insure individual student contact with teachers of both races. Tr. at 1175. In commenting upon the Detroit Board's proposal to replace four black teachers with four white teachers at Central High School, he conceded that changing Central from 64.4% black to 60.4% black was not significant in terms of percentage change, but he viewed the addition of four white teachers who have contact with 140 314*314 students as significantly contributing to the desegregative experience of those students. Tr. at 1460-61, 1469. When the system-wide faculty approached 70% of one race, Mr. Martin would then inquire into the reasons behind that racial composition and seek to change hiring policies to reverse the trend. Tr. at 755-56. Dr. Green, on the other hand, would strive to achieve faculty assignments that mirror the systemwide racial composition regardless of what that racial proportion may be.
The Detroit Federation of Teachers (DFT) called as its expert witness, Dr. John Simpkins, Dean of the College of Education at Wayne State University and an eminently qualified educator. Dr. Simpkins also agrees that teachers serve as role models for students and that it is educationally desirable that students have teachers of both races. Tr. at 1666-70. Dr. Simpkins does not agree, however, that teacher assignments must reflect the system-wide racial composition. He testified that it is desirable to integrate faculty only to the extent necessary to avoid the appearance of what he termed tokenism, and that token integration, such as one white teacher in a school with ten black teachers, should be avoided because it places disproportionate pressure on the single white teacher. Tr. at 1677. Therefore, Dr. Simpkins would approve the present faculty distribution accomplished by our August 28, 1975 order. He testified that a faculty is sufficiently desegregated when a student has one chance in three to interact with a teacher of both races, and that additional reassignments would serve only to improve faculty statistics without necessarily having a beneficial effect upon students. Tr. at 1662-63, 1683.
Dr. Simpkins clearly understands the importance of insuring student contact with teachers of both races to eliminate the effects of prior state imposed racial isolation. Commenting upon the need for black students to interact with black teachers, he said:
[Y]oungsters need to believe that they can be whatever they aspire to be. And this belief is reinforced when they see people who look like them, who are, in fact, doing those things . . . Tr. at 1667.
He testified that it was important that students interact with black and white teachers because it enhances their concept of equality, and because it is important that black students see white people in a humanitarian role. Tr. at 1668-69.
We agree with these expert witnesses that students view teachers as role models, and therefore, it is educationally desirable that students interact with teachers of both races. We do not agree, however, with Dr. Green's theory of racial identifiability as it pertains to a school system such as Detroit. He is unduly concerned that a student attending a school with a faculty which departs significantly from the system-wide racial composition would perceive that school as one that has been afforded special treatment, and would have the impression that other schools in the system have been treated similarly. Tr. at 1565-66. The most serious objection we have to Dr. Green's theory is that it treats the racial mix of a faculty in the Detroit City Schools in a vacuum. We cannot

accept the suggestion that a student's perception of racial identifiability of his or her school faculty is limited to the school district's boundaries. A student attending a school on the far east side of Detroit is more likely to compare his school to closer schools in adjacent suburbs rather than to schools in the far northwest section of the city. Dr. Green's testimony is also of doubtful assistance to the court because it was based on the incorrect assumption that the court had found the faculty of schools in the district de juresegregated. Tr. at 1424, 1428, 1440.[18] We reject the rigid concept that students would receive a desegregated experience in a school with a 90% black faculty 315*315 simply because the faculty was 90% black system wide. A faculty is desegregated fully only when there is adequate opportunity for students to interact with teachers of both races and teacher assignments are made on a racially neutral basis.
Neither can we fully accept the conclusions of Dr. Simpkins. Although he agreed that the present 7030 ratio created a high probability that a student would not have contact with teachers of both races, he nevertheless accepted the current faculty as desegregated, despite his acknowledgement of the need for interaction between students and faculty of both races. Tr. at 1676-78. In support of his position, Dr. Simpkins admitted that he assumed the Detroit district was moving toward a 50-50 faculty distribution in each school, and that his conclusions might well have been different had there not already been one large scale teacher reassignment. Tr. at 1881-83. Dr. Simpkins was overly concerned that additional teacher transfers would detrimentally impact the stability of the schools by disrupting other essential faculty characteristics such as sex and age. His analysis failed to place sufficient weight on the need to afford Detroit school children a complete desegregative educational experience. Although the current faculty distribution does provide something more than token integration, Detroit students should, if at all feasible, receive more than a remedy that provides only minimal desegregation. This is particularly important in a district where the students have been racially isolated for years.
Dr. Simpkins conceded that the faculty distribution in Regions 1, 5 and 8 left something to be desired. Tr. at 1677. In fact, it appears that faculty reassignments in those regions were not made on a completely racially neutral basis, despite our order of August 28, 1975. Schools which had a substantial white student enrollment retained a predominantly white faculty, while schools with a predominantly black student enrollment have predominantly black faculties. Tr. at 2005-2019; DX3A, 6 and 11. Thus, Regions 1, 5 and 8, which have an overwhelmingly black student enrollment, have faculty ratios that approximate 70% black, while in Region 7, more than half the schools have faculty ratios that are close to 70% white. Indeed, in Region 7, the percentage of schools with a majority white faculty increased from 72% to 88% between 1974 and 1976. Tr. at 139, 672-73. Similarly, in Region 8, the percentage of schools with a majority black faculty increased from 76% to 85% between 1975 and 1977. We cannot agree that this distribution of faculty by race provides adequate interaction between students and teachers of both races.
Because it is the Detroit Board's primary obligation to desegregate, we have examined carefully its plan to desegregate faculty and staff. That plan requires implementation in three distinct stages. To implement the first stage the Detroit Board has requested the court to reinstate the August 28, 1975, order. The second phase of the Board's plan adopts the HEW regulation which requires that faculty assignments be made so that the proportion of full-time minority classroom teachers at each school is between 75% and 125% of the proportion of such minority teachers existing on the faculty as a whole. Since the current faculty is 52.8% black, each school in the district would have a faculty between 39% and 65% black. The third and final stage of the Detroit Board's plan is quite unique in that no immediate faculty transfers are anticipated. Instead, the Detroit Board would be authorized by court order to release or add teachers to the faculty in each school in such a way that would move that school closer to the racial composition of the faculty system wide.
The specific racial proportions sought by phase two of the Detroit Board's plan are arbitrary and do not withstand scrutiny.[19] 316*316 In planning for the implementation of phase two, Mr. Martin did not

confer with principals of the affected schools to determine whether specific transfers would adversely impact their school. He merely examined the racial composition in each school by subject area and made a judgment as to which department, in his view, had an excess of black or white teachers. Tr. at 1108-1114. Such inflexible adherence to specific racial ratios will result in teacher transfers which do nothing more than alter faculty statistics and which bear no relationship to the ultimate purpose of achieving full desegregation of faculty and staff. For example, the Detroit Board proposes to transfer teachers from Central, Cooley, Kettering, King, McKenzie, Mumford, Murray-Wright, Northeastern, Northwestern, and Southwestern despite the fact that each of these schools is already in compliance with the proposed parameters of phase two. Cooley High School, predominantly black by student enrollment, would undergo a faculty change from 45.8% to 43.7% black. Tr. at 1305. This would occur even though Cooley High School is now within the parameters of the third phase of the Detroit Board's proposal. Thus, to the extent that the goals of phase three of the Detroit Board's proposal are valid, Cooley students are impacted detrimentally by phase two.
Phase three of the Detroit Board's proposal, however, is even more objectionable. It provides that when teachers are to be released from or added to a particular school, the Board will have sole discretion to assign teachers so that the faculty in each school more closely reflects the racial composition of the system as a whole. Tr. at 911-12. If the Board's contention that phase three is essential to afford plaintiffs an adequate remedy is correct, plaintiffs may never receive their remedy. This is so because in regions where student enrollment is declining, a teacher is usually released and the position discontinued as no longer needed. Therefore, in Regions 1, 5 and 8 where there is a pronounced decline in enrollment,[20] most of the faculty transactions effected by phase three will involve the release of teachers. Because additional releases will also occur from normal faculty attrition such as resignations, retirements and leaves of absence, black students in Regions 1, 5 and 8 could not expect to interact with a larger number of white teachers; they could only expect to interact with a smaller number of black teachers. Since phase three is not adverse to the faculty assignment goals advanced by the plaintiffs, they contend that the court may not prevent the Board from implementing it. This may be true, but we decline to enter an order sanctioning a proposal that we think makes little or no sense.
Furthermore, the ramifications of phase three upon the current collective bargaining agreement between the Board and the DFT are incalculable. Under that agreement, releases from a particular school are based on seniority, subject to the provision that no release will occur if it causes a school faculty to exceed 70% of one race. BX-2. Phase three of the Board's proposal would effectively obliterate all seniority rights of DFT members and replace one provision of the collective bargaining agreement with Board discretion. This provision of the collective bargaining agreement has never been adjudged to have caused a segregated faculty, so that when the DFT intervened in this litigation, it did so as an innocent third party. Although we would not permit the DFT's collective bargaining agreement to stand in the way of providing plaintiffs' class with an adequate 317*317 remedy, neither will we unnecessarily enter a court order providing for the wholesale eradication of a provision in its collective bargaining agreement. We conclude that the Detroit Board's proposal is arbitrary, self-serving and not designed to maximize interaction between students and teachers of both races, and we reject it.
Based upon the factual record made by the parties, we find that it is necessary for the court to set guidelines to further desegregate faculty and staff for several reasons. First, while it is true that no school has a distribution of more than 70% of teachers of one race, one chance in three for students to interact with teachers of both races is not adequate. The school system can do better. The exhibits offered by the Detroit Board show particularly that in Regions 1, 5 and 8, there has been little improvement in the desegregative experience children are receiving from their teachers.[21] The problem with the present faculty distribution is that schools with a predominance of black students also have a predominantly black faculty, while schools which were traditionally white by student enrollment have a predominantly white faculty.[22]

Second, the decline in student enrollment and a lack of coordination in hiring policies between the central and regional boards affects the rate of change in the composition of faculty in the majority of the schools. Mr. Martin explained the method utilized by the central board when releasing teachers because of declining enrollment. The principal of the affected school makes the initial determination that a position is expendable. The teacher with the least seniority in that position is then released, unless the release of that teacher would cause the faculty composition to exceed 70% of one race, in which case the teacher of the opposite race with the least seniority is released. Tr. at 59-60. If the enrollment in a region remains stable, vacancies that arise by resignations, retirement and leaves of absence present the only opportunity for the Detroit Board to implement phase three. In those regions where enrollment is declining, however, there is a tendency to close out the position when a vacancy occurs because it is no longer needed. Thus, the Detroit Board's ability to increase the desegregative experience of Detroit students and "balance staff" as to qualifications, sex, age and experience is somewhat limited in regions experiencing a declining enrollment. Tr. at 97-98. Although the DFT contends that the long range trend is toward a more "balanced staff" in all schools, plaintiffs should not be required to wait for their remedy.
Finally, regional hiring practices are not uniform and tend to impede efforts to achieve further faculty desegregation. The central board prepares a list of qualified and eligible applicants, but each regional board determines who will be hired from the list. Although this decision is subject to approval by the central board, approval is almost always received. Tr. at 819-24. Thus, if a majority black region hires more black teachers than white, it would further impede the central board's efforts to balance staff. Tr. at 819.[23]The hiring of more black than white teachers appears to be occurring in all regions except Region 2.
Thus, we conclude that plaintiffs are entitled to an order that will afford a greater degree of interaction between Detroit students and teachers of both races, that provides 318*318adequate flexibility to account for qualifications of the teacher to teach the subject and grade level, and further permits the balancing of faculty in each school by race, teaching experience, and sex. We believe that the guidelines which we order implemented can be accomplished with minimal disruption of the present composition of faculty and staff.
The DFT argues, as it has throughout this litigation, that Judge Roth's holding that neither the Detroit Board nor the DFT engaged in de jure acts of segregation in faculty assignments precludes a remedial order reassigning faculty. The Court of Appeals rejected this argument, reasoning that faculty assignments help "to mitigate the fact that the majority of Detroit's children are left in schools that are overwhelmingly one race." 540 F.2d at 247. In Milliken II, making the same analogy, the Supreme Court said:
[I]n United States v. Montgomery County Bd. of Educ., 395 U.S. 225 [89 S.Ct. 1670, 23 L.Ed.2d 263] (1969), the Court concerned itself not with pupil assignment, but with the desegregation of faculty and staff as part of the process of dismantling a dual system. In doing so, the Court, there speaking through Mr. Justice Black, focused on the reason for judicial concerns going beyond pupil assignment: "The dispute . . . deals with faculty and staff desegregation, a goal that we have recognized to be an important aspect of the basic task of achieving a public school system wholly free from racial discrimination." Id. at 231-232 [89 S.Ct. at 1674]. (Emphasis supplied.) Montgomery County, therefore, stands firmly for the proposition that matters other than pupil assignment must on occasion be addressed by federal courts to eliminate the effects of prior segregation. 433 U.S. at 282-83, 97 S.Ct. at 2758 (emphasis original).
Finally, the DFT argues that the interim decision of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed. 396 (1977), precludes this court from making any additional faculty assignments. In Teamsters, the Court held that seniority systems which are otherwise "bonafide" are

entitled to enforcement according to their terms even if they "perpetuate" or "lock in" the effects of prior discrimination. The DFT argues that "by virtue of the decision in Teamsters, any remedy which might otherwise be directed by this court is proscribed if it impacts on this otherwise lawful seniority system." Brief of DFT at 30, 32. We think this argument lacks merit. Teamsters dealt with congressional intent in enacting Title VII of the 1964 Civil Rights Act. It did not consider constitutional violations or the power of a district court when correcting prior de jure acts of segregation. In any event, the order which we enter does not impact on otherwise lawful seniority rights, since it directs transfers which take into account seniority rights of teachers affected by the order.
3. Monitoring Commission
The necessity to reconsider the pupil and faculty reassignment portions of our remedial decree has occasioned a reevaluation of the remaining aspect of that decree, the quality education components. The task of monitoring the implementation of court-ordered remedial programs was assigned to a court-created Monitoring Commission, a group of citizens intended to reflect the city's racial and ethnic composition. 402 F.Supp. at 1145. The Monitoring Commission has performed its mission admirably. Each participant has served faithfully and is well deserving of the respect and undying gratitude of the community and the court. They have served as the "eyes and ears" of the community and court, observing and reporting on the progress of the defendant Detroit Board's implementation of the remedial programs included in the plan. Notwithstanding the numerous reports submitted by the Commission, however, no party to this litigation has filed any pleadings to challenge in an adversary proceeding the reason for the Detroit Board's lagging implementation of the remedial programs. The silence of the parties, particularly the plaintiffs, leads the court to believe that the 319*319 interest of all parties in this component has been reasonably satisfied.[24]
Although the Monitoring Commission has been a great benefit to the community and the court, its prolonged existence can have several seriously detrimental community effects as well. First, the Monitoring Commission may solidify unrealistic community aspirations that it can or will solve the difficult problems plaguing the school district. For example, we have, on another occasion, stated that this school board's principal difficulty concerns financing the cost of delivering quality desegregated educational services. 402 F.Supp. at 1119. The school board's financial crisis is as critical today as it was in 1975. It continues to face escalating educational costs at a time when student enrollment, upon which its financial resources depend, is decreasing at an alarming rate. A monitoring commission cannot solve this problem, yet it may unwittingly impede the school board's ability to achieve a solution.
Second, we are concerned that the prolonged existence of the Monitoring Commission will continue to stifle the growth of the School-Community Relations (parental involvement) component, a program we emphasized was essential to the continued vitality of a school district:
We agree with plaintiffs that an acceptable community relations plan should include provisions for school-community liaison and parental involvement. The school-community relations program should give real meaning to the decentralization anticipated by the Michigan Legislature and provide an effective vehicle for true community involvement in all the schools. To achieve maximum community participation the program should depend upon parental support; . . .. An effective community relations program must develop a partnership between the community and the schools and must cooperate with traditional groups such as parent-teacher organizations and local school advisory boards. There should be a cooperative flow of information from the school to the community and from the community to the school . . .. The school-community relations organization should receive complete encouragement, budgetary support, direct assistance and a free flow of information from school authorities. 402 F.Supp. at 1143.

A fully decentralized school-community group can, in partnership with the school board, better solve the problems facing this school district. Court-sanctioned monitoring commissions cannot actually solve problems since they are neither a policy-making body nor a super school board. If the community believes that an independent group of citizens is required to monitor the business of the school administration, it is better that such a group spring from the community rather than from a court decree. Moreover, a viable community relations program can more economically perform its own monitoring functions.
Third, prolonged court-sponsored monitoring creates the danger that the group will take on the role of advisors to elected officials charged with the responsibility of managing the affairs of the school district. For example, some Monitoring Commission reports contain recommendations based upon information collected from the very source being monitored. This is a function which is a step beyond monitoring. If recommendations and advice are to be given by a monitoring group, it is best that it come from a group that is created and supported by the community.
Fourth, court-sponsored monitoring commissions may well prompt the state defendants to relax their superintending control over the affairs of the local school board. It is the responsibility of the state defendants to monitor the steps taken to ascertain that Detroit children are receiving quality desegregated educational services. The obstacles which impede the delivery of quality education must be overcome by the state and local boards and broad based community 320*320 groups. We are also concerned that the Monitoring Commission's budgetary requirements now being furnished by the state will continue to increase. Those requirements now exceed $200,000 annually. This amount can be used to better educational opportunities for Detroit school children. Surely, there are more economical methods for performing the monitoring function.[25]
Finally, we are deeply concerned that the members of the Monitoring Commission do not represent a fair cross section of the school community. Although the school district is predominantly black, the Monitoring Commission as presently constituted is predominantly white. We must be sensitive to unfavorable impressions likely to occur when a court-ordered white monitoring commission continues indefinitely to audit a predominantly black school administration, especially one that contains a remarkable number of highly competent staff members, totally sensitive to the needs of Detroit school children, black and white. Moreover, Detroit has a group of black leaders that is competent and interested in the needs of the school system. Prolonged court-sponsored monitoring could very well stifle the developing interest of black leaders. We must bear in mind that the present school administration is burdened with the task of remedying the de jure acts of segregation committed by a white board some 20 years ago, the individual members of which have long ago abandoned the city. Court-sponsored monitoring cannot aid in that task. In light of the above, we question the wisdom and necessity of retaining court-sponsored monitoring services.
Accordingly, an order will be entered consistent with this opinion.
IT IS SO ORDERED.
[1] This observation did not escape the scrutiny of the Supreme Court. See Milliken v. Bradley, 433 U.S. 267, 292, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II) (Powell, J., concurring).
[2] Detroit Board of Education Exhibits will be designated BX followed by a letter or number.
[3] If Mr. Henrickson was unable to depict a clear trend, he would use an average. Tr. at 27.
[4] The city and school population has been declining steadily since 1950. 338 F.Supp. at 585.

[5] For example, in 1971, 53.7% of the white children born five years earlier in Detroit entered kindergarten in the Detroit school system. This retention rate decreased to 51.2% in 1972, to 48.1% in 1973, to 46.9% in 1974, to 42.2% in 1975, to 40.2% in 1976 and to 39.0% in 1977. Tr. at 23.
[6] Thus, during the period from 1971-1976, black students as a percent of total enrollment increased from 65.1% to 79.4%.
[7] This pronounced demographic shift of black families is not occurring in Region 2, where there is a high concentration of Spanish surname families.
[8] Five of the seven schools under 30% black are located in Region 2. Greenfield Union in Region 6 is only 26.1% black because of the large Chaldean population attending that school. The percentage of white students at Greenfield Union has actually increased somewhat apparently as a result of further movement of Chaldean children into this area who are counted as white. Tr. at 51.
[9] Judge Roth traced the demographic history of the City of Detroit and its school district describing its change from a city 91% white in 1920 to a metropolitan area in which whites have migrated to the suburbs leaving the city composed of predominantly poor black and poor aged and white families. White families continued to leave the outer portions of the city by either moving to the suburbs or placing their children in private schools, while black families continue to move into their place from the core city.
[10] Five of these six schools are in Region 2.
[11] Western is significant because Judge Roth singled it out in his findings on liability as the school to which white students transferred during the early 1960's to escape integration.
[12] In Region 1, Burton School has 239 white students and 77 black students. Franklin School has 249 white students and 97 black students. The remaining elementary schools in Region 1 have 7,062 black students and 615 white students.
[13] The Detroit Board has always prepared its demographic data so as to reflect student enrollment, black, white, Spanish surname, and other. The Detroit Board has argued that these separate categories are essential to comply with regulations of the Department of Health, Education and Welfare.
[14] The Detroit Board is required by state law to provide bilingual education for all students requiring such services in all regions. M.C.L.A. § 380.1153(1) (1978 Supp.).
[15] Grade restructuring and other aspects of the pupil reassignment plan necessitated the transfer of 1200 teachers.
[16] Dr. Green relied upon the authoritative work of Albert Bandura, a leading authority on psychological modeling. Mr. Bandura discusses in a special chapter the impact that role models play in the personality development of children.
[17] Mr. Martin is a highly qualified staff member of the Detroit Board. His vast experience has given him an expertise on the relationship of faculty assignments to the desegregative experience of Detroit students. He has a Bachelor's Degree in Social Science, Psychology and English, a Master's Degree in Administration, Sociology and Social Science. He is presently a doctoral candidate in Education Administration and Psychology. He has been an assistant principal and teacher in the Detroit school system. He also taught courses in sociology of urban schools at Wayne State University and the University of Michigan. Tr. at 278-79.
[18] His testimony became less credible when, on cross-examination he admitted that under the theory he was advancing, the faculty at the college where he is dean would be perceived as racially identifiably black. Tr. at 1370-71.
[19] Mr. Martin testified that the HEW regulations will provide sufficient latitude to account for qualifications to teach the grade level and subject, age, sex and other criteria for a balanced faculty, but he admitted that one motivation for choosing these parameters was his belief that such faculty racial proportions were necessary under applicable regulations of HEW to secure funding under the Emergency School Aid Act. Tr. at 1456.
We have already held that in a school district undergoing desegregation, HEW regulations are not controlling. A school district is bound by constitutional precepts and not governmental regulations. Bradley v. Milliken, 432 F.Supp. 885 (E.D.Mich.1977). Arbitrary racial percentages are not designed to fit all school districts under all circumstances and they are no less undesirable merely because they have been predetermined by a governmental agency.

[20] Regions 1 and 8, for example, have experienced a 6% annual decline in student enrollment from 1974-1977, while Region 7 now 31.9% white, has experienced a decline of 9% annually. Tr. Sept. 6, 1977 at 23-28.
[21] For example, in Region 1, 33 of 43 schools had a faculty more than 60% black in 1975; in April 1977, the comparable figure was 30 of 34. In Region 5, the faculty in 27 of 34 schools was over 60% black in 1975, while the comparable figure in 1977 was 26 of 34 schools. In Region 8, 22 of 38 schools had faculties that were more than 60% black in 1975 while in 1977, 16 of 35 schools had a faculty with similar composition. See BX-10B, 4, 4A.
[22] This is true not only with faculty but also with principals and department heads as well. For example, in Region 1 when 88% of the schools had a predominantly black faculty, 57% of the schools had black principals and 66% black department heads. We agree with the plaintiffs that this cannot be the result of random assignment patterns.
[23] There is no evidence that the central board's "balance of staff" goal has been followed by regional boards in their hiring practices.
[24] Generally, monitoring commissions serve year to year and after three years of court-ordered monitoring services it is only natural that we re-evaluate its mission.
[25] For example, we could appoint a master with authority to conduct annual audits of school district records and submit a report to the parties; or the school administration could be required by court order to submit annual reports, supported by affidavit, to all interested parties.

 
 460 F.Supp. 325 (1978)
Ronald BRADLEY et al., Plaintiffs, v.
William G. MILLIKEN, Governor of the State of Michigan, et al., Defendants.
Civ. No. 35257.
United States District Court, E. D. Michigan, S. D.
November 17, 1978.
Louis Lucas, Memphis, Tenn., Thomas I. Atkins, Boston, Mass., for plaintiffs.
George T. Roumell, Jr., Theodore Sachs, Detroit, Mich., George L. McCarger, Jr., Asst. Atty. Gen., Lansing, Mich., for defendants.
MEMORANDUM
DeMASCIO, District Judge.
In response to the Sixth Circuit Court of Appeals remand for further consideration of our exclusion of Regions 1, 5 and 8, we entered our Memorandum and Order of August 7, 1978 requiring additional pupil reassignments between Regions 1 and 2. On August 21, 1978, the defendant Detroit Board of Education submitted to the court a proposed pupil reassignment plan as they were directed to do by this court's August 7, 1978 order. After having examined the Detroit Board's proposed pupil reassignment plan, we found that it was not entirely clear in all respects and directed the Detroit Board to submit color keyed maps to clearly indicate which schools in Regions 1 and 2 were included in the plan and further to clearly reflect the number of Spanish surnamed students included in the plan. The Detroit Board submitted the color coded maps on September 1, 1978. On October 25, 1978, the Detroit Board submitted a revised proposed pupil reassignment plan that made minor changes in the transportation pattern between Regions 1 and 2.
326*326 No party, including the plaintiffs, has submitted a brief critiquing the Detroit Board's proposed reassignment plan, although paragraph 5 of our August 7, 1978 order stated that "each party may have ten days [after submission of the Detroit Board's plan] to forward to the court briefs critiquing the Detroit Board's plan." Since no party has objected, the court has reviewed the proposed plan, and we approve the plan as one that substantially conforms to the guidelines set forth in our August 7, 1978 order. Accordingly, a partial amendment to our May 11, 1976 Judgment will be entered.
IT IS SO ORDERED.

 
 540 F.2d 229 (1976)
Ronald BRADLEY et al., Plaintiffs-Appellants, v.
William G. MILLIKEN, Governor of Michigan, et al., Defendants-Appellees and Cross-Appellants,
Board of Education of the City of Detroit, Defendants-Appellees and Cross-Appellants,
Detroit Federation of Teachers, Intervening Defendant and CrossAppellant.
Nos. 75-2018, 75-2295, 75-2296, 75-2443, 76-1635, 76-1678.
United States Court of Appeals, Sixth Circuit.
Argued June 15, 1976. Decided August 4, 1976. Certiorari Granted November 15, 1976.
230*230 231*231 Louis R. Lucas, Ratner, Sugarmon, Lucas & Salky, Memphis, Tenn., Thomas I. Atkins, Boston, Mass., John A. Dziamba, Williamantic, Conn., Nathaniel R. Jones, Gen. Counsel, NAACP, New York City, Elliot S. Hall, Detroit, Mich., Rose Mary C. Robinson, Sol Plafkin, Detroit, Mich. (for Leah Maddox and others), J. Harold Flannery, Paul R. Dimond, William E. Caldwell, Washington, D. C., for appellants in No. 75-2018.
Frank J. Kelley, Atty. Gen. of Mich., Gerald F. Young, Lansing, Mich., Charles E. Keller, Keller, Thoma, McManus, Toppin & Schwarze, Detroit, Mich., for Northville Public Schools and others.
John T. Shantz, Dell, Shantz, Booker & Schulte, Royal Oak, Mich., for Clarenceville School Dist. and others.
Donald J. Miller, Helm, Schumann & Miller, Detroit, Mich., for Huron School Dist.
John Wm. Thomas, Thomas & Delaney, Flint, Mich., for Holly Area Schools.
Douglas H. West, Hill, Lewis, Adams, Goodrich & Tait, Detroit, Mich., for Grosse Pointe Public Schools.
Kenneth McConnell, Hartman, Beier, Howlett, McConnell & Googasion, Bloomfield Hills, Mich., for School Dist. City Royal Oak.
William M. Saxton, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for Farmington Public Schools.

Raymond G. Glime, Glime, Daoust & Wilds, Mount Clemens, Mich., for Fraser Public Schools and Clintondale Romeo Community School.
Kenneth E. Scherer, Daner, Freeman, McKenzie & Matthews, Mount Clemens, Mich., for Utica Community School Anchor Bay.
William Ross, Ross, Bruff & Henriksen, Mount Clemens, Mich., for Personnel of Van Dyke.
Robert J. Lord, Fair Haven, Mich., for Kerry Green and others.
George Roumell, Jr., Riley & Roumell, Detroit, Mich., for Allison Green.
Jane Keller Souris, Thomas M. J. Hathaway, John F. Brady, Samuel E. McCargo, Theodore Sachs, Detroit, Mich., for Detroit Federation of Teachers.
Noel A. Gage, Mark E. Reizen, Gage, Brukoff, Dubin & Siudara, Southfield, Mich., for Latin Amer. for Social etc.
James K. Robinson, Detroit, Mich., for Coleman A. Young.
Theodore Sachs, Marston, Sachs, O'Connell, Nunn & Freid, Detroit, Mich., for appellants in No. 752295.
Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Gerald F. Young, George L. McCargar, Lansing, Mich., Louis R. Lucas, 232*232 Memphis, Tenn., Thomas I. Atkins, Boston, Mass., John A. Dziamba, Williamantic, Conn., Nathaniel R. Jones, Gen. Counsel, NAACP, New York City, for appellees in Nos. 75-2295, 75-2296 and 75-2443.
George T. Roumell, Jr., Detroit, Mich., for appellee Detroit Board.
George T. Roumell, Jr., Riley & Roumell, Detroit, Mich., for appellants in Nos. 75-2296, 75-2443.
Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Gerald F. Young, George L. McCargar, Lansing, Mich., for appellants in No. 76-1635.
Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., Thomas I. Atkins, Boston, Mass., John A. Diziamba, Williamantic, Conn., George T. Roumell, Jr., Riley & Roumell, Detroit, Mich., for appellees in No. 76-1635.
George T. Roumell, Jr., Riley & Roumell, Jane Keller Souris, Thomas M. J. Hathaway, Detroit, Mich., for appellant in No. 76-1678.
Louis R. Lucas, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., Frank J. Kelley, Atty. Gen. of Mich., Gerald F. Young, Lansing, Mich., Theodore Sachs, Marston, Sachs, O'Connell, Nunn & Freid, Detroit, Mich., Nathaniel R. Jones, Gen. Counsel, NAACP, New York City, Thomas I. Atkins, Boston, Mass., for appellees in No. 76-1678.
Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
Certiorari Granted November 15, 1976. See 97 S.Ct. 380.

PHILLIPS, Chief Judge.
When this school desegregation case was filed in August 1970, Ronald Bradley, one of the black plaintiffs, had been assigned to enter the kindergarten of a Detroit school whose enrollment was 97 per cent black. There have been numerous court proceedings since that time, culminating in the opinion of the Supreme Court in Milliken v. Bradley,418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), reversing the en banc decision of this court reported at 484 F.2d 215 (1973). The Supreme Court remanded with directions for "prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970." 418 U.S. at 753, 94 S.Ct. at 3131.
This court now reviews appeals and cross-appeals from various orders and decisions of the District Court, two of which are reported at 402 F.Supp. 1096 (1975) and 411 F.Supp. 943 (1975).
In September 1976 Ronald Bradley is scheduled to enter the sixth grade of the Clinton School, which now is more than 99 per cent black.[1] The decisions of the District Court which we now review do nothing to correct the racial composition of the Clinton School. They grant no relief to Ronald Bradley nor to the majority of the class of black students he represents.
Nevertheless, this court finds itself in the frustrating position of having to leave standing the results reached by the District Judge on the issue of assignment of students, although we disagree with parts of his opinions and orders. Our affirmance is found to be necessary for the simple reason that reversal would be an exercise in futility under the situation now existing in the Detroit school system and the law of this case as established by the Supreme Court in Milliken v. Bradley.
Other questions raised by the appeals of various parties will be discussed later in this opinion.
I. Prior Findings as to Constitutional Violations
This litigation had its genesis under modest circumstances. On April 7, 1970, before the filing of any suit, the Detroit Board of Education on its own initiative adopted a plan to effect a more balanced distribution of black and white students in 12 of the 21 Detroit high schools. The April 7 plan was to take effect over a three-year period, applying initially to those students entering 233*233 the tenth grade in September, 1970. In the eleventh grade the plan was to have been effected at the opening of the 1971-72 school year and the twelfth grade at the beginning of the 1972-73 school year. The plan was designed to reduce segregation in a school system that then was 63.6 percent black.
On July 7, 1970, however, the Governor of Michigan signed into law Act No. 48, Public Acts of 1970. Section 12 of this Act had the effect of delaying and ultimately blocking the implementation of Detroit's April 7 plan. The four members of the Detroit Board of Education who supported the April 7 plan were removed from office through a recall election. Four new members were appointed by the Governor of Michigan. These four members, together with the incumbent members, who had opposed the April 7 plan from its inception, thereafter rescinded it.
The complaint in the present case was filed August 18, 1970. Among other things, the complaint prayed for a preliminary injunction requiring defendants to put into effect the plan adopted by the Detroit Board of Education on April 7 and restraining the defendants from giving any force or effect to § 12 of Act 48 insofar as it would inhibit immediate implementation of the April 7 plan. On September 3, 1970, the late District Judge Stephen J. Roth denied plaintiffs' application for a preliminary injunction. Plaintiffs immediately filed a notice of appeal and a motion in this case for injunction pending appeal.

On September 8, 1970, the day of the opening of the 1970-71 Detroit school term, the Chief Judge of the Sixth Circuit heard oral arguments on the application for an injunction to place the April 7 plan in effect pending appeal. The Chief Judge entered an order denying the application for injunction pending appeal and advanced the case on the docket of this court for argument on its merits. In an opinion announced October 13, 1970, reported at 6 Cir., 433 F.2d 897, this court held § 12 of Michigan Act 48 to be unconstitutional, ruled that the District Court did not abuse its discretion in denying the preliminary injunction and remanded the case for a trial on the merits. On remand, the District Court again refused to put the April 7 plan into effect. The plaintiffs moved for summary reversal or injunction pending appeal. In an opinion reported at 6 Cir., 438 F.2d 945 (1971), this court again remanded the case to the District Court for a hearing on the merits.
After extensive hearings, Judge Roth found as a fact that de jure segregation existed in the Detroit public schools. D.C., 338 F.Supp. 582 (1971). Included in his findings of fact were the following:
[W]e find that both the State of Michigan and the Detroit Board of Education have committed acts which have been causal factors in the segregated condition of the public schools of the City of Detroit. 338 F.Supp. at 592.
This court held that the foregoing findings of fact by Judge Roth were not clearly erroneous, Fed.R.Civ.P. 52(a), but to the contrary were supported by ample evidence. We said:
The discriminatory practices on the part of the Detroit School Board and the State of Michigan revealed by this record are significant, pervasive and causally related to the substantial amount of segregation found in the Detroit school system by the District Judge. 484 F.2d at 241.
The constitutional violations found to have been committed by the Detroit Board of Education are discussed in some detail at 484 F.2d 221-38. The constitutional violations found to have been committed by the State of Michigan are discussed at 484 F.2d 238-41.
We do not read the opinion of the Supreme Court as disagreeing with or disturbing in any way the findings of unlawful segregation with respect to the Detroit school system. To the contrary, as pointed out above, the Supreme Court remanded the case with a mandate for "prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy that has been delayed since 1970." 418 U.S. at 753, 94 S.Ct. at 3131.
234*234 II. The Remedy
It is the law of this case that both the State of Michigan and the Detroit Board of Education have committed acts which have been causal factors in creating the de jure segregation which exists in the public schools of Detroit. The principal question to be resolved on the present appeal involves the remedy. District Judge Stephen J. Roth died July 11, 1974. The responsibility for providing a remedy in obedience of the mandate of the Supreme Court was assigned to District Judge Robert E. DeMascio, author of the opinions reported at D.C., 402 F.Supp. 1096 and D.C., 411 F.Supp. 943, which are involved on the present appeal.
a) Previous Efforts to Effect a Remedy
After his finding of de jure segregation, Judge Roth grappled with the problem of fashioning a remedy in accordance with Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733

(1968), Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) and Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). Initially he contemplated a "Detroit only" solution. A motion was made to add other school districts as parties defendant. Judge Roth reserved a decision on this motion pending submission and consideration of desegregation plans. 338 F.Supp. at 595.
Judge Roth required the school board defendants, Detroit and State, to develop and submit plans of desegregation, "designed to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." Three "Detroit only" desegregation plans were submitted by the plaintiffs and by the Detroit Board of Education. Judge Roth found that:
[W]hile plaintiffs' plan would accomplish more desegregation than now obtains in the system, or which would be achieved under Plan A or C of the Detroit Board of Education submissions, none of the plans would result in the desegregation of the public schools of the Detroit school district. . . . [R]elief of segregation in the Detroit public schools cannot be accomplished within the corporate geographical limits of the city. 345 F.Supp. at 916 (1972).
Judge Roth concluded that he had the duty to look beyond the limits of the Detroit school district for a solution to the illegal segregation in the Detroit public schools. 345 F.Supp. at 916.[2]
The parties submitted a number of plans of metropolitan desegregation, including six by the State Board of Education (made without recommendation), all of which were rejected. Judge Roth thereupon appointed a nine member panel "charged with the responsibility of preparing and submitting an effective desegregation plan." 345 F.Supp. at 916.
This was the posture of the decision of Judge Roth at the time four interlocutory orders were reviewed by the Court of Appeals under 28 U.S.C. § 1292(b), together with one final order relating to the purchase of school buses. No desegregation plan was ever adopted by Judge Roth or approved by this court.
As already noted, this court agreed with Judge Roth that the State of Michigan had committed acts of de jure segregation. In ruling on the interlocutory appeal, we also agreed that the State controls the instrumentalities whose action is necessary to remedy the harmful effect of the State acts, 484 F.2d at 245-49, and concluded:
In the instant case the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan. 484 F.2d at 249.
We said:
This court in considering this record finds it impossible to declare "clearly erroneous" 235*235 the District Judge's conclusion that any Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black. 484 F.2d at 249.
This court held that it would be within the equity power of the District Court to adopt a plan of desegregation extending beyond the boundaries of the Detroit School District. We remanded the case to the District Court for the taking of additional evidence because several of the suburban school districts had not been heard or had an opportunity to be heard. We held that as a prerequisite

to the implementation of a plan affecting any school district, "the affected district must be made a party to this litigation and afforded an opportunity to be heard." 484 F.2d 250-52.[3]
The Supreme Court reversed the decision of this court, holding that no remedy involving any school district other than Detroit would be within the equitable power of the District Court without evidence that the suburban district or districts had committed acts of de jure segregation. In his separate concurring opinion, Mr. Justice Stewart explained the grounds for reversal in this language:
236*236 In reversing the decision of the Court of Appeals this Court is in no way turning its back on the proscription of state-imposed segregation first voiced in Brown v. Board of Education, 347 U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873], or on the delineation of remedial powers and duties most recently expressed in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 [91 S.Ct. 1267, 28 L.Ed.2d 554]. In Swann the Court addressed itself to the range of equitable remedies available to the courts to effectuate the desegregation mandated by Brown and its progeny, noting that the task in choosing appropriate relief is "to correct . . the condition that offends the Constitution," and that "the nature of the violation determines the scope of the remedy . . .." Id. [402 U.S.] at 16 [91 S.Ct. at 1276].
The disposition of this case thus falls squarely under these principles. The only "condition that offends the Constitution" found by the District Court in this case is the existence of officially supported segregation in and among public schools in Detroit itself. There were no findings that the differing racial composition between schools in the city and in the outlying suburbs was caused by official activity of any sort. It follows that the decision to include in the desegregation plan pupils from school districts outside Detroit was not predicated upon any constitutional violation involving those school districts. By approving a remedy that would reach beyond the limits of the city of Detroit to correct a constitutional violation found to have occurred solely within that city the Court of Appeals thus went beyond the governing equitable principles established in this Court's decisions. 418 U.S. at 757, 94 S.Ct. 3112, 3133.
b) The Remedy at Issue on Present Appeals
District Judge DeMascio was faced with an extremely difficult (if not impossible) assignment, confronted as he was with the responsibility of formulating a decree which would eliminate the unconstitutional segregation found to exist in the Detroit public schools, without transgressing the limits established by the Supreme Court.
Like Judge Roth, Judge DeMascio required the plaintiffs and the Detroit Board of Education to submit desegregation plans. Like Judge Roth, he rejected both plans as unsatisfactory. By his opinion of August 15, 1975, D.C., 402 F.Supp. 1096-1147, he outlined the details of this involved litigation, made findings of fact and adopted remedial guidelines. By his opinion of November 4, 1975, D.C., 411 F.Supp. 943, the District Judge adopted a desegregation plan drafted by the Detroit Board in accordance with the August 15 guidelines. Reference is made to these two opinions for a recitation of pertinent facts. Various amendatory and supplemental orders also have been entered by the District Court, which will be mentioned in this opinion only to the extent necessary to dispose of issues raised on this appeal.
The plaintiffs-appellants attack the plan as "bizarre" and urge its reversal. The Detroit Board of Education contends that the plan is constitutional and should be affirmed. The State defendants take the position that the pupil assignment plan meets constitutional requirements for desegregating the Detroit school system and should be affirmed, but contend that the District Court exceeded its

authority in requiring certain "educational components" and in directing that the State pay 50 per cent of the cost of these programs.

The plan adopted by the District Court became effective as of the beginning of the winter-spring semester, 1976. As of September 26, 1975, the Detroit public schools enrolled 247,774 students, 75.1 per cent of whom were black. In broad outline the plan adopted by the District Court required the reassignment of 27,524 students, of whom 21,853 would require bus transportation. The plan changed the racial balance in 105 schools out of approximately 300 zoned schools in the system. Prior to the implementation of the plan, approximately 237*237 80 schools had enrollments of a majority of white students. Under the District Court's plan, 67 of these schools received black students through transportation and rezoning. The result of the student reassignments is that no school in Detroit, with two marginal exceptions, will have an enrollment of less than 30 per cent black students. Moreover, 47 of the previously white schools have become more than 40 per cent black.

In addition, 38 schools, the majority of which previously were at least 80 per cent black, received white students via transportation and rezoning. Under the plan, 25 of these schools became 45 to 55 per cent black. Furthermore, at least 23 of Detroit's schools, enrolling approximately 22,599 students, contain a substantial mix of black and white students without any student reassignment.

In order to effectuate the reassignment of students, the District Court ordered the purchase of 250 school buses.[4]

Finally, the District Court ordered the closing of certain antiquated schools, the establishment of vocational centers available on a non-racial basis to all qualifying students, and certain Educational Components, hereinafter discussed in further detail.

To the credit of the citizens of Detroit, the record discloses that the court's plan, although implemented in the middle of a school year, was accepted in an orderly manner and in a spirit of community cooperation, without substantial disruption or disorder.

Although some improvements have been accomplished by the District Court, the plan contains glaring defects that could never pass constitutional muster and would not be countenanced by this court in a different factual situation.

As of September 1974, prior to the implementation of the plan, the percentages of black students in the eight school regions were as follows:

Region # 1 .... 90.3% Region # 2 .... 60.3% Region # 3 .... 70.8% Region # 4 .... 55.5% Region # 5 .... 96.7% Region # 6 .... 63.1% Region # 7 .... 45.2% Region # 8 .... 95.2%

black black black black black black black black

402 F.Supp. at 1106.

Notwithstanding the reassignments effected by the District Court, the percentage of black students in each of the eight regions remains substantially unchanged under the adopted plan. Only twelve of the 157 zoned schools with previous enrollments over 90 percent black have become under 90 percent black. Approximately half of Detroit's schools remain more than 90 percent black. Moreover,

the three regions which contain the highest concentration of black students, regions 1, 5 and 8, remain virtually untouched. This means that approximately 83,000 students are granted no relief from unconstitutional de jure segregation.
The Supreme Court has said that the existence of some one-race schools "is not in and of itself the mark of a system that still practices segregation by law." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971). We recognize that the overwhelming number of black students in Detroit and their concentration in the inner city undoubtedly makes some one-race schools unavoidable under any "Detroit only" remedy. However, when the Detroit School Board virtually eliminated regions 1, 5 and 8 from both its initial plan and the plan finally adopted, it assumed the heavy burden of justifying its elimination of the schools located in these three regions. In Swann the Supreme Court stated:
238*238 Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantly of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part. 402 U.S. at 26, 91 S.Ct. at 1281.
The Board's burden of justification is particularly heavy in this case because the three regions which the Board has left untouched, in the inner city, are in the area most affected by the acts of de jure segregation of which both the Detroit and State defendants have been found guilty.
The records discloses no adequate justification for excluding regions 1, 5 and 8 from the plan. The principal testimony pertaining to the reasons for excluding the inner city from student reassignments came from Merle Henrickson, Director of Planning and Building Studies for the Detroit Board. Mr. Henrickson stated that the inner city "was beyond the limits of possible treatment." Exclusion of the inner city was necessary, in his view, in order to maintain "the racial mix of desegregated schools." The result of desegregating the inner city, he predicted, would be white flight.
The need for stability in a desegregation plan was emphasized by the Supreme Court in Pasadena City Board of Education v. Spangler, ___ U.S. ___, 96 S.Ct. 2697, 49 L.Ed.2d ___ (1976). Apprehension of white flight, however, cannot be used to deny basic relief from de jure segregation. As said by the Supreme Court in a slightly different context:
The primary argument made by the respondents in support of Chapter 31 is that the separation of the Scotland Neck schools from those of Halifax County was necessary to avoid "white flight" by Scotland Neck residents into private schools that would follow complete dismantling of the dual school system. Supplemental affidavits were submitted to the Court of Appeals documenting the degree to which the system has undergone a loss of students since the unitary school plan took effect in the fall of 1970. But while this development may be cause for deep concern to the respondents, it cannot, as the Court of Appeals recognized, be accepted as a reason for achieving anything less than complete uprooting of the dual public school system. See Monroe v. Board of Commissioners, 391 U.S. 450, 459 [88 S.Ct. 1700, 1705, 20 L.Ed.2d 733]. United States v. Scotland Neck Board of Education, 407 U.S. 484, 490-91, 92 S.Ct. 2214, 2218, 33 L.Ed.2d 75 (1972).
The District Court did not subject the exclusion of these three regions to the close scrutiny required by Swann. The District Court merely noted:

Plaintiffs refuse to acknowledge that the racial composition of these three regions precludes their inclusion in a desegregation plan. . . . Clearly, it would be futile to attempt desegregation within the boundaries of these regions . . .. 402 F.Supp. at 1129.
This perfunctory treatment of the inner city falls far short of the "root and branch" requirements of Green v. County School Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and the "all-out desegregation" requirements of Keyes v. School District, 413 U.S. 189, 214, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973).
In Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971), Chief Justice Burger, speaking for a unanimous court, held that the eastern part of metropolitan Mobile cannot be treated "in isolation from the rest of the school system." 402 U.S. at 38, 91 S.Ct. at 1292. It seems equally unacceptable to treat Regions 1, 5 and 8 in isolation from the rest of the Detroit school system.
The Detroit Board of Education contends that the exclusion of Regions 1, 5 and 8 from the plan is supported by the decision 239*239 of the Supreme Court in Pasadena City Board of Education v. Spangler, ___ U.S. ___, 96 S.Ct. 2697, 49 L.Ed.2d ___ (1976). This contention is without merit. In the present case the plan adopted by the District Court, which we affirm in part, is the first remedy adopted in an effort to cure the effects of de jure segregation. We hold this remedy to be insufficient as to Regions 1, 5 and 8. This is not a Spangler situation. The Detroit Board also relies on Washington v. Davis, ___ U.S. ___, ___, 96 S.Ct. 2040, 2041, 48 L.Ed.2d 597 (1976). We find this decision to be inapplicable here because it is the law of this case that unlawful de jure segregation, for which both the Detroit Board and State defendants are in part responsible, exists in the Detroit school system.
Even though we do not approve of that part of the District Court's plan which fails to take any action with respect to schools in Regions 1, 5 and 8, this court finds itself unable to give any direction to the District Court which would accomplish the desegregation of the Detroit school system in light of the realities of the present racial composition of Detroit. Compare Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975), rehearing denied, 525 F.2d 1203 (1975).
Plaintiffs urge that we reverse and require the District Court to adopt the plan proposed by them. The reasons stated by the District Judge for rejecting plaintiffs' plan are set forth at 402 F.Supp. 1123-25. The District Court found that this proposal would require transportation of 77,000 to 81,000 students and the purchase of approximately 840 school buses. Much of the transportation would be of black students from predominately black schools to other predominately black schools and the plan nevertheless would leave a majority of Detroit's students in schools 75 to 90 per cent black.
Our considered judgment is that plaintiffs' plan would accelerate the trend toward rendering all or nearly all of Detroit's schools so identifiably black as to represent universal school segregation within the city limits. The anticipated positive results, if any, would not justify the expense and hardship that inevitably would be involved. We agree with the District Judge that plaintiffs' plan would not satisfy the Supreme Court's mandate in this case.
A second alternative would be to reverse and order adoption of the plan originally proposed by the Detroit Board of Education. We have considered this alternative carefully and reject it because the plan originally proposed by the Board is not significantly different from the plan adopted by the court. Like the plan adopted by the court, the original Board proposal would have left Regions 1, 5 and 8 unaffected, with no changes in the allocation of students in the predominately black schools in those regions. The Board's original plan is based on the same erroneous theory as the plan adopted by the court—that the mere elimination of identifiably white schools satisfies the criteria of Brown.

The Board's proposal as originally suggested might have been preferable to the plan approved by the court. However, the Board now urges affirmance of the plan which it adopted pursuant to the District Court's guidelines. As pointed out above, this plan has been well received by the citizens of Detroit.
We conclude that the differences between the two plans are so inconsequential that the compulsory adoption of the Board's original plan by order of this court would produce more confusion than any possible good that would be accomplished.
A third alternative would be to reverse and direct that the District Court assign the white students now remaining in the Detroit school system among the predominately black schools on a percentage basis somewhat along the lines originally proposed by plaintiffs. It is obvious that such a requirement would accomplish nothing more than token integration, and that of uncertain duration.
Recognizing the absence of alternatives, we affirm the judgment of the District Court on the issue of assignment of students in areas other than Regions 1, 5 240*240 and 8. In affirming the District Judge's limited desegregation plan, we observe that the steps which he has taken thus far appear to us to be consistent with the fourteenth amendment, as interpreted by the Supreme Court in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). We must, however, remand the case for further consideration in regard to the three central regions of the City of Detroit which both the school board and the District Judge excluded from their proposed remedial plans. We cannot hold that where unconstitutional segregation has been found, a plan can be permitted to stand which fails to deal with the three regions where the majority of the most identifiably black schools are located.
We recognize that it would be appropriate for us at this point to supply guidelines to the District Judge as to what he should do under this remand. Omission of such guidelines is not based on any failure to consider the problem in depth. It is based upon the conviction which this court had at the time of its en banc opinion in this case—and for the reasons carefully spelled out therein—that genuine constitutional desegregation can not be accomplished within the school district boundaries of the Detroit School District.
The record discloses that plaintiffs are proceeding with their efforts to establish the basis for a metropolitan remedy within the Supreme Court's guidelines in Milliken v. Bradley.See memorandum and order of District Court dated December 19, 1975, 411 F.Supp. 937. Our limited affirmance and remand in this case is without prejudice to the obligation of the District Court to proceed with that aspect of the litigation relating to the proposed metropolitan remedy.
On remand, the District Court will be empowered to make further alterations in the plan heretofore adopted by it, as the evidence may require, not inconsistent with this opinion. Kelley v. Metropolitan City Board of Education, 463 F.2d 732, 744-45 (6th Cir. 1972),cert. denied, 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972).
III. Educational Components
Citing the difficulties of the desegregation problems in Detroit, the District Court directed that the Detroit Board and the State put into effect certain comprehensive programs which were found to be essential to the success of the desegregation effort. The programs are referred to in the record as "Educational Components." They include: (1) establishment of vocational centers; (2) a comprehensive reading program; (3) an in-service training component designed to prepare faculty and other educational personnel to deal with new experiences that arise in a school system

undergoing desegregation; (4) a testing component to insure that testing procedures are fair and equitable and have no discriminatory effects; (5) a uniform code of student conduct with provisions for due process hearings; (6) a program of school community relations; (7) a program of counseling and career guidance; and (8) a monitoring system to audit efforts to implement the court's desegregation efforts. Reference is made to those parts of the opinion of the District Court published at 402 F.Supp. 1138-45 dealing with these Educational Components. This opinion of the District Court has been supplemented by additional orders. The Detroit Board of Education was required to pay the highest amount previously allocated in its budget toward such programs. The remainder of the cost would be paid one-half by the State of Michigan and one-half by the Detroit Board of Education.
On May 11, 1976, the District Court entered a judgment implementing its program of Educational Components. This judgment included the following:
IT IS FURTHER ORDERED AND ADJUDGED that: The defendant Detroit Board of Education and the state defendants shall, on or before the start of the September 1976 school term, institute comprehensive programs for: a) Reading and communication skills b) In-service training c) Testing d) Counselling and career guidance. 241*241 PROVIDED, HOWEVER, that the Detroit Board shall disclose to the state defendants its highest budget allocated in any year for each of these above-enumerated quality education programs ordered herein, and thereafter the state defendants and the Detroit Board shall compute the excess cost in addition thereto occasioned by the specific implementation of the court-ordered programs, and the state defendants and the Detroit Board shall thereafter equally bear the burdens of such excess cost imposed by the provisions contained in this judgment and previous orders directing implementation of said educational components consistent with all orders and memoranda relating thereto.
The Michigan State defendants appeal from the judgment of May 11, 1976, as to these four of the Educational Components, contending that there is no constitutional violation which justifies these remedies and that the District Judge exceeded his lawful authority by ordering the inclusion of these four Educational Components in the remedy in this cause. The Detroit Board of Education, on the other hand, contends that all the Educational Components are within the scope of the equity powers of the court to remedy racial segregation in the Detroit schools because they help to eliminate vestiges of discrimination and because they are a necessary part of the long-range desegregation plan.
The District Court found that these Educational Components are necessary "to remedy effects of past segregation, to assure a successful desegregation effort and to minimize the possibility of resegregation." 402 F.Supp. at 1118; May 11, 1976, order at page 3. This finding of fact is not clearly erroneous, but to the contrary is supported by ample evidence.
The need for in-service training of the educational staff and development of non-discriminatory testing is obvious. The former is needed to insure that the teachers and administrators will be able to work effectively in a desegregated environment. The latter is needed to insure that students are not evaluated unequally because of built-in bias in the tests administered in formerly segregated schools.
We agree with the District Court that the reading and counseling programs are essential to the effort to combat the effects of segregation.

In Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954), the Supreme Court said:
Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system."
Without the reading and counseling components, black students might be deprived of the motivation and achievement levels which the desegregation remedy is designed to accomplish.
Accordingly, we conclude that the findings of the District Court as to the Educational Components are supported by the record. This is not a situation where the District Court "appears to have acted 242*242 solely according to its own notions of good educational policy unrelated to the demands of the Constitution." See, Keyes v. School District, 521 F.2d 465, 483 (10th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657, 44 U.S.L.W. 3399 (1976). We hold that the District Court acted within its equity powers in requiring the Educational Components as a part of the remedy. The decision of the District Court prescribing these components is affirmed. The matter of allocation of the costs of these components will be dealt with in part IV of this opinion.
IV. The Allocation of Costs as Between the State of Michigan and The Detroit Board of Education
Both the State defendants and the Detroit Board appeal from the judgment of the District Court relative to the allocation of the costs of the Educational Components. The local Board also asserts that the State should bear all the cost of 100 additional school buses.
The State defendants assert that the District Court may not, consistent with the eleventh amendment, compel the State to pay for any part of the Educational Components. Reliance is placed upon Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
Edelman did not involve payment of State funds "as a necessary consequence of compliance in the future with a substantive federal-question determination" or payments which became due at a time when required by a "court-imposed obligation." At issue was a retroactive award of money relief which the Supreme Court found to be "in practical effect indistinguishable in many aspects from an award of damages against the State." 415 U.S. at 668, 94 S.Ct. at 1358. The Supreme Court recognized that under Ex parte Young, 209 U.S. 123, 150, 28 S.Ct. 441, 52 L.Ed. 714 (1908), expenditure of State funds may be required by a prospective court decree without violating the eleventh amendment, even if the relief has an ancillary effect on the State treasury.
Mr. Justice Rehnquist, speaking for the majority, said:

The injunction issued in Ex parte Young was not totally without effect on the State's revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U.S. 365, [91 S.Ct. 1848, 29 L.Ed.2d 534] (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254, [90 S.Ct. 1011, 25 L.Ed.2d 287] (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra. (Footnote omitted.) 415 U.S. at 667-68, 94 S.Ct. at 1357.
The majority opinion recognized that the eleventh amendment would not apply "where a federal court applies Ex parte Young to grant prospective declaratory and injunctive relief, as opposed to an order of retroactive payments . . ." 415 U.S. at 666, n. 11, 94 S.Ct. at 1357.
In Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974),the 243*243 Supreme Court, speaking through Chief Justice Burger, said:
The Eleventh Amendment to the Constitution of the United States provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . .." It is well established that the Amendment bars suits not only against the State when it is the named party but also when it is the party in fact. Edelman v. Jordan, 415 U.S. 651 [94 S.Ct. 1347, 39 L.Ed.2d 662] (1974); Poindexter v. Greenhow, 114 U.S. 270, 287 [5 S.Ct. 903, 912, 29 L.Ed. 185] (1885); Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446 [3 S.Ct. 292, 27 L.Ed. 992] (1883). Its applicability "is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record." Ex parte New York, 256 U.S. 490, 500 [41 S.Ct. 588, 590, 65 L.Ed. 1057] (1921). However, since Ex parte Young, 209 U.S. 123 [28 S.Ct. 441, 52 L.Ed. 714] (1908), it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law. Ex parte Young teaches that when a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Id., [209 U.S.] at 159-160 [28 S.Ct. 441, at 454]. (Emphasis supplied.) 416 U.S. at 237, 94 S.Ct. 1683, 1686.
In Wright v. Houston Independent School District, 393 F.Supp. 1149, 1158 (S.D.Tex. 1975), a school desegregation case, the court placed the following construction upon Edelman:
The Supreme Court seems to be implying here that the situation is different if the state agency violates a judicially mandated standard of action. In Edelman the state agency failed to live up to the standards of a federal regulation, but invalidity of its actions had not yet been determined by a court of law. In the instant case, the Houston Independent School District has been ordered by the district court to conduct itself in a specified manner. It has not done so and this may have given rise to a

violation of the rights of the plaintiffs herein with accompanying monetary damages. This difference in the circumstances may well make the case not subject to the Edelman decision. For these reasons the court has determined that the eleventh amendment does not bar a money judgment for the plaintiffs.
To like effect see Morales v. Turman, 383 F.Supp. 53, 59-60 (E.D.Tex.1974).
In Cooper v. Aaron, 358 U.S. 1, 4, 78 S.Ct. 1401, 1403, 3 L.Ed.2d 5 (1958), the Supreme Court said:
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. * * * * * * The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedom guaranteed by our fundamental charter for all of us. 244*244 Our constitutional ideal of equal justice under law is thus made a living truth.
In United States v. Board of School Commissioners of Indianapolis, 503 F.2d 68, 80, 82 (7th Cir. 1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1654, 44 L.Ed.2d 86 (1975), the Seventh Circuit found an affirmative duty on Indiana state officials to assist in desegregating the Indianapolis school system. The court said: "The Eleventh Amendment does not prevent enforcement of the Fourteenth Amendment." 503 F.2d at 82.
In Bradley v. Milliken, 484 F.2d at 258, this court said:
In the exercise of its equity powers, a District Court may order that public funds be expended, particularly when such an expenditure is necessary to meet the minimum requirements mandated by the Constitution. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 233, 84 S.Ct. 1226, 12 L.Ed. 256 (1964); Eaton v. New Hanover County Board of Education, 459 F.2d 684 (4th Cir. 1972); Brewer v. School Board of City of Norfolk, 456 F.2d 943, 947, 948 (4th Cir.), cert. denied, 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972); Plaquemines Parish School Board v. United States, 415 F.2d 817 (5th Cir. 1969).
The opinion of the Supreme Court reversing our decision in Bradley did not deal with this subject.
Wyatt v. Aderholt, 503 F.2d 1305, 1314-15 (5th Cir. 1974), involved an Alabama state school designed to rehabilitate the mentally retarded which was not being operated in a constitutional manner. The State defendants in that case, the Governor, the Alabama Commissioner of Mental Health and the Alabama Mental Health Board, like the State defendants in the present case, asserted that the federal court could not enter a judgment requiring the expenditure of State funds. Judge Wisdom responded to this contention as follows:
The appellants' fourth contention is that the order of the district court invades a province of decisionmaking exclusively reserved for the state legislature. Governor Wallace argues that the order will require heavy expenditures of state funds; that these funds will have to come from other state programs; and that the duty of compromising and allocating funds among the many programs competing for them is a duty which must be discharged by the state governor and legislature alone. Governor Wallace concedes in his brief that he is not contending that "the financial cost of complying

with an established constitutional right is a valid reason for failure to comply". He "suggest[s] that before the Court decides to adopt a new constitutional right it should consider all of the consequences of its action, financial and social, and its effect on our federal form of government". The Mental Health Board makes the point in a related way, by suggesting that the district court's order here is in effect an order requiring the state to furnish a particular service, and by citing cases establishing the general proposition that ordinarily it is not for the federal courts to say whether or in what amounts a state shall provide any particular governmental benefit or service. E. g., Fullington v. Shea, D.Colo.1970, 320 F.Supp. 500, aff'd, 404 U.S. 963, 92 S.Ct. 345, 30 L.Ed.2d 282. We find these arguments unpersuasive. It goes without saying that state legislatures are ordinarily free to choose among various social services competing for legislative attention and state funds. But that does not mean that a state legislature is free, for budgetary or any other reasons, to provide a social service in a manner which will result in the denial of individuals' constitutional rights. And it is the essence of our holding, here and in Donaldson, that the provision of treatment to those the state has involuntarily confined in mental hospitals is necessary to make the state's actions in confining and continuing to confine those individuals constitutional. That being the case, the state may not fail to provide treatment for budgetary reasons alone. "Humane considerations and constitutional requirements are not, in this day, to be 245*245 measured or limited by dollar considerations". Jackson v. Bishop, 8 Cir. 1968, 404 F.2d 571, 580 (Blackmun, J.), quoted, Rozecki v. Gaughan, 1 Cir. 1972, 459 F.2d 6, 8. "Inadequate resources can never be an adequate justification for the state's depriving any person of his constitutional rights". Hamilton v. Love,E.D.Ark.1972, 328 F.Supp. 1182, 1194. "[T]he obligation of the Respondents [prison officials] to eliminate unconstitutionalities does not depend upon what the Legislatures may do". Holt v. Sarver, E.D.Ark. 1970, 309 F.Supp. 362, 385, aff'd, 8 Cir. 1971, 442 F.2d 304. See also Hawkins v. Town of Shaw, 5 Cir. 1971, 437 F.2d 1286, 1292. 503 F.2d at 1314-15.
The decision of the District Court in the present case imposes no money judgment on the State of Michigan for past de jure segregation practices. Rather, the order is directed toward the State defendants as a part of a prospective plan to comply with a constitutional requirement to eradicate all vestiges of de jure segregation. Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).
The eleventh amendment contention of the State defendants is without merit.
We hold that it is within the equitable powers of the court to require the State of Michigan to pay a reasonable part of the cost of correcting the effects of de jure segregation which State officials, including the Legislature, have helped to create. We reemphasize that it is the law of this case that the State of Michigan has been guilty of acts which have a causal relation to the de jure segregation that exists in Detroit. See 484 F.2d at 238-41.
The State defendants have stipulated and agreed to an equal sharing of the costs of the acquisition and construction of the area vocational centers. This court has required the State defendants to bear 75 per cent of the costs of acquiring 150 school buses. 6 Cir., 519 F.2d 679 (1975), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975). The District Court ordered that the cost of acquiring 100 additional school buses be shared on the same basis: i. e., that the buses be purchased by the Detroit Board, with the State bearing 75 per cent of the costs.
On May 11, 1976, the District Court ordered that the State and Detroit Board each pay one-half the costs of the Educational Components. Both the State defendants and Detroit Board appeal from this order. The State defendants contend that the State should not be required to pay any of the cost of these programs other than the normal share of State school aid funds provided to Detroit. The Detroit Board contends that any requirement that it bear the major financial responsibility for the plan does not result in "balancing the individual and collective interests" as required by Swann, 402 U.S.

at 16. The Detroit Board asserts that this court should modify the order of the District Court so as to require the State defendants to pay at least 75 per cent of the total costs of the desegregation plan and 100 per cent of the costs of 100 additional school buses.
Since Michigan State officers and agencies were guilty of acts which contributed substantially to the unlawful de jure segregation that exists in Detroit, the State has an obligation not only to eliminate the unlawful segregation but also to insure that there is no diminution in the quality of education. This principle was stated in Hart v. Community School of Brooklyn, 383 F.Supp. 699 (E.D.N.Y.1974), aff'd, 512 F.2d 37 (2d Cir. 1975),wherein the court described the State's responsibility in a desegregation plan as follows:
As part of the State's obligation to eliminate segregation, there is, of course, a concomitant obligation to ensure that there is no diminution in the quality of education . . ." 383 F.Supp. at 741.
In Evans v. Buchanan, 379 F.Supp. 1218 (D.Del.1974), aff'd 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975), reh. denied, 423 U.S. 1080, 96 S.Ct. 868, 47 L.Ed.2d 91 (1976),the court said:
Accordingly, it is well established that to the extent that any schools in the State 246*246 are in violation of Brown and its progeny or of this Court's orders, the State Board must bear primary responsibility." 379 F.Supp. at 1222.
The fiscal justification for the decision of the District Court in requiring that the State of Michigan pay one-half of the costs of the desegregation plan (to the extent specified in the orders and judgments) is supported abundantly by the evidence with respect to the critical financial problems now confronting the Detroit Board of Education. The Board is operating on a "survival budget". The evidence is summarized in the brief of the Detroit Board, excerpts from which are set forth in the Appendix to this opinion.
We see no reason at this time for upsetting the judgment that the State of Michigan pay 50 percent of the costs of the desegregation plan to the extent prescribed by the District Court. We recognize, however, that it will be difficult for the Detroit Board to pay its share of the costs. (See Appendix.) Our affirmance of the District Court on this issue is not intended as a mandate for a cutback in essential educational programs in order to meet the expenses of implementing the desegregation plan. We affirm that part of the judgment relating to the costs of the plan, but without prejudice to the right of the District Court to require a larger proportionate payment by the State of Michigan if found to be required by future developments.
Our previous order requiring the State to bear 75 per cent of the cost of 150 school buses is reaffirmed. The order of the District Court requiring the State to bear 75 per cent of the cost of the 100 additional school buses is affirmed.
V. Faculty Desegregation
Originally Judge DeMascio declined to order any reassignment of faculty in response to a proposal by the Detroit School Board that each Detroit school should have a teaching staff half white and half black. On August 28, 1975, however, the District Court entered the following order:
Pursuant to this court's Memorandum Opinion and order dated August 15, 1975, this court's Supplemental Memorandum and Order dated August 18, 1975, and this court's Order dated August 26, 1975;

IT IS HEREBY ORDERED that incidental to and concurrently with the implementation of the plan of student desegregation as hereafter ordered by the court, teachers in the Detroit School System shall be reassigned insofar as necessary, and subject to collective bargaining agreement provisions otherwise applicable and not inconsistent with this order, to achieve a distribution of not more than 70% of teachers of one race in each school.
The Detroit Federation of Teachers, Intervenors, and the Detroit Board appeal from this order, taking diametrically opposite positions. The teachers contend that it is the law of the case, under findings of fact by both Judge Roth and Judge DeMascio, that there has been no racially discriminatory assignment of Detroit faculty and that there is no lawful predicate for any faculty reassignment order based on race. The Board contends that the court erred in rejecting a 50-50 ratio proposed in the original Board plan. It is asserted that adherence to the District Court's 70 per cent figure has caused the Board to be out of compliance with 45 C.F.R. § 185.44(d)(3), thus preventing the Detroit school system from receiving funds under the Emergency School Aid Act, 20 U.S.C. § 1602 (Supp. II, 1972).[5]
Additionally, the Detroit Board contends that the District Court erroneously ruled as inadmissible: (1) testimony that the balance of staff provisions of the collective bargaining agreement have not brought about the anticipated racial ratios of teachers in individual schools; (2) testimony that teacher transfers were necessary when students 247*247 were reassigned, grade structures changed and schools closed; and (3) testimony that the racial ratio of teachers must be changed in order to qualify for federal funds.
The State defendants support the position of the teachers. The plaintiffs support the position of the Board.
We reject the contention of the intervenors that the order of Judge Roth, entered in 1971, deprives the Board of Education or the court of power to reassign teachers in 1976. Cf., Swann, 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Keyes v. School District,521 F.2d 465, 484 (10th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976); see also, Morgan v. Kerrigan, 509 F.2d 580, 595 (1st Cir. 1974),aff'g, 379 F.Supp. 410 (D.Mass. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. (1975).
It is significant that Judge Roth's order of June 14, 1972 (dealing with a contemplated metropolitan remedy), 345 F.Supp. 914, 931, 938, made provisions for reassignment of faculty.
The reassignment of faculty is similar to the reading and counseling "Educational Components" which we have upheld in Part III of this opinion. It helps to mitigate the fact that the majority of Detroit's children are left in schools that are overwhelmingly one race. Reassignment of faculty serves to provide these children with the maximum desegregative experience possible under the circumstances.
In fashioning a desegregation remedy which involves reassignment of faculty it is obvious that, if otherwise feasible, a District Court should leave a school system in compliance with applicable federal regulations. We express no views in this opinion as to whether the above quoted August 28 order of the District Court disqualifies the Detroit school system from receiving aid.[6] This question is not before us.
Although the District Court has the authority as an equitable remedy to order the reassignment of faculty, we conclude that further consideration should be given to this issue. Accordingly, we vacate the above-quoted order of the District Court, dated August 28, 1975, and remand this aspect of the case to the District Court for the hearing of the evidence on the issue of faculty assignment.

VI. Conclusion
The case is remanded to the District Court for further proceedings not inconsistent with this opinion. No costs are taxed. Each party will bear his own costs on this appeal.
APPENDIX
Financially, the Detroit school system has been devastated by a series of compounding economic crises. The period between 1970 and 1976 has marked an all-time low in the system's ability to absorb and compensate for the costs of educating Detroit's children.
The cost of education is a function of the size of a school district. (TR. Vol. 7 at 110-111). The Detroit system is the largest school district in the State and encompasses the largest number of indigent students in Michigan. (TR. Vol. 25 at 88). The cost of providing educational services in Detroit has gone up disproportionately to the continuing above-state average drop in school enrollment. (TR. Vol. 24 at 131). This cost increase reflects the additional cost of doing business, without improving educational services. (TR. Vol. 24 at 125-126; Vol. 7 at 85-86).
Actually, since 1971, the Detroit school system has experienced severe financial crisis as a result of the loss of property tax revenues by virtue of urban renewal and highway construction; the exodus of business and industries to the suburbs and the concomitant outward population flow from the city. (TR. Vol. 7 at 92). At the same time, the system was experiencing escalating educational costs forcing the Board into a "survival" budget under which the system was forced to provide only minimal educational services while eliminating many crucial educational programs.
248*248 By 1973, the system had accumulated a 68 million dollar deficit and was within four days of closing its doors due to the lack of funds. (TR. Vol. 7 at 82). As a result of special state legislation, the Detroit system was able to finance its debt over a period of years and continue operations utilizing a portion of the operating budget for repayment. However, by law the Detroit Board was required to operate within a balanced budget which has necessitated a continuation of the "survival" budget instituted in 1971.
The Detroit school system is financed by property taxes as allocated by the Wayne County Tax Allocation Board and as voted by the electors of the school district, by declining State Aid supplied by the state legislature based upon the number of students in the school district and the State Equalized Value (SEV) of property in the district and by special funds from the Michigan legislature and from federal sources. (TR. Vol. 7 at 87-90, 93, 95, 105; Vol. 25 at 106-107; Detroit Board Ex. 42 and 43). State Aid comprised approximately 47% of the total 1974-75 budget and federal funding provided approximately 15% of that budget. The Detroit Board does not have the power nor the authority to levy an income tax to finance school operations, nor can the Board levy additional millage without a favorable vote of the electorate. (TR. Vol. 7 at 86; Vol. 24 at 151, 157; Vol. 26 at 20).
Detroit's municipal tax overburden is a function of its size and the result of the many municipal services provided by Detroit which are not provided or required by other municipalities but which are utilized by citizens of the entire southeastern Michigan area.
Over the past five years, Detroit's SEV has remained relatively static compared to the increasing SEV of the rest of the State. The School Aid Act provides a power equalizing formula to supply a more uniform flow of State revenue to school districts to remedy the widely variant per pupil SEV.

The per capita SEV in Detroit is 50% lower than the average for the 20 largest cities in Michigan, thus requiring more millage to be levied by Detroit taxpayers to obtain an equal yield. (TR. Vol. 7 at 105; Detroit Board Ex. 31).
The municipal overburden inequities have been recognized by the State and school aid is supplied school districts whose municipal overburden is in excess of 125% of the state average. [Bursley Act, M.C.L.A. § 388.1225; M.S.A. § 15.1919(525)]. While the power equalizing membership section of the Act, in which all qualifying school districts can share, is fully funded, the municipal overburden section of the Act is presently funded by only approximately 28% of the total amount authorized. Detroit, with the greatest overburden in the State, presently receives 91% of the allocated funds in the overburden section of the Act pursuant to the formula.
If the overburden section were fully funded, the Detroit system would receive an additional 61.6 million dollars. If it were funded by 50% (as was done in 1972-73), the system would receive an additional 18.7 million dollars more than is presently received. It is clear that the State does not provide the Detroit Board with all the money in State aid which it should or could.
On July 1, 1975, the Central Board of Education adopted a 1975-76 general fund-general purpose budget in the amount of $310,231,253. The budget as adopted was a balanced budget based upon projected revenue and anticipated expenditures. However, total anticipated revenues from state, local and federal sources were short of meeting expenditure requirements by $4,691,496. In order to balance the budget at $310,231,253 an allocation of $4,691,496 was required from prior year general fund equity to close the gap between revenues and expenditures.
The 1975-76 budget is essentially a continuation of the inadequate level of educational services of the past several years. In January, the Detroit Board cut close to $17 million from its budget for the second half of the school year. Annualized, this cut amounted to about $34 million. At the time, this was close to 15% of the Board's 249*249 general purpose budget. In addition, emergency cuts of $10.7 million were instituted during the 1973-74 school year. Annualized savings from these said year cuts are about $20 million. Detroit has not been able to restore the programs and services eliminated or curtailed as a result of these further budget cuts.
Expenditures have been reduced and postponed each year since 1971. The cumulative effects of past cutbacks have already begun to have serious consequences for educational programs. Continuing these cuts merely compounds the damage. Each year it becomes more costly to restore these services because of the inflationary spiral. For those students who have left the system, it is already too late to have any effect regardless of cost.
Subsequent to adoption of the 1975-76 budget, state aid revenue which had been originally estimated at $159,318,160 were reduced to $152,467,601 as a result of decreases in the municipal overburden allocation to Detroit, a .6% statutory reduction, a 1.7% executive order reduction, and various other state aid adjustments. In order to maintain school programs and services, the $6,850,559 reduction in state aid was replaced from prior year general fund equity.
In addition, a number of supplemental budget allocations were required in 1975-76 to meet mandatory operating costs in such areas as transportation, bilingual/bicultural programs and building operation and maintenance. Based upon the total supplemental appropriations and replacement of state aid revenue losses, the Detroit school district faces a potential budgetary deficit of approximately $5,700,000 in 1975-76. The general fund equity accumulated from prior years will be completely exhausted.

Estimated general fund-general purpose expenditure requirements for 1976-77 are approximately $336 million.[1] This estimated level of expenditure reflects only the increased cost of doing business in 1976-77 at the same level of services as 1975-76. The increases in cost are of a nondiscretionary nature and include negotiated salary adjustments and increments of $20,000,000, inflationary increases of $4,500,000, and a contingency for unanticipated charges equal to 1% of the total budget or $3,360,000. Except for those desegregation components implemented this year, i. e., pupil transportation and bilingual/bicultural, no provision has been made for desegregation costs.
With regard to projected reserve, there is a potential gap of over $37 million between estimated 1976-77 expenditure requirements and current year reserve estimates. This gap will have to be closed by reducing the projected level of expenditure through an additional cutback in educational programs and services and/or increasing revenues. If additional revenues are not obtained from local or state sources, existing programs and services would have to be cut by up to $37 million to balance the 1976-77 budget. If a deficit is incurred in 1975-76, that amount would also have to be included as part of the budget cuts required in 1976-77.
At least three state aid bills are currently before the legislature. It is unlikely that the state will fund any appreciable increase in state aid for 1976-77. Consequently, at best, state revenues for next year will be at the same level as in 1975-76.
The record reflects, and the District Court so found, that there is no possibility of the citizens of Detroit voting additional millage for operation of the school system in the near future. Detroit taxpayers shoulder the highest tax burden in the State. (TR. Vol. 24 at 146-147; Detroit Board Ex. 30, 41). Additionally, Detroit taxpayers have the highest municipal tax overburden in Michigan. (TR. Vol. 7 at 104, 109-114; Vol. 24 at 147; Detroit Board Ex. 33). Detroiters pay a 28.58% higher property tax rate than the State average. (TR. Vol. 24 at 146; Detroit Board Ex. 41). Of the past eight millage elections for additional revenue, seven have failed and a reasonable 250*250 expectation is that no additional millage will be voted in the near future. (TR. Vol. 24 at 143-144, 147, 150-151; Vol. 7 at 140, 144; Detroit Board Ex. 40).
Notwithstanding this dismal prediction by the District Court, the Detroit Board plans to place a millage proposal before the electorate of the City of Detroit for a 3 mill tax to maintain existing programs and a 2 mill tax for modest improvements (App. at 35a) in a desperate attempt to increase revenues for the 1976-77 school year. This millage proposal was preceded by a recent vote of the electorate which increased taxes to finance a court ordered construction of a new jail facility. Again, the immediate tax burden of Detroit residents has been increased, and the Detroit Board's request must follow closely on the heels of this recent tax burden increase. Additionally, the legislature and the City Council have just voted a 3 mill garbage tax. Similarly, City of Detroit property owners will pay a 2-2.5 mill tax increase for City debt retirement (App. at 35a).
In light of all the above, the financial impact of implementing the District Court's adopted desegregation plan is readily apparent upon a cursory review of the relevant orders of the District Court between August 15, 1975, and May 11, 1976.
On August 15, 1975, the District Court (App. at 1a-15a) ordered, exclusive of transportation costs, the establishment of four vocational centers; formulation of two additional technical high schools patterned after Cass Tech; institution of comprehensive programs for a) in-service training, b) bilingual/multi-ethnic studies, c) counseling and career guidance, d) testing, and e) co-curricular activities; equalization of all school facilities and buildings; and comprehensive construction and restoration programs.

On October 29, 1975 (App. at 16a-19a), the District Court ordered the Detroit Board to devise an inservice training program for all school personnel to provide instruction in the "fair, nondiscriminatory" administration of the Student Code of Conduct; and an in-service training program for the reading program.
Later, on November 10, 1975 (App. at 20a-22a), the District Court ordered the Detroit Board and the State Defendants to jointly identify and acquire suitable sites for five vocational centers and take steps to construct such sites as soon as possible; and the in-service training of reading instructors.
On December 4, 1975 (App. at 25a-26a), the District Court ordered implementation of the Detroit Board's October 8, 1975, proposal for a reading instruction program, including in-service training of all instructors.
On January 14, 1976 (App. at 27a-29a), the District Court ordered the institution of the Detroit Board's Modernization Program.
Finally, on May 11, 1976 (App. at 30a-34a), the District Court ordered equalization of all school facilities and buildings preparatory to the 1976-77 school term; continuance of the comprehensive construction and renovation program; the institution of a reading and communication skills program, together with the necessary in-service training therefore; the institution of the testing program with the accompanying in-service training; institution of the counseling and career guidance program with the accompanying in-service training; the application of a formula for equal sharing of excess cost of implementing the educational components by the Detroit Board and the State Defendants; institution of the vocational education program; institution of a comprehensive program for bi-lingual/multiethnic studies; and institution of the in-service training program for implementation of the Uniform Code of Conduct.
Even without actual dollar figures, the financial impact of these orders could easily destroy the educational program of the Detroit school system. The financing of these components by the Detroit school system would only mean a concomitant elimination of existing programs.
251*251 It is virtually impossible for the Detroit Board of Education to re-order its priorities when it is already operating on a woefully inadequate budget that cannot provide a minimal quality educational program. Any attempt to redistribute available resources will cause further deterioration in on-going educational programs and will merely result in robbing Peter to pay Paul.
Nevertheless, the school district is required by law to adopt a balanced budget by July 1. In order to do so, expenditure requirements will have to be reduced to the level of expected revenue. This will mean a drastic cut in existing programs and services. The school district will not even be able to maintain current levels of educational programming; therefore, it would certainly be a futile gesture to consider funding the increased costs of implementing desegregation components.
The May 11, 1976, Judgment appealed presents a highly structured and effective desegregation plan. However, the Judgment fails to establish a satisfactory financing scheme to properly and equitably dispense the costs of underwriting such a plan.
[1] The charts submitted by the Detroit Board show the Clinton School to be 100 per cent black.
[2] The findings are quoted in full at 484 F.2d 242-45.
[3] The interlocutory decisions of Judge Roth, which were affirmed by this court, have been misunderstood and reported erroneously. It has been said that Judge Roth ordered, and this court approved, the consolidation of the Detroit School

District with 53 suburban school districts, or that Judge Roth established a desegregation panel and ordered it to prepare a remedial plan consolidating the Detroit system and 53 suburban school districts. Such reports are incorrect. See, e. g., Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792, 44 U.S.L.W. at 4480 (1976). We have found nothing in any opinion or order of Judge Roth evidencing any intention to consolidate any school districts. He apparently contemplated a remedy which would have left the suburban districts intact but would have involved one or more of them in a metropolitan plan of pupil transportation.
Moreover, this court never indicated an intention to require the consolidation of any school districts. The interlocutory order affirmed by us merely created a panel "charged with the responsibility of preparing and submitting an effective desegregation plan." So far as the record shows, this panel never made a report. It is reemphasized that no specific plan of desegregation was ever adopted by Judge Roth or approved by this court.
Apparently there has been confusion between this case and Bradley v. School Board of the City of Richmond,462 F.2d 1058 (4th Cir. 1972), aff'd by an equally divided court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973), where the District Court ordered the consolidation of three separate Virginia school districts.
This court distinguished the Detroit case from the Richmond case in the following language:
Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (4th Cir. 1972), aff'd by an equally divided court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973), is distinguishable in several respects. In that case the District Court ordered an actual consolidation of three separate school districts, all of which the Court of Appeals for the Fourth Circuit declared to be unitary. In the instant case the District Court has not ordered consolidation of school districts, but directed a study of plans for the reassignment of pupils in school districts comprising the metropolitan area of Detroit. In the Richmond case the court found that neither the Constitution nor statutes of Virginia, previously or presently in effect, would have permitted the State Board of Education, acting alone, to have effected a consolidation of the three school districts into a single system under the control of a single school board. The Fourth Circuit held that compulsory consolidation of political subdivisions of the State of Virginia was beyond the power of a federal court because of the Tenth Amendment to the Constitution of the United States. The decisions which now are under review did not contemplate such a restructuring.
Furthermore, the court in the Richmond case cited provisions of the Constitution and statutes of Virginia in support of its holding that—
"The power to operate, maintain and supervise public schools in Virginia is, and always has been, within the exclusive jurisdiction of the local school boards and not within the jurisdiction of the State Board of Education." 462 F.2d at 1067.
The record in the present case amply supports the finding that the State of Michigan has not been subject to such limitations in its dealings with local school boards. 484 F.2d at 250-51.
[4] In an order dated June 19, 1975, published at 6 Cir., 519 F.2d 679, cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975), this court modified and affirmed the order of the District Court requiring the purchase of 150 school buses. We directed that the Detroit School Board acquire the buses and that the State defendants bear the costs of acquisition to the extent of 75 per cent thereof. On October 8, 1975, the District Court ordered the Detroit Board of Education to acquire 100 additional buses, with 75 per cent of the costs to be paid by the State.
[5] The Emergency School Act makes no distinction between de jure and de facto segregation. 20 U.S.C. § 1602(b).
[6] See 42 U.S.C. § 2000d-5 (1970).
[1] This compares with 310.2 million dollars in 1975-1976. There will be no general fund equity to supplement any increases.

 
 620 F.2d 1143 (1980)
Ronald BRADLEY et al., Plaintiffs-Appellees, v.
William G. MILLIKEN, Governor et al., Defendants-Appellees, and Board of Education of the School District of the City of Detroit et al.,
Defendants-Appellants.
Nos. 78-1597, 79-1005.
United States Court of Appeals, Sixth Circuit.
Argued February 11, 1980. Decided April 14, 1980.
1144*1144 George T. Roumell, Jr., Thomas M. J. Hathaway, Riley & Roumell, Craig W. Lange, Detroit, Mich., for Board of Ed., et al.
Louis R. Lucas, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., Kenneth Penegar, Knoxville, Tenn., Thomas I. Atkins, Atkins & Brown, Boston, Mass., for Ronald Bradley, et al.
Theodore Sachs, Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, Detroit, Mich., Nathanial Jones, Gen. Counsel, NAACP, New York City, Frank Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Sol. Gen., Gerald F. Young, Paul Zimmer, Ruthanne Gartland, Lansing, Mich., Samuel E. McCargo, Detroit, Mich., for William G. Milliken, et al.
Before EDWARDS, Chief Judge, and PHILLIPS and PECK, Senior Circuit Judges.
HARRY PHILLIPS, Senior Circuit Judge.
On July 25, 1974, the Supreme Court remanded this case to the district court for "prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970." Milliken v. Bradley, 418 U.S. 717, 753, 94 S.Ct. 3112, 3131, 41 L.Ed.2d 1069 (1974) (Milliken I). Nearly six years have elapsed since that remand, and almost ten years since this litigation began, yet we are unable to hold on the record before us that de jure segregation has been eliminated from the Detroit school system. We conclude that we must send the case back to the district court for further proceedings.
The present appeal presents four questions for decision: (1) Did the district court err in holding that population and demographic changes in Detroit have obliterated all traces and effects of past acts of discrimination by the Detroit School Board and the State of Michigan? Part II of this opinion rejects the ruling of the district court as contrary to the law of this case and clearly erroneous. (2) Was the district court correct in holding that the overwhelming percentage of black students in the Detroit school system precludes including in the pupil assignment plan any of the schools in the three innercity regions of the school district? Part III of this opinion concludes the district court's holding was error, and outlines the standards to be applied by the district court when it reconsiders inner-city

pupil reassignment on remand. (3) Was it error for the district court to order additional pupil reassignments between schools in Regions 1 and 2? Part IV of the opinion affirms in principle the propriety of additional pupil reassignments, but remands the case for a hearing on the question whether Hispanic students should be treated as white for desegregation purposes. (4) Did District Judge Robert 1145*1145 E. DeMascio abuse his discretion in declining to recuse himself from the remand proceedings in this case? Part V finds no abuse of discretion, but suggests, in view of the bitter feelings that have developed, that the case be reassigned to another judge on remand from this court's decision on the present appeal.
I.
This protracted litigation began in 1970. On April 7 of that year, the Detroit Board voluntarily adopted a modest plan to desegregate some of the Detroit high schools. The State legislature, however, blocked implementation of that plan by enacting § 12 of Act No. 48, Public Acts of 1970. A citizeninitiated recall election resulted in the replacement of the four Board members who had favored the April 7 plan, and the reconstituted Board rescinded the plan.
The plaintiffs filed this suit on August 18, 1970, alleging that § 12 of Act No. 48 was unconstitutional and praying for a preliminary injunction requiring the Board to implement the April 7 plan. The late District Judge Stephen J. Roth denied plaintiffs' application for a preliminary injunction and they appealed. This court held § 12 of Act No. 48 unconstitutional, but affirmed the denial of a preliminary injunction and remanded for a trial on the merits. 433 F.2d 897 (6th Cir. 1970). On remand, Judge Roth again refused to grant a preliminary injunction, and this court affirmed, again directing a trial on the merits. 438 F.2d 945 (6th Cir. 1971).
The case was tried on the issue of segregation from April 6, 1971 to July 22, 1971. On September 27, 1971, Judge Roth issued his ruling on the issue of segregation, finding both the State of Michigan and the Detroit Board[1] had committed "acts which have been causal factors in the segregated condition of the public schools in the City of Detroit," 338 F.Supp. 582, 592 (E.D.Mich. 1971).
Judge Roth determined that true desegregation could not be accomplished within the geographical limits of Detroit. Distributing the relatively small number of white students remaining in the district throughout the schools, he held, would render the entire system identifiably black. Accordingly, he ordered the defendants to submit metropolitan plans for desegregation. 345 F.Supp. 914 (E.D.Mich.1972).
This court, sitting en banc, affirmed both the finding of de jure segregation and the propriety of an interdistrict remedy. 484 F.2d 215 (6th Cir. 1973).
The Supreme Court granted certiorari and reversed in part. The Court held the district court had no equitable power to include in its remedial decree any school district whose racial composition had not been shown to be the product of de jure segregation. The defendants did not, however, challenge the district court's finding of de jure segregation within the city of Detroit. Accordingly, the Court remanded the case for formulation of a Detroit-only remedial decree. 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974)(Milliken I).
Judge Roth had died shortly before the Supreme Court issued its opinion, and District Judge Robert E. DeMascio was assigned the difficult task of formulating a decree which would eliminate the effects of de jure segregation from the Detroit school system without transgressing the limits set by the Supreme Court in Milliken I. Judge DeMascio required the parties to submit desegregation plans,

but rejected them as unsatisfactory. His August 15, 1975 opinion, reported at 402 F.Supp. 1096 (E.D.Mich. 1975), established guidelines to be met by an acceptable remedial plan. Hereafter, they are referred to as the August 15 guidelines.
On November 4, 1975, Judge DeMascio adopted a desegregation plan drafted by 1146*1146the Detroit Board in an effort to conform to the August 15 guidelines. 411 F.Supp. 943 (E.D.Mich.1975). This plan provided for changes in pupil assignments in five of the eight administrative regions of the Detroit school district, excluding inner-city Regions 1, 5 and 8 which are overwhelmingly black. In addition, the remedial decree provided for various Educational Components, requiring establishment of certain training, remedial, testing, counseling, monitoring and public relations programs.
This court affirmed the remedial decree's Educational Components and the portion of the pupil reassignment plan that required reassignments within Regions 2, 3, 4, 6 and 7. We found that excluding Regions 1, 5 and 8 from the pupil reassignment plan left approximately 83,000 students with no relief from unconstitutional de jure segregation. Moreover, we noted, these three Regions are in the area most affected by the previously found illegal acts. This being the case, the Board had assumed the burden of showing that the segregation existing in Regions 1, 5 and 8, which were excluded from the plan, was not the result of the defendants' present or past discriminatory actions. Since the record disclosed no adequate justification for limiting the pupil reassignment plan to five Regions, we remanded the case for further consideration in regard to schools located in the innercity Regions. 540 F.2d 229 (6th Cir. 1976).
The Supreme Court affirmed the propriety of the decree's Educational Components, and their validity no longer is an issue in this case. Neither the district court's pupil reassignment plan nor this court's partial reversal was challenged in the Supreme Court, and it had no occasion to rule thereon. 433 U.S. 267, 279, 97 S.Ct. 2749, 2756, 53 L.Ed.2d 745 (1977) (Milliken II).
Before the district court commenced remand proceedings, the plaintiffs moved Judge DeMascio to recuse himself from the case. Relying on 28 U.S.C. § 455(a) and Canon 3A(4) of the Code of Judicial Conduct, the plaintiffs complained that Judge DeMascio had created an appearance of partiality by engaging in ex parte contacts with experts, community groups and the Detroit Board in the process of developing his desegregation guidelines and remedial decree. Judge DeMascio declined to recuse himself. 426 F.Supp. 929 (E.D.Mich.1977). However, he referred to the Chief Judge of the District the question whether his prior conferences with the Detroit Board and the teachers' union aimed at averting a strike, coupled with his August 28, 1975, order directing faculty reassignments, had created the appearance that he had prejudged the faculty assignment issue. On referral from the Chief Judge, District Judge James P. Churchill agreed with Judge DeMascio that recusal was not required. 426 F.Supp. at 943-44.
On the merits, Judge DeMascio reaffirmed his prior conclusion that Regions 1, 5 and 8 need not and cannot be included in the pupil reassignment plan. 460 F.Supp. 299 (E.D.Mich.1978). He held that pronounced demographic shifts, together with the predominance of the black student population, have obliterated the effects of defendants' prior acts of de jure segregation. Current residential patterns, not school assignments, he said, account for the one-race character of the inner-city schools. Accordingly, Judge DeMascio held that the present assignment pattern is free from the vestiges of prior discrimination and that the Board had borne its heavy burden of justifying the exclusion of the inner-city regions from the pupil reassignment plan. 460 F.Supp. at 307-08.
Nevertheless, the court found there were some white students available in Region 2 to desegregate certain Region 1 schools. The Board objected that many of these white students were Spanish dominant Hispanics involved in bilingual educational programs that would be disrupted by additional pupil reassignments. However, Judge DeMascio felt this court's opinion mandated whatever

reassignments were possible, despite any burden on bilingual programs. 460 F.Supp. at 312. In a supplemental opinion, Judge DeMascio ordered the Detroit Board to develop a plan for reassigning pupils between Regions 1 and 2 which 1147*1147 would provide for bilingual education in receiving schools. On November 11, 1978, the court adopted the Board's responsive plan. 460 F.Supp. 325 (E.D.Mich.1978).
The Detroit Board appeals on the ground that the district court exceeded its authority by ordering additional pupil reassignments between Regions 1 and 2. The plaintiffs cross-appeal from Judge DeMascio's decision not to recuse himself, his holding that demographic changes have obliterated the effects of defendants' prior discriminatory acts, and his conclusion that Regions 1, 5 and 8 were properly excluded from the pupil reassignment plan. This court stayed implementation of the additional reassignment plan pending the outcome of this appeal.
II
The first question we address is whether Judge DeMascio was correct when he decided that demographic changes and the growth of the Detroit school system's proportion of black students have obliterated the effects of defendants' past discriminatory actions. We conclude that this holding of the district court is refuted overwhelmingly by the record.
Judge DeMascio's conclusion apparently was based on his belief that the only effect of defendants' past discriminatory actions was to allow white students to escape from integrated schools in racially changing residential areas:
This was so because the actions which formed the basis for Judge Roth's liability findings were basically reactions by the Detroit Board of Education to changing residential patterns. The optional and gerrymandered attendance zones served the purpose of keeping white students out of schools that, in the absence of such policies, would have become, and in fact have become, integrated naturally. Judge Roth did not find, however, that these policies in turn created additional residential segregation which in turn created additional school segregation. Had he made such findings, and had such findings been supported in the record, we assume the Supreme Court would have affirmed the propriety of an interdistrict remedy. 460 F.Supp. at 307-08.
Accordingly, Judge Demascio thought the defendants' actions could have had only temporary segregative effects, effects that had been nullified by the almost total displacement of whites from formerly integrated neighborhoods:
These pronounced demographic shifts, first predicted by Judge Roth, and the predominance of the black student population have obliterated the optional and gerrymandered attendance zones which permitted white students to avoid attending integrated schools, the practice of bussing black students from overcrowded schools beyond a closer white school and the practice of altering feeder patterns in racially changing neighborhoods. (Footnote omitted.) 460 F.Supp. at 307.
The problem with this conclusion of the district court is that it is contrary to the law of this case as established by Judge Roth and affirmed by this court and by the Supreme Court in Milliken I.
Judge Roth found that the Detroit Board had done at least four things to maintain a dual school system in Detroit: First, during the 1950's, the Board "created and maintained optional attendance zones in neighborhoods undergoing racial transition and between high school attendance areas of

opposite predominant racial compositions." 338 F.Supp. at 587. "The natural, probable, foreseeable and actual effect of these optional zones was to allow white youngsters to escape identifiably `black' schools." Id. Second, the Board "admittedly bused black pupils past or away from closer white schools with available space to black schools," but only in one instance, necessitated by the burning of a white school, did the Board bus white children to a black school. 338 F.Supp. at 588. Third, the Board "created and altered attendance zones, . . . grade structures and . . . feeder school patterns in a manner which . . . [maintained] black and white pupils in racially segregated schools." Id. Finally, 1148*1148 by constructing many small schools and locating new schools in areas of one race, the Board negated opportunities to integrate, contained the black population, and compounded school segregation. Id.
The plaintiffs presented evidence that the Board's discriminatory actions affected not only schools but residential patterns. For example, in affirming Judge Roth's finding of de jure segregation, this court quoted the following exchange between plaintiffs' counsel and Dr. Gordon Foster of the University of Miami, director of the Florida School Desegregation Consulting Center, concerning optional attendance zones:
"Q. Doctor Foster, from your examination of the 1950 census and in turn the 1960 census exhibits, do you have an opinion as the effect of such an optional zone on the community residence pattern in the community? * * * * * * "A. Community people and residents in a situation such as this generally have a perception that there is something wrong with their school, that the whites need an optional zone to get out into a less black situation and, therefore, this increases their perception of racial isolation and, in fact, physical containment. "Q. Does this have an effect, Doctor, in terms of the residence pattern? I believe you testified in 1950 the optional area was entirely white or zero to 4.9 per cent white. * * * * * * "A. In my opinion this tends to increase the instability of the community because they generally feel this is an ad hoc temporary interim situation and it increases white flight in this sort of situation. 484 F.2d at 234. At another point, Dr. Foster testified that locating new schools in one race areas rather than integrated areas tends to isolate the new school's attendance zone and perpetuate its racial identity. 484 F.2d at 238.
Responding to this and other evidence, Judge Roth found the Board's discriminatory policies were partially responsible for segregated residential patterns:
Governmental actions and inaction at all levels, federal, state and local, have combined, with those of private organizations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of residential segregation throughout the Detroit metropolitan area. . . . [A]ll of them, including the school authorities, are, in part, responsible for the segregated condition which exists. And we note that just as there is an interaction between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential pattern by the racial composition of the schools. 338 F.Supp. at 587.
See also Judge Roth's seventh conclusion of law, 338 F.Supp. at 593.
In affirming Judge Roth's findings on the issue of segregation, we stated:

This record contains a substantial volume of testimony concerning local and State action and policies which helped produce residential segregation in Detroit and in the metropolitan area of Detroit. In affirming the District Judge's findings of constitutional violations by the Detroit Board of Education and by the State defendants resulting in segregated schools in Detroit, we have not relied at all upon testimony pertaining to segregated housing except as school construction programs helped cause or maintain such segregation. 484 F.2d at 242 (emphasis supplied).
See also Milliken I supra, 418 U.S. at 724 and 728 n. 7, 94 S.Ct. at 3117 and 3119 n. 7 (acknowledging Judge Roth's and this court's partial reliance on de jure school segregation as one cause of residential segregation).
Moreover, Judge Roth's conclusion that present Detroit housing patterns reflect the Board's past discrimination accords with the analysis of the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 20-21, 91 S.Ct. 1267, 1278, 28 L.Ed.2d 554 (1971):
1149*1149 The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods.
In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown [v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873], closed schools which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of "neighborhood zoning." Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with "neighborhood zoning," further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy.
See also Adams v. United States, 620 F.2d 1277, 1290, 1291 (8th Cir. 1980) (massive demographic shifts that have rendered the St. Louis school district 75 per cent black have incorporated rather than wiped out the segregative effects of the system's prior de jure discriminatory policies: "public perception of the racial identity of a school can be, and often is, a powerful factor in shaping the residential patterns of a neighborhood").
In Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973),the Supreme Court held that the discriminatory practices of a school district may have the effect of earmarking a school according to its racial composition, and this, in turn, may have a profound reciprocal effect on the racial composition of residential neighborhoods. The Court said:

[T]he practice of building a school . . . to a certain size and in a certain location `with conscious knowledge that it would be a segregated school,' . . . has a substantial reciprocal effect on the racial composition of other nearby schools. So also, the use of mobile classrooms, the drafting of student transfer policies, the transportation of students, and the assignment of faculty and staff, on racially identifiable bases, have the clear effect of earmarking schools according to their racial composition, and this, in turn, together with the elements of student assignment and school construction, may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing further racial concentration within the schools. 413 U.S. at 201-02, 93 S.Ct. at 2694.
The clear import of Judge Roth's holding is that the defendants' discriminatory policies helped to drive whites from the Detroit school district and to contain blacks in an ever-expanding core area of the city. Viewed in this light, Judge DeMascio's holding, urged by the Board before this court, is that the segregative effects of the defendants' discriminatory policies have been obliterated by the very demographic 1150*1150 changes those policies helped to produce. We conclude that this argument refutes itself.
It is the law of this case that the unconstitutional actions of defendants, both local and State, contributed to the segregated residential patterns and the one race schools that now exist in Detroit. Judge Roth found that de jure school segregation encouraged whites to flee from racially changing neighborhoods and ultimately from the Detroit school district. That finding is supported by substantial record evidence and ample legal precedent. This being so, we reverse Judge DeMascio's holding that population changes have obliterated the effects of the Board's past discrimination. This holding is contrary to the law of this case and, treated as a finding of fact, is clearly erroneous. On the contrary, the record demonstrates that these population changes themselves are in part vestiges of past discrimination.
III
We turn our attention next to the holding of the district court that the overwhelming percentage of black students in the school district as a whole and particularly in the inner-city regions, coupled with the small number of white students even theoretically available for reassignment, foreclose the possibility of including any schools located in Regions 1, 5 and 8 in the pupil reassignment plan. We find this holding constitutionally insupportable.
The last time this case was before us, we reversed the exclusion by the district court of the inner-city regions from the pupil reassignment plan. We recognized then that "the overwhelming number of black students in Detroit and their concentration in the inner-city undoubtedly makes some one-race schools unavoidable under any `Detroit only' remedy." 540 F.2d at 237. However, in order to justify eliminating the inner-city regions entirely, we said, the Board would have to show the resultant all black schools are not the product of past discrimination. This would be particularly difficult, we warned, because these very regions were the ones hardest hit by past acts of de jure segregation. 540 F.2d at 238. "We cannot hold," we concluded, "that where unconstitutional segregation has been found, a plan can be permitted to stand which fails to deal with the three regions where the majority of the most identifiably black schools are located." 540 F.2d at 240.
On remand, the Detroit Board attempted to justify its exclusion of Regions 1, 5 and 8 by presenting evidence that the shift from white to black in the district had accelerated well beyond former demographic predictions and made inner-city desegregation impossible. The Board's figures established that the percentage of black students in the district is increasing despite a decline in the total enrollment. Of the children who enter Detroit kindergartens, a greater proportion of blacks than

whites remain in the system throughout their school years. Mr. Hendrickson, the Board's expert, projected the district's enrollment would be 91.8% black by 1981. Moreover, the district court found, residential areas near the school district's fringe are becoming increasingly black as inner-city families replace whites who leave the district entirely. 460 F.Supp. at 305-07.
Judge DeMascio felt the Board's evidence established that no more desegregation of Regions 1, 5 and 8 is possible. 460 F.Supp. at 307. He concluded that integrating the inner-city schools would require the Board to scatter the remaining white students to such an extent that there would be no meaningful interaction between the races in any school. The result would be mere token integration of the inner-city schools achieved at the cost of disrupting previously approved assignment patterns that effectively desegregate the schools in other regions.
To illustrate the futility of attempting to include the inner-city regions, Judge DeMascio turned to statistics. Pointing out that the district court had repeatedly rejected the notion of making all schools identifiably black, Judge DeMascio held that only the excess of non-black over black students 1151*1151 in any given school could be considered available for reassignment to schools in Regions 1, 5 and 8. The Board's evidence showed there were 31 majority white elementary schools in the district with 3397 students available for reassignment. Six middle schools had 733 students available and one high school had 175. However, the Board's evidence also showed the black enrollment in inner-city elementary schools was 38,259 or 11 times the number of whites available for reassignment. The comparable figures for inner-city middle and high schools were 17,015 and 17,783, or 23 times and 100 times the respective numbers of white students available for reassignment. 460 F.Supp. at 310. Accordingly, the court found, to disperse these few available white children among the schools in Regions 1, 5 and 8 would accomplish nothing more than token integration, a result this court had previously rejected. 460 F.Supp. at 310, citing 540 F.2d at 239.
The flaw in the district court's logic was its assumption that Regions 1, 5 and 8 must be treated as units, and that integrating schools in these Regions must be an all-or-nothing proposition. From the outset of this litigation's post-Milliken I remedial phase, Judge DeMascio seems to have assumed that the inner-city regions must be treated in isolation from the rest of the district. See, e. g., 402 F.Supp. at 1129 (holding that the negligible benefits of including the inner-city do not justify "the extraordinary remedy of such cross-regional bussing"). Yet it was exactly this unitary treatment of Regions 1, 5 and 8 that led us to reverse and remand the last time this case was before us. Citing Davis v. Board of Commissioners of Mobile County, 402 U.S. 33, 38, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971), in which the Supreme Court refused to permit isolated treatment of one part of metropolitan Mobile, we found it "equally unacceptable to treat Regions 1, 5 and 8 in isolation from the rest of the Detroit school system." 540 F.2d at 238.
We see no reason to treat the borders of the Detroit school system's inner-city administration regions as sacrosanct. In the first place, Detroit's regional scheme of school administration originated with Act No. 48, Public Laws of 1970, the same law whose § 12 we found to be an unconstitutional interference with the Board's attempts to desegregate Detroit high schools. Were we to view the Act's remaining provisions as creating barriers to constitutionally required desegregation, we would have to hold them unconstitutional also. United States v. Scotland Neck Board of Education, 407 U.S. 484, 489, 92 S.Ct. 2214, 2217, 33 L.Ed.2d 75 (1972); Wright v. Council of the City of Emporia,407 U.S. 451, 461-62, 92 S.Ct. 2196, 2202-03, 33 L.Ed.2d 51 (1972). Furthermore, there is nothing in the Supreme Court's holding in Milliken I, supra, 418 U.S. at 745-46, 94 S.Ct. at 312728, that renders inviolable the lines of Administrative Regions within the Detroit School District. Judge Roth's ruling that the Detroit Board carried out a systematic program of segregation established a predicate for finding a dual school system in all the regions. See Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 201, 93 S.Ct. 2686, 2694, 37 L.Ed.2d 548 (1973). In such a situation, a district court may disregard the boundaries of administrative regions in order to vindicate constitutional rights. Milliken I, supra, 418 U.S. at 745, 94 S.Ct. at 3127.[2]

The district court erred when it held that Regions 1, 5 and 8 must be excluded in their entirety from the pupil reassignment plan. The proper inquiry after this court's last remand was not whether there are enough white students available to desegregate every inner-city school. This court has recognized from the first that some one race schools are unavoidable under a Detroit-only plan. See 540 F.2d at 237; 484 F.2d at 249. It, therefore, is irrelevant that there are 11 times as many black students in all the inner-city elementary schools combined 1152*1152 as there are white students available for reassignment. What is crucial is whether those 3,397 white students can practically be reassigned to achieve effective levels of desegregation in some of the inner-city schools. That, and the analogous questions concerning the middle and high schools, are the issues the district court should have addressed and is directed to address on remand from this decision. The small number of white students available for reassignment and the problems involved in transporting them may justify excluding some, and perhaps many, inner-city schools from the pupil reassignment plan. We emphasize that the need to cross regional lines does not justify such exclusion.[3]
On remand, the district court should apply substantially its August 15, 1977, remedial guidelines, 402 F.Supp. 1096, 1134, supra, but without regard to the boundary lines of administrative regions. White students should be considered available for reassignment only to the extent exchanging them with pupils from inner-city schools will not render formerly integrated schools identifiably (more than 55 per cent) black. Where practicable, attendance zones should be redrawn across regional lines to include inner-city pupils in integrated schools. Where rezoning is impossible, as we anticipate it will be in most instances, schools with white students available for reassignment should be paired with the closest feasible inner-city school. In order to achieve effective levels of desegregation, it may be necessary to pair several white schools with a single black school. Such pairing should be done with a view toward minimizing the amount of transportation required. In some situations, it may be that the small number of white students available for reassignment from a particular school, coupled with the distance they would have to be transported to reach an inner-city school that can be paired with other white schools, will justify maintaining present assignment patterns.
We emphasize that this remand is not intended to disrupt previously approved assignment patterns. As we said the last time this case was before us, "the steps which [the district court] has taken thus far appear to us to be consistent with the fourteenth amendment." 540 F.2d at 240. The district court's error was its failure to apply its remedial guidelines to schools in all the regions. Doing so may well achieve at least some additional desegregation, and it is for this purpose that we are remanding.
Nor are our remand instructions intended to be a straight jacket on the district court. We recognize that the district court must balance a variety of individual and collect interests in an effort to arrive at "a plan that promises realistically to work . . . now." Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). Flexibility is essential to that end.
Our last opinion in this case mirrored our frustration at our inability to chart a course that would guide the district court to desegregate the entire school district:
We recognize that it would be appropriate for us at this point to supply guidelines to the District Judge as to what he should do under this remand. Omission of such guidelines is not based on any failure to consider the problem in depth. It is based upon the conviction which this court had at the time of its en banc opinion in this case — and for the reasons carefully spelled out therein — that genuine constitutional desegregation can not 1153*1153 be accomplished within the school district boundaries of the Detroit School District. 540 F.2d at 240.

The district court, however, apparently interpreted the above-quoted comment as a recognition by this court that effective pupil reassignments cannot be achieved in any of the schools in the three inner-city regions. See 460 F.Supp. at 304. Our comment was not so intended and should not be so read. Although genuine constitutional desegregation may be impossible within the Detroit district, this court has the obligation to see that all practicable steps are taken to remedy the unconstitutional segregation that has been found to exist. To that end, the district court's exclusion of all schools in Regions 1, 5 and 8 from the pupil reassignment plan is reversed and the cause remanded for further consideration in light of this opinion.
IV
Despite his conclusion that "no more desegregation is feasible in Regions 1, 5 and 8 collectively," 460 F.Supp. at 307, Judge DeMascio determined there are white students in Region 2 available for reassignment to Region 1 schools. 460 F.Supp. at 311-12. Accordingly, he ordered the Detroit Board to prepare a supplemental pupil reassignment plan. The Board argues the district court exceeded its authority by requiring further reassignments. We reject that argument. However, we vacate the court's order and remand the case for a hearing on the question whether Hispanic students should be treated as white for desegregation purposes.
The district court found Region 2 is unique among Detroit's administrative regions in that it has not experienced much growth since 1974 in the percentage of its students who are black. Indeed, the court found, some Region 2 schools had fewer black students in 1977 than in 1974. 460 F.Supp. at 311. Overall, black students accounted for only 62% of the Region's 1977 enrollment. Furthermore, fourteen elementary schools in Region 2 had a total of 2145 white students available for reassignment. Thus, the court concluded, numbers alone pose no obstacle to reassigning Region 2 whites to Region 1 schools. Id.
Judge DeMascio apparently felt the concentration in Region 2 of programs of bilingual education for Spanish dominant children accounted for the relatively slow growth of the black enrollment in that Region. We agree with the plaintiffs that restricting bilingual programs to one region provides Hispanic families not only with neighborhood schools but with an incentive to concentrate in that region. This artificial concentration of Hispanic whites, the district court found, in turn prevents the national influx of black families and so contributes to resegregation of Region 2. 460 F.Supp. at 312. To counteract this resegregative trend and to comply with the mandate of this court that inner-city schools be desegregated, the district court ordered the Board to develop a plan for reassigning pupils between schools in Regions 1 and 2.
The Detroit Board advances three reasons the district court's order should be overturned. First, the Board says, the Detroit school system is now unitary and the district court had no authority to order further reassignments. Second, even if the system is not yet unitary, reassigning Spanish-dominant students to Region 1 schools will disrupt State required bilingual educational programs while achieving only token integration. Third, the Board says, Hispanic students cannot be treated as white for desegregation purposes. We deal with these arguments seriatim.
The Board's first argument depends on Judge DeMascio's holdings that "the school district no longer discriminates against black students," and that "its present assignment pattern is free from the vestiges of prior discrimination." 460 F.Supp. at 308. The case is therefore controlled by Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), the Board says. Pasadena held a district court has no authority to order annual readjustments of attendance zones to compensate for demographic changes 1154*1154 that occur after a racially neutral

attendance pattern has been achieved. Since its assignment plan is racially neutral, the Board says, the district court had no authority to order further modification.
The short answer to this argument is that a racially neutral assignment plan does not necessarily achieve a racially neutral attendance pattern. The Board's plan is limited by residential patterns which reflect past discrimination, as well as by district lines and transportation problems. As the Supreme Court recognized in Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 28, 91 S.Ct. at 1282:
The objective is to dismantle the dual school system. "Racially neutral" assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. . . . In short, an assignment plan is not acceptable simply because it appears to be neutral.
There are now 66,650 students attending schools in Regions 1, 5 and 8. The remedial measures implemented to date afford none of these students any relief from de jure segregation. Detroit is still far from achieving a racially neutral attendance pattern. This is not a Pasadena situation.[4] See Adams v. United States, supra, 620 F.2d at 1291 (the failure of the St. Louis Board ever to adopt a desegregation plan to compensate for segregated residential patterns makes Pasadena inapplicable).
The Board's second argument is that reassigning Spanish-dominant students to Region 1 schools will disrupt bilingual educational programs while achieving only token integration. Dr. Felix Valbuena, the Director of Bilingual Education for the Detroit school district, testified that reassigning Spanish speaking students currently enrolled in Region 2 bilingual programs would impede the Board's ability to develop a model program and train bilingual teachers; produce fear and anxiety for the students; limit community participation and interest in the schools; produce shortages of qualified bilingual teachers and necessary resource materials; and require the Board to adopt less efficient and effective methods of instruction. In return for this disruption, the Board says only 1600 students will be reassigned, achieving token integration of only five of the thirty-one Region 1 schools.
The Board's concern for the continued viability of its bilingual educational programs is commendable. Circumstances permitting, we might well agree that the desegregative benefits would not justify the disruption created by reassigning Spanish-dominant students. Circumstances, however, do not so permit. We agree with the district court that when the choice is between maintaining optimal conditions in a bilingual educational program and desegregating all-black schools, desegregation must prevail. 460 F.Supp. at 312. See Keyes v. Denver School District No. 1, 521 F.2d 465, 480 (10th Cir. 1975),cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976).
This brings us to the Board's third argument, that Hispanic students cannot be reassigned to desegregate identifiably black schools because such students are themselves minorities. In support of this argument, the Board cites Keyes v. School District No. 1, Denver, Colo., supra, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973).
In the Keyes case, the Supreme Court found the school district's history of discrimination against Hispanic students justified treating those students as minorities for desegregation purposes:
1155*1155 We conclude, however, that the District Court erred in separating Negroes and Hispanos for purposes of defining a "segregated" school. We have held that Hispanos constitute an identifiable class for purposes of the Fourteenth Amendment. . . . Indeed, the District Court recognized this in classifying predominantly Hispano schools as "segregated" schools in their own right. But there is

also much evidence that in the Southwest Hispanos and Negroes have a great many things in common. The United States Commission on Civil Rights has recently published two Reports on Hispano education in the Southwest. Focusing on students in the States of Arizona, California, Colorado, New Mexico, and Texas, the Commission concluded that Hispanos suffer from the same educational inequities as Negroes and American Indians. In fact, the District Court itself recognized that "[o]ne of the things which the Hispano has in common with the Negro is economic and cultural deprivation and discrimination," [Keyes v. School Dist. No. 1, Denver Colorado], 313 F.Supp. [61], at 69. This is agreement that, though of different origins, Negroes and Hispanos in Denver suffer identical discrimination in treatment when compared with the treatment afforded Anglo students. In that circumstance, we think petitioners are entitled to have schools with a combined predominance of Negroes and Hispanos included in the category of "segregated" schools. (Citations and footnotes omitted.) 413 U.S. at 197-98, 93 S.Ct. at 2691-2692.
Similarly, the Fifth Circuit has treated Hispanic students as minorities for purposes of school desegregation. See United States v. Midland Independent School District, 519 F.2d 60, 63-64 (5th Cir. 1975), cert. denied, 424 U.S. 910, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976); Tasby v. Estes, 517 F.2d 92, 106-07 (5th Cir.), cert. denied, 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975) and cases cited therein.
The common element justifying treatment of Hispanic students as minorities in the Keyes, Midland, and Tasby cases was each school system's history of de jure segregation of Hispanos. In Keyes, the Supreme Court found "Negroes and Hispanos in Denver suffer identical discrimination." 413 U.S. at 198, 93 S.Ct. at 2692. In the Midlandcase, "[t]he record clearly demonstrate[d] that the Midland School District deliberately segregated Mexican-Americans from Anglos." 519 F.2d at 62. The Tasby court found record evidence "to establish the isolation of Mexican-American students in the [Dallas school system] from white students and the [Dallas system's] practice of `integrating' its Mexican-American students with black students." 517 F.2d at 106. Thus, it appears, in school systems that historically have discriminated against Hispanic students, those students must be grouped with blacks rather than whites for desegregation purposes.
Because there is no indication in the record whether, historically, the Detroit school district has discriminated against Hispanic students, we are unable, on the present appeal, to affirm Judge DeMascio's decision that "for school assignment purposes Spanish-surnamed students cannot be treated differently than other white students." 460 F.Supp. at 312. On remand, the district court is directed to conduct a hearing on that issue.
Our remand for hearing on this issue places the case as an unusual posture. In order for the Board to prevail in its contention that Hispanic students cannot be treated as white, it must prove it practiced de jure segregation of such students. However, doing so would compound the Board's problems because grouping Hispanos with blacks might require revision of the district court's remedial guidelines and a comprehensive review of previously approved assignment patterns, at least in Region 2. This being so, it is possible that the Board may not continue to assert its present position on remand.
Nor is any other party to the present litigation likely to argue there has been de jure segregation of Hispanic students. The position of plaintiffs in the district court 1156*1156 was that concentrating bilingual programs in Region 2 provides neighborhood schools which in turn induce Hispanic families to move there. 460 F.Supp. at 312. The plaintiffs urged that this resegregative effect should be countered by reassigning some Hispanic students to Region 1 schools. Treating Hispanos as blacks for desegregation purposes would, of course, preclude such reassignments since the district court consistently has refused to reassign blacks to identifiably black schools. Thus, the plaintiffs have no

incentive to argue Hispanos have been the victims of de jure segregation in Detroit. Similarly, the State of Michigan defendants, who may well have to share the Board's liability for remedial costs if the court finds de jure segregation of Hispanic students, seem unlikely to present evidence of discrimination.
Because none of the existing parties is likely to argue that Hispanic students have been victims of de jure segregation in Detroit, the district court is directed to permit individuals or organizations representing Detroit's Hispanic community to intervene in the remand proceedings for the limited purpose of presenting evidence on this issue. Our opinion in the related case, No. 78-1598, 620 F.2d 1141 (6th Cir. 1980), recognizes the right of LULAC Council No. 11054, and its co-appellants to intervene in these remand proceedings solely on the issue of de jure segregation of Hispanos. Should other individuals or organizations also wish to intervene on behalf of the Hispanic community, the district court will determine under Fed.R.Civ.P. 24 whether their interests are adequately represented by LULAC Council No. 11054 et al.; additional intervenors need not be permitted unless their participation as parties will serve some useful purpose. We emphasize here, as in our opinion in No. 78-1598, that intervention will be limited to the issue of de jure segregation of Hispanic students in the Detroit school system.
Unless the district court finds the defendants discriminated against Hispanic students, it may treat such students as white for desegregation purposes. The court then would be free to order implementation of its previously approved reassignment plan for Hispanic students, or any modification thereof found to be desirable. We suggest, however, that the district court permit LULAC Council No. 11054 et al. to participate as amici curiae in developing a reassignment plan that will achieve the maximum amount of desegregation possible without neglecting the bilingual educational needs of Hispanic students. Before any additional reassignments are implemented, including those contained in the previously approved plan of the district court for transporting Region 2 students to Region 1, they should be tested against the August 15, 1975, guidelines as modified by Part III of this opinion.
Accordingly, the district court's order directing the Board to implement additional pupil reassignments in Regions 1 and 2 is vacated. The cause is remanded for a hearing on the question whether Hispanic students should be treated as white for desegregation purposes and for other action consistent with the outcome of that hearing.
V
The final question we must address is whether Judge DeMascio erred in declining to recuse himself from the remand proceedings in this case. We hold he did not err.
Briefly, the plaintiffs argue Judge DeMascio violated 28 U.S.C. § 455(a) and Canon 3 A(4) of the Code of Judicial Conduct by engaging in various ex parte contacts and discussions with courtappointed experts, community groups and representatives of the Detroit Board. In an opinion reported at 426 F.Supp. 929 (E.D.Mich. 1977), Judge DeMascio denied plaintiffs' motion for recusal.
28 U.S.C. § 455(a), as amended,[5] provides:
1157*1157 § 455. Disqualification of justice, judge, magistrate, or referee in bankruptcy (a) Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

The plaintiffs complain that Judge DeMascio created the appearance of partiality by meeting ex parte with the Detroit Board's representatives on August 15, 1975, even before plaintiffs' counsel had received a copy of the court's just filed remedial guidelines, to discuss an impending teachers' strike. The plaintiffs also argue Judge DeMascio engaged in what they term "negotiations" with the Board in developing a desegregation plan, a process from which they were excluded.
Judge DeMascio's opinion denying recusal discusses these complaints and his underlying actions in detail, and we need not recount them here. See 426 F.Supp. at 935-39. He characterized the incidents of which plaintiffs complain as "judicial activities designed to ensure a community climate receptive to [the] court's orders." 426 F.Supp. at 939. The so-called negotiation process was designed "to avoid the formality of an order," he said. Id. Concluding that his actions were "well within [his] discretion and were based on substantial precedent," Judge DeMascio held § 455(a) did not require recusal. Id.
We agree. Although perhaps a bit unorthodox, Judge DeMascio's actions appear to us to have been judicial activities. To make out a case for recusal under § 455(a), a movant must rely on extrajudicial conduct rather than matters arising in a judicial context. Davis v. Board of School Commissioners of Mobile County, supra, 517 F.2d at 1052 (construing amended § 455(a) in pari materia with 28 U.S.C. § 144, the other federal disqualification statute). See United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966); Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481 (1921). Accordingly, we affirm Judge DeMascio's decision that recusal was not required.
The plaintiffs also complain that Judge DeMascio's conduct violated Canon 3 A(4) of the Code of Judicial Conduct:
(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as 1158*1158 authorized by law, neither initiate nor consider ex-parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.
In addition to his previously described meeting with Board representatives and "negotiations" over the Board's proposed desegregation plans, the plaintiffs argue, Judge DeMascio's use of experts violated Canon 3 A(4). By order of April 15, 1975, Judge DeMascio appointed three educators as experts to assist him in gathering background information, soliciting the views of community groups and educators, and evaluating the Educational Components of the Board's remedial plan. The plaintiffs do not question the court's authority to utilize experts. Rather, they complain the court's experts did not file reports of record and were never subject to cross-examination, but submitted their views ex parte.
We do not believe Judge DeMascio's use of experts, or his receipt through them of community and expert views on how best to approach the problems of desegregating Detroit schools, required recusal. We are concerned with the plaintiffs' charge that the reports of these experts were not placed in the record nor made available to the parties. Accordingly, we expressly direct that if any experts are employed to advise the district court on any further matters in this litigation, they shall prepare written reports, copies of which shall become part of the record and shall be made available to all parties or their attorneys.
The remedial phase of this litigation has been protracted and arduous. We recognized in a previous opinion that "District Judge DeMascio was faced with an extremely difficult (if not impossible)

assignment, confronted as he was with the responsibility of formulating a decree which would eliminate the unconstitutional segregation found to exist in the Detroit public schools, without transgressing the limits established by the Supreme Court." 540 F.2d at 236. Our review of Judge DeMascio's various opinions and orders inclines us not to disagree with District Judge James P. Churchill's assessment[6] of Judge DeMascio's conduct in these remedial proceedings:
It is my opinion that the manner in which Judge Robert E. DeMascio has presided in this case has been exemplary and should command the respect of the parties, counsel, the judiciary, and the public. 426 F.Supp. at 944.
However, in view of the public interest in the instant school desegregation case, the challenge raised by the plaintiffs, and the bitter feelings that have developed, this court suggests that, on remand, the Chief Judge of the District Court for the Eastern District of Michigan reassign this case either to himself or to another appropriate judge.
VI
It was indicated during oral argument that plaintiffs intend to proceed with their efforts to establish, within the guidelines enunciated by the Supreme Court in Milliken v. Bradley,418 U.S. 717, 744-47, 94 S.Ct. 3112, 3126-28, 41 L.Ed.2d 1069 (1974) (Milliken I,) a basis for a metropolitan remedy. See 540 F.2d at 240; 411 F.Supp. at 937. Our limited affirmances in Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976), and the present appeal are without prejudice to the district court's obligation to proceed with the inter-district litigation, if pursued by the plaintiffs.
On remand, the district court will be empowered to make further alterations in its previously approved remedial plans, as the evidence may require.
1159*1159 The case is remanded to the district court for further proceedings not inconsistent with this opinion and our previous opinion reported at 540 F.2d 229. No costs are taxed. Each party will bear its own costs on this appeal.
[1] Nothing in this opinion is intended to reflect adversely upon the present Detroit Board of Education. Throughout the course of this often bitter litigation members of the present Board have cooperated with the district court's endeavor to remedy the unconstitutional de jure segregation created by acts and policies of their predecessors and former State officials. References in this opinion to the Board's discriminatory acts should he read as references to the actions of past, not present, Board members.
[2] In fact, Judge DeMascio's remedial guidelines specified that, when the Board attempted rezoning to achieve integration in other regions without transporting students, "regional lines need not be respected; when the choice is between preserving regional lines and bussing, regional lines must give way." 402 F.Supp. at 1134.
[3] The decision of the district court to treat the inner-city regions as units and to exclude them entirely from the reassignment plan distinguishes this case from Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975), rehearing denied,525 F.2d 1203 (1975). The Calhoun court refused, in light of Atlanta's 85 per cent black student population, to order further pupil reassignments even though 92 of the system's 148 schools were over 90 per cent black. However, there is no indication those 92 identifiably black schools were concentrated in one or several administrative regions left wholly untouched by the pupil reassignment plan. Moreover, if we were convinced that the Fifth Circuit permitted Atlanta's desegregation plan to be limited by intra-district administrative lines, we would be forced to disagree with its decision.
[4] In light of our holding that Detroit has not yet achieved a unitary system, we need not decide whether the concentration of bilingual programs in Region 2 is having a resegregative effect and, if so, whether that fact standing alone would empower the district court to order additional relief. See Dayton Board of Education v. Brinkman, 433 U.S. 406, 420, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851 (1977) (Dayton I); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

[5] Section 455 was amended by the Act of December 5, 1974, Pub.L. No. 93-512, 88 Stat. 1609. Section 1 of that Act substituted the present subsection (a) for the former version which read:
"Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein."
There is agreement among the courts that the purpose of the amendment was to change the standard for recusal from a subjective to an objective one, as well as to overrule the prior concept that close cases involving disqualification should be resolved against recusal on the ground the judge has a duty to sit. See, e. g., United States v. Cowden, 545 F.2d 257 (1st Cir. 1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977); Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044 (5th Cir. 1975), cert. denied,425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).
There is a split among the circuits, however, as to whether the amended version of § 455(a), with its objective standard, applies to post amendment proceedings in cases, such as this one, filed before the amendment's effective date. Section 3 of the amending act provided the amended version "shall not apply to the trial of any proceeding commenced prior to [Dec. 5, 1974] nor to appellate review of any proceeding which was fully submitted to the reviewing court prior to [that date]." The Fourth and Eighth Circuits have held the amended version inapplicable to post amendment proceedings in cases filed before December 5, 1974. In re Virginia Electric & Power Co., 539 F.2d 357 (4th Cir. 1976); United States v. Dodge, 538 F.2d 770 (8th Cir. 1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 547 (1977). The Fifth Circuit has disagreed. Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir. 1980); Parrish v. Board of Commissioners of Alabama State Bar,524 F.2d 98 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1977). Judge DeMascio held the amended version of § 455(a) inapplicable in the present case. 426 F.Supp. at 932.
Because we think the actions of Judge DeMascio do not require recusal even under the section as amended, we need not decide which version applies to this case. Rather, we assume for purposes of this decision that the amended version of the statute applies.
[6] Judge Churchill's comment is taken from his opinion holding, on a question referred to him by the Chief Judge of the district, that Judge DeMascio's conduct had not created the appearance of partiality and so did not require recusal in regard to faculty assignments.

 
 772 F.2d 266 (1985)
Ronald BRADLEY, et al., Plaintiffs (84-1364), Plaintiffs-Appellants (841365), v.
William J. MILLIKEN, et al., Defendants-Appellees, Detroit Federation of Teachers, Intervening Defendant-Appellant (84-
1364), Intervening Defendant (84-1365).
Nos. 84-1364, 84-1365.
United States Court of Appeals, Sixth Circuit.
Argued June 13, 1985. Decided September 16, 1985.
267*267 Theodore Sachs (argued), Sachs, Nunn, Kates, Kadushin, O'Hara, Heveston, Waldman, John Runyan, Jr., Detroit, Mich., for appellants.
Paul J. Zimmer, Jr., Lead Counsel, Asst. Atty. Gen., Lansing, for Milliken et al.
George T. Roumell, Jr. (argued), Riley & Roumell, Detroit, for School Dist. of City of Detroit.
Dr. Kenneth Harris, Dr. Philip E. Runkel, William Waterman, Pontiac, Mich., for LULAC.
Before MERRITT and CONTIE, Circuit Judges, and EDWARDS, Senior Circuit Judge.
CONTIE, Circuit Judge.
This appeal questions the propriety of an order of the district court terminating portions of the remedy imposed in this school desegregation case. The appellants are the plaintiff class[1] and the Detroit Federation of Teachers, a defendant in intervention. The district court's order provided for the termination of its jurisdiction over the Detroit school system's code of student conduct and community relations program. It also disbanded the court-created monitoring commission. Due to procedural deficiencies in the district court's actions, we find it necessary to remand for further proceedings.
I.
This litigation began on August 18, 1970, when the plaintiff class filed a complaint alleging that public officials had intentionally 268*268 segregated the Detroit school system. State and local authorities have been found liable for intentional segregation. See Bradley v. Milliken, 338 F.Supp. 582 (E.D.Mich.1971), aff'd, 484 F.2d 215 (6th Cir.1973) (en banc). In considering the proper remedy, the late District Judge Roth concluded that suburban school districts, against whom there had been no

finding of liability, would have to be included in any successful desegregation plan. See Bradley v. Milliken, 345 F.Supp. 914, 916 (E.D.Mich.1972). This court affirmed the inclusion of non-city school districts in a court-ordered desegregation plan. See 484 F.2d at 249. The Supreme Court disagreed, holding that the remedy must be limited to the Detroit school system. See Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974).
On remand, this case was reassigned to District Judge DeMascio in light of Judge Roth's death. The desegregation plan eventually adopted by Judge DeMascio not only ordered pupil reassignment but also incorporated proposals for what have come to be known as "educational components." These elements of the plan were designed to eliminate current effects of past discrimination. They included items such as remedial reading programs, guidance and counseling programs and vocational training, as well as the community relations and uniform code of student conduct programs which are at issue in this appeal. The state defendants appealed the propriety of four of these "educational components." We affirmed the remedy, see Bradley v. Milliken, 540 F.2d 229 (6th Cir.1976), as did the Supreme Court, see Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). The three portions of the remedy at issue in this appeal were not the subject of any appeals.[2]
The community relations program, the uniform code of student conduct and the monitoring commission came into existence as follows. On May 21, 1975, the district court ordered the Detroit Board of Education to submit a proposed code of student conduct. In the district court's view, a uniform code of student conduct was necessary to "protect the students against arbitrary and discriminatory exclusions, suspensions or explusions and to assure that disruptions in the school or classroom will be dealt with in every instance." See Bradley v. Milliken, 402 F.Supp. 1096, 1142-43 (E.D.Mich.1975). On July 3, 1975, the district court rejected the Board's first draft of the code and provided guidelines for redrafting. On October 29, 1975 the district court reviewed the second draft and again found defects in the Board's efforts. Instead of again sending the draft back to the Board, the district court itself amended the draft. The court then ordered the use of this code.
On July 18, 1975, the district court requested the Detroit Board to submit a proposed community relations program. See 402 F.Supp. at 1143. On May 11, 1976, the district court issued very specific guidelines for the structure of the program and ordered the Detroit Board to institute a community relations program consistent with the court's instructions. This court-ordered program was subsequently adopted.
An August 15, 1975 memorandum opinion stated that the "court's order will provide for a courtcreated monitoring system to audit efforts made to implement the court's desegregation orders." See 402 F.Supp. at 1145. The purpose of the monitoring commission was to aid the court in its "obligation to audit efforts to implement its orders." Id. The monitoring commission came into formal existence on October 16, 1975, when the court accepted and adopted a plan for the monitoring commission submitted by the State Superintendent of Public Instruction.
Since August of 1980, this case has been assigned to a triumvirate of district 269*269judges.[3] This panel now consists of Chief District Judge Feikens, District Judge Churchill and District Judge Cohn.[4] At the time the panel assumed control of the case, there were pending motions from the plaintiff class for enforcement of the various educational remedies and from the Detroit Federation of Teachers for enforcement of the order to implement the uniform code of student conduct. The panel encouraged the parties to negotiate and settle these and other issues. The product of the negotiations was a June 1981 stipulation between the parties. The parties agreed on the amount which the state defendants would contribute to the cost of providing for the educational remedies. To aid in assuring compliance, the stipulation placed reporting requirements on the Detroit Board and the state defendants. It also provided a date for termination of these remedies:

At the conclusion of the 1987-1988 school year, except as otherwise provided by law, the reading, counseling and career guidance, uniform code of student conduct, school-community relations, vocational education, and bilingual-bicultural components shall be deemed completed, upon the filing by the Detroit Board of Education of the final component report by March 1, 1988, and defendant Detroit Board of Education shall then be relieved of any further obligation to implement said components pursuant to the Court's judgment and orders ....
In consideration of the various concessions made by the parties, the pending motions for compliance were withdrawn. The question of the continued existence of a monitoring commission[5] was left unresolved:
This Agreement does not modify the prior orders of the Court concerning the authority and function of the Monitoring Commission, without prejudice to the right of any party to petition the Court concerning changes regarding same.
The district court conducted public hearings on the propriety of the stipulation and on August 28, 1981, it adopted the stipulation as an order of the court.
On April 24, 1984, the district court, 585 F.Supp. 348 (D.C.Mich.1984), entered the order which is the subject of this appeal. It held that the court-ordered code of student conduct would be terminated upon the promulgation by the Detroit Board of its own code of student conduct. The order similarly provided that the court-created community relations program would be terminated upon the adoption by the Detroit Board of its own community relations program. Both of these actions were predicated upon the existence of state laws which either allowed or required the Board to institute the programs it had formerly been under court order to implement.[6] Finally, 270*270 the court held that the monitoring commission would be disbanded upon Detroit Board's compliance with the order to create its own code of student conduct and community relations program. The court based this action on a concern for the friction that had developed between the Detroit Board and the monitoring commission and because "with termination of the student code of conduct and the school-community relations components, there is no longer any reason for us to maintain a Monitoring Commission as an arm of the Court."
II.
The Detroit Board of Education filed a motion to dismiss this appeal, arguing that this court lacks jurisdiction because of the absence of a "final judgment" or an appealable interlocutory order. See 28 U.S.C. §§ 1291, 1292(a)(1). We need not decide whether this order could be characterized as "final" within the meaning of 28 U.S.C. § 1291 or whether it might be within the "collateral order" exception to the rule requiring final judgments[7] because we conclude we have jurisdiction under § 1292(a)(1). That statute gives this court jurisdiction over orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court." 28 U.S.C. § 1292(a)(1). In deciding whether an order modifies an injunction and is thus appealable under § 1292(a)(1), courts have examined both whether there was an underlying order which was injunctive in character and whether the order being appealed can be said to have modified that initial order. See Hoots v. Commonwealth of Pennsylvania, 587 F.2d 1340, 1348 (3d Cir.1978). A third factor to be considered is the practical consequences of the order challenged on appeal. The Supreme Court has stated:
Because § 1292(a)(1) was intended to carve out only a limited exception to the final-judgment rule, we have construed the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be

available only in circumstances where an appeal will further the statutory purpose of "permitting litigants to effectively challenge interlocutory orders of serious, perhaps irreparable, consequence." ... Unless a litigant can show that an interlocutory order of the district court might have a "serious, perhaps irreparable, consequence," and that the order can be "effectively challenged" only by immediate appeal, the general congressional policy against piece-meal review will preclude interlocutory appeal.
See Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981) (citation omitted).
It is clear that the underlying orders in this case — the original orders imposing the remedies and the 1981 stipulation adopted by the court as a consent decree — were injunctive in character. The Detroit Board does not contend otherwise. Rather, it argues that these injunctive orders 271*271 were not "modified" because the provisions of the order being appealed are conditional. That is, the court's order terminating the remedies was to have no effect until certain actions were taken by the Detroit Board. This argument overlooks the fact that the 1981 stipulation and consent decree provided that the duties in question would run until the end of the 1987-88 school year. After the district court's order, the injunction is no longer in effect as it previously existed. Thus, the district court's order clearly modified the injunction. That the actual termination of those duties was made dependent upon certain events does not alter the fact that the form of the injunction was altered by the district court's order. The termination of the remedies, although conditional, could not be said to depend upon the fulfillment of only speculative possibilities. Since the Detroit Board was ordered by the district court to take the actions which would trigger the termination of the previous injunctions, the order created a reasonable certainty that these events would occur and the injunctions would terminate.
Finally, we find that the interlocutory order of the district court might have a "serious, perhaps irreparable, consequence" and that it can be "effectively challenged" only by allowing this appeal. See Carson, 450 U.S. at 84, 101 S.Ct. at 996. If the appellants are correct in their assertion that the district court's order prematurely terminated the injunctions, then their rights under those injunctions can be fully protected only by appealing the modification before the termination actually occurs. Otherwise, the appellants will lose the benefit of the injunctions during the time necessary to prosecute the appeal. Indeed, although the appeal in this case was docketed before the actual termination of the injunctions, the parties have complied with the district court's instructions and the injunctions have terminated.
Accordingly, we conclude that we have jurisdiction over this appeal.
III.
The appellants' argument on appeal is primarily that the reasons stated by the district court for modifying the 1981 consent decree were insufficient as a matter of law. The appellants also argue, however, that the district court erred because no one had requested the termination of the community relations program and the uniform code of student conduct program and that they, therefore, did not have appropriate notice of the nature of the inquiry to be conducted. Because we agree with this latter argument, we remand this case for further proceedings; and in light of this procedural problem, we need not address whether the district court had the authority to act as it did had the proper procedures been followed.
A.

A hearing is generally required before a district court may modify a consent decree. See Delaware Valley Citizens' Council for Clean Air v. Commonwealth of Pennsylvania, 674 F.2d 976, 981 (3d Cir.), cert. denied, 459 U.S. 905, 103 S.Ct. 206, 74 L.Ed.2d 165 (1982); Mayberry v. Maroney, 529 F.2d 332, 335-36 (3d Cir.1976). A hearing is, of course, without value if the parties lack notice of the issues to be resolved at the hearing. Although the district court conducted a hearing in this case, it was not preceded by a notice of the changes the district court had in mind. Thus, although the parties had an opportunity to address the district court as a general matter, they lacked an opportunity to address it on the specific subject of the district court's action.
The first order concerning the hearing in this case was entered on April 13, 1983. This order stated that "[i]t now appears appropriate that the court determine the future role of the monitoring commission and consider the manner of assuring compliance by the Detroit Board of Education with the orders relating to the educational components and particularly the stipulation of the parties regarding implementation of the educational components." This hearing 272*272 was subsequently delayed. On December 8, 1983, the district court issued an order rescheduling the hearing for January 25, 1984 "as the adjourned date of the hearing set in the order of April 13, 1983." The order also requested the parties to address the sufficiency of a compliance report issued by the Detroit Board. Neither of these orders stated that the hearing would be concerned with the termination of the community relations program or the uniform code of student conduct. Indeed, since the April 13, 1983 order stated that the hearing would address "the manner of assuring compliance" with the orders implementing the educational components, the order, if anything, seemed to contemplate the continued existence of those two programs. The possibility of termination was mentioned only in connection with the monitoring commission.
The transcript of the hearing itself reveals that the termination of the community relations program and the uniform code of student conduct were not contemplated. The court stated that the hearing was to address "one, the future role of the Monitoring Commission; and two, the manner of assuring compliance with the Order relating to the educational components." The court also noted that "we broadened that Order" so that consideration would also be given to the parties' "respective positions regarding the reports of the Detroit Board of Education and the responses." Not surprisingly, the arguments of counsel at this hearing focused on the sufficiency of the defendants compliance with the district court's orders and the sufficiency of their required reports. In a manner consistent with the orders calling for the hearing, the only program which was discussed in connection with termination was the monitoring commission.
The parties thus had no notice that the district court contemplated terminating its jurisdiction over the community relations program and the code of student conduct.[8]Because the parties did not have an opportunity to address the district court on the propriety of such actions, that portion of the order providing for the termination of those programs must be vacated. The parties did have notice that the "future role" of the monitoring commission was in issue. Nonetheless, this portion of the district court's order must also be vacated. One of the two reasons given by the district court for terminating the monitoring commission was that it would have no function to perform in light of the termination of the community relations program and the court-ordered code of student conduct. Since one of the premises of the district court's reasoning no longer obtains, that portion of the order providing for the termination of the monitoring commission no longer rests upon adequate grounds. We reiterate that we have no occasion to pass on whether the reasons advanced by the district court for terminating these three programs would be sufficient had the termination been preceded by proper procedures. After appropriate notice and hearing, the District Court should make sufficiently detailed findings of fact and conclusions of law under Rule 52(a), Fed.R.Civ.P., to advise the parties of the factual basis for its decision and permit informed appellate review.
B.

At oral argument, the parties questioned what type of order this court should enter in the event that we did not affirm the district court. Since we are vacating the order of the district court that terminated two of the three programs at issue, the legal effect of our judgment is to return this case automatically to the status quo ante. That is, since the order of the district court providing for termination of the previous injunctions and the consent decree is without legal effect, the earlier provisions are automatically resuscitated. The 273*273 court is concerned, however, that an automatic and immediate return to the status quo ante might disrupt orderly school procedures. We therefore grant the district court a limited discretion to enter an order to provide for a smooth transition back to those programs. We wish to emphasize, however, that any such order shall only be for the purpose of effectuating a smooth and speedy transition to the status quo ante. We also suggest that the district court schedule the hearing required by this opinion at the earliest possible date.
IV.
For the reasons stated above, the judgment of the district court is VACATED and the case is REMANDED for proceedings consistent with this opinion. We direct the clerk to issue the mandate upon the entry of judgment. Fed.R.App.Pro. 41(a). Costs are taxed to the appellees.
[1] The plaintiff class consists of Ronald Bradley, who was a school-aged child at the time the suit was filed, his mother, various other named individuals and their parents and a class consisting of "all parents having children attending the public schools of the City of Detroit, Michigan, on their own behalf and on behalf of their minor children." The NAACP has also participated in this action as a party plaintiff. The defendants are state and local educational officials and agencies, including the State Superintendent of Public Instruction and the Detroit Board of Education.
[2] The only portions of the remedy challenged on appeal were those providing for a remedial reading program, in-service training, revised testing procedures and a counseling and career guidance program. See 433 U.S. at 275-76, 97 S.Ct. at 2754-55; 540 F.2d at 240-41.
[3] In an appeal unrelated to the issues in this case, we found that Judge DeMascio had correctly denied a motion for recusal. We nonetheless held that despite the propriety of Judge DeMascio's ruling, the "bitter feelings that have developed" counseled for a prophylatic reassignment. See Bradley v. Milliken, 620 F.2d 1143, 1158 (6th Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980); Bradley v. Milliken, 495 F.Supp. 217 (E.D.Mich.1980) (opinion on remand).
[4] District Judge Boyle was originally a member of this panel. Judge Churchill replaced Judge Boyle when the latter left the district court to join the Michigan Supreme Court.
[5] The future role of the monitoring commission was first questioned by Judge DeMascio in a 1978 opinion. See Bradley v. Milliken, 460 F.Supp. 299, 318-20 (E.D.Mich.1978).
[6] In discussing the code of student conduct, the district court stated:
[O]ur review of the laws of Michigan relating to the authority of the State Board of Education, the State Superintendent and the Detroit Board tells us that there is ample legal authority for placing complete responsibility for assuring discipline in the Detroit schools, which is the goal of the student code of conduct, in the statutorily constituted agencies without the need of court supervision.
. . . . .
Accordingly we are bringing an end to the requirement that our student code of conduct be part of the remedy in this case. We will provide ample lead time for the Detroit Board to adopt a student code of conduct.
In discussing the community relations program, the court stated:
[O]n August 11, 1983 the Detroit Board filed a motion to allow changes in the school-community relations program now in place. The Detroit Board noted that a recent amendment in Michigan law requires such a program. The Monitoring

Commission and the parties responded that the present program complied with the new law and there was no need to relieve the Detroit Board of the obligation to maintain this component. More important, it appeared to us that state law provides ample authority for assuring a proper school-community relations program in the Detroit school system and that there is no present need for a court-ordered school-community relations program.
Accordingly, we are bringing to an end the requirement of our school-community relations program as part of the remedy in this case. We will provide ample lead time for the Detroit Board to put in place a school-community relations program.
The court's provisions for the termination dates of both programs were identical. The community relations program and the court-created code of student conduct were to terminate upon the adoption of similar programs by the Detroit Board. This adoption was to occur by December 31, 1984.
[7] See generally Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
[8] On August 10, 1983, the Detroit Board moved to terminate the community relations program. This motion was not mentioned, however, in the order setting the January hearing. Accordingly, we cannot conclude that the parties had an opportunity to address the propriety of terminating the community relations program.

 
 828 F.2d 1186 (1987)
Ronald BRADLEY; et al., Plaintiffs-Appellees, Black Parents for Quality Education, and Ludington School Community
Organization; et al., Proposed Plaintiffs Intervenors-Appellants, v.
William MILLIKEN; et al., Defendants-Appellees, Detroit Federation of Teachers Local 231, AFL-CIO, Intervening
Defendant-Appellee.
No. 86-1487.
United States Court of Appeals, Sixth Circuit.
Argued August 4, 1987. Decided September 18, 1987. Rehearing and Rehearing Denied December 1, 1987.
1187*1187 1188*1188 Thomas I. Atkins (argued), Brooklyn, N.Y., Jeanne E. Mirer, Detroit, Mich., for appellants.
George T. Roumell (argued), Theodore Sachs, Detroit, Mich., Horace Stone, Baltimore, Md., Janice L. Burns, Grover Hankins (argued), Paul Zimmer (argued), Asst. Atty. Gen., Lansing, Mich., for appellees.
Before MERRITT and RYAN, Circuit Judges, and CONTIE, Senior Circuit Judge.
Rehearing and Rehearing En Banc Denied December 1, 1987.
CONTIE, Senior Circuit Judge.
Black Parents for Quality Education (BPQE), Ludington School Community Organization (LSCO) and approximately sixty individuals, appeal from the district court's denial of their motion to intervene in the advanced remedial stage of this Detroit school desegregation case. Proposed intervenors assert that they had a right to intervene under Rule 24(a) or, alternatively, that the district court abused its discretion in denying their motion for permissive intervention under Rule 24(b). Fed.R.Civ.P. 24(a), (b). For the following reasons, we affirm the district court's judgment.
I.

This complaint was initially filed as a class action suit on August 18, 1970, by parents and children in the Detroit public school system, as well as the Detroit Branch of the National Association for the Advancement of Colored People (NAACP) which was recognized as a party-plaintiff and a class representative. The complaint alleged that the Detroit School Board, the Superintendent of Public Instruction and various local and state officials had engaged in intentional racial segregation of the Detroit public schools. On prior appeals, state and local authorities were found liable for intentional discrimination, Bradley v. Milliken, 484 F.2d 215 (6th Cir.1973) (en banc), aff'd in part, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), and a desegregation plan incorporating the use of educational components was upheld. Bradley v. Milliken, 540 F.2d 229 (6th Cir.1976), aff'd, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). More recently, in September 1985, we reversed a district court order terminating its jurisdiction over the community relations program, the uniform code of student conduct and the monitoring commission. Bradley v. Milliken, 772 F.2d 266 (6th Cir.1985), vacating 585 F.Supp. 348 (E.D.Mich.1984). We held that the district court had failed to provide the parties with adequate notice and a hearing regarding the propriety of terminating jurisdiction over the community relations program and the uniform code of student conduct; and, although the parties had been notified that changes in the monitoring commission's role were at issue, we determined that the district court's decision regarding the monitoring commission also could not be upheld since we had struck down one of the court's major premises for terminating jurisdiction over the commission. Id. at 272. Accordingly, we vacated the district court's order and remanded the case for further proceedings, returning the case to the status quo ante. We also granted the district court the limited discretion to enter an order which would provide for a smooth transition back to these revitalized programs.
The present controversy regarding the district court's denial of a motion to intervene stems from a relatively complex chain of events which we will only highlight here. On March 16, 1985, then-counsel of record for the plaintiff class, Thomas I. Atkins, filed with the district court a notification of his withdrawal as General Counsel for the NAACP and its Special Contribution Fund (SCF), and informed the court that Grover G. Hankins was his permanent successor as General Counsel who would be making an appearance on behalf of the NAACP and 1189*1189 SCF in the near future. The notice continued: "It is my intent, with the approval of the Court, to remain in the case as a counsel for the certified class."
In the months following this court's 1985 remand order, Atkins continued to make appearances before the district court, and controversy continued to focus on the uniform code of student conduct, community relations program and monitoring commission. On November 12, 1985, two of the three judges withdrew from the panel assigned to the case, and the lawsuit proceeded before District Judge Cohn only. Although a hearing on this court's remand order was initially scheduled for December 1985, it was rescheduled for January 1986, following a status conference on November 19, 1985. Plaintiffs and intervening defendant Detroit Federation of Teachers then sought a writ of mandamus in this court asserting, inter alia, that the district court was not complying with the remand instructions because the case had not been returned to the status quo ante. This court denied the mandamus petition on April 9, 1986, reasoning that the arguments could be asserted on direct appeal.

On January 13, 1986, the day the hearing was scheduled to commence, the district court for the first time addressed the issue raised by attorney Hankins and fellow attorney Horace Stone as to which attorneys represented which plaintiffs. Hankins and Stone urged the court to rule that Atkins' notice of withdrawal of appearance, their appearance, and the history of the case established that they were lead counsel for the plaintiff class and that Atkins did not represent any party. The concern over who was lead counsel principally arose from a difference in opinion as to whether or how to enter into negotiation settlements with the Detroit School Board. Hankins was in favor of entering into settlement negotiations with the School Board and was not opposed to placing the Superintendent of Public Instruction in charge of the monitoring function, a plan which the district court expressly approved of. Hankins, in short, believed that an adversary relationship with the School Board was no longer beneficial, whereas Atkins believed Hankins' approach was not in the best interest of the plaintiff class. Atkins believed that anything short of an independent monitoring commission was inadequate to guarantee compliance with the remedial order, and that parents must continue to play an active role in the remedial stage.
The district court did not resolve this issue immediately, requesting the parties to provide it with more information regarding the NAACP's role in the litigation. In the meantime, settlement negotiations involving all attorneys continued.
Shortly thereafter at a status conference on January 21, 1986, Atkins, in the name of the plaintiff class, filed a motion to supplement class representatives. This motion was opposed by all other counsel of record, including Hankins and Stone.
A hearing to determine which counsel represented the plaintiff class was then held on January 28, 1986 Atkins asserted that the Detroit Branch of the NAACP had been withdrawn as party-plaintiff in 1974, and that he had accordingly represented the plaintiff in his individual capacity, not in his capacity as General Counsel of the NAACP and SCF. He argued that he should therefore be permitted to continue as lead counsel for plaintiffs given his expertise and familiarity with the issues.
On January 30, 1986, the district court entered an order addressing a number of issues pending before it, including who would proceed as counsel for the plaintiff class. The court approved the substitution of Hankins and Stone as General Counsel for the NAACP and SCF in Atkins' place, and then concluded that "the lead or principal attorney for the plaintiffs has at all times been the General Counsel of the Association and Fund, as distinguished from the particular attorney occupying that position." Accordingly, the court ruled that Hankins became the attorney for the plaintiff class as soon as he succeeded Atkins. The court also rejected the option of dividing the responsibilities between Hankins and Atkins given the nature of their disagreements over how the litigation should 1190*1190proceed. However, the court expressly invited Atkins to participate in the remaining proceedings as amicus curiae.
The court denied the motion to supplement class representatives on February 3, 1986. Specifically, the court noted that the case was "in the twilight of its remedial phase" and that participation by the proposed supplementary representatives would not assist the court in any significant way. The court also denied a motion to reconsider this ruling.

On March 4, 1986, a motion to intervene pursuant to Rules 24(a) and (b), Fed.R.Civ.P., was filed by Atkins on behalf of appellants herein, and a revised motion to intervene was filed on March 13, 1986. The motion asserted that the present class representatives did not adequately represent their interests, particularly with respect to the proper role of the monitoring commission and other remedial efforts. A hearing was held on this motion on April 7, 1986, with three individuals testifying in support of the motion.
First, Valerie McNeece, co-chair of the Ludington School Community Organization for the Middle Magnet School, testified that the Ludington School was improperly deviating from racial and gender quotas in its enrollment procedures. She testified that her efforts to elicit aid from the NAACP, and Hankins in particular, had failed.
Second, Helen Moore, one of the co-founders of Black Parents for Quality Education and its current spokesperson, testified that she believed Hankins was siding with the defendants and did not represent BPQE's interests, although she admitted that she agreed with NAACP's ultimate goal of a unitary school system. She further stated that BPQE was a loosely knit "movement," with no constitution, by-laws, officers, dues or identifiable members. Although Moore did not have any children presently enrolled in the public schools, she claimed that BPQE and she were deeply involved in the Detroit school system's affairs.
Finally, Ray Litt testified. Although a named plaintiff and class representative in this lawsuit, Litt was included in the motion to intervene. Litt testified that the NAACP no longer represented his interests because it had abandoned its initial position on the school community relations component of the case and had failed to support the continued existence of an independent monitoring commission. Further, he was concerned about the deterioration of the Cass High School program which he testified began in 1981 with the start of the vocational high school component of the remedial order. He had never contacted Hankins or the court about his concerns.
The district court denied the motion to intervene on May 2, 1986. The court noted that the motion to intervene had been stimulated by this court's prior order reversing the district court's termination of jurisdiction over various aspects of the remedial decree, stating that its errors had been rectified on remand. The court concluded that the problems with the Ludington Middle School, as outlined by McNeece, were "discrete and involve[d] a possible violation of the remedial decree ... [and constituted] an insufficient basis for allowing intervention." The court noted that future problems with the Ludington School should be directed to the monitor, who was fully aware of the situation at the school. The court further stated that Litt's concerns about the adverse impact of the vocational high schools on Cass had never been raised to the court, and could not form the basis for intervention given the number of years the problem had existed. The court concluded:
The real controversy implicated by the petition to intervene is not the inadequacy of representation by the Detroit Chapter of the NAACP as class representative but rather Mr. Atkins's disagreement as to how the litigation should be conducted. Given the present status of the case where the only outstanding issue, except for the continuing obligations of the Detroit Board under the remedial decree, is the appropriateness of long term suspension as a form of punishment under the Code of Student Conduct, petitioners have

offered no good reason to add additional lawyers to the roster of 1191*1191 lawyers in the case. As previously observed, "[T]here can be but one ... master of a litigation." Manning v. Mercantile Trust Co., 26 Misc. 440, 57 N.Y.S. 467, 468 (1899).
This timely appeal followed.
II.
The proposed intervenors state that this appeal "constitutes the continued effort to require the District Court to obey the 1985 mandate of this Court." They challenge the wisdom of various actions below concerning the uniform code of student conduct, the community relations program and the monitoring commission, as well as the propriety of the district court's decision to remove class counsel. We must note as an initial matter that we cannot review the merits of the district court's rulings with respect to any of these issues given the present posture of the case. Rather, this case is before us solely on an appeal from the denial of a motion to intervene.
A.
The proposed intervenors first argue that they had a right to intervene in this lawsuit pursuant to Fed.R.Civ.P. 24(a), which provides in pertinent part:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
A motion to intervene as a matter of right must therefore be timely, United Airlines, Inc. v. McDonald, 432 U.S. 385, 387, 97 S.Ct. 2464, 2466, 53 L.Ed.2d 423 (1977); NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2591, 2602, 37 L.Ed.2d 648 (1973), and the proposed intervenor must establish (1) that he has an interest which is the subject matter of the lawsuit, (2) which is likely to be impaired by the disposition of the lawsuit, and (3) that the existing parties cannot adequately protect that interest. See Triax Co. v. TRW, Inc., 724 F.2d 1224, 1227 (6th Cir.1984); Brewer v. Republic Steel Corp., 513 F.2d 1222, 1223 (6th Cir.1975).
The threshold determination of whether a motion is timely is a matter within the sound discretion of the trial court. NAACP v. New York, 413 U.S. at 365-66, 93 S.Ct. at 260203; Michigan Ass'n for Retarded Citizens v. Smith, 657 F.2d 102, 105 (6th Cir.1981). Timeliness should be evaluated in the context of all relevant circumstances, such as the purpose of the motion to intervene, the length of time the applicant for intervention should have known of his interest in the case, whether the original parties would be prejudiced by further delays, whether there are any unusual circumstances which would bear on granting or denying the motion and to what stage the lawsuit has progressed. Michigan Ass'n for Retarded Citizens, 657 F.2d at 106; Stotts v. Memphis Fire Dep't, 679 F.2d 579, 582 (6th Cir.), cert. denied, 459 U.S. 969, 103 S.Ct. 297, 74 L.Ed.2d 280 (1982); see also United

Airlines, Inc. v. McDonald, 432 U.S. at 396, 97 S.Ct. at 2470 (court must determine whether the intervenor acted promptly in view of all the circumstances).
Appellees vigorously assert that appellants' motion to intervene was untimely. They assert that the motion was filed for the sole purpose of permitting attorney Atkins to participate as lead counsel in the lawsuit, that appellants knew of the ongoing litigation and recent negotiations long before the motion was filed, and that the original parties would suffer prejudice by further delays, particularly in light of the fact that this case has been in its remedial stage for many years. Appellants counter that they filed this motion as soon as it became evident that the remaining parties would not represent their interests.
We do not reach the merits of this argument. The district court did not rely on untimeliness to deny the proposed intervenors' motion, and we believe it would be improper to make findings on all the relevant 1192*1192 criteria without the benefit of the district court's insights. Therefore, for the remainder of our analysis, we will assume that the threshold requirement of timeliness has been met.
Although the Supreme Court has yet to define what constitutes a sufficient interest to satisfy the interest requirement of Rule 24(a)(2), it has generally been accepted that students, parents of children in the school system and parent organizations have a sufficient interest in eliminating segregation in the schools to satisfy this requirement, and that their interest could be impaired by the disposition of a school desegregation case. See Morgan v. McDonough, 726 F.2d 11, 13 (1st Cir.1984); United States v. Board of School Comm'rs of Indianapolis, Ind., 466 F.2d 573, 575 (7th Cir.1972), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973); Liddell v. Caldwell, 546 F.2d 768, 770 (8th Cir.1976), cert. denied, 433 U.S. 914, 97 S.Ct. 2987, 53 L.Ed.2d 1100 (1977). Further, this court has acknowledged that "interest" is to be construed liberally. Hatton v. County Bd. of Educ. of Maury County, Tenn., 422 F.2d 457, 461 (6th Cir.1970).
However, in the instant case, the district court found that the problem at the Ludington Middle School, as testified to by witness McNeece, was discrete and "[i]n association with the other parties to the petition, this is an insufficient basis for allowing intervention." It could be concluded that a discrete interest such as this fails to establish the necessary "direct, substantial interest" in the overall desegregation suit required by Rule 24(a)(2). See Brewer v. Republic Steel Corp.,513 F.2d at 1223. Similarly, BPQE may not be entitled to the presumption of having a sufficient interest generally granted to parent organizations. Being a loosely knit "movement" rather than an organization, with no identifiable members or structure, and having a principal spokesperson who presently does not have children in the Detroit public school system, it too may not have a "direct, substantial interest" in this lawsuit. Finally, it is clear that Ray Litt cannot intervene in the same lawsuit in which he is already a named party.
However, even assuming that the proposed intervenors have stated a sufficient interest in this litigation which is likely to be impaired — i.e., an interest in preserving particular remedial components — they must also establish that the present class representatives will not adequately protect that interest. See Meyer Goldberg, Inc. v. Goldberg, 717 F.2d 290, 293 (6th Cir.1983) ("the applicant for intervention bears the burden of demonstrating inadequate representation"). This requires "overcom[ing] the presumption of adequacy of

representation that arises when the proposed intervenor and a party to the suit ... have the same ultimate objective." Wade v. Goldschmidt, 673 F.2d 182, 186 n. 7 (7th Cir.1982) (per curiam). An applicant for intervention fails to meet his burden of demonstrating inadequate representation "when no collusion is shown between the representatives and an opposing party, when the representative does not have or represent an interest adverse to the proposed intervenor, and when the representative has not failed in its fulfillment of his duty." Id.; see also Liddell v. Caldwell, 546 F.2d at 770; Morgan v. McDonough, 726 F.2d at 14. A mere disagreement over litigation strategy or individual aspects of a remediation plan does not, in and of itself, establish inadequacy of representation. Cf. United States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968, 987 (2d Cir.1984) ("The mere existence of disagreement over some aspects of the remediation necessary to abate the hazard does not demonstrate a lack of capacity on the part of the government as parens patriae to represent its constituents fairly and faithfully."); United States v. Perry County Bd. of Educ., 567 F.2d 277, 280 (5th Cir.1978)("Appellants are not entitled to intervention of right simply because they would have voted differently had they been members of these representative bodies.").
The proposed intervenors essentially raised three complaints about the adequacy of representation on the part of the class representatives: problems at the Ludington 1193*1193 School, deterioration of Cass High School, and the modification of the monitoring and community relations components of the remedial decree. We conclude that the testimony does not support a finding of inadequate representation concerning any of these complaints.
First, as became evident at the evidentiary hearing on this motion, the district court and the monitor were fully aware of the enrollment difficulties at the Ludington School. Although the class representatives had not attended to this issue with the expediency desired by LSCO, the concerns had been raised, and the court has taken action to look into the problems. Accordingly, no showing of inadequate representation has been made. Cf. Bradley v. Milliken, 620 F.2d 1141, 1142(intervenor's arguments had already been raised by the Detroit School Board and the court had ordered that the issues be taken into account). In light of the circumstances, we believe the interests articulated by the LSCO representative can be protected without intervention. See Hatton, 422 F.2d at 461 (must establish that interest can only be protected through intervening in the proceedings).
Second, Ray Litt's testimony regarding the problems at Cass High School cannot form the basis of a motion to intervene of right. The difficulties allegedly began in 1981, several years before the motion to intervene was filed, and were never brought to the attention of the district court or counsel for the class. Litt admitted that he had never contacted Hankins about this problem. Inadequacy of representation cannot be shown on the basis of this record.
Finally, the proposed intervenors argue that by NAACP's agreeing to a plan to place the principal monitoring role with the Superintendent of Public Instruction rather than an independent commission, the class representative had abandoned an essential part of the remedial decree and therefore had failed in its duty to represent their interests. They liken this to situations where the parties' interests, though once in accord with each other, have parted significantly and irreconcilably. See, e.g., Triax Co. v. TRW, Inc., 724 F.2d at

1228; cf. Jones v. Caddo Parish School Bd., 499 F.2d 914, 917 (5th Cir.1974) (per curiam) (evidentiary hearing required to determine which group more properly represents the interests of the black community). They assert that by having an interest which is diverse from that of the plaintiff class, they have a right to intervene.
We disagree. It appears evident to us that the present class representatives and proposed intervenors share the same ultimate objective in a unitary school district. Although the litigation strategy has altered, this objective has not been abandoned by current counsel. We cannot say at this point in the litigation and upon this record that the agreed-to modifications in the monitoring component, or other changes in the remedial plan, so harm members of the plaintiff class and the proposed intervenors that the class representatives have failed to fulfill their duty. Further, while the proposed intervenors strongly oppose abandoning an adversarial role vis-a-vis the Detroit School Board, such a decision is not the equivalent of "collusion" with the opposing party. On the basis of the record before us, we simply cannot find that such differences of opinion lead to a conclusion that representation has been inadequate to protect the interests of the proposed intervenors.
Accordingly, the district court did not err in finding that appellants failed to establish a right to intervene under Rule 24(a)(2).
B.
Alternatively, appellants assert that the district court abused its discretion in denying their motion for permissive intervention pursuant to Rule 24(b). Rule 24(b) grants the district court discretionary power to permit intervention if the motion is timely, NAACP v. New York, 413 U.S. at 365, 93 S.Ct. at 2602. Michigan Ass'n for Retarded Citizens, 657 F.2d at 105, and if the "applicant's claim or defense and the main action have a question of law or fact in common." Fed.R.Civ.P. 24(b)(2). Rule 24(b)(2) also provides that "[i]n exercising 1194*1194 its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." We therefore review a denial of a Rule 24(b) motion only for an abuse of discretion. See Meyer Goldberg, Inc., 717 F.2d at 294. For the reasons already set forth above, we will assume the motion was timely filed.
We can detect no basis upon which to find an abuse of discretion. This suit is several years older than when we upheld a prior denial of a motion to intervene citing the advanced age of the case and the possible adverse effect of further delays on the parties. See Bradley, 620 F.2d at 1142. Further, when it appears that the proposed intervenors may attempt to have the court reconsider its prior rulings, as in the instant case, concern over delay and prejudice to the parties is particularly apparent. See Hatton, 422 F.2d at 461.
Moreover, the district court has already taken steps to protect the proposed intervenors' interests by inviting attorney Atkins to appear as amicus curiae in the case. This would allow the district court the benefit of hearing proposed intervenors' concerns and views, as well as the benefit of Atkins' expertise, before it rules on issues in the advanced remedial phase of this desegregation action. See Bradley, 620 F.2d at 1142 (can protect interests by petitioning court to participate as amicus curiae); Penick v. Columbus Educ. Ass'n, 574 F.2d 889, 890 (6th Cir.1978) (per curiam) (district court allowed participation as amicus in

remedial stage of school desegregation proceedings); cf. Stotts v. Memphis Fire Dep't, 679 F.2d at 584 (court afforded proposed intervenors the opportunity to air objections).[1]
Finding that appellants failed to establish a right to intervene under Rule 24(a) and that the district court did not abuse its discretion in denying appellants' motion for permissive intervention, we AFFIRM the district court's order.
MERRITT, Circuit Judge, dissenting.
I agree with the Court's disposition of the permissive intervention issue under Rule 24(b) but disagree with its decision concerning mandatory intervention under § 24(a). The Court rests its decision on "adequacy of representation," and I disagree with its decision that the new NAACP general counsel is adequately representing the group of black parents represented by Thomas Atkins, Esq. These parents insist that the provisions of the consent decree establishing the monitoring commission, the community relations program and the student conduct code should not be changed. The new NAACP counsel has agreed with the school board and the State to make significant changes in these programs, including transferring the monitoring function from an independent local agency to the state and reducing the role of parents in the community relations program. The NAACP and the defendants may very well be right on the merits, but their positions are directly contrary to the position of the black parents who believe the terms of the consent decree should be fully carried out. I believe the District Court and this Court will be assisted by having both sides of the issue fully ventilated, and this cannot be done if one side is excluded from the courtroom.
I recognize that Mr. Atkins and his clients are "divisive" and sometimes difficult to deal with and that the NAACP, the defendants and the Court may well be tired of this case and Mr. Atkins' tactics. I am persuaded, however, by Mr. Atkins' argument that the monitoring function should not be turned over to the state without an adversary hearing where parties on both sides are heard. I think the arguments in favor of the consent decree and the status quo need to be heard and considered. I think Mr. Atkins' clients are entitled to be 1195*1195 heard, and I would not agree to the settlement modifying the consent decree without letting them have their day in court.
[1] Intervenors suggest that the district court did not allow permissive intervention because the court was frustrated with Atkins' persistence on important issues over which there was considerable disagreement. While a strong showing of improper motive on the part of the district court would possibly require reversal, there has been no such showing here. See Morgan v. McDonough, 726 F.2d at 15.

 
 402 F.Supp. 1096 (1975)
Ronald BRADLEY et al., Plaintiffs, v.
William G. MILLIKEN, Governor of the State of Michigan and Ex-Officio Member of Michigan State Board of Education, et al., Defendants.
Civ. No. 35257.
United States District Court, E. D. Michigan, S. D.
August 15, 1975.
1097*1097 1098*1098 1099*1099 1100*1100 1101*1101 Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., for plaintiffs.
George T. Roumell, Jr., Riley & Roumell, Theodore Sachs, Marston, Sachs, O'Connell, Nunn & Freid, Detroit, Mich., George L. McCargar, Jr., Asst. Atty. Gen., Lansing, Mich., for defendants.
MEMORANDUM OPINION AND REMEDIAL DECREE
(Findings of Fact and Conclusions of Law)
DeMASCIO, District Judge.
I. INTRODUCTION
Our task in this on-going litigation is to formulate a just, equitable and feasible plan to desegregate the Detroit School System, taking account of the practicalities at hand. We do so in response to a United States Supreme Court mandate that we formulate a "decree directed to eliminating the segregation found to exist in Detroit City Schools." Writing for the majority of the Supreme Court, Chief Justice Burger noted that the district court and court of appeals:
"proceeded on an assumption that the Detroit schools could not be truly desegregated — in their view of what constituted desegregation — unless the racial composition of the student body of each school substantially reflected the racial composition of the population of the metropolitan area . . .." Milliken v. Bradley, 418 U.S. 717, 740, 94 S.Ct. 3112, 3125, 41 L.Ed.2d 1069 (1974).
The Chief Justice then pointed out that Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) "does not require any particular racial balance in each `school, grade or classroom.' . . ." 418 U.S. at 740-41, 94 S.Ct. at 3125. Thus, the Court did not deem it essential to furnish guidelines for desegregating the Detroit School System. Cf. Keyes v. School District No. 1,

Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). Rather, it left this court to determine what constitutes desegregation in this particular school district.
In our analysis, we have been mindful that rigid and inflexible desegregation plans too often neglect to treat school children as individuals, instead treating them as pigmented pawns to be shuffled about and counted solely to achieve an abstraction called "racial mix." We recognize that our concern is with the very young and that a just, equitable and feasible desegregation plan should not destroy the educational mission of the schools they attend. We are aware of the adverse educational and psychological impact upon black children compelled to attend segregated schools; to separate them from other children solely because of skin pigmentation is 1102*1102 indeed invidious. But although the resulting injury is great, the remedy devised should not inflict sacrifices or penalties upon other innocent children as punishment for the constitutional violations exposed. We must bear in mind that since those committing the grotesque violations are no longer about, any such punishment or sacrifices would fall upon the very young; it is the children for whom the remedy is fashioned who must bear the additional burdens.
The necessity of preserving the educational system for whom this remedy is addressed has compelled us to scrutinize carefully plans that are rigidly structured to achieve a racial mix, that include pairing and clustering of schools, that fracture grade structures and that include massive transportation. All of these techniques require children to spend more time going to school and divert educational dollars and energy from legitimate educational concerns.
If Detroit's school population were more equally divided between black and white or if the desegregation area were sufficiently large to permit greater equalization, it would be possible to diminish the inevitable limitations on the task of eliminating racially identifiable schools in the district. But it is impossible to avoid having a substantial number of all black or nearly all black schools in a school district that is over 70% black. The truth of this statement is best demonstrated by the desegregation plan offered by the plaintiffs in this litigation; while plaintiffs contend that their plan affords the greatest degree of desegregation, their plan leaves the majority of the schools in the district between 75% and 90% black. An appropriate desegregation plan must carefully balance the costs of desegregation techniques against the possible results to be achieved. Where the benefits to be gained are negligible, those techniques should be adopted sparingly.
Finally, an effective and feasible remedy must prevent resegregation at all costs. To ignore the possibility of resegregation would risk further injury to Detroit school children, both black and white. In a school district that is only 26% white, a remedy that does not take account of the possibility of resegregation will be short-lived and useless if that percentage of whites further decreased. A realistic desegregation plan should recognize that abuses such as optional attendance zones, gerrymandered attendance zones, discriminatory assignments, the bussing of black children away from closer white schools and school construction that knowingly tends to have segregative effects are unlikely to recur in a school system that has a majority black board of education and a bi-racial administrative staff.
The guidelines adopted by this court consider the "practicalities of the situation", and at the same time make "every effort to achieve the greatest possible degree of actual desegregation . . .." Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). The "practicalities" that an appropriate remedy should consider encompass the legitimate concerns of the school system and the community at large. One legitimate concern deserving of weight is the undesirability of forced reassignment of students achieving only negligible desegregative results. Another of the practicalities is the shifting demography occurring naturally in the school district together with the persistent increase in black student enrollment. Still another of the practicalities to be taken into account is the racial population of the district, which is predominantly black by a wide

margin. Further practicalities that must be considered by this court include the declining tax base of the City of Detroit, the depressed economy of the city, and the volatile atmosphere created by the highest rate of unemployment in the nation. Finally, the decree must consider the overriding community concern for the quality of educational services available in the school district. An effective and flexible remedy must contain safeguards that will enhance rather 1103*1103 than destroy the quality of the educational services provided in the City of Detroit.
II. PRIOR PROCEEDINGS
The Detroit School Desegregation case has been in litigation for nearly five years. The plaintiffs filed this action on August 18, 1970, naming as defendants the Detroit Board of Education, its members and the Detroit Superintendent of Schools, together with the Governor, Attorney General, State Board of Education and the State Superintendent of Public Instruction for the State of Michigan. The complaint alleged inter alia that as a result of actions and inactions on the part of all the named defendants, the Detroit Public School System was racially segregated. The complaint further challenged the constitutionality of Act 48 of the Michigan Public Acts of 1970 insofar as that Act precluded implementation of the April 7, 1970, "plan" to desegregate the Detroit Public Schools. The plaintiffs further prayed for a preliminary injunction to restrain the enforcement of Act 48 together with an order requiring the Detroit Board of Education to implement the so-called April 7, 1970, desegregation plan.
The district court ruled that plaintiffs were not entitled to preliminary injunctive relief and declined to rule on the constitutionality of Act 48. At that time the district court granted a motion dismissing the action as to the Governor and the Attorney General. (Rulings dated September 3, 1970.) Upon appeal, the United States Court of Appeals for the Sixth Circuit sustained the district court's denial of plaintiffs' motion for a preliminary injunction but reversed the district court in part, holding that portions of Act 48 were unconstitutional and at the same time ordering that the Governor and the Attorney General remain as parties to the litigation. Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970). Although the defendant Detroit Board of Education would have implemented the so-called April 7 desegregation plan upon order of the court or otherwise, the district court did not order implementation of such "plan"; instead as an interim plan, it adopted a plan submitted by the Detroit Board known as the "Magnet Plan." (December 3, 1970, Ruling on School Plans.)
Following a trial on the liability issue, the district court found that the Detroit School District was segregated on the basis of race. The court found that certain conduct on the part of the defendant Detroit Board of Education and the defendant State of Michigan, through its various state officials, fostered segregation in the Detroit Public School System and violated the Fourteenth Amendment rights of Detroit school children. The district court also held that the state was vicariously liable for certain de jure acts of the defendant Detroit Board of Education. The district court specifically found that the state failed until 1971 to provide funds for the transportation of pupils within the Detroit School System regardless of their poverty or distance from the school to which they were assigned, although at the same time the state provided financial assistance for student transportation to many neighboring, mostly white suburban districts. The district court finally found that the state, through Act 48, acted to "impede, delay and minimize racial integration in Detroit schools." 338 F.Supp. 582 at 589.
The district court thereafter ordered the parties to submit plans to desegregate the Detroit Public Schools. Pursuant to this order the defendant Detroit Board of Education submitted two plans, referred to as Plan A and Plan C, that were restricted to the corporate limits of the City of Detroit. At the same time the plaintiffs filed a desegregation plan known as the "Foster Plan" and the State defendants filed a "Metropolitan School District Reorganization Plan." Following the hearings conducted on the Detroit-only plan, the district court concluded that the Detroit Board of Education

Plans A and C were legally insufficient because they would not significantly 1104*1104 desegregate the school system: The court found that Plan A was an elaboration and extension of the Magnet Plan then in effect and further found that Plan C as submitted by the Detroit Board was merely a token desegregation effort. The district court also rejected the plan submitted by plaintiffs, specifically finding that plaintiffs' plan would entail a re-casting of the entire Detroit School System and would leave the majority of its schools 75 to 95% black, thus making the Detroit School System more identifiably black. The district court then concluded as a matter of law that "under the evidence in this case [it] is inescapable that relief of segregation in the public schools in the City of Detroit cannot be accomplished within the corporate geographical limits of the city." The Court of Appeals for the Sixth Circuit affirmed the district court's ruling on the issue of segregation and its Findings of Fact and Conclusions of Law on the Detroit-only plan. The court further affirmed in principle the propriety of a metropolitan remedy. Following a grant of certiorari to the Court of Appeals, the Supreme Court, on July 25, 1974, affirmed the district court's finding on the liability issue of segregation and did not disturb the court's finding that the Detroit Public Schools could not be adequately desegregated within the corporate limits of the city but reversed the court's approval of a metropolitan remedy, holding that a district court may not impose a multi-district remedy to correct a single school district's acts of de jure segregation.
On January 13, 1975, upon receipt of the Supreme Court mandate from the Court of Appeals, this court filed an order requiring the parties to file a current status report. This order precipitated the filing of numerous motions to dismiss by the intervening suburban defendants. Following a pre-trial conference on February 18, 1975, the defendant Detroit Board and the plaintiffs were ordered to submit desegregation plans for Detroit only, on or before April 1, 1975. The State defendants were ordered to submit a critique of the Detroit Board plan by April 20, 1975. On April 16, 1975, the court granted the motions to dismiss filed by the intervening suburban defendants and simultaneously granted plaintiffs' motion to amend their complaint to include allegations of inter-district de jureviolations.
The plan submitted by the Detroit Board contained many components that were vague or poorly documented. Costs for these components, including transportation, were excessive. The defendant Detroit Board sought to add 3,416 new employees, many at salaries well in excess of those paid to its more experienced and tenured teachers. Moreover, the plan failed to inform the court of the extent to which each of the components might presently exist in the school system. When these deficiencies became apparent, the court deemed it advisable to appoint three court experts and commissioned them as officers of the court to obtain much of the needed information. The court assigned its experts to obtain from the Detroit Board sufficient data to evaluate the components included in the plan. Because the constitutional sufficiency of the defendant Board's plan could be determined only by examining all of the alternatives, the court deemed it necessary to request its experts to explore additional possibilities to aid the court's evaluation of the transportation component. The hearings on both plans commenced on April 29, 1975.
We now detail the findings of fact in order to determine the amount of desegregation possible in this school district, giving due consideration to the practicalities at hand. We are reminded that, according to Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083 (1954), this court is to be guided by equitable principles. Thus, its guidelines must be flexible and responsive to public and private needs.
III. FINDINGS OF FACT
A. The Detroit School System

1. The Detroit School System, which is coterminous with the City of Detroit, 1105*1105 is governed by a Central Board of Education. In an attempt to decentralize this huge school system the Michigan legislature, pursuant to Act 48 of the Michigan Public Acts of 1970 (Mich. Comp.Laws 388.171 et seq.) divided the school system into eight geographic "regions". Each region is governed by a regional board of education whose primary responsibilities and relationship with the central Board of Education are outlined in Defendant Board of Education's Exhibit 4, "Guidelines for Decentralization". Each region has a five-member board elected by the citizens residing within its boundaries. The individual board member receiving the highest number of votes is designated chairman of the regional board.
The Central Board of Education consists of 13 members. Five of its members are elected from the City of Detroit at large and the remaining positions are occupied by the eight regional chairmen. The day-to-day administration of the entire school system is the responsibility of a General Superintendent of Schools, an Executive Deputy Superintendent, a Deputy Superintendent and an Assistant Superintendent, together with eight Regional Superintendents selected by the regional boards. The "Guidelines for Decentralization" indicate that there is much autonomy left with the regional boards. For example, the regional boards retain the authority to change attendance boundaries within their regions, transfer teachers from school to school within their regions, vary the educational curriculum in schools within their regions and hire the Regional Superintendents. Under the regional system the quality of education could vary not only among regions but also among schools within a region. Notwithstanding this decentralized system, the Central Board of Education remains responsible for governing the entire system and for overseeing the actions of the regional boards.
2. Both the Central Board and the central administrative staff under the supervision of the General Superintendent are bi-racial in character. Nine of the Central Board's thirteen members, including the Board President, are black; the other four members are white. At the beginning of this remedial hearing the General Superintendent was white and the Executive Deputy Superintendent was black; when these proceedings were completed the white General Superintendent had retired and had been replaced by one who is black. The bi-racial aspects of the school administration extend throughout the entire staff, down to the level of the department heads.
The racial composition of the school administration has changed dramatically since the inception of this lawsuit in 1970. At the conclusion of the trial on the liability aspects of this litigation in 1971, the Central Board was composed of ten white members and three black members and the greater part of the General Superintendent's staff was white. As a result of the decentralization brought about by the passage of Act 48, the black community has become more involved in and has experienced greater control over the Detroit School System.
3. Although the Supreme Court decision in this case was handed down in July of 1974, the Detroit Board of Education did not take steps to formulate a desegregation plan until ordered to do so by this court. In January of 1975, however, they created a desegregation office commissioned to formulate an acceptable plan. The Detroit Board's plan, submitted to this Court on April 1, 1975, was adopted by a 9-4 vote. The nine black members of the Board voted in favor of the desegregation plan while the four white members opposed the plan as presented. Although this vote was split along racial lines, the central Board of Education is nevertheless a cooperative Board and is willing to desegregate the Detroit school system. However, the plan as submitted does not enjoy unanimous acceptance among the members of the Detroit Board, the members of the administrative staff or the members of the desegregation office. It is apparent that under the regional system it is possible 1106*1106 that the degree of desegregation under the Board's plan could vary among different regions and it is likely that the plan as submitted by the Central Board of Education enjoys varying degrees of acceptance in different regions.

B. Statistical and Demographic Data

4. The most recent official racial-ethnic distribution count, taken on September 27, 1974, discloses that there are 257,396 students enrolled in the Detroit Public Schools. Of this number 71.5% are black and 26.4% are white, while 2.1% is comprised of other ethnic groups. In the Detroit School System's regular K-12 program 247,113 students are enrolled, of which 71.4% are black and 28.6% is comprised of white and other ethnic groups. In the elementary schools, grades K-6, 141,806 students are enrolled, of which 72.3% are black and 27.7% is comprised of white and other ethnic groups. In the junior high schools, grades 7-8, 39,600 students are enrolled of which 73.0% are black and 27.0% is comprised of white and other ethnic groups. In the senior high schools, grades 912, 65,707 students are enrolled, of which 68.6% are black and 31.4% is comprised of white and other ethnic groups. (See Defendant Board of Education's Exhibit 6, page 4.) The racial composition of each region as of September 27, 1974, is reflected in the table next attached:

ETHNIC COMPOSITION

BY REGION

=============================================================================

===============================================

|

|

Racial-Ethnic

Distribution

|

|---------------------------------------------------

-----------------------------------------------

|

|

American

|

Asian

|

Black

|

Spanish

|

White and

| Total |

Indian

|

American

|

American

|

Surnamed

|

Others

| Student |-------------------|-------------------|-----------

--------|-------------------|------------------

Region | Membership | Number Percent | Number Percent | Number

Percent | Number Percent | Number Percent

-----------|-------------|-------------------|-------------------|-----------

--------|-------------------|------------------

1

| 24907 | 70

0.3

| 68

0.3

| 22486

90.3

| 234 0.9

| 2049 8.2

2

| 36972 | 121

0.3

| 93

0.3

| 22278

60.3

| 3450 9.3

| 11030 29.8

3

| 33723 | 22

0.1

| 50

0.1

| 23876

70.8

| 220 0.7

| 9555 28.3

4

| 36820 | 40

0.1

| 181

0.5

| 20414

55.4

| 145 0.4

| 16040 43.6

5

| 31354 | 7

0.0

| 16

0.1

| 30325

96.7

| 17 0.1

| 989 3.1

6

| 30796 | 37

0.1

| 48

0.2

| 19442

63.1

| 130 0.4

| 11139 36.2

7

| 24605 | 16

0.1

| 140

0.6

| 11114

45.2

| 88 0.3

| 13247 53.8

8

| 29725 | 4

0.0

| 26

0.1

| 28300

95.2

| 66 0.2

| 1329 4.5

City-Wide |

|

|

|

|

|

Schools |

8494 | 15

0.1

| 34

0.4

| 5883

69.3

| 107 1.3

| 2455 28.9

-----------|-------------|-------------------|-------------------|-----------

--------|-------------------|------------------

Total |

|

|

|

|

|

District | 257396 | 332

0.1

| 656

0.3

| 184118

71.5

| 4457 1.7

| 67833 26.4

-----------------------------------------------------------------------------

-----------------------------------------------

5. This court previously found that the population of the City of Detroit peaked in 1950 and since that year has been declining steadily at the rate of approximately 169,500 per decade. In 1950 Detroit's population constituted 61% of the total population of the standard metropolitan area; in 1970 it comprised but 36% of that figure. The black population in the City of Detroit has increased markedly from 1.4% of the city population in 1900 to 43.9% in 1970. 338 F.Supp. 582 at 585-86. The Detroit Board of Education's demographic expert testified, and we agree, that a current study of Detroit population trends indicates that as of 1975 the population of the City of Detroit is majority black.

6. On September 27, 1971 this court found that the decline in the percentage of white students in the Detroit Public School system during the period 1961-1970 was greater than the percentage decline of the overall white population in the city. At the same time the percentage of black enrollment in the Detroit school system increased at a greater rate than the overall general black population in the city during the same period. In the 1960-1961 school year there were 1107*1107 285,512 students in the Detroit school system, of which 130,765 (45.8%) were black. In the 1966-1967 school year there were 297,035 students in the system, of which 168,299 (56.7%) were black. In the 1970-1971 school year 289,743 students were enrolled, of which 184,194 (63.6%) were black. During the period between 1968 and 1970 the Detroit school system experienced a larger increase in the percentage of black students than any other major northern school district. The percentage increase in Detroit during that period was 4.7% as contrasted with a high of 3.2% in Boston and a low of 1.1% in Denver among other major northern school districts. (338 F.Supp. 582 at 586.) This court predicted in 1971 that, if present trends continued, the percentage of black students in the Detroit Public Schools would be 72% in the 1975-1976 school year, 80.7% in the 1980-1981 school year and, further, the system would be virtually 100% black by 1992. (338 F.Supp. at 585.) The record compiled during this remedial proceeding demonstrates that the predictions made by the District Court in 1971 were totally accurate, if not somewhat conservative.[1] During the past five years the black student enrollment has increased at an average of 2% per year, with a corresponding 2% decrease in the white student population during the same five-year period. At the elementary level the school system is presently 72.5% black and the trend toward a 2% annual increase has been positively identified.

7. There are presently 326 schools in the Detroit Public School System: 226 elementary schools, 56 junior high schools, 22 high schools and 22 specialized and primary schools. The system operates on a feeder plan, in which elementary students are assigned to specific junior and senior high schools. The geographic distribution of these schools, which are distributed throughout the city, reflects the Detroit School System's devotion to the neighborhood school concept.

The increasing black student enrollment in the Detroit Public Schools System, which is evident even in schools located at the city's boundaries, is demonstrated by the following tables reflecting significant increases in black student enrollment since 1969:

TABLE I
RACIAL DEMOGRAPHIC SHIFT 1969-1974 OF SELECTED SCHOOLS — DETROIT EASTSIDE
PERCENTAGE BLACK ENROLLMENT

School

Year 1969 1970 1971 1972 1973 1974

CARSTENS GUYTON HAMILTON HOSMER IVES LINGEMANN JACKSON J. H. ROBINSON M. S. 1108*1108

37.4 17.2 63.6
8.2 6.2 53.1 39.8
-

48.0 30.6 70.8 18.1 13.0 60.2 43.3
-

62.3 49.5 71.8 28.2 19.1 62.6 54.2 69.1

TABLE II

73.2 64.1 74.2 44.8 37.9 65.8 71.9 84.8

82.6 73.9 79.8 57.8 54.0 68.9 85.1 88.7

88.3 77.9 83.4 70.0 64.2 72.3 92.0 92.6

RACIAL DEMOGRAPHIC SHIFT 1969-1974 OF SELECTED SCHOOLS — NORTHEAST DETROIT

PERCENTAGE BLACK ENROLLMENT

Year

1969 1970 1971 1972 1973 1974

School

COOPER A. L. HOLMES CLEVELAND J. H. GREUSEL J. H.

59.0 72.1 79.6 86.6 93.2 95.3 68.8 71.6 74.9 69.5 73.6 75.9
TABLE III

85.7 96.3 74.3 78.5

86.9 97.8 75.9 82.2

90.3 98.5 79.4 81.4

RACIAL DEMOGRAPHIC SHIFT 1969-1974 ALONG WOODWARD AVENUE[*]

PERCENTAGE BLACK ENROLLMENT

Year

1969 1970 1971 1972 1973 1974

School

HAMPTON

68.8 75.1 60.7 70.6 75.3 81.5 TABLE IV

RACIAL DEMOGRAPHIC SHIFT 1969-1974 OF SELECTED SCHOOLS ON DETROIT'S NORTH SIDE
(BORDERING EIGHT MILE ROAD)

PERCENTAGE BLACK ENROLLMENT

Year

1974

1969

1970

1971

1972

1973

School

BOW

13.6

17.8

68.6

GREENFIELD PK.

32.3

38.2

54.0

MARSHALL

57.3

65.0

84.6

MASON

48.6

52.7

83.5

WINSHIP

50.1

70.4

97.7

CLEVELAND J. H. 68.8

71.6

79.4

FARWELL J. H.

63.3

67.8

82.4

GRANT J. H.[*] 21.7[*] 26.2[*] 27.8[*]

HAMPTON J. H.

68.8[*] 75.1[*] 95.5

PERSHING H. S.

57.7

63.8

85.6

1109*1109

TABLE V

27.9

44.7

41.1

46.2

69.3

75.1

61.6

69.7

89.8

93.3

74.9

74.3

68.4

68.0

29.7[*] 38.1[*]

97.1

73.1

81.0

57.4 50.7 81.7 77.2 96.2 75.9 73.9 41.4[*] 98.1 83.4

98.8

RACIAL DEMOGRAPHIC SHIFT 1969-1974 OF SELECTED SCHOOLS IN NORTHWEST-WEST AREA
OF DETROIT

PERCENTAGE BLACK ENROLLMENT

Year

1969 1970 1971 1972 1973 1974

School

BURNS CADILLAC CRARY DOSSIN FORD HERMAN McFARLANE NEWTON PARKER PARKMAN COOLEY H. S.

31.4 59.8 17.6 39.1
4.5 20.6 6.0 5.0 34.2 35.4 55.6 58.5 77.6 82.0 14.5 21.8 62.7 79.4 7.8 12.8 58.9 76.3
TABLE VI

80.0 73.5 40.9 16.8 51.8 66.4 89.9 27.8 88.1 29.9 94.0

90.0 75.3 61.9 34.2 70.0 73.9 93.9 45.1 95.1 47.8 97.4

94.5 90.9 83.0 64.0 84.3 79.3 95.7 66.9 97.0 68.4 99.3

97.1 94.4 89.1 80.8 89.6 85.8 96.5 76.9 97.6 78.3 99.6

RACIAL DEMOGRAPHIC SHIFT 1969-1974 OF SELECTED SCHOOLS IN DETROIT'S SOUTHWEST AREA

PERCENTAGE BLACK ENROLLMENT

Year

1969 1970 1971 1972 1973 1974

School
CRAFT ELLIS OWEN

88.4 66.9 69.5

86.8 71.6 70.8

84.3 74.0 68.7

92.1 72.5 67.4

91.7 77.0 71.5

91.3 83.8 79.5

Shifting demographic patterns in Detroit are reflected not only in schools that are 70% or more black, but also in those schools that, though not yet majority black, will be so within a short period:

TABLE VII

RACIAL DEMOGRAPHIC SHIFTS 1969-1974 IN SELECTED SCHOOLS ON DETROIT'S NORTHWEST
AND WEST SIDES Year

1969 1970 1971 1972 1973

School

EMERSON McKENNY COOLIDGE 1110*1110

3.6 3.6 3.0 5.1 5.7 10.3 1.3 2.1 5.1
TABLE VIII

8.5 22.2 13.8

27.7 38.4 30.1

RACIAL DEMOGRAPHIC SHIFTS 1969-1974 IN SELECTED SCHOOLS IN NORTHEAST DETROIT

Year

1969 1970 1971 1972 1973

School

GRANT LYNCH

21.7 26.2 27.8 29.7 38.1 10.4 6.7 12.8 18.0 30.9

1974
40.9 46.4 45.6
1974
41.4 47.8

Based on present trends, it is accurate to expect that the black enrollment of several schools on Detroit's northwest and east sides will be in excess of 70% black by the 1975-1976 school year:

School
BOW COFFEY

TABLE IX RACIAL DEMOGRAPHIC SHIFTS 1969-1974
PERCENTAGE BLACK ENROLLMENT Year
1969 1970 1971 1972 1973

1974

13.6 17.8 27.9 44.7 57.4 68.6 - 29.0 33.2 43.6 51.8 68.8

EDISON HOSMER

0.3 2.7 9.3 25.3 49.5 65.3 8.2 18.1 28.2 44.8 59.8 70.0

The Ford High School, whose attendance zone abuts Detroit's border, is located on Detroit's extreme northwest side. As indicated by the following table, Ford, presently 55% black, will in all likelihood be 60% black by the 1975-1976 school year if demographic trends continue:

TABLE X RACIAL DEMOGRAPHIC SHIFT 1969-1974 IN
FORD HIGH SCHOOL PERCENTAGE BLACK ENROLLMENT
Year 1969 1970 1971 1972 1973 13.4 20.0 30.5 40.3 48.2

1974 54.6

1111*1111 Based on current trends, the following schools, which have student population between 25% and 35% black, can expect to have substantial increases in black enrollment:

School
GOODALE MACOMB EMERSON J. H. MURPHY J. H. TAFT J. H.

TABLE XI

RACIAL DEMOGRAPHIC SHIFTS 1969-1974

PERCENTAGE BLACK ENROLLMENT

Year

1969

1970

1971

1972 1973

0.1 1.6 3.6[*] 6.5 0.3

0.7 2.8 3.6[*] 9.8 0.7

1.5

4.9

3.0[*]

8.4

12.7

2.4

4.0 14.9 8.1 21.0 19.9 30.6 6.3 20.1 12.8 21.0

1974
25.2 30.6 30.3 34.5

8. These tables clearly demonstrate the City of Detroit's changing demography and conclusively reflect significant increases in black student enrollment since 1969. The tables point out that schools that were as low as 4.5% black in 1969 had increased to as much as 89.1% black by 1974. The demographic patterns in Detroit reflect a large number of schools that are 70% or more black and it is apparent that many schools that are not yet majority black will become majority black within a short period of time. For example, Table VII above contains a sampling of schools located on the northwest side of Detroit that will experience a majority black school population within the coming school year. Similarly, schools located in the northeast section of Detroit that are presently 40-50% black will be majority black within the coming school year. If present demographic trends continue, schools that now have student enrollment ranging between 20 and 40% black can expect to have substantial increases in black enrollment. Although the Detroit school system as a whole is experiencing a 2% annual increase in black enrollment, the following table demonstrates that individual schools in many areas undergoing racial demographic shifts have experienced increases

in black enrollment that are as high as 16.9%. These shifting demographic patterns are rapidly changing Detroit's residential patterns; mixed residential areas may now be found in all parts of the city, including areas bordering the suburbs.

AVERAGE YEARLY PERCENTAGE RACIAL CHANGE IN SELECTED SCHOOLS
BETWEEN 1969-1974

PERCENTAGE BLACK ENROLLMENT

School

1969

1974

Average Yearly Percentage Change

Emerson Marshall Kennedy Herman Cooper Van Zile Parker Mason Lynch McKenny Coolidge Cerveny Winship Carstens Bow Ford Ives Hosmer Newton Edison Burns Guyton Parkman Dossin Cadillac Crary

3.6 57.3 64.6 55.6 59.0 46.9 62.7 48.6 10.4
5.1 1.3 51.5 50.1 37.4 13.6 34.2 6.2 8.2 14.5 0.3 31.4 17.2 7.8 6.0 17.6 4.5

30.6 84.6 93.1 85.8 90.3 79.7 97.6 83.5 47.8 46.4 45.6 97.5 97.7 88.3 68.6 89.6 64.2 70.0 76.9 65.3 97.1 77.9 78.3 80.8 94.4 89.1

5.4 5.5 5.7 6.0 6.3 6.6 7.0 7.0 7.5 8.3 8.9 9.2 9.5 10.2 11.0 11.1 11.6 12.4 12.5 13.0 13.1 12.1 14.1 15.0 15.4 16.9

9. The Board began to undertake steps to desegregate as early as 1970 and 1112*1112 was precluded from doing so only by the passage of Act 48 of the Michigan Public Acts of 1970 (Mich.Comp.Laws § 388.171) by the Michigan Legislature. The Board has followed the policy of transporting students to relieve overcrowding in such a manner as to promote desegregation. In the 1974-1975 school year the Detroit Board was able to increase the percentage of black students in many schools that previously were nearly all-white. The table next annexed demonstrates the dramatic increases in black student enrollment at various schools accomplished by such transportation:

PERCENTAGE BLACK ENROLLMENT IN SCHOOLS RECEIVING STUDENTS
TO RELIEVE OVERCROWDING

School
Northwest Area
Ann Arbor Trail[*] Burgess Carver[*] Dow[*] Harding Healy[*] Houghten[*] Leslie Lodge[*] Mann Weatherby Yost[*]
Northeast Area
Burbank[*] Hanstein[*] Marquette[*] McGregor[*] Pulaski[*] Robinson Trix[*] Wilkins

1974
Without Transportation

With Transportation

2 4
0 32
18 0 4
0 0
14 3
0

39 21
18 43
22 18 12
32 27
25 16 42

0 0 6 0 2
9 0
6

16 23 12 34 14
9 24
16

C. Plaintiffs' Plan

10. The plaintiffs' desegregation plan, submitted on April 1, 1975 pursuant to an order of this court and revised on April 30, 1975, was designed by Dr. Gordon Foster, Director of the University of Miami Title IV Desegregation Center. The plan as devised by Dr. Foster deals solely with pupil reassignment. The rationale and the ultimate goal of the plan are that, as far as possible, every school within the district must reflect the racial ratio of the school district as a whole within the limits of 15 percentage points in either direction. Dr. Foster admitted that the 15% figure was arrived at arbitrarily. Under Dr. Foster's definition any school whose racial composition varies more than 15% in either direction from the Detroit system-wide ratio is racially identifiable. Accordingly, an elementary school with 57.3%-87.3% black enrollment, a junior high school with 58.0%-88.0% black enrollment and a senior high school with 51.9%-81.9% black enrollment are desegregated schools. Carrying Dr. Foster's plan a step further, an elementary school that is 56% black is a racially identifiable white school and an elementary school that is 85% black is a desegregated non-racially identifiable school. (Plaintiffs' plan, page 7A.)
11. In developing plaintiffs' plan, Dr. Foster testified he explored the extent to which desegregation could be effected by each of the following commonly accepted techniques: redrawing zone lines between contiguous zones of differing racial composition, pairing schools within these zones, pairing non-contiguous zones, changing feeder patterns in affected schools, examining various building utilization techniques, use of temporary space and changing grade structures in particular buildings. Dr. Foster examined these alternatives in an effort to achieve his desired racial mix. Thereafter, he subdivided the system into five clusters with similar racial compositions, each comprised of a group

of high school constellations. (Plaintiffs' plan pages 3A, 4A.) Dr. Foster proceeded to alter the grade structures at particular schools within each cluster and schools within the clusters were then paired. The pairing of schools was accomplished by selection of all the "racially identifiable" white schools and the "racially identifiable" black schools in order of size and percentage of children by race. Thereafter, children in the newly created pairings were exchanged to achieve ratios conforming to Dr. Foster's definition of a desegregated school. The plan also created new feeder patterns for 1113*1113 junior and senior high schools that ultimately achieve a racial mix falling within the same parameters.

Plaintiffs' pupil reassignment plan does not include kindergarten and pre-kindergarten children; provision has been made for them to attend the school nearest their home, which in many instances necessitates changes in facility utilization. Under the plaintiffs' plan present high school juniors, although included in the pupil assignment process, are given the option of remaining at their present school and graduating there, assuming that to do so would not cause or maintain segregation. (Plaintiffs' plan page 5A.)

12. Under the plaintiffs' plan, not only are many students reassigned to elementary schools outside of their neighborhood for half of their elementary years but, as a result of the pairings and changes in feeder patterns into junior and senior high schools, many students will attend a school out of their home neighborhood for between eight and eleven years. See, e. g., plaintiffs' plan for Webster, Birney, Peck, Amos, Beard, Larned, Higginbotham, Glazier and McGregor schools. Under plaintiffs' plan only the racial ratio that could be achieved by a particular pairing was considered in the selection of schools for the pairings. Consequently, the plaintiffs' plan creates many problems relating to building capacity. For example, proposed enrollment exceeds school capacity at 18 junior high schools.[2] In addition, some elementary school pairings under the plan would result in overenrollment. While plaintiffs' plan attempts to minimize problems of capacity by creating "swing grades" with the variable assignments of the 6th, 7th and 9th grades, this technique results in undue disruption of grade structures. At the senior high school level, the plaintiffs' plan has avoided problems of capacity by assuming a dropout correction factor of .7069 for blacks and .9426 for whites and others. (Plaintiffs' plan, page 6A.) As a result, there would be 13,865 fewer blacks and 1,145 fewer whites in the three senior high grades than in the three junior high grades. However, no evidence was presented that justifies reliance upon such a dropout factor; consequently, capacity problems may be created by plaintiffs' plan at the senior high school level as well. Reliance upon a 30% dropout rate for black students at the senior high school level would disrupt the entire school system if the projected number of dropouts did not materialize. Moreover, even if such a statistic were supported by credible evidence, plaintiffs have not allowed for the possibility that the dropout rate would decline in a desegregated system.

13. We find that a large number of schools are paired solely to achieve a desired racial ratio in each of the paired schools. (Tr. Vol. 18, p. 45.) The arbitrary pairings devised in plaintiffs' plan necessitate the transportation of thousands of black school children many miles to schools that still remain 80% or more black. The following table demonstrates that various schools were included in plaintiffs' plan despite the fact that only insignificant changes occurred in their racial composition:

Plan Page

SCHOOL

1974

PROPOSED

1 McCulloch

99.7

14 Ilene

99.5

14 King

99.2

29 Duffield

99.2

8 Columbian

99.6

8 Columbian Primary 100.0

89.8 89.2 88.9 88.4 88.2 87.3

27 Bell

25 Marxhausen Primary

12 Ruthruff

5 Angel Primary

1 Joffe Primary

2 Sampson

27 Berry

13 Guest Primary

11 Noble

12 Herman

25 Campbell

30 Bunche

11 Sherrill

9 Parker

11 Courtis

24 Marshall

11 Barton

32 Tendler

30 Lingemann

1114*1114

Plan

Page

SCHOOL

99.7 98.8 99.2 98.8 100.0 99.7 99.8 97.5 98.8 85.8 100.0 100.0 99.9 97.6 99.6 84.6 100.0 95.3 72.3
1974

8 Ellis 15 Higginbotham 27 Keith Primary 30 Bellevue 28 Krolik 12 Alger 11 McFarlane 13 Cadillac
1 Woodward 4 Chaney 1 Roosevelt 9 Monnier 4 Goldberg 14 Dossin 2 Turner 4 Owen

83.8 100.0
99.6 96.7 100.0 100.0 96.5 94.4 99.9 98.3 99.9 97.0 98.9 80.8 99.4 79.5

87.3 86.8 86.5 86.4 86.3 86.1 85.8 85.7 85.5 85.4 85.3 85.0 84.7 84.6 84.6 84.4 84.2 83.6 83.4
PROPOSED
83.0 82.7 82.6 82.1 81.8 81.6 81.4 81.0 81.0 80.7 80.7 80.4 80.4 80.8 80.1 80.0

It is apparent that, for example, plaintiffs' selection of the Lingemann School was made solely because white students were needed for transfer to the Bunche School to accomplish plaintiffs' desired balance. Presently, the Lingemann School is 72.3% black and thus is a desegregated school by plaintiffs' definition. After application of plaintiffs' plan Lingemann School becomes 83.4% black. Lingemann was included in plaintiffs' plan irrespective of the fact that it is located in a naturally integrated neighborhood that has attained a measure of racial stability. The plaintiffs' plan groups the Craft, Ellis, Glazier and McKinstry Schools and transports 753 students; as a result, the Ellis School is reduced from 83.8% to 83.0% black. In the Carrie, Morley and Peck School grouping, the Carrie School is presently 58% black and thus not racially identifiable according to plaintiffs' definition. After transporting children, Carrie is reduced to 54.1% black; black students are bussed out of Carrie solely to be added to the black population at Morley.

In addition, after transporting thousands of students, there are a number of schools that are under or barely exceed the acceptable minimum percentage of black enrollment set by Dr. Foster. The following table demonstrates the racial mix achieved at selected schools:

Plan Page
5 10 21 16 13
6 7 22 31 31 6 1 17 19 13 23 6 20 10 10 23 9 23 27 3 19 22 13 3

SCHOOL
Amos Carver Richard Cooke Houghton Higgins Cary Trix Burbank McGregor Bennett Webster Larned Burt Yost Grayling Harms Law McColl Maybee Greenfield Union Everett White Clark Burton Holcomb Fleming Edison Beard

% Black
50.7 52.0 52.4 52.5 53.4 54.1 54.1 54.9 55.1 55.4 55.8 56.1 56.1 57.1 57.4 57.4 57.6 58.1 58.5 58.5 58.6 58.6 56.3 59.0 59.4 59.4 59.5 59.9 60.0

Groupings of schools with comparable racial ratios remain even after the application of Plaintiffs' plan. Schools containing enrollment over 80% black are grouped in a contiguous area and follow a consistent pattern. Similarly, schools with enrollment under 60% black are grouped in contiguous areas and follow an easily discernible pattern. (See Defendant Board of Education's Exhibit 10.)

14. The plaintiffs' reassignment plan requires the transportation of 77,303 children, of which 48,312 are elementary school children and 28,991 are junior high school children. Deducting 5,954 children presently being transported, plaintiffs have arrived at a total of 71,349 students requiring transportation under their plan as proposed.[3] Thereafter, plaintiffs use a factor of four daily round trips per bus with 66 pupils per bus and estimate that 271 additional busses would be required to effectuate their reassignment plan. (Plaintiffs' plan p. 7A.) There is no credible evidence 1115*1115 to support plaintiffs' assumption that every bus could be utilized to make four round trip runs. The plaintiffs' estimate of 271 buses is further dependent upon the unrealistic assumption of utilizing one pick-up point for 66 school children without consideration of the distances students would have to walk to arrive at the pick-up point. Moreover, their estimate does not consider the ethnic composition of any area surrounding a pick-up point.

Plaintiffs' present estimate of 77,303 students is not far below their 1972 estimate of 82,000 children requiring transportation. The most credible estimate of the number of buses required for plaintiffs' 1972 plan was 900. Expert testimony given in 1972 estimated that a school district could transport an average of 100 students for each bus in service. (Witness Kuthy, Tr. pages 122-124, book 2;

March 15, 1972.) Based upon this testimony, which was not challenged by plaintiffs, plaintiffs' plan would require the procurement of approximately 840 buses, including sufficient spares.
Accordingly, we find that the plaintiffs' plan involves the transportation of thousands of students, the great majority of whom would be transported from one predominantly black school to another predominantly black school, involves bus runs within the city of Detroit of up to thirty-eight minutes without taking account of time for loading and unloading and would result in many children spending between nine and eleven years in schools as far as five to twelve miles from their neighborhood.
15. The plaintiffs' plan, based upon a definition of racial identifiability as beyond a range of 15% from the system-wide racial mix, is rigidly structured. The plan does not consider the past or present demography of the Detroit school district, more particularly ignoring population shifts that have been occurring over the past decade. Moreover, the plan does not consider the possibility of resegregation in the City of Detroit. Although Dr. Foster testified that his plan purports to avoid the possibility of resegregation, this testimony is premised upon the assumption that after application of the plan there would be "no pockets where people can go." (Tr.Vol. 19, page 166.) There is no credible evidence in this record to justify the assumption that adoption of plaintiffs' plan would lessen the chance of resegregation within or without the city; Dr. Foster's testimony fails to take account of the developed suburban areas that circumscribe the city. Accordingly we find that the plaintiffs' plan does not include provisions for promoting racial stability and avoiding resegregation. We re-affirm the prior finding of this court that:
"It would be a natural, forseeable and probable consequence of the implementation of the Plaintiffs' plan that the trend of the Detroit schools towards a higher percentage of black students and a lower percentage of white students will be sharply accelerated." (Tr. March 14, 1972, pages 584-586.)
D. Detroit Board of Education Plan
16. The Detroit Board of Education submitted a plan that provided for transportation of approximately 51,000 students. Interwoven into the Board's plan is the provision for magnet schools at both the middle school and senior high school levels to aid in attaining maximum desegregation. The goals of the Board's plan include establishing maximum effective desegregation, removing racially identifiable white schools and promoting interracial understanding and respect in a diversified school district. The Detroit Board plan takes into consideration the demography of the Detroit School District and recognizes that the Detroit School System is now 71.5% black system-wide (72.3% black at the elementary school level). The Board plan acknowledges that since 1969, the school district population has declined from 293,859 to 257,396, which represents a loss of 36,463 students or a 12% 1116*1116 decline. During this five-year period, the black school population has increased by 3500 students and over 40,000 white students have left the system. Accordingly, only 67,833 white students are presently enrolled in the Detroit School System as compared with 189,563 black students.
Under the Board plan, the Detroit School System continues to operate on a feeder pattern. The pairings have been devised to provide that every child will spend at least a portion of his education in either a neighborhood elementary school or a neighborhood junior and senior high school. Although regional lines are crossed in a few instances the plan generally respects regional boundary lines, which were brought about by the State's attempt to decentralize the school system.
17. Like the plaintiffs' plan, the Board plan explores each of the commonly accepted techniques for desegregation. Like the plaintiffs' plan, the Board plan revamps grade structures at the elementary level by providing that some will accommodate K through 3 and others K plus 4 through 6 and thereafter pairs various schools, providing transportation between the schools so paired. Through

this process of pairing and clustering schools, the Board plan attempts to eliminate racially identifiable white elementary schools in Regions 2, 3, 4, 6 and 7. The reassignment plan desegregates the junior and senior high schools by changing the feeder patterns into the junior and senior high schools, but at the same time the plan attempts to respect the concept of high school constellations made up of neighborhood elementary schools and neighborhood junior high schools feeding into an area high school. Under the feeder plan realignment the senior high schools will be desegregated by September, 1976. Eight senior high schools will remain unaffected by the plan.
The Board plan attempts to achieve a 40%-60% black racial mix in the presently white identifiable schools. Although the Board purports not to strive for fixed racial quotas, we find that it in fact does so. In developing its plan the Board sought to determine the racial ratio that provided maximum desegregation while preserving racial stability. The Board concluded that a racial mixture between 40% and 60% black provided a healthy and stable racial mix. The Board's statistical data demonstrates that where elementary schools in a high school constellation range from 75% to 95% black, the high school generally is 95% to 100% black: White students simply leave the system by the time they reach high school. Similarly, the statistical data establish that a racial mixture that does not exceed 60% black provides a degree of stability. Some of the pairings selected by the Board plan, particularly in Region 2, fall below the goal set by the Board only because of the high percentage of Spanish-speaking students in these schools, which ranges as high as 20% in some instances. To accommodate this factor the Board permitted the percentage of black students to fall below their target for racial mix.
18. The Detroit Board's pupil reassignment plan does not affect the schools in Regions 1, 5 and 8; each of these three regions will remain over 90% black. The basic premise of the defendant Board's plan is to eliminate all of the schools with black enrollment below 25% and bring them to the level of 40-60% black. These schools are located largely on the outer fringes of the city. The plan leaves untouched 95 schools, most of which are between 95-100% black and are located within the inner city.[4] Under the defendant Board's plan many 1117*1117 schools will operate over capacity, while some schools in the inner city will have substantial capacity available. The Board decided to leave 95 schools untouched principally because the Board found it impractical to desegregate the student bodies of these schools "without undue hardship of long distance travel." The Board's plan acknowledges that there are too many black students in the system to provide all of them with a desegregated experience while at the same time maintaining stability.
19. The pupil transportation portion of the Detroit Board plan anticipates the daily transportation of approximately 51,000 children between paired schools. The evidence suggests the need for a fleet of busses ranging between 335 and 425 66-passenger vehicles. The defendant Board has suggested that each bus would make two or three runs per day. (Defendant Board's Exhibit 28.) However, as indicated above with respect to the plaintiffs' plan, credible evidence has not been presented by either party to aid the court in making an accurate determination of the number of busses needed to transport this vast number of children. The Detroit Board lacks the experience needed to manage a transportation fleet and does not have available the appropriate data needed to devise an efficient transportation system. This court found it necessary to instruct the Detroit Board to produce a sufficient data base to permit a computer print-out of a grid showing the exact racial composition of the student population in any particular area. Such data are necessary to develop an efficient transportation scheme. Moreover, when such data are available there will be no justification for transporting children into an area without consideration of the ethnic composition of that area.
Transportation under the defendant Board's plan involves much shorter distances than the plaintiffs' plan. School pairings were made to allow transportation routes along major thoroughfares.

20. In addition to reassigning pupils between paired schools the Detroit Board's plan includes a provision to continue certain magnet schools. Pursuant to an order of this court on December 3, 1970, each of the eight regions created a magnet school, relying upon voluntary attendance. Although these magnet schools did not reach the racial mix sought by either the plaintiffs or the defendant Board, they did serve to provide some degree of desegregation.
The Board plan also provides for the creation of four vocational high schools, specializing in medical science, transportation, construction and the commercial arts. These four vocational schools will operate under an enrollment controlled to simulate the system-wide racial composition. In addition, the Board's plan creates two technical high schools with enrollment open to students throughout the entire school system and creates city-wide high schools with specialized curricula. The enrollment of these schools will be controlled to conform to the system-wide racial ratio. The vocational, technical and city-wide schools are designed as magnet schools to attract students from throughout the school system as a means of further desegregating the school system.
The Board plan further suggests that four co-curricular programs be implemented on a city-wide basis in order to provide additional children with a desegregated school experience. These programs would include music education, art, physical education and athletics. (Board plan page 30.)
Finally, the Board plan suggests the creation of cultural junior high school consortia designed to provide students from substantially black majority schools with an opportunity to spend part of their academic week with white students from other schools in various cultural centers in the greater Detroit area. The Board proposes that these classes be held at the Art Institute, the Detroit Public Library, the Merrill Palmer Institute, 1118*1118 Wayne State University, Shaw College and Lewis Business School.
E. Educational Components
21. In addition to the vocational and career education and the junior high consortium the plan submitted by the Detroit Board includes the following educational components:
a. In-Service Training b. Guidance and Counselling c. School-Community Relations d. Parental Involvement e. Student Rights and Responsibilities f. Testing g. Accountability h. Curriculum Design i. Bilingual Education j. Multi-Ethnic Curriculum k. Co-curricular Activities
The plan as submitted by the Detroit Board does not distinguish between those components that are necessary to the successful implementation of a desegregation plan and those that are not. Moreover, the defendant Board's plan does not inform the court of the extent to which any of these components may currently be in effect in the Detroit public school system; nor did the Board, either through its plan or through expert witnesses, provide the court with information adequate to permit the court to evaluate the budgetary requests made for each of the components. Accordingly, the court found it necessary to obtain a report from Dr. Louis Monacel outlining the extent to which any or all of these components currently exist in the Detroit School System. (See "Comparison of

Existing Personnel, Programs, and Activities with the Personnel, Programs and Activities Required in the Detroit Public Schools Desegregation Plan.") The court also found it necessary to seek an evaluation of each of these components from Dr. Michael Stolee, one of the plaintiffs' expert witnesses. Finally, the court found it necessary to obtain additional information from its courtappointed experts to permit a proper evaluation of each of the components proposed in the Board plan.
22. We find that the majority of the educational components included in the Detroit Board plan are essential for a school district undergoing desegregation. While it is true that the delivery of quality desegregated educational services is the obligation of the school board, nevertheless this court deems it essential to mandate educational components where they are needed to remedy effects of past segregation, to assure a successful desegregative effort and to minimize the possibility of resegregation. In a segregated setting many techniques deny equal protection to black students, such as discriminatory testing, discriminatory counseling and discriminatory application of student discipline. In a system undergoing desegregation, teachers will require orientation and training for desegregation. Parents need to be more closely involved with the school system and properly structured programs must be devised for improving the relationship between the school and the community. We agree with the State Defendants[5] that the following components deserve special emphasis: (1) In-Service Training; (2) Guidance and Counselling; (3) Student Rights and Responsibilities (see this court's order, June 13, 1975); (4) School-Community Relations-Liaison; (5) Parental Involvement; (6) Curriculum Design; (7) Multi-Ethnic Curriculum; and, (8) Co-curricular Activities. Additionally, we find that a testing program, vocational education and comprehensive reading programs are essential. We find that a comprehensive reading instruction program together with appropriate remedial reading classes are essential to a successful desegregative effort. Intensified reading instruction is 1119*1119 basic to an educational system's obligation to every child in the school community (Tr. Vol. 19 pp. 40-41; Vol. 22, p. 47). Finally, the court finds that an effective court-oriented monitoring program is necessary for effective implementation of a desegregation plan to assure that delivery of educational services will not be made in a discriminatory manner.
F. School Financing
23. The Detroit School District receives operating funds by levying a property tax, a portion of which is voted by the electors of the school district and a portion of which is allocated by the Wayne County Tax Allocation Board from the 15 mills constitutionally authorized to be levied without a vote of the electorate. The school district cannot levy additional millage without a favorable vote of the electorate. The Detroit School District presently levies 22.51 mills for operating purposes and 2.25 mills to finance a prior $68 million deficit (pursuant to Public Acts 1 and 2 of 1973), a total of 24.76 mills. This tax effort produces approximately 38% of the school district's total budget. State aid comprises 47% of the total budget. The State aid formula is based upon the number of students in the school district and upon the State Equalized Valuation (SEV) of property in the district. Additional state aid is provided by special grants in the form of entitlement and competitive funds. Federal funds provide the remaining 15% of the budget. (Tr. Vol. 7, pp. 87-95; Vol. 25, pp. 106-107.)
24. The State School Aid Act contains a formula designed to equalize revenues among school districts to the extent that disparities are the result of differences in SEV per pupil among districts. Over the preceding five-year period Detroit's State Equalized Valuation (SEV) has remained relatively static while the SEV in the remainder of the state generally increased. This trend can be explained by the movement of industry, commercial institutions and people to the suburbs and the huge amounts of land used for expressways in Detroit, which remove the property from the city's tax rolls.

Because the per capita State Equalized Valuation in Detroit is 50% lower than the average for the 20 largest cities in Michigan, the school district must levy additional millage to obtain a yield equal to that of the other cities. (Tr. Vol. VII, p. 108, Defendant Board's Exhibit 31.) Because of legislation directed specifically to the Detroit School District, it is required to operate on a balanced budget and must file monthly reports with the State Auditor General. See Mich.Comp.Laws Sections 388.12381240.
25. The total of all municipal taxes paid by Detroit citizens translates into a municipal millage equivalent of 84.83 mills. This is the highest tax burden in the state and is 55% higher than the state average. Only 16 cities in the State of Michigan levy an income tax; among them, Detroit's rate is the highest. However, Detroit's per capita income tax yield is substantially lower than the other 15 cities. Moreover, county taxes paid by Detroit citizens are 14.4% higher than the state average, and Detroit municipal taxes are 14.6% higher than the state average.
Detroit taxpayers also have the highest municipal overburden in the state. (Defendant Board's Exhibits 30, 33 & 41.) The State offers assistance to school districts whose municipal overburden (i. e. the total property tax rate in the district excluding the amount levied for school operating purposes) exceeds 125% of the state average (Bursley Act, Mich.Comp.Laws Section 338.1125). The Act is designed to aid school districts throughout the state that are unable to raise sufficient tax revenues because their taxpayers refuse to approve higher millage requests in the face of numerous other taxes imposed on the district by other local taxing authorities. (Tr. Vol. 7, pp. 103-104.) Presently, the municipal overburden section of 1120*1120 the Act is only approximately 28% funded by the Michigan Legislature. If the section were fully funded, the Detroit school district would receive an additional $61,682,000; if it were 50% funded during the 1974-75 school year, the school system would have received an additional $18,787,000. (Tr. Vol. 7, pp. 116-120.) Thus, the State does not supply the Detroit school district with as much money as the Act provides.
26. The power equalizing section of the State School Aid Act guarantees that, subject to certain conditions, each school district will have available $975 per student. If local tax revenue is insufficient to generate this amount, state aid will fund the balance. Complete funding of the balance, however, is contingent upon a local school district millage levy of 25 mills for operating purposes; where a school district levies a lesser amount, state aid is reduced proportionately. While 2.25 mills of Detroit's levy goes to debt retirement rather than operating purposes, the entire 24.76 mills is counted in the formula for state aid. However, state aid does not provide operating revenue to replace the 2.25 mills used for debt retirement. Thus, the 24.76 levy produces operating revenue of only $916 per student in local taxes and state aid. (Tr. Vol. 7, pp. 93-107.)
The Wayne County Tax Allocation Board allocates .64 mills to the Detroit School District, which is passed on directly to the Detroit Library Commission. Since the majority of school districts in Wayne County receive 8.65 mills from the Tax Allocation Board and Detroit receives only 8.01 mills exclusive of the library allocation, this additional .64 mills should be counted in the State Aid calculation; however, it is not. If it were, the district would have a total levy of 25.40 mills and thus would be entitled to the maximum state aid guarantee under the power equalizing section of the Act.
The Detroit School District's millage levy of 24.76 mills is slightly below the state average of 26.15 mills. However, when this millage levy is added to all other taxes assessed against a Detroit taxpayer, the tax burden is greatly in excess of the state average. (Tr. Vol. 7, p. 104; Vol. 24, p. 147.) This burden has caused Detroit taxpayers to reject requests for additional millage. Seven of the ten millage elections over the past eight years have failed. Of the three successful votes, one approved replacing a 1% income tax that the School Board was authorized to levy pursuant to Public Acts 1 and 2 of 1973 with a 7 mill property tax; another merely renewed an already existing 7.5 mills for an additional ten years. (Defendant Board's Exhibit 40; Tr. Vol. 24, pp. 143-144, 150-151; Vol. 7, p.

140.) It can be reasonably expected that the already heavy burden upon Detroit taxpayers will cause them to reject further requests for millage increases in the near future.
27. The cost of education is a function of the size of the system and the Detroit School System, with an enrollment of 257,000 students, is the largest school district in the State of Michigan. Moreover, the fact that Detroit's ranking for per pupil expenditure is above the state average is insignificant because per pupil educational costs are greater in urban areas. Additionally, the drop-out rate in the Detroit School District has been increasing over the past ten years; the reduction in enrollment results in less State aid under the pupil membership formula of the State Aid Act at the same time that the cost of delivering educational services is increasing.
28. Prior to a 1971 legislative enactment, the Detroit School District did not receive any State reimbursement for in-city transportation expenditures, even though reimbursement was provided to rural and suburban school districts. (Tr. Vol. 24, pp. 103-105.) The Detroit School District first received an allocation for transportation in the 1973-74 school year, which was based on costs expended during 1972-73. However, 1121*1121 unlike other districts, which were reimbursed for 75% of their transportation expenditures, Detroit was reimbursed for only 92% of the 75% permitted under the Act. Moreover, reimbursement for the Detroit School District was based upon the Wayne County average transportation costs of $47.00 per pupil, while the Detroit School District actually expended $185.00 per pupil. Consequently, Detroit was reimbursed for only $288,770.39 of the $1,857,367 expended for transportation in 1972-73, and $469,981.15 of the $2,696,133 expended for transportation in 1973-74. That Detroit's transportation costs are so high may be explained by several factors. First, transportation costs are necessarily greater in urban areas than in rural or suburban areas. Second, because Detroit received no in-city transportation reimbursement whatsoever prior to 1971, Detroit does not have its own bus system and is forced to rely on more costly chartered buses to transport elementary and junior high school students. Third, Detroit is required to subsidize bus tickets for indigent high school students, which, in the long run, is also more costly than operating a transportation system. (Tr. Vol. 24, pp. 107-123; Vol. 25, pp. 19-20.)
G. Faculty Assignments
29. The teacher population in the Detroit School District is 49.5% black. After having established convincingly that fixed racial ratios for pupil reassignments destroy stability, the Detroit Board desegregation plan suggests a scheme for teacher reassignments that achieves a 50-50 black-white racial mix in every school in the district. This approach is overly simplistic. It fails to take account of the qualifications of a teacher to teach the subject and grade level, the necessity of balancing schools with respect to teacher experience and the necessity of considering the sex of the teacher, all of which are necessary ingredients for quality desegregated education. To seek a fixed racial mix, without more, is undesirable and arbitrary.
Witnesses have acknowledged that the 50-50 racial quota for every school in the district was inserted in the Board's desegregation plan for the purpose of making the district eligible for Emergency School Aid Act (ESAA) funds. However, the parties did not produce credible evidence that Federal funding was denied because of improper faculty distribution rather than because of poorly documented Board applications for such funding. Nor did the parties produce evidence of the Federal requirements for teacher assignments in a desegregated system. We note that 45 CFR 185.44(d)(3) does not require a fixed racial quota for every school:
"(3) In the case of ineligibility resulting from discriminatory assignment of teachers as prohibited by 185.43(b)(2), such applications for waiver shall contain evidence that such agency has assigned its full-time classroom teachers to its schools so that no school is identified as intended for students of a

particular race, color, or national origin. Such non-discriminatory assignments shall, in the case of a local educational agency implementing a plan descripted in 195.11(a), conform to the requirements of such plan with respect to assignment of faculty. In the case of local educational agencies not implementing such a plan, or implementing such a plan which contains no provision as to assignment of faculty, such assignments shall be made so that the proportion of minority group fulltime classroom teachers at each school is between 75 percentum and 125 percentum of the proportion of such minority group teachers which exist on the faculty as a whole." (Pending proposal per 40 Fed.Reg., No. 61 part III, 14173, March 28, 1975.)
It is apparent from the quoted regulation that a school district that has been 1122*1122 found guilty of segregation of staff and that is not yet subject to a court desegregation order may apply for a waiver of disqualification by making assignments "so that the proportion of minority group full-time classroom teachers at each school is between 75 percentum and 125 percentum of the proportion of such minority group teachers which exist on the faculty as a whole." Thus, a school district with approximately 50% minority that has been found guilty of segregation of staff may qualify by demonstrating teacher assignments that conform to 37.0% to 62.0% black. However, the Detroit School System has never been found guilty of de jure staff segregation.
The plan submitted by the plaintiffs does not contain any proposal dealing with faculty reassignment; plaintiffs concluded their critique of the faculty reassignment provision in the Detroit Board's plan by stating that they had no desire to resolve collective bargaining disputes unless and until they interfered with constitutional rights of pupils. Notwithstanding this stated position, the only evidence produced in this record concerning teacher reassignments was presented by the plaintiffs, who made reference to Defendant Board Exhibit 6. This exhibit includes summaries of the identification of educational personnel by race. Educational personnel consists of more than just teaching staff; it also includes principals, department heads, counselors, library personnel, audio-visual personnel, school-community agents, etc. Thus, whatever correlations plaintiffs draw from this data is incompetent evidence of faculty segregation.
There is certainly insufficient evidence in this record to justify a finding that the ordinary administrative and collective bargaining processes of the parties will not satisfy the necessity of having a proper racial mix among the teaching staff of the school district. Moreover, when this court's desegregation order is implemented the necessity of additional teacher transfers on a desegregated basis will become apparent. There is sufficient time for this court to obtain proper and adequate evidence to determine what orders will be essential to achieve a plan for complete desegregation of pupils, faculty and staff.
IV. CONCLUSIONS OF LAW
A. General Analysis of Both Plans. The plaintiffs' and defendant Board's desegregation plans employ the same general techniques for desegregating the Detroit School System. Both plans pair and cluster schools, fracture grade structures and change feeder patterns of the affected schools. The pairings involve the exchange of one-half of the student population from one school with one-half of the student population of the other. Moreover, both plans provide for massive bussing.[6] Although employing similar methods for desegregation, the parties differ as to what constitutes desegregation, each asserting that his plan is more "feasible", "workable", "effective" and "realistic." These, of course, are proper criteria for testing an acceptable plan. Green v. County School Board,391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
Plaintiffs' approach to desegregation was devised by Dr. Gordon Foster, Director of the University of Miami Title IV Desegregation Center. Dr. Foster began by devising an arithmetical ratio for defining a

racially identifiable school. Under his definition, any school that varies more than 15% in either direction from the system-wide racial ratio is racially identifiable. Plaintiffs' plan thus accepts as desegregated any elementary school that ranges between 57.3% and 87.3% black, any junior high school that ranges between 1123*1123 58% and 88% black and any high school that ranges between 51.9% and 81.9% black. The plan divides the system into five clusters. Racially identifiable black and white schools within each cluster are paired and one-half of the student body of each is transported between the schools. To accommodate school reassignments, grade structures are altered at all schools. Additionally, all feeder patterns are changed to accomplish desegregation of the junior and senior high schools. The plaintiffs' plan does not include any component other than student reassignment.
Unlike the plaintiffs' plan, which proposes to bring every school in the district within 15 percentage points of the system-wide racial mix, the goal of the Detroit Board's plan is to eliminate only the racially identifiable white schools, which are located largely in the outlying sections of the city. Approximately one-half of the district's 218 elementary schools will not be touched by the plan. The Board has determined that a school that has 75% or more of one race is racially identifiable. The Board's plan seeks to attain a 40% to 60% black enrollment in each school involved in the plan, although the presence of Spanish-speaking students, especially in Region Two, brings black enrollment below these percentages in some schools.
The Board's plan affects approximately 55% of the total student enrollment, or approximately 141,554 students (State critique, p. 7) and requires transportation for 51,000 students over relatively short distances. The plan gradually changes the racial ratios of the students in the junior and senior high schools by altering feeder patterns. The Board's plan generally respects regional boundary lines and does not affect three of the district's eight regions.
As an integral part of the pupil reassignment portion of its plan, the Board seeks to continue the operation of one magnet school in each region. The plan also creates a junior high school consortium and co-curricular programs to achieve desegregation at this level. Moreover, the plan provides for the establishment of four city-wide vocational high schools and two additional technical high schools that will have enrollments controlled to conform to the system-wide racial ratio. Additionally, the Board's plan contains several educational components, which involve every school in the system.
B. The Plaintiffs' Plan. Our first objection to plaintiffs' plan is that it is too rigidly structured. It controls the entire educational life of a child. Not only does the plan reassign elementary children miles from their neighborhood schools, but because of new feeder patterns into junior and senior high schools many students will attend schools many miles from their home for eight to eleven years of their school life. Generally, courts have approached desegregation problems with flexibility, recognizing, as they must, that they are dealing with constitutional and equitable rights of children. Plaintiffs' plan will not permit such flexibility. It does not take account of demographic trends or population proportions, black or white. As an inevitable consequence, most schools are 75-85% black. Once implemented, it would identify the entire school district as black.
The plan's sole purpose is to achieve a racial mix within 15% of the system-wide ratio in every school in the district. We reject plaintiffs' contentions that this is the only method that will desegregate the Detroit School System, that their plan eliminates racially identifiable schools and that their plan can be implemented immediately. While plaintiffs' plan increases the percentage of blacks in formerly racially identifiable white schools, this could be accomplished as well by a more flexible plan. Nor does plaintiffs' plan eliminate all racially identifiable schools; it is clear to us that a school that is 85% black, although within plaintiffs' parameters, is a racially identifiable

black 1124*1124 school. Further, as will be demonstrated, there are serious obstacles to immediate implementation of plaintiffs' plan.
The basic fallacy underlying plaintiffs' contentions, and the principal source of their plan's rigidity, lies in their definition of a desegregated school. While plaintiffs argue that any school within 15% of the system-wide racial mix is desegregated, the black-white population in the school system is so disparate that these parameters range from 56.4% to 86.4% black. Clearly, it is unreasonable to conclude that, without examining anything more than the system-wide racial composition, a school that is 55% black is a racially identifiable white school. Equally clearly, it is absurd to label a school that is 85% black as "desegregated" merely because it falls within 15% of the system-wide racial mix. To do so renders the concept of racial identifiability meaningless. While the Supreme Court has approved the use of mathematical ratios in formulating school desegregation plans, it has approved them only as "a starting point in the process of shaping a remedy." Swann v. Board of Education, 402 U.S. 1, 25, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971). Moreover, the Court noted that "[t]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole." Swann v. Board of Education, supra, at 24, 91 S.Ct. at 1280.
Further evidence of the rigidity of plaintiffs' plan is found in the fact that, even after transportation, many schools are left 80% or more black. These schools are not scattered at random throughout the system but are clustered in the predominantly black center of the city. See defendant Board's Exhibit 10. Another element of rigidity is the arbitrary selection of pairings in the plaintiffs' plan. Pairings within each cluster were made solely on the basis of the racial composition of the paired schools; in making the pairings, the plaintiffs did not consider the demography of the school district. Consequently, students are often bussed past a nearby 85-100% black school and are transported to another 85-100% black school further from their homes. To do so serves no useful purpose and merely increases travel distances. After all this effort, plaintiffs' plan still leaves the majority of schools racially identifiably black.
Finally, many pairings result in pupil assignments in excess of stated school capacity. For example, the proposed enrollment of 18 junior high schools exceeds capacity. At the senior high level, the plaintiffs' plan avoids over-capacity only by assuming a correction factor for dropouts that projects 13,865 fewer blacks in grades 10 through 12. There is no justification in this record for assuming such a dropout rate for blacks. Records are not available to reflect the race of dropouts, and moreover during the 1973-1974 school year only 9,925 ninth through twelfth grade students dropped out of the system. Plaintiffs' plan further attempts to remedy the problem of over-capacity through the use of the sixth, seventh and ninth grades as "swing grades." Students in a "swing grade" could be reassigned to any school having capacity. However, there is insufficient justification in the record to conclude that use of "swing grades" will solve the problem of over-capacity. In any event, "swing grades" create a greater burden upon the children involved and increase the amount of transportation necessary to effect plaintiffs' plan.
Our second objection to the plaintiffs' plan is that while it involves extensive bussing, it produces only negligible desegregative results. Plaintiffs' plan itself is a positive pronouncement that the disparate black-white ratio in this district precludes appreciable desegregation. After transporting 77,000 to 81,000 students, plaintiffs' plan accomplishes only an insignificant reduction in the black population of the vast majority of 1125*1125 Detroit schools. If the white population were predominant, plaintiffs' plan could achieve desegregation. Under the practicalities at hand, however, plaintiffs' plan is unsatisfactory because it does not distinguish between bussing black students to majority black schools and majority white schools. As a consequence, it casts a heavy and unnecessary burden upon the black students, notwithstanding the fact that the remedy to be fashioned is to bestow upon them benefits that were denied in the past. Black students are being asked to travel great distances to attend another conspicuously majority black school. The purpose of plaintiffs' plan is

unexplainable to the children who are bussed many miles to a school with a racial composition not much different from the composition of their neighborhood school. Plaintiffs' plan could not find the acceptance in the black community necessary to the success of a desegregation plan. Moreover, the cost of the number of busses needed to effect plaintiffs' plan would financially cripple the Detroit School System, which has been operating on a survival budget for the past few years. Although the plaintiffs suggest that only 271 busses would be needed to implement their plan, we have concluded that 840 busses is a more appropriate estimate. Further, the plaintiffs ignore the fact that the Detroit School System does not presently possess the expertise to manage, route, maintain and store such a large fleet of busses. Although the Detroit School District has in the past bussed as many as 14,400 students to relieve overcrowding, to accommodate dangerous crossings or to transport students excessive distances, such bussing has been accomplished haphazardly through the use of chartered city transportation. Moreover, the record disclosed that the Detroit School Board has not yet formulated bus routes to accommodate a transportation plan. It is no answer that testimony was presented to the effect that certain school system personnel could devise the routes in a relatively short period of time; it is equally apparent from the record that their expertise to do so is questionable.
The establishment of such a vast transportation network would bring chaos and financial destruction to the school system, with the main result of bussing black children to majority black schools. In the final analysis, plaintiffs' plan results largely in isolating minority students in concentrated minority schools, changing only the location of the school that each student attends. Moreover, the price for this insignificant change is the severe burden of massive transportation. The Constitution does not require that such an extraordinary and costly remedy be applied where it produces only negligible desegregative results. If such an extraordinary remedy as bussing is to be employed, it should be used to bus black children to white schools, not to schools that are predominantly black. The use of such a remedy in these circumstances contains all of the seeds for resegregation, which this court has stated must be avoided at all costs.
C. The Defendant Board of Education Plan. The Detroit Board of Education, unlike the boards in other school desegregation cases, is willing to assume its constitutional duty to desegregate the Detroit School System. The President of the Board and the members of the bi-racial administrative staff have convinced the court they will willingly implement any desegregation order the court may issue.[7] Persuasive evidence of assured cooperation from the Board and General Superintendent lies in the fact that they have promptly complied with each and every order of this court. Pursuant to an order of the court, the Board timely submitted 1126*1126 a comprehensive desegregative plan; they did not choose to rely upon a "free choice" plan or other methods that provide part-time desegregation. In addition to many educational components and other desegregative devices, the plan includes massive bussing for permanent reassignment of students. Moreover, the attorney for the Board has persistently assured the court that the Board would willingly implement any plan the court may order. The Board has vehemently argued that since the primary responsibility for bringing forth a constitutional desegregation plan rests in the hands of a local school board [Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Davis v. School District of City of Pontiac, Inc., 443 F.2d 573, 577 (6th Cir. 1971)], other plans should not be considered for implementation by the court. We were persuaded, however, that a desegregation plan must be considered in light of all available alternatives. Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L. Ed.2d 716 (1968).
Notwithstanding the Board's cooperative disposition, we perceive from the evidentiary hearing and from information furnished to the court both by the Community Relations Service and our own courtappointed experts that the plan adopted by the Board is a compromise taking into account many divergent views. In January 1975, before this court's order to submit a desegregation plan, the Board created the "Office of Desegregation" to prepare a desegregation plan. This Office was staffed by many people with divergent views. The vote to approve the final plan was 9 to 4, split along racial

lines. Competing factions within the Board together with their followings have held widely differing views on desegregation. Throughout the remedial hearing, there was excessive speculation concerning what the court would mandate as constitutionally required for desegregation.
As a consequence, the plan as submitted was not well documented. The plan did not inform the court of the extent to which any of the programs suggested exist in the school district at the present time. Nor did the plan present alternatives to the pairings and clusters suggested. Therefore, the court deemed it necessary to commission its experts to obtain information necessary to evaluate the suggested educational components. The court further commissioned its experts to present additional alternatives to the transportation component contained in the plan in order to evaluate the constitutionality of the plan as submitted by the Board.
Having considered the alternatives in light of all the "practicalities" at hand, we conclude that the Board's goal of desegregating by eliminating racially identifiable white schools meets constitutional standards for desegregating the Detroit School System. Moreover, we approve the Board's view that the plan must include educational components allowing for further desegregation and assuring a successful desegregative effort. However, the plan taken as a whole is not free from objection. While disavowing any attempt to adhere to fixed racial ratios for each school, the Board's plan does just that. The Board sought to determine the racial mix that provides the greatest degree of meaningful interaction between the races while at the same time providing reliable assurances of stability. Having established that schools in the 40-60% range have not been changed by demographic shifts, the Board sought to impose this ratio (which is in reality 50%-50% plus or minus 10%) on all of the schools involved in its plan.
Rigid adherence to racial percentages is not only undesirable but constitutionally infirm. Racial percentages may be used as a starting point in formulating a remedy, but it is essential that all of the critical circumstances apparent in a particular school district be afforded proper weight. Swann v. Board of Education, supra. It would be simplistic to assume that the mere adherence to racial quotas is sufficient 1127*1127 to counter the pervasive effects of years of segregation. Because of inflexibile adherence to these percentages, some of the Board's school pairings are made without regard to the facts at hand. For example, some of the Board's school pairings include schools that are located in bi-racial residential areas and have become desegregated naturally. To bus white or black children from these schools is to employ transportation solely to accommodate a racial count. Such transportation serves no desegregative purpose and should be avoided by the Detroit Board. Where a school already satisfies the definition of a desegregated school, it should not be included in a transportation plan.
Thus, while we accept the Board's rationale of providing desegregation by eliminating the racially identifiable white schools, we must reject the Board's plan itself because, like the plaintiffs' plan, it is too rigidly structured, seeking to obtain fixed quotas through massive bussing, and fails to take account of the "practicalities." Additionally, the Board's plan is objectionable in that it fails to consider techniques for changing the racial compositions of schools that do not involve transportation. Borderline schools are paired in the Board's plan even where re-zoning across regional lines might suffice to produce desegregation without transportation. Re-zoning is preferable to bussing because it reduces transportation, permits walk-in schools and serves bi-racial neighborhoods. Rather than pair schools and transport students, the Board should first exhaust the possibility of restructuring attendance zones. Where capacity permits, one-way bussing might also reduce the amount of transportation needed to desegregate.
The Board's plan is further objectionable in that it needlessly changes the grade structures of schools involved in the plan. It seems to us that traditional grade structures such as K-5, 6-8 and 9-

12, which are preferable because irregular grade structures hamper school curriculum offerings, can be achieved.
Moreover, we are not convinced that the choice of schools involved in the pairings was not influenced by political considerations unrelated to the effect of the individual pairing on desegregation. In order to detail our concern, we must take account of the structure of the Detroit School System. The decentralized system was conceived to afford an opportunity for the community to exercise greater control over its school system; however, decentralization as practiced in Detroit has not truly accomplished this goal.
Pursuant to Act 48 of the Michigan Public Acts of 1970 (Mich.Comp.Laws 388.171 et seq.), the Detroit School System is divided into eight regions, each of which is permitted a vast amount of autonomy. Each region has its own board of education selected by the people within the region. The board member receiving the most votes not only is elected chairman of the regional board but also is a member of the central Board of Education. Thus, eight of the thirteen seats on the Central Board are occupied by regional chairmen. It is obvious that through political maneuvering, the eight regional chairmen can combine to promote regional interests at the expense of the over-all interests of the school system. Thus, desegregation could be hampered through the political maneuvering of the regional board members combining to promote merely regional interests. Since the regional members constitute a majority of the Board, there is no way to ensure that the interests of the entire school system can be advanced.
We are unable to perceive from the Act a legislative intent to create the structure that in fact developed in the Detroit Schools. Rather than decentralizing to disperse bureaucratic authority, the Detroit Schools have developed another completely bureaucratized political institution: the regional boards of education. As originally conceived, the 1128*1128 legislature envisioned "community centered schools", not separate independent bureaucracies substituting for a larger one. Moreover, the present structure of the system frustrates the achievement of educational goals common to all schools throughout the system. The system is no longer a top-to-bottom command educational organization. What has impressed this court as a competent, dedicated staff at the top lacks the means of assuring that its orders and programs will be executed at the bottom. Any programs designed to advance the interests of the entire system can be frustrated by any one of the eight separate regions. An edict from the top can be diluted so that by the time it reaches the lower level it has little or no impact.
Moreover, the testimony has indicated that the lines of demarcation between the central and regional boards have become obscured. The eight regional chairman acting in conjunction can effectively strip the Central Board of all of its power. Thus, the Central Board appears to have been relegated to the role of advise and consent, and it is apparent from the "Guidelines for Decentralization" (Defendant Board's Exhibit 4) that the Central Board must consent more frequently than it advises. Thus, Detroit voters have been bequeathed no more than a vote for a regional board in exchange for the Central Board. Nothing further toward achieving community control has developed in five years of decentralization. The political institution that has developed has cast a heavier financial burden upon the people of Detroit without resulting in a greater voice for the community in the operation of the school system. Moreover, the structure has not been able to develop or hold public interest in the schools. Thus, the system now proposes to pay for the community relations and participation that the legislature thought would be engendered by the Act itself. The legisture may wish to take a fresh look at the structure that has developed in order to bring it more in line with the stated goals of decentralization.
It is conceivable that the regions themselves might have made demands concerning the very pairings contained in the plan; by soliciting the support of other regions, each region could effectively

veto the inclusion of any given school in the plan. Evidence of such political accommodation might exist in some of the pairings chosen for the Board's plan. Some schools that fall within the Board's racial parameters are nevertheless paired to reduce their percentage of black students. For example, Hanneman School is reduced from 58% to 48% black, Cary is reduced from 58% to 44% black, McMillan is reduced from 52% to 41% black and Edison is reduced from 65% to 51% black. Transportation for the purpose of reducing the percentage of black students in already desegregated schools is clearly unnecessary and is inconsistent with the Board's avowed purpose of eliminating racially identifiable white schools. While the court cannot conclude that the inclusion of such schools in the Board's plan necessarily resulted from accommodation of regional interests for political motives, neither can the court rule out such a possibility.
The Board's plan also includes a number of educational components intended to facilitate desegregation. Some are unrelated to desegregation and have been inserted with the hope that they could be implemented by court order. Moreover, the magnitude and the importance of some components are overly exaggerated. In its entirety, the Board plan requires an expenditure of more than $60 million. However, many of the proposed components have merit. Our remedy includes many of the Board's suggested components and adds others that we feel are constitutionally mandated.
D. Plaintiffs' Objections to the Board's Plan. The plaintiffs' principle complaint is that after application of the Detroit Board's plan, the racial composition of student enrollment in Regions 1129*1129 I, V and VIII, which comprise the inner core of the city, remains virtually unchanged at 90% to 95% black. Plaintiffs complain that the racial composition of student enrollment in 87 elementary schools, 18 junior high schools and 8 high schools in those three regions remains unchanged. Considering the practicalities at hand, we do not find that this objection presents any constitutional impediment to the Board's plan. If the number of all-black or predominantly black schools that remain untouched appears to be large it must be remembered that the school district itself is large; it is the fifth largest in the country and contains a total of 326 schools spread over a 136 square mile area in which whites are outnumbered by blacks.
Plaintiffs refuse to acknowledge that the racial composition of these three regions precludes their inclusion in a desegregation plan. In Region V, for example, there are 31,354 students of whom (excluding the Spanish surnamed) only 989 (3.1%) are white. In Region VIII, there are 29,725 students of whom (excluding Spanish surnamed) only 1,329 (4.5%) are white. In Region I, there are 24,907 students of whom (excluding Spanish surnamed) only 2,049 (8.2%) are white. Clearly, it would be futile to attempt desegregation within the boundaries of these regions; thus, a desegregation plan including these three regions would have to cross regional boundaries. But to include these regions in the Board's plan would bring about the same result that pertains after application of the plaintiffs' own plan. The plaintiffs' plan itself is sufficient proof that any attempt to include these regions produces only negligible results. Application of plaintiffs' plan "would make the Detroit school system more identifiably Black, and leave many of its schools 75 to 90 per cent Black." (Findings of Fact — March 28, 1972, 484 F.2d 215, 243-44 (1973.))[8]
That inclusion of these three regions in a desegregation plan would produce only negligible desegregative results is inevitable because even excluding Regions I, V and VIII there are only 63,446 white students as compared to 103,007 black students. To attempt to disperse those white students throughout the eight regions, including the three overwhelmingly black regions, would produce such negligible desegregative benefits that the extraordinary remedy of such cross-regional bussing would be unwarranted. To do so would only serve to lessen the little community control blacks now enjoy in those regions and, therefore, injure the very class the remedy is intended to benefit. In the face of these "practicalities" there is no constitutional objection to leaving a number of one-race or predominantly one-race schools. Swann v. Board of Education, supra; Quality Ed. for All Child., Inc. v. School Bd., etc. Ill., 385 F.Supp. 803, 823-24 (D.C.Ill.1974); Davis v. Board of School

Commissioners of Mobile County, 430 F.2d 883 (5th Cir. 1970); Mannings v. Board of Pub. Instruc. of Hillsborough Co., Fla., 427 F.2d 874 (5th Cir., 1970).
Plaintiffs next contend that the Board's decision to leave a number of one-race or predominantly one-race schools in the inner-city regions and the Board's persistence in achieving a "stable" racial mix are based plainly and simply upon the Detroit Board's fear of "white flight." They argue that the Board's decision to allow certain untouched schools to operate under capacity while certain other schools included in the plan are over-utilized is based upon the fear that middle class white families will flee the school district, the consideration of which is constitutionally impermissible. It is true that "white flight", like the degree of community resistance to a desegregation order, is not one of the "practicalities" to be considered in formulating a just, feasible 1130*1130 and workable plan. The law must be obeyed notwithstanding these considerations. The Supreme Court has stated on several occasions that white flight is not justification for limiting the degree of desegregation; nor will it justify a school board's refusal to desegregate. Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); United States v. Scotland Neck Bd. of Educ., 407 U.S. 484, 92 S. Ct. 2214, 33 L.Ed.2d 75 (1972). Our own and other circuits have similarly ruled. Higgins v. Board of Education of City of Grand Rapids, 508 F.2d 779 (6th Cir. 1974); United States v. Board of Sch. Com'rs, Indianapolis, Ind., 503 F.2d 68 (7th Cir. 1974). To hold otherwise would be tantamount to depriving school children of their constitutional rights in favor of those who prefer segregation. Moreover, consideration of white flight would be senseless in view of available statistical data contained in the United States Census Bureau Statistics demonstrating that the exodus from the City of Detroit occurred in the decade preceding the filing of this litigation and has subsided since that date.[9] In any event, the evidence presented does not support the conclusion that the Detroit Board was responsive to the fear of white flight in the formulation of its desegregation plan.
On the other hand, it is unreasonable to expect the Central Board to administer a large school system in a vacuum. It is one thing to consider white flight to avoid or limit desegregation; it is quite another thing to consider the practical problems with which a board of education is faced in attempting to achieve an acceptable racial balance without aggravating conditions that produce a self-defeating exodus of the middle class white and black. Higgins v. Board of Education of City of Grand Rapids, supra. Detroit's citizens are faced with a tax burden greater than any other city in the State of Michigan. The effects of the community over-burden in the district, caused by the degree of taxing authority exercised by the City of Detroit, are not ameliorated to the full extent provided by law because the program is not fully funded by the State. The Board operates in a city that has left little room for taxation to operate the school system. The community at large has already indicated its lack of support for propositions designed to increase the Board's millage by rejecting such proposals at the polls eight times. Not only is it constitutionally permissible to take these "practicalities at hand" into account in forming a desegregation plan, but it would be irresponsible for this court not to consider such practicalities where the very survival of an already bankrupt school system is at stake. To act irresponsibly would deny all school children the right to quality education.
The Board was justified in considering the "phenomenon of resegregation" in devising its plan for desegregation. Well-intentioned middle class blacks and whites will prefer private schools and suburban schools to the prospect of remaining in a school district becoming incapable of delivering basic educational services. A white and middle class black exodus will assuredly result if, as a result of desegregation orders, the school district became chaotic and hostile to intellectual achievement. It was these "practicalities" that were considered by the Board in attempting to achieve a degree of racial stability, and we find that it is constitutionally permissible to take such practicalities into account. As we have previously said, the plaintiffs' plan itself sufficiently demonstrates the justification for allowing one-race schools to operate in Detroit. 1131*1131The alternative is to make each and every school in the district identifiably black.

Finally, plaintiffs have presented much evidence establishing that black children in segregated schools suffer adverse educational and psychological damage. This is a principle that has already been acknowledged by the courts, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), and indeed this principle itself justifies the imposition of a desegregation order. However, the parties differ on the definition of desegregation. We have demonstrated the fallacy underlying plaintiffs' definition. As a result of the application of their plan, all of the schools throughout the district become racially identifiably black. Thus, psychological damage is more likely to occur as a result of plaintiffs' plan than as a result of the plan the court adopts. There are measures for assuring a perception that schools are desegregated other than the presence of white students: equal facilities, integrated faculties and meaningful guarantees that every student is welcome in any school notwithstanding race. Oftentimes, as plaintiffs' plan demonstrates, the use of fixed quotas will not give assurances of desegregation but instead may tend to extend segregation throughout the entire system. In a district where the racial percentages are as disparate as in this district, the existence of predominantly black schools is not demeaning to blacks. A plan that does no more than attempt to achieve the systemwide ratio in each and every school may result in transporting children merely to scatter a few white students here and there among the black students who are in the majority. To seek this result assumes that there is some divine grace in being white. The notion that the mere dispersing of whites here and there is educationally beneficial to black students is demeaning. An appropriate desegregation plan recognizes all the practicalities with which a particular school district is faced. A desegregation plan must be based upon constitutional and equitable rights of individual students and upon the educational goals that desegregation seeks to attain.
E. General Conclusions Pertaining to Both Plans. Many definitions of desegregation have been advanced by courts, educators and social scientists. Some have said that not more than 90% may be of any one race. Others hold that not more than 50% may be of any one minority group. Still others insist on fixed racial quotas that reflect ethnic proportions prevailing in a given area such as a state, county or local community. Some argue for precise ratios while others find that a specified tolerance, expressed as an arbitrary percentage that does not relate to racial compositions but rather is devised to accommodate an approach to planned desegregation, is necessary. If school desegregation does not occur naturally through bi-racial neighborhoods, it must be planned. Limitations may be imposed by the desegregated area. For example, the black proportion of the population can be so great that racial balance will inevitably result in majority black schools. In such an area, only two alternatives are available: The desegregation area must be enlarged or flexibility must be permitted in defining a desegregated setting.
While there are many differences between the plans proposed by the plaintiffs and the defendant Board, both plans share the common defect of relying on fixed racial percentages. Both plans attempt to conform the racial percentage of all of the schools included therein to a predetermined range. We have indicated that the Constitution does not require such an inflexible approach to desegregation. Both plans fail to take account of the practicalities at hand, such as demographic trends, financial limitations, existing grade structures and naturally integrated neighborhoods. Both plans rely exclusively on transportation to reassign pupils without exploring alternative techniques. 1132*1132 In the final analysis, it is because both plans are inattentive to such practicalities that both plans must be rejected. Because both plans ignore the "practicalities," both plans require massive transportation that is, at least to some degree, unnecessary to achieve desegration.
Plaintiffs contend that there is only one Constitution, equally applicable to all school districts. Thus, they argue that since we would not hesitate to apply theire parameters to a 72.5% white school district, we should equally apply them to a 72.5% black school district. We think such an argument in the context of this school district is superficial. The argument ignores the fact that the "practicalities of the situation", which the Constitution requires that we take into account, would be different if the

school district were 72.5% white. There would not be, for example, irresponsible bussing of black children to black identifiable schools. Thus, we are required to bear in mind that plaintiffs represent a class of blacks, and that the bussing of black students to identifiably black schools places a burden on the blacks, the very class whom the remedy is supposed to benefit, far in excess of the benefit resulting therefrom. Moreover, because plaintiffs represent a class of blacks and not a class of whites, desegregation requires only that plaintiffs themselves be represented in significant proportions throughout the school district through the elimination of identifiably white schools. That a unitary school system in Detroit would not require the elimination of black identifiable schools as well is obvious from the plaintiffs' argument: If the system were 72.5% white, dispersing the blacks throughout the entire system would not eliminate white identifiable schools.
Moreover, that elimination of white identifiable schools is sufficient for desegregation in Detroit is apparent from consideration of the evil desegregation is designed to correct. As plaintiffs have argued throughout this litigation, the evil of segregation lies in the devastating psychological impact upon black children of the knowledge that they are being excluded from white schools. "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). However, when blacks are represented in all schools throughout the system, i. e., when white identifiable schools are eliminated, this psychological effect no longer exists. There no longer is a denial of their right to equal protection when there are no schools from which they are excluded.
We have concluded that the rationale behind the Board's proposed plan promises meaningful disestablishment of the state-imposed segregation. We perceive it to be our obligation to assess the effectiveness of the Board's plan in the light of the circumstances present and options available. Accordingly, the remedy we propose will set forth constitutional guidelines. Green v. County School Board of New Kent County,391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
From the above, it is apparent that a fresh start is required to dismantle the remaining vestiges of a dual school system. We are prepared now to furnish the Board with guidelines solely devoted to this purpose and to assure quality education for all children in the system.
V. REMEDIAL GUIDELINES
The remedial guidelines that we detail herein define constitutional requirements for dismantling the dual school system found to exist in Detroit. In fashioning these guidelines, we have carefully considered the "practicalities of the situation" existing in this district. The guidelines are characterized by the flexibility needed to accommodate conflicting 1133*1133 community concerns. We have not, however, allowed flexibility to substitute for effectiveness, and it is our belief that these guidelines will achieve quality desegregated education for all children.
Recognizing that the interest of the community as a whole is a legitimate concern of the district court in formulating a desegregation remedy, the Supreme Court has furnished the basic guideline:
"Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S. Ct. 1289, 1292, 28 L.Ed.2d 577 (1971).
Because a desegregation plan is comparable to other equitable remedies, these guidelines are not premised upon a supposed inflexible constitutional standard that each school must have a

predetermined racial composition. Swann v. Board of Education, 402 U.S. 1, 24, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). Accordingly, there may be variances in the racial mix between regions and between schools within a region. The guidelines recognize that inflexible parameters are artificial and arbitrary and that their application to the Detroit schools would disrupt and bankrupt the entire system. Thus, rather than focus on each school in the system, the guidelines balance the practicalities that affect the system as a whole. Reflecting such practicalities, the guidelines recognize the impossibility of eliminating all racially identifiable black schools.
Further, consistent with general equitable principles, the guidelines balance the burden imposed against the desegregative results achieved. They recognize that transporting children is an extraordinary remedy to be employed only when appreciable results may be accomplished thereby, and then only when other alternatives have been exhausted. Therefore, our guidelines do not require transporting black children to predominantly black schools. Nor do they require transporting black or white children from naturally desegregated attendance areas. The guidelines acknowledge that the goal of desegregating this school system requires the elimination of racially identifiable white schools. Therefore, the guidelines require that a representative number of black students be assigned to every school in the district. However, taking account of the wide variance in racial composition existing throughout this school district, these guidelines do not attempt to eliminate racially identifiable white schools by imposing fixed ratios. We suggest a 50-50 racial mix only as a starting point; we permit variations that take into account the desegregative results likely to be achieved.
Further, the guidelines recognize that, in a unitary school system, each school need not reflect the system-wide racial ratio. The guidelines consider criteria for measuring a unitary system other than ratios, such as faculty assignments, staff assignments, extra-curricular activities, equality of facilities and assignment patterns. Moreover, the central theme of the guidelines is that equal educational opportunities must be available for all children. An equitable, workable and feasible plan must do more than just reassign students. Thus, the guidelines provide for educational components designed both to equalize the delivery of educational services at all schools and to restore quality education, which has deteriorated due to past acts of discrimination. Still other guidelines outline components designed to assure successful implementation of the court order by meeting head-on the special problems accompanying desegregation.
From these guidelines a plan should evolve that creates a unitary school system in which every school in the community will be open to all students, 1134*1134 regardless of color. At the same time, the guidelines do not neglect those considerations that would make it difficult for the system to maintain the financial support of the community. Inherent in these guidelines is the recognition that a desegregation case requires a search for a solution that is equitable and fair to all. Only in this way can stability be assured and a sound educational system be preserved for the entire community.
1. Guidelines for Revision of the Board Plan — Student Transportation
The guidelines that follow will aid the Board in producing a plan that eliminates the remaining racially identifiably white schools in the district by reassigning black students, who are in the majority, to schools throughout the city. It has been emphasized, however, that these guidelines do not sanction adherence to fixed racial ratios; they permit variation based on the constitutionally required consideration of the "practicalities of the situation." Davis v. School Commissioners of Mobile County, 402 U. S. 33, 37, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971). The guidelines recognize that

variation in racial ratios is a function of many factors and does not necessarily diminish the degree of desegregation.
From these guidelines, a plan should evolve that effectively desegregates, brings into equitable balance the objectives sought and the results to be achieved,[10] and exhausts all alternatives before settling on the best method to achieve its results. Such guidelines follow:
(a) Where possible, desegregation should be accomplished by re-zoning attendance areas in lieu of transporting children.[11] Before using transportation, the Board must establish that all re-zoning methods have been exhausted. The re-zoning should be attempted only after all the requirements of the court's order are considered. The Board is reminded that when re-zoning efforts are attempted, regional lines need not be respected; when the choice is between preserving regional lines and bussing, regional lines must give way. Re-zoning will reduce the amount of transportation required to desegregate and will permit the use of walk-in schools in integrated neighborhoods. (b) The revised transportation plan should avoid bussing black children to predominantly black schools. A school that is 55% or more black is a predominantly black school. Neither black nor white children should be bussed to schools that are already desegregated according to these guidelines; transportation under such circumstances produces an inequitable burden upon the children affected. Where only a small change in enrollment is needed to bring a school within the 30% to 55% range, the use of satellite zones should be explored. We trust the Board is assembling the data base suggested by the court to create computer print-outs showing the racial composition of neighborhoods by grids. When these data are compiled the Board will be able to avoid transportation under the conditions described above.
The Detroit School System now transports 14,400 students by chartered bus to relieve overcrowding or to overcome dangerous crossings and long distances. Attempts should be made to 1135*1135 accommodate these children at neighborhood schools by re-zoning where the neighborhood school is an equal facility. However, if such transportation is necessary to desegregate the receiving school, it should continue. In the event that it is essential to bus these students they should be transported to aid desegregation only in accordance with these guidelines.
(c) Elementary schools should not be paired when one or both of the schools already satisfies the court's definition of a desegregated school.[12] Where desegregation cannot be accomplished by rezoning or the use of satellite schools, the Board may pair appropriate schools. In making the pairings the Board should, wherever possible, pair an identifiably white school with the nearest school exceeding 55% black enrollment. In this way, the distances involved in transportation will be kept to a minimum.
(d) The Board should seek to maintain uniform grade structures, consisting of K-5, 6-8 and 9-12. Since an excessive variety of grade structures makes it difficult to provide school offerings consistent with quality education, consistent grade structures are preferable. Irregular grade structures would make it difficult to incorporate the components contained in the court's order and would make the plan more difficult to monitor.
(e) Desegregation and Integration Guide Translated Into Percentages and Racial Ratios.This guideline is derived from assessing the practicalities confronting the Detroit School System, such as a rapidly increasing black student population and meager financial resources.[13] Schools with a resident population in the service area of between 30% and 55% black shall be considered desegregated. If a school is within this range, no change in pupil assignment is necessary. Further pupils need not be reassigned merely because a school's racial composition exceeds 55% black; the "practicalities" may dictate leaving the school alone. However, in no event should a school remain more than 70% white.

(f) Elementary Schools. Consistent with the foregoing, elementary schools should be desegregated by re-zoning if possible. An elementary school with a resident population in the service area of between 30-50% black has achieved a permissible degree of desegregation. In those schools where a small change in enrollment will bring the school within these parameters, attempts should be made to do so by using a satellite zone. In selecting satellite zones, an appropriate group of children to select would be a group residing in an elementary service area that includes a middle school to which the children can walk. Transporting a child for his elementary school career would be more equitable if the child could later walk to a middle school. Although it may be impossible to divide the burden involved in a desegregation plan equally, the Board must avoid gross inequities. Particularly, there should not be great variations in the transportation burden falling on adjacent areas because such variations will influence residential patterns. The 1136*1136 Board should further avoid bussing children out of an integrated service area.
Since K-5 grade structures will result in excessive school capacity, the Board can take antiquated school buildings out of service. These closings and subsequent pupil reassignments are intended to equalize facilities and to further desegregation both by adjusting racial composition and by facilitating a non-discriminatory construction program. The Board may also consider closing some schools temporarily if further desegregation would result.
Elementary schools that cannot be desegregated by re-zoning or by satellite zones shall be paired. If possible, the grade structure at each paired school shall remain K-5 provided the paired schools have approximately equal enrollments. Pairings need not be made one on one; for example, a 900pupil school can be paired with a 300 and 600-pupil school. If maintaining the grade structure K-5 is not possible, the changing of grade structures will be permitted. Enrollments in schools can be adjusted by redrawing the service area zone lines.
The paired schools will be desegregated by exchanging pupils between the pairs. One-half of the pupils in each grade from each school will be bussed to the school or schools in the pair. The classes will be rotated annually or semiannually so that each child will attend his neighborhood school at least every other year. Teachers also may be rotated so they can continue to teach the same group of students. When the pairings are completed, students should enter integrated classrooms.
(g) Middle Schools. Middle schools will serve Grades 6-8. To provide for the maximum degree of desegregation, there will be two types of middle schools: "zoned middle schools" and "open enrollment middle schools." The open enrollment schools will function similarly to current magnet middle schools, but will have a controlled racial mix generally 55-70% black. The racial composition may exceed these parameters where practicalities require, but in no event should a school exceed 50% white. The zoned middle schools need not have zones that correspond to elementary service boundaries. In developing the zones, the Board shall provide walk-in schools wherever possible. Although a zoned middle school that is 30-55% black shall be considered desegregated, the Board's target should be 50% black enrollment at this level. In developing zones for middle schools, the Board may consider satellite zones but such zones should be avoided where it can be shown that they would create housing instability resulting from differing treatment of adjacent neighborhoods.
Generally, no child should be bussed for more than five of his first eight years. Any child that is bussed for desegregation at the elementary level for five years should not be bussed for desegregation to a middle school. If the Board finds compliance with this guideline impossible, the Board shall report the exceptions by numbers, race and location.
(h) Summary. We believe these guidelines provide sufficient latitude to accommodate the practicalities needed to be considered to preserve a financially crippled school system. The

suggested parameters permit the Board to consider inevitable demographic trends and allow the formation of long-range plans to deliver quality education and maintain financial independence. (See chart following — Demographic Projections 1975-1980.) This kind of stability, which assures the durability and longevity of court orders requiring desegregation now and hereafter, is constitutionally compatible with the desegregative goals the Board must seek.
Moreover, these parameters recognize an equitable constitutional balancing of private and public needs. Students, particularly older students, must be able to perceive that the inconvenience of attending a less accessible 1137*1137 school serves a noble goal, that a desegregation plan will enhance the quality of education and that desegregation is neither disruptive nor destructive.
In sum, the plan will have the following characteristics:
(a) Schools as presently constituted, either by resident enrollment, bussing to relieve overcrowding or bussing resulting from school closings, that result in a 30%-55% black enrollment shall be considered desegregated.
1138*1138 (b) In providing further desegregation, a 50-50 enrollment may be used as a starting point for reassigning students, but no school shall be less than 30% black.
(c) Pairing shall involve only schools with enrollments under 30% or over 55% black. To minimize travel distances, pairings shall be made between each white school and the nearest predominantly black school.
(d) As far as possible, the schools will maintain a uniform grade structure of K-5, 6-8 and 9-12.
(e) Elementary schools will enroll children in grades K-5. Classrooms or half classrooms will be exchanged between the paired schools on a rotating basis, permitting each child to attend his home school at least every other year. Not all elementary school children will attend paired schools; some will reside in integrated neighborhoods and as many elementary schools as possible will be desegregated by redesigning attendance zones. Where possible, satellite zones rather than two-way bussing will be used. Where bussing is needed, bus trips will be as short as possible. The change in grade structure from K-6 to K-5 will generate excess elementary school facilities, enabling a number of antiquated schools to be taken out of service.
(f) Middle schools, 6-8, will be of two types: "open enrollment" and "zoned schools." In keeping with these guidelines, open enrollment schools will have racially controlled enrollments. Where the practicalities permit, middle schools will be 55-70% black, and no middle school will enroll less than 50% black.
(g) The plan will involve the creation of vocational centers.[14] Two high schools may be converted into vocational centers; students currently enrolled in these schools will be reassigned to other nearby schools, thus aiding desegregation. Although the vocational centers will be open to all students city-wide, their racial compositions will be controlled. Initially, no high school or vocational center shall enroll less than 40% minority. Thereafter, enrollments will be controlled to conform to these guidelines. Curriculum studies will be necessary to adjust the present city-wide schools such as the Aero Mechanics High School.
2. Reading and Communication Skills

The development of proficient reading skills is the most essential educational service a school system can deliver. Where a school lacks a successful reading program, a child cannot be assured academic success or a beneficial school experience. Students who have not achieved adequate reading and communication skills cannot succeed in the main-stream of society. They are limited in their vocational selection; their handicap necessarily precludes them from entering the professional world. While in school, they cannot be fairly tested.
There is no educational component more directly associated with the process of desegregation than reading. Statistical data establish that minority youngsters lag significantly behind their white counterparts in reading skills, which in turn affects the ability of minority students to follow written instructions, succeed on aptitude tests, pass entrance examinations for colleges and universities and compete in the world of arts, sciences, occupations and skills. Moreover, when such conditions persist, there is a direct effect upon the school environment. Students become disciplinary problems when in reality their problem is directly associated with an inability to conceptualize due to a lack of proper reading and communication skills. As a consequence, teachers and staff assume that such minority students are uneducable, thus further deteriorating the school environment for these students. To eradicate the effects of past discrimination, a remedial reading program 1139*1139 should be instituted immediately to correct the deficiencies of those midway in their educational experience.
The court considers this component deserving of top priority in a school district undergoing desegregation. Accordingly, the court's order will direct that the development of such a program in the desegregative process be the direct responsibility of the General Superintendent and a committee to be selected by him.[15] We trust that such a committee will include some of the expertise available in the Michigan community. Detroit is fortunate in having a number of people expert in developing learning techniques for reading who are at the same time devoted to Detroit's educational system. This court hopes that the General Superintendent will personally pioneer this effort to achieve excellence unequaled by any other school system.
3. In-Service Training
A comprehensive in-service training program is essential to a system undergoing desegregation. A conversion to a unitary system cannot be successful absent an in-service training program for all teachers and staff. All participants in the desegregation process must be prepared to deal with new experiences that inevitably arise. The order that follows pursuant to these guidelines requires inservice training in such fields as teacher expectations, human relations, minority culture, testing, the student code of conduct and the administration of discipline in a desegregated system for all school personnel. The program shall also include an explanation of the purpose and nature of each component in the desegregation order. It is known that teachers' attitudes toward students are affected by desegregation. These attitudes play a critical part in the atmosphere of a school and affect the pulse of the school system. Teachers, both white and black, often have unhealthy expectations of the ability and worth of students of the oposite race. Moreover, it is known that teachers' expectations vary with socio-economic variations among students. These expectations must, through training, be re-oriented to ensure that academic achievement of black students in the desegregation process is not impeded. A comprehensive in-service training program will ensure that all students are treated equally in the educational process. The goal of a sound in-service training program should be the awareness that there are neither black students nor white students, just students.
The Detroit Board of Education is advised that Wayne State University and other universities have offered their cooperation in this desegregation effort. Accordingly, the Board shall request the Wayne State University College of Education to assist in developing a comprehensive program to provide

in-service training. The court is of the view that the program outlined in the Board plan will fulfill the expectations of the court order. The Detroit Board is further directed to seek assistance and funding from the Title IV Center at the University of Michigan and, upon issuance of the court order, to submit further proposals for assistance to the United States Office Of Education for Emergency School Aid Act (ESAA) funds. Moreover, the defendant Superintendent of Public Instruction is directed to seek financial and personnel assistance from other state institutions. The in-service training program as instituted should be on-going, include all schools in the system and be open to all personnel employed by the Detroit Board of Education. Such in-service training sessions shall be conducted during the school year and just prior to the opening of school. The Board should discontinue 1140*1140 payment to teachers for attendance at such sessions on Saturdays.
4. Vocational Education — Technical High Schools
Open association with other students of varying races, cultures and religions forms the most basic ingredient in a student's learning experience. Children living, learning and playing together convert a building into a human institution with a pulse and personality. Students, parents and teachers come together to live, learn and work in an atmosphere imbued with human warmth. In this atmosphere, the attachments born of a classroom become the most durable. A segregated system deprives students of this interpersonal learning experience and injures them in a lasting way. The resulting isolation destroys the atmosphere and pulse of a school system and, eventually, the quality of the educational services rendered. Minority students in segregated settings often lose interest in education, eventually believing they have no stake in the system. This inevitable result is reflected both in the school system's dropout rate and in the number of students who graduate without being able to read or spell. Thus, a segregated school system fails to provide relevant and diversified programs to meet the needs of the students it serves.
Vocational education is given high priority in these guidelines because while it is able to compensate for past discrimination, at the same time it serves as an effective tool for desegregation. It can both offer an immediate desegregated setting and help re-establish quality education. Vocational education is easily assimilated into the Magnet Program now in effect in this system and offers attractions that exceed those currently available. It can serve to combat the dropout rate and prepare students for specific work situations in the business world. Finally, it will equip minority students with the knowledge and skills essential to enter occupational trades often foreclosed to them.
Accordingly, the court's order will require that the defendants Detroit Board and State Board of Education create vocational centers devoted to in-depth occupational preparation in the construction trades, transportation and health services. In addition, the order will require that the defendants Detroit Board and State Board of Education create two new technical high schools in which business education will be the central part of the curriculum. It shall be the responsibility of the School Board and the State Board of Education to fulfill their obligations under the Constitution and state law to ascertain that the four vocational centers created are of the highest quality. Moreover, each of these vocational centers shall include a grade 13 providing advanced offerings both for those students presently enrolled and for other students who have left the system within the past three years.
As an immediate desegregative effort, the Detroit Board of Education and the State Board of Education are directed to create two such vocational centers as promptly as circumstances permit. In order to eliminate the need for new construction, two existing facilities may be selected; the court's experts suggested that Cooley and Kettering be utilized as vocational centers. Accordingly, the Detroit Board shall immediately submit a plan conforming to the following guidelines:

(a) The plan shall indicate where students presently assigned to Cooley and Kettering will be reassigned and the effect of such reassignment upon desegregation. The plan should minimize the inconvenience to students who would otherwise enroll at these schools. The Board may wish to consider the feasibility of not enrolling students at either Cooley or Kettering in the September, 1975 school term. (b) The Board shall submit maps depicting the new high school zones that result from the elimination of the Cooley and Kettering attendance areas. 1141*1141 (c) The plan shall contain detailed curricula for Cooley and Kettering High Schools. (d) The vocational centers at Cooley and Kettering shall be city-wide schools and shall have a racial mix that, considering the practicalities at hand, approaches a ratio of 60% black and 40% white. (e) The Detroit Board and the State Board should confer immediately and submit a plan to the court not later than three weeks from the issuance of the court's order. The plan should include a time and cost schedule for modifications necessary to convert Cooley and Kettering High Schools into vocational centers and should also include proposals for two additional centers. The parties are directed to ensure that these vocational centers are equal in quality to the best vocational schools in the country.
As an immediate desegregative effort the Detroit Board shall, as promptly as circumstances permit, undertake to create two additional technical high schools, which are to be modeled after the program at Cass Technical High School. The Board shall select sites for such technical high schools that afford the maximum degree of desegregation. In keeping with this desegregative effort, the Detroit Board of Education and the General Superintendent shall commission a study of the curricula to be established at the two technical high schools. The study should determine what duplications might exist between offerings at the technical high schools and the vocational centers or the academic high schools.[16] After formulation of the joint plan for creation of the vocational centers, the State Board of Education shall submit such plan for review and evaluation to an appropriate evaluation panel such as a vocational education expert at an institution of higher learning. When the joint plan is submitted, it shall include the evaluation made by such expert and modifications suggested as a result of such evaluation.
Upon recommendation of the court-appointed experts, the order of the court will direct, as a further desegregative effort, that the Detroit Board of Education undertake a study evaluating an alternate form of education following the Parkway Concept. The court's experts have suggested that Northern High School could be used for such a project. Accordingly, the defendant School Board is directed to submit plans for such a program, including an evaluation of its feasibility and the contribution that such a program might make to desegregation. The Board shall further seek and obtain a professional evaluation of such concept from outside the School Board's present administrative staff. If the evaluation is favorable, the Board shall thereafter submit plans and costs schedules for implementation of such concept.
It has been brought to the attention of the court that the Detroit School Board is presently ineligible for full funding from the state to operate the proposed vocational education programs because certain provisions of the contract between the Detroit School Board and the Detroit Federation of Teachers, which require that a school day not exceed 7¼ hours and impose a maximum of 25 teaching periods per week, conflict with regulations promulgated by the State Board of Education. The court, however, has stated that vocational education programs must be instituted pursuant to a desegregation mandate. Accordingly, the parties shall appear in court for a hearing and subsequent order that will set aside either the State 1142*1142 Board of Education regulations or the contractual provisions. The date for the hearing shall be set upon motion to be filed by the Detroit Board of Education.
5. Testing

Of great importance to a system undergoing desegregation is the assurance that tests administered to students are free from racial, ethnic and cultural bias. Black children are especially affected by biased testing procedures. As a result of such procedures, they may find themselves segregated in classrooms for slow learners, which will thereafter impede their educational growth. Moreover, the discriminatory use of test results can cause resegregation.
The Detroit Board and State Board of Education are constitutionally mandated to eliminate all vestiges of discrimination, including discrimination through improper testing. Thus, the Detroit Board and the State Board of Education must devise a program that will ensure that testing design, content and procedures are adaptable to a desegregated school system. The plan should include provisions dealing with staffing and costs involved. We have examined the Board's testing component carefully and have found it to be sufficiently comprehensive to serve as a model for such a testing program.
6. Student Rights and Responsibilities
By previous orders this court has demonstrated the high priority that it places on student rights and responsibilities, which the court has referred to as a Uniform Code of Conduct. We have also said that children living, learning and playing together convert a building into a human institution with a pulse and personality, and that when students, parents and teachers come together to live, learn and work the school develops an identifiable environment. It is this environment that the Detroit Board is constitutionally bound to protect in order to assure that every student can enjoy the right to a happy, healthy and rewarding school experience.[17] Moreover, we agree with the plaintiffs' assertion that "[n]o violence whether against person or property, will be allowed to impede the implementation of the desegregation process. Both students and teachers must feel secure in their person and in their ability to perform their respective functions without fear of undue and unnecessary disruption."
It is the court's intention that from the commencement of the 1975-1976 school year the Board must not tolerate violence in any school in the system. Moreover, the court order will require that the Uniform Code of Conduct be administered uniformly without regard to regional lines. All regions will be obliged to follow prescribed forms and uniform procedures, to be devised by the Central Board and approved by the court. The court will not, of course, attempt to substitute its judgment for the discretion of school administrative personnel in dealing with student violations of the Code. The court will ensure, however, that all Detroit students are afforded minimal right of due process consistent with Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). While the court is concerned that violence and vandalism do not impede the desegregative process, the court is equally concerned that the rights of the students are fully protected. In a system undergoing desegregation, black and white students will be subjected to teachers of both races who may apply the Code in a discriminatory manner. Staff members must be made aware of the rights of due process set forth in the Code. Moreover, students must be advised not only of the conduct proscribed, but also of their right to due process when involved in disciplinary procedures. The Code therefore, must simultaneously protect the students against arbitrary and discriminatory exclusions, suspensions or expulsions and assure that disruptions in the school or classroom will be dealt 1143*1143 with in every instance. The court has recently received the Board's second draft of the proposed Code. Since the court has not had an opportunity to study this draft, the Board will await further directions from the court.
7. School-Community Relations (Parental Involvement)

The importance that the court places on this component is evident from the July 18, 1975 communication requiring the Detroit Board to submit a detailed plan for a community relations program, which the court has not yet had an opportunity to examine in detail. We agree with plaintiffs that an acceptable community relations plan should include provisions for school-community liaison and parental involvement. The school-community relations program should give real meaning to the decentralization anticipated by the Michigan Legislature and provide an effective vehicle for true community involvement in all the schools. To achieve maximum community participation the program should depend upon parental support; participants should be selected voluntarily and serve without compensation. An effective community relations program must develop a partnership between the community and the schools and must cooperate with traditional groups such as parentteacher organizations and local school advisory boards. There should be a cooperative flow of information from the school to the community and from the community to the school. Open and free discussion and participation in the desegregation process should be encouraged. The schoolcommunity relations organization should receive complete encouragement, budgetary support, direct assistance and a free flow of information from school authorities.
The school-community relations component shall be a subject of a separate order of this court. The portion of the Board's plan that includes a monitoring provision in the suggested community-relations component is rejected.
8. Counseling and Career Guidance
School districts undergoing desegregation inevitably place psychological pressures upon the students affected. Counselors are essential to provide solutions to the many problems that result from such pressures. Moreover, the success of the vocational and technical schools created herein depends upon the efforts of counselors whose guidance is essential to students seeking a career. Counselors can accomplish much to shape and guide the academic experiences of students. They assist student self-development and further can acquaint students with the vocational training possibilities available in the system. It will be essential that the counselors become fully acquainted with the vocational and technical offerings created herein. Accordingly, the order issued pursuant to these guidelines will require that the Detroit Board provide guidance and counseling services, including career counseling to the junior and senior high students in the Detroit system.[18] The Board is hereby directed to submit a career guidance and counseling plan.
9. Co-curricular Activities
Co-curricular activities are essential supportive programs in a system undergoing desegregation. Co-curricular activities further desegregation by providing student-to-student contact and interplay in a desegregated environment. The co-curricular program should include a provision for a limited junior high school consortium, which also encourages the sharing of educational experiences among students of both races. In addition to aiding desegregation, the co-curricular program can acquaint students 1144*1144with the many fine institutions available in the Detroit area, which have indicated their interest in aiding the court in providing quality education to Detroit school children. The junior high school consortium will enable students to share experiences while acquiring knowledge of such institutions as the Art Institute, the Detroit Public Library, the Merrill-Palmer Institute, Wayne State University and Shaw College. The court has reviewed the provision for co-curricular activities in the Board's plan and has concluded that it contains imaginative programs. The court's order will, therefore, require that the Detroit Board develop for the court's approval a specific plan for cocurricular activities including an analysis of the costs involved.

10. Bilingual/Multi-Ethnic Studies
Multi-ethnic studies are essential elements of the curriculum of any outstanding school system; desegregation serves only to emphasize the need for inclusion of these studies. Moreover, by state law school districts are required to provide adequate programs for bilingual and bi-cultural instruction. See Mich.Comp.Laws sections 340.360, 390, 391. The court order will further provide for these programs.
Currently, these programs are funded by Titles III and VII of ESAA. The Board is directed to re-apply for such funds to continue its program and in such application shall include provisions for in-service training for teachers involved in such programs. The Detroit Board is further directed to seek the cooperation of Wayne State University's Ethnic Learning Resource Center in developing a resource program for comprehensive multi-ethnic instruction.
The Board shall submit finalized programs for each of these studies to the court including provisions for in-service training of the teachers involved.[19]
11. Faculty Assignments
The Detroit Board's plan contains a component dealing with reassignment of faculty, providing for a 50% ratio in every school. It has been noted that the teacher population in Detroit is now 49.5% black and hence nearly evenly bi-racial. However, no evidence was presented at this remedial hearing dealing with faculty segregation. Thus, it would be inappropriate for this court to order any reassignment of faculty at this time.
However, notwithstanding the prior holding of this court, affirmed on appeal, that the Detroit Board had not committed de jure acts of segregation of faculty, certain reassignments will be necessary to implement the desegregation order. Reassignments of faculty will be necessitated by the reassignments of students. Such faculty reassignments are incidental to the desegregation plan and shall be made with the purpose of further integrating the faculty. The Detroit Board and the Detroit Federation of Teachers shall immediately begin negotiations concerning reassignments necessitated by other components of this plan. Of course, in conducting these negotiations, both parties will no doubt be mindful of the federal requirement for racial composition of faculty and staff in a school system undergoing desegregation contained in USCFR 185.44(d) (3), supra.
Thereafter, both parties shall submit a report listing every school, student enrollment by race, the projected student enrollment by race following application of the plan, the present number of teachers in each school by race and the projected number of teachers by race following application of the court's order. These reports shall be submitted to the court prior to an evidentiary hearing to be set by the court.
1145*1145 12. Monitoring
The court's order will provide for a court-created monitoring system to audit efforts made to implement the court's desegregation orders. The monitoring system created by the court shall provide for broad citizen participation. The monitoring group shall reflect the city's racial and ethnic composition so that the court can receive input from a broad spectrum of the city's population.

Because it is the court's constitutional obligation to audit efforts to implement its orders, the monitoring commission shall report directly to the court. The parties may, for the court's consideration, nominate citizens for appointment to the monitoring commission. The court is of the view, however, that the state, to whom the Fourteenth Amendment is addressed, has an equal obligation to oversee the efforts put forth and results achieved through implementation of the desegregation order. Accordingly, the court will order the State Superintendent of Public Instruction to seek the assistance of available state institutions to provide the supervisory and expert support staff needed to analyze and report the information thus obtained. The State Superintendent of Public Instruction shall suggest to the court a plan that includes the assistance of state-supported institutions such as the Title IV center of the University of Michigan.
In the court's view the monitoring of its orders is an essential part of a deseggation effort. The court recognizes that an effective monitoring procedure will require careful evaluation of the input from citizens' groups appointed. These groups shall be requested to develop meaningful criteria for evaluation and to suggest and recommend methods for developing a uniform basis of reporting. It shall be the obligation of the State Superintendent and the institutions selected by him to collect and analyze all such data submitted and to provide sufficient staff to supervise the work of the monitoring committee.
VI. CONCLUSION
In developing these guidelines, this court has not intended to usurp the School Board's administrative authority. Neither has this court intended to substitute its authority for the authority of elected state and local officials to decide which educational components are beneficial to the school community. We are especially reluctant to do so in view of the fact that the school officials are willing to desegregate the school system. Their plan evidences their desire to cooperate in the desegregative effort. Pursuant to an order of this court, they submitted a comprehensive desegregation plan that did not attempt to rely solely upon their Magnet School Program for voluntary desegregation but instead included the forced transportation of a large number of students. Thus, we have taken into account that the "good faith conduct on the part of any litigant in any court, especially a court of equity and, more particularly, in the sensitive area of desegregation, is a vital element for appropriate consideration." Montgomery County Board of Education v. Carr, 400 F.2d 1, 2 (5th Cir. 1968).
Moreover, even after a finding of segregation has been made, it is the affirmative duty of the local school board to repair the effects of segregation by constructing a unitary system. But, at the same time, once the state has been found to have discriminated against a class of plaintiffs, it is the constitutional obligation of the court to assure that the denial of equal educational opportunity through segregation is fairly and justly remedied. Thus, the Board must remember that once it begins to desegregate, "the courts have a solemn obligation to determine whether the structure designed by the school board will house a unitary system. This obligation is unremitting . . . 1146*1146Accordingly, any imprimatur of judicial approval must be entered with the caveat that until construction of a unitary system is completed, change orders, when appropriate, will be issued to ensure that the designed structure in fact accommodates a unitary system and not a bifurcated one." Carr v. Montgomery County Board of Education, 429 F.2d 382, 386 (5th Cir. 1970). It is in this context that the court issues these guidelines. It is for the court to declare constitutional standards applicable in a particular school district. The Board is free to do more than these announced standards require, so long as it demonstrates that its additional effort will have a salutary effect upon desegregation; it is the role of the court to ensure that it does not do less than what we have detailed here.

A successful desegregative effort will require cooperation and support from the entire community. Because Detroiters have always volunteered community support to advance worthwhile causes and because Detroiters know that the vitality of their city depends upon the excellence and stability of their school system, this court has already received expressions of support from the community. Many of Michigan's institutions of higher education, business corporations, labor unions and other organizations, public and private, have pledged their support and assistance to assure the successful development of quality education in the newly desegregated Detroit School System.
For example, Wayne State University, in cooperation with other institutions, can undertake prime responsibility in developing and conducting the in-service training program, which has received a high priority from this court.[20] Wayne County Community College has volunteered to consult with the Board and to assist it in the development and evaluation of the Board's proposed multi-ethnic component. It will further help with an orientation program for academic and guidance counselors. Additionally, labor and industry have demonstrated an active interest in the quality of education in the Detroit Schools. Both sectors of the community have assured the court of their willingness to cooperate and assist in this effort. Labor and industry can be of invaluable assistance by bringing their expertise to the vocational and technical high schools created herein. They can generate jobs for young people and possibly provide equipment needed by the school district. They can also provide opportunities for on-the-job training. It is hoped that the Board will succeed in matching colleges, universities, labor and industry with selected schools or programs to further enhance the attractions available in the school system. The Board, with the aid of the court's experts, should enter into specific agreements with these organizations in order to spell out precisely the roles they will play in assisting the Detroit schools. These institutions will not, of course, be solicited for financial contributions, nor do they intend to interfere with the administrative authority of the Detroit Board. These institutions want to be of assistance to Detroit school children; they have no desire to participate in the administration of the school system. Thus, our guidelines provide the seeds to generate community support.
The guidelines also continue the magnet system to which the school community has devoted so much time and funds. We have sought to strengthen those programs now in existence and have also provided for the creation of additional schools and added attractions, including the anticipated matching of 1147*1147 schools with colleges, universities, business organizations and labor unions. As strengthened, these magnet programs will provide an opportunity for the occurrence of voluntary desegregation. Magnet programs, as a desegregation tool, have been approved by the Federal Education Acts of 1974, P.L. 93-380, § 214(f), 20 U.S.C. § 1713(f), and as strengthened by the court's guidelines will be sufficiently attractive to serve the dual purpose of providing quality education and voluntary desegregation. However, it must be remembered that the primary goal of these magnet schools is to operate as desegregated schools taking account of the practicalities we have deemed constitutionally permissible to consider.
Although these magnet schools play an important role in the court's guidelines, this court recognizes that total desegregation cannot come about through magnet programs alone. Since 1972, the magnet program alone has proven inadequate to desegregate the Detroit Schools. However, while some transportation may be essential, we believe that the guidelines proposed have substantially reduced the number of students transported from the number involved in either the plaintiffs' or the Board's plan.
The cooperative effort of the entire community will assure a school system capable of fulfilling community aspirations. Such community support will provide the Detroit schools with an opportunity to make a fresh start. Those once deprived of equal opportunity by past discrimination will be assured that their schools are unequaled elsewhere; they will be assured that the injury from segregation, sometimes intangible, will be eradicated. With the support of the community, the court's order will create a unitary school system and assure that past discriminatory practices will neither

inflict further injury nor occur again. A school system must evolve that is concerned not with black children or white children, but just children.
[1] The District Court in 1971 predicted that in the 1975-1976 school year the black student enrollment would total 72 percent. The evidence taken during this remedial proceeding indicates that that figure was low. Black enrollment in the elementary schools exceeded 72% on September 27, 1974, and black enrollment system-wide on that date was 71.5%.
[*] Woodward Avenue is a major thoroughfare in Detroit, which divides the city along east-west lines.
[*] Elementary School Figures.
[*] Elementary School Figures.
[*] Schools that abut the Detroit city limits.
[2] In addition, under plaintiffs' plan, the Columbus Junior High School would be over capacity were it not for the utilization of temporary spaces.
[3] We have arrived at varying estimates that range 77,000 and 81,000 students requiring transportation under plaintiffs' plan.
[4] In addition to the 95 schools untouched by the pupil reassignment portion of the Board's plan, 16 schools that are already desegregated according to the plaintiffs' definition are untouched, 6 elementary schools are not paired but are included in desegregated feeder patterns and 6 schools are taken out of service.
[5] See State Critique of Detroit Board's Desegregation Plan, page 39.
[6] Defendant Board's plan, according to the court's count, would transport between 51,000-56,000 students, affecting 159 schools. The plaintiffs' plan, according to our count, would bus between 77,000-81,000 students and affect virtually every school in the system.
[7] The defendant Board took its first step to desegregate the school system as early as 1970 when it attempted to implement the April 7, 1970 plan. This attempt was frustrated only by acts of the Michigan Legislature.
[8] The district court's ruling on the Detroit-only desegregation plan is set out in full by the Court of Appeals, id.,at 242-245, and and is not otherwise officially reported.
[9] In addition, it would be unwise for the court to consider white flight in view of the fact that there is an abundance of literature acknowledging that white flight is perceived more as a function of class than race or resistance to desegregative orders. See Nancy St. John, School Desegregation, Outcomes for Children, John Wiley & Sons, New York.
[10] In Swann v. Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971) the district courts are reminded that a desegregation case is no different than an ordinary case in equity. The court stated: "The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution."
[11] Although the plaintiffs attempted to desegregate by rezoning attendance areas, it is this court's belief that their failure to do so was a result of their definition of a desegregated school. There is no evidence in the record that, given this court's more flexible approach to desegregation, rezoning attendance areas will not be a useful desegregative tool.
[12] For example, in the Southwest Constellation, the Carrie School is paired although it is already 58% black. In the Chadsey Constellation, the Hanneman School is 58% black. Moreover, the Board plan sometimes precludes students within walking distance of a school from going to that school. For example, the Burt Elementary attendance zone is in the Redford area, yet Burt students have been assigned to Cooley rather than Redford. Similarly, students in the Schultz attendance zone should go to Mumford, yet they are assigned to Redford.
[13] Another factor that the Board may wish to consider in making its pairings is the "Weighted Poverty Index" of each school, which varies in Detroit from 0.18 to well over 40. The socio-economic mix, as measured by the poverty index, is a

significant factor and should be considered along with the racial mix. As far as possible, the Board should strive to have no school with a poverty index greater than 15.
[14] See section on Vocational Education, infra.
[15] We direct the General Superintendent's attention to the Public Report of the Education Task Force, as revised March 5, 1975. The recommendations with respect to development of a reading program and suggestions contained therein are endorsed herein.
[16] The Board's plan as submitted does not distinguish clearly between courses to be offered at the vocational centers and the technical high schools. The study should identify the offering of courses duplicating those at other high schools; duplication might detract from the magnet programs instituted at the two new technical high schools. The study should further determine the effect of duplication of courses at different locations upon desegregation and the quality of education.
[17] See this court's order of July 3, 1975.
[18] It is not for the court to determine how this program ought to be staffed. We note, however, that we are unaware of any school system that has deemed it beneficial to assign full-time counselors at the elementary school level. Some school systems have found that classroom teachers who are afforded appropriate in-service training make the best counselors at the elementary level.
[19] While we endorse the inclusion of these programs in a desegregation plan, we draw no conclusions with respect to the budget submitted by the Board in its plan, which appears to us to be excessive. Even assuming 163 bilingual teachers are needed, there should be a corresponding reduction in the number of regular classroom teachers.
[20] We are informed at this writing that the Governor of the State of Michigan is aware of Detroit's need for this component. We have reason to believe that, consistent with his abiding interest in Michigan's educational system, he will approve necessary budgetary provisions to enable Wayne State University to participate.

 
 411 F.Supp. 943 (1975)
Ronald BRADLEY et al., Plaintiffs, v.
William G. MILLIKEN, Governor of the State of Michigan, et al., Defendants.
Civil No. 35257.
United States District Court, E. D. Michigan, S. D.
November 4, 1975.
Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., Thomas Atkins, Boston, Mass., for plaintiffs.
George T. Roumell, Jr., Riley & Roumell, Detroit, Mich., Theodore Sachs, Marston, Sachs, O'Connell, Nunn & Freid, Detroit, Mich., George L. McCargar, Jr., Asst. Atty. Gen., Lansing, Mich., for defendants.
MEMORANDUM AND ORDER
DeMASCIO, District Judge.
At the inception of the remedial phase of this litigation, the court directed the parties to submit plans to effectively establish a unitary school system. After affording the parties approximately 30 days to attempt to resolve their differences, the court conducted extensive 944*944 hearings on the plans submitted.[1] The parties were persistent in their different views of what constituted desegregation. The plaintiffs adhered steadfastly to the view that desegregation required that the racial composition of every school in the system conform to within 15% of the system-wide racial ratio, that other considerations furthering integration were not relevant toward the formulation of a desegregation plan, and that existing practicalities at hand were not relevant. The defendant Detroit Board of Education contended that a just and feasible plan must give consideration to the "practicalities of the situation" such as the racial ratio existing in the school community, which is predominantly black by wide margins, shifting population trends and demography, the financial plight of the school district, the need for school, neighborhood and community stability, and assurances that the district be able to provide optimal educational opportunities for all children, and that an effective desegregation plan should not look merely to the present, but should desegregate "now and hereafter" by preventing resegregation.
Upon completion of the hearings, the court carefully examined the plans together with all the evidence submitted. We concluded that both plans were too rigidly structured because of adherence to fixed racial ratios (which was found to be not only undesirable but constitutionally infirm), that both plans failed to properly weight the essential "practicalities of the situation", that neither plan exhausted alternatives in light of such practicalities, and that neither plan appropriately balanced the

equitable burdens with the desegregative results achieved. On August 26, 1975, we directed the defendant Detroit Board to prepare a revised plan, which was submitted on September 19, 1975. On October 8, 1975, we directed the Detroit Board to re-evaluate various aspects of its September 19, 1975 plan, and the Board again submitted a revision on October 21, 1975.
Thus, this is the third occasion the court has had to carefully examine every detail of the Detroit Board's desegregation plan. The sole purpose of our detailed examination has been to devise a "just, feasible and equitable" desegregation plan pursuant to a United States Supreme Court mandate that we formulate a "decree directed to eliminating the segregation found to exist in the Detroit city schools. . . ." We have found that the revised plan closely parallels the court's guidelines. There are instances in which the Detroit Board employs parameters at variance with the guidelines, but we have said that the Detroit Board may do so, provided the plan itself discloses that the additional effort will have a salutary affect upon desegregation (Memorandum Opinion, August 15, 1975, p. 121), since a cooperative board should be afforded discretion to weigh the practicalities at hand. This does not mean, however, that the Detroit Board is free to charter a course beyond the guidelines to accommodate individual philosophies or regional goals. We have been careful to ensure that where the plan exceeds the court's guidelines, the plan discloses the practicalities considered and the reasons for affording varying weight to those practicalities.
We are satisfied that the revised plan, which we today order implemented with some modifications made by the court,[2] is an effective and equitable desegregation plan within the constitutional guidelines that we have provided. The plan exhausts alternatives to two-way bussing, such as rezoning and creation of satellites, and does not adhere to rigid racial ratios. Rather, the plan is flexible, as it permits variations derived by weighing the practicalities at hand and places into equitable balance the objectives sought and the results to be 945*945 achieved. (Memo. Op., p. 87).[3] The plan recognizes the need to preserve walk-in schools in integrated neighborhoods, and contains the flexibility needed to encourage stability in integrated neighborhoods. The flexibility of the plan is further demonstrated by the fact that where reassignments are made at the elementary level, the students involved are assigned to a walk-in middle school or high school. Moreover, the plan provides for rotation of classes between paired schools to lessen or equalize the transportation burden (Memo. Op., pp. 91, 93). Most important, the plan avoids transportation serving no desegregative purpose, such as bussing black children long distances to attend predominantly black schools. The court is satisfied that wherever transportation of white or black children is ordered, it serves a desegregative purpose. Thus, the plan is sensitive to the educational aspirations of the children and parents of Detroit who are not themselves responsible for the invidious violations exposed during the liability phase of these hearings.
We do not mean to imply that the plan, even with the modifications made by the court, is perfect. Future events may well dictate that other selections are more desirable; practicalities will change. But we are confident that, with the continued guidance of the court, the Detroit Board will remain responsive to changing practicalities. We are reminded that, even after a finding of segregation, it is the affirmative duty of the local school board to repair the effects of segregation. We found the Detroit Board is willing to assume its constitutional duty to do so (Memo. Op., p. 65) and have taken into account that the "good faith conduct on the part of any litigant in any court, especially a court of equity, and more particularly, in the sensitive area of desegregation, is a vital element for appropriate consideration." [Memo. Op., p. 120, quoting Montgomery County Board of Education v. Carr, 400 F.2d 1, 2 (5th Cir. 1968).] Once the Detroit Board has accepted its responsibility, the court's only remaining obligation is "to determine whether the structure designed by the school board will house a unitary system." (Memo. Op., p. 121.) We are confident that the Detroit Board will continue to seek an equitable balance of the essential "practicalities of the situation."
We have heretofore concluded that an appropriate plan must consider legitimate community concerns. Thus, it is constitutionally permissible for the Detroit Board to consider practicalities that

truly exist and are not contrived to defeat desegregation. Such legitimate concerns deserving weight include the undesirability of forced student reassignments achieving only negligible desegregative results, the undesirability of bussing black children to predominantly black schools, the rapidly shifting population trends occurring naturally in the school district, the decrease in overall student enrollment coupled with the persistent increase in black student enrollment, the predominantly black racial ratio, the depressed economy of the community created by the highest rate of unemployment in the nation, and the financially crippled school district's inability to improve its financial position (Memo. Op., p. 4). The Detroit community is thus assured that the court's guidelines and the plan implemented pursuant thereto fully weigh all the "practicalities of the situation" and at the same time make "every effort to achieve the greatest possible degree of actual desegregation." Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971).[4] We have been attentive to the 946*946 obvious need for residential stability (Memo. Op., p. 2). We have said and again emphasize that ". . . an effective and feasible remedy must prevent resegregation at all costs. . . . In a school district that is only 26% white,[5] a remedy that does not take account of the possibility of resegregation will be short-lived and useless if that percentage of whites further decreased." (Memo. Op., p. 4.)
We are fully aware of the community concern for the hardships involved in forced reassignments, particularly through the use of school bussing. This awareness influenced the court to scrutinize every school involved in the plan carefully to ascertain that the desegregative results achieved warranted the burdens imposed. For example, the court rejected the reassignment of students from the Grayling or Greenfield Union Schools, finding that, although each school was slightly under the 30% black figure that the court used to define a desegregated school, "[t]he presence of other minorities in significant numbers is a permissible practicality to be taken into account when deciding whether a school should be included in reassignment plan." Memorandum and Order of October 8, 1975, at p. 5. In another instance, the court objected to the pairing of the Beard and Wingert Schools because, even though substantial desegregation would result, we found it inequitable to pair Beard with a school as far away as Wingert while other schools adjacent to Beard (Higgins, Harms and Bennett) were paired with schools located much closer to their neighborhood. The court referred to its finding that "there should not be great variances in the transportation burden falling on adjacent areas because such variations will influence residential patterns." (Memo. Op., p. 92.) To further illustrate the close scrutiny the court gave to each aspect of the reassignment plan, we were able to eliminate much needless transportation in Region 7 by rejecting a Board proposal to convert the Wayne Elementary School (92% white) to a middle school and transport Wayne students to Burbank School (97% white). We reminded the Detroit Board that "the bussing of white children to predominantly white schools . . . serves no desegregative purpose and is no less objectionable [than the bussing of black children to predominantly black schools]." Memo. and Order of October 8, 1975, at p. 5.
While some members of the community may be displeased over some of the reassignments the court has deemed essential, it is our hope that their burden will be made easier to bear by the knowledge that the court has given full consideration to every reassignment and has permitted the reassignment of students only where it has concluded that the desegregative results achieved justify the burdens imposed. Moreover, Detroit citizens can be further assured that the court has taken steps to improve the quality of education and has not permitted transfers where the receiving school is not comparable in all respects to the sending school. With assurances that the court and the Detroit Board have carefully weighed the practicalities, we are confident that the Detroit community will recognize that what is implemented today is constitutionally mandated. The citizens of Detroit know that the law must be obeyed.
We have said that a successful desegregative effort emphasizing quality education will require the cooperation and the support of the entire community. We know that Detroiters have always volunteered community support to advance worthwhile causes. We know of no greater cause than

rejuvenating the vitality of the city's schools. A vibrant school system will assure stability for city and community alike. Having assured the Detroit community that the court has weighed the practicalities of the situation fully, we are confident that the plan will receive the cooperation and support of the entire community. When 947*947 cooperation and support are granted freely, the plan will succeed. The support of the community will afford the Detroit school system an opportunity to make a fresh start. This support will enable the school system to fulfill the community aspirations for desegregated quality education for all children. It is our belief that the guidelines announced will create a unitary school system of which Detroit citizens can be proud. A quality school system will evolve that is concerned not with black children nor white children, but just children.
Accordingly, IT IS HEREBY ORDERED that the defendant Detroit Board of Education implement and cause to be implemented the desegregation plan on or before the beginning of the Winter Semester, 1976;
IT IS FURTHER ORDERED that the defendant Detroit Board of Education shall direct its Interim General Superintendent to formulate a program for the implementation of the desegregation plan, and that the defendant Detroit Board of Education shall submit to the court, on or before December 19, 1975, the program as formulated for the appropriate implementation;
IT IS FURTHER ORDERED that, pursuant to the October 2, 1975 order of the U.S. Sixth Circuit Court of Appeals, the parties hereto shall appear before this court on December 1, 1975, at 9:00 A.M., for an appropriate order concerning school closings proposed on pages 10-11 of the defendant Detroit Board of Education's submission of October 21, 1975.
APPENDIX
The plan has been developed from the Detroit Board of Education's submissions of September 19 and October 21, 1975. We recognize that the successful implementation of a desegregation plan will require solutions to a variety of problems and that the rapidly shifting population trend may create new problems.
Because the school district reschedules classes each semester as a part of its regular practice, we do not see any difficulty in implementing the plan at the start of the winter semester at the lower grade level.[1] Moreover, since many high schools already enroll the ninth grade, we do not see many problems caused by the reassignment of ninth graders pursuant to the court's order to change junior high schools to grade 6-8 middle schools. However, desegregation of the high schools poses a number of problems not faced by elementary and middle schools. Since school programs become more specialized at higher grade levels, special provisions must be made for the phasing in of the plan at the high school level. Reassignments occurring during the school year may pose an especially difficult burden for high school students because of the possibility that the receiving high school will not have the same educational programs as the sending high school.
While there is no easy solution to the problem of desegregating the high schools, the Detroit Board may wish to consider a change in the method of high school assignments that will facilitate desegregation. While the Detroit Board makes assignments of students to high schools that are dependent upon middle school or junior high school assignments, many school districts structure high school attendance zones without regard to junior high school assignments. Such a method of assignment possesses greater flexibility and might be of aid to desegregation. The Detroit Board's present method of making high school assignments places unnecessary constraints on desegregation, and does not minimize student travel to high school. The Detroit Board may wish to consider making high school assignments on the basis of elementary attendance zones alone, with

zones possibly being split where it proves advantageous for desegregation or convenience of students. 948*948 This recommendation is particularly appropriate for Regions 4, 6 and 7. Moreover, where high school students are reassigned for desegregative purposes, fairness would require that they be provided transportation where they are assigned to a high school more than two miles from their residence.
The Detroit Board of Education should require that its staff review the attached plan in detail to assure that it is just and feasible. The responsibility remains with the Detroit Board to notify the court if features in the plan require revision because of changing practicalities. In that event, the Detroit Board should proceed by filing a petition for revision of any specific school assignment for the court's consideration.
Finally, the Detroit Board of Education shall establish and publicize an information center that is adequately equipped and staffed to provide a source for dispensing accurate information concerning the desegregation plan to the public and school community. In addition to responding to inquiries, the information center should have a mechanism for accepting suggestions and constructive criticism from parents and other members of the community.
[1] The hearings extended from April 29 to June 27, 1975, consuming approximately nine weeks.
[2] We have concluded that a desegregation plan must be implemented during the Winter Term 1976. Time considerations will not permit another request for re-evaluation of the modifications mandated.
[3] Our guidelines discard the use of rigid ratios in the desegregative effort. We suggest a 50-50 racial ratio as a starting point, but permit deviation therefrom depending upon the practicalities surrounding each individual school.
[4] The plan tracks the court's guidelines as well as might be expected. The school authorities transport approximately 22,000 students and provide walk-in schools for an additional 6,000 students. It is important to emphasize that the school district has always transported 14,000 students to relieve overcrowding and to avoid hazardous crossings. By more efficient use of the transportation already existing, the plan realizes a net gain of 8,000.
[5] The 1975 fourth Friday count discloses that this figure is now 23% white.
[1] It is difficult to ascertain from the plan the precise pairing procedures employed. In Region 2, for example, we have designated schools where rotation pairing is appropriate (see p. 13 of the Plan).

 
 411 F.Supp. 937 (1975)
Ronald BRADLEY et al., Plaintiffs, v.
William G. MILLIKEN, Governor of the State of Michigan, et al., Defendants.
Civ. No. 35257.
United States District Court, E. D. Michigan, S. D.
December 19, 1975.
938*938 Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., for plaintiffs.
George T. Roumell, Jr., Riley & Roumell, Detroit, Mich., Theodore Sachs, Marston, Sachs, O'Connell, Nunn & Freid, Detroit, Mich., George L. McCargar, Jr., Asst. Atty. Gen., Lansing, Mich., for defendants.
MEMORANDUM AND ORDER
DeMASCIO, District Judge.
The defendants in this school desegregation suit, 78 separate and identifiable school districts in Wayne, Oakland and Macomb Counties,[1] have joined in a Motion to Strike, For More Definite Statement and For Additional Relief. Defendants contend that the plaintiffs' Second Amended Complaint is vague and indefinite, that it fails to comply with this court's April 29, 1975 order, that it contains immaterial allegations that should be stricken or in the alternative made more definite because they do not comply with Rule 8 of the Federal Rules of Civil Procedure, that it contains averments dealing with issues the Supreme Court has already decided do not justify interdistrict relief, which should be stricken, and that it contains a number of averments alleging only residential racial segregation, which are not material in a school desegregation case and should be stricken. Finally, the defendants contend that plaintiffs lack standing to maintain this action for interdistrict relief.
We deal first with the issue of standing. Defendants argue that the recently decided Supreme Court case of Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343(decided June 25, 1975), compels the conclusion that plaintiffs herein lack standing to sue. In Warth, the Supreme Court decided that plaintiffs, various organizations and individuals residing in the Rochester, New York metropolitan area, did not have standing to challenge alleged exclusionary zoning practices of the neighboring community 939*939 of Pennfield, New York. Defendants argue that, according to Warth, plaintiffs herein, residents of Detroit, lack standing to challenge alleged discriminatory housing patterns in the surrounding suburban areas.

While we are of course bound by the Supreme Court's decision in Warth, we do not believe that it applies to the situation here. In Warth, the decision that plaintiffs lacked standing was grounded upon the plaintiffs' inability to demonstrate that the acts alleged caused injury to themselves, rather than other unidentified members of the class to which they belonged. In Warth, none of the petitioners had a present interest in any Pennfield property, none was himself subject to the strictures of the ordinance, and none had ever been denied a variance or permit by the respondent officials. Plaintiffs' alleged injury was the deprivation of housing opportunities in Pennfield, but as the Court pointed out, they were unable to show that members of their class would have lived in Pennfield but for the complained-of conduct. In contrast, plaintiffs herein have not complained merely that they have been deprived of housing opportunities in the suburban school districts; they complain that such deprivation has had the effect of causing segregation in the schools of the City of Detroit. Thus, the injury in fact that the plaintiffs have alleged is the segregation of the Detroit schools, not the denial of housing opportunities in suburban communities. This is an injury suffered by plaintiffs themselves, not by other unnamed third parties.
Thus, since Warth is inapplicable, plaintiffs' standing to aver and establish interdistrict equal protection violations must be determined by the test first announced in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The Court there announced that the "gist of the question of standing" is whether the parties seeking relief have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions." The Supreme Court reaffirmed this test in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153-154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970):
"The question of standing . . . concerns, apart from the `case' or `controversy' test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."
Standing in this context thus requires that plaintiffs themselves were injured in fact (i. e., have a sufficient interest in the outcome of the litigation) and be arguably within the zone of interest sufficiently to assure the advocacy essential in an actual case or controversy. The plaintiffs here have already established injury resulting from the segregation found to exist in the Detroit city schools, and now aver that acts by the state and suburban defendants contributed to that injury. They have thus established that they are arguably within the constitutional guarantee in question and have clearly demonstrated a sufficient personal interest to assure the advocacy essential to the progress of the litigation.
Defendants' other objections to plaintiffs' standing to sue may be disposed of easily. Defendants argue that, to the extent that the class is composed of white persons, such persons lack standing to vindicate the rights of black persons. However, this argument lacks merit because segregation is an act that injures black and white alike. Defendants argue that under Moose Lodge v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), plaintiffs have made no showing of injury in fact. This argument is grounded upon the defendants' failure to comprehend that the injury complained of is not the denial of housing opportunities in the suburbs, but segregation of the Detroit schools, an injury that has in fact occurred. See Bradley 940*940 v. Milliken, 338 F.Supp. 582 (E.D.Mich. 1971), aff'd 484 F.2d 215 (6th Cir. 1973), rev'd on other grounds, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). Defendants further argue that by making allegations concerning alleged discriminatory hiring practices in suburban school districts and other internal affairs of school districts other than Detroit, plaintiffs are attempting to assert the rights of third parties. But insofar as these allegations are raised not in and of themselves, but for their effect on segregation in the City of Detroit, they do relate to an injury suffered by plaintiffs themselves. Finally, defendants argue that plaintiffs are seeking to hold defendants responsible for the activities of state and governmental units

over which they have no control. This argument is unsound: it addresses the sufficiency of the allegations, not the standing to maintain the action in the first instance.
Having concluded that plaintiffs have standing to sue, we now address ourselves to the merits of defendants' motion. Defendants make two separate objections to the allegations of plaintiffs' second amended complaint: (1) certain paragraphs should be stricken because they raise issues not material to a school desegregation suit, and (2) certain paragraphs should be stricken or, in the alternative, made more definite because they do not comply with the requirements of specificity in Rule 8, Fed.R. Civ.P.
Defendants have vigorously contended that all allegations of discrimination in the public and private housing markets, as set forth in paragraphs 12, 16, 17, 18, 19, 20, 25, 28 and 29 of the Second Amended Complaint, should be stricken as immaterial to school desegregation issues. Defendants argue that a racial imbalance alone does not violate constitutional rights and that, in any event school districts cannot be used as vehicles for vindicating alleged housing discrimination unrelated to school district policies. Defendants contend that Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966); Higgins v. Board of Education of City of Grand Rapids, 508 F.2d 779 (6th Cir. 1974); Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J.1971), aff'd 404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972); and Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), compel this result.
While the cases are confusing and at times contain conflicting conclusions, we do not agree that residential discrimination in the public and private housing markets is necessarily immaterial to the issue of segregation in public schools. For example, Higgins v. Board of Education, supra, does not support that proposition; the court there did not find that as a matter of law such allegations were immaterial, but found only that the proofs offered were insufficient to support the allegations. In Deal v. Cincinnati Board of Education, supra, the U. S. Court of Appeals held that the district court correctly excluded evidence of alleged housing discrimination because the proofs there established only de facto segregation, which the court found did not justify relief.[2]
We do not agree that the authority relied upon by the defendants compels us to strike these allegations. We believe that a proper reading of these cases is that, while allegations of housing discrimination standing alone are insufficient to support a finding of school segregation necessary to justify interdistrict relief, findings of housing discrimination will not excuse a finding of school segregation where the school districts involved have engaged in other segregative acts at some time in the past. In other words, allegations of housing discrimination are material if other separate 941*941 acts of de jure segregation by the defendants are alleged and proved. Thus, in Evans v. Buchanan,393 F.Supp. 428 (D.Del.1975) an interdistrict remedy was imposed because residential racial discrimination continued and contributed to the effects of prior de jure acts of discrimination. Here, the allegations contained in paragraphs 14 and 21(b), (c), (d), and (e), if taken as true, are sufficient to afford plaintiffs an opportunity to submit their proofs on housing discrimination. In paragraph 14, for example, plaintiffs allege that "[t]he availability of financial assistance and the operation of the state bonding and state aid formula enables suburban districts to make a larger per pupil expenditure despite less tax effort" and that this condition "affect[s] the racial characteristics of both city and suburban school districts . . .." Paragraph 21 contains some allegations that are specific and, at least as far as the school districts cited, may support findings and conclusions in plaintiffs' favor.
Thus, although our order will require the plaintiffs to plead with greater specificity, we agree that their complaint alleges more than merely de facto segregation. The gravamen of plaintiffs' complaint is that acts taken by the state and suburban defendants, coupled with housing discrimination in public and private markets, have had the effect of segregating the Detroit schools. We are reminded

that de jure acts of segregation have already been established as to the Detroit school district, a fact not present in the authority relied upon by defendants. In Swann v. Board of Education, supra, the Supreme Court stated:
"We do not reach in this case the question whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree. This case does not present that question and we therefore do not decide it." 402 U.S. at 23, 91 S.Ct. at 1279.
A complaint with proper averments established by adequate proof may well place that question, left undecided by Swann, before this court.
While we have found that plaintiffs' Second Amended Complaint contains allegations sufficient to survive a motion to strike, we do not mean to say that their complaint is completely satisfactory. Plaintiffs' present complaint was filed on April 29, 1975, pursuant to our April 16, 1975 Memorandum Order denying defendants' motion to dismiss and granting plaintiffs leave to amend. In that order, we encouraged plaintiffs to file "a proper amended complaint" and admonished them to "re-evaluate the evidence they intend to produce to establish interdistrict violations and name parties defendant accordingly." At that time, the court had for its consideration plaintiffs' First Amended Complaint, which was filed pursuant to an order by the U. S. Court of Appeals "to conform averments with the evidence and to add necessary defendants for remedial purposes." (April 16, 1975 Memo. Order.)[3]
We are unable to perceive any material differences between plaintiffs' First and Second Amended Complaints. Both complaints are full of vague, indefinite and conclusory allegations. In their Second Amended Complaint, plaintiffs have continued to name the same parties defendant, still referring to them as "original", "intervening", and "added suburban" defendants. Such terms indicate that the plaintiffs fail to perceive that the original phase of this litigation is over, and that they are in effect in a new lawsuit with new defendants. Rather than alleging precise interdistrict 942*942 violations against specifically named defendants, the plaintiffs have made wholesale allegations against all of the suburban defendants that were included in the so-called "desegregation area" by the late Honorable Stephen Roth when a metropolitan remedy was first before this court over three years ago. However, the court's order defining the "desegregation area" there did not consider the issue we face here: whether specific acts of segregation were committed by these districts to warrant an interdistrict remedy. Milliken v. Bradley, 418 U.S. 717, 733, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). For plaintiffs to persist in joining all 78 defendants in this action indicates to us that they do not perceive the precise holding of the Milliken decision:
"Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of inter-district segregation." 418 U.S. at 745, 94 S.Ct. at 3127, 41 L.Ed.2d at 1091.
In order to state a claim upon which relief may be granted, plaintiffs must be specific. They must allege and prove specific de jure acts of segregation committed by the state and/or one or more of the suburban defendants having the effect of segregating the Detroit city schools. Moreover, it is essential that these acts, as alleged and proved, have an effect on segregation in Detroit, since it is the Detroit plaintiffs who are seeking relief.
Accordingly, we conclude that paragraphs 12, 16-20, 25, 28 and 29, which allege nothing more than de facto housing discrimination, are vague, lack specificity and do not meet the requirements of Rule 8, Fed.R.Civ.P. The averments alleging specific acts of housing discrimination fail to allege specifically how such housing discrimination caused or contributed to school segregation in the City

of Detroit. Further, these allegations do not allege with clarity whether the suburban districts committed these acts, which suburban districts committed these acts, or whether such allegations pertain solely to the state defendants. Moreover, if these averments apply only to the state defendants, they do not allege the causation or relationship to the Detroit city schools.
Even allegations that we cite herein as a possible basis for a finding of liability do not meet the requirements of specificity mandated by Rule 8. In paragraph 21, plaintiffs allege certain specific acts taken by certain specific defendants, but do not allege how, when and to whom these allegations relate and in what manner the acts alleged caused or contributed to segregation in the Detroit city schools. To survive a motion to strike, plaintiffs must allege facts specific enough to enable the defendants to defend. They must allege what the acts were, when they were committed, who did them, and what effect they had, if any, on segregation in Detroit.
Accordingly, IT IS ORDERED that defendants' motion to strike paragraphs 1, 3, 10, 11, 12, 13, 16, 17, 18, 19, 20, 21(a), (b), (c), (d), 25, 26, 28, and 29 is denied;
IT IS FURTHER ORDERED that defendants' motion to strike the words "original", "intervening", "intervening suburban", "added" and "added suburban" from paragraphs 4, 5, 6, 7, 8 and 9 is granted;
IT IS FURTHER ORDERED that defendants' motion for a more definite statement as to paragraphs 12, 13, 16, 17, 18, 19, 20, 21(a), (b), (c), (d), 25, 26, 28 and 29 is granted.
IT IS FURTHER ORDERED that pursuant to Rule 12(e), Fed.R.Civ.P., plaintiffs shall file within twenty (20) days a Third Amended Complaint which contains specific and precise averments consistent with this Memorandum and Order, or face the granting of defendants' motion to strike such allegations. Such a Third Amended Complaint shall allege with specificity what acts were committed by what defendants, when they were committed, and what their effect was on segregation in Detroit, PROVIDED, HOWEVER, that plaintiffs, 943*943 within the twenty-day period, may apply to this court for additional time upon a showing of good cause.
[1] The only school district in the tri-county area that is excluded is the Pontiac, Michigan, School District.
[2] Similarly, in Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J.1971) the court dismissed plaintiff's complaint for failure to state a claim upon which relief could be granted, holding that the state had no affirmative duty to act where only de facto discrimination was found. But see Ybarra v. City of San Jose, 503 F.2d 1041 (9th Cir. 1974). While the Ybarra case is a distinct departure from Deal, the latter, being a Sixth Circuit case, is binding upon us.
[3] We held that the First Amended Complaint was inadequate because "[it] was not filed to relitigate the cause, nor to litigate cross-district violations . . . The first amended complaint was filed to conform the pleadings to proofs which the Supreme Court found insufficient to justify metropolitan relief." (Order, April 16, 1975 at p. 5.)

 
 433 F.2d 897 (1970)
Ronald BRADLEY et al., Plaintiffs-Appellants, v.
William G. MILLIKEN, Governor of Michigan, et al., DefendantsAppellees.
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, 898*898Harvard 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. 899*899 "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 900*900250,000 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 general Act, it is applicable only to one local school system in the State.[2]

Following enactment of Act 48, the Superintendent of Detroit City Schools requested an opinion from the attorney for the Board of Education as to the effect of this statute. This opinion, dated July 28, 1970, contains the following language with respect to § 12:
"The answer to this question is found in Section 12 of Act 48. Section 12 says: `The implementation of any attendance provisions for the 1970-71 901*901school 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 * * *.' "This quoted portion of Section 12 obviously, albeit indirectly, addresses itself to the action taken by the Board on April 7, 1970, with respect to establishing new high school attendance areas. In our opinion, the effect of this provision is to rescind — for at least one year — the attempt made by the Board of Education on April 7, 1970, to achieve integration in its high schools. While Act 48 itself purports only to delay implementation until January 1, 1971, it is well known that no implementation begun even on January 1, 1971, could be placed into operation earlier than the beginning of the Fall semester in September, 1971. For these reasons we deem it unnecessary to recommend that the Board's action on April 7, 1970, establishing high school attendance areas be rescinded."
Further, a movement was initiated by certain Detroit voters to recall the four members of the Detroit School Board who had voted in favor of the April 7, 1970, plan. The recall movement was resolved at the August 4, 1970, election, which resulted in the recall and removal from office of the four board members who voted in favor of the April 7 plan. As stated in footnote 1, these four positions were vacant at the time the complaint was filed and on August 31, 1970, were filled by appointment by the Governor.
In accordance with the opinion of the attorney for the Board of Education quoted above, Detroit school officials did not put the April 7 plan into effect for the 1970-71 school year beginning in September 1970. The Superintendent of City Schools testified that he instructed regional superintendents that "we had to go back to the plan of April 6." The principals of the affected high schools sent out letters or otherwise notified students that regardless of any previous instructions to the contrary, they should attend the high school they would have attended prior to April 7. It is undisputed, that, obedient to the mandate of § 12 of Act 48, the plan adopted by the Board of Education on April 7, has been suspended, or at least deferred to a time beyond January 1, 1971. The high schools in question have reverted to the attendance zones which were in effect prior to the April 7 action of the Board. The tenth grade students who would have attended a high school with an improved racial balance as determined by the Board of Education on April 7 have been deprived of that opportunity from the beginning of the 1970-71 school year until the time of the rendering of this opinion.
On August 18, 1970, plaintiffs filed their complaint in the present case as a class action, attacking the constitutionality of § 12 of Act 48. Among other things the complaint prayed for a preliminary injunction requiring defendants to put into effect the plan adopted by the Detroit Board of Education on April 7 and restraining defendants from giving any force or effect to § 12 of Act 48 insofar as it would inhibit immediate implementation of the Board's plan of April 7.
District Judge Stephen J. Roth advanced the case and scheduled a prompt hearing. Evidentiary hearings were conducted by Judge Roth for three days on August 27-28, and September 1, 1970. The testimony at these hearings comprises three typewritten volumes. On September 3, 1970, Judge Roth released a written opinion denying the application for a preliminary injunction and granting a motion to dismiss the Governor and Attorney General of Michigan as parties defendant. The District Court did not pass upon the issue of the constitutionality of § 12 of Act 48.

The case was advanced on the docket of the District Court for hearing on its merits beginning November 2, 1970. The trial is scheduled to start on that 902*902 date. Two weeks have been allotted by the District Court for this trial.
On September 3, the same day the decision of the District Court was announced, defendants filed a notice of appeal and a motion in this Court for injunction pending appeal. Oral arguments on this motion were heard in Nashville, Tennessee, by the Chief Judge of the Circuit September 8, 1970, pursuant to Rule 8, Fed.R.App.P.[3] The Detroit public schools opened for the 1970-71 school term on September 8, the day of the hearing before the Chief Judge in Nashville.
The Chief Judge entered an order denying the application for injunction pending appeal and advanced the appeal for hearing on its merits before this Court in Cincinnati, Ohio, on October 2, 1970, at 2 p.m. This opinion is rendered after consideration of the briefs and oral arguments of the parties and the record and transcript of the evidence and proceedings in the District Court.
Three questions will be disposed of at the present stage of the proceeding:
(1) The issue of the constitutionality of § 12 of Act 48 (Appendix hereto);
(2) Whether the District Judge abused his discretion in denying the application for a preliminary injunction;
(3) Whether the District Court erred in dismissing the Governor and Attorney General as parties defendant.
1) The Michigan Statute
We first consider the issue of the constitutionality of the statute.
As previously stated, the plan adopted by the Detroit Board of Education was designed to provide a better balance between students of the Negro and white races in twelve high schools. If this plan had come into existence under a judgment of the United States District Court for the Eastern District of Michigan, there could be no question that § 12 of Act 48 would be void. The Legislature of a State cannot annul the judgments nor determine the jurisdiction of the Courts of the United States. United States v. Peters, 9 U.S. 115, 3 L.Ed. 53 (1809).
In the present case the April 7 plan came into being, not as the result of a judgment of a District Court, but by the voluntary action of the Detroit Board of Education in its effort further to implement the mandate of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083,and succeeding cases, such as Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19, and Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716. The implementation of the April 7 plan was thwarted by State action in the form of the Act of the Legislature of Michigan.
In numerous decisions the Supreme Court and other federal courts have held that State action in any form, whether by statute, act of the executive department of a State or local government, or otherwise, will not be permitted to impede, delay or frustrate proceedings to protect the rights guaranteed to members of all races under the Fourteenth Amendment. See:

Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616, holding that the repeal by referendum of the fair housing ordinance previously adopted by the City Council of Akron, Ohio, "discriminates against minorities, and constitutes a real, substantial, and invidious denial of the equal protection of the laws." 393 U.S. at 393, 89 S.Ct. at 562.
Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830, holding invalid a provision of the Constitution of California, adopted by state-wide referendum, 903*903 which nullified previously enacted statutes regulating racial discrimination in housing and authorized "racial discrimination in the housing market." 387 U.S. at 381, 87 S.Ct. at 1634.
Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256, and cases cited therein, invalidating the "massive resistence" legislation enacted by the Virginia Legislature designed to prevent or delay school integration, and requiring reopening of public schools of Prince Edwards County.
Cooper v. Aaron, 358 U.S. 1, 9, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19, nullifying a 1956 amendment to the Constitution of Arkansas which commmanded the Arkansas legislature to oppose "in every constitutional manner the unconstitutional desegregation decisions" of the Supreme Court, and various State statutes enacted for that purpose.
Kelley v. Board of Education of City of Nashville, 270 F.2d 209 (6th Cir.), cert. denied, 361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240, holding a Tennessee statute authorizing separate segregated schools on a voluntary basis to be "patently and manifestly unconstitutional on its face." 270 F.2d at 231.
Lee et al. v. Nyquist, Commissioner of Education of the State of New York, (W.D.N.Y.) 318 F.Supp. 710 (three-judge court, Sept. 29, 1970), which held invalid under the equal protection clause of the Fourteenth Amendment § 3201(2) of the New York Education Law, McKinney's Consol.Laws, c. 16, which "prohibits state education officials and appointed school boards from assigning students, or establishing, reorganizing or maintaining school districts, school zones or attendance units for the purpose of achieving racial equality in attendance." 318 F.Supp. 713.[4]
Keyes v. School District Number One, Denver, Colorado, 313 F.Supp. 61, 303 F.Supp. 279, and 303 F.Supp. 289 (D. Colo.), 396 U.S. 1215, 90 S.Ct. 12, 24 L.Ed.2d 37,involving a school desegregation plan adopted by a school board and an effort to rescind this plan made by the same Board after changes in membership following a school board election.
Holmes v. Leadbetter, 294 F.Supp. 991 (E.D.Mich.) enjoining a proposed referendum to submit an open housing ordinance to voters of Detroit.
Bush v. Orleans Parish School Board, 188 F.Supp. 916 (E.D.La.), aff'd, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806, holding invalid twenty-five measures adopted by the Louisiana Legislature in an effort to circumvent partial desegregation of New Orleans public schools.
Aaron v. McKinley, 173 F.Supp. 944 (E.D.Ark.), aff'd, sub nom. Faubus, Governor v. Aaron, 361 U.S. 197, 80 S.Ct. 291, 4 L.Ed.2d 237, holding unconstitutional two Arkansas statutes authorizing the Governor to close schools and to call for school district elections on the question of whether schools in such districts be integrated, and withholding State school funds from districts in which schools have been closed because of integration.
The foregoing are a few cases selected from the many decisions holding that State action cannot be interposed to delay, obstruct or nullify steps lawfully taken for the purpose of protecting rights guaranteed by the Fourteenth Amendment.

Defendants assert that § 12 is a valid exercise of legislative power. It is true that, as a general rule, a State legislature has plenary power over the arms and instrumentalities of State government, including local boards of education. This power cannot be exercised, however, so as to deprive individuals of constitutionally protected rights. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, distinguishing City of Trenton v. New Jersey, 262 U.S. 182, 904*904 43 S.Ct. 534, 67 L.Ed. 937, Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151, and related cases. Mr. Justice Frankfurter, speaking for the Court in Gomillion, said:
"When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. This principle has had many applications. It has long been recognized in cases which have prohibited a State from exploiting a power acknowledged to be absolute in an isolated context to justify the imposition of an `unconstitutional condition.' What the Court has said in those cases is equally applicable here, viz., that `Acts generally lawful may become unlawful when done to accomplish an unlawful end, United States v. Reading Co., 226 U.S. 324, 357, 33 S.Ct. 90, 57 L.Ed. 243,and a constitutional power cannot be used by way of condition to attain an unconstitutional result.' Western Union Telegraph Co. v. Foster, 247 U.S. 105, 114, 38 S.Ct. 438, 439, 62 L.Ed. 1006." 364 U.S. at 347, 81 S.Ct. at 130.
Defendants rely upon the decision of this Court in Deal v. Cincinnati Board of Education, 369 F.2d 55, cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114, 419 F.2d 1387 (6th Cir.). Deal is distinguishable on its facts from the present case. In Deal this Court held that the school board of a long-established unitary non-racial school system had no constitutional obligation to bus white and Negro children away from districts of their residences in order that racial complexion be balanced in each of the many public schools in the City. In the present case the Detroit Board of Education in the exercise of its discretion took affirmative steps on its own initiative to effect an improved racial balance in twelve senior high schools. This action was thwarted, or at least delayed, by an act of the State Legislature. No comparable situation was presented in Deal.
Defendants defend the constitutionality of the second sentence of § 12 of Act 48 on the ground that the word "shall," which appears twice in that sentence, was intended to mean "may," and that the sentence is not mandatory. We reject this interpretation of the sentence. We find nothing in the Act to indicate any intention on the part of the Legislature to leave the application of this sentence to the discretion of local school officials. We are cited to nothing in the legislative history to support such an interpretation. The word "shall" is ordinarily "the language of command." Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428, 91 L.Ed. 436; Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1566. We interpret the word "shall" in the second sentence of § 12 as meaning precisely what the Michigan legislature said. We conclude that this sentence was enacted with the intention that it be mandatory.
We hold § 12 of Act 48 to be unconstitutional and of no effect as violative of the Fourteenth Amendment. By this ruling on the invalidity of § 12, we express no opinion at the present stage of the case as to the merits of the plan adopted by the School Board on April 7, 1970, or as to whether it was the constitutional obligation of the School Board to adopt all or any part of that plan.
2) Denial of Preliminary Injunction
Although holding that § 12 of Act 48 is unconstitutional, we cannot say that the District Judge abused his discretion in refusing to grant a preliminary injunction upon the basis of the evidence introduced during the three days of hearings.

The granting or denial of a preliminary injunction pending final hearing on the merits is within the sound judicial discretion of the District Court. On appeal, the action of the District Court denying a preliminary injunction will not be disturbed unless contrary to some rule of equity or result of improvident exercise of judicial discretion. 905*905 Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179 (6th Cir.), cert. denied, 390 U.S. 921, 88 S.Ct. 857, 19 L.Ed.2d 982.
The complaint in the present case seeks relief going beyond the scope of the plan of April 7, 1970, and Act 48, such as the assignment of teachers, principals and other school personnel to each school in accordance with the ratio of white and Negro personnel throughout the Detroit school system, and an injunction against all future construction of public school buildings pending Court approval. As previously stated, the District Judge not only conducted an expeditious hearing on the application for a preliminary injunction, but has advanced the case on his docket to November 2, 1970, and allotted two weeks for the trial.
We conclude that the issues presented in this case, involving the public school system of a large city, can best be determined only after a full evidentiary hearing.
In the trial of the case on its merits, the District Judge is directed to give no effect to § 12 of Act 48, because of its unconstitutionality.
3) The Governor and Attorney General as parties defendant
Defendants appeal from the order of the District Court dismissing the Governor and Attorney General of Michigan as parties defendant. We hold that the Governor and Attorney General are proper parties, at least at the present stage of the proceeding. Compare: Sterling v. Constantin, 287 U.S. 378, 393, 53 S.Ct. 190, 77 L.Ed. 375; Ex parte Young, 209 U.S. 123, 157, 161, 28 S.Ct. 441, 52 L.Ed. 714; Arneson v. Denny, 25 F.2d 993 (W.D.Wash.); James v. Almond, 170 F.Supp. 331, 341342 (E.D. Va.), appeal dismissed, 359 U.S. 1006, 79 S.Ct. 1146, 3 L.Ed.2d 987; Bevins v. Prindable, 39 F.Supp. 708, 710 (E.D.Ill.), aff'd, 314 U.S. 573, 62 S.Ct. 116, 86 L.Ed. 465.
That part of the order of the District Court dismissing the Governor and Attorney General of Michigan as parties defendant is reversed.
Affirmed in part, reversed in part and remanded to the District Court for further proceedings not inconsistent with this opinion.
APPENDIX
TEXT OF ACT 48 — PUBLIC ACT OF 1970
Approved by the Governor — July 7, 1970 State of Michigan — 75th Legislature — Regular Session of 1970
An Act to amend the title and sections 4, 5, 6 and 7 of Act No. 244 of the Public Acts of 1969, entitled "An act to require first class school districts to be divided into regional districts and to provide

for local district school boards and to define their powers and duties and the powers and duties of the first class district board," being sections 388.174, 388.175, 388.176 and 388.177 of the Compiled Laws of 1948; to add sections 1a, 2a, 3a and 8 to 13; and to repeal certain acts and parts of acts.
The People of the State of Michigan enact:
Section 1. The title and sections 4, 5, 6 and 7 of Act No. 244 of the Public Acts of 1969, being sections 388.174, 388.175, 388.176 and 388.177 of the Compiled Laws of 1948, are amended and sections 1a, 2a, 3a and 8 to 13 are added to read as follows:
TITLE
An act to require first class school districts to be divided into regions and to provide for regional boards and to define their powers and duties and the powers and duties of the first class district board.
Sec. 1a. On or after January 1, 1971, in any first class school district with more than 100,000 student membership, the board membership of the board of education shall be composed of 8 members determined and elected as provided 906*906 in section 2a plus 5 members determined and elected as provided in section 3a.
Sec. 2a. Immediately following the effective date of this 1970 amendatory act or any date on which a school district becomes a first class school district, 8 regions shall be described in each such first class school district by resolution concurred in by three-fourths of the members elected and serving in each House of the legislature and such regions so described shall be established as regions if and when approved by the superintendent of public instruction. If a concurrent resolution shall not be approved by three-fourths of such members within 7 days of the effective date of this amendatory act or within 30 days of any date on which a school district becomes a first class school district a first class district boundary commission consisting of 3 members appointed by the governor shall determine the boundary lines of such regions within 21 days thereafter if in 1970 or within 30 days thereafter if in any later year. The members of the commission shall receive a compensation of $100.00 per diem per member from the funds appropriated to the department of education. The boundary lines of such regions shall be redetermined by the respective boards of such first class school districts following each federal decennial census but in no event later than April 15 of the first odd numbered year in which regional board members are to be elected following the federal decennial census. In the event of the failure of such respective boards of such first class school districts to redetermine such regional boundary lines by such April 15, the state board of education shall convene within 10 days to make such redetermination and such redetermination of the state board of education shall be the regional boundary lines until the redetermination is made following the next succeeding federal decennial census as provided in this section. Regions shall be as compact, contiguous and nearly equal in population as practicable.
Within each region, there shall be a regional board consisting of 5 members. The members shall be nominated and elected by the registered and qualified electors of each district as is provided by law for the nomination and election of first class school board members except that signatures required on nominating petitions shall be not less than 500 nor more than 1,000. Any candidate properly filed for any educational position in any first class school district as of the effective date of this act shall be considered as a qualified candidate under sections 2a and 3a for the 1970 election provided such candidate makes a request, designation and selection to the election officer empowered by law to accept nominating petitions for such office. No person shall be elected who is not a resident of the

region from which he is elected. The members shall be elected in the general election to be held in November, 1970 and November of 1973 and every 2 years thereafter commencing in 1975.
In the year 1970 regional board members shall be elected in the November general election and candidates for such offices shall not be subject to the primary election. In 1970 a person may qualify as a candidate for the election for regional board member by filing the required number of signatures on or prior to 4 p. m., August 18, 1970. In 1970 signatures of registered electors of the first class district shall be valid without regard to the place of residence of such registered elector. In any year the candidate for regional board member receiving the highest number of votes in each region in the November general election shall be chairman of the regional board and a member of the board of education of his first class school district during his term of office. In case a vacancy occurs for any reason in the combined position of chairman of the regional board and member of the first class school district board of education, the regional board member who received the next highest number of votes in the preceding general election shall assume 907*907 such combined position. The number of members of each regional board shall be maintained at 5 and vacancies shall be filled from among residents of the region by the remaining board members of such region by a majority vote of those serving. No vacancies shall be filled later than 60 days prior to a primary election at which regional board members are to be nominated. The 5 regional board members elected in each region shall commence their terms of office on January 1 following the election and the members shall serve until their successors are elected and qualified.
Sec. 3a. Effective January 1, 1971 there shall be 5 members on the boards of first class school districts elected at large. Members of such boards shall be nominated and elected at the primary and general elections of 1972 and 1974 for 3-year terms commencing on January 1 of the subsequent odd number year, 2 each to be elected in 1972 and 1974. In the year 1970 1 board member shall be elected in the November general election for a 3-year term commencing January 1, 1971 and candidates shall not be subject to the primary election. In 1970 a person may qualify as a candidate for the election for first class school district board member by filing nominating petitions containing not less than 500 nor more than 1,000 valid signatures on or before 4 p. m., August 18, 1970. Commencing in 1973 and in all subsequent odd numbered years, a number of board members equivalent to the number of members whose terms expire on December 31 of such year will be nominated and elected at the primary and general election. Such members so elected shall serve 2year terms commencing on January 1 of the subsequent even numbered year. To accomplish the provisions of this amendatory act the terms of office of any first class district board members whose terms expire prior to December 31, 1971 shall expire December 31, 1970; the terms of office of such board members whose terms expire between January 1, 1972 and December 31, 1973 shall expire December 31, 1972 and the terms of office of such board members whose terms expire between January 1, 1974 and December 31, 1975 shall expire December 31, 1974.
In any year in which one or more board members of a first class district are commencing a term of office on January 1 the board of such first class district shall redetermine its selection of officers during the month of January of such year. Petitions to recall any member or members of the board of education of a first class school district filed and pending before this act becomes effective, or becomes operative in a school district that hereafter becomes a first class school district, may be withdrawn by the person or organization filing or sponsoring such recall petitions within 10 days after this act becomes effective or 20 days after the act becomes operative in any school district that hereafter becomes a first class school district. Board members of first class school districts who are recalled in accordance with law may be candidates for the same office at the next election for such office at which the recalled member is otherwise eligible. In the case of any school district that hereafter becomes a first class school district, the term of office of each of the board members then serving in such school district shall expire on the next succeeding December 31 of an odd numbered year, provided however that if the school district becomes a first class school district later than April 1 of an odd numbered year, the term of office of each of its board members shall expire on

December 31 of the next succeeding odd numbered year later than the year in which the district became a first class school district. For any district becoming a first class district 5 school board members shall be elected in the general election of the odd numbered year in which such terms of office expire and the 5 school board members so elected shall commence 2-year terms on January 1 of the even numbered year following such general election.
In case a vacancy occurs for any reason on the first class district board such 908*908vacancy shall be filled by majority vote of all persons serving as regional board and first class district board members at a meeting called by the president of the first class district board for such purpose. No vacancies shall be filled later than 60 days prior to a primary election at which first class district board members are to be nominated. Vacancies which shall occur prior to the effective date of this act or have occurred in 1970, shall be filled for a term ending December 31, 1972 in the same manner as provided in this section for the election of board members at large in the year 1970 and such positions shall then be filled in the primary and general election of 1972 for a 3 year term. In 1970 the candidate receiving the highest number of votes shall be elected for the 3 year term and the candidates receiving the next highest number of votes shall be elected for 2 year terms to fill vacancies.
Sec. 4. A candidate for a regional board must be 21 years of age at the time of filing and must reside in the region in which he becomes a candidate. If his legal residence is moved from the region during his term of office, it shall constitute a vacating of office.
Sec. 5. The first class school district board shall retain all the powers and duties now possessed by a first class school district except for those given to a regional board under the provisions of this act and such other functions as are delegated to the regional boards by the first class school district board.
Sec. 6. Effective upon the commencement of its term of office, the regional board, subject to guidelines established by the first class district board, shall have the power to:
(1) Employ a superintendent for the schools in the region from a list or lists of candidates submitted by the first class district board and to discharge any such regional superintendent.
(2) Employ and discharge, assign and promote all teachers and other employees of the region and schools therein subject to review by the first class school district board, which may overrule, modify or affirm the action of the regional board.
(3) Determine the curriculum, use of educational facilities and establishment of educational and testing programs in the region and schools therein.
(4) Determine the budget for the region and schools therein based upon the allocation of funds received from the first class school district board.
Sec. 7. The rights of retirement, tenure, seniority and of any other benefits of any employee transferred to a region or schools therein from the first class district or transferred between regions shall not be abrogated, diminished or impaired.
Sec. 8. The first class school district board shall perform the following functions for the regions and schools therein:
(1) Central purchasing.

(2) Payroll.
(3) Contract negotiations for all employees, subject to the provisions of Act No. 336 of the Public Acts of 1947, as amended, being sections 423.201 to 423.216 of the Compiled Laws of 1948, and subject to any bargaining certification and to the provisions of any collective bargaining agreement pertaining to affected employees.
(4) Property Management and Maintenance.
(5) Bonding.
(6) Special education programs.
(7) Allocation of funds for capital outlay and operations for each region and schools therein.
(8) Establish or modify guidelines for the implementation of the provisions of section 6. Such guidelines shall include but not be limited to the determination and specification of each regional board's jurisdiction and may provide for regional board's jurisdiction over schools not geographically located within their respective regions.
Sec. 9. Facilities and accommodations provided by the first class school district board for regional boards shall be 909*909 selected with due consideration for accessibility, economy and utilization of existing facilities. Employees assigned by the first class school district board to regional boards at the time of commencement of their functions shall be drawn, to the extent feasible, from persons employed at such time by the first class school district.
Sec. 10. Regional board members shall be paid a per diem allowance of $20.00 for each meeting of their board attended and first class district board members shall be paid a per diem allowance of $30.00 for each meeting of their board attended, but in neither case shall such payments be for meetings in excess of 52 meetings per annum. The chairman of each regional board shall be paid for up to 52 regional board meetings attended and up to 52 first class district board meetings attended.
Sec. 11. First class school districts with 100,000 student membership or more shall have the same rights for initiative petition and referendum now granted by law to second and third class districts.
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.
Sec. 13. If any portion of this act or the application thereof to any person or circumstance shall be found to be invalid by a court, such validity shall not affect the remaining portions or applications of

this act which can be given effect without the invalid portion or application, and to this end this act is declared to be severable.
Section 2. Sections 1, 2 and 3 of Act No. 244 of the Public Acts of 1969, being sections 388.171, 388.172 and 388.173 of the Compiled Laws of 1948, are repealed.
This act is ordered to take immediate effect.
[1] The Detroit Board of Education normally consists of seven members. At the time the complaint was filed four of the members had been recalled in an election held August 4, 1970. On August 31, 1970, the Governor appointed four new members to the vacancies created by the recall vote.
[2] Since the statute is local in application, it is conceded by all parties that its constitutionality can be determined by a onejudge District Court and by this Court on appeal, and that it is not necessary to convene a three-judge District Court under 28 U.S.C. § 2281. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643; Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 227, 84 S.Ct. 1226, 12 L.Ed.2d 256; Rorick et al. v. Board of Comm'rs of Everglades Drainage Dist. et al., 307 U.S. 208, 212, 59 S.Ct. 808, 83 L.Ed. 1242.
[3] Rule 8 provides: "The motion * * * normally will be considered by a panel or division of the court, but in exceptional cases where such procedure would be impracticable due to the requirements of time, the application may be made to and considered by a single judge of the court."
[4] The case of North Carolina State Board of Education v. Swann, 391 U.S. ___, 91 S.Ct. 11, 27 L.Ed.2d 34, involving the validity of the North Carolina anti-busing law, is now pending before the Supreme Court of the United States.

 
 433 U.S. 267 (1977)
MILLIKEN, GOVERNOR OF MICHIGAN, ET AL. v.
BRADLEY ET AL.
No. 76-447.
Supreme Court of the United States.
Argued March 22, 1977. Decided June 27, 1977. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
268*268 Frank J. Kelley, Attorney General of Michigan, argued the cause for petitioners. With him on the briefs were Robert A. Derengoski, Solicitor General, and Gerald F. Young, George L. McCargar, and Mary Kay Bottecelli, Assistant Attorneys General.
Nathaniel R. Jones argued the cause for Bradley respondents. With him on the brief were Paul R. Dimond, Louis R. Lucas, Robert A. Murphy, William E. Caldwell, and Richard S. Kohn. George T. Roumell, Jr., argued the cause for respondent Detroit Board of Education. With him on the brief were Jane K. Souris and Thomas M. J. Hathaway.[*]
269*269 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to consider two questions concerning the remedial powers of federal district courts in school desegregation cases, namely, whether a District Court can, as part of a desegregation decree, order compensatory or remedial educational programs for schoolchildren who have been subjected to past acts of de juresegregation, and whether, consistent with the Eleventh Amendment, a federal court can require state officials found responsible for constitutional violations to bear part of the costs of those programs.
I
This case is before the Court for the second time, following our remand, Milliken v. Bradley, 418 U. S. 717 (1974) (Milliken I); it marks the culmination of seven years of litigation over de jure school segregation in the Detroit public school system. For almost six years, the litigation has focused exclusively on the appropriate remedy to correct official acts of racial discrimination committed by both the Detroit School Board and the State of Michigan. No challenge is now made by the State or the local school board to the prior findings of de jure segregation.[1]
A 270*270

In the first stage of the remedy proceedings, which we reviewed in Milliken I, supra, the District Court, after reviewing several "Detroit-only" desegregation plans, concluded that an interdistrict plan was required to "`achieve the greatest degree of actual desegregation . . . [so that] no school, grade or classroom [would be] substantially disproportionate to the overall pupil racial composition.'" 345 F. Supp. 914, 918 (ED Mich. 1972), quoted in Milliken I, supra, at 734. On those premises, the District Court ordered the parties to submit plans for "metropolitan desegregation" and appointed a ninemember panel to formulate a desegregation plan, which would encompass a "desegregation area" consisting of 54 school districts.
In June 1973, a divided Court of Appeals, sitting en banc, upheld, 484 F. 2d 215 (CA6), the District Court's determination that a metropolitanwide plan was essential to bring about what the District Court had described as "the greatest degree of actual desegregation . . . ." 345 F. Supp., at 918. We reversed, holding that the order exceeded appropriate limits of federal equitable authority as defined in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 24 (1971), by concluding that "as a matter of substantive constitutional right, [a] particular degree of racial balance" is required, and by subjecting other school districts, uninvolved with and unaffected by any constitutional violations, to the court's remedial powers. Milliken I, supra. Proceeding from the Swannstandard "that the scope of the remedy is determined by the nature and extent of the constitutional violation," we held that, on the record before us, there was no interdistrict violation 271*271 calling for an interdistrict remedy. Because the District Court's "metropolitan remedy" went beyond the constitutional violation, we remanded the case for further proceedings "leading to prompt formulation of a decree directed to eliminating the segregation found to exist in the Detroit city schools, a remedy which has been delayed since 1970." 418 U. S., at 753.[2]
B
Due to the intervening death of Judge Stephen J. Roth, who had presided over the litigation from the outset, the case on remand was reassigned to Judge Robert E. DeMascio. Judge DeMascio promptly ordered respondent Bradley and the Detroit Board to submit desegregation plans limited to the Detroit school system. On April 1, 1975, both parties submitted their proposed plans. Respondent Bradley's plan was limited solely to pupil reassignment; the proposal called for extensive transportation of students to achieve the plan's ultimate goal of assuring that every school within the district reflected, within 15 percentage points, the racial ratio of the school district as a whole.[3]In contrast to respondent Bradley's 272*272 proposal, the Detroit Board's plan provided for sufficient pupil reassignment to eliminate "racially identifiable white elementary schools," while ensuring that "every child will spend at least a portion of his education in either a neighborhood elementary school or a neighborhood junior and senior high school." 402 F. Supp. 1096, 1116 (1975). By eschewing racial ratios for each school, the Board's plan contemplated transportation of fewer students for shorter distances than respondent Bradley's proposal.[4]
In addition to student reassignments, the Board's plan called for implementation of 13 remedial or compensatory programs, referred to in the record as "educational components." These compensatory programs, which were proposed in addition to the plan's provisions for magnet schools and vocational high schools, included three of the four components at issue in this case—inservice training for teachers and administrators, guidance and counseling programs, and revised testing procedures.[5]Pursuant to the District Court's direction, the State Board of Education[6] on April 21, 1975, 273*273 submitted a critique of the Detroit Board's desegregation plan; in its report, the State Board opined that, although "[i]t is possible that none of the thirteen `quality education' components is essential . . . to correct the constitutional violation . . . ," 8 of the 13 proposed programs nonetheless deserved special consideration in the desegregation setting. Of particular relevance here, the State Board said:

"Within the context of effectuating a pupil desegregation plan, the in-service training [and] guidance and counseling . . . components appear to deserve special emphasis." 4 Record, Doc. 591, pp. 3839.[7]
After receiving the State Board's critique,[8] the District Court conducted extensive hearings on the two plans over a two-month period. Substantial testimony was adduced with respect to the proposed educational components, including testimony by petitioners' expert witnesses.[9] Based on this 274*274 evidence and on reports of court-appointed experts, the District Court on August 11, 1975, approved, in principle, the Detroit Board's inclusion of remedial and compensatory educational components in the desegregation plan.[10]
"We find that the majority of the educational components included in the Detroit Board plan are essential for a school district undergoing desegregation. While it is true that the delivery of quality desegregated educational services is the obligation of the school board, nevertheless this court deems it essential to mandate educational components where they are needed to remedy effects of past segregation, to assure a successful desegregative effort and to minimize the possibility of resegregation." 402 F. Supp., at 1118.
The District Court expressly found that the two components of testing and counseling, as then administered in Detroit's 275*275 schools, were infected with the discriminatory bias of a segregated school system:
"In a segregated setting many techniques deny equal protection to black students, such as discriminatory testing [and] discriminatory counseling . . . ." Ibid.
The District Court also found that, to make desegregation work, it was necessary to include remedial reading programs and in-service training for teachers and administrators:
"In a system undergoing desegregation, teachers will require orientation and training for desegregation. . . . Additionally, we find that . . . comprehensive reading programs are essential . . . to a successful desegregative effort." Ibid.
Having established these general principles, the District Court formulated several "remedial guidelines" to govern the Detroit Board's development of a final plan. Declining "to substitute its authority for the authority of elected state and local officials to decide which educational components are beneficial to the school community," id., at 1145, the District Judge laid down the following guidelines with respect to each of the four educational components at issue here:
(a) Reading. Concluding that "[t]here is no educational component more directly associated with the process of desegregation than reading," id., at 1138, the District Court directed the General Superintendent of Detroit's schools to institute a remedial reading and communications skills program "[t]o eradicate the effects of past discrimination . . . ." Ibid. The content of the required program was not prescribed by the court; rather, formulation and implementation of the program was left to the Superintendent and to a committee to be selected by him.
(b) In-Service Training. The court also directed the Detroit Board to formulate a comprehensive inservice teacher 276*276 training program, an element "essential to a system undergoing desegregation." Id., at 1139. In the District Court's view, an in-service training program for teachers and administrators, to train professional and instructional personnel to cope with the desegregation process in Detroit, would tend to ensure that all students in a desegregated system would be treated equally by teachers and administrators able, by virtue of special training, to cope with special problems presented by desegregation, and thereby facilitate Detroit's conversion to a unitary system.

(c) Testing. Because it found, based on record evidence, that Negro children "are especially affected by biased testing procedures," the District Court determined that, frequently, minority students in Detroit were adversely affected by discriminatory testing procedures. Unless the school system's tests were administered in a way "free from racial, ethnic and cultural bias," the District Court concluded that Negro children in Detroit might thereafter be impeded in their educational growth. Id., at 1142. Accordingly, the court directed the Detroit Board and the State Department of Education to institute a testing program along the lines proposed by the local school board in its original desegregation plan. Ibid.
(d) Counseling and Career Guidance. Finally, the District Court addressed what expert witnesses had described as psychological pressures on Detroit's students in a system undergoing desegregation. Counselors were required, the court concluded, both to deal with the numerous problems and tensions arising in the change from Detroit's dual system, and, more concretely, to counsel students concerning the new vocational and technical school programs available under the plan through the cooperation of state and local officials.[11]
277*277 Nine months later, on May 11, 1976, the District Court entered its final order. Emphasizing that it had "been careful to order only what is essential for a school district undergoing desegregation," App. to Pet. for Cert. 117a, the court ordered the Detroit Board and the state defendants to institute comprehensive programs as to the four educational components by the start of the September 1976 school term. The cost of these four programs, the court concluded, was to be equally borne by the Detroit School Board and the State. To carry out this cost sharing, the court directed the local board to calculate its highest budget allocation in any prior year for the several educational programs and, from that base, any excess cost attributable to the desegregation plan was to be paid equally by the two groups of defendants responsible for prior constitutional violations, i. e., the Detroit Board and the state defendants.
C
On appeal, the Court of Appeals for the Sixth Circuit affirmed the District Court's order concerning the implementation of and cost sharing for the four educational components.[12] 540 F. 2d 229 (1976). The Court of Appeals expressly 278*278 approved the District Court's findings as to the necessity for these compensatory programs:
"This finding . . . is not clearly erroneous, but to the contrary is supported by ample evidence. "The need for in-service training of the educational staff and development of nondiscriminatory testing is obvious. The former is needed to insure that the teachers and administrators will be able to work effectively in a desegregated environment. The latter is needed to insure that students are not evaluated unequally because of built-in bias in the tests administered in formerly segregated schools. "We agree with the District Court that the reading and counseling programs are essential to the effort to combat the effects of segregation. . . . . . "Without the reading and counseling components, black students might be deprived of the motivation and achievement levels which the desegregation remedy is designed to accomplish." Id., at 241.
After reviewing the record, the Court of Appeals confirmed that the District Court relied largely on the Detroit School Board in formulating the decree:
"This is not a situation where the District Court `appears to have acted solely according to its own notions of good educational policy unrelated to the demands of the Constitution.'" Id., at 241-242,

quoting Keyes v. School Dist. No. 1, Denver, Colo., 521 F. 2d 465, 483 (CA10 1975), cert. denied, 423 U. S. 1066 (1976).
After upholding the remedial-components portion of the plan, the Court of Appeals went on to affirm the District Court's allocation of costs between the state and local officials. Analyzing this Court's decision in Edelman v. Jordan, 415 U. S. 651 (1974), which reaffirmed the rule that the Eleventh 279*279 Amendment bars an ordinary suit for money damages against the State without its consent, the Court of Appeals held:
"[The District Court's order] imposes no money judgment on the State of Michigan for past de jure segregation practices. Rather, the order is directed toward the State defendants as a part of a prospective plan to comply with a constitutional requirement to eradicate all vestiges of de jure segregation." 540 F. 2d, at 245. (Emphasis supplied.)
The Court of Appeals remanded the case for further consideration of the three central city regions untouched by the District Court's pupil reassignment plan. See n. 12, supra.
The state defendants then sought review in this Court, challenging only those portions of the District Court's comprehensive remedial order dealing with the four educational components and with the State's obligation to defray the costs of those programs. We granted certiorari, 429 U. S. 958 (1976), and we affirm.
II
This Court has not previously addressed directly the question whether federal courts can order remedial education programs as part of a school desegregation decree.[13]However, the general principles governing our resolution of this issue are well settled by the prior decisions of this Court. In the first case concerning federal courts' remedial powers in eliminating de jure school segregation, the Court laid down the basic rule which governs to this day: "In fashioning and 280*280 effectuating the [desegregation] decrees, the courts will be guided by equitable principles." Brown v. Board of Education,349 U. S. 294, 300 (1955) (Brown II).
A
Application of those "equitable principles," we have held, requires federal courts to focus upon three factors. In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Swann v. CharlotteMecklenburg Board of Education, 402 U. S., at 16. The remedy must therefore be related to "the condition alleged to offend the Constitution . . . ." Milliken I, 418 U. S., at 738.[14] Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible "to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Id., at 746.[15] Third, the federal courts in devising a remedy must 281*281 take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution. In Brown II the Court squarely held that "[s]chool authorities have the primary responsibility for elucidating, assessing, and solving these problems . . . ." 349 U. S., at 299. (Emphasis supplied.) If, however, "school authorities fail in their affirmative obligations . . . judicial authority may be invoked." Swann, supra, at 15. Once invoked, "the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Ibid.

B
In challenging the order before us, petitioners do not specifically question that the District Court's mandated programs are designed, as nearly as practicable, to restore the schoolchildren of Detroit to the position they would have enjoyed absent constitutional violations by state and local officials. And, petitioners do not contend, nor could they, that the prerogatives of the Detroit School Board have been abrogated by the decree, since of course the Detroit School Board itself proposed incorporation of these programs in the first place. Petitioners' sole contention is that, under Swann, the District Court's order exceeds the scope of the constitutional violation. Invoking our holding in Milliken I,petitioners claim that, since the constitutional violation found by the District Court was the unlawful segregation of students on the basis of race, the court's decree must be limited to remedying unlawful pupil assignments. This contention misconceives the principle petitioners seek to invoke, and we reject their argument.
The well-settled principle that the nature and scope of 282*282 the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, see Pasadena Bd. of Education v. Spangler, 427 U. S. 424 (1976),or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation, as in Milliken I, supra. Hills v. Gautreaux, 425 U. S. 284, 292-296 (1976). But where, as here, a constitutional violation has been found, the remedy does not "exceed" the violation if the remedy is tailored to cure the "`conditionthat offends the Constitution.'" Milliken I, supra, at 738. (Emphasis supplied.)
The "condition" offending the Constitution is Detroit's de jure segregated school system, which was so pervasively and persistently segregated that the District Court found that the need for the educational components flowed directly from constitutional violations by both state and local officials. These specific educational remedies, although normally left to the discretion of the elected school board and professional educators, were deemed necessary to restore the victims of discriminatory conduct to the position they would have enjoyed in terms of education had these four components been provided in a nondiscriminatory manner in a school system free from pervasive de jure racial segregation.
In the first case invalidating a de jure system, a unanimous Court, speaking through Mr. Chief Justice Warren, held in Brown v. Board of Education, 347 U. S. 483, 495 (1954) (Brown I): "Separate educational facilities are inherently unequal." And in United Statesv. Montgomery County Bd. of Educ., 395 U. S. 225 (1969), the Court concerned itself not with pupil assignment, but with the desegregation of faculty and staff as part of the process of dismantling a dual 283*283 system. In doing so, the Court, there speaking through Mr. Justice Black, focused on the reason for judicial concerns going beyond pupil assignment: "The dispute . . . deals with faculty and staff desegregation, a goal that we have recognized to be an important aspect of the basic task of achieving a public school system wholly free from racial discrimination." Id., at 231-232. (Emphasis supplied.)
Montgomery County therefore stands firmly for the proposition that matters other than pupil assignment must on occasion be addressed by federal courts to eliminate the effects of prior segregation. Similarly, in Swann we reaffirmed the principle laid down in Green v. County School Bd., 391 U. S. 430 (1968), that "existing policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities were among the most important indicia of a segregated system." 402 U. S., at 18. In a word, discriminatory student assignment policies can themselves manifest and breed other inequalities built into a dual system founded on racial

discrimination. Federal courts need not, and cannot, close their eyes to inequalities, shown by the record, which flow from a longstanding segregated system.
C
In light of the mandate of Brown I and Brown II, federal courts have, over the years, often required the inclusion of remedial programs in desegregation plans to overcome the inequalities inherent in dual school systems. In 1966, for example, the District Court for the District of South Carolina directed the inclusion of remedial courses to overcome the effects of a segregated system:
"Because the weaknesses of a dual school system may have already affected many children, the court would be remiss in its duty if any desegregation plan were approved which did not provide for remedial education courses. They shall be included in the plan." Miller v. School 284*284District 2, Clarendon County, S. C., 256 F. Supp. 370, 377 (1966).
In 1967, the Court of Appeals for the Fifth Circuit, then engaged in overseeing the desegregation of numerous school districts in the South, laid down the following requirement in an en banc decision:
"The defendants shall provide remedial education programs which permit students attending or who have previously attended segregated schools to overcome past inadequacies in their education." United States v. Jefferson County Board of Education, 380 F. 2d 385, 394, cert. denied, 389 U. S. 840 (1967). (Emphasis supplied.)
See also Stell v. Board of Public Education of Savannah, 387 F. 2d 486, 492, 496-497 (CA5 1967); Hill v. Lafourche Parish School Board, 291 F. Supp. 819, 823 (ED La. 1967); Redman v. Terrebonne Parish School Board, 293 F. Supp. 376, 379 (ED La. 1967); Leev. Macon County Board of Education, 267 F. Supp. 458, 489 (MD Ala. 1967); Graves v. Walton County Board of Education, 300 F. Supp. 188, 200 (MD Ga. 1968), aff'd, 410 F. 2d 1153 (CA5 1969). Two years later, the Fifth Circuit again adhered to the rule that district courts could properly seek to overcome the built-in inadequacies of a segregated educational system:
"The trial court concluded that the school board must establish remedial programs to assist students who previously attended all-Negro schools when those students transfer to formerly all-white schools . . . . The remedial programs . . . are an integral part of a program for compensatory education to be provided Negro students who have long been disadvantaged by the inequities and discrimination inherent in the dual school system. The requirement that the School Board institute remedial programs so far as they are feasible is a proper exercise of the court's discretion." Plaquemines Parish School Bd. v. 285*285 United States, 415 F. 2d 817, 831 (1969). (Emphasis supplied.)
In the same year the United States District Court for the Eastern District of Louisiana required school authorities to come forward with a remedial educational program as part of a desegregation plan. "`The defendants shall provide remedial education programs which permit students . . . who have previously attended all-Negro schools to overcome past inadequacies in their education.'" Smith v. St. Tammany Parish School Board, 302 F. Supp. 106, 110 (1969), aff'd, 448 F. 2d 414 (CA5 1971). See also Moore v. Tangipahoa Parish School Board, 304 F. Supp. 244, 253 (ED La. 1969); Moses v. Washington Parish School Board, 302 F. Supp. 362, 367 (ED La. 1969).
In the 1970's, the pattern has been essentially the same. The Fifth Circuit has, when the fact situation warranted, continued to call for remedial education programs in desegregation plans. E. g., United States v. Texas, 447 F. 2d 441, 448 (1971), stay denied sub nom. Edgar v. United

States, 404 U. S. 1206 (1971) (Black, J., in chambers). To that end, the approved plan in United States v. Texas required:
"[C]urriculum offerings and programs shall include specific educational programs designed to compensate minority group children for unequal educational opportunities resulting from past or present racial and ethnic isolation . . . ." 447 F. 2d, at 448.[16]
See also George v. O'Kelly, 448 F. 2d 148, 150 (CA5 1971). And, as school desegregation litigation emerged in other 286*286 regions of the country, federal courts have likewise looked in part to remedial programs, when the record supported an order to that effect. See, e. g., Morgan v. Kerrigan, 401 F. Supp. 216, 235 (Mass. 1975), aff'd, 530 F. 2d 401 (CA1), cert. denied sub nom. White v. Morgan, 426 U. S. 935 (1976); Hart v. Community School Board of Brooklyn, 383 F. Supp. 699, 757 (EDNY 1974), aff'd, 512 F. 2d 37 (CA2 1975); cf. Booker v. Special School Dist. 1, Minneapolis, Minn., 351 F. Supp. 799 (Minn. 1972).[17]
Finally, in addition to other remedial programs, which could, if circumstances warranted, include programs to remedy deficiencies, particularly in reading and communications skills, federal courts have expressly ordered special in-service training for teachers, see, e. g., United States v. Missouri, 523 F. 2d 885, 887 (CA8 1975); Smith v. St. Tammany Parish School Board, supra, at 110; Moore v. Tangipahoa Parish School Board, supra, at 253, and have altered or even suspended testing programs employed by school systems undergoing desegregation. See, e. g., Singleton v. Jackson Municipal Separate School Dist., 419 F. 2d 1211, 1219 (CA5 1969), cert. denied, 396 U. S. 1032 (1970); Lemon v. Bossier Parish School Board, 444 F. 2d 1400, 1401 (CA5 1971); Arvizu v. Waco Independent School Dist., 373 F. Supp. 1264 (WD Tex. 1973), rev'd in part on other issues, 495 F. 2d 499 (CA5 1974).
Our reference to these cases is not to be taken as necessarily approving holdings not reviewed by this Court. However, they demonstrate that the District Court in the case now 287*287 before us did not break new ground in approving the School Board's proposed plan. Quite the contrary, acting on abundant evidence in this record, the District Court approved a remedial plan going beyond mere pupil assignments, as expressly approved by Swann and Montgomery County. In so doing, the District Court was adopting specific programs proposed by local school authorities, who must be presumed to be familiar with the problems and the needs of a system undergoing desegregation.[18]
We do not, of course, imply that the order here is a blueprint for other cases. That cannot be; in school desegregation cases, "[t]here is no universal answer to complex problems . . . ; there is obviously no one plan that will do the job in every case." Green, 391 U. S., at 439. On this record, however, we are bound to conclude that the decree before us was aptly tailored to remedy the consequences of the constitutional violation. Children who have been thus educationally and culturally set apart from the larger community will inevitably acquire habits of speech, conduct, and attitudes reflecting their cultural isolation. They are likely to acquire speech habits, for example, which vary from the environment in which they must ultimately function and compete, if they are to enter and be a part of that community. This is not peculiar to race; in this setting, it can affect any children who, as a group, are isolated by force of law from the mainstream. Cf. Lau v. Nichols, 414 U. S. 563 (1974).
Pupil assignment alone does not automatically remedy the impact of previous, unlawful educational isolation; the consequences linger and can be dealt with only by independent 288*288 measures. In short, speech habits acquired in a segregated system do not vanish simply by moving the child to a desegregated school. The root condition shown by this record must be treated directly by special training at the hands of teachers prepared for that task. This is what the District Judge in the case

drew from the record before him as to the consequences of Detroit's de jure system, and we cannot conclude that the remedies decreed exceeded the scope of the violations found.
Nor do we find any other reason to believe that the broad and flexible equity powers of the court were abused in this case. The established role of local school authorities was maintained inviolate, and the remedy is indeed remedial. The order does not punish anyone, nor does it impair or jeopardize the educational system in Detroit.[19] The District Court, in short, was true to the principle laid down in Brown II:
"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power." 349 U. S., at 300 (footnotes omitted).
III
Petitioners also contend that the District Court's order, even if otherwise proper, violates the Eleventh Amendment. In their view, the requirement that the state defendants pay one-half the additional costs attributable to the four educational 289*289 components is, "in practical effect, indistinguishable from an award of money damages against the state based upon the asserted prior misconduct of state officials." Brief for Petitioners 34. Arguing from this premise, petitioners conclude that the "award" in this case is barred under this Court's holding in Edelman v. Jordan, 415 U. S. 651 (1974).
Edelman involved a suit for money damages against the State, as well as for prospective injunctive relief.[20] The suit was brought by an individual who claimed that Illinois officials had improperly withheld disability benefit payments from him and from the members of his class. Applying traditional Eleventh Amendment principles, we held that the suit was barred to the extent the suit sought "the award of an accrued monetary liability . . ." which represented "retroactive payments." Id., at 663664. (Emphasis supplied.) Conversely, the Court held that the suit was proper to the extent it sought "payment of state funds . . . as a necessary consequence of compliance in the futurewith a substantive federal-question determination . . . ." Id., at 668. (Emphasis supplied.)
The decree to share the future costs of educational components in this case fits squarely within the prospective-compliance exception reaffirmed by Edelman. That exception, which had its genesis in Ex parte Young, 209 U. S. 123 (1908), permits federal courts to enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on the state treasury. 415 U. S., at 667. The order challenged here does no more than that. The decree requires state officials, held responsible for unconstitutional conduct, in findings which are not challenged, to eliminate a de jure segregated school system. More precisely, the burden of state officials is that set forth 290*290 in Swann—to take the necessary steps "to eliminate from the public schools all vestiges of state-imposed segregation." 402 U. S., at 15. The educational components, which the District Court ordered into effect prospectively, are plainly designed to wipe out continuing conditions of inequality produced by the inherently unequal dual school system long maintained by Detroit.[21]
These programs were not, and as a practical matter could not be, intended to wipe the slate clean by one bold stroke, as could a retroactive award of money in Edelman.[22]Rather, by the nature of the antecedent violation, which on this record caused significant deficiencies in communications skills— reading and speaking—the victims of Detroit's de jure segregated system will continue to experience the effects of segregation until such future time as the remedial programs can help dissipate the continuing effects of past misconduct. Reading and speech deficiencies cannot be eliminated by

judicial fiat; they will require time, patience, and the skills of specially trained teachers. That the programs are also "compensatory" in nature does not change the fact that they are part of a plan that operates prospectively to bring about the delayed benefits of a unitary school system. We therefore hold that such prospective relief is not barred by the Eleventh Amendment.[23]
291*291 Finally, there is no merit to petitioners' claims that the relief ordered here violates the Tenth Amendment and general principles of federalism. The Tenth Amendment's reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment. Cf. Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). Nor are principles of federalism abrogated by the decree. The District Court has neither attempted to restructure local governmental entities nor to mandate a particular method or structure of state or local financing. Cf. San Antonio School Dist. v. Rodriguez, 411 U. S. 1 (1973). The District Court has, rather, properly enforced the guarantees of the Fourteenth Amendment consistent with our prior holdings, and in a manner that does not jeopardize the integrity of the structure or functions of state and local government.
The judgment of the Court of Appeals is therefore
Affirmed.
MR. JUSTICE MARSHALL, concurring.
I wholeheartedly join THE CHIEF JUSTICE'S opinion for the Court. My Brother POWELL's opinion prompts these additional comments.
What is, to me, most tragic about this case is that in all relevant respects it is in no way unique. That a northern school board has been found guilty of intentionally discriminatory acts is, unfortunately, not unusual. That the academic development of black children has been impaired by this wrongdoing is to be expected. And, therefore, that a program 292*292 of remediation is necessary to supplement the primary remedy of pupil reassignment is inevitable.
It is of course true, as MR. JUSTICE POWELL notes, that the Detroit School Board has belatedly recognized its responsibility for the injuries that Negroes have suffered, and has joined in the effort to remedy them. He may be right— although I hope not—that this makes the case "wholly different from any prior case," post, this page. But I think it worth noting that the legal issues would be no different if the Detroit School Board came to this Court on the other side. The question before us still would be the one posed by the State: Is the remedy tailored to fit the scope of the violation? And, as THE CHIEF JUSTICE convincingly demonstrates, that question would have to be answered in the affirmative in light of the findings of the District Court, supported by abundant evidence. Cf. Dayton Board of Education v. Brinkman, post, at 414.
MR. JUSTICE POWELL, concurring in the judgment.
The Court's opinion addresses this case as if it were conventional desegregation litigation. The wideranging opinion reiterates the familiar general principles drawn from the line of precedents commencing with Brown v. Board of Education, 347 U. S. 483 (1954), and including today's decision in Dayton Board of Education v. Brinkman, post,p. 406. One has to read the opinion closely to understand that the case, as it finally reaches us, is wholly different from any prior case. I write to emphasize its uniqueness, and the consequent limited precedential effect of much of the Court's opinion.

Normally, the plaintiffs in this type of litigation are students, parents, and supporting organizations that desire to desegregate a school system alleged to be the product, in whole or in part, of de jure segregative action by the public school authorities. The principal defendant is usually the 293*293 local board of education or school board. Occasionally the state board of education and state officials are joined as defendants. This protracted litigation commenced in 1970 in this conventional mold. In the intervening years, however, the posture of the litigation has changed so drastically as to leave it largely a friendly suit between the plaintiffs (respondents Bradley et al.) and the original principal defendant, the Detroit School Board. These parties, antagonistic for years, have now joined forces apparently for the purpose of extracting funds from the state treasury. As between the original principal parties—the plaintiffs and the Detroit School Board—no case or controversy remains on the issues now before us. The Board enthusiastically supports the entire desegregation decree even though the decree intrudes deeply on the Board's own decisionmaking powers. Indeed, the present School Board proposed most of the educational components included in the District Court's decree. The plaintiffs originally favored a desegregation plan that would have required more extensive transportation of pupils, and they did not initially propose or endorse the educational components. In this Court, however, the plaintiffs also support the decree of the District Court as affirmed by the Court of Appeals.[1]
Thus the only complaining party is the State of Michigan (acting through state officials) and its basic complaint concerns money, not desegregation. It has been ordered to pay about $5,800,000 to the Detroit School Board. This is one-half the estimated "excess cost" of 4 of the 11 educational components 294*294 included in the desegregation decree: remedial reading, in-service training of teachers, testing, and counseling.[2] The State, understandably anxious to preserve the state budget from federal-court control or interference, now contests the decree on two grounds.
295*295 First, it is argued that the order to pay state funds violates the Eleventh Amendment and principles of federalism. Ordinarily a federal court's order that a State pay unappropriated funds to a locality would raise the gravest constitutional issues. See generally San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 40-42 (1973); National League of Cities v. Usery, 426 U. S. 833 (1976). But here, in a finding no longer subject to review, the State has been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate.
The State's second argument is one that normally would be advanced vigorously by the school board. Relying on the established principle that the scope of the remedy in a desegregation case is determined and limited by the extent of the identified constitutional violations, Dayton Board of Education, post, at 419-420; Hills v. Gautreaux,425 U. S. 284, 293-294 (1976); Milliken v. Bradley, 418 U. S. 717, 744 (1974); Austin Independent School Dist. v. United States, 429 U. S. 990, 991 (1976) (POWELL, J., concurring), the State argues that the District Court erred in ordering the systemwide expansion of the four educational components mentioned above. It contends that there has been no finding of a constitutional violation with respect to the past operation of any of these programs, and it insists that without more specifically focused findings of this sort, the decree exceeded the court's powers.
This argument is by no means a frivolous one. But the context in which it is presented is so unusual that it would be appropriate to dismiss the writ as improvidently granted. The argument is advanced by the State and not by the party primarily concerned. The educational programs at issue are standard and widely approved in public education. The State Board normally would be enthusiastic over enhancement of these programs so long as the local school board could 296*296 fund them without requiring financial aid from the State. It is equally evident that the State probably would resist a federal-court order requiring it to pay unappropriated state funds to the local school board regardless of whether violations by the local board justified the remedy. The State's interest in protecting its own budget—limited by legislative appropriations—is a genuine one. But it is not an

interest that is related, except fortuitously, to a claim that the desegregation remedy may have exceeded the extent of the violations.
The State's reliance on the remedy issue contains a further weakness, emphasizing the unusual character of this case. There is no indication that the State objected—certainly, it does not object here—to the inclusion in the District Court's decree of the seven other educational components. See n. 2, supra. Indeed, the State expressly agreed to one of the most expensive components, the establishment of vocational education centers, in a stipulation obligating it to share the cost of construction equally with the Detroit Board. See App. to Pet. for Cert. 139a-144a. Furthermore, the District Court's decree largely embodies the original recommendation of the Detroit Board. Since local school boards "have the primary responsibility for elucidating, assessing, and solving [the] problems" generated by "[f]ull implementation of . . . constitutional principles" in the local setting, Brown v. Board of Education, 349 U. S. 294, 299 (1955), the State's limited challenge here is particularly lacking in force.
Moreover, the District Court was faced with a school district in exceptional disarray. It found the structure of the Detroit school system "chaotic and incapable of effective administration." App. to Pet. for Cert. 124a. The "general superintendent has little direct authority." Ibid. Each of the eight regional boards may be preoccupied with "distribut[ing] local board patronage." Id., at 125a. The "local boards have diverted resources that would otherwise have been 297*297 available for educational purposes to build new offices and other facilities to house this administrative overload." Ibid. The District Court continued:
"In addition to the administrative chaos, we know of no other school system that is so enmeshed in politics. . . . ". . . Rather than devoting themselves to the educational system and the desegregative process, board members are busily engaged in politics not only to assure their own re-election but also to defeat others with whom they disagree." Id., at 125a-126a (footnote omitted).
Referring again to the "political paralysis" and "inefficient bureaucracy" of the system, the court also noted—discouragingly—that the election then approaching "may well [result in] a board of education consisting of members possessing no experience in education." Id., at 126a. In this quite remarkable situation, it is perhaps not surprising that the District Court virtually assumed the role of school superintendent and school board.[3]
298*298 Given the foregoing unique circumstances, it seems to me that the proper disposition of this case is to dismiss the writ of certiorari as improvidently granted. But as the Court has chosen to decide the case here, I join in the judgment as a result less likely to prolong the disruption of education in Detroit than a reversal or remand. Despite wide-ranging dicta in the Court's opinion, the only issue decided is that the District Court's findings as to specific constitutional violations justified the four remedial educational components included in the desegregation decree. In my view, it is at least arguable that the findings in this respect were too generalized to meet the standards prescribed by this Court. See Dayton Board of Education, post, p. 406. But the majority views the record as justifying the conclusion that "the need for educational components flowed directly from constitutional violations by both state and local officials." Ante, at 282.[4] On that view of the record, our settled doctrine requiring that the remedy be carefully tailored to fit identified constitutional violations is reaffirmed by today's result. I therefore concur in the judgment.
[*] Robert P. Kane, Attorney General, and Jeffrey Cooper and J. Justin Blewitt, Deputy Attorneys General, filed a brief for the Commonwealth of Pennsylvania as amicus curiae urging reversal.

Briefs of amici curiae urging affirmance were filed by Acting Solicitor General Friedman, Assistant Attorney General Days, Deputy Solicitor General Wallace, Brian K. Landsberg, and Judith E. Wolf for the United States; and by Herbert Teitelbaum, Robert Hermann, and Vilma Martinez for Aspira of America, Inc., et al.
John L. Hill, Attorney General, David M. Kendall, First Assistant Attorney General, and Thomas W. Choate,Special Assistant Attorney General, filed a brief for the State of Texas as amicus curiae.
[1] The violations of the Detroit Board of Education, which included the improper use of optional attendance zones, racially based transportation of schoolchildren, improper creation and alteration of attendance zones, grade structures, and feeder school patterns, are described in the District Court's initial "Ruling on Issue of Segregation." 338 F. Supp. 582, 587-588 (ED Mich. 1971). The District Court further found that "[t]he State and its agencies . . . have acted directly to control and maintain the pattern of segregation in the Detroit schools." Id.,at 589. Indeed, when the Detroit School Board attempted to voluntarily initiate an intradistrict remedy to ameliorate the effect of the past segregation practices, the Michigan Legislature enacted a law forbidding the carrying out of this remedy. Those conclusions as to liability were affirmed on appeal, 484 F. 2d 215, 221241 (CA6 1973), and were not challenged in this Court. 418 U. S. 717 (1974) (Milliken I).
[2] Separate opinions were filed in Milliken I. MR. JUSTICE STEWART, concurring, stated that the metropolitanwide remedy contemplated by the District Court was "in error for the simple reason that the remedy . . . was not commensurate with the constitutional violation found." 418 U. S., at 754. Dissenting opinions were filed by Mr. Justice Douglas, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL. The dissenting opinions took the position, in brief, that the remedy was appropriate, given the State's undisputed constitutional violations, the control of local education by state authorities, and the manageability of any necessary administrative modifications to effectuate a metropolitanwide remedy.
[3] According to the then most recent statistical data, as of September 27, 1974, 257,396 students were enrolled in the Detroit public schools, a figure which reflected a decrease of 28,116 students in the system since the 1960-1961 school year. 402 F. Supp. 1096, 1106-1107 (1975). Of this total student population, 71.5% were Negro and 26.4% were white. The remaining 2.1% were composed of students of other ethnic groups. Id., at 1106.
[4] Under respondent Bradley's proposed plan in the remand proceedings, 71,349 students would have required transportation; the Detroit Board's plan, however, provided for transportation of 51,000 students, 20,000 less than the Bradley plan. The Board's plan, which the District Court found infirm because of an impermissible use of "arbitrary" racial quotas, contemplated achieving a 40%-60% representation of Negro students in the identifiably white schools, while leaving untouched in terms of pupil reassignment schools in three of the Detroit system's eight regions. Those three regions, which were located in the central city, were overwhelmingly Negro in racial composition.
[5] The fourth component, a remedial reading and communications skills program, was proposed later and was endorsed by the Bradley respondents in a critique of the Detroit Board's proposed plan. See n. 7, infra. The Board's plan also called for the following "educational components": school-community relations, parental involvement, student rights and responsibilities, accountability, curriculum design, bilingual education, multiethnic curriculum, and cocurricular activities. 402 F. Supp., at 1118.
[6] In addition to the State Board of Education, the state defendants include the Governor of Michigan, the Attorney General, the State Superintendent of Public Instruction, and the State Treasurer.
[7] Two months later, the Bradley respondents also submitted a critique of the Board's plan; while criticizing the Board's proposed educational components on several grounds, respondents nonetheless suggested that a remedial reading program was particularly needed in a desegregation plan. See n. 5, supra. The Bradley respondents claimed more generally that the Board's plan failed to inform the court of the then-current extent of such programs or components in the school system and that the plan failed to assess "the relatedness of the particular component to desegregation."
[8] The other state defendants likewise filed objections to the Detroit Board's plan on April 21, 1975. They contended, in brief, that the court's remedy was limited to pupil reassignment to achieve desegregation; hence, the proposed inclusion of educational components was, in their view, excessive.
[9] For example, Dr. Charles P. Kearney, Associate Superintendent for Research and School Administration for the Michigan Department of Education, gave the following testimony:
"[T]he State Board and the Superintendent indicated that guidance and counselling appeared to deserve special emphasis in a desegregation effort.

"We support the notion of a guidance and counselling effort. We think it certainly does have a relationship in the desegregation effort, we think it deserves special emphasis." 30 Record, Tr. 126, 129.
As to in-service training, Dr. Kearney testified that, in his opinion, such a program was required to implement effectively a desegregation plan in Detroit. Id., at 179, 187. Finally, even though the State's critique did not deem testing as deserving of "special emphasis" in the desegregation plan, Dr. Kearney stated as follows:
"Q: [D]o you see a direct relationship between testing and desegregation?
"A: If test results were inappropriately used, . . . I think it would have certainly a discriminatory affect [sic] and it would have a negative affect [sic], I'm sure on any kind of desegregation plan being implemented." Id., at 184.
[10] The District Court did not approve of all aspects of the Detroit Board's plan. With respect to educational components, the court said: "The plan as submitted . . . does not distinguish between those components that are necessary to the successful implementation of a desegregation plan and those that are not." 402 F. Supp., at 1118. (Emphasis supplied.)
[11] In contrast to their position before the District Court with respect to the four educational components at issue here, the state defendants, through the State Board of Education, voluntarily entered into a stipulation with the Detroit Board on February 24, 1976, under which the State agreed to provide 50% of the construction costs of five vocational centers which the District Court ordered to be established. App. to Pet. for Cert. 139a-141a.
[12] The Court of Appeals disapproved, however, of the District Court's failure to include three of Detroit's eight regions in the pupil assignment plan. See n. 4, supra. The Court of Appeals remanded the case to the District Court for further consideration of the three omitted regions, but declined to set forth guidelines, given the practicabilities of the situation, for the District Court's benefit. Further proceedings were deemed appropriate, however, particularly since the Bradley respondents had previously been granted leave to file a second amended complaint to allege interdistrict violations on the part of the state and local defendants.
[13] In Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971), the Court affirmed an order of the District Court which included a requirement of in-service training programs. 318 F. Supp. 786, 803 (WDNC 1970). However, this Court's opinion did not treat the precise point. In Keyes v. School Dist. No. 1, Denver, Colo.,413 U. S. 189 (1973), the Court expressly avoided passing on the District Court's holding that called for, among other things, "compensatory education in an integrated environment." Id., at 214 n. 18.
[14] Thus, the Court has consistently held that the Constitution is not violated by racial imbalance in the schools, without more. Pasadena Bd. of Education v. Spangler, 427 U. S. 424, 434 (1976); Milliken I, 418 U. S., at 763 (WHITE, J., dissenting); Swann, supra, at 26. An order contemplating the "`substantive constitutional right [to a] particular degree of racial balance or mixing'" is therefore infirm as a matter of law. Spangler, supra, at 434.
[15] Since the ultimate objective of the remedy is to make whole the victims of unlawful conduct, federal courts are authorized to implement plans that promise "realistically to work now." Green v. County School Bd., 391 U. S. 430, 439 (1968). At the same time, the Court has carefully stated that, to ensure that federal-court decrees are characterized by the flexibility and sensitivity required of equitable decrees, consideration must be given to burdensome effects resulting from a decree that could "either risk the health of the children or significantly impinge on the educational process." Swann, supra, at 30-31. Our function, as stated by MR. JUSTICE WHITE, is "to desegregate an educational system in which the races have been kept apart, without, at the same time, losing sight of the central educational function of the schools." Milliken I, supra, at 764 (dissenting opinion). (Emphasis in original.) In a word, "[t]here are undoubted practical as well as legal limits to the remedial powers of federal courts in school desegregation cases." 418 U. S., at 763. Cf. Austin Independent School Dist. v. United States, 429 U. S. 990, 991 (1976) (POWELL, J., concurring).
[16] In denying the stay application, Mr. Justice Black was untroubled by the underlying order of the District Court:
"It would be very difficult for me to suspend the order of the District Court that, in my view, does no more than endeavor to realize the directive of the Fourteenth Amendment and the decisions of this Court that racial discrimination in the public schools must be eliminated root and branch." 404 U. S., at 1207.
[17] We do not, of course, pass upon the correctness of the particular holdings of cases we did not review. We simply note that these holdings support the broader proposition that, when the record warrants, remedial programs may, in the exercise of equitable discretion, be appropriate remedies to treat the condition that offends the Constitution. Of course, it must always be shown that the constitutional violation caused the condition for which remedial programs are mandated.

[18] This Court has from the beginning looked to the District Courts in desegregation cases, familiar as they are with the local situations coming before them, to appraise the efforts of local school authorities to carry out their constitutionally required duties. "Because of their proximity to local conditions . . . the [federal district] courts which originally heard these cases can best perform this judicial appraisal." Brown II, 349 U. S., at 299.
[19] Indeed, the District Judge took great pains to devise a workable plan with a minimum of pupil transportation. For example, he sought carefully to eliminate burdensome transportation of Negro children to predominantly Negro schools and to prevent the disruption, by massive pupil reassignment, of racially mixed schools in stable neighborhoods which had successfully undergone residential and educational change.
[20] Although the complaint in Edelman ostensibly sought only equitable relief, the plaintiff expressly requested "`a permanent injunction enjoining the defendants to award to the entire class of plaintiffs all [disability] benefits wrongfully withheld.'" 415 U. S., at 656.
[21] Unlike the award in Edelman, the injunction entered here could not instantaneously restore the victims of unlawful conduct to their rightful condition. Thus, the injunction here looks to the future, not simply to presently compensating victims for conduct and consequences completed in the past.
[22] In contrast to Edelman, there was no money award here in favor of respondent Bradley or any members of his class. This case simply does not involve individual citizens' conducting a raid on the state treasury for an accrued monetary liability. The order here is wholly prospective in the same manner that the decree mandates vocational schools and assignments, for example.
[23] Because of our conclusion, we do not reach either of the two alternative arguments in support of the District Court's judgment, namely, that the State of Michigan expressly waived its Eleventh Amendment immunity by virtue of Mich. Stat. Ann. § 15.1023 (7) (1975), and that the Fourteenth Amendment, ex proprio vigore, works a pro tanto repeal of the Eleventh Amendment. Cf. Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). Neither question was addressed by the Court of Appeals, and we therefore do not pass on either issue.
[1] Until the case reached this Court the plaintiffs apparently did not view the educational components as necessary or even important elements of a desegregation plan. These components were not included in plans submitted by the plaintiffs, and in briefs filed below there were indications that the plaintiffs viewed some—if not all—of these components as being "wholly unrelated to desegregation of students and faculty in schools." Brief for Plaintiffs-Appellants 5 n. 6 in the Court of Appeals, No. 75-2018 (filed Dec. 29, 1975).
[2] In addition to these four components, there were some seven other educational directives that are not contested here. (The details are set forth in the opinions and decrees of August 15, 1975, November 4 and 20, 1975, and May 11, 1976, all of which are reproduced in full in the appendix to the petition for certiorari. The first two such opinions also have been published. 402 F. Supp. 1096; 411 F. Supp. 943.) Perhaps the most expansive component was the District Court's order that the city and state boards create five vocational centers "devoted to in-depth occupational preparation in the construction trades, transportation and health services." 402 F. Supp., at 1140. As noted in the text, infra, at 296, a compromise was reached as to these centers and the State entered into a stipulation obligating it to share the cost of providing them. See App. to Pet. for Cert. 139a-144a. The other educational components ordered by the District Court included: (i) "two new technical high schools in which business education will be the central part of the curriculum," App. 75a; (ii) a new curriculum for the vocational education courses in the Detroit schools, including the requirement that an additional "grade 13" be added to afford expanded educational opportunities, 402 F. Supp., at 1140; (iii) the inclusion of "multi-ethnic studies" in the curriculum, with a request for federal funds to support "in-service training for teachers involved in such programs," id., at 1144, App. to Pet. for Cert. 147a; (iv) a "Uniform Code of Conduct," which the Board was ordered to develop pursuant to guidelines established by the court, 402 F. Supp., at 1142, App. to Pet. for Cert. 148a; (v) a specific plan for "cocurricular activities" with other artistic and educational institutions in the area, to be developed by the Board and submitted for court approval, 402 F. Supp., at 1143; and (vi) a "community relations program" prescribed in remarkable detail by the court. Ibid., App. to Pet. for Cert. 131a-135a.
In most, if not all, instances the court ordered that each of these programs be "comprehensive," and that reports be made to the court. One may doubt whether there is any precedent for a federal court's exercising such extensive control over the purely educational responsibilities of a school board.
[3] It merits emphasizing that the School Board invited this assumption of power. Indeed, the District Court had complimented the Board on its willingness to "implement any desegregation order the court may issue." 402 F. Supp., at 1125. But at one point there were serious second thoughts. In its brief in the Court of Appeals, the Board expressed grave concern as to what the District Court's assumption of the Board's powers could do to the school system financially:

"[O]n May 11, 1976 . . . the District Court ordered equalization of all school facilities and buildings preparatory to the 1976-77 school term; continuance of the comprehensive construction and renovation program; [and implementation of the educational components summarized in n. 2, supra]. . . .
"Even without actual dollar figures, the financial impact of these orders could easily destroy the educational program of the Detroit school system. The financing of these components by the Detroit school system The financing of these components by the Detroit school system would only mean a concomitant elimination of existing programs.
"It is virtually impossible for the Detroit Board of Education to re-order its priorities when it is already operating on a woefully inadequate budget that cannot provide a minimal quality educational program. Any attempt to redistribute available resources will cause further deterioration in on-going educational programs and will merely result in robbing Peter to pay Paul." Reprinted in the Appendix to the opinion of the Court of Appeals, 540 F. 2d 229, 250-251 (CA6) (emphasis added).
To say the least, the financial impact of the court's decree was profoundly disturbing. But apparently the financially pressed Board was willing to surrender a substantial portion of its decisionmaking authority in return for the prospect of enhanced state funding. For by the time it made this statement to the Court of Appeals, the Board knew that the District Court had exercised its power to do what the state legislature had chosen not to do: appropriate funds from the state treasury for these particular programs of the Detroit schools.
[4] The Court's opinion states, for example, that the District Court "expressly found that the two components of testing and counseling, as then administered in Detroit's schools, were infected with the discriminatory bias of a segregated school system." Ante, at 274-275.

 
 345 F.Supp. 914 (1972)
Ronald BRADLEY et al., Plaintiffs, v.
William G. MILLIKEN et al., Defendants, and
Detroit Federation of Teachers, Local 231, American Federation of Teachers, AFL-CIO, Defendant-Intervenor, and
Denise Magdowski et al., Defendants-Intervenor.
Civ. A. No. 35257.
United States District Court, E. D. Michigan, S. D.
June 14, 1972.
915*915 Louis R. Lucas, William E. Caldwell, Ratner, Sugarmon & Lucas, Memphis, Tenn., J. Harold Flannery, Paul R. Dimond, Robert Pressman, Center for Law and Education, Cambridge, Mass., Jack Greenberg, Norman J. Chachkin, New York City, E. Winther McCroom, Cincinnati, Ohio, Nathaniel R. Jones, General Counsel, N. A. A. C. P., New York City, for plaintiffs.
Frank J. Kelley, Atty. Gen., State of Mich., by Eugene Krasicky, Gerald Young, Asst. Attys. Gen., Lansing, Mich., for State defendants.
George T. Roumell, Jr., Louis D. Beer, Riley & Roumell, Detroit, Mich., for Detroit Board of Education.
Theodore Sachs, Ronald R. Helveston, Rothe, Marston, Mazey, Sachs, O'Connell, Nunn & Fried, Detroit, Mich., for intervenor Detroit Federation of Teachers.
Alexander B. Ritchie, Fenton, Nederlander, Dodge & Barris, P. C., Detroit, Mich., for intervenor Denise Magdowski, and others.
Robert J. Lord, Fair Haven, Mich., for intervenor Green, and others; Tri-County Citizens for Intervention.
Douglas H. West, Robert B. Webster, Hill, Lewis, Adams, Goodrich & Tait, Detroit, Mich., for intervenor Grosse Pointe Schools.
916*916 William M. Saxton, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for intervenor Allen Park Public Schools, and others.

Richard P. Condit, Condit & McGarry, P. C., Bloomfield Hills, Mich., for intervenor Southfield Public Schools.
Kenneth B. McConnell, Hartman, Beier, Howlett, McConnell & Googasian, Bloomfield Hills, Mich., for intervenor Royal Oak School District.
Ralph B. Guy, Jr., U. S. Atty., E. D. of Michigan, Detroit, Mich., for the United States, amicus curiae.
RULING ON DESEGREGATION AREA AND ORDER FOR DEVELOPMENT OF PLAN OF DESEGREGATION
ROTH, District Judge.
On September 27, 1971, 338 F.Supp. 582, the court made its Ruling on Issue of Segregation, holding that illegal segregation exists in the public schools of the City of Detroit as a result of a course of conduct on the part of the State of Michigan and the Detroit Board of Education. Having found a constitutional violation as established, on October 4, 1971 the court directed the school board defendants, City and State, to develop and submit plans of desegregation, designed to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. The directive called for the submission of both a "Detroit-only" and a "Metropolitan" plan.
Plans for the desegregation of the Detroit schools were submitted by the Detroit Board of Education and by the plaintiffs. Following five days of hearings the court found that while plaintiffs' plan would accomplish more desegregation than now obtains in the system, or which would be achieved under either Plan A or C of the Detroit Board of Education submissions, none of the plans would result in the desegregation of the public schools of the Detroit school district. The court, in its findings of fact and conclusions of law, concluded that "relief of segregation in the Detroit public schools cannot be accomplished within the corporate geographical limits of the city," and that it had the authority and the duty to look beyond such limits for a solution to the illegal segregation in the Detroit public schools. Accordingly, the court ruled, it had to consider a metropolitan remedy for segregation.
The parties submitted a number of plans for metropolitan desegregation. The State Board of Education submitted six—without recommendation, and without indicating any preference. With the exception of one of these, none could be considered as designed to accomplish desegregation. On the other hand the proposals of intervening defendant Magdowski, et al., the Detroit Board of Education and the plaintiffs were all good faith efforts to accomplish desegregation in the Detroit metropolitan area. The three plans submitted by these parties have many similarities, and all of them propose to incorporate, geographically, most—and in one instance, all—of the three-county area of Wayne, Oakland and Macomb.
The hearing on the proposals have set the framework, and have articulated the criteria and considerations, for developing and evaluating an effective plan of metropolitan desegregation. None of the submissions represent a complete plan for the effective and equitable desegregation of the metropolitan area, capable of implementation in its present form. The court will therefore draw upon the resources of the parties to devise, pursuant to its direction, a constitutional plan of desegregation of the Detroit public schools.
Based on the entire record herein, the previous oral and written rulings and orders of this court, and the Findings of Fact and Conclusions of Law filed herewith, it is ordered:

I.

A. As a panel charged with the responsibility of preparing and submitting an effective desegregation plan in 917*917 accordance with the provisions of this order, the court appoints the following:[*]
1. A designee of the State Superintendent of Public Instruction;[**] 2. Harold Wagner, Supervisor of the Transportation Unit in the Safety and Traffic Education Program of the State Department of Education; 3. Merle Henrickson, Detroit Board of Education; 4. Aubrey McCutcheon, Detroit Board of Education; 5. Freeman Flynn, Detroit Board of Education; 6. Gordon Foster, expert for plaintiffs; 7. Richard Morshead, representing defendant Magdowski, et al.; 8. A designee of the newly intervening defendants;[**] 9. Rita Scott, of the Michigan Civil Rights Commission.

Should any designated member of this panel be unable to serve, the other members of the panel shall elect any necessary replacements, upon notice to the court and the parties. In the absence of objections within five days of the notice, and pending a final ruling, such designated replacement shall act as a member of the panel.
B. As soon as possible, but in no event later than 45 days after the issuance of this order, the panel is to develop a plan for the assignment of pupils as set forth below in order to provide the maximum actual desegregation, and shall develop as well a plan for the transportation of pupils, for implementation for all grades, schools and clusters in the desegregation area. Insofar as required by the circumstances, which are to be detailed in particular, the panel may recommend immediate implementation of an interim desegregation plan for grades K-6, K-8 or K-9 in all or in as many clusters as practicable, with complete and final desegregation to proceed in no event later than the fall 1973 term. In its transportation plan the panel shall, to meet the needs of the proposed pupil assignment plan, make recommendations, including the shortest possible timetable, for acquiring sufficient additional transportation facilities for any interim or final plan of desegregation. Such recommendations shall be filed forthwith and in no event later than 45 days after the entry of this order. Should it develop that some additional transportation equipment is needed for an interim plan, the panel shall make recommendations for such acquisition within 20 days of this order.
C. The parties, their agents, employees, successors. and all others having actual notice of this order shall cooperate fully with the panel in their assigned mission, including, but not limited to, the provision of data and reasonable full and part-time staff assistance as requested by the panel. The State defendants shall provide support, accreditation, funds, and otherwise take all actions necessary to insure that local officials and employees cooperate fully with 918*918 the panel. All reasonable costs incurred by the panel shall be borne by the State defendants; provided, however, that staff assistance or other services provided by any school district, its employees or agents, shall be without charge, and the cost thereof shall be borne by such school district.

II.

A. Pupil reassignment to accomplish desegregation of the Detroit public schools is required within the geographical area which may be described as encompassing the following school districts (see Exhibit P.M. 12), and hereinafter referred to as the "desegregation area":

Lakeshore

Birmingham

Fairlane

Lakeview Roseville South Lake East Detroit Grosse Pointe Centerline Fitzgerald Van Dyke Fraser Harper Woods Warren Warren Woods Clawson Hamtramck Lamphere Madison Heights Troy

Hazel Park Highland Park Royal Oak Berkley Ferndale Southfield Bloomfield Hills Oak Park Redford Union West Bloomfield Clarenceville Farmington Livonia South Redford Crestwood Dearborn Dearborn Heights

Garden City North Dearborn Heights Cherry Hill Inkster Wayne Westwood Ecorse Romulus Taylor River Rouge Riverview Wyandotte Allen Park Lincoln Park Melvindale Southgate Detroit

Provided, however, that if in the actual assignment of pupils it appears necessary and feasible to achieve effective and complete racial desegregation to reassign pupils of another district or other districts, the desegregation panel may, upon notice to the parties, apply to the court for an appropriate modification of this order.

B. Within the limitations of reasonable travel time and distance factors, pupil reassignments shall be effected within the clusters described in Exhibit P. M. 12 so as to achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom be substantially disproportionate to the overall pupil racial composition. The panel may, upon notice to the parties, recommend reorganization of clusters within the desegregation area in order to minimize administrative inconvenience, or time and/or numbers of pupils requiring transportation.

C. Appropriate and safe transportation arrangements shall be made available without cost to all pupils assigned to schools deemed by the panel to be other than "walk-in" schools.

D. Consistent with the requirements of maximum actual desegregation, every effort should be made to minimize the numbers of pupils to be reassigned and requiring transportation, the time pupils spend in transit, and the number and cost of new transportation facilities to be acquired by utilizing such techniques as clustering, the "skip" technique, island zoning, reasonable staggering of school hours, and maximization of use of existing transportation facilities, including buses owned or leased by school districts and buses operated by public transit authorities and private charter companies. The panel shall develop appropriate 919*919 recommendations for limiting transfers which affect the desegregation of particular schools.

E. Transportation and pupil assignment shall, to the extent consistent with maximum feasible desegregation, be a two-way process with both black and white pupils sharing the responsibility for transportation requirements at all grade levels. In the determination of the utilization of existing, and the construction of new, facilities, care shall be taken to randomize the location of particular grade levels.

F. Faculty and staff shall be reassigned, in keeping with pupil desegregation, so as to prevent the creation or continuation of the identification of schools by reference to past racial composition, or the continuation of substantially disproportionate racial composition of the faculty and staffs, of the schools in the desegregation area. The faculty and staffs assigned to the schools within the desegregation area shall be substantially desegregated, bearing in mind, however, that the

desideratum is the balance of faculty and staff by qualifications for subject and grade level, and then by race, experience and sex. In the context of the evidence in this case, it is appropriate to require assignment of no less than 10% black faculty and staff at each school, and where there is more than one building administrator, every effort should be made to assign a bi-racial administrative team.
G. In the hiring, assignment, promotion, demotion, and dismissal of faculty and staff, racially nondiscriminatory criteria must be developed and used; provided, however, there shall be no reduction in efforts to increase minority group representation among faculty and staff in the desegregation area. Affirmative action shall be taken to increase minority employment in all levels of teaching and administration.
H. The restructuring of school facility utilization necessitated by pupil reassignments should produce schools of substantially like quality, facilities, extracurricular activities and staffs; and the utilization of existing school capacity through the desegregation area shall be made on the basis of uniform criteria.
I. The State Board of Education and the State Superintendent of Education shall with respect to all school construction and expansion, "consider the factor of racial balance along with other educational considerations in making decisions about new school sites, expansion of present facilities * * *"; and shall, within the desegregation area disapprove all proposals for new construction or expansion of existing facilities when "housing patterns in an area would result in a school largely segregated on racial * * * lines," all in accordance with the 1966 directive issued by the State Board of Education of local school boards and the State Board's "School Plant Planning Handbook" (see Ruling on Issue of Segregation, p. 13.).
J. Pending further orders of the court, existing school district and regional boundaries and school governance arrangements will be maintained and continued, except to the extent necessary to effect pupil and faculty desegregation as set forth herein; provided, however, that existing administrative, financial, contractual, property and governance arrangements shall be examined, and recommendations for their temporary and permanent retention or modification shall be made, in light of the need to operate an effectively desegregated system of schools.
K. At each school within the desegregated area provision shall be made to insure that the curriculum, activities, and conduct standards respect the diversity of students from differing ethnic backgrounds and the dignity and safety of each individual, students, faculty, staff and parents.
L. The defendants shall, to insure the effective desegregation of the schools in the desegregation area, take immediate action including, but not limited to, the establishment or expansion of in-service training of faculty and staff, create bi-racial committees, employ black counselors, and require biracial 920*920 and non-discriminatory extra-curricular activities.
III.
The State Superintendent of Public Instruction, with the assistance of the other state defendants, shall examine, and make recommendations, consistent with the principles established above, for appropriate interim and final arrangements for the (1) financial, (2) administrative and school governance, and (3) contractual arrangements for the operation of the schools within the desegregation area, including steps for unifying, or otherwise making uniform the personnel policies, procedures, contracts, and property arrangements of the various school districts.

Within 15 days of the entry of this order, the Superintendent shall advise the court and the parties of his progress in preparing such recommendations by filing a written report with the court and serving it on the parties. In not later than 45 days after the entry of this order, the Superintendent shall file with the court his recommendations for appropriate interim and final relief in these respects.
In his examination and recommendations, the Superintendent, consistent with the rulings and orders of this court, may be guided, but not limited, by existing state law; where state law provides a convenient and adequate framework for interim or ultimate relief, it should be followed, where state law either is silent or conflicts with what is necessary to achieve the objectives of this order, the Superintendent shall independently recommend what he deems necessary. In particular, the Superintendent shall examine and choose one appropriate interim arrangement to oversee the immediate implementation of a plan of desegregation.
IV.
Each party may file appropriate plans or proposals for inclusion in any final order which may issue in this cause. The intent of this order is to permit all the parties to proceed apace with the task before us: fashioning an effective plan for the desegregation of the Detroit public schools.
Fifteen days after the filing of the reports required herein, hearings will begin on any proposal to modify any interim plan prepared by the panel and all other matters which may be incident to the adoption and implementation of any interim plan of desegregation submitted. The parties are placed on notice that they are to be prepared at that time to present their objections, alternatives and modifications. At such hearing the court will not consider objections to desegregation or proposals offered "instead" of desegregation.
Hearings on a final plan of desegregation will be set as circumstances require.
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF RULING ON DESEGREGATION AREA AND DEVELOPMENT OF PLAN
On the basis of the entire record in this action, including particularly the evidence heard by the court from March 28 through April 14, 1972, the court now makes the following Supplementary Findings of Fact and Conclusions of Law. It should be noted that the court has taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation.
INTRODUCTION
1. On September 27, 1971, this court issued its Ruling on Issue of Segregation. On October 4, 1971, this court issued from the bench guidelines to bind the parties in the submission of plans to remedy the constitutional violation found, i. e., school segregation; and in particular this court noted that the primary objective before us was to develop and implement a plan which attempts to 921*921 "achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." The same day this court reiterated these requirements by orders "that the Detroit Board of Education submit a plan for the desegregation of its schools within 60 days" and

"that the State defendants submit a metropolitan plan of desegregation within 120 days." In response to these orders hearings were held, and thereafter rulings issued, on Detroit-only plans (see Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation) and on the propriety of considering remedies which extend beyond the corporate geographic limits of the city of Detroit. (See Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit.) Between March 28, 1972 and April 14, 1972, hearings were held on metropolitan proposals for desegregation of the Detroit public schools.
2. From the initial ruling on September 27, 1971, to this day, the basis of the proceedings has been and remains the violation: de jure school segregation. Since Brown v. Board of Education the Supreme Court has consistently held that the remedy for such illegal segregation is desegregation. The racial history of this country is writ large by constitutional adjudication from Dred Scott v. Sanford to Plessy v. Ferguson to Brown.The message in Brown was simple: the Fourteenth Amendment was to be applied full force in public schooling. The Court held that "state-imposed" school segregation immeasurably taints the education received by all children in the public schools; perpetuates racial discrimination and a history of public action attaching a badge of inferiority to the black race in a public forum which importantly shapes the minds and hearts of succeeding generations of our young people; and amounts to an invidious racial classification. Since Brown the Supreme Court has consistently, and with increasing force, held that the remedy upon finding de jure segregation is prompt and maximum actual desegregation of the public schools by all reasonable, feasible, and practicable means available. This court finds that there is nothing in the law, wisdom, or facts, and the particular circumstances and arguments, presented in this case, which suggests anything except the affirmance of these principles in both fact and law.
3. The task before this court, therefore, is now, and, since September 27, 1971, has always been, how to desegregate the Detroit public schools. The issue, despite efforts of the intervenors to suggest a new rationale for a return to the discredited "separate but equal" policy,[1] is not whether to desegregate. 922*922 That question has been foreclosed by the prior and settled commands of the Supreme Court and the Sixth Circuit. Our duty now is to "grapple with the flinty, intractable realities"[2] of implementing the constitutional commands.
4. In the most recent set of hearings, several issues were addressed generally, including appropriate methods of pupil reassignment to desegregate schools; quality and capacity of school facilities; transportation needs incident to school desegregation; the effects of new school construction, and judicially established controls thereon, on any plan of desegregation; the reassignment of faculty and restructuring of facilities incident to pupil reassignment to accomplish school desegregation; appropriate and necessary interim and final administrative and financial arrangements; appropriate community, parental, staff, and pupil involvement in the desegregation process; and attention to individual, cultural, and ethnic values, respect, dignity and identity. But the primary question addressed by these hearings, in the absence of submission of a complete desegregation plan by the state, remains the determination of the area necessary and practicable effectively to eliminate "root and branch" the effects of state-imposed and supported segregation and to desegregate the Detroit public schools.
SUPPLEMENTARY FINDINGS OF FACT
A. The Desegregation Area
5. The State Board of Education filed six (6) "plans" without recommendation or preference; intervening defendants Magdowski, et al., filed a proposal for metropolitan desegregation which included most of the tri-county area; the defendant Detroit Board of Education filed a proposal for

metropolitan desegregation which included the entire tri-county area.[3] At the hearing plaintiffs presented a modification of the three proposals which actually described areas within which pupil desegregation was to be accomplished.
6. In the consideration of metropolitan plans of desegregation of the Detroit public schools, the State defendants stand as the primary defendants. They bear the initial burden of coming forward with a proposal that promises to work. In the context of this case, they represent the "school authorities"[4] to whom equity courts traditionally have 923*923 shown deference in these matters.[5] Yet in its submission without recommendation of six (6) "plans" the State Board of Education has failed to meet, or even attempt to meet, that burden and none of the other State defendants has filled the void.
7. The State Board refused to make any recommendation to the court about the appropriate area for desegregation. In State Defendant Porter's words, the State Board "didn't make a decision, period." Defendants Milliken and Kelley merely filed objections to all six (6) plans.
8. Three of the State "plans" merely proposed concepts alternative to maximum actual desegregation. The Racial Proportion Plan described a statistical method of determining the number of transfers involved in achieving a particular racial ratio in each school once an area of desegregation had been chosen. The Equal Educational Opportunity and Quality Integration Plan was admitted to be a non-plan and described criteria for education which, in whole or part, might, or might not, be applicable to any school system.
9. Only one State "plan," the Metropolitan District Reorganization Plan, attempted to describe an area within which desegregation should occur, called the "initial operating zone" (sometimes referred to hereafter as the "State Proposal"). That "plan," however, was primarily concerned with discussing a new governance structure for the desegregation area. Pupil reassignment was mentioned only in passing and no foundation was laid by State defendants for the particular area of desegregation described. Further, it suffered from the default of the State defendants by their stubborn insistence that under their self-serving, and therefore self-limiting, view of their powers they were free to ignore the clear order of this court and abdicate their responsibility vested in them by both the Michigan and Federal Constitution for supervision of public education and equal protection for all citizens.
10. From the very limited evidence in the record in support of the area in that state proposal, the primary foundation appears to be the particular racial ratio attained in that plan, approximately 65% black, 35% white, with the provision that the area could be expanded if "white flight" ensued. In the absence of any other persuasive foundation, such area is not based on any definable or legally sustainable criteria for either inclusion or exclusion of particular areas; and the concept of an "initial operating zone" raises serious practical questions, which should be avoided if a more permanent solution is now possible. In short, the area described by the "initial operating zone" does not appear to be based primarily on relevant factors, like eliminating racially identifiable schools; accomplishing maximum actual desegregation of the Detroit public schools; or avoiding, where possible, maintaining a pattern of schools substantially disproportionate to the relevant school community's racial composition by force of deliberate action by public authority. Nor, on the evidence in this record, is the "initial operating zone" based on any practical limitation of reasonable times and distances for transportation of pupils. These factors seem to have played little part in the creation of the "initial operating zone" and are reflected less in its result.
11. At the hearings, moreover, the State defendants did not purport to present evidence in support, or even in opposition, to the State Proposal. The State, despite prodding by the court, presented only one witness, who merely 924*924 explained what appeared on the face of the various State "Plans" submitted. The State's cross examination of witnesses was of no assistance to the court in

ascertaining any preference, legal or educational. Put bluntly, State defendants in this hearing deliberately chose not to assist the court in choosing an appropriate area for effective desegregation of the Detroit public schools. Their resistance and abdication of responsibility throughout has been consistent with the other failures to meet their obligations noted in the court's earlier rulings. Indeed, some of the submissions spoke as clearly in opposition to desegregation as did the legislature in Sec. 12 of Act 48 of 1970, M.C.L.A. § 388.182 ruled unconstitutional by the Sixth Circuit.
12. In such circumstances little weight or deference can be given to the unsupported submission of the State Board of Education. In light of the available alternatives and the facts produced at the hearing bearing on the issue, the court finds that State defendants offered no basis for ruling that the "initial operating zone" is the appropriate area within which to effectively desegregate the Detroit public schools.
13. Similarly, the newly intervening, defendant school districts did not attempt at the hearing to assist the court in determining which area was appropriate to accomplish effective desegregation. They were given the opportunity, by express written order and several admonitions during the course of the hearings, to assist the court in the task at hand but chose in their best judgment instead, in the main, to suggest their view that separate schools were preferable. The failure of the group of 40 districts to even comment that the court should exclude certain districts under any number of available rationales may in part be explained by the awkward position chosen by them and their counsel of having single representation for districts on different sides of the various suggested perimeters.
14. The plans of intervening defendants Magdowski, et al., and the defendant Detroit Board of Education are similar. With slight variations they include the entire tri-county, metropolitan Detroit area, with that area divided into several regions or clusters to make the planning for accomplishing desegregation more manageable. Although both have as their main objective desegregation, their larger area arises primarily from a heavy emphasis on such factors as white flight and an appropriate socio-economic balance in each cluster and school.[6]
15. The authors of the Detroit Board and Magdowski plans readily admit that the regions or clusters for pupil reassignment which involve Mt. Clemens and Pontiac are not directly related to desegregation of the Detroit public schools and may be disregarded without any substantial adverse effect on accomplishing our objective. No other party has expressed any disagreement with that 925*925 view. And the court finds that these two regions or clusters, for purposes of pupil reassignment, need not be included at this time in the desegregation area.
16. With the elimination of these two clusters there are, then, three basic proposals to be considered for the desegregation area: the State Proposal; the Detroit Board Proposal, and the proposal of defendant-intervenors Magdowski, et al. In addition, as noted, plaintiffs filed a modification of these three proposals.
17. Each of these proposals starts from the same two premises: (1) the tri-county area[7]constitutes the relevant school community which can serve as an initial benchmark in beginning the evaluation of how to effectively eliminate the racial segregation of Detroit schools; (2) but in some instances reasonable time and distance limitations for pupil transportation, and in other instances the actual area required to eliminate the pattern of racially identifiable schools, limit the area within which pupil reassignment should occur. In terms of proof, putting aside arguments of impotence by the State defendants, there was absolutely no contradictory evidence on these two criteria. The entire tricounty area includes areas, pupils, and schools in 86 school districts; it includes approximately one million students, of whom approximately 20% are black. Based on the evidence concerning school

and non-school factors,[8] and reasonable time and distance limitations for pupil transportation, the court finds that both premises are accurate.[9]
18. The State Proposal includes the areas, pupils and school in 36 school districts; approximately 550,000 students are included of whom 36% are black. The Detroit Board Proposal (excluding clusters 8 and 12) includes the areas, pupils, and schools in 69 school districts; approximately 850,000 students are included, of whom 25% are minority.[10] The CCBE Proposal includes the areas, pupils, and schools in some 62 school districts; approximately 777,000 students are included of whom 197,000 (25.4%) are black. Plaintiffs' Proposal includes the areas, pupils, and schools in 54 school districts; approximately 780,000 students are included, of whom 197,000 (25.3%) are black.
19. The State Proposal approaches what may be considered a substantial 926*926disproportion in the context of this case. It is to be remembered that within any desegregation area, the racial composition of desegregated schools will vary from the area's racial mix. Given the variations in school plant, demographic and geographic factors, limiting the desegregation area to the State Proposal would result in some schools being substantially disproportionate in their racial composition to the tri-county area, and other schools racially identifiable, all without any justification in law or fact. This finding is supported by the lack of any apparent justification for the desegregation area described by the State Proposal except a desire to achieve an arbitrary racial ratio.
20. Transportation of children by school bus is a common practice throughout the nation, in the state of Michigan, and in the tri-county area. Within appropriate time limits it is a considerably safer, more reliable, healthful and efficient means of getting children to school than either car pools or walking, and this is especially true for younger children.
21. In Michigan and the tri-county area, pupils often spend upwards of one hour, and up to one and one half hours, one-way on the bus ride to school each day. Consistent with its interest in the health, welfare and safety of children and in avoiding impingement on the educational process, state educational authorities routinely fund such transportation for school children. Such transportation of school children is a long-standing, sound practice in elementary and secondary education in this state and throughout the country. And the court finds such transportation times, used by the state and recommended here, are reasonable in the circumstance here presented and will not endanger the health or safety of the child nor impinge on the educational process. For school authorities or private citizens to now object to such transportation practices raises the inference not of hostility to pupil transportation but rather racially motivated hostility to the desegregated school at the end of the ride.
22. The Plaintiffs' Proposal made reference to P.M. 8, based on the TALUS regional transportation and travel times study. Although there was dispute over the meaning of the study, such studies are deemed sufficiently reliable that major governmental agencies customarily rely on their projection for a variety of planning functions. When used by the plaintiffs, P.M. 8, in conjunction with the Detroit Board's survey of maximum school to school travel times, served as a rough guideline within which the plaintiffs' modification of other proposals attempted to stay in an effort to provide maximum desegregation without any more transportation time than is required to desegregate. This court finds that the utilization of these two factors, and the lower travel time estimates which should result, is a reasonable basis for the modification in the circumstances of this case. The court's duty and objective is not to maximize transportation but to maximize desegregation and within that standard it will always be reasonable to minimize transportation. To that end the court has accepted the more conservative perimeter for the desegregation area suggested as a modification by plaintiffs because it provides no less effective desegregation.
23. Based on these criteria, the State Proposal is too narrowly drawn.

24. Based on these criteria, parts of the Detroit Board Proposal are too sweeping.
25. Based on these criteria, the CCBE Proposal and the Plaintiffs' Proposal, roughly approximate the area so described.[11]
26. There is general agreement among the parties, and the court so finds, that on the west the areas, 927*927 schools, and pupils in the Huron, Van Buren, Northville, Plymouth, and Novi districts[12] (1) are beyond the rough 40-minute travel time line; (2) are not necessary to effectively desegregate schools involved in the regions and clusters abutting those schools; and, (3) at this writing, are not otherwise necessary, insofar as pupil assignment is concerned, to provide an effective remedy now and hereafter. (See Findings 63-69 below.)
27. In the southwest the school districts of Woodhaven, Gilbralter, Flat Rock, Grosse Ile and Trenton are within reasonable time and distance criteria set forth above. These virtually all-white districts are included in the Detroit Board Proposal but excluded from the plaintiffs' modification. The areas, schools and pupils in such school districts are similarly not necessary to effectively desegregate. (Clusters 13, 14, and 15 in Plaintiffs' Proposal are 20.5%, 24.4% and 22.7% black respectively.) There is nothing in the record which suggests that these districts need be included in the desegregation area in order to disestablish the racial identifiability of the Detroit public schools. From the evidence, the primary reason for the Detroit School Board's interest in the inclusion of these school districts is not racial desegregation but to increase the average socio-economic balance of all the schools in the abutting regions and clusters. In terms of what this court views as the primary obligation established by the Constitution—racial desegregation—the court deems the proper approach is to be more conservative: the court finds it appropriate to confine the desegregation area to its smallest effective limits. This court weighs more heavily the judicially recognized concern for limiting the time and distance of pupil transportation as much as possible, consistent with the constitutional requirement to eliminate racially identifiable schools, than a concern for expanding the desegregation area to raise somewhat the average socio-economic balance of a relatively few clusters of schools.[13]
28. To the north and northeast, the only major disagreement among the Detroit Board Proposal and plaintiffs1 modification relates to the areas, schools, and pupils in the Utica School District. This district is a virtually all-white, long, relatively narrow area extending several miles in a north-south direction away from the city of Detroit. Only the southern part of the district is within the rough, TALUS 40-minute travel time line.
29. The Detroit Board argues that Utica should be included in order to raise the average socioeconomic balance of the abutting clusters and schools. In this instance, however, the overall racial composition of the cluster, 27.0% black, may tend toward disproportionate black relative to the tricounty starting point.
30. Mr. Henrickson, the planner for the Board, also suggested that Cluster 3 of Plaintiffs' Proposal, because of its omission of Utica, might present some problems, which he admitted could be solved, in designing a plan of pupil reassignment for the desegregation of schools. (See Findings 34-39 below.)
31. In light of these relevant, and competing, considerations the question presented by the Utica situation is close; however, at this writing, the 928*928 court determines that the areas, schools, and pupils in the Utica School District need not be included, and therefore, should not be included in the desegregation area.[14]

32. The court finds that the appropriate desegregation area is described by plaintiffs' modification of the three primary proposals. Within that area the racial identifiability of schools may be disestablished by implementation of an appropriate pupil desegregation plan. The area as a whole is substantially proportionate to the tri-county starting point. Within the area it is practicable, feasible, and sound to effectively desegregate all schools without imposing any undue transportation burden on the children or on the state's system of public schooling. The time or distance children need be transported to desegregate schools in the area will impose no risk to the children's health and will not significantly impinge on the educational process.
B. Clusters
33. The Detroit Board Proposal makes use of 16 regions or clusters. These clusters range from 36,000 to 105,000 pupils and from 17.5% to 29.7% "minority." The clusters are arranged along major surface arteries and utilize the "skip," or noncontiguous zoning, technique to minimize the time and distance any child need spend in transit. The use of these clusters basically subdivides the planning for pupil reassignment within the desegregation area into a series of smaller, manageable and basically independent plans. Thus, although as the new intervenors suggest devising a desegregation plan for a system with some 800,000 pupils has never been attempted, the practical and manageable reality is that desegregation plans for systems with from 36,000 to 100,000 pupils has been done and such plans have been implemented.
34. Plaintiffs' Proposal uses the same cluster technique and the same clusters, modified to fit the desegregation area. The 15 clusters range from 27,000 to 93,000 pupils and from 20.5% to 30.8% black. Only three relevant objections were raised by Mr. Henrickson, to the clusters as modified.
35. First, Cluster 4 was challenged as "concealing" a "problem," namely effective desegregation of other schools resulting from the omission of Utica from plaintiffs' modification. On cross-examination Mr. Henrickson admitted that the "problem" of actual pupil desegregation for these other schools could be "solved," that all schools within Cluster 4 could be effectively desegregated, and that Cluster 4 was smaller than the Detroit Board Cluster 6. The objection was thus narrowed to the possibility that a suburban high school constellation feeder pattern might have to be split between two Detroit high school constellation feeder patterns in order to desegregate. Several of the Detroit Board's clusters, however, also contain two Detroit high school feeder patterns.
36. This objection, splitting an existing feeder pattern, was raised directly in reference to Cluster 12. In neither instance, however, did Mr. Henrickson suggest that the time or distance of transportation involved was too long or that it would present administrative difficulty in devising a pupil assignment plan for either cluster. The objection relates solely to a matter of administrative convenience, namely the use of existing feeder patterns in preparing pupil assignments. For example, Mr. Henrickson previously admitted that in drawing a pupil assignment plan, an alternative to use of existing feeder patterns would be to "wipe the slate clean," 929*929 and disregard existing feeder patterns. In fact one of the State plans suggested use of census tracts as an alternative.[15] On numerous occasions in the past Mr. Henrickson himself has reassigned parts of one feeder pattern to another school in order to relieve overcrowding and/or accomplish desegregation. The objection to such practice, therefore, is admittedly insubstantial.
37. The third objection relates to the exchange of Detroit Northern for Detroit Murray in Clusters 6 and 15 requiring that the students transported, if they proceed on their entire journey by way of the expressway, encounter an interchange which tends to be rather slow-moving. Such transportation time and distance, however, is well within the rough criteria for reasonableness and is shorter than or comparable to the maximum trips required in the Detroit Board's clusters. In other instances, Mr.

Henrickson admitted that pupils in the Detroit proposal might also have to travel through similar interchanges. Moreover, the objection to this particular increase in travel time must be weighed against the apparent general decrease in time which would be required in plaintiffs' modified clusters as compared with the Detroit Board's clusters. In any event the desegregation panel, based on its investigation of all aspects of pupil assignment, remains free to suggest a modification of these clusters in order to reduce the time and number of children requiring transportation.
38. With that caveat, the court finds that plaintiffs' modification of the Detroit Board's clusters provides a workable, practicable, and sound framework for the design of a plan to desegregate the Detroit public schools.
C. Pupil Assignment and Transportation
39. Example of various methods of pupil assignment to accomplish desegregation have been brought to the attention of the court by the parties: pairing, grouping, and clustering of schools; various strip, skip, island, and non-contiguous zoning; various lotteries based on combinations of present school assignment, geographic location, name, or birthday. Judicious use of these techniques —coupled with reasonable staggering of school hours and maximizing use of existing transportation facilities— can lead to maximum actual desegregation with a minimum of additional transportation.
40. Quite apart from desegregation, under any circumstances, transportation for secondary pupils living more than 1½ miles, and elementary pupils living more than one mile from school, is often demanded by parents and should be provided. Moreover, it is essential to the effectiveness of any desegregation plan that transportation be provided free to all students requiring it under that criteria. (Brewer v. Norfolk Board of Education, 456 F.2d 943 (April 1972) (4th ucation, 456 F.2d 943 (4th Cir. 1972).
41. In the recent past more than 300,000 pupils in the tri-county area regularly rode to school on some type of bus; this figure excludes the countless children who arrive at school in car pools, which are many, many times more dangerous than riding on the school bus.
42. Throughout the state approximately 35-40% of all students arrive at school on a bus. In school districts eligible for state reimbursement of transportation costs in the three affected counties, the percent of pupils transported in 1969-70 ranged from 42 to 52%.
43. In comparison approximately 40%, or 310,000, of the 780,000 children within the desegregation area will require transportation in order to accomplish maximum actual desegregation.
44. Hence, any increase in the numbers of pupils to be transported upon implementation of a complete desegregation plan over the number presently 930*930 transported, relative to the state and the tri-county area, should be minimal. Indeed, any increase may only reflect the greater numbers of pupils who would be transported in any event but for the state practice, which affected the segregation found in this case, and which denies state reimbursement to students and districts wholly within city limits regardless of the distance of the child from the school to which assigned.[16] (Ruling on Issue of Segregation at 14.) The greatest change is the direction of the buses.
45. There is uncontradicted evidence that the actual cost of transportation for a two-way plan of desegregation should be no greater than 50 to 60 dollars per pupil transported,[17] comparable to the present costs per pupil through the state. Increases in the total costs of pupil transportation in the

desegregation area, therefore, will result primarily from providing all children requiring transportation a free ride instead of imposing the costs of transportation for many on the families in districts which are ineligible for state reimbursement and which fail to provide transportation.
46. By multiple use of buses, careful routing, and economies of scale resulting from a comprehensive system of pupil transportation, it may be possible to achieve savings in per pupil costs. For example in 1969-1970 many school districts in the tri-county area which used the same bus for even two loads per day lowered their per pupil costs to $40 or less. In a coordinated, urban pupil transportation system it may be possible to raise the bus use factor to three or more. (See "First Report" State Survey and Evaluation.)
47. In the tri-county area in the recent past there were approximately 1,800 buses (and another 100 smaller vans) used for the transportation of pupils. Assuming a rough average of 50 pupils per bus carrying three loads of students per day, this transportation fleet may prove sufficient to carry some 270,000 pupils.
48. Various public transit authorities now transport an additional 60,000 pupils on their regular public runs.
49. The degree to which these plausible bus-use factors can be realized to their maximum, and whether these public transit facilities may be fully utilized in a plan of desegregation, must be answered upon careful investigation by a panel of experts.
50. There is no disagreement among the parties, and the court so finds, that additional transportation facilities, at least to the number of 350 buses, will have to be purchased to meet the increase in the number of students who should be provided transportation for either an interim or final plan of desegregation.
51. For all the reasons stated heretofore —including time, distance, and transportation factors— desegregation within the area described is physically easier and more practicable and feasible, than desegregation efforts limited to the corporate geographic limits of the city of Detroit.
52. The issue of transportation of kindergarten children, and their inclusion in part or in full in the desegregation 931*931 plan, may require further study. There was general agreement among the experts who testified that kindergarten, but for "political" considerations, should be included, if practicable, in the desegregation plan. Kindergarten, however, is generally a half-day program. Transportation of kindergarten children for upwards of 45 minutes, one-way, does not appear unreasonable, harmful, or unsafe in any way. In the absence of some compelling justification, which does not yet appear, kindergarten children should be included in the final plan of desegregation.
53. Every effort should be made to insure that transportation and reassignment of students to accomplish desegregation is "two-way" and falls as fairly as possible on both races. Although the number of black and white children transported and reassigned at the outset will be roughly equal, it is inevitable that a larger proportion of black children will be transported for a greater proportion of their school years than white children, if transportation overall is to be minimized. To mitigate this disproportion, every effort should be made at the outset to randomize the location of particular grade centers. In the short term, full utilization of vastly under-capacity inner-city schools may also help to mitigate the disproportion for some black children; and in the long term, new school capacity, consistent with other constitutional commands and the overall needs of the desegregation area and the surrounding area, should be added in Detroit, in relative proximity to concentrations of black student residence.

D. Restructuring of Facilities and Reassignment of Teachers
54. In the reassignment of pupils to accomplish desegregation the court finds that facilities must be substantially real-located and faculty substantially reassigned by reason of the clustering, pairing and grouping of schools.
55. In order to make the pupil desegregation process fully effective the court finds that it is essential to integrate faculty and staff and to insure that black faculty and staff representation at every school is more than token. The court has previously found and reaffirms that "a quota or racial balance in each school which is equivalent to the system-wide ratio and without more" is educationally unsound, and that the desideratum is the balance of staff by qualifications for subject and grade level, and then by race, experience and sex. It is obvious, given the racial composition of the faculty and staff in the schools in the metropolitan plan area, and the adjusted racial composition of the students, that vacancies and increases and reductions in faculty and staff cannot effectively achieve the needed racial balance in this area of the school operation. Active steps must be taken to even out the distribution of black teachers and staff throughout the system.
56. In the desegregation area approximately 16% of the faculty and 12% of the principals and assistant principals are black. In this context "token" means roughly less than 10% black. Moreover, where there is more than one building administrator in any school, a bi-racial administrative team is required wherever possible.
57. Every effort should be made to hire and promote, and to increase such on-going efforts as there may be to hire and promote, additional black faculty and staff. Because of the systematic and substantial under-employment of black administrators and teachers in the tri-county area, an affirmative program for black employment should be developed and implemented.
58. The rated capacity of classrooms in the Detroit public schools is 32; in some of the suburban districts the average rated capacity is as low as 24 or 25. Utilization should be redetermined on a uniform basis.
59. In respect to faculty and staff, school facilities, and the utilization of existing school capacity, normal administrative practice in handling the substantial reallocation and reassignment incident 932*932 to pupil desegregation should produce schools substantially alike.
60. In the circumstances of this case, the pairing, grouping and clustering of schools to accomplish desegregation with minimum transportation often requires use of grade arrangements such as K-4, K-5, or even K-6. In so planning pupil reassignments, it is sometimes necessary, and often administratively practicable, to include grades K-8 or even K-9 to achieve the maximum actual desegregation with the minimum transportation. Grade structures in most elementary schools in the desegregation area is a basic K-6; however, almost all other combinations are found. They differ within and among various districts.
61. In the reassignments of pupils and teachers and the reallocation of equipment and facilities required to accomplish desegregation, the elementary grades and schools present relatively few administrative difficulties, while the high school grades and facilities present the greater difficulties, particularly with respect to scheduling and curriculum.

62. For these reasons, if it develops that interim choices must be made because of the impossibility of immediate desegregation of all grades, schools, and clusters in the desegregation area, the weight of the evidence is, and the court so finds, that desegregation should begin first at the earliest grades for entire elementary school groupings throughout as many clusters as possible.
E. School Construction
63. Relative to suburban districts the Detroit public schools, as a whole, are considerably overcapacity. (See also Finding 58, supra.) To alleviate this overcrowding, equalize rated capacity and minimize and equalize transportation burdens borne by black pupils in the city, needed new school capacity, consistent with other requirements of a desegregation plan, should be added on a priority basis in the city of Detroit.
64. Relevant to the court's choice of a desegregation area more limited than the Detroit Board Proposal is the testimony, elicited on cross-examination from two of the primary authors of that proposal, related to the effects of controlling new school construction. The broader area in the Detroit proposal was chosen without any real consideration of the impact of controlling school construction in an area larger than the desegregation area. Upon reflection, both Dr. Flynn and Mr. Henrickson admitted that closely scrutinizing and limiting the addition of capacity to areas outside the desegregation area might lead them to re-evaluate the need, in the context of maintaining now and hereafter a unitary system, to include an area as sweeping as recommended by the Detroit Board Proposal.
65. In our Ruling on Issue of Segregation, pp. 8-10, this court found that the "residential segregation throughout the larger metropolitan area is substantial, pervasive and of long standing" and that "governmental actions and inaction at all levels, Federal, State and local, have combined with those of private organizations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of residential segregation through the Detroit metropolitan area." We also noted that this deliberate setting of residential patterns had an important effect not only on the racial composition of inner-city schools but the entire School District of the City of Detroit. (Ruling on Issue of Segregation at 3-10.) Just as evident is the fact that suburban school districts in the main contain virtually all-white schools. The white population of the city declined and in the suburbs grew; the black population in the city grew, and largely, was contained therein by force of public and private racial discrimination at all levels.
66. We also noted the important interaction of school and residential segregation: "Just as there is an interaction between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential 933*933 pattern by the racial composition of schools." Ruling on Issue of Segregation at 10. Cf. Swann v. Charlotte-Mecklenberg, 402 U.S. 1, 20-21, 91 S.Ct. 1267, 1278, 28 L.Ed.2d 554 (1971); "People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods."
67. Within the context of the segregatory housing market, it is obvious that the white families who left the city schools would not be as likely to leave in the absence of schools, not to mention white schools, to attract, or at least serve, their children.[18]Immigrating families were affected in their school and housing choices in a similar manner. Between 1950 and 1969 in the tri-county area, approximately 13,900 "regular classrooms," capable of serving and attracting over 400,000 pupils,[19] were added in school districts which were less than 2% black in their pupil racial composition in the 1970-71 school year. (P.M. 14; P.M. 15).

68. The precise effect of this massive school construction on the racial composition of Detroit area public schools cannot be measured. It is clear, however, that the effect has been substantial.[20] Unfortunately, the State, despite its awareness of the important impact of school construction and announced policy to control it, acted "in keeping generally, with the discriminatory practices which advanced or perpetuated racial segregation in these schools." Ruling on Issue of Segregation at 15; see also id., at 13.
69. In addition to the interim re-evaluation of new school construction required in the order, pursuant to the State Board's own requirements, the final plan will consider other appropriate provisions for future construction throughout the metropolitan area.
F. Governance, Finance and Administrative Arrangements
70. The plans submitted by the State Board, the Detroit Board, and the intervening defendants Magdowski, et al., discuss generally possible governance, finance, and administrative arrangements[21] 934*934 which may be appropriate for operation of an interim or final plan of desegregation. Without parsing in detail the interesting, and sometimes sensible, concepts introduced by each plan, it is sufficient to note that each contemplates overlaying some broad educational authority over the area, creating or using some regional arrangement (with continued use or eventual redrawing of existing districts), and considerable input at the individual school level. The court has made no decision in this regard and will consider the matter at a subsequent hearing.
71. Each concept needs to be "fleshed-out" in the hard prospect of implementation of a final plan of desegregation and what is necessary and essential, and only that, for the successful operation of that plan of school desegregation now on an interim basis and hereafter on a permanent footing.
72. There are now some 86 school districts in the tri-county area of varying size, numbers of pupils, shapes, and wealth.
73. In another context, the State Board of Education found each related to a "metropolitan core city" (Detroit) as "city," "town," or "urban fringe" districts.
74. The boundaries of these school districts in general bear no relationship to other municipal, county, or special district governments, needs or services.[22]
935*935 75. Some educational services are already provided to students on an inter-district, county, intercounty, or metropolitan basis; and many support services are provided by the intermediate school districts and the State Department of Education. For various reasons many pupils already cross school district lines to attend school or receive educational services.[23]
76. In many respects—patterns of economic life, work, play, population, planning, transportation, health services —the tri-county area constitutes a rough series of interrelated communities constituting, in the view of the United States Census Bureau, a single standard metropolitan statistical area.
77. Local units of government in the metropolitan area have in many instances joined together for the purpose of providing better solutions to problems confronting them. In such instances various units of government have either disregarded local boundaries or have concluded that the problems were such as to call for a metropolitan solution. In some cases they have created overlay

organizations. SEMCOG, recreational authorities, a metropolitan sewage system, SEMTA, and the Detroit Water System are examples of these metropolitan approaches.
78. Indeed, the State defendants at this very moment are attempting in state court to strike down one irrationality, and the discriminatory effect, of the existing school district arrangement, i. e., finance, apparently in the hope of moving to a virtual state-wide assumption of costs.
79. In such circumstances there has been no showing that the existing school district boundaries are rationally related to any legitimate purpose; and the court finds that the particular welter of existing boundaries for 86 school districts is not necessary to the promotion of any compelling state interest.
80. On the basis of the present record, the court is of the view that the shifts in faculty, staff, resources and equipment and the exchanges of pupils necessary to accomplish maximum actual desegregation may be made, at least on an interim basis, by contractual agreements or otherwise among and between the existing school districts. The court has serious reservations, however, whether such procedures will inevitably threaten the continuing effectiveness of a plan of desegregation over the long-term. On these issues more evidence and further hearings will be necessary before reaching a final decision.
81. The State defendants, and in particular the State Board of Education which is charged with the primary responsibility for public education in Michigan, are the primary parties to be charged with responsibility to undertake that vital inquiry and return with recommendations about those governance, financial, and administrative arrangements which are necessary and essential to the successful implementation of a plan of desegregation on an interim and continuing basis.
G. Involvement of Affected Persons and Communities and Protection Against Racial Discrimination in the Desegregation Process
82. The court has received uncontroverted evidence in the plans filed by every party and in testimony, and advice in several briefs amicus curiae, and the court finds, that the following additional factors are essential to implementation and operation of an effective plan of desegregation in the circumstances of this case:
(a) Bi-racial councils made up of the parents and staff, and, where appropriate, pupils, should be set up at each school; the persons most affected must be encouraged and given every opportunity to participate 936*936 in the implementation of desegregation. (b) Curriculum content, and all curriculum materials and student codes, must be re-evaluated and reflect the diversity of ethnic and cultural backgrounds of the children now in the schools. As far as possible, those immediately affected by these decisions at the individual school level should participate in that process. (c) In-service training for faculty and staff for multi-ethnic studies and human relations should be required; we must, after all, rely primarily on our teachers and children to respect, nurture, and deal with the diversity of students present in the desegregated school. (d) The entire grading, reporting, counselling, and testing program should be reviewed in light of desegregated schools compared to traditional schools and to avoid imposing the effects of past discrimination on the children. Tracking, whether so labeled or by any test, which has racial effects should not be utilized; within schools a pattern of classes which are substantially disproportionate in their racial composition from the relevant school or grade mix should be closely scrutinized and maintained only if necessary to promote a compelling educational objective.

83. In making the finding above, we remind the parties that this court's task is to enforce constitutional rights not to act as a schoolmaster; the court's task is to protect the constitutional rights here found violated with as little intrusion into the education process as possible. The court's objective is to establish the minimum constitutional framework within which the system of public schools may operate now and hereafter in a racially unified, non-discriminatory fashion. Within that framework the body politic, educators, parents, and most particularly the children must be given the maximum opportunity to experiment and secure a high quality, and equal, educational opportunity. However, experience has proven that specific goals, deadlines and methods of reporting and review must be required in all desegregation cases to insure compliance.
H. Timing
84. The burden remains with State defendants to show why desegregation for all schools, grades, classrooms, and pupils in the desegregation area should not proceed now, i. e., in the context of this litigation, for the 1972 fall term. The design and implementation of desegregation plans for all grades in 15 clusters —including pupil assignments, necessary reassignment of faculty and restructuring of facilities, planning and acquiring the needed transportation facilities —is conceded by all parties to be a major undertaking. Yet next fall will already be a full year, not just four or six or even eight weeks, Cf. Carter v. West Feliciano Parish School Bd., 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970), after the initial ruling by this court of the need for maximum feasible desegregation "now." In such circumstances the burden to prove the infeasibility of implementation of complete relief is high.
85. The desegregation panel, therefore, must make every effort to plan to implement as much actual desegregation, for as many clusters, schools, grades, classrooms, and students as possible.
86. At a minimum, there is agreement among, and evidence from, the experts that desegregating several grades, and more particularly entire elementary schools, within many, if not all clusters, may be accomplished in the fall.
87. In view of Findings 60 to 62, supra, if hard choices must be made for the fall, any interim plan should attempt to desegregate grades K-6, K-8, or K-9 in as many entire clusters as possible; and, in the absence of some other showing, there appears no reason why a complete 937*937 plan may not be implemented by fall 1973.[24]
88. A heavy burden rests with those who seek delay in any way, shape, kind, degree or extent to convince the court that maximum actual desegregation cannot proceed effectively forthwith.
89. In view of the time constraints, the need to discharge this burden forthwith, the State defendants' default in assisting this court to determine the appropriate desegregation area, and the State defendants' asserted and evident lack of available planning capacity suited to the task, the court finds that some additional entity must be charged with the task of preparing a pupil assignment plan to accomplish maximum actual desegregation and a transportation plan within the framework this day established. To that end a panel of skilled experts, broadly representative of the parties and their interests, appointed by the court and assigned that task, is required to discharge effectively and promptly these two tasks.
90. State defendants remain charged with the duty, however, of coming forward with other necessary reports and plans concerning those governance, administrative, and financial arrangements necessary and essential to the implementation of an effective plan of desegregation on an interim and on-going basis.

I. The Plan
91. Based on the entire evidence amassed in this case, the court finds that an educationally sound, administratively feasible, constitutionally adequate, practicable and effective plan of desegregation may be developed, implemented and operated hereafter for the desegregation area as set forth in findings 1-90 above.
CONCLUSIONS OF LAW
1. The court has continuing jurisdiction of this action for all purposes, including the granting of effective relief. Bradley v. Milliken, Ruling on Issue of Segregation, September 27, 1971; Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, March 28, 1972.
2. A de jure segregation violation having been found, the minimum remedy is maximum actual desegregation, taking into account the practicalities of the situation.[25] Bradley v. Milliken, Oral Order, October 4, 1971; Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, March 28, 1972; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), 349 U.S. 294 (1954); Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Alexander v. Holmes County Bd. of Ed., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciano School Bd., 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970); Swann v. Charlotte-Mecklenberg Bd. of Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Davis v. Board of School Commissioners of Mobile, 402 U.S. 33, 91 S. Ct. 1289, 28 L.Ed.2d 577 (1971); Davis v. School District of City of Pontiac, 443 F.2d 573, cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971).
938*938 3. The remedial obligation rests with school authorities; but where in any way they fail, or are unable because of the circumstances of the case, to fulfill any part of the obligation promptly and fully, the court has broad equity power, and the duty, to insure that demonstrable progress be made now; that a schedule for planning be adopted forthwith; and that necessary planning be specifically ordered and immediately undertaken in order that a constitutionally adequate plan may be fashioned and finally ordered implemented as soon as possible. Swann v. Charlotte-Mecklenberg Board of Education, 311 F.Supp. 265 (W.D.N.C.1970), aff'd, 402 U.S. 1, 91 S.Ct. 1267, 28 L. Ed.2d 554 (1971); Carter v. West Feliciano School Bd., 396 U.S. 226, 227-228, 90 S.Ct. 467, 24 L.Ed.2d 382 (1969), 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970); Acree v. County Board of Education, 458 F.2d 486 (5th Cir. 1972); Rule 53, Fed.R.Civ.P.; P. A. R. C. v. Pennsylvania, 334 F.Supp. 1257, 1266-7 (E.D.Pa.1971). Only then will the court in this case be apprised fully of the practicalities of the situation, and what is reasonable and feasible, in order that a final order may issue. School authorities, of course, will be given an opportunity to (1) raise relevant objections, (2) make suggestions for modifications, (3) or present an alternative plan of desegregation; and their judgment and expertise will be considered and given appropriate weight by the court.
4. Funds must either be raised or reallocated, where necessary, to remedy the deprivation of plaintiffs' constitutional rights and to insure that no such unconstitutional neglect recurs again. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Goldberg v. Kelly, 397 U.S. 254, 265-266, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 788, 28 L.Ed.2d 113 (1971); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Graham v. Richardson, 403 U.S. 365, 374-375, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Mayer v. Chicago, 404 U.S. 189, 197, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Griffin v. Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Hoosier v. Evans, 314 F.Supp. 316, 320-321 (D.St.Croix, 1970); United States v. School District 151, 301 F.Supp. 201, 232 (N.D.Ill.1969), aff'd as modified, 432 F.2d 1147 (7th Cir. 1970), cert. denied, 402 U.S. 943, 91 S.Ct.

1610, 29 L.Ed.2d 111 (1971); Plaquemines Parish School Board v. U. S., 415 F.2d 817 (5th Cir. 1970); Bradley v. Richmond, 325 F.Supp. 828 (E.D.Va. 1971); Brewer v. Norfolk, 456 F.2d 943 at pp. 946, 947 (4th Cir., 1972). It would be a cruel mockery of constitutional law if a different rule were to be applied to school desegregation cases. After all schooling is this nation's biggest industry and the most important task of government left to the states by the Constitution. In this case, were a different rule to be applied, it would constitute a gigantic hypocrisy: After all the money which has been spent over the years creating and maintaining the segregated condition, the relatively small amounts of money required to undo that segregation can be found. The law, surely, requires at least that. And the application of the commands of Swanndoes require that in almost every school desegregation case which has been brought to this court's attention.
5. In the substantial reassignment of faculty and restructuring of facilities required by the clustering, pairing, and grouping of schools to accomplish pupil desegregation, normal administrative practice should lead to schools with substantially like facilities, faculty and staff, and equipment. Swann, supra, 402 U.S. at 18-20, 91 S. Ct. 1267, 28 L.Ed.2d 554. Moreover, special care should be taken in the necessary reassignment of faculty to avoid creating or maintaining the racial identification of schools "simply by reference to the racial composition of teachers and staff." Swann, supra, 402 U.S. at 18, 91 S.Ct. at 1277. In any event, the equitable discretion of the court is broad 939*939 enough to insure that those aspects of faculty desegregation and equalization of facilities which are essential to the effective operation of a desegregation plan are included in the planning and final order, Swann, supra, 402 U.S. at 15, 91 S.Ct. 1267, 28 L.Ed.2d 554; U. S. v. Montgomery County Board of Ed., 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969); Hecht v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 88 L.Ed. 754 (1944); and no contract, union agreement or otherwise, or Board policy or practice may impede these Fourteenth Amendment obligations. U. S. v. Greenwood Municipal Separate School District, 406 F.2d 1086, 1094 (5th Cir. 1969), cert. denied, 395 U.S. 907, 89 S.Ct. 1749, 23 L.Ed.2d 220 (1969); Berry v. Benton Harbor, (W.D.Mich.1971).
6. The Federal courts have repeatedly rejected plans exempting the lower grades from integration, relying less on educational data than upon the hard legal fact that segregation at any age is a denial of the equal protection of the law. See, e. g., United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), aff'd on rehearing en banc, 380 F.2d 385 (5th Cir. 1967). To leave grades K through 3 exempt from a desegregation plan is not to eliminate segregation "root and branch." Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed. 2d 716 (1968).
7. The consistent application of settled constitutional law invests this court with the equitable power, and the duty, to order preparation, and thereafter implementation, of a practicable and sound plan which embodies the principles set forth in these findings and conclusions and the attached memorandum and order. See, generally, Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, March 24, 1972; Findings of Fact and Conclusions of Law on Detroit-Only Plans, March 24, 1972; oral ruling on offers of proof, April 13, 1972; and the cases cited therein.
8. School construction practices throughout the metropolitan area have added to and reinforced the pattern of segregation referred to. Although there were vacant seats throughout the city to which students could have been assigned at lesser cost and with the achievement of integration, continued sums were expended for construction of new schools designed to service particular areas of racial concentration, and such schools opened as and have continued to be racially identifiable in violation of the Fourteenth Amendment. Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 18-20, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); United States v. School Dist. 151, 404 F.2d 1125, 1132-33 (7th Cir. 1968); Davis v. School Dist. of Pontiac, 309 F.Supp. 734, 741-42 (E.D. Mich.1970), aff'd, 443 F.2d 573 (6th Cir. 1971); Spangler v. Pasadena City Bd. of Educ., 311 F.Supp. 501, 517-18 (C.D. Calif.1970); Johnson v. San Francisco Unified School Dist., 339 F.Supp. 1315, 1325 (N.D.Calif.1971) (Appendix A, Memorandum and Order Requiring the Parties to File Plans for

School Desegregation, April 28, 1971); Brewer v. School Board of the City of Norfolk, 397 F.2d 37, 42 (4th Cir. 1968); Cf. Sloan v. Tenth School Dist. of Wilson County, 433 F.2d 587 (6th Cir. 1970); United States v. Board of Educ. of Polk County, (4th Cir. 1968); Kelley v. Altheimer, 378 F.2d 483 (8th Cir. 1967); Bradley v. School Bd., 325 F.Supp. 828 (E.D.Va. 1971); Clark v. Board of Educ. of Little Rock, 401 U.S. 971, 91 S.Ct. 1187, 28 L. Ed.2d 321 (1971).
9. The legal effects of racially discriminatory confinement to a school district are not different from the effects of such containment within a district. E. g., Lee v. Macon County Board of Education, 448 F.2d 746 (5th Cir. 1971); Haney v. County Board Sevier, 410 F.2d 920 (8th Cir. 1969), 429 F.2d 364 (8th Cir. 1970).
10. Where the actions of state defendants and local school authorities throughout the metropolitan area have had the natural, foreseeable, and 940*940 actual effect of building upon, taking advantage of, and encouraging racially segregated demographic patterns deliberately fixed by governmental action at all levels with the effect of creating and maintaining racial segregation in the public schools, there is a present obligation to eliminate the continuing effects of such violation; and the District Court has the duty, upon default by school authorities, to intervene to secure compliance with the Constitution pursuant to the sound exercise of traditional equity powers consistent with the practicalities of the local situation. Swann v. Charlotte-Mecklenberg, 402 U. S. 1, 15-16, 20-21, 3132, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). Cf. Findings of Fact and Conclusions of Law on DetroitOnly Plans of Desegregation, p. 5, Conclusion 4. In devising remedies where state-imposed segregation has been established, it is the responsibility of school authorities and district courts to see to it that future school construction and abandonment is not used and does not serve to perpetuate or re-establish the violation. Swann, supra, 402 U.S. at 21, 91 S.Ct. 1267, 28 L.Ed.2d 554.
11. Moreover, where the State, and named defendants, are substantially implicated in the segregation violation found and are ultimately responsible for public schooling throughout the state, the consistent application of constitutional principles requires that this court take all steps necessary and essential to require them to desegregate the Detroit public schools effectively and maintain, now and hereafter, a racially unified, non-discriminatory system in the absence of a showing that the judicial intervention here contemplated will frustrate the promotion of a legitimate and compelling state policy or interest. Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Hunter v. City of Pittsburg, 207 U.S. 161, 178-179, 28 S.Ct. 40, 52 L.Ed. 151 (1907); Phoenix v. Kolodziejski, 399 U.S. 204, 212-213, 90 S.Ct. 1990, 26 L.Ed.2d 553 (1970); Kramer v. Union Free School District, 395 U.S. 621, 633, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Williams v. Illinois, 399 U.S. 235, 244-245, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L. Ed.2d 231 (1966); Green v. County School Bd., 391 U.S. 430, 439, 442, 88 S. Ct. 1689, 20 L.Ed.2d 716; Swann v. Charlotte-Mecklenberg, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Davis v. Bd. of School Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Monroe v. Board of Commissioners, 391 U.S. 450, 459, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968).
[*] By a subsequent order of the court, entered June 29, 1972, two additional panel members were named: Mary Ellen Riordan, President, Detroit Federation of Teachers; and a designee of the Michigan Education Association (MEA), who was later identified as Melvin Leasure.
[**] The designees of the State Superintendent of Public Instruction and newly intervening defendants shall be communicated to the court within seven days of the entry of this order. In the event the newly intervening defendants cannot agree upon a designee, they may each submit a nominee within seven days from the entry of this order, and the court shall select one of the nominees as representative of said defendants.

The designee of the State Superintendent of Public Instruction was later identified as Dr. William Pierce, Deputy Superintendent of Public Instruction, and the designee later agreed upon by the newly intervening defendants was Dr. William Emerson, Superintendent of Oakland Schools.
[1] In the main such proof entirely misses the point: the violation here found has to do with school segregation caused in substantial part by force of public authority and action; yet the intervening defendants' questions and offer of proof speak mainly to educational theory and recent and sometimes contradictory research about narrowly measured educational effects, mostly on achievement test scores, of quite limited beginnings of racial, or socio-economic integration of various types and as compared with the effects of dollar or other resource inputs and continued segregation. This court does not understand, however, that such research, from the Coleman report to its many reanalyses, formed the primary bases for the Brown decision or any of its progeny. See, e. g., Brunson v. Bd. of Trustees, 429 F.2d 820, 826 (4th Cir. 1970) (J. Sobeloff, concurring). In a context similar to newly intervening defendants' objections to desegregation, the Supreme Court in Swann specifically held that such factors constitute an impermissible limit upon the duty to desegregate. 402 U.S. at 24, Fn. 8. Citation to such research, either in support or rejection of school desegregation, misses the primary point: insofar as pupil assignments are concerned, the system of public schooling in every state must be operated in a racially non-discriminatory, unified fashion; until that objective is met, the very system of public schooling constitutes an invidious racial classification. The adoption of an education theory having the effect of maintaining a pattern of de jure segregation is therefore clearly impermissible. (Whether such theories, research, or evidence on educational quality or inequality form the basis for requiring judicial intervention and relief in the absence of a finding of de jure segregation is a question this court need not face.)
In any event, the Court of Appeals for the Sixth Circuit held, on June 19, 1970, that greater, not less, desegregation is the proper manner to alleviate the problem of disparity in achievement. Monroe v. Board of Commissioners, Jackson, Tenn., 427 F.2d 1005, 1008 (6th Cir. 1970).
[2] Chief Justice Burger in Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 6, 91 S.Ct. 1267, 28 L.Ed.2d 554.
[3] Defendant(s) Magdowski, et al., originally opposed to desegregation, during the course of the taking of proofs on the issue of segregation, conceded that the public schools of the city of Detroit were in fact segregated, and took the early lead in suggesting that the only effective avenue for desegregation was a metropolitan plan. The Detroit Board of Education, while continuing to deny that it has been guilty of any act of segregation, took the position that if desegregation were to be undertaken it could be done only on a metropolitan basis. So that now the white parents of the city of Detroit and its Board of Education—the parties most directly involved with the lot of the students in the Detroit school system—see no alternative to, and, for all practical purposes seek a metropolitan solution to the basic Detroit school problem.
[4] In the context of this hearing, the defendant Detroit Board of Education is not in a position to act as the usual "school authority" primarily responsible for suggesting an appropriate desegregation area simply because its authority does not extend beyond the geographic limits of the city of Detroit. The competence, knowledge of local conditions, and expertise of those schoolmen who helped prepare the Detroit Board's proposal, however, may be utilized and given appropriate weight.
[5] In Oliver v. Kalamazoo Board of Education, #K88-71, Judge Fox pointed out the primary responsibility of the state: "The State of Michigan is represented by two entities, but the entity is an agent of the State . . . [T]he Constitution says something about your [the State's] responsibility." The court went on to order the State to take an active role. Pre-trial order and transcript, May 1, 1972.
[6] The Detroit Board plan places heavier reliance on white flight and socio-economic factors, while the Magdowski proposal in addition places an emphasis on maintaining a minimum percentage black in each school. These considerations in no way determine the court's choice of a desegregation area necessary to meet constitutional requirements. In fairness, however, it also should be noted that the desegregation area, which the court deems to best meet constitutional requirements, also happens in the main, to meet the other concerns expressed in these two proposals. That the Board's interest in socioeconomic integration is largely met by racial desegregation is not surprising. There is uncontroverted evidence in the record, and the court so finds, that there is a high correlation between blacks and persons of a low socio-economic status, the result, in the main, of the cumulative effects of past and present racial discrimination including discrimination in education. At some point hereafter, of course, school authorities with responsibility for implementation and operation of the racially-unified non-discriminatory school system contemplated, or parts thereof, may and should include in its plan other educational goals and needs whether or not they are required by the law or any court. Swann v. Charlotte-Mecklenberg, 402 U.S. at 16, 91 S.Ct. 1267, 28 L.Ed.2d 554.
[7] If a state is constitutionally forbidden to institute a system of racial segregation by the use of artificial boundary lines, it is likewise forbidden to perpetuate a system whose effect is to maintain segregation. "There is no legally protected vested interest in segregation. If there were, then Brown v. Board of Education and the numerous decisions based on that case would be pointless. Courts will not say in one breath that public school systems may not practice segregation, and in the next that they may do nothing to eliminate it." Wanner v. School Bd. of Arlington County, 357 F.2d 452, (Sobeloff, Cir.

J.), pp. 454 and 455. The historic fact is that existing conditions are based on a design to segregate the races. To hold that segregation, once accomplished, is sacrosanct and beyond constitutional reach, is to say that the United States Constitution and its Amendments, and their provisions for equality, are mere rhetoric.
[8] See Findings 70-78, infra.
[9] The interplay of these two factors summarizes two other guideposts or starting points: maximum feasible desegregation and eliminating racially identifiable schools. Factors such as time and distance limitations, together with the rough definitions of substantial disproportion with the relevant school community's pupil racial composition, in turn largely determine the meaning of "eliminating racially identifiable schools" and what constitutes "maximum feasible desegregation," in the particular circumstances here present and in the context of a prior finding of segregation.
[10] The Detroit Board Proposal contemplates desegregation on a "minority"-white basis. The proof in this cause, however, has been aimed at the segregation of black children and white children; similarly the remedy has been so defined, argued, and in the main presented by parties. The court finds, therefore, that the area, and further planning, should, in the main, be confined to a black-white breakdown.
[11] To the Southwest, Plaintiffs' Proposal falls on the side of less time in transit than the 40-minute guideline because inclusion of more area is not required to desegregate. (See Finding 27, infra.)
[12] Moreover, in the main, the areas, schools, and pupils in these districts are not as fully members of the greater Detroit school community: many are less urban; they are the furthest in terms of time, distance, and contact from the Detroit area's economic and social activities; and many are more oriented, if anything, to urban areas other than Detroit, for example, the Ann Arbor—Ypsilanti area.
[13] The court notes, however, that the range of average socio-economic status for the various regions or clusters in Plaintiffs' Proposal is similar to that in the Detroit Board Proposal: based on the Michigan Assessment the range in Plaintiffs' Proposal happens to be 44.7 to 53.7, while in the Detroit Board Proposal the range is 46.3 to 53; and only three of the 15 clusters of schools in Plaintiffs' Proposal fall below 46.3.
[14] Because of the closeness of the question, particularly as it relates to any problems which may arise hereafter in establishing a pupil desegregation plan, the court feels that some opportunity should be given to the expert panel to suggest a modification of this tentative resolution. See also Findings 34-38 below.
[15] A common practice in other cases is the use of "pupil locator" maps. See North-cross v. School Board of City of Memphis, 444 F.2d 1184 (6th Cir. 1971).
[16] For years these city-contained school districts, which include some suburban districts in the desegregation area, as well as the Detroit Public Schools, have demanded without success that this inequitable state practice be changed so that all districts could be reimbursed on the same basis for pupil transportation.
[17] The figure almost twice that which appears in several of the State "plans" was based on the assumption that busing would be "one-way" with black children being assigned to suburban schools. Mr. Wagner, the state official in charge of pupil transportation, provided the information on which that estimate was based and also informed his superiors that a two-way plan of desegregation and transportation would cost much less per pupil. The State defendants did not bring this important fact to the court's attention in any of their submissions; it was uncovered and fully explored in the deposition of Mr. Wagner taken by plaintiffs.
[18] This phenomenon was noted in Swann, 402 U.S. 1, 20-21. The principle was long known, and actively, supported by the F.H.A. For example, consider that public agency's early understanding in its 1936 manual that white subdivision developments require white schools: "if the children of people living in such area are compelled to attend school where the majority or a good number of the pupils represent a far lower level of society or an incompatible racial element, the neighborhood under consideration will prove far less stable and desirable than if the condition did not exist."
[19] This figure assumes 30 children/regular classroom. Although rated capacities may be lower, the figure for regular classrooms does not include several types of instructional, recreational, laboratory, and other rooms which add overall pupil capacity to schools.
[20] The resulting pattern is unmistakable: "Residential segregation within the city and throughout the larger metropolitan area is substantial, pervasive and of long standing. Black citizens are located in separate and distinct areas within the city

and are not generally found in the suburbs. While the racially unrestricted choice of black persons and economic factors may have played some part in the development of this pattern of residential segregation, it is, in the main, the result of past and present practices and customs of racial discrimination, both public and private, which have and does restrict the housing opportunities of black people. Perhaps the most that can be said is that all of them [various governmental units], including school authorities, are, in part, responsible for the segregated condition which exists." Ruling on Issue of Segregation, 8 and 10. Moreover, an examination of PX 181, 192 and 185 shows that black children often remain isolated in predominately black schools in the few suburban school districts with any numbers of black pupils. In the last several weeks the local press has reported that the United States Office of Education cut off funds for one such district.
[21] Included in this set of arrangements are contract relationships of various types concerning personnel, property and debts.
[22] The defendant, William G. Milliken, Governor of the State of Michigan, in his amicus brief filed in the Supreme Court of the United States, San Antonio Independent School District v. Demetrio P. Rodriguez, 406 U.S. 966, 92 S.Ct. 2413, 32 L.Ed.2d 665, says, page II:
"1. Amici, whose individual and particular interests are set forth in more detail below, are the Governors of the above-listed States. As Governors and chief executive officers of their respective States, Amici are responsible for upholding and carrying out the commands of the Constitutions and laws of their various States, including the provisions thereof requiring the establishment of public schools and school districts and commanding the children of their States to attend school. Amici are responsible for financial decisions affecting all State operations, including those pertaining to support and financing of the public schools.
"Amici are deeply concerned about the ongoing and continuing crisis in public education and the difficulties facing public educational systems in their States and around the nation. Amici recognize that grave inequities exist because of variation in local property tax bases upon which local school districts must rely in order to support their school systems. Amici believe that these inequalities in educational resources violate the requirements of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and that these inequalities must be eliminated * * * *"
The Governors' amicus brief, speaking of the State of Texas, could as well be said of the State of Michigan, when it used these words:
"It is also undisputed that the local school districts and their boundaries, and hence the aggregate value of the property they contain, are entirely the creation of and their maintenance is the responsibility of the State of Texas. Furthermore, the detailed regulation of public education financing in Texas * * * is a state not a local responsibility. Indeed, the school districts have the power to raise funds for education only as a result of delegation by the State of its own power to tax for the general welfare." (Page 8 of brief.)
"Since the State could not discriminate directly against students residing in poorer localities, it should not be permitted to accomplish the same result by dividing its responsibility for equal education with local school districts and failing to supplement the funds raised by the school districts sufficiently to eliminate discrimination."* (Page 11 of brief.)
* Compare Griffin v. County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). While a State may delegate certain of its functions to smaller subdivisions such as cities or counties, it cannot escape accountability for their actions. Such subdivisions are "created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them * * * The number, nature, and duration of [their] powers * * * and the territory over which they shall be exercised rests in the absolute discretion of the state." Hunter v. City of Pittsburg, 207 U.S. 161, 178, 28 S.Ct. 40, 46, 52 L.Ed. 151 (1907).
[23] For years black children in the Carver School District were assigned to black schools in the inner city because no white suburban district (or white school in the city) would take the children.
[24] These findings are made on the basis of the present record and are subject to modification based on evidence which may be developed once the specific problems of actual desegregation are faced in the planning process.
[25] See, Kelley, et al. v. Metropolitan Bd. of Educ., 463 F.2d 732, page 744, May 30, 1972:
"Perhaps the primary thing that the Swann case decided was that in devising plans to terminate such residual effects, it is appropriate for the school system and the District Judge to take note of the proportion of white and black students within the area * and seek as practical a plan as may be for ending white schools and black schools and substituting therefor schools which are representative of the area in which the students live."

* The area referred to in this case is all of Davidson County, including the City of Nashville, which is included in the jurisdiction of defendant Metropolitan Board of Education.

 
 418 U.S. 717 (1974)
MILLIKEN, GOVERNOR OF MICHIGAN, ET AL. v.
BRADLEY ET AL.
No. 73-434.
Supreme Court of United States.
Argued February 27, 1974. Decided July 25, 1974.[*]
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
720*720 Frank J. Kelley, Attorney General of Michigan, argued the cause for petitioners in No. 73434. With him on the brief were Robert A. Derengoski, Solicitor General, and Eugene Krasicky, Gerald F. Young, George L. McCargar, and Thomas F. Schimpf,Assistant Attorneys General. William M. Saxton argued the cause for petitioners in Nos. 73-435 and 73-436. With him on the brief in No. 73-435 were John B. Weaver, Robert M. Vercruysse, and Xhafer Orhan. Douglas H. West filed a brief for petitioner in No. 73-436.
J. Harold Flannery and Nathaniel R. Jones argued the cause for respondents in all cases. With them on the brief for respondents Bradley et al. were Jack Greenberg, Norman Chachkin, and Louis R. Lucas. George T. Roumell, Jr., and C. Nicholas Revelosfiled a brief for respondents Board of Education for the School District of the city of Detroit et al. John Bruff and William Ross filed a brief for respondent Professional Personnel of Van 721*721 Dyke. Robert J. Lord filed a brief for respondents Green et al.
Solicitor General Bork argued the cause for the United States as amicus curiae urging reversal. With him on the brief was Assistant Attorney General Pottinger.[†]
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in these consolidated cases to determine whether a federal court may impose a multidistrict, areawide remedy to a single-district de jure segregation problem absent any finding that the other included school districts have failed to operate unitary school systems within their districts, absent any claim or finding that the boundary lines of any affected school district were established with the purpose of fostering racial segregation in public schools, absent any finding that the included districts committed acts which effected segregation within the other districts, and absent a 722*722 meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multidistrict remedy or on the question of constitutional violations by those neighboring districts.[1]
I

The action was commenced in August 1970 by the respondents, the Detroit Branch of the National Association for the Advancement of Colored People[2] and individual parents and students, on behalf of a class later defined by order of the United States District Court for the Eastern District of Michigan, dated February 16, 1971, to include "all school children in the City of Detroit, Michigan, and all Detroit resident parents who have children of school age." The named defendants in the District Court included the Governor of Michigan, the Attorney General, the State Board of Education, the State Superintendent of Public Instruction, the Board of Education of the city of Detroit, its members, and the city's former superintendent of schools. The State of Michigan as such is not a party to this litigation and references to the State must be read as references to the public officials, state and local, through whom the State is alleged to have acted. In their complaint respondents attacked the constitutionality of a statute of the State of Michigan known as Act 48 of the 1970 Legislature on the ground that it put the State of Michigan in the position of unconstitutionally interfering with the execution and operation of a voluntary plan of partial high school desegregation, known as the April 7, 1970, Plan, which had been adopted by the Detroit Board of Education to be effective beginning 723*723 with the fall 1970 semester. The complaint also alleged that the Detroit Public School System was and is segregated on the basis of race as a result of the official policies and actions of the defendants and their predecessors in office, and called for the implementation of a plan that would eliminate "the racial identity of every school in the [Detroit] system and . . . maintain now and hereafter a unitary, nonracial school system."
Initially the matter was tried on respondents' motion for a preliminary injunction to restrain the enforcement of Act 48 so as to permit the April 7 Plan to be implemented. On that issue, the District Court ruled that respondents were not entitled to a preliminary injunction since at that stage there was no proof that Detroit had a dual segregated school system. On appeal, the Court of Appeals found that the "implementation of the April 7 plan was [unconstitutionally] thwarted by State action in the form of the Act of the Legislature of Michigan," 433 F. 2d 897, 902 (CA6 1970), and that such action could not be interposed to delay, obstruct, or nullify steps lawfully taken for the purpose of protecting rights guaranteed by the Fourteenth Amendment. The case was remanded to the District Court for an expedited trial on the merits.
On remand, the respondents moved for immediate implementation of the April 7 Plan in order to remedy the deprivation of the claimed constitutional rights. In response, the School Board suggested two other plans, along with the April 7 Plan, and urged that top priority be assigned to the so-called "Magnet Plan" which was "designed to attract children to a school because of its superior curriculum." The District Court approved the Board's Magnet Plan, and respondents again appealed to the Court of Appeals, moving for summary reversal. The Court of Appeals refused to pass on the merits of the Magnet Plan and ruled that the District Court had 724*724 not abused its discretion in refusing to adopt the April 7 Plan without an evidentiary hearing. The case was again remanded with instructions to proceed immediately to a trial on the merits of respondents' substantive allegations concerning the Detroit school system. 438 F. 2d 945 (CA6 1971).
The trial of the issue of segregation in the Detroit school system began on April 6, 1971, and continued through July 22, 1971, consuming some 41 trial days. On September 27, 1971, the District Court issued its findings and conclusions on the issue of segregation, finding that "Governmental actions and inaction at all levels, federal, state and local, have combined, with those of private organizations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of residential segregation throughout the Detroit metropolitan area." 338 F. Supp. 582, 587 (ED Mich. 1971). While still addressing a Detroit-only violation, the District Court reasoned:
"While it would be unfair to charge the present defendants with what other governmental officers or agencies have done, it can be said that the actions or the failure to act by the responsible school authorities, both city and state, were linked to that of these other governmental units. When we

speak of governmental action we should not view the different agencies as a collection of unrelated units. Perhaps the most that can be said is that all of them, including the school authorities, are, in part, responsible for the segregated condition which exists. And we note that just as there is an interaction between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential pattern by the racial composition of the schools." Ibid.
725*725 The District Court found that the Detroit Board of Education created and maintained optional attendance zones[3] within Detroit neighborhoods undergoing racial transition and between high school attendance areas of opposite predominant racial compositions. These zones, the court found, had the "natural, probable, foreseeable and actual effect" of allowing white pupils to escape identifiably Negro schools. Ibid. Similarly, the District Court found that Detroit school attendance zones had been drawn along north-south boundary lines despite the Detroit Board's awareness that drawing boundary lines in an east-west direction would result in significantly greater desegregation. Again, the District Court concluded, the natural and actual effect of these acts was the creation and perpetuation of school segregation within Detroit.
The District Court found that in the operation of its school transportation program, which was designed to relieve overcrowding, the Detroit Board had admittedly bused Negro Detroit pupils to predominantly Negro schools which were beyond or away from closer white schools with available space.[4] This practice was found to have continued in recent years despite the Detroit Board's avowed policy, adopted in 1967, of utilizing transportation to increase desegregation:
"With one exception (necessitated by the burning of a white school), defendant Board has never bused 726*726 white children to predominantly black schools. The Board has not bused white pupils to black schools despite the enormous amount of space available in inner-city schools. There were 22,961 vacant seats in schools 90% or more black." Id., at 588.
With respect to the Detroit Board of Education's practices in school construction, the District Court found that Detroit school construction generally tended to have a segregative effect with the great majority of schools being built in either overwhelmingly all-Negro or all-white neighborhoods so that the new schools opened as predominantly one-race schools. Thus, of the 14 schools which opened for use in 1970-1971, 11 opened over 90% Negro and one opened less than 10% Negro.
The District Court also found that the State of Michigan had committed several constitutional violations with respect to the exercise of its general responsibility for, and supervision of, public education.[5] The State, for example, was found to have failed, until the 1971 Session of the Michigan Legislature, to provide authorization or 727*727 funds for the transportation of pupils within Detroit regardless of their poverty or distance from the school to which they were assigned; during this same period the State provided many neighboring, mostly white, suburban districts the full range of state-supported transportation.
The District Court found that the State, through Act 48, acted to "impede, delay and minimize racial integration in Detroit schools." The first sentence of § 12 of Act 48 was designed to delay the April 7, 1970, desegregation plan originally adopted by the Detroit Board. The remainder of § 12 sought to prescribe for each school in the eight districts criteria of "free choice" and "neighborhood schools," which, the District Court found, "had as their purpose and effect the maintenance of segregation." 338 F. Supp., at 589.[6]
The District Court also held that the acts of the Detroit Board of Education, as a subordinate entity of the State, were attributable to the State of Michigan, thus creating a vicarious liability on the part of the State. Under Michigan law, Mich. Comp. Laws § 388.851 (1970), for example, school building construction plans had to be approved by the State Board of Education, and, prior to 1962, the State

Board had specific statutory authority to supervise schoolsite selection. The proofs concerning the effect of Detroit's school construction program were, 728*728 therefore, found to be largely applicable to show state responsibility for the segregative results.[7]
Turning to the question of an appropriate remedy for these several constitutional violations, the District Court deferred a pending motion[8] by intervening parent defendants 729*729 to join as additional parties defendant the 85 outlying school districts in the three-county Detroit metropolitan area on the ground that effective relief could not be achieved without their presence.[9] The District Court concluded that this motion to join was "premature," since it "has to do with relief" and no reasonably specific desegregation plan was before the court. 338 F. Supp., at 595. Accordingly, the District Court proceeded to order the Detroit Board of Education to submit desegregation plans limited to the segregation problems found to be existing within the city of Detroit. At the same time, however, the state defendants were directed to submit desegregation plans encompassing the three-county metropolitan area[10] despite the fact that the 85 outlying school 730*730 districts of these three counties were not parties to the action and despite the fact that there had been no claim that these outlying districts had committed constitutional violations.[11] An effort to appeal these orders to the Court of Appeals was dismissed on the ground that the orders were not appealable. 468 F. 2d 902 (CA6), cert. denied, 409 U. S. 844 (1972). The sequence of the ensuing actions and orders of the District Court are significant factors and will therefore be catalogued in some detail.
Following the District Court's abrupt announcement that it planned to consider the implementation of a multidistrict, metropolitan area remedy to the segregation problems identified within the city of Detroit, the District Court was again requested to grant the outlying school districts intervention as of right on the ground that the District Court's new request for multidistrict plans "may, as a practical matter, impair or impede [the intervenors'] ability to protect" the welfare of their students. The District Court took the motions to intervene under advisement pending submission of the requested desegregation plans by Detroit and the state officials. On March 7, 1972, the District Court notified all parties and the petitioner school districts seeking intervention, that March 14, 1972, was the deadline for submission of recommendations for conditions of intervention and the 731*731 date of the commencement of hearings on Detroit-only desegregation plans. On the second day of the scheduled hearings, March 15, 1972, the District Court granted the motions of the intervenor school districts[12] subject, inter alia,to the following conditions:
"1. No intervenor will be permitted to assert any claim or defense previously adjudicated by the court. "2. No intervenor shall reopen any question or issue which has previously been decided by the court. ..... "7. New intervenors are granted intervention for two principal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of considering a metropolitan plan; (b) To review any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting objections, modifications or alternatives to it or them, and in accordance with the requirements of the United States Constitution and the prior orders of this court." 1 Joint Appendix 206 (hereinafter App.).
Upon granting the motion to intervene, on March 15, 1972, the District Court advised the petitioning intervenors that the court had previously set March 22, 1972, as the date for the filing of briefs on the legal propriety of a "metropolitan" plan of desegregation and, accordingly, that the intervening school districts would have one week to muster their legal arguments on the issue.[13] 732*732 Thereafter, and following the completion of hearings on the Detroit-only desegregation plans, the District Court issued the four rulings that were the principal issues in the Court of Appeals.
(a) On March 24, 1972, two days after the intervenors' briefs were due, the District Court issued its ruling on the question of whether it could "consider relief in the form of a metropolitan plan,

encompassing not only the City of Detroit, but the larger Detroit metropolitan area." It rejected the state defendants' arguments that no state action caused the segregation of the Detroit schools, and the intervening suburban districts' contention that interdistrict relief was inappropriate unless the suburban districts themselves had committed violations. The court concluded:
"[I]t is proper for the court to consider metropolitan plans directed toward the desegregation of the Detroit public schools as an alternative to the present intra-city desegregation plans before it and, in the event that the court finds such intra-city plans inadequate to desegregate such schools, the court is of the opinion that it is required to consider a metropolitan remedy for desegregation." Pet. App. 51a.
(b) On March 28, 1972, the District Court issued its findings and conclusions on the three Detroitonly plans submitted by the city Board and the respondents. It found that the best of the three plans "would make the Detroit school system more identifiably Black . . . thereby increasing the flight of Whites from the city and the system." Id., at 55a. From this the court concluded that the plan "would not accomplish desegregation. . . within the corporate geographical limits of the city." Id., at 56a. Accordingly, the District Court held that it "must look beyond the limits of the Detroit school 733*733 district for a solution to the problem," and that "[s]chool district lines are simply matters of political convenience and may not be used to deny constitutional rights." Id., at 57a.
(c) During the period from March 28 to April 14, 1972, the District Court conducted hearings on a metropolitan plan. Counsel for the petitioning intervenors was allowed to participate in these hearings, but he was ordered to confine his argument to "the size and expanse of the metropolitan plan" without addressing the intervenors' opposition to such a remedy or the claim that a finding of a constitutional violation by the intervenor districts was an essential predicate to any remedy involving them. Thereafter, on June 14, 1972, the District Court issued its ruling on the "desegregation area" and related findings and conclusions. The court acknowledged at the outset that it had "taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties [in the Detroit area], nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation." Nevertheless, the court designated 53 of the 85 suburban school districts plus Detroit as the "desegregation area" and appointed a panel to prepare and submit "an effective desegregation plan" for the Detroit schools that would encompass the entire desegregation area.[14] The plan was to be based on 15 clusters, each containing part of the Detroit system and two or more suburban districts, 734*734 and was to "achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom [would be] substantially disproportionate to the overall pupil racial composition." 345 F. Supp. 914, 918 (ED Mich. 1972).
(d) On July 11, 1972, and in accordance with a recommendation by the court-appointed desegregation panel, the District Court ordered the Detroit Board of Education to purchase or lease "at least" 295 school buses for the purpose of providing transportation under an interim plan to be developed for the 1972-1973 school year. The costs of this acquisition were to be borne by the state defendants. Pet. App. 106a-107a.
On June 12, 1973, a divided Court of Appeals, sitting en banc, affirmed in part, vacated in part, and remanded for further proceedings. 484 F. 2d 215 (CA6).[15] The Court of Appeals held, first, that the record supported the District Court's findings and conclusions on the constitutional violations committed by the Detroit Board, id., at 221-238, and by the state defendants, id., at 239-241.[16] It stated that the acts of racial discrimination 735*735 shown in the record are "causally related to the substantial amount of segregation found in the Detroit school system," id., at 241, and that "the District Court was therefore authorized and required to take effective measures to desegregate the Detroit Public School System." Id., at 242.

The Court of Appeals also agreed with the District Court that "any less comprehensive a solution than a metropolitan area plan would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area." Id., at 245. The court went on to state that it could "not see how such segregation can be any less harmful to the minority students than if the same result were accomplished within one school district." Ibid.
Accordingly, the Court of Appeals concluded that "the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan." Id., at 249. It reasoned that such a plan would be appropriate because of the State's violations, and could be implemented because of the State's authority to control local school districts. Without further elaboration, and without any discussion of the claims that no constitutional violation by the outlying districts had been 736*736 shown and that no evidence on that point had been allowed, the Court of Appeals held:
"[T]he State has committed de jure acts of segregation and . . . the State controls the instrumentalities whose action is necessary to remedy the harmful effects of the State acts." Ibid.
An interdistrict remedy was thus held to be "within the equity powers of the District Court." Id., at 250.[17]
The Court of Appeals expressed no views on the propriety of the District Court's composition of the metropolitan "desegregation area." It held that all suburban school districts that might be affected by any metropolitanwide remedy should, under Fed. Rule Civ. Proc. 19, be made parties to the case on remand and be given an opportunity to be heard with respect to the scope and implementation of such a remedy. 484 F. 2d, at 251-252. Under the terms of the remand, however, the District Court was not "required" to receive further evidence on the issue of segregation in the Detroit schools or on the propriety of a Detroit-only remedy, or on the question of whether the affected districts had committed any violation of the constitutional rights of Detroit pupils or others. Id., at 252. Finally, the Court of Appeals vacated the District Court's order directing the acquisition of school buses, subject to the right of the District Court to consider reimposing the order "at the appropriate time." Ibid.
II 737*737
Ever since Brown v. Board of Education, 347 U. S. 483 (1954), judicial consideration of school desegregation cases has begun with the standard:
"[I]n the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal." Id., at 495.
This has been reaffirmed time and again as the meaning of the Constitution and the controlling rule of law.
The target of the Brown holding was clear and forthright: the elimination of state-mandated or deliberately maintained dual school systems with certain schools for Negro pupils and others for white pupils. This duality and racial segregation were held to violate the Constitution in the cases subsequent to 1954, including particularly Green v. County School Board of New Kent County, 391 U. S. 430 (1968); Raney v. Board of Education,391 U. S. 443 (1968); Monroe v. Board of Comm'rs, 391 U. S. 450 (1968); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1

(1971); Wright v. Council of the City of Emporia, 407 U. S. 451 (1972); United States v. Scotland Neck Board of Education, 407 U. S. 484 (1972).
The Swann case, of course, dealt
"with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once." 402 U. S., at 6.
In Brown v. Board of Education, 349 U. S. 294 (1955) (Brown II), the Court's first encounter with the problem of remedies in school desegregation cases, the Court noted:
"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, 738*738 equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." Id., at 300 (footnotes omitted).
In further refining the remedial process, Swann held, the task is to correct, by a balancing of the individual and collective interests, "the condition that offends the Constitution." A federal remedial power may be exercised "only on the basis of a constitutional violation" and, "[a]s with any equity case, the nature of the violation determines the scope of the remedy." 402 U. S., at 16.
Proceeding from these basic principles, we first note that in the District Court the complainants sought a remedy aimed at the condition alleged to offend the Constitution—the segregation within the Detroit City School District.[18] The court acted on this theory of the case and in its initial ruling on the "Desegregation Area" stated:
"The task before this court, therefore, is now, and . . . has always been, how to desegregate the Detroit public schools." 345 F. Supp., at 921.
Thereafter, however, the District Court abruptly rejected the proposed Detroit-only plans on the ground that "while [they] would provide a racial mix more in keeping with the Black-White proportions of the student population [they] would accentuate the racial identifiability of the 739*739 [Detroit] district as a Black school system, and would not accomplish desegregation." Pet. App. 56a. "[T]he racial composition of the student body is such," said the court, "that the plan's implementation would clearly make the entire Detroit public school system racially identifiable" (id., at 54a), "leav[ing] many of its schools 75 to 90 per cent Black." Id., at 55a. Consequently, the court reasoned, it was imperative to "look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools . . ." since "[s]chool district lines are simply matters of political convenience and may not be used to deny constitutional rights." Id., at 57a. Accordingly, the District Court proceeded to redefine the relevant area to include areas of predominantly white pupil population in order to ensure that "upon implementation, no school, grade or classroom [would be] substantially disproportionate to the overall pupil racial composition" of the entire metropolitan area.
While specifically acknowledging that the District Court's findings of a condition of segregation were limited to Detroit, the Court of Appeals approved the use of a metropolitan remedy largely on the grounds that it is
"impossible to declare `clearly erroneous' the District Judge's conclusion that any Detroit only segregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly

white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black." 484 F. 2d, at 249.
Viewing the record as a whole, it seems clear that the District Court and the Court of Appeals shifted the primary 740*740 focus from a Detroit remedy to the metropolitan area only because of their conclusion that total desegregation of Detroit would not produce the racial balance which they perceived as desirable. Both courts proceeded on an assumption that the Detroit schools could not be truly desegregated—in their view of what constituted desegregation—unless the racial composition of the student body of each school substantially reflected the racial composition of the population of the metropolitan area as a whole. The metropolitan area was then defined as Detroit plus 53 of the outlying school districts. That this was the approach the District Court expressly and frankly employed is shown by the order which expressed the court's view of the constitutional standard:
"Within the limitations of reasonable travel time and distance factors, pupil reassignments shall be effected within the clusters described in Exhibit P. M. 12 so as to achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom [will be] substantially disproportionate to the overall pupil racial composition." 345 F. Supp., at 918 (emphasis added).
In Swann, which arose in the context of a single independent school district, the Court held:
"If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse." 402 U. S., at 24.
The clear import of this language from Swann is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance in 741*741each "school, grade or classroom."[19] See Spencer v. Kugler, 404 U. S. 1027 (1972).
Here the District Court's approach to what constituted "actual desegregation" raises the fundamental question, not presented in Swann, as to the circumstances in which a federal court may order desegregation relief that embraces more than a single school district. The court's analytical starting point was its conclusion that school district lines are no more than arbitrary lines on a map drawn "for political convenience." Boundary lines may be bridged where there has been a constitutional violation calling for interdistrict relief, but the notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to 742*742 quality of the educational process. See Wright v. Council of the City of Emporia, 407 U. S., at 469. Thus, in San Antonio School District v. Rodriguez, 411 U. S. 1, 50 (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decisionmaking, permits the structuring of school programs to fit local needs, and encourages "experimentation, innovation, and a healthy competition for educational excellence."
The Michigan educational structure involved in this case, in common with most States, provides for a large measure of local control,[20] and a review of the scope and character of these local powers indicates the extent to which the interdistrict remedy approved by the two courts could disrupt and alter the structure of public education 743*743 in Michigan. The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district. See n. 10, supra. Entirely apart from the logistical and other

serious problems attending large-scale transportation of students, the consolidation would give rise to an array of other problems in financing and operating this new school system. Some of the more obvious questions would be: What would be the status and authority of the present popularly elected school boards? Would the children of Detroit be within the jurisdiction and operating control of a school board elected by the parents and residents of other districts? What board or boards would levy taxes for school operations in these 54 districts constituting the consolidated metropolitan area? What provisions could be made for assuring substantial equality in tax levies among the 54 districts, if this were deemed requisite? What provisions would be made for financing? Would the validity of long-term bonds be jeopardized unless approved by all of the component districts as well as the State? What body would determine that portion of the curricula now left to the discretion of local school boards? Who would establish attendance zones, purchase school equipment, locate and construct new schools, and indeed attend to all the myriad day-to-day decisions that are necessary to school operations affecting potentially more than three-quarters of a million pupils? See n. 10, supra.
It may be suggested that all of these vital operational problems are yet to be resolved by the District Court, and that this is the purpose of the Court of Appeals' proposed remand. But it is obvious from the scope of the interdistrict remedy itself that absent a complete restructuring of the laws of Michigan relating to school districts the District Court will become first, a de facto 744*744 "legislative authority" to resolve these complex questions, and then the "school superintendent" for the entire area. This is a task which few, if any, judges are qualified to perform and one which would deprive the people of control of schools through their elected representatives.
Of course, no state law is above the Constitution. School district lines and the present laws with respect to local control, are not sacrosanct and if they conflict with the Fourteenth Amendment federal courts have a duty to prescribe appropriate remedies. See, e. g., Wright v. Council of the City of Emporia, 407 U. S. 451 (1972); United Statesv. Scotland Neck Board of Education, 407 U. S. 484 (1972) (state or local officials prevented from carving out a new school district from an existing district that was in process of dismantling a dual school system); cf. Haney v. County Board of Education of Sevier County, 429 F. 2d 364 (CA8 1970) (State contributed to separation of races by drawing of school district lines); United States v. Texas, 321 F. Supp. 1043 (ED Tex. 1970), aff'd, 447 F. 2d 441 (CA5 1971), cert. denied sub nom. Edgar v. United States,404 U. S. 1016 (1972) (one or more school districts created and maintained for one race). But our prior holdings have been confined to violations and remedies within a single school district. We therefore turn to address, for the first time, the validity of a remedy mandating cross-district or interdistrict consolidation to remedy a condition of segregation found to exist in only one district.
The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. Swann,402 U. S., at 16. Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must 745*745 first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.
The record before us, voluminous as it is, contains evidence of de jure segregated conditions only in the Detroit schools; indeed, that was the theory on which the litigation was initially based and on

which the District Court took evidence. See supra, at 725-726. With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the court went beyond the original theory of the case as framed by the pleadings and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.
In dissent, MR. JUSTICE WHITE and MR. JUSTICE MARSHALL undertake to demonstrate that agencies having statewide authority participated in maintaining the dual school system found to exist in Detroit. They are apparently of the view that once such participation is 746*746 shown, the District Court should have a relatively free hand to reconstruct school districts outside of Detroit in fashioning relief. Our assumption, arguendo, see infra, at 748, that state agencies did participate in the maintenance of the Detroit system, should make it clear that it is not on this point that we part company.[21]The difference between us arises instead from established doctrine laid down by our cases. Brown, supra; Green, supra; Swann, supra; Scotland Neck, supra; and Emporia, supra, each addressed the issue of constitutional wrong in terms of an established geographic and administrative school system populated by both Negro and white children. In such a context, terms such as "unitary" and "dual" systems, and "racially identifiable schools," have meaning, and the necessary federal authority to remedy the constitutional wrong is firmly established. But the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct. Disparate treatment of white and Negro students occurred within the Detroit school system, and not elsewhere, and on this record the remedy must be limited to that system. Swann, supra, at 16.
The constitutional right of the Negro respondents residing in Detroit is to attend a unitary school system in that district. Unless petitioners drew the district lines in a discriminatory fashion, or arranged for white students 747*747 residing in the Detroit District to attend schools in Oakland and Macomb Counties, they were under no constitutional duty to make provisions for Negro students to do so. The view of the dissenters, that the existence of a dual system in Detroit can be made the basis for a decree requiring cross-district transportation of pupils, cannot be supported on the grounds that it represents merely the devising of a suitably flexible remedy for the violation of rights already established by our prior decisions. It can be supported only by drastic expansion of the constitutional right itself, an expansion without any support in either constitutional principle or precedent.[22]
748*748 III
We recognize that the six-volume record presently under consideration contains language and some specific incidental findings thought by the District Court to afford a basis for interdistrict relief. However, these comparatively isolated findings and brief comments concern only one possible interdistrict violation and are found in the context of a proceeding that, as the District Court conceded, included no proof of segregation practiced by any of the 85 suburban school districts surrounding Detroit. The Court of Appeals, for example, relied on five factors which, it held, amounted to unconstitutional state action with respect to the violations found in the Detroit system:
(1) It held the State derivatively responsible for the Detroit Board's violations on the theory that actions of Detroit as a political subdivision of the State were attributable to the State. Accepting, arguendo, the correctness of this finding of state responsibility for the segregated conditions within the city of Detroit, it does not follow that an interdistrict remedy is constitutionally justified or required. With a single exception, discussed later, there has been no showing that either the State or any of the 85 outlying districts engaged in activity that had a cross-district effect. The boundaries of the Detroit School District, which are coterminous with the boundaries of the city of

Detroit, were established over a century ago by neutral legislation when the city was incorporated; there is no evidence in the record, nor is there any suggestion by the respondents, that either the original boundaries of the Detroit School District, or any other school district in Michigan, were established for the purpose of creating, maintaining, or perpetuating segregation of races. There is no claim and there is no evidence hinting that petitioner outlying school districts and their 749*749 predecessors, or the 30-odd other school districts in the tricounty area—but outside the District Court's "desegregation area"—have ever maintained or operated anything but unitary school systems. Unitary school systems have been required for more than a century by the Michigan Constitution as implemented by state law.[23] Where the schools of only one district have been affected, there is no constitutional power in the courts to decree relief balancing the racial composition of that district's schools with those of the surrounding districts.
(2) There was evidence introduced at trial that, during the late 1950's, Carver School District, a predominantly Negro suburban district, contracted to have Negro high school students sent to a predominantly Negro school in Detroit. At the time, Carver was an independent school district that had no high school because, according to the trial evidence, "Carver District . . . did not have a place for adequate high school facilities." 484 F. 2d, at 231. Accordingly, arrangements were made with Northern High School in the abutting Detroit School District so that the Carver high school students could obtain a secondary school education. In 1960 the Oak Park School District, a predominantly white suburban district, annexed the predominantly Negro Carver School District, through the initiative of local officials. 750*750 Ibid. There is, of course, no claim that the 1960 annexation had a segregative purpose or result or that Oak Park now maintains a dual system.
According to the Court of Appeals, the arrangement during the late 1950's which allowed Carver students to be educated within the Detroit District was dependent upon the "tacit or express" approval of the State Board of Education and was the result of the refusal of the white suburban districts to accept the Carver students. Although there is nothing in the record supporting the Court of Appeals' supposition that suburban white schools refused to accept the Carver students, it appears that this situation, whether with or without the State's consent, may have had a segregative effect on the school populations of the two districts involved. However, since "the nature of the violation determines the scope of the remedy," Swann, 402 U. S., at 16, this isolated instance affecting two of the school districts would not justify the broad metropolitanwide remedy contemplated by the District Court and approved by the Court of Appeals, particularly since it embraced potentially 52 districts having no responsibility for the arrangement and involved 503,000 pupils in addition to Detroit's 276,000 students.
(3) The Court of Appeals cited the enactment of state legislation (Act 48) which had the effect of rescinding Detroit's voluntary desegregation plan (the April 7 Plan). That plan, however, affected only 12 of 21 Detroit high schools and had no causal connection with the distribution of pupils by race between Detroit and the other school districts within the tri-county area.
(4) The court relied on the State's authority to supervise schoolsite selection and to approve building construction as a basis for holding the State responsible for the segregative results of the school construction program in Detroit. Specifically, the Court of Appeals asserted 751*751 that during the period between 1949 and 1962 the State Board of Education exercised general authority as overseer of site acquisitions by local boards for new school construction, and suggested that this state-approved school construction "fostered segregation throughout the Detroit Metropolitan area." 484 F. 2d, at 241. This brief comment, however, is not supported by the evidence taken at trial since that evidence was specifically limited to proof that schoolsite acquisition and school construction within the city of Detroit produced de jure segregation within the city itself. Id., at 235-238. Thus, there was no evidence suggesting that the State's activities with respect to either school construction or site acquisition within Detroit affected the racial composition of the school population outside

Detroit or, conversely, that the State's school construction and site acquisition activities within the outlying districts affected the racial composition of the schools within Detroit.
(5) The Court of Appeals also relied upon the District Court's finding:
"This and other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities." Id., at 239.
However, neither the Court of Appeals nor the District Court offered any indication in the record or in their opinions as to how, if at all, the availability of state-financed aid for some Michigan students outside Detroit, but not for those within Detroit, might have affected the racial character of any of the State's school districts. Furthermore, as the respondents recognize, the application of our recent ruling in San Antonio School Districtv. Rodriguez, 411 U. S. 1 (1973), to this state education financing system is questionable, and this issue was not 752*752 addressed by either the Court of Appeals or the District Court. This, again, underscores the crucial fact that the theory upon which the case proceeded related solely to the establishment of Detroit city violations as a basis for desegregating Detroit schools and that, at the time of trial, neither the parties nor the trial judge was concerned with a foundation for interdistrict relief.[24]
IV
Petitioners have urged that they were denied due process by the manner in which the District Court limited their participation after intervention was allowed, thus precluding adequate opportunity to present evidence that they had committed no acts having a segregative effect in Detroit. In light of our holding that, absent an interdistrict violation, there is no basis for an interdistrict remedy, we need not reach these claims. It is clear, however, that the District Court, with the approval of the Court of Appeals, has provided an interdistrict remedy in the face of a record which shows no constitutional violations that would call for equitable relief except within the city of Detroit. In these circumstances there was no occasion for the parties to address, or for the District Court to consider whether there were racially discriminatory acts for which any of the 53 outlying districts were responsible and which had direct and significant segregative effect on schools of more than one district.
We conclude that the relief ordered by the District Court and affirmed by the Court of Appeals was based upon an erroneous standard and was unsupported by record evidence that acts of the outlying districts effected the discrimination found to exist in the schools of Detroit. 753*753 Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion leading to prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970.
Reversed and remanded.
MR. JUSTICE STEWART, concurring.
In joining the opinion of the Court, I think it appropriate, in view of some of the extravagant language of the dissenting opinions, to state briefly my understanding of what it is that the Court decides today.

The respondents commenced this suit in 1970, claiming only that a constitutionally impermissible allocation of educational facilities along racial lines had occurred in public schools within a single school district whose lines were coterminous with those of the city of Detroit. In the course of the subsequent proceedings, the District Court found that public school officials had contributed to racial segregation within that district by means of improper use of zoning and attendance patterns, optional-attendance areas, and building and site selection. This finding of a violation of the Equal Protection Clause was upheld by the Court of Appeals, and is accepted by this Court today. See ante, at 738 n. 18. In the present posture of the case, therefore, the Court does not deal with questions of substantive constitutional law. The basic issue now before the Court concerns, rather, the appropriate exercise of federal equity jurisdiction.[1]
754*754 No evidence was adduced and no findings were made in the District Court concerning the activities of school officials in districts outside the city of Detroit, and no school officials from the outside districts even participated in the suit until after the District Court had made the initial determination that is the focus of today's decision. In spite of the limited scope of the inquiry and the findings, the District Court concluded that the only effective remedy for the constitutional violations found to have existed within the city of Detroit was a desegregation plan calling for busing pupils to and from school districts outside the city. The District Court found that any desegregation plan operating wholly " `within the corporate geographical limits of the city' " would be deficient since it " `would clearly make the entire Detroit public school system racially identifiable as Black.' " 484 F. 2d 215, 244, 243. The Court of Appeals, in affirming the decision that an interdistrict remedy was necessary, noted that a plan limited to the city of Detroit "would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area." Id., at 245.
The courts were in error for the simple reason that the remedy they thought necessary was not commensurate with the constitutional violation found. Within a single school district whose officials have been shown to have engaged in unconstitutional racial segregation, a remedial decree that affects every individual school may be dictated by "common sense," see Keyes v. School District No. 1, Denver, Colorado, 413 U. S. 189, 203, and indeed may provide the only effective means to eliminate segregation "root and branch," Green v. County School Board of New Kent County, 391 U. S. 430, 438, and to "effectuate a transition to a racially nondiscriminatory school 755*755 system." Brown v. Board of Education, 349 U. S. 294, 301. See Keyes, supra, at 198-205. But in this case the Court of Appeals approved the concept of a remedial decree that would go beyond the boundaries of the district where the constitutional violation was found, and include schools and schoolchildren in many other school districts that have presumptively been administered in complete accord with the Constitution.
The opinion of the Court convincingly demonstrates, ante, at 742-743, that traditions of local control of schools, together with the difficulty of a judicially supervised restructuring of local administration of schools, render improper and inequitable such an interdistrict response to a constitutional violation found to have occurred only within a single school district.
This is not to say, however, that an interdistrict remedy of the sort approved by the Court of Appeals would not be proper, or even necessary, in other factual situations. Were it to be shown, for example, that state officials had contributed to the separation of the races by drawing or redrawing school district lines, see Haney v. County Board of Education of Sevier County, 429 F. 2d 364; cf. Wright v. Council of the City of Emporia, 407 U. S. 451; United States v. Scotland Neck Board of Education, 407 U. S. 484; by transfer of school units between districts, United States v. Texas, 321 F. Supp. 1043, aff'd, 447 F. 2d 441; Turner v. Warren County Board of Education, 313 F. Supp. 380; or by purposeful, racially discriminatory use of state housing or zoning laws, then a decree calling for transfer of pupils across district lines or for restructuring of district lines might well be appropriate.

In this case, however, no such interdistrict violation was shown. Indeed, no evidence at all concerning the administration of schools outside the city of Detroit was presented other than the fact that these schools contained 756*756 a higher proportion of white pupils than did the schools within the city. Since the mere fact of different racial compositions in contiguous districts does not itself imply or constitute a violation of the Equal Protection Clause in the absence of a showing that such disparity was imposed, fostered, or encouraged by the State or its political subdivisions, it follows that no interdistrict violation was shown in this case.[2] The formulation of an interdistrict remedy was thus simply not responsive to the factual record before the District Court and was an abuse of that court's equitable powers.
757*757 In reversing the decision of the Court of Appeals this Court is in no way turning its back on the proscription of state-imposed segregation first voiced in Brown v. Board of Education, 347 U. S. 483, or on the delineation of remedial powers and duties most recently expressed in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1. In Swann the Court addressed itself to the range of equitable remedies available to the courts to effectuate the desegregation mandated by Brown and its progeny, noting that the task in choosing appropriate relief is "to correct . . . the condition that offends the Constitution," and that "the nature of the violation determines the scope of the remedy . . . ." Id., at 16.
The disposition of this case thus falls squarely under these principles. The only "condition that offends the Constitution" found by the District Court in this case is the existence of officially supported segregation in and among public schools in Detroit itself. There were no findings that the differing racial composition between schools in the city and in the outlying suburbs was caused by official activity of any sort. It follows that the decision to include in the desegregation plan pupils from school districts outside Detroit was not predicated upon any constitutional violation involving those school districts. By approving a remedy that would reach beyond the limits of the city of Detroit to correct a constitutional violation found to have occurred solely within that city the Court of Appeals thus went beyond the governing equitable principles established in this Court's decisions.
MR. JUSTICE DOUGLAS, dissenting.
The Court of Appeals has acted responsibly in these cases and we should affirm its judgment. This was the fourth time the case was before it over a span of less than three years. The Court of Appeals affirmed the District 758*758 Court on the issue of segregation and on the "Detroit-only" plans of desegregation. The Court of Appeals also approved in principle the use of a metropolitan area plan, vacating and remanding only to allow the other affected school districts to be brought in as parties, and in other minor respects.
We have before us today no plan for integration. The only orders entered so far are interlocutory. No new principles of law are presented here. Metropolitan treatment of metropolitan problems is commonplace. If this were a sewage problem or a water problem, or an energy problem, there can be no doubt that Michigan would stay well within federal constitutional bounds if it sought a metropolitan remedy. In Bradley v. School Board of City of Richmond, 462 F. 2d 1058, aff'd by an equally divided Court, 412 U. S. 92, we had a case involving the Virginia school system where local school boards had "exclusive jurisdiction" of the problem, not "the State Board of Education," 462 F. 2d, at 1067. Here the Michigan educational system is unitary, maintained and supported by the legislature and under the general supervision of the State Board of Education.[1] The State controls the boundaries of school districts.[2] The State supervises schoolsite selection.[3] The construction is done through municipal bonds approved by several state agencies.[4] Education in Michigan is a state project with very little completely local control,[5] except that the schools are financed locally, not on a statewide basis. Indeed 759*759 the proposal to put school funding in Michigan on a statewide basis was defeated at the polls in November 1972.[6] Yet the school districts by state law

are agencies of the State.[7] State action is indeed challenged as violating the Equal Protection Clause. Whatever the reach of that claim may be, it certainly is aimed at discrimination based on race.
Therefore as the Court of Appeals held there can be no doubt that as a matter of Michigan law the State itself has the final say as to where and how school district lines should be drawn.[8]
When we rule against the metropolitan area remedy we take a step that will likely put the problems of the blacks and our society back to the period that antedated the "separate but equal" regime of Plessy v. Ferguson, 163 U. S. 537. The reason is simple.
The inner core of Detroit is now rather solidly black;[9] and the blacks, we know, in many instances are likely to 760*760 be poorer,[10] just as were the Chicanos in San Antonio School District v. Rodriguez, 411 U. S. 1. By that decision the poorer school districts[11]must pay their own way. It is therefore a foregone conclusion that we have now given the States a formula whereby the poor must pay their own way.[12]
761*761 Today's decision, given Rodriguez, means that there is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only "separate" but "inferior."
So far as equal protection is concerned we are now in a dramatic retreat from the 7-to-1 decision in 1896 that blacks could be segregated in public facilities, provided they received equal treatment.
As I indicated in Keyes v. School District No. 1 Denver, Colorado, 413 U. S. 189, 214-217, there is so far as the school cases go no constitutional difference between de factoand de jure segregation. Each school board performs state action for Fourteenth Amendment purposes when it draws the lines that confine it to a given area, when it builds schools at particular sites, or when it allocates students. The creation of the school districts in Metropolitan Detroit either maintained existing segregation or caused additional segregation. Restrictive covenants maintained by state action or inaction build black ghettos. It is state action when public funds are dispensed by housing agencies to build racial ghettos. Where a community is racially mixed and school authorities segregate schools, or assign black teachers to black schools or close schools in fringe areas and build new schools in black areas and in more distant white areas, the State creates and nurtures a segregated school system, just as surely as did those States involved in Brown v. Board of Education, 347 U. S. 483, when they maintained dual school systems.
All these conditions and more were found by the District Court to exist. The issue is not whether there should be racial balance but whether the State's use of 762*762 various devices that end up with black schools and white schools brought the Equal Protection Clause into effect. Given the State's control over the educational system in Michigan, the fact that the black schools are in one district and the white schools are in another is not controlling —either constitutionally or equitably.[13] No specific plan has yet been adopted. We are still at an interlocutory stage of a long drawn-out judicial effort at school desegregation. It is conceivable that ghettos develop on their own without any hint of state action. But since Michigan by one device or another has over the years created black school districts and white school districts, the task of equity is to provide a unitary system for the affected area where, as here, the State washes its hands of its own creations.
MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join, dissenting.

The District Court and the Court of Appeals found that over a long period of years those in charge of the Michigan public schools engaged in various practices calculated to effect the segregation of the Detroit school system. The Court does not question these findings, nor could it reasonably do so. Neither does it question the obligation of the federal courts to devise a feasible and effective remedy. But it promptly cripples the ability of the judiciary to perform this task, which is of fundamental importance to our constitutional system, by 763*763 fashioning a strict rule that remedies in school cases must stop at the school district line unless certain other conditions are met. As applied here, the remedy for unquestioned violations of the equal protection rights of Detroit's Negroes by the Detroit School Board and the State of Michigan must be totally confined to the limits of the school district and may not reach into adjoining or surrounding districts unless and until it is proved there has been some sort of "interdistrict violation"— unless unconstitutional actions of the Detroit School Board have had a segregative impact on other districts, or unless the segregated condition of the Detroit schools has itself been influenced by segregative practices in those surrounding districts into which it is proposed to extend the remedy.
Regretfully, and for several reasons, I can join neither the Court's judgment nor its opinion. The core of my disagreement is that deliberate acts of segregation and their consequences will go unremedied, not because a remedy would be infeasible or unreasonable in terms of the usual criteria governing school desegregation cases, but because an effective remedy would cause what the Court considers to be undue administrative inconvenience to the State. The result is that the State of Michigan, the entity at which the Fourteenth Amendment is directed, has successfully insulated itself from its duty to provide effective desegregation remedies by vesting sufficient power over its public schools in its local school districts. If this is the case in Michigan, it will be the case in most States.
There are undoubted practical as well as legal limits to the remedial powers of federal courts in school desegregation cases. The Court has made it clear that the achievement of any particular degree of racial balance in the school system is not required by the Constitution; 764*764 nor may it be the primary focus of a court in devising an acceptable remedy for de jure segregation. A variety of procedures and techniques are available to a district court engrossed in fashioning remedies in a case such as this; but the courts must keep in mind that they are dealing with the process of educating the young, including the very young. The task is not to devise a system of pains and penalties to punish constitutional violations brought to light. Rather, it is to desegregate an educational system in which the races have been kept apart, without, at the same time, losing sight of the central educational function of the schools.
Viewed in this light, remedies calling for school zoning, pairing, and pupil assignments, become more and more suspect as they require that schoolchildren spend more and more time in buses going to and from school and that more and more educational dollars be diverted to transportation systems. Manifestly, these considerations are of immediate and urgent concern when the issue is the desegregation of a city school system where residential patterns are predominantly segregated and the respective areas occupied by blacks and whites are heavily populated and geographically extensive. Thus, if one postulates a metropolitan school system covering a sufficiently large area, with the population evenly divided between whites and Negroes and with the races occupying identifiable residential areas, there will be very real practical limits on the extent to which racially identifiable schools can be eliminated within the school district. It is also apparent that the larger the proportion of Negroes in the area, the more difficult it would be to avoid having a substantial number of all-black or nearly all-black schools.
The Detroit school district is both large and heavily populated. It covers 139.6 square miles, encircles two 765*765 entirely separate cities and school districts, and surrounds a third city on three sides. Also, whites and Negroes live in identifiable areas in the city. The 1970 public school enrollment in the city school district totaled 289,763 and was 63.6% Negro and 34.8% white.[1] If

"racial balance" were achieved in every school in the district, each school would be approximately 64% Negro. A remedy confined to the district could achieve no more desegregation. Furthermore, the proposed intracity remedies were beset with practical problems. None of the plans limited to the school district was satisfactory to the District Court. The most promising proposal, submitted by respondents, who were the plaintiffs in the District Court, would "leave many of its schools 75 to 90 percent Black." 484 F. 2d 215, 244 (CA6 1973).[2] Transportation on a "vast scale" would be required; 900 buses would have to be purchased for the transportation of pupils who are not now bused. Id., at 243. The District Court also found that the plan "would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population." Id., at 244. For the District Court, "[t]he conclusion, under the evidence in this case, is inescapable that relief of segregation in the public schools of the 766*766 City of Detroit cannot be accomplished within the corporate geographical limits of the city." Ibid.
The District Court therefore considered extending its remedy to the suburbs. After hearings, it concluded that a much more effective desegregation plan could be implemented if the suburban districts were included. In proceeding to design its plan on the basis that student bus rides to and from school should not exceed 40 minutes each way as a general matter, the court's express finding was that "[f]or all the reasons stated heretofore— including time, distance, and transportation factors— desegregation within the area described is physically easier and more practicable and feasible, than desegregation efforts limited to the corporate geographic limits of the city of Detroit." 345 F. Supp. 914, 930 (ED Mich. 1972).
The Court of Appeals agreed with the District Court that the remedy must extend beyond the city limits of Detroit. It concluded that "[i]n the instant case the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan." 484 F. 2d, at 249. (Emphasis added.) It also agreed that "any Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 percent white and 13 percent black." Ibid. There was "more than ample support for the District Judge's findings of unconstitutional segregation by race resulting in major part from action and inaction of public authorities, both local and State. . . . Under this record a remedial order of a court of equity which left the Detroit school system overwhelmingly black (for the foreseeable 767*767 future) surrounded by suburban school systems overwhelmingly white cannot correct the constitutional violations herein found." Id., at 250. To conclude otherwise, the Court of Appeals announced, would call up "haunting memories of the now long overruled and discredited `separate but equal doctrine' of Plessy v. Ferguson, 163 U. S. 537 . . . (1896)," and "would be opening a way to nullify Brown v. Board of Education which overruled Plessy . . . ." 484 F. 2d, at 249.
This Court now reverses the Court of Appeals. It does not question the District Court's findings that any feasible Detroit-only plan would leave many schools 75 to 90 percent black and that the district would become progressively more black as whites left the city. Neither does the Court suggest that including the suburbs in a desegregation plan would be impractical or infeasible because of educational considerations, because of the number of children requiring transportation, or because of the length of their rides. Indeed, the Court leaves unchallenged the District Court's conclusion that a plan including the suburbs would be physically easier and more practical and feasible than a Detroit-only plan. Whereas the most promising Detroit-only plan, for example, would have entailed the purchase of 900 buses, the metropolitan plan would involve the acquisition of no more than 350 new vehicles.
Despite the fact that a metropolitan remedy, if the findings of the District Court accepted by the Court of Appeals are to be credited, would more effectively desegregate the Detroit schools, would prevent

resegregation,[3] and would be easier and more feasible from many 768*768 standpoints, the Court fashions out of whole cloth an arbitrary rule that remedies for constitutional violations occurring in a single Michigan school district must stop at the school district line. Apparently, no matter how much less burdensome or more effective and efficient in many respects, such as transportation, the metropolitan plan might be, the school district line may not be crossed. Otherwise, it seems, there would be too much disruption of the Michigan scheme for managing its educational system, too much confusion, and too much administrative burden.
The District Court, on the scene and familiar with local conditions, had a wholly different view. The Court of Appeals also addressed itself at length to matters of local law and to the problems that interdistrict remedies might present to the State of Michigan. Its conclusion, flatly contrary to that of this Court, was that "the constitutional right to equality before the law [is not] hemmed in by the boundaries of a school district" and that an interdistrict remedy
"is supported by the status of school districts under Michigan law and by the historical control exercised over local school districts by the legislature of Michigan and by State agencies and officials . . . . [I]t is well established under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative convenience."[4] 484 F. 2d, at 245-246.
769*769 I am surprised that the Court, sitting at this distance from the State of Michigan, claims better insight than the Court of Appeals and the District Court as to whether an interdistrict remedy for equal protection violations practiced by the State of Michigan would involve undue difficulties for the State in the management of its public schools. In the area of what constitutes an acceptable desegregation plan, "we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals." Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 28 (1971). Obviously, whatever difficulties there might be, they are surmountable; for the Court itself concedes that, had there been sufficient evidence of an interdistrict violation, the District Court could have fashioned a single remedy for the districts implicated rather than a different remedy for each district 770*770 in which the violation had occurred or had an impact.
I am even more mystified as to how the Court can ignore the legal reality that the constitutional violations, even if occurring locally, were committed by governmental entities for which the State is responsible and that it is the State that must respond to the command of the Fourteenth Amendment. An interdistrict remedy for the infringements that occurred in this case is well within the confines and powers of the State, which is the governmental entity ultimately responsible for desegregating its schools. The Michigan Supreme Court has observed that "[t]he school district is a State agency," Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 644, 92 N. W. 289, 290 (1902), and that " `[e]ducation in Michigan belongs to the State. It is no part of the local selfgovernment inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature. . . .' " Attorney General ex rel. Zacharias v. Detroit Board of Education, 154 Mich. 584, 590, 118 N. W. 606, 609 (1908).
It is unnecessary to catalogue at length the various public misdeeds found by the District Court and the Court of Appeals to have contributed to the present segregation of the Detroit public schools. The legislature contributed directly by enacting a statute overriding a partial high school desegregation plan voluntarily adopted by the Detroit Board of Education. Indirectly, the trial court found the State was accountable for the thinly disguised, pervasive acts of segregation committed by the Detroit Board,[5] for Detroit's school construction 771*771 plans that would promote segregation, and for the Detroit school district's not having funds for pupil transportation within the district. The

State was also chargeable with responsibility for the transportation of Negro high school students in the late 1950's from the suburban Ferndale School District, past closer suburban and Detroit high schools with predominantly white student bodies, to a predominantly Negro high school within Detroit. Swann v. Charlotte-Mecklenburg Board of Education, supra, at 20-21, and Keyes v. School District No. 1, Denver, Colorado, 413 U. S. 189 (1973), make abundantly clear that the tactics employed by the Detroit Board of Education, a local instrumentality of the State, violated the constitutional rights of the Negro students in Detroit's public schools and required equitable relief sufficient to accomplish the maximum, practical desegregation within the power of the political body against which the Fourteenth Amendment directs its proscriptions. No "State" may deny any individual the equal protection of the laws; and if the Constitution and the Supremacy Clause are to have any substance at all, the courts must be free to devise workable remedies against the political entity with the effective power to determine local choice. It is also the case here that the State's legislative interdiction of Detroit's voluntary effort to desegregate its school system was unconstitutional. See North Carolina State Board of Education v. Swann, 402 U. S. 43 (1971).
The Court draws the remedial line at the Detroit school district boundary, even though the Fourteenth Amendment is addressed to the State and even though 772*772 the Statedenies equal protection of the laws when its public agencies, acting in its behalf, invidiously discriminate. The State's default is "the condition that offends the Constitution," Swann v. Charlotte-Mecklenburg Board of Education, supra, at 16, and state officials may therefore be ordered to take the necessary measures to completely eliminate from the Detroit public schools "all vestiges of state-imposed segregation." Id.,at 15. I cannot understand, nor does the majority satisfactorily explain, why a federal court may not order an appropriate interdistrict remedy, if this is necessary or more effective to accomplish this constitutionally mandated task. As the Court unanimously observed in Swann: "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Ibid. In this case, both the right and the State's Fourteenth Amendment violation have concededly been fully established, and there is no acceptable reason for permitting the party responsible for the constitutional violation to contain the remedial powers of the federal court within administrative boundaries over which the transgressor itself has plenary power.
The unwavering decisions of this Court over the past 20 years support the assumption of the Court of Appeals that the District Court's remedial power does not cease at the school district line. The Court's first formulation of the remedial principles to be followed in disestablishing racially discriminatory school systems recognized the variety of problems arising from different local school conditions and the necessity for that "practical flexibility" traditionally associated with courts of equity. Brown v. Board of Education, 349 U. S. 294, 299-301 (1955) (Brown II). Indeed, the district courts to which 773*773 the Brown cases were remanded for the formulation of remedial decrees were specifically instructed that they might consider, inter alia, "revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis . . . ." Id., at 300-301. The malady addressed in Brown II was the statewide policy of requiring or permitting school segregation on the basis of race, while the record here concerns segregated schools only in the city of Detroit. The obligation to rectify the unlawful condition nevertheless rests on the State. The permissible revision of school districts contemplated in Brown II rested on the State's responsibility for desegregating its unlawfully segregated schools, not on any segregative effect which the condition of segregation in one school district might have had on the schools of a neighboring district. The same situation obtains here and the same remedial power is available to the District Court.
Later cases reinforced the clearly essential rules that state officials are fully answerable for unlawfully caused conditions of school segregation which can effectively be controlled only by steps beyond the authority of local school districts to take, and that the equity power of the district courts includes the ability to order such measures implemented. When the highest officials of the State of

Arkansas impeded a federal court order to desegregate the public schools under the immediate jurisdiction of the Little Rock School Board, this Court refused to accept the local board's assertion of its good faith as a legal excuse for delay in implementing the desegregation order. The Court emphasized that "from the point of view of the Fourteenth Amendment, they [the local school board members] stand in this litigation as the agents of the State." Cooper v. Aaron, 358 U. S. 1, 16 (1958). Perhaps 774*774 more importantly for present purposes, the Court went on to state:
"The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties . . . can also be brought under control by state action." Ibid.
See also Griffin v. School Board, 377 U. S. 218, 228, 233-234 (1964).
In the context of dual school systems, the Court subsequently made clear the "affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch" and to come forward with a desegregation plan that "promises realistically to work now." Green v. County School Board of New Kent County, 391 U. S. 430, 437438, 439 (1968). "Freedom of choice" plans were rejected as acceptable desegregation measures where "reasonably available other ways . . . promising speedier and more effective conversion to a unitary, nonracial school system . . ." exist. Id., at 441. Imperative insistence on immediate full desegregation of dual school systems "to operate now and hereafter only unitary schools" was reiterated in Alexander v. Holmes County Board of Education, 396 U. S. 19, 20 (1969), and Carter v. West Feliciana Parish School Board, 396 U. S. 290 (1970).
The breadth of the equitable authority of the district courts to accomplish these comprehensive tasks was reaffirmed in much greater detail in Swann v. Charlotte-Mecklenburg Board of Education, supra, and the companion case of Davis v. School Comm'rs of Mobile County, 402 U. S. 33 (1971), where there was unanimous assent to the following propositions:
"Having once found a violation, the district judge or school authorities should make every effort to 775*775 achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones. . . . The measure of any desegregation plan is its effectiveness." Id., at 37.
No suggestion was made that interdistrict relief was not an available technique. In Swann v. Charlotte-Mecklenburg Board of Education itself, the Court, without dissent, recognized that the District Judge, in fulfilling his obligation to "make every effort to achieve the greatest possible degree of actual desegregation[,] will thus necessarily be concerned with the elimination of one-race schools." 402 U. S., at 26. Nor was there any dispute that to break up the dual school system, it was within the District Court's "broad remedial powers" to employ a "frank—and sometimes drastic— gerrymandering of school districts and attendance zones," as well as "pairing, `clustering,' or `grouping' of schools," to desegregate the "formerly all-Negro schools," despite the fact that these zones might not be compact or contiguous and might be "on opposite ends of the city." Id., at 27. The school board in that case had jurisdiction over a 550-square-mile area encompassing the city of Charlotte and surrounding Mecklenburg County, North Carolina. The Mobile County, Alabama, board in Davis embraced a 1,248-square-mile area, including the city of Mobile. Yet the Court approved the District Court's authority to award countywide relief in each case in order to accomplish desegregation of the dual school system.
Even more recently, the Court specifically rejected the claim that a new school district, which admittedly would operate a unitary school system within its borders, was beyond the reach of a

court-ordered desegregation plan 776*776 for other school districts, where the effectiveness of the plan as to the other districts depended upon the availability of the facilities and student population of the new district. In Wright v. Council of the City of Emporia, 407 U. S. 451, 470 (1972), we held "that a new school district may not be created where its effect would be to impede the process of dismantling a dual system." MR. JUSTICE STEWART's opinion for the Court made clear that if a proposal to erect new district boundary lines "would impede the dismantling of the [pre-existing] dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out." Id., at 460. In United States v. Scotland Neck Board of Education, 407 U. S. 484 (1972), this same standard was applied to forbid North Carolina from creating a new city school district within a larger district which was in the process of dismantling a dual school system. The Court noted that if establishment of the new district were permitted, the "traditional racial identities of the schools in the area would be maintained," id., at 490.
Until today, the permissible contours of the equitable authority of the district courts to remedy the unlawful establishment of a dual school system have been extensive, adaptable, and fully responsive to the ultimate goal of achieving "the greatest possible degree of actual desegregation." There are indeed limitations on the equity powers of the federal judiciary, but until now the Court has not accepted the proposition that effective enforcement of the Fourteenth Amendment could be limited by political or administrative boundary lines demarcated by the very State responsible for the constitutional violation and for the disestablishment of the dual system. Until now the Court has instead looked to practical considerations in effectuating a desegregation 777*777decree such as excessive distance, transportation time, and hazards to the safety of the schoolchildren involved in a proposed plan. That these broad principles have developed in the context of dual school systems compelled or authorized by state statute at the time of Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), does not lessen their current applicability to dual systems found to exist in other contexts, like that in Detroit, where intentional school segregation does not stem from the compulsion of state law, but from deliberate individual actions of local and state school authorities directed at a particular school system. The majority properly does not suggest that the duty to eradicate completely the resulting dual system in the latter context is any less than in the former. But its reason for incapacitating the remedial authority of the federal judiciary in the presence of school district perimeters in the latter context is not readily apparent.
The result reached by the Court certainly cannot be supported by the theory that the configuration of local governmental units is immune from alteration when necessary to redress constitutional violations. In addition to the well-established principles already noted, the Court has elsewhere required the public bodies of a State to restructure the State's political subdivisions to remedy infringements of the constitutional rights of certain members of its populace, notably in the reapportionment cases. In Reynolds v. Sims, 377 U. S. 533 (1964), for example, which held that equal protection of the laws demands that the seats in both houses of a bicameral state legislature be apportioned on a population basis, thus necessitating wholesale revision of Alabama's voting districts, the Court remarked:
"Political subdivisions of States—counties, cities, or whatever—never were and never have been considered 778*778 as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." Id., at 575.
And even more pointedly, the Court declared in Gomillion v. Lightfoot, 364 U. S. 339, 344-345 (1960), that "[l]egislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution."

Nor does the Court's conclusion follow from the talismanic invocation of the desirability of local control over education. Local autonomy over school affairs, in the sense of the community's participation in the decisions affecting the education of its children, is, of course, an important interest. But presently constituted school district lines do not delimit fixed and unchangeable areas of a local educational community. If restructuring is required to meet constitutional requirements, local authority may simply be redefined in terms of whatever configuration is adopted, with the parents of the children attending schools in the newly demarcated district or attendance zone continuing their participation in the policy management of the schools with which they are concerned most directly. The majority's suggestion that judges should not attempt to grapple with the administrative problems attendant on a reorganization of school attendance patterns is wholly without foundation. It is precisely this sort of task which the district courts have been properly exercising to vindicate the constitutional rights of Negro students since Brown I and which the Court has never suggested they lack the capacity to perform. Intradistrict revisions of attendance zones, and pairing and grouping of schools, are techniques unanimously approved in Swann v. Charlotte-Mecklenburg 779*779 Board of Education which entail the same sensitivity to the interest of parents in the education their children receive as would an interdistrict plan which is likely to employ the very same methods. There is no reason to suppose that the District Court, which has not yet adopted a final plan of desegregation, would not be as capable of giving or as likely to give sufficient weight to the interest in community participation in schools in an interdistrict setting, consistent with the dictates of the Fourteenth Amendment. The majority's assumption that the District Court would act otherwise is a radical departure from the practical flexibility previously left to the equity powers of the federal judiciary.
Finally, I remain wholly unpersuaded by the Court's assertion that "the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Ante,at 746. In the first place, under this premise the Court's judgment is itself infirm; for had the Detroit school system not followed an official policy of segregation throughout the 1950's and 1960's, Negroes and whites would have been going to school together. There would have been no, or at least not as many, recognizable Negro schools and no, or at least not as many, white schools, but "just schools," and neither Negroes nor whites would have suffered from the effects of segregated education, with all its shortcomings. Surely the Court's remedy will not restore to the Negro community, stigmatized as it was by the dual school system, what it would have enjoyed over all or most of this period if the remedy is confined to present-day Detroit; for the maximum remedy available within that area will leave many of the schools almost totally black, and the system itself will be predominantly black and will become increasingly so. Moreover, when a State has engaged in acts of official segregation over a lengthy 780*780 period of time, as in the case before us, it is unrealistic to suppose that the children who were victims of the State's unconstitutional conduct could now be provided the benefits of which they were wrongfully deprived. Nor can the benefits which accrue to school systems in which schoolchildren have not been officially segregated, and to the communities supporting such school systems, be fully and immediately restored after a substantial period of unlawful segregation. The education of children of different races in a desegregated environment has unhappily been lost, along with the social, economic, and political advantages which accompany a desegregated school system as compared with an unconstitutionally segregated system. It is for these reasons that the Court has consistently followed the course of requiring the effects of past official segregation to be eliminated "root and branch" by imposing, in the present, the duty to provide a remedy which will achieve "the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." It is also for these reasons that once a constitutional violation has been found, the district judge obligated to provide such a remedy "will thus necessarily be concerned with the elimination of one-race schools." These concerns were properly taken into account by the District Judge in this case. Confining the remedy to the boundaries of the Detroit district is quite unrelated either to the goal of achieving maximum desegregation or to those intensely practical considerations, such as the extent and expense of transportation, that have imposed limits on remedies in cases

such as this. The Court's remedy, in the end, is essentially arbitrary and will leave serious violations of the Constitution substantially unremedied.
I agree with my Brother DOUGLAS that the Court of Appeals has acted responsibly in these cases. Regrettably, 781*781 the majority's arbitrary limitation on the equitable power of federal district courts, based on the invisible borders of local school districts, is unrelated to the State's responsibility for remedying the constitutional wrongs visited upon the Negro schoolchildren of Detroit. It is oblivious to the potential benefits of metropolitan relief, to the noneducational communities of interest among neighborhoods located in and sometimes bridging different school districts, and to the considerable interdistrict cooperation already existing in various educational areas. Ultimately, it is unresponsive to the goal of attaining the utmost actual desegregation consistent with restraints of practicability and thus augurs the frequent frustration of the remedial powers of the federal courts.
Here the District Court will be forced to impose an intracity desegregation plan more expensive to the district, more burdensome for many of Detroit's Negro students, and surely more conducive to white flight than a metropolitan plan would be—all of this merely to avoid what the Detroit School Board, the District Court, and the en banc Court of Appeals considered to be the very manageable and quite surmountable difficulties that would be involved in extending the desegregation remedy to the suburban school districts.
I am therefore constrained to record my disagreement and dissent.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITE join, dissenting.
In Brown v. Board of Education, 347 U. S. 483 (1954), this Court held that segregation of children in public schools on the basis of race deprives minority group children of equal educational opportunities and therefore denies them the equal protection of the laws under the 782*782 Fourteenth Amendment. This Court recognized then that remedying decades of segregation in public education would not be an easy task. Subsequent events, unfortunately, have seen that prediction bear bitter fruit. But however imbedded old ways, however ingrained old prejudices, this Court has not been diverted from its appointed task of making "a living truth" of our constitutional ideal of equal justice under law. Cooper v. Aaron, 358 U. S. 1, 20 (1958).
After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards. Notwithstanding a record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion. Ironically purporting to base its result on the principle that the scope of the remedy in a desegregation case should be determined by the nature and the extent of the constitutional violation, the Court's answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past.
I cannot subscribe to this emasculation of our constitutional guarantee of equal protection of the laws and must respectfully dissent. Our precedents, in my view, firmly establish that where, as here, state-imposed segregation has been demonstrated, it becomes the duty of the State to eliminate root and branch all vestiges of racial discrimination and to achieve the greatest possible degree of actual desegregation. I agree with both the District Court and the Court of Appeals that, under the facts of this case, this duty cannot be fulfilled unless the State 783*783 of Michigan involves outlying metropolitan area school districts in its desegregation remedy. Furthermore, I perceive no basis

either in law or in the practicalities of the situation justifying the State's interposition of school district boundaries as absolute barriers to the implementation of an effective desegregation remedy. Under established and frequently used Michigan procedures, school district lines are both flexible and permeable for a wide variety of purposes, and there is no reason why they must now stand in the way of meaningful desegregation relief.
The rights at issue in this case are too fundamental to be abridged on grounds as superficial as those relied on by the majority today. We deal here with the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our Nation, I fear, will be ill served by the Court's refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together.
I
The great irony of the Court's opinion and, in my view, its most serious analytical flaw may be gleaned from its concluding sentence, in which the Court remands for "prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970." Ante, at 753. The majority, however, seems to have forgotten the District Court's explicit finding that a Detroit-only decree, the only remedy permitted under today's decision, "would not accomplish desegregation."
784*784 Nowhere in the Court's opinion does the majority confront, let alone respond to, the District Court's conclusion that a remedy limited to the city of Detroit would not effectively desegregate the Detroit city schools. I, for one, find the District Court's conclusion well supported by the record and its analysis compelled by our prior cases. Before turning to these questions, however, it is best to begin by laying to rest some mischaracterizations in the Court's opinion with respect to the basis for the District Court's decision to impose a metropolitan remedy.
The Court maintains that while the initial focus of this lawsuit was the condition of segregation within the Detroit city schools, the District Court abruptly shifted focus in mid-course and altered its theory of the case. This new theory, in the majority's words, was "equating racial imbalance with a constitutional violation calling for a remedy." Ante,at 741 n. 19. As the following review of the District Court's handling of the case demonstrates, however, the majority's characterization is totally inaccurate. Nowhere did the District Court indicate that racial imbalance between school districts in the Detroit metropolitan area or within the Detroit School District constituted a constitutional violation calling for interdistrict relief. The focus of this case was from the beginning, and has remained, the segregated system of education in the Detroit city schools and the steps necessary to cure that condition which offends the Fourteenth Amendment.
The District Court's consideration of this case began with its finding, which the majority accepts, that the State of Michigan, through its instrumentality, the Detroit Board of Education, engaged in widespread purposeful acts of racial segregation in the Detroit School District. Without belaboring the details, it is sufficient to 785*785 note that the various techniques used in Detroit were typical of methods employed to segregate students by race in areas where no statutory dual system of education has existed. See, e. g., Keyesv. School District No. 1, Denver, Colorado, 413 U. S. 189 (1973). Exacerbating the effects of extensive residential segregation between Negroes and whites, the school board consciously drew attendance zones along lines which maximized the segregation of the races in schools as well. Optional attendance zones were created for neighborhoods undergoing racial transition so as to allow whites in these areas to escape integration. Negro

students in areas with overcrowded schools were transported past or away from closer white schools with available space to more distant Negro schools. Grade structures and feeder-school patterns were created and maintained in a manner which had the foreseeable and actual effect of keeping Negro and white pupils in separate schools. Schools were also constructed in locations and in sizes which ensured that they would open with predominantly one-race student bodies. In sum, the evidence adduced below showed that Negro children had been intentionally confined to an expanding core of virtually all-Negro schools immediately surrounded by a receding band of all-white schools.
Contrary to the suggestions in the Court's opinion, the basis for affording a desegregation remedy in this case was not some perceived racial imbalance either between schools within a single school district or between independent school districts. What we confront here is "a systematic program of segregation affecting a substantial portion of the students, schools . . . and facilities within the school system . . . ." Id., at 201. The constitutional violation found here was not some de facto racial imbalance, but rather the purposeful, intentional, massive, de jure segregation of the Detroit city schools, 786*786 which under our decision in Keyes, forms "a predicate for a finding of the existence of a dual school system," ibid., and justifies "all-out desegregation." Id., at 214.
Having found a de jure segregated public school system in operation in the city of Detroit, the District Court turned next to consider which officials and agencies should be assigned the affirmative obligation to cure the constitutional violation. The court concluded that responsibility for the segregation in the Detroit city schools rested not only with the Detroit Board of Education, but belonged to the State of Michigan itself and the state defendants in this case—that is, the Governor of Michigan, the Attorney General, the State Board of Education, and the State Superintendent of Public Instruction. While the validity of this conclusion will merit more extensive analysis below, suffice it for now to say that it was based on three considerations. First, the evidence at trial showed that the State itself had taken actions contributing to the segregation within the Detroit schools. Second, since the Detroit Board of Education was an agency of the State of Michigan, its acts of racial discrimination were acts of the State for purposes of the Fourteenth Amendment. Finally, the District Court found that under Michigan law and practice, the system of education was in fact a state school system, characterized by relatively little local control and a large degree of centralized state regulation, with respect to both educational policy and the structure and operation of school districts.
Having concluded, then, that the school system in the city of Detroit was a de juresegregated system and that the State of Michigan had the affirmative duty to remedy that condition of segregation, the District Court then turned to the difficult task of devising an effective remedy. It bears repeating that the District Court's focus at this stage of the litigation remained what it had 787*787 been at the beginning—the condition of segregation within the Detroit city schools. As the District Court stated: "From the initial ruling [on segregation] to this day, the basis of the proceedings has been and remains the violation: de jure school segregation. . . . The task before this court, therefore, is now, and . . . has always been, how to desegregate the Detroit public schools."
The District Court first considered three desegregation plans limited to the geographical boundaries of the city of Detroit. All were rejected as ineffective to desegregate the Detroit city schools. Specifically, the District Court determined that the racial composition of the Detroit student body is such that implementation of any Detroit-only plan "would clearly make the entire Detroit public school system racially identifiable as Black" and would "leave many of its schools 75 to 90 per cent Black." The District Court also found that a Detroit-only plan "would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population." Based on these findings, the District Court reasoned that "relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city" because a

Detroit-only decree "would accentuate the racial identifiability of the district as a Black school system, and would not accomplish desegregation." The District Court therefore concluded that it "must look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools . . . ."
In seeking to define the appropriate scope of that expanded desegregation area, however, the District Court continued to maintain as its sole focus the condition shown to violate the Constitution in this case—the segregation of the Detroit school system. As it stated, the 788*788 primary question "remains the determination of the area necessary and practicable effectively to eliminate `root and branch' the effects of state-imposed and supported segregation and to desegregate the Detroit public schools."
There is simply no foundation in the record, then, for the majority's accusation that the only basis for the District Court's order was some desire to achieve a racial balance in the Detroit metropolitan area.[1] In fact, just the contrary is the case. In considering proposed desegregation areas, the District Court had occasion to criticize one of the State's proposals specifically because it had no basis other than its "particular racial ratio" and did not focus on "relevant factors, like eliminating racially identifiable schools [and] accomplishing maximum actual desegregation of the Detroit public schools." Similarly, in rejecting the Detroit School Board's proposed desegregation area, even though it included more all-white districts and therefore achieved a higher white-Negro ratio, the District Court commented:
"There is nothing in the record which suggests that these districts need be included in the desegregation area in order to disestablish the racial 789*789identifiability of the Detroit public schools. From the evidence, the primary reason for the Detroit School Board's interest in the inclusion of these school districts is not racial desegregation but to increase the average socioeconomic balance of all the schools in the abutting regions and clusters."
The Court also misstates the basis for the District Court's order by suggesting that since the only segregation proved at trial was within the Detroit school system, any relief which extended beyond the jurisdiction of the Detroit Board of Education would be inappropriate because it would impose a remedy on outlying districts "not shown to have committed any constitutional violation." Ante, at 745.[2] The essential foundation of interdistrict relief in this case was not to correct conditions within outlying districts which themselves engaged in purposeful segregation. Instead, interdistrict relief was seen as a necessary part of any meaningful effort by the State of Michigan to remedy the statecaused segregation within the city of Detroit.
Rather than consider the propriety of interdistrict relief on this basis, however, the Court has conjured up a largely fictional account of what the District Court was attempting to accomplish. With all due respect, the Court, in my view, does a great disservice to the District Judge who labored long and hard with this complex litigation by accusing him of changing horses in midstream and shifting the focus of this case from the pursuit of a remedy for the condition of segregation 790*790 within the Detroit school system to some unprincipled attempt to impose his own philosophy of racial balance on the entire Detroit metropolitan area. See ante, at 738-739. The focus of this case has always been the segregated system of education in the city of Detroit. The District Court determined that interdistrict relief was necessary and appropriate only because it found that the condition of segregation within the Detroit school system could not be cured with a Detroit-only remedy. It is on this theory that the interdistrict relief must stand or fall. Unlike the Court, I perceive my task to be to review the District Court's order for what it is, rather than to criticize it for what it manifestly is not.
II

As the foregoing demonstrates, the District Court's decision to expand its desegregation decree beyond the geographical limits of the city of Detroit rested in large part on its conclusions (A) that the State of Michigan was ultimately responsible for curing the condition of segregation within the Detroit city schools, and (B) that a Detroit-only remedy would not accomplish this task. In my view, both of these conclusions are well supported by the facts of this case and by this Court's precedents.
A
To begin with, the record amply supports the District Court's findings that the State of Michigan, through state officers and state agencies, had engaged in purposeful acts which created or aggravated segregation in the Detroit schools. The State Board of Education, for example, prior to 1962, exercised its authority to supervise local schoolsite selection in a manner which contributed to segregation. 484 F. 2d 215, 238 (CA6 1973). Furthermore, the State's continuing authority, after 1962, 791*791 to approve school building construction plans[3] had intertwined the State with siteselection decisions of the Detroit Board of Education which had the purpose and effect of maintaining segregation.
The State had also stood in the way of past efforts to desegregate the Detroit city schools. In 1970, for example, the Detroit School Board had begun implementation of its own desegregation plan for its high schools, despite considerable public and official resistance. The State Legislature intervened by enacting Act 48 of the Public Acts of 1970, specifically prohibiting implementation of the desegregation plan and thereby continuing the growing segregation of the Detroit school system. Adequate desegregation of the Detroit system was also hampered by discriminatory restrictions placed by the State on the use of transportation within Detroit. While state aid for transportation was provided by statute for suburban districts, many of which were highly urbanized, aid for intracity transportation was excepted. One of the effects of this restriction was to encourage the construction of small walk-in neighborhood schools in Detroit, thereby lending aid to the intentional policy of creating a school system which reflected, to the greatest extent feasible, extensive residential segregation. Indeed, that one of the purposes of the transportation restriction was to impede desegregation was evidenced when the Michigan Legislature amended the State Transportation Aid Act to cover intracity transportation but expressly prohibited the allocation of funds for cross-busing of students within a school district to achieve racial balance.[4] Cf. North Carolina State Board of Education v. Swann, 402 U. S. 43 (1971).
792*792 Also significant was the State's involvement during the 1950's in the transportation of Negro high school students from the Carver School District past a closer white high school in the Oak Park District to a more distant Negro high school in the Detroit system. Certainly the District Court's finding that the State Board of Education had knowledge of this action and had given its tacit or express approval was not clearly erroneous. Given the comprehensive statutory powers of the State Board of Education over contractual arrangements between school districts in the enrollment of students on a nonresident tuition basis, including certification of the number of pupils involved in the transfer and the amount of tuition charged, over the review of transportation routes and distances, and over the disbursement of transportation funds,[5] the State Board inevitably knew and understood the significance of this discriminatory act.
Aside from the acts of purposeful segregation committed by the State Legislature and the State Board of Education, the District Court also concluded that the State was responsible for the many intentional acts of segregation committed by the Detroit Board of Education, an agency of the State. The majority is only willing to accept this finding arguendo. See ante, at 748. I have no doubt, however, as to its validity under the Fourteenth Amendment.

"The command of the Fourteenth Amendment," it should be recalled, "is that no `State' shall deny to any person within its jurisdiction the equal protection of the laws." Cooper v. Aaron, 358 U. S. 1, 16 (1958). While a State can act only through "the officers or agents by whom its powers are exerted," Ex parte Virginia, 100 U. S. 339, 347 (1880), actions by an agent or officer of 793*793 the State are encompassed by the Fourteenth Amendment for, "as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State." Ibid. See also Cooper v. Aaron, supra; Virginia v. Rives, 100 U. S. 313, 318 (1880); Shelley v. Kraemer, 334 U. S. 1, 14 (1948).
Under Michigan law a "school district is an agency of the State government." School District of the City of Lansing v. State Board of Education, 367 Mich. 591, 600, 116 N. W. 2d 866, 870 (1962). It is "a legal division of territory, created by the State for educational purposes, to which the State has granted such powers as are deemed necessary to permit the district to function as a State agency." Detroit Board of Education v.Superintendent of Public Instruction, 319 Mich. 436, 450, 29 N. W. 2d 902, 908 (1947). Racial discrimination by the school district, an agency of the State, is therefore racial discrimination by the State itself, forbidden by the Fourteenth Amendment. See, e. g., Pennsylvania v. Board of Trusts, 353 U. S. 230 (1957).
We recognized only last Term in Keyes that it was the State itself which was ultimately responsible for de jure acts of segregation committed by a local school board. A deliberate policy of segregation by the local board, we held, amounted to "state-imposed segregation." 413 U. S., at 200. Wherever a dual school system exists, whether compelled by state statute or created by a local board's systematic program of segregation, "the State automatically assumes an affirmative duty `to effectuate a transition to a racially nondiscriminatory school system' [and] to eliminate from the public schools within their school system `all vestiges of state-imposed segregation.' " Ibid.(emphasis added).
Vesting responsibility with the State of Michigan for Detroit's segregated schools is particularly appropriate as 794*794 Michigan, unlike some other States, operates a single statewide system of education rather than several separate and independent local school systems. The majority's emphasis on local governmental control and local autonomy of school districts in Michigan will come as a surprise to those with any familiarity with that State's system of education. School districts are not separate and distinct sovereign entities under Michigan law, but rather are " `auxiliaries of the State,' " subject to its "absolute power." Attorney General of Michigan ex rel. Kies v. Lowrey, 199 U. S. 233, 240 (1905). The courts of the State have repeatedly emphasized that education in Michigan is not a local governmental concern, but a state function.
"Unlike the delegation of other powers by the legislature to local governments, education is not inherently a part of the local self-government of a municipality . . . . Control of our public school system is a State matter delegated and lodged in the State legislature by the Constitution. The policy of the State has been to retain control of its school system, to be administered throughout the State under State laws by local State agencies organized with plenary powers to carry out the delegated functions given [them] by the legislature." School District of the City of Lansing v. State Board of Education, supra, at 595, 116 N. W. 2d, at 868.
The Supreme Court of Michigan has noted the deep roots of this policy:
"It has been settled by the Ordinance of 1787, the several Constitutions adopted in this State, by its uniform course of legislation, and by the decisions of this court, that education in Michigan is a matter of State concern, that it is no part of the local self-government of a particular township or municipality 795*795. . . . The legislature has always dictated the educational policy of the State." In re School District No. 6, 284 Mich. 132, 145-146, 278 N. W. 792, 797 (1938).

The State's control over education is reflected in the fact that, contrary to the Court's implication, there is little or no relationship between school districts and local political units. To take the 85 outlying local school districts in the Detroit metropolitan area as examples, 17 districts lie in two counties, two in three counties. One district serves five municipalities; other suburban municipalities are fragmented into as many as six school districts. Nor is there any apparent state policy with regard to the size of school districts, as they now range from 2,000 to 285,000 students.
Centralized state control manifests itself in practice as well as in theory. The State controls the financing of education in several ways. The legislature contributes a substantial portion of most school districts' operating budgets with funds appropriated from the State's General Fund revenues raised through statewide taxation.[6] The State's power over the purse can be and is in fact used to enforce the State's powers over local districts.[7] In addition, although local districts obtain funds through local property taxation, the State has assumed the responsibility to ensure equalized property valuations throughout the State.[8] The State also establishes 796*796 standards for teacher certification and teacher tenure;[9] determines part of the required curriculum;[10] sets the minimum school term;[11] approves bus routes, equipment, and drivers;[12] approves textbooks;[13] and establishes procedures for student discipline.[14] The State Superintendent of Public Instruction and the State Board of Education have the power to remove local school board members from office for neglect of their duties.[15]
Most significantly for present purposes, the State has wide-ranging powers to consolidate and merge school districts, even without the consent of the districts themselves or of the local citizenry.[16] See, e. g., Attorney General ex rel. Kies v.Lowrey, 131 Mich. 639, 92 N. W. 289 (1902), aff'd, 199 U. S. 233 (1905). Indeed, recent years have witnessed an accelerated program of school district consolidations, mergers, and annexations, many of which were state imposed. Whereas the State had 7,362 local districts in 1912, the number had been reduced to 1,438 in 1964 and to 738 in 1968.[17]By June 1972, only 608 school districts remained. Furthermore, the State has broad powers to transfer property from one district to another, again without the consent of the local school districts affected by the transfer.[18] See, e. g., School District 797*797 of the City of Lansing v. State Board of Education, supra; Imlay Township District v. State Board of Education, 359 Mich. 478, 102 N. W. 2d 720 (1960).
Whatever may be the history of public education in other parts of our Nation, it simply flies in the face of reality to say, as does the majority, that in Michigan, "[n]o single tradition in public education is more deeply rooted than local control over the operation of schools . . . ." Ante, at 741. As the State's Supreme Court has said: "We have repeatedly held that education in this State is not a matter of local concern, but belongs to the State at large." Collins v. City of Detroit, 195 Mich. 330, 335-336, 161 N. W. 905, 907 (1917). See also Sturgis v. County of Allegan, 343 Mich. 209, 215, 72 N. W. 2d 56, 59 (1955); Van Fleet v. Oltman, 244 Mich. 241, 244, 221 N. W. 299, 300 (1928); Child Welfare Society of Flint v. Kennedy School District, 220 Mich. 290, 296, 189 N. W. 1002, 1004 (1922). Indeed, a study prepared for the 1961 Michigan Constitutional Convention noted that the Michigan Constitution's articles on education had resulted in "the establishment of a state system of education in contrast to a series of local school systems." Elementary and Secondary Education and the Michigan Constitution, Michigan Constitutional Convention Studies 1 (1961).
In sum, several factors in this case coalesce to support the District Court's ruling that it was the State of Michigan itself, not simply the Detroit Board of Education, which bore the obligation of curing the condition of segregation within the Detroit city schools. The actions of the State itself directly contributed to Detroit's segregation. Under the Fourteenth Amendment, the State is ultimately responsible for the actions of its local agencies. And, finally, given the structure of Michigan's educational system, Detroit's segregation cannot be 798*798 viewed as the problem of an independent and separate entity. Michigan operates a single statewide system of education, a substantial part of which was shown to be segregated in this case.

B
What action, then, could the District Court require the State to take in order to cure Detroit's condition of segregation? Our prior cases have not minced words as to what steps responsible officials and agencies must take in order to remedy segregation in the public schools. Not only must distinctions on the basis of race be terminated for the future, but school officials are also "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board of New Kent County, 391 U. S. 430, 437-438 (1968). See also Lee v. Macon County Board of Education, 267 F. Supp. 458 (MD Ala.), aff'd sub nom. Wallace v. United States, 389 U. S. 215 (1967). Negro students are not only entitled to neutral nondiscriminatory treatment in the future. They must receive "what Brown II promised them: a school system in which all vestiges of enforced racial segregation have been eliminated." Wright v. Council of the City of Emporia, 407 U. S. 451, 463 (1972). See also Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15 (1971). These remedial standards are fully applicable not only to school districts where a dual system was compelled by statute, but also where, as here, a dual system was the product of purposeful and intentional state action. See Keyes, 413 U. S., at 200-201.
After examining three plans limited to the city of Detroit, the District Court correctly concluded that none would eliminate root and branch the vestiges of 799*799unconstitutional segregation. The plans' effectiveness, of course, had to be evaluated in the context of the District Court's findings as to the extent of segregation in the Detroit city schools. As indicated earlier, the most essential finding was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools.[19] Thus, in 1960, of Detroit's 251 800*800 regular-attendance schools, 100 were 90% or more white and 71 were 90% or more Negro. In 1970, of Detroit's 282 regular-attendance schools, 69 were 90% or more white and 133 were 90% or more Negro. While in 1960, 68% of all schools were 90% or more one race, by 1970, 71.6% of the schools fell into that category. The growing core of all-Negro schools was further evidenced in total school district population figures. In 1960 the Detroit system had 46% Negro students and 54% white students, but by 1970, 64% of the students were Negro and only 36% were white. This increase in the proportion of Negro students was the highest of any major Northern city.
It was with these figures in the background that the District Court evaluated the adequacy of the three Detroit-only plans submitted by the parties. Plan A, proposed by the Detroit Board of Education, desegregated the high schools and about a fifth of the middle-level schools. It was deemed inadequate, however, because it did not desegregate elementary schools and left the middle-level schools not included in the plan more segregated than ever. Plan C, also proposed by the Detroit Board, was deemed inadequate because it too covered only some grade levels and would leave elementary schools segregated. Plan B, the plaintiffs' plan, though requiring the transportation of 82,000 pupils and the acquisition of 900 school buses, would make little 801*801 headway in rooting out the vestiges of segregation. To begin with, because of practical limitations, the District Court found that the plan would leave many of the Detroit city schools 75% to 90% Negro. More significantly, the District Court recognized that in the context of a community which historically had a school system marked by rigid de jure segregation, the likely effect of a Detroit-only plan would be to "change a school system which is now Black and White to one that would be perceived as Black . . . ." The result of this changed perception, the District Court found, would be to increase the flight of whites from the city to the outlying suburbs, compounding the effects of the present rate of increase in the proportion of Negro students in the Detroit system. Thus, even if a plan were adopted which, at its outset, provided in every school a 65% Negro-35% white racial mix in keeping with the Negro-white proportions of the total student population, such a system would, in short order, devolve into an all-Negro system. The net result would be a continuation of the all-Negro schools which were the hallmarks of Detroit's former dual system of one-race schools.

Under our decisions, it was clearly proper for the District Court to take into account the so-called "white flight" from the city schools which would be forthcoming from any Detroit-only decree. The court's prediction of white flight was well supported by expert testimony based on past experience in other cities undergoing desegregation relief. We ourselves took the possibility of white flight into account in evaluating the effectiveness of a desegregation plan in Wright, supra, where we relied on the District Court's finding that if the city of Emporia were allowed to withdraw from the existing system, leaving a system with a higher proportion of Negroes, it " `may be anticipated that the proportion 802*802 of whites in county schools may drop as those who can register in private academies' . . . ." 407 U. S., at 464. One cannot ignore the white-flight problem, for where legally imposed segregation has been established, the District Court has the responsibility to see to it not only that the dual system is terminated at once but also that future events do not serve to perpetuate or re-establish segregation. See Swann, 402 U. S., at 21. See also Green, 391 U. S., at 438 n. 4; Monroe v. Board of Comm'rs, 391 U. S. 450, 459 (1968).
We held in Swann, supra, that where de jure segregation is shown, school authorities must make "every effort to achieve the greatest possible degree of actual desegregation." 402 U. S., at 26. This is the operative standard re-emphasized in Davisv. School Comm'rs of Mobile County, 402 U. S. 33, 37 (1971). If these words have any meaning at all, surely it is that school authorities must, to the extent possible, take all practicable steps to ensure that Negro and white children in fact go to school together. This is, in the final analysis, what desegregation of the public schools is all about.
Because of the already high and rapidly increasing percentage of Negro students in the Detroit system, as well as the prospect of white flight, a Detroit-only plan simply has no hope of achieving actual desegregation. Under such a plan white and Negro students will not go to school together. Instead, Negro children will continue to attend all-Negro schools. The very evil that Brown I was aimed at will not be cured, but will be perpetuated for the future.
Racially identifiable schools are one of the primary vestiges of state-imposed segregation which an effective desegregation decree must attempt to eliminate. In Swann, supra, for example, we held that "[t]he district judge or school authorities . . . will thus necessarily be concerned with the elimination of one-race schools." 402 803*803 U. S., at 26. There is "a presumption," we stated, "against schools that are substantially disproportionate in their racial composition." Ibid. And in evaluating the effectiveness of desegregation plans in prior cases, we ourselves have considered the extent to which they discontinued racially identifiable schools. See, e. g., Green v. County School Board of New Kent County, supra; Wright v. Council of the City of Emporia, supra. For a principal end of any desegregation remedy is to ensure that it is no longer "possible to identify a `white school' or a `Negro school.' " Swann, supra, at 18. The evil to be remedied in the dismantling of a dual system is the "[r]acial identification of the system's schools." Green, 391 U. S., at 435. The goal is a system without white schools or Negro schools—a system with "just schools." Id., at 442. A school authority's remedial plan or a district court's remedial decree is to be judged by its effectiveness in achieving this end. See Swann, supra, at 25; Davis, supra, at 37; Green, supra, at 439.
We cautioned in Swann, of course, that the dismantling of a segregated school system does not mandate any particular racial balance. 402 U. S., at 24. We also concluded that a remedy under which there would remain a small number of racially identifiable schools was only presumptively inadequate and might be justified. Id., at 26. But this is a totally different case. The flaw of a Detroitonly decree is not that it does not reach some ideal degree of racial balance or mixing. It simply does not promise to achieve actual desegregation at all. It is one thing to have a system where a small number of students remain in racially identifiable schools. It is something else entirely to have a system where all students continue to attend such schools.

The continued racial identifiability of the Detroit schools under a Detroit-only remedy is not simply a reflection of their high percentage of Negro students. 804*804 What is or is not a racially identifiable vestige of de jure segregation must necessarily depend on several factors. Cf. Keyes, 413 U. S., at 196. Foremost among these should be the relationship between the schools in question and the neighboring community. For these purposes the city of Detroit and its surrounding suburbs must be viewed as a single community. Detroit is closely connected to its suburbs in many ways, and the metropolitan area is viewed as a single cohesive unit by its residents. About 40% of the residents of the two suburban counties included in the desegregation plan work in Wayne County, in which Detroit is situated. Many residents of the city work in the suburbs. The three counties participate in a wide variety of cooperative governmental ventures on a metropolitan-wide basis, including a metropolitan transit system, park authority, water and sewer system, and council of governments. The Federal Government has classified the tri-county area as a Standard Metropolitan Statistical Area, indicating that it is an area of "economic and social integration." United States v. Connecticut National Bank, ante, at 670.
Under a Detroit-only decree, Detroit's schools will clearly remain racially identifiable in comparison with neighboring schools in the metropolitan community. Schools with 65% and more Negro students will stand in sharp and obvious contrast to schools in neighboring districts with less than 2% Negro enrollment. Negro students will continue to perceive their schools as segregated educational facilities and this perception will only be increased when whites react to a Detroit-only decree by fleeing to the suburbs to avoid integration. School district lines, however innocently drawn, will surely be perceived as fences to separate the races when, under a Detroit-only decree, white parents withdraw their children 805*805 from the Detroit city schools and move to the suburbs in order to continue them in all-white schools. The message of this action will not escape the Negro children in the city of Detroit. See Wright, 407 U. S., at 466. It will be of scant significance to Negro children who have for years been confined by de jureacts of segregation to a growing core of allNegro schools surrounded by a ring of all-white schools that the new dividing line between the races is the school district boundary.
Nor can it be said that the State is free from any responsibility for the disparity between the racial makeup of Detroit and its surrounding suburbs. The State's creation, through de jure acts of segregation, of a growing core of all-Negro schools inevitably acted as a magnet to attract Negroes to the areas served by such schools and to deter them from settling either in other areas of the city or in the suburbs. By the same token, the growing core of all-Negro schools inevitably helped drive whites to other areas of the city or to the suburbs. As we recognized in Swann:
"People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. . . . [Action taken] to maintain the separation of the races with a minimum departure from the formal principles of `neighborhood zoning' . . . does more than simply influence the short-run composition of the student body . . . . It may well promote segregated residential patterns which, when combined with `neighborhood zoning,' further lock the school system into the mold of separation of the races. Upon a proper 806*806 showing a district court may consider this in fashioning a remedy." 402 U. S., at 20-21.
See also Keyes, 413 U. S., at 202. The rippling effects on residential patterns caused by purposeful acts of segregation do not automatically subside at the school district border. With rare exceptions, these effects naturally spread through all the residential neighborhoods within a metropolitan area. See id., at 202-203.

The State must also bear part of the blame for the white flight to the suburbs which would be forthcoming from a Detroit-only decree and would render such a remedy ineffective. Having created a system where whites and Negroes were intentionally kept apart so that they could not become accustomed to learning together, the State is responsible for the fact that many whites will react to the dismantling of that segregated system by attempting to flee to the suburbs. Indeed, by limiting the District Court to a Detroit-only remedy and allowing that flight to the suburbs to succeed, the Court today allows the State to profit from its own wrong and to perpetuate for years to come the separation of the races it achieved in the past by purposeful state action.
The majority asserts, however, that involvement of outlying districts would do violence to the accepted principle that "the nature of the violation determines the scope of the remedy." Swann, supra, at 16. See ante, at 744-745. Not only is the majority's attempt to find in this single phrase the answer to the complex and difficult questions presented in this case hopelessly simplistic, but more important, the Court reads these words in a manner which perverts their obvious meaning. The nature of a violation determines the scope of the remedy simply because the function of any remedy is to cure the violation to which it is addressed. In school segregation 807*807 cases, as in other equitable causes, a remedy which effectively cures the violation is what is required. See Green, 391 U. S., at 439; Davis, 402 U. S., at 37. No more is necessary, but we can tolerate no less. To read this principle as barring a district court from imposing the only effective remedy for past segregation and remitting the court to a patently ineffective alternative is, in my view, to turn a simple commonsense rule into a cruel and meaningless paradox. Ironically, by ruling out an interdistrict remedy, the only relief which promises to cure segregation in the Detroit public schools, the majority flouts the very principle on which it purports to rely.
Nor should it be of any significance that the suburban school districts were not shown to have themselves taken any direct action to promote segregation of the races. Given the State's broad powers over local school districts, it was well within the State's powers to require those districts surrounding the Detroit school district to participate in a metropolitan remedy. The State's duty should be no different here than in cases where it is shown that certain of a State's voting districts are malapportioned in violation of the Fourteenth Amendment. See Reynolds v. Sims, 377 U. S. 533 (1964). Overrepresented electoral districts are required to participate in reapportionment although their only "participation" in the violation was to do nothing about it. Similarly, electoral districts which themselves meet representation standards must frequently be redrawn as part of a remedy for other over- and under-inclusive districts. No finding of fault on the part of each electoral district and no finding of a discriminatory effect on each district is a prerequisite to its involvement in the constitutionally required remedy. By the same logic, no finding of fault on the part of the suburban school districts in this case 808*808 and no finding of a discriminatory effect on each district should be a prerequisite to their involvement in the constitutionally required remedy.
It is the State, after all, which bears the responsibility under Brown of affording a nondiscriminatory system of education. The State, of course, is ordinarily free to choose any decentralized framework for education it wishes, so long as it fulfills that Fourteenth Amendment obligation. But the State should no more be allowed to hide behind its delegation and compartmentalization of school districts to avoid its constitutional obligations to its children than it could hide behind its political subdivisions to avoid its obligations to its voters. Reynolds v. Sims, supra, at 575. See also Gomillion v. Lightfoot,364 U. S. 339 (1960).
It is a hollow remedy indeed where "after supposed `desegregation' the schools remained segregated in fact." Hobson v. Hansen, 269 F. Supp. 401, 495 (DDC 1967). We must do better than " `substitute . . . one segregated school system for another segregated school system.' " Wright, 407 U. S., at 456. To suggest, as does the majority, that a Detroit-only plan somehow remedies the effects of de jure segregation of the races is, in my view, to make a solemn mockery of Brown I's holding that separate educational facilities are inherently unequal and of Swann's unequivocal

mandate that the answer to de jure segregation is the greatest possible degree of actual desegregation.
III
One final set of problems remains to be considered. We recognized in Brown II, and have reemphasized ever since, that in fashioning relief in desegregation cases, "the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for 809*809 adjusting and reconciling public and private needs." Brown II, 349 U. S., at 300. See also Swann, supra.
Though not resting its holding on this point, the majority suggests that various equitable considerations militate against interdistrict relief. The Court, for example, refers to financing and administrative problems, the logistical problems attending large-scale transportation of students, and the prospect of the District Court's becoming a "de facto`legislative authority' " and " `school superintendent' for the entire area." Ante, at 743-744. The entangling web of problems woven by the Court, however, appears on further consideration to be constructed of the flimsiest of threads.
I deal first with the last of the problems posed by the Court—the specter of the District Court qua "school superintendent" and "legislative authority"—for analysis of this problem helps put the other issues in proper perspective. Our cases, of course, make clear that the initial responsibility for devising an adequate desegregation plan belongs with school authorities, not with the District Court. The court's primary role is to review the adequacy of the school authorities' efforts and to substitute its own plan only if and to the extent they default. See Swann, 402 U. S., at 16; Green, 391 U. S., at 439. Contrary to the majority's suggestions, the District Judge in this case consistently adhered to these procedures and there is every indication that he would have continued to do so. After finding de jure segregation the court ordered the parties to submit proposed Detroitonly plans. The state defendants were also ordered to submit a proposed metropolitan plan extending beyond Detroit's boundaries. As the District Court stated, "the State defendants . . . bear the initial burden of coming forward with a proposal that promises to work." The state defendants defaulted in this obligation, however. 810*810Rather than submit a complete plan, the State Board of Education submitted six proposals, none of which was in fact a desegregation plan. It was only upon this default that the District Court began to take steps to develop its own plan. Even then the District Court maximized school authority participation by appointing a panel representing both plaintiffs and defendants to develop a plan. Pet. App. 99a-100a. Furthermore, the District Court still left the state defendants the initial responsibility for developing both interim and final financial and administrative arrangements to implement interdistrict relief. Id., at 104a-105a. The Court of Appeals further protected the interests of local school authorities by ensuring that the outlying suburban districts could fully participate in the proceedings to develop a metropolitan remedy.
These processes have not been allowed to run their course. No final desegregation plan has been proposed by the panel of experts, let alone approved by the District Court. We do not know in any detail how many students will be transported to effect a metropolitan remedy, and we do not know how long or how far they will have to travel. No recommendations have yet been submitted by the state defendants on financial and administrative arrangements. In sum, the practicality of a final metropolitan plan is simply not before us at the present time. Since the State and the panel of experts have not yet had an opportunity to come up with a workable remedy, there is no foundation for the majority's suggestion of the impracticality of interdistrict relief. Furthermore, there is no basis whatever for assuming that the District Court will inevitably be forced to assume the role of legislature or school superintendent.[20] 811*811 Were we to hold that it was its constitutional duty to do so, there is every indication that the State of Michigan would fulfill its obligation and develop a

plan which is workable, administrable, financially sound, and, most important, in the best interest of quality education for all of the children in the Detroit metropolitan area.
Since the Court chooses, however, to speculate on the feasibility of a metropolitan plan, I feel constrained to comment on the problem areas it has targeted. To begin with, the majority's questions concerning the practicality of consolidation of school districts need not give us pause. The State clearly has the power, under existing law, to effect a consolidation if it is ultimately determined that this offers the best prospect for a workable and stable desegregation plan. See supra, at 796-797. And given the 1,000 or so consolidations of school districts which have taken place in the past, it is hard to believe that the State has not already devised means of solving most, if not all, of the practical problems which the Court suggests consolidation would entail.
Furthermore, the majority ignores long-established Michigan procedures under which school districts may enter into contractual agreements to educate their pupils in other districts using state or local funds to finance non-resident education.[21] Such agreements could form an 812*812 easily administrable framework for interdistrict relief short of outright consolidation of the school districts. The District Court found that interdistrict procedures like these were frequently used to provide special educational services for handicapped children, and extensive statutory provision is also made for their use in vocational education.[22] Surely if school districts are willing to engage in interdistrict programs to help those unfortunate children crippled by physical or mental handicaps, school districts can be required to participate in an interdistrict program to help those children in the city of Detroit whose educations and very futures have been crippled by purposeful state segregation.
Although the majority gives this last matter only fleeting reference, it is plain that one of the basic emotional and legal issues underlying these cases concerns the propriety of transportation of students to achieve desegregation. While others may have retreated from its standards, see, e. g., Keyes, 413 U. S., at 217 (POWELL, J., concurring in part and dissenting in part), I continue to adhere to the guidelines set forth in Swann on this issue. See 402 U. S., at 29-31. And though no final desegregation plan is presently before us, to the extent the outline of such a plan is now visible, it is clear that the transportation it would entail will be fully consistent with these guidelines.
First of all, the metropolitan plan would not involve the busing of substantially more students than already ride buses. The District Court found that, statewide, 35%-40% of all students already arrive at school on a bus. In those school districts in the tri-county Detroit metropolitan area eligible for state reimbursement of transportation costs, 42%-52% of all students rode buses to school. In the tri-county areas as a whole, approximately 813*813 300,000 pupils arrived at school on some type of bus, with about 60,000 of these apparently using regular public transit. In comparison, the desegregation plan, according to its present rough outline, would involve the transportation of 310,000 students, about 40% of the population within the desegregation area.
With respect to distance and amount of time traveled, 17 of the outlying school districts involved in the plan are contiguous to the Detroit district. The rest are all within 8 miles of the Detroit city limits. The trial court, in defining the desegregation area, placed a ceiling of 40 minutes one way on the amount of travel time, and many students will obviously travel for far shorter periods. As to distance, the average statewide bus trip is 8 1/2 miles one way, and in some parts of the tri-county area, students already travel for one and a quarter hours or more each way. In sum, with regard to both the number of students transported and the time and distances involved, the outlined desegregation plan "compares favorably with the transportation plan previously operated . . . ." Swann, supra, at 30.
As far as economics are concerned, a metropolitan remedy would actually be more sensible than a Detroit-only remedy. Because of prior transportation aid restrictions, see supra, at 791, Detroit

largely relied on public transport, at student expense, for those students who lived too far away to walk to school. Since no inventory of school buses existed, a Detroit-only plan was estimated to require the purchase of 900 buses to effectuate the necessary transportation. The tri-county area, in contrast, already has an inventory of 1,800 buses, many of which are now under-utilized. Since increased utilization of the existing inventory can take up much of the increase in transportation involved in the interdistrict remedy, the District Court found that only 350 additional buses would 814*814 probably be needed, almost two-thirds fewer than a Detroit-only remedy. Other features of an interdistrict remedy bespeak its practicality, such as the possibility of pairing up Negro schools near Detroit's boundary with nearby white schools on the other side of the present school district line.
Some disruption, of course, is the inevitable product of any desegregation decree, whether it operates within one district or on an interdistrict basis. As we said in Swann,however:
"Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided . . . ." 402 U. S., at 28.
Desegregation is not and was never expected to be an easy task. Racial attitudes ingrained in our Nation's childhood and adolescence are not quickly thrown aside in its middle years. But just as the inconvenience of some cannot be allowed to stand in the way of the rights of others, so public opposition, no matter how strident, cannot be permitted to divert this Court from the enforcement of the constitutional principles at issue in this case. Today's holding, I fear, is more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution's guarantee of equal justice than it is the product of neutral principles of law. In 815*815 the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities— one white, the other black—but it is a course, I predict, our people will ultimately regret. I dissent.
[*] Together with No. 73-435, Allen Park Public Schools et al. v. Bradley et al., and No. 73-436, Grosse Pointe Public School System v. Bradley et al., also on certiorari to the same court.
[†] Briefs of amici curiae urging reversal were filed by Theodore L. Sendak, Attorney General, Donald P. Bogard,Deputy Attorney General, and William F. Harvey for the State of Indiana; by Lewis C. Bose and William M. Evansfor the Metropolitan School District of Lawrence Township, Indiana, et al.; by Richard D. Wagner and Richard L. Brown for the town of Speedway, Indiana, et al.; and by Harold H. Fuhrman for the National Suburban League, Ltd.
Briefs of amici curiae urging affirmance were filed by Leonard P. Strickman for the city of Boston, Massachusetts; by Alexander A. Goldfarb for the city of Hartford, Connecticut; by Sanford Jay Rosen for the Mexican American Legal Defense and Educational Fund; and by Inter-Faith Centers for Racial Justice, Inc.
Briefs of amici curiae were filed by Charles F. Clippert, Charles E. Keller, Thomas H. Schwarze, John F. Shantz, Raymond McPeters, Walter J. Guth, Jr., Raymond G. Glime, Tony Ferris, and Perry Christy for Bloomfield Hills School District et al.; by Stephen J. Pollak, Richard M. Sharp, and David Rubin for the National Education Assn.; and by David I. Caplan for the Jewish Rights Council.
[1] 484 F. 2d 215 (CA6), cert. granted, 414 U. S. 1038 (1973).
[2] The standing of the NAACP as a proper party plaintiff was not contested in the trial court and is not an issue in this case.
[3] Optional zones, sometimes referred to as dual zones or dual overlapping zones, provide pupils living within certain areas a choice of attendance at one of two high schools.

[4] The Court of Appeals found record evidence that in at least one instance during the period 1957-1958, Detroit served a suburban school district by contracting with it to educate its Negro high school students by transporting them away from nearby suburban white high schools, and past Detroit high schools which were predominantly white, to all-Negro or predominantly Negro Detroit schools. 484 F. 2d, at 231.
[5] School districts in the State of Michigan are instrumentalities of the State and subordinate to its State Board of Education and legislature. The Constitution of the State of Michigan, Art. 8, § 2, provides in relevant part:
"The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law."
Similarly, the Michigan Supreme Court has stated: "The school district is a State agency. Moreover, it is of legislative creation. . . ." Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 644, 92 N. W. 289, 290 (1902); " `Education in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature. . . .' " Attorney General ex rel. Zacharias v. Detroit Board of Education, 154 Mich. 584, 590, 118 N. W. 606, 609 (1908).
[6] "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. . . ." Act No. 48, § 12, Mich. Pub. Acts of 1970; Mich. Comp. Laws § 388.182 (1970) (emphasis added).
[7] The District Court briefly alluded to the possibility that the State, along with private persons, had caused, in part, the housing patterns of the Detroit metropolitan area which, in turn, produced the predominantly white and predominantly Negro neighborhoods that characterize Detroit:
"It is no answer to say that restricted practices grew gradually (as the black population in the area increased between 1920 and 1970), or that since 1948 racial restrictions on the ownership of real property have been removed. The policies pursued by both government and private persons and agencies have a continuing and present effect upon the complexion of the community—as we know, the choice of a residence is a relatively infrequent affair. For many years FHA and VA openly advised and advocated the maintenance of `harmonious' neighborhoods, i. e., racially and economically harmonious. The conditions created continue." 338 F. Supp. 582, 587 (ED Mich. 1971).
Thus, the District Court concluded:
"The affirmative obligation of the defendant Board has been and is to adopt and implement pupil assignment practices and policies that compensate for and avoid incorporation into the school system the effects of residential racial segregation." Id., at 593.
The Court of Appeals, however, expressly noted that:
"In affirming the District Judge's findings of constitutional violations by the Detroit Board of Education and by the State defendants resulting in segregated schools in Detroit, we have not relied at all upon testimony pertaining to segregated housing except as school construction programs helped cause or maintain such segregation." 484 F. 2d, at 242.
Accordingly, in its present posture, the case does not present any question concerning possible state housing violations.
[8] On March 22, 1971, a group of Detroit residents, who were parents of children enrolled in the Detroit public schools, were permitted to intervene as parties defendant. On June 24, 1971, the District Judge alluded to the "possibility" of a metropolitan school system stating: "[A]s I have said to several witnesses in this case: `How do you desegregate a black city, or a black school system.' " Petitioners' Appendix 243a (hereinafter Pet. App.). Subsequently, on July 16, 1971, various parents filed a motion to require joinder of all of the 85 outlying independent school districts within the tri-county area.
[9] The respondents, as plaintiffs below, opposed the motion to join the additional school districts, arguing that the presence of the state defendants was sufficient and all that was required, even if, in shaping a remedy, the affairs of these other districts was to be affected. 338 F. Supp., at 595.
[10] At the time of the 1970 census, the population of Michigan was 8,875,083, almost half of which, 4,199,931, resided in the tri-county area of Wayne, Oakland, and Macomb. Oakland and Macomb Counties about Wayne County to the north, and Oakland County abuts Macomb County to the west. These counties cover 1,952 square miles, Michigan Statistical Abstract

(9th ed. 1972), and the area is approximately the size of the State of Delaware (2,057 square miles), more than half again the size of the State of Rhode Island (1,214 square miles) and almost 30 times the size of the District of Columbia (67 square miles). Statistical Abstract of the United States (93d ed. 1972). The populations of Wayne, Oakland, and Macomb Counties were 2,666,751; 907,871; and 625,309, respectively, in 1970. Detroit, the State's largest city, is located in Wayne County.
In the 1970-1971 school year, there were 2,157,449 children enrolled in school districts in Michigan. There are 86 independent, legally distinct school districts within the tri-county area, having a total enrollment of approximately 1,000,000 children. In 1970, the Detroit Board of Education operated 319 schools with approximately 276,000 students.
[11] In its formal opinion, subsequently announced, the District Court candidly recognized:
"It should be noted that the court has taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation." 345 F. Supp. 914, 920 (ED Mich. 1972).
[12] According to the District Court, intervention was permitted under Fed. Rule Civ. Proc. 24 (a), "Intervention of Right," and also under Rule 24 (b), "Permissive Intervention."
[13] This rather abbreviated briefing schedule was maintained despite the fact that the District Court had deferred consideration of a motion made eight months earlier, to bring the suburban districts into the case. See text accompanying n. 8, supra.
[14] As of 1970, the 53 school districts outside the city of Detroit that were included in the court's "desegregation area" had a combined student population of approximately 503,000 students compared to Detroit's approximately 276,000 students. Nevertheless, the District Court directed that the intervening districts should be represented by only one member on the desegregation panel while the Detroit Board of Education was granted three panel members. 345 F. Supp., at 917.
[15] The District Court had certified most of the foregoing rulings for interlocutory review pursuant to 28 U. S. C. § 1292 (b) (1 App. 265-266) and the case was initially decided on the merits by a panel of three judges. However, the panel's opinion and judgment were vacated when it was determined to rehear the case en banc, 484 F. 2d, at 218.
[16] With respect to the State's violations, the Court of Appeals held: (1) that, since the city Board is an instrumentality of the State and subordinate to the State Board, the segregative actions of the Detroit Board "are the actions of an agency of the State," id., at 238; (2) that the state legislation rescinding Detroit's voluntary desegregation plan contributed to increasing segregation in the Detroit schools, ibid.; (3) that under state law prior to 1962 the State Board had authority over school construction plans and therefore had to be held responsible "for the segregative results," ibid.; (4) that the "State statutory scheme of support of transportation for school children directly discriminated against Detroit," id., at 240, by not providing transportation funds to Detroit on the same basis as funds were provided to suburban districts, id., at 238; and (5) that the transportation of Negro students from one suburban district to a Negro school in Detroit must have had the "approval, tacit or express, of the State Board of Education," ibid.
[17] The court sought to distinguish Bradley v. School Board of the City of Richmond, 462 F. 2d 1058 (CA4 1972), aff'd by an equally divided Court, 412 U. S. 92 (1973), on the grounds that the District Court in that case had ordered an actual consolidation of three school districts and that Virginia's Constitution and statutes, unlike Michigan's, gave the local boards exclusive power to operate the public schools. 484 F. 2d, at 251.
[18] Although the list of issues presented for review in petitioners' briefs and petitions for writs of certiorari do not include arguments on the findings of segregative violations on the part of the Detroit defendants, two of the petitioners argue in brief that these findings constitute error. This Court's Rules 23 (1) (c) and 40 (1) (d) (2), at a minimum, limit our review of the Detroit violation findings to "plain error," and, under our decision last Term in Keyes v. School District No. 1, Denver, Colorado, 413 U. S. 189 (1973), the findings appear to be correct.
[19] Disparity in the racial composition of pupils within a single district may well constitute a "signal" to a district court at the outset, leading to inquiry into the causes accounting for a pronounced racial identifiability of schools within one school system. In Swann, for example, we were dealing with a large but single independent school system, and a unanimous Court noted: "Where the . . . proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantly of one race [the school authority has] the burden of showing that such school assignments are genuinely nondiscriminatory." 402 U. S., at 26. See also Keyes, supra, at 208. However, the use of significant racial imbalance in schools within an autonomous school district as a signal which operates simply to shift the

burden of proof, is a very different matter from equating racial imbalance with a constitutional violation calling for a remedy. Keyes, supra, also involved a remedial order within a single autonomous school district.
[20] Under the Michigan School Code of 1955, the local school district is an autonomous political body corporate, operating through a Board of Education popularly elected. Mich. Comp. Laws §§ 340.27, 340.55, 340.107, 340.148, 340.149, 340.188. As such, the day-to-day affairs of the school district are determined at the local level in accordance with the plenary power to acquire real and personal property, §§ 340.26, 340.77, 340.113, 340.165, 340.192, 340.352; to hire and contract with personnel, §§ 340.569, 340.574; to levy taxes for operations, § 340.563; to borrow against receipts, § 340.567; to determine the length of school terms, § 340.575; to control the admission of nonresident students, § 340.582; to determine courses of study, § 340.583; to provide a kindergarten program, § 340.584; to establish and operate vocational schools, § 340.585; to offer adult education programs, § 340.586; to establish attendance areas, § 340.589; to arrange for transportation of nonresident students, § 340.591; to acquire transportation equipment, § 340.594; to receive gifts and bequests for educational purposes, § 340.605; to employ an attorney, § 340.609; to suspend or expel students, § 340.613; to make rules and regulations for the operation of schools, § 340.614; to cause to be levied authorized millage, § 340.643a; to acquire property by eminent domain, § 340.711 et seq.; and to approve and select textbooks, § 340.882.
[21] Since the Court has held that a resident of a school district has a fundamental right protected by the Federal Constitution to vote in a district election, it would seem incongruous to disparage the importance of the school district in a different context. Kramer v. Union Free School District No. 15, 395 U. S. 621, 626 (1969). While the district there involved was located in New York, none of the facts in our possession suggest that the relation of school districts to the State is significantly different in New York from that in Michigan.
[22] The suggestion in the dissent of MR. JUSTICE MARSHALL that schools which have a majority of Negro students are not "desegregated," whatever the racial makeup of the school district's population and however neutrally the district lines have been drawn and administered, finds no support in our prior cases. In Green v. County School Board of New Kent County, 391 U. S. 430 (1968), for example, this Court approved a desegregation plan which would have resulted in each of the schools within the district having a racial composition of 57% Negro and 43% white. In Wright v. Council of the City of Emporia, 407 U. S. 451 (1972), the optimal desegregation plan would have resulted in the schools' being 66% Negro and 34% white, substantially the same percentages as could be obtained under one of the plans involved in this case. And in United States v. Scotland Neck Board of Education, 407 U. S. 484, 491 n. 5 (1972), a desegregation plan was implicitly approved for a school district which had a racial composition of 77% Negro and 22% white. In none of these cases was it even intimated that "actual desegregation" could not be accomplished as long as the number of Negro students was greater than the number of white students.
The dissents also seem to attach importance to the metropolitan character of Detroit and neighboring school districts. But the constitutional principles applicable in school desegregation cases cannot vary in accordance with the size or population dispersal of the particular city, county, or school district as compared with neighboring areas.
[23] People ex rel. Workman v. Board of Education of Detroit, 18 Mich. 400 (1869): Act 34, § 28, Mich. Pub. Acts of 1867. The Michigan Constitution and laws provide that "[e]very school district shall provide for the education of its pupils without discrimination as to religion, ereed, race, color or national origin." Mich. Const. 1963, Art. 8, § 2; that "[n]o separate school or department shall be kept for any person or persons on account of race or color," Mich. Comp. Laws § 340.355; and that "[a]ll persons, residents of a school district . . . shall have an equal right to attend school therein," id., § 340.356. See also Act 319, Part II, c. 2, § 9, Mich. Pub. Acts of 1927.
[24] Apparently, when the District Court, sua sponte, abruptly altered the theory of the case to include the possibility of multidistrict relief, neither the plaintiffs nor the trial judge considered amending the complaint to embrace the new theory.
[1] As this Court stated in Brown v. Board of Education, 349 U. S. 294, 300: "[E]quity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These [school desegregation] cases call for the exercise of these traditional attributes of equity power."
[2] My Brother MARSHALL seems to ignore this fundamental fact when he states, post, at 799, that "the most essential finding [made by the District Court] was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools." This conclusion is simply not substantiated by the record presented in this case. The record here does support the claim made by the respondents that white and Negro students within Detroit who otherwise would have attended school together were separated by acts of the State or its subdivision. However, segregative acts within the city alone cannot be presumed to have produced—and no factual showing was made that they did produce—an increase in the number of Negro students in the city as a whole. It is this essential fact of a predominantly Negro school population in Detroit —caused by unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears—that accounts for the "growing core of Negro schools," a "core" that has grown to include virtually the entire city. The Constitution simply does not

allow federal courts to attempt to change that situation unless and until it is shown that the State, or its political subdivisions, have contributed to cause the situation to exist. No record has been made in this case showing that the racial composition of the Detroit school population or that residential patterns within Detroit and in the surrounding areas were in any significant measure caused by governmental activity, and it follows that the situation over which my dissenting Brothers express concern cannot serve as the predicate for the remedy adopted by the District Court and approved by the Court of Appeals.
[1] Mich. Const., Art. 8, §§ 2, 3.
[2] See 484 F. 2d 215, 247-248; Mich. Comp. Laws §§ 340.402, 340.431, 340.447, 388.681 (1970).
[3] Mich. Comp. Laws § 388.851 (1948), as amended by Act 231, Mich. Pub. Acts of 1949, and Act 175, Mich. Pub. Acts 1962.
[4] See Mich. Comp. Laws §§ 132.1 and 132.2 (1970); 3 App. 157.
[5] See 484 F. 2d, at 248-249.
[6] See Detroit Free Press, Nov. 8, 1972, p. 1A, col. 3. Michigan has recently passed legislation which could eliminate some, but not all, of the inequities in school financing. See Act 101, Mich. Pub. Acts of 1973.
[7] See 484 F. 2d, at 246-247; Mich. Const. Art. 8, §§ 2, 3.
[8] See n. 2, supra.
[9] A tremendous change has occurred in the distribution of this country's black population since World War I. See Hauser, Demographic Factors in the Integration of the Negro, Daedalus 847-877 (fall 1965). In 1910, 73% of all blacks lived on farms and in rural areas; by 1960, 73% lived in urban areas, mainly in the largest metropolitan areas. Moreover, due to the fact that the black population is younger than the white population, the concentration of blacks in the cities is even more pronounced for the school-age population. The pattern of change which has existed since World War I is continuing, and hence the proportion of blacks in the urban North and West will continue to increase. Dept. of Health, Education, and Welfare, J. Coleman et al., Equality of Educational Opportunity 39-40 (1966).
[10] "There are some definite and systematic directions of difference between the schools attended by minorities and those attended by the majority. It appears to be in the most academically related areas that the schools of minority pupils show the most consistent deficiencies." Dept. of Health, Education, and Welfare, Coleman et al., supra, n. 9, at 120.
[11] That some school districts are markedly poorer than others is beyond question. The California Supreme Court has noted that per-pupil expenditures in two different districts—both located in the same county—were $2,223 and $616. Serrano v. Priest, 5 Cal. 3d 584, 600 n. 15, 487 P. 2d 1241, 1252 n. 15 (1971). In New York the Fleischmann Commission reported that the two Long Island districts of Great Neck and Levittown spent $2,078 and $1,189 respectively per pupil. 1 New York State Commission on the Quality, Cost, and Financing of Elementary and Secondary Education, Fleischmann Report 58 (1973). "A further glaring inequity resulting from the current systems of school finance is that variations in per pupil expenditures among school districts tend to be inversely related to educational need. City students, with greater than average educational deficiencies, consistently have less money spent on their education and have higher pupil/teacher ratios than do their high-income counterparts in the favored schools of suburbia." Glickstein & Want, Inequality in School Financing: The Role of the Law, 25 Stan. L. Rev. 335, 338 (1973).
[12] Cities face an especially difficult problem in paying the cost of education, since they have the "municipal overburden" which results from greater costs for health, public safety, sanitation, public works, transportation, public welfare, public housing, and recreation. Because of municipal overburden, cities on the average devote only about 30% of their budgets to their schools. This compares with the over 50% which is spent on schools by the suburbs. J. Berke & J. Callahan. Inequities in School Finance (1971), reprinted in Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Report on Issues in School Finance 129, 142 (Comm. Print 1972); see Glickstein & Want, supra, n. 11, at 387.
[13] MR. JUSTICE STEWART indicates that equitable factors weigh in favor of local school control and the avoidance of administrative difficulty given the lack of an "interdistrict" violation. Ante, at 755. It would seem to me that the equities are stronger in favor of the children of Detroit who have been deprived of their constitutional right to equal treatment by the State of Michigan.

[1] The percentage of Negro pupils in the Detroit student population rose to 64.9% in 1971, to 67.3% in 1972, and to 69.8% in 1973, amid a metropolitan school population whose racial composition in 1970 was 81% white and 19% Negro. 5 App. 16; Racial-Ethnic Distribution of Students and Employees in the Detroit Public Schools, October 1972, and October 1973; 484 F. 2d 215, 250.
[2] The District Court's ruling on the Detroit-only desegregation plans is set out in full by the Court of Appeals, id.,at 242-245, and is not otherwise officially reported.
[3] The Court has previously disapproved the implementation of proposed desegregation plans which operate to permit resegregation. Monroe v. Board of Comm'rs, 391 U. S. 450, 459-460 (1968) ("free transfer" plan).
[4] The Court of Appeals also noted several specific instances of school district mergers ordered by the State Board of Education for financial reasons. 484 F. 2d, at 247. Limitations on the authority of local school districts were also outlined by the Court of Appeals:
"Local school districts, unless they have the approval of the State Board of Education or the Superintendent of Public Instruction, cannot consolidate with another school district, annex territory, divide or attach parts of other districts, borrow monies in anticipation of State aid, or construct, reconstruct or remodel school buildings or additions to them." Id., at 249. (Footnotes and supporting statutory citations omitted.)
And the Court of Appeals properly considered the State's statutory attempt to undo the adoption of a voluntary high school desegregation plan by the Detroit Board of Education as evidencing state control over local school district affairs. Ibid. Finally, it is also relevant to note that the District Court found that the school district boundaries in that segment of the metropolitan area preliminarily designated as the desegregation area "in general bear no relationship to other municipal, county, or special district governments, needs or services," that some educational services are already provided to students on an interdistrict basis requiring their travel from one district to another, and that local communities in the metropolitan area share noneducational interests in common, which do not adhere to school district lines, and have applied metropolitan solutions to other governmental needs. 345 F. Supp. 914, 934-935 (ED Mich. 1972).
[5] These included the creation and alteration of attendance zones and feeder patterns from the elementary to the secondary schools in a manner naturally and predictably perpetuating racial segregation of students, the transportation of Negro students beyond predominantly white schools with available space to predominantly Negro schools, the use of optional attendance areas in neighborhoods in which Negro families had recently begun to settle to permit white students to transfer to predominantly white schools nearer the city limits, and the construction of schools in the heart of residentially segregated areas, thereby maximizing school segregation.
[1] Contrary to the Court's characterization, the use of racial ratios in this case in no way differed from that in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971). Here, as there, mathematical ratios were used simply as "a starting point in the process of shaping a remedy, rather than an inflexible requirement." Id., at 25. It may be expected that a final desegregation plan in this case would deviate from a pure mathematical approach. Indeed, the District Court's most recent order appointing a panel of experts to draft an interdistrict plan requires only that the plan be designed "to achieve the greatest degree of actual desegregation. . . [w]ithin the limitations of reasonable travel time and distance factors." 345 F. Supp. 914, 918 (ED Mich. 1972). Cf. 402 U. S., at 23.
[2] It does not appear that even the majority places any real weight on this consideration since it recognizes that interdistrict relief would be proper where a constitutional violation within one district produces a significant segregative effect in another district, see ante, at 744-745, thus allowing interdistrict relief to touch districts which have not themselves violated the Constitution.
[3] See Mich. Comp. Laws § 388.851 (1970).
[4] See § 388.1179.
[5] See §§ 388.629 and 340.600.
[6] See § 388.611. The State contributed an average of 34% of the operating budgets of the 54 school districts included in the original proposed desegregation area. In 11 of these districts, state contributions exceeded 50% of the operating budgets.

[7] See, e. g., id., § 340.575. See also 1949-1950 Report of the Attorney General 104 (Roth); Vol. 1, 1955 Report of the Attorney General 561 (Kavanagh); 1961-1962 Report of the Attorney General 533 (Kelley).
[8] See Mich. Comp. Laws §§ 211.34 and 340.681.
[9] § 340.569.
[10] §§ 257.811 (c), 340.361, 340.781, 340.782, 388.371.
[11] § 340.575.
[12] § 388.1171.
[13] § 340.887 (1)
[14] Op. Atty. Gen. No. 4705 (July 7, 1970), 1969-1970 Report of the Attorney General 156 (Kelley).
[15] See Mich. Comp. Laws § 340.253.
[16] See generally §§ 340.401-340.415 (consolidations), 340.431-340.449 (annexations).
[17] See 1 Michigan Senate Journal, 1968, p. 423.
[18] See generally Mich. Comp. Laws §§ 340.461-340.468.
[19] Despite MR. JUSTICE STEWART'S claim to the contrary, ante, at 756 n. 2, of his concurring opinion, the record fully supports my statement that Negro students were intentionally confined to a core of Negro schools within the city of Detroit. See, e. g., supra, at 784-785, 790-792. Indeed, MR. JUSTICE STEWART acknowledges that intentional acts of segregation by the State have separated white and Negro students within the city, and that the resulting core of all-Negro schools has grown to encompass most of the city. In suggesting that my approval of an interdistrict remedy rests on a further conclusion that the State or its political subdivisions have been responsible for the increasing percentage of Negro students in Detroit, my Brother STEWART misconceives the thrust of this dissent. In light of the high concentration of Negro students in Detroit, the District Judge's finding that a Detroit-only remedy cannot effectively cure the constitutional violation within the city should be enough to support the choice of an interdistrict remedy. Whether state action is responsible for the growth of the core of all-Negro schools in Detroit is, in my view, quite irrelevant.
The difficulty with MR. JUSTICE STEWART'S position is that he, like the Court, confuses the inquiry required to determine whether there has been a substantive constitutional violation with that necessary to formulate an appropriate remedy once a constitutional violation has been shown. While a finding of state action is of course a prerequisite to finding a violation, we have never held that after unconstitutional state action has been shown, the District Court at the remedial stage must engage in a second inquiry to determine whether additional state action exists to justify a particular remedy. Rather, once a constitutional violation has been shown, the District Court is duty-bound to formulate an effective remedy and, in so doing, the court is entitled—indeed, it is required—to consider all the factual circumstances relevant to the framing of an effective decree. Thus, in Swann v. Charlotte-Mecklenburg Board of Education we held that the District Court must take into account the existence of extensive residential segregation in determining whether a racially neutral "neighborhood school" attendance plan was an adequate desegregation remedy, regardless of whether this residential segregation was caused by state action. So here, the District Court was required to consider the facts that the Detroit school system was already predominantly Negro and would likely become all-Negro upon issuance of a Detroit-only decree in framing an effective desegregation remedy, regardless of state responsibility for this situation.
[20] In fact, the District Court remarked "that this court's task is to enforce constitutional rights not to act as a schoolmaster; the court's task is to protect the constitutional rights here found violated with as little intrusion into the education process as possible. The court's objective is to establish the minimum constitutional framework within which the system of public schools may operate now and hereafter in a racially unified, non-discriminatory fashion. Within that framework the body politic, educators, parents, and most particularly the children must be given the maximum opportunity to experiment and secure a high quality, and equal, educational opportunity." Pet. App. 82a.
[21] See, e. g., Mich. Comp. Laws §§ 340.69, 340.121 (d), 340.359, 340.582, 340.582a, 340.590.

[22] See id., §§ 340.330-340.330u.

 
 495 F.Supp. 217 (1980)
Ronald BRADLEY et al., Plaintiffs, v.
William G. MILLIKEN, Governor of the State of Michigan et al., Defendants.
Civ. No. 35257.
United States District Court, E. D. Michigan, S. D.
August 8, 1980.
Louis Lucas, Memphis, Tenn., Thomas Atkins, Boston, Mass., for plaintiffs.
George T. Roumell, Jr., Theodore Sachs, Detroit, Mich., Paul J. Zimmer, Asst. Atty. Gen., Lansing, Mich., for defendants.
MEMORANDUM OPINION
DeMASCIO, District Judge.
On June 30, 1980, the Clerk of the Court for the Eastern District of Michigan delivered to this court a copy of the court of appeals' mandate issued on May 30, 1980.[1] The chief judge has voiced his concern that, although the court of appeals' opinion suggested reassignment, the mandate does not require him to "reassign this case either to himself or to another appropriate judge." In its opinion, the court stated that, in view of "the challenge raised by the plaintiffs, and the bitter feelings that have developed," I should no longer preside in this case.
While I prefer to preside in this case until it is concluded, I find that I do not have that choice. There is precedent for the court's sua sponte direction that on remand this case be reassigned to a different judge.[2] In re Schulman, No. 79-3183 (6th Cir. May 4, 1979) (unpublished);[3] United States v. Carabbia, 512 F.2d 34 (6th Cir. 1975); Pingatore v. Montgomery Ward and Co., Inc., No. 72-1324 (6th Cir. April 11, 1973) (unpublished). In one instance the court considered and decided against a reassignment on remand, Drayton v. Jiffee Chemical Corp., 591 F.2d 352, 361-62 (6th Cir. 1978), and on another occasion suggested to a party that, if the trial court did not reassign the case to a different judge, the party could apply to the court of appeals for 218*218 an order of reassignment, Elyria-Lorain Broadcasting Co. v. Lorain Journal Co., 358 F.2d 790, 794 (6th Cir. 1966). It is not significant that reassignment is not ordered in the mandate, or comes as a suggestion in an appellate opinion. In United States v. Yagid, 528 F.2d 962, 965 (2d Cir. 1976), the court believed that:
[s]uch suggestions contained in appellate opinions should not be deemed merely precatory because they are not "ordered" . . ..[4]

(Emphasis added.)
Other circuits have on occasion ordered reassignment on remand. When its previous suggestion that a case be reassigned was not followed, the Court of Appeals for the Tenth Circuit concluded that it could order reassignment of a case pursuant to the all-writs statute, 28 U.S.C. § 1651, or alternatively, pursuant to its "inherent powers of appellate jurisdiction to effectuate what seems . . . to be the manifest ends of justice." United States v. Ritter, 273 F.2d 30 (10th Cir. 1959), cert. denied 362 U.S. 950, 80 S.Ct. 863, 4 L.Ed.2d 869 (1960). However, in granting the government's extraordinary request, the tenth circuit made it clear that it was doing so because it doubted Judge Ritter's impartiality.[5] In still another case, although "the proceedings were acrimonious at times and evidenced the existence of some feelings between the court and counsel," the tenth circuit held that the district judge did not err in refusing to disqualify himself. Calvaresi v. United States, 216 F.2d 891, 900 (10th Cir. 1954). But, the Supreme Court, in a one-sentence per curiam grant of certiorari, stated:
In the interests of justice and in the exercise of the supervisory powers of the Court, certiorari is granted and the cases are severally reversed and remanded to the District Court for retrial before a different judge.
348 U.S. 961, 75 S.Ct. 522, 99 L.Ed. 749 (1955).
The Supreme Court's summary reassignment in Calvaresi is cited as authority for ordering reassignment on remand in Naples v. United States, 307 F.2d 618, 631 (D.C.Cir. 1962); and Blunt v. United States, 244 F.2d 355, 368 (D.C.Cir.1957). In United States v. Columbia Broadcasting System, Inc., 497 F.2d 107, 109-110 (5th Cir. 1974), the court relied upon its supervisory powers in directing that retrial be held before a different judge.
Although a reason for ordering reassignment is generally stated in the opinion, the various circuits do not agree on their authority for ordering reassignment on remand. Some circuits have not cited any authority for doing so. In re Schulman, No. 79-3183 (6th Cir. May 4, 1979) (unpublished) (personal animosity between trial judge and respondent; no authority for reassignment stated; analogy drawn to Fed.R.Crim.P. 42(b)); United States v. Robin, 553 F.2d 8 (2d Cir. 1977) (original trial judge might have difficulty disregarding erroneously received evidence; reassignment ordered pursuant to 28 U.S.C. § 2106); United States v. Yagid, 528 F.2d 962 (2d Cir. 1976) (original trial judge might be required to testify on remand; reassignment pursuant to 28 U.S.C. § 2106); United States v. Carabbia, 512 F.2d 34 (6th Cir. 1975) (statements 219*219 made by trial judge were at issue in question of whether plea should be set aside; no authority for reassignment stated); United States v. Columbia Broadcasting System, Inc., 497 F.2d 107 (5th Cir. 1974) (trial judge's own conduct was at issue; reassignment ordered pursuant to court's supervisory powers); Pingatore v. Montgomery Ward and Co., Inc.,No. 72-1324 (6th Cir. April 11, 1973) (unpublished) (trial judge reversed twice; third trial to be before a different judge; no authority for reassignment stated); Salley v. United States, 353 F.2d 897 (D.C.Cir.1965) (judge's impartiality might reasonably be questioned; citing Naples); Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 810-11 (9th Cir. 1963) (trial judge abused his discretion by reversing ruling of another district judge; reassignment pursuant to 28 U.S.C. § 2106); Naples v. United States, 307 F.2d 618 (D.C. Cir.1962) (court was critical of trial judge's conduct; citing Calvaresi and Blunt);[6] United States v. Ritter, 273 F.2d 30 (10th Cir. 1959), cert. denied, 362 U.S. 950, 80 S.Ct. 863, 4 L.Ed.2d 869 (1960) (trial judge's impartiality might reasonably be questioned; reassignment pursuant to 28 U.S.C. § 1651 and the court's inherent powers of appellate jurisdiction); Blunt v. United States, 244 F.2d 355, 368 (D.C.Cir.1957)(judge's impartiality might reasonably be questioned; citing Calvaresi).[7]

Even though the reasoning in the preceding cases appears somewhat inconsistent or conclusory, I am persuaded that the court of appeals can effect the reassignment suggested in this case. Moreover, that reassignment is effective as of April 14, 1980, the date of the court's opinion, and I cannot decide the issues still pending before this court as a result of hearings conducted late last fall. As indicated, the court of appeals suggested that the chief judge of this court reassign this case to himself or to another appropriate judge. But a local court rule provides that all cases are to be assigned by blind draw. Rule IV(c), Local Rules of the United States District Court for the Eastern District of Michigan. I believe that the court of appeals' suggestion that this case be assigned to another appropriate judge means a judge assigned pursuant to the local court rule.
In view of the perception voiced by the court of appeals concerning "bitter feelings that have developed," I add this brief comment. Plaintiffs' counsel has never hinted here that I have displayed such an animus, an animus which, in my view, would have compelled me to grant plaintiffs' recusal motion.[8] I took extreme care to determine whether I could preside impartially in this case, even raising issues not contained in plaintiffs' recusal motion. Bradley v. Milliken, 426 F.Supp. 929, 940 (E.D.Mich.1976). I decided that I could, and the court of appeals agreed.
Accordingly, IT IS ORDERED that the Clerk of the Court reassign this case pursuant to the rules of court providing for assignment of cases.
[1] Apparently, the original mandate was not received in this court. We are informed that the Clerk of the Court requested a copy, which he received on June 30, 1980.
[2] The precedent that I refer to concerns only cases where reassignment was not compelled by a clear rule of law, such as the requirement of disqualification for relationships specified in 28 U.S.C. § 455(b) or for trial of criminal contempt involving disrespect to or criticism of a judge, Fed.R.Crim.P. 42(b).
[3] Although I am aware that the sixth circuit does not consider its unpublished opinions to have precedential value, Rule 11, Rules of the United States Court of Appeals for the Sixth Circuit, I cite them here only because they illustrate the sixth circuit's view of its authority to reassign cases on remand.
[4] Apparently, the court in Yagid, having previously said that another judge "should preside over the new trial," was impatient with the district court's reluctance to reassign the case. The court pointedly said:
[W]e emphatically reject the district court's notion that "[s]uch a provision in an appellate opinion . . . does not, nor should it, effect, without more, an automatic reassignment of the case." (Emphasis in original.)
[5] This case was decided before the 1974 amendment to 28 U.S.C. § 455, which broadened the grounds for disqualification, requiring a judge to disqualify himself or herself "in any proceeding in which his impartiality might reasonably be questioned." Thus, the court's action under 28 U.S.C. § 1651 or its "inherent powers of appellate jurisdiction" would now be specifically sanctioned under 28 U.S.C. § 455(a). See, e. g., United States v. Ritter,540 F.2d 459, 464 (10th Cir. 1976), where United States v. Ritter, 273 F.2d 30 (10th Cir. 1959), was discussed and Judge Ritter was disqualified under 28 U.S.C. § 455(a).
[6] Two judges dissented from the en banc decision in Naples considering the reassignment order "a reflection on a distinguished member of the district court whose ability and integrity are well known." In addition, Judge (now Justice) Burger saw no reason to reassign the case.
[7] Only in Calvaresi, 348 U.S. 961, 75 S.Ct. 522, 99 L.Ed. 749 (1955), was there a reassignment without a discernible reason.
[8] In In re Schulman, No. 79-3183 (6th Cir. May 4, 1979), the court of appeals concluded that the trial judge should have recused himself and referred the matter for disposition to another judge because "it is evident from the record that marked personal feelings were present on both sides, and it appears that Schulman's conduct left personal stings, however justified." (Emphasis added.)

 
 338 F.Supp. 582 (1971)
Ronald BRADLEY et al., Plaintiffs, v.
William G. MILLIKEN et al., Defendants, DETROIT FEDERATION OF TEACHERS, LOCAL #231, American
Federation of Teachers, AFL-CIO, Defendant-Intervenor, and
Denise Magdowski et al., Defendants-Intervenors.
Civ. A. No. 35257.
United States District Court, E. D. Michigan, S. D.
September 27, 1971.
583*583 Louis R. Lucas, William E. Caldwell, Ratner, Sugarmon & Lucas, Memphis, Tenn., J. Harold Flannery, Paul R. Dimond, Robert Pressman, Cambridge, Mass., Jack Greenberg, Norman J. Chachkin, New York City, E. Winther McCroom, Cincinnati, Ohio, Nathaniel R. Jones, General Counsel, N.A.A.C.P., New York City, for plaintiffs.
Eugene Krasicky, Asst. Atty. Gen., State of Mich., Lansing, Mich., for Frank J. Kelley, Atty. Gen. of Mich.
George E. Bushnell, Jr.,[*] Miller, Canfield, Paddock & Stone, Detroit, Mich., for Detroit Bd. of Ed.
Theodore Sachs, Rothe, Marston, Mazey, Sachs & O'Connell, P. C., Detroit, Mich., for defendantintervenor Detroit Federation of Teachers, etc.
Alexander B. Ritchie, Fenton, Nederlander, Dodge & Barris, P. C., Detroit, 584*584 Mich., for defendants-intervenors Magdowski and others.
RULING ON ISSUE OF SEGREGATION
ROTH, District Judge.
This action was commenced August 18, 1970, by plaintiffs, the Detroit Branch of the National Association for the Advancement of Colored People[1] and individual parents and students, on behalf of a class later defined by order of the Court dated February 16, 1971, to include "all school children of the City of Detroit and all Detroit resident parents who have children of school age." Defendants are the Board of Education of the City of Detroit, its members and its former superintendent of schools, Dr. Norman A. Drachler, the Governor, Attorney General, State Board of Education and State Superintendent of Public Instruction of the State of Michigan. In their complaint, plaintiffs

attacked a statute of the State of Michigan known as Act 48 of the 1970 Legislature on the ground that it put the State of Michigan in the position of unconstitutionally interfering with the execution and operation of a voluntary plan of partial high school desegregation (known as the April 7, 1970 Plan) which had been adopted by the Detroit Board of Education to be effective beginning with the fall 1970 semester. Plaintiffs also alleged that the Detroit Public School System was and is segregated on the basis of race as a result of the official policies and actions of the defendants and their predecessors in office.
Additional parties have intervened in the litigation since it was commenced. The Detroit Federation of Teachers (DFT) which represents a majority of Detroit Public school teachers in collective bargaining negotiations with the defendant Board of Education, has intervened as a defendant, and a group of parents has intervened as defendants.
Initially the matter was tried on plaintiffs' motion for preliminary injunction to restrain the enforcement of Act 48 so as to permit the April 7 Plan to be implemented. On that issue, this Court ruled that plaintiffs were not entitled to a preliminary injunction since there had been no proof that Detroit has a segregated school system. The Court of Appeals found that the "implementation of the April 7 Plan was thwarted by State action in the form of the Act of the Legislature of Michigan," (433 F.2d 897, 902), and that such action could not be interposed to delay, obstruct or nullify steps lawfully taken for the purpose of protecting rights guaranteed by the Fourteenth Amendment.
The plaintiffs then sought to have this Court direct the defendant Detroit Board to implement the April 7 Plan by the start of the second semester (February, 1971) in order to remedy the deprivation of constitutional rights wrought by the unconstitutional statute. In response to an order of the Court, defendant Board suggested two other plans, along with the April 7 Plan, and noted priorities, with top priority assigned to the so-called "Magnet Plan." The Court acceded to the wishes of the Board and approved the Magnet Plan. Again, plaintiffs appealed but the appellate court refused to pass on the merits of the plan. Instead, the case was remanded with instructions to proceed immediately to a trial on the merits of plaintiffs' substantive allegations about the Detroit School System. 438 F.2d 945 (6th Cir. 1971).
Trial, limited to the issue of segregation, began April 6, 1971 and concluded on July 22, 1971, consuming 41 trial days, interspersed by several brief recesses necessitated by other demands upon the time of Court and counsel. Plaintiffs introduced substantial evidence in support of their contentions, including expert and factual testimony, demonstrative exhibits and school board documents. At the close of plaintiffs' case, in chief, 585*585 the Court ruled that they had presented a prima facie case of state imposed segregation in the Detroit Public Schools; accordingly, the Court enjoined (with certain exceptions) all further school construction in Detroit pending the outcome of the litigation.
The State defendants urged motions to dismiss as to them. These were denied by the Court.
At the close of proofs intervening parent defendants (Denise Magdowski, et al.) filed a motion to join, as parties 85 contiguous "suburban" school districts — all within the so-called Larger Detroit Metropolitan area. This motion was taken under advisement pending the determination of the issue of segregation.
It should be noted that, in accordance with earlier rulings of the Court, proofs submitted at previous hearings in the cause, were to be and are considered as part of the proofs of the hearing on the merits.

In considering the present racial complexion of the City of Detroit and its public school system we must first look to the past and view in perspective what has happened in the last half century. In 1920 Detroit was a predominantly white city — 91% — and its population younger than in more recent times. By the year 1960 the largest segment of the city's white population was in the age range of 35 to 50 years, while its black population was younger and of childbearing age. The population of 0-15 years of age constituted 30% of the total population of which 60% were white and 40% were black. In 1970 the white population was principally aging — 45 years — while the black population was younger and of childbearing age. Childbearing blacks equaled or exceeded the total white population. As older white families without children of school age leave the city they are replaced by younger black families with school age children, resulting in a doubling of enrollment in the local neighborhood school and a complete change in student population from white to black. As black inner city residents move out of the core city they "leap-frog" the residential areas nearest their former homes and move to areas recently occupied by whites.

The population of the City of Detroit reached its highest point in 1950 and has been declining by approximately 169,500 per decade since then. In 1950, the city population constituted 61% of the total population of the standard metropolitan area and in 1970 it was but 36% of the metropolitan area population. The suburban population has increased by 1,978,000 since 1940. There has been a steady out-migration of the Detroit population since 1940. Detroit today is principally a conglomerate of poor black and white plus the aged. Of the aged, 80% are white.

If the population trends evidenced in the federal decennial census for the years 1940 through 1970 continue, the total black population in the City of Detroit in 1980 will be approximately 840,000, or 53.6% of the total. The total population of the city in 1970 is 1,511,000 and, if past trends continue, will be 1,338,000 in 1980. In school year 1960-61, there were 285,512 students in the Detroit Public Schools of which 130,765 were black. In school year 1966-67, there were 297,035 students, of which 168,299 were black. In school year 1970-71 there were 289,743 students of which 184,194 were black. The percentage of black students in the Detroit Public Schools in 1975-76 will be 72.0%, in 1980-81 will be 80.7% and in 1992 it will be virtually 100% if the present trends continue. In 1960, the non-white population, ages 0 years to 19 years, was as follows:

0 - 4 years

42%

5 - 9 years

36%

10 - 14 years

28%

15 - 19 years

18%

In 1970 the non-white population, ages 0 years to 19 years, was as follows:

0 - 4 years

48%

5 - 9 years

50%

10 - 14 years

50%

15 - 19 years

40%

586*586 The black population as a percentage of the total population in the City of Detroit was:

(a) 1900 (b) 1910 (c) 1920 (d) 1930 (e) 1940 (f) 1950 (g) 1960 (h) 1970

1.4% 1.2% 4.1% 7.7% 9.2% 16.2% 28.9% 43.9%

The black population as a percentage of total student population of the Detroit Public Schools was as follows:

(a) 1961 (b) 1963 (c) 1964 (d) 1965 (e) 1966 (f) 1967 (g) 1968 (h) 1969 (i) 1970

45.8% 51.3% 53.0% 54.8% 56.7% 58.2% 59.4% 61.5% 63.8%

For the years indicated the housing characteristics in the City of Detroit were as follows:

(a) 1960 (b) 1970

total supply of housing units was 553,000
total supply of housing units was 530,770

The percentage decline in the white students in the Detroit Public Schools during the period 19611970 (53.6% in 1960; 34.8% in 1970) has been greater than the percentage decline in the white population in the City of Detroit during the same period (70.8% in 1960; 55.21% in 1970), and correlatively, the percentage increase in black students in the Detroit Public Schools during the nineyear period 1961-1970 (45.8% in 1961; 63.8% in 1970) has been greater than the percentage increase in the black population of the City of Detroit during the ten-year period 1960-1970 (28.9% in 1960; 43.9% in 1970). In 1961 there were eight schools in the system without white pupils and 73 schools with no Negro pupils. In 1970 there were 30 schools with no white pupils and 11 schools with no Negro pupils, an increase in the number of schools without white pupils of 22 and a decrease in the number of schools without Negro pupils of 62 in this ten-year period. Between 1968 and 1970 Detroit experienced the largest increase in percentage of black students in the student population of any major northern school district. The percentage increase in Detroit was 4.7% as contrasted with —

New York Los Angeles Chicago Philadelphia Cleveland Milwaukee St. Louis Columbus Indianapolis Denver Boston San Francisco Seattle

2.0% 1.5% 1.9% 1.7% 1.7% 2.6% 2.6% 1.4% 2.6% 1.1% 3.2% 1.5% 2.4%

In 1960, there were 266 schools in the Detroit School System. In 1970, there were 319 schools in the Detroit School System.

In the Western, Northwestern, Northern, Murray, Northeastern, Kettering, King and Southeastern high school service areas, the following conditions exist at a level significantly higher than the city average:
(a) Poverty in children (b) Family income below poverty level (c) Rate of homicides per population (d) Number of households headed by females (e) Infant mortality rate (f) Surviving infants with neurological defects (g) Tuberculosis cases per 1,000 population (h) High pupil turnover in schools
The City of Detroit is a community generally divided by racial lines. Residential segregation within the city 587*587 and throughout the larger metropolitan area is substantial, pervasive and of long standing. Black citizens are located in separate and distinct areas within the city and are not generally to be found in the suburbs. While the racially unrestricted choice of black persons and economic factors may have played some part in the development of this pattern of residential segregation, it is, in the main, the result of past and present practices and customs of racial discrimination, both public and private, which have and do restrict the housing opportunities of black people. On the record there can be no other finding.
Governmental actions and inaction at all levels, federal, state and local, have combined, with those of private organizations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of residential segregation throughout the Detroit metropolitan area. It is no answer to say that restricted practices grew gradually (as the black population in the area increased between 1920 and 1970), or that since 1948 racial restrictions on the ownership of real property have been removed. The policies pursued by both government and private persons and agencies have a continuing and present effect upon the complexion of the community — as we know, the choice of a residence is a relatively infrequent affair. For many years FHA and VA openly advised and advocated the maintenance of "harmonious" neighborhoods, i. e., racially and economically harmonious. The conditions created continue. While it would be unfair to charge the present defendants with what other governmental officers or agencies have done, it can be said that the actions or the failure to act by the responsible school authorities, both city and state, were linked to that of these other governmental units. When we speak of governmental action we should not view the different agencies as a collection of unrelated units. Perhaps the most that can be said is that all of them, including the school authorities, are, in part, responsible for the segregated condition which exists. And we note that just as there is an interaction between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential pattern by the racial composition of the schools.
Turning now to the specific and pertinent (for our purposes) history of the Detroit school system so far as it involves both the local school authorities and the state school authorities, we find the following:
During the decade beginning in 1950 the Board created and maintained optional attendance zones in neighborhoods undergoing racial transition and between high school attendance areas of opposite predominant racial compositions. In 1959 there were eight basic optional attendance areas affecting 21 schools. Optional attendance areas provided pupils living within certain elementary areas a choice of attendance at one of two high schools. In addition there was at least one optional area either created or existing in 1960 between two junior high schools of opposite predominant racial components. All of the high school optional areas, except two, were in neighborhoods undergoing

racial transition (from white to black) during the 1950s. The two exceptions were: (1) the option between Southwestern (61.6% black in 1960) and Western (15.3% black); (2) the option between Denby (0% black) and Southeastern (30.9% black). With the exception of the Denby-Southeastern option (just noted) all of the options were between high schools of opposite predominant racial compositions. The Southwestern-Western and Denby-Southeastern optional areas are all white on the 1950, 1960 and 1970 census maps. Both Southwestern and Southeastern, however, had substantial white pupil populations, and the option allowed whites to escape integration. The natural, probable, foreseeable and actual effect of these optional zones was to allow white youngsters to escape identifiably "black" schools. There had also been an optional zone (eliminated between 1956 588*588 and 1959) created in "an attempt . . to separate Jews and Gentiles within the system," the effect of which was that Jewish youngsters went to Mumford High School and Gentile youngsters went to Cooley. Although many of these optional areas had served their purpose by 1960 due to the fact that most of the areas had become predominantly black, one optional area (SouthwesternWestern affecting Wilson Junior High graduates) continued until the present school year (and will continue to effect 11th and 12th grade white youngsters who elected to escape from predominantly black Southwestern to predominantly white Western High School). Mr. Henrickson, the Board's general fact witness, who was employed in 1959 to, inter alia,eliminate optional areas, noted in 1967 that: "In operation Western appears to be still the school to which white students escape from predominantly Negro surrounding schools." The effect of eliminating this optional area (which affected only 10th graders for the 1970-71 school year) was to decrease Southwestern from 86.7% black in 1969 to 74.3% black in 1970.
The Board, in the operation of its transportation to relieve overcrowding policy, has admittedly bused black pupils past or away from closer white schools with available space to black schools. This practice has continued in several instances in recent years despite the Board's avowed policy, adopted in 1967, to utilize transportation to increase integration.
With one exception (necessitated by the burning of a white school), defendant Board has never bused white children to predominantly black schools. The Board has not bused white pupils to black schools despite the enormous amount of space available in inner-city schools. There were 22,961 vacant seats in schools 90% or more black.
The Board has created and altered attendance zones, maintained and altered grade structures and created and altered feeder school patterns in a manner which has had the natural, probable and actual effect of continuing black and white pupils in racially segregated schools. The Board admits at least one instance where it purposefully and intentionally built and maintained a school and its attendance zone to contain black students. Throughout the last decade (and presently) school attendance zones of opposite racial compositions have been separated by north-south boundary lines, despite the Board's awareness (since at least 1962) that drawing boundary lines in an eastwest direction would result in significant integration. The natural and actual effect of these acts and failures to act has been the creation and perpetuation of school segregation. There has never been a feeder pattern or zoning change which placed a predominantly white residential area into a predominantly black school zone or feeder pattern. Every school which was 90% or more black in 1960, and which is still in use today, remains 90% or more black. Whereas 65.8% of Detroit's black students attended 90% or more black schools in 1960, 74.9% of the black students attended 90% or more black schools during the 1970-71 school year.
The public schools operated by defendant Board are thus segregated on a racial basis. This racial segregation is in part the result of the discriminatory acts and omissions of defendant Board.
In 1966 the defendant State Board of Education and Michigan Civil Rights Commission issued a Joint Policy Statement on Equality of Educational Opportunity, requiring that

"Local school boards must consider the factor of racial balance along with other educational considerations in making decisions about selection of new school sites, expansion of present facilities. . . . Each of these situations presents an opportunity for integration."
Defendant State Board's "School Plant Planning Handbook" requires that
"Care in site locations must be taken if a serious transportation problem exists or if housing patterns in an area would result in a school largely segregated on racial, ethnic, or socio-economic lines." 589*589 The defendant City Board has paid little heed to these statements and guidelines. The State defendants have similarly failed to take any action to effectuate these policies. Exhibit NN reflects construction (new or additional) at 14 schools which opened for use in 1970-71; of these 14 schools, 11 opened over 90% black and one opened less than 10% black. School construction costing $9,222,000 is opening at Northwestern High School which is 99.9% black, and new construction opens at Brooks Junior High, which is 1.5% black, at a cost of $2,500,000. The construction at Brooks Junior High plays a dual segregatory role: not only is the construction segregated, it will result in a feeder pattern change which will remove the last majority white school from the already almost all-black Mackenzie High School attendance area.
Since 1959 the Board has constructed at least 13 small primary schools with capacities of from 300 to 400 pupils. This practice negates opportunities to integrate, "contains" the black population and perpetuates and compounds school segregation.
The State and its agencies, in addition to their general responsibility for and supervision of public education, have acted directly to control and maintain the pattern of segregation in the Detroit schools. The State refused, until this session of the legislature, to provide authorization or funds for the transportation of pupils within Detroit regardless of their poverty or distance from the school to which they were assigned, while providing in many neighboring, mostly white, suburban districts the full range of state supported transportation. This and other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities.
The State, exercising what Michigan courts have held to be is "plenary power" which includes power "to use a statutory scheme, to create, alter, reorganize or even dissolve a school district, despite any desire of the school district, its board, or the inhabitants thereof," acted to reorganize the school district of the City of Detroit.
The State acted through Act 48 to impede, delay and minimize racial integration in Detroit schools. The first sentence of Sec. 12 of the Act was directly related to the April 7, 1970 desegregation plan. The remainder of the section sought to prescribe for each school in the eight districts criterion of "free choice" (open enrollment) and "neighborhood schools" ("nearest school priority acceptance"), which had as their purpose and effect the maintenance of segregation.
In view of our findings of fact already noted we think it unnecessary to parse in detail the activities of the local board and the state authorities in the area of school construction and the furnishing of school facilities. It is our conclusion that these activities were in keeping, generally, with the discriminatory practices which advanced or perpetuated racial segregation in these schools.
It would be unfair for us not to recognize the many fine steps the Board has taken to advance the cause of quality education for all in terms of racial integration and human relations. The most obvious of these is in the field of faculty integration.

Plaintiffs urge the Court to consider allegedly discriminatory practices of the Board with respect to the hiring, assignment and transfer of teachers and school administrators during a period reaching back more than 15 years. The short answer to that must be that black teachers and school administrative personnel were not readily available in that period. The Board and the intervening defendant union have followed a most advanced and exemplary course in adopting and carrying out what is called the "balanced staff concept" — which seeks to balance faculties in each school with respect to race, sex and experience, with primary 590*590 emphasis on race. More particularly, we find:
1. With the exception of affirmative policies designed to achieve racial balance in instructional staff, no teacher in the Detroit Public Schools is hired, promoted or assigned to any school by reason of his race.
2. In 1956, the Detroit Board of Education adopted the rules and regulations of the Fair Employment Practices Act as its hiring and promotion policy and has adhered to this policy to date.
3. The Board has actively and affirmatively sought out and hired minority employees, particularly teachers and administrators, during the past decade.
4. Between 1960 and 1970, the Detroit Board of Education has increased black representation among its teachers from 23.3% to 42.1%, and among its administrators from 4.5% to 37.8%.
5. Detroit has a higher proportion of black administrators than any other city in the country.
6. Detroit ranked second to Cleveland in 1968 among the 20 largest northern city school districts in the percentage of blacks among the teaching faculty and in 1970 surpassed Cleveland by several percentage points.
7. The Detroit Board of Education currently employs black teachers in a greater percentage than the percentage of adult black persons in the City of Detroit.
8. Since 1967, more blacks than whites have been placed in high administrative posts with the Detroit Board of Education.
9. The allegation that the Board assigns black teachers to black schools is not supported by the record.
10. Teacher transfers are not granted in the Detroit Public Schools unless they conform with the balanced staff concept.
11. Between 1960 and 1970, the Detroit Board of Education reduced the percentage of schools without black faculty from 36.3% to 1.2%, and of the four schools currently without black faculty, three are specialized trade schools where minority faculty cannot easily be secured.
12. In 1968, of the 20 largest northern city school districts, Detroit ranked fourth in the percentage of schools having one or more black teachers and third in the percentage of schools having three or more black teachers.
13. In 1970, the Board held open 240 positions in schools with less than 25% black, rejecting white applicants for these positions until qualified black applicants could be found and assigned.

14. In recent years, the Board has come under pressure from large segments of the black community to assign male black administrators to predominantly black schools to serve as male role models for students, but such assignments have been made only where consistent with the balanced staff concept.
15. The numbers and percentages of black teachers in Detroit increased from 2,275 and 21.6%, respectively, in February, 1961, to 5,106 and 41.6%, respectively, in October, 1970.
16. The number of schools by percent black of staffs changed from October, 1963 to October, 1970 as follows:
Number of schools without black teachers — decreased from 41, to 4. Number of schools with more than 0%, but less than 10% black teachers — decreased from 58, to 8. Total number of schools with less than 10% black teachers — decreased from 99, to 12. Number of schools with 50% or more black teachers — increased from 72, to 124.
17. The number of schools by percent black of staffs changed from October, 1969 to October, 1970, as follows:
Number of schools without black teachers — decreased from 6, to 4. Number of schools with more than 0%, but less than 10% black teachers — decreased from 41, to 8. 591*591 Total number of schools with less than 10% black teachers — decreased from 47, to 12. Number of schools with 50% or more black teachers — increased from 120, to 124.
18. The total number of transfers necessary to achieve a faculty racial quota in each school corresponding to the system-wide ratio, and ignoring all other elements is, as of 1970, 1,826.
19. If account is taken of other elements necessary to assure quality integrated education, including qualifications to teach the subject area and grade level, balance of experience, and balance of sex, and further account is taken of the uneven distribution of black teachers by subject taught and sex, the total number of transfers which would be necessary to achieve a faculty racial quota in each school corresponding to the system-wide ratio, if attainable at all, would be infinitely greater.
20. Balancing of staff by qualifications for subject and grade level, then by race, experience and sex, is educationally desirable and important.
21. It is important for students to have a successful role model, especially black students in certain schools, and at certain grade levels.
22. A quota of racial balance for faculty in each school which is equivalent to the system-wide ratio and without more is educationally undesirable and arbitrary.
23. A severe teacher shortage in the 1950s and 1960s impeded integration-of-faculty opportunities.
24. Disadvantageous teaching conditions in Detroit in the 1960s — salaries, pupil mobility and transiency, class size, building conditions, distance from teacher residence, shortage of teacher substitutes, etc. — made teacher recruitment and placement difficult.
25. The Board did not segregate faculty by race, but rather attempted to fill vacancies with certified and qualified teachers who would take offered assignments.

26. Teacher seniority in the Detroit system, although measured by system-wide service, has been applied consistently to protect against involuntary transfers and "bumping" in given schools.
27. Involuntary transfers of teachers have occurred only because of unsatisfactory ratings or because of decrease of teacher services in a school, and then only in accordance with balanced staff concept.
28. There is no evidence in the record that Detroit teacher seniority rights had other than equitable purpose or effect.
29. Substantial racial integration of staff can be achieved, without disruption of seniority and stable teaching relationships, by application of the balanced staff concept to naturally occurring vacancies and increases and reductions of teacher services.
30. The Detroit Board of Education has entered into successive collective bargaining contracts with the Detroit Federation of Teachers, which contracts have included provisions promoting integration of staff and students.
The Detroit School Board has, in many other instances and in many other respects, undertaken to lessen the impact of the forces of segregation and attempted to advance the cause of integration. Perhaps the most obvious one was the adoption of the April 7 Plan. Among other things, it has denied the use of its facilities to groups which practice racial discrimination; it does not permit the use of its facilities for discriminatory apprentice training programs; it has opposed state legislation which would have the effect of segregating the district; it has worked to place black students in craft positions in industry and the building trades; it has brought about a substantial increase in the percentage of black students in manufacturing and construction trade apprenticeship classes; it became the first public agency in Michigan to adopt and implement a policy requiring affirmative act of contractors with which it deals to insure equal employment opportunities in their work forces; it has been a leader in pioneering 592*592 the use of multi-ethnic instructional material, and in so doing has had an impact on publishers specializing in producing school texts and instructional materials; and it has taken other noteworthy pioneering steps to advance relations between the white and black races.
In conclusion, however, we find that both the State of Michigan and the Detroit Board of Education have committed acts which have been causal factors in the segregated condition of the public schools of the City of Detroit. As we assay the principles essential to a finding of de jure segregation, as outlined in rulings of the United States Supreme Court, they are:
1. The State, through its officers and agencies, and usually, the school administration, must have taken some action or actions with a purpose of segregation.
2. This action or these actions must have created or aggravated segregation in the schools in question.
3. A current condition of segregation exists.
We find these tests to have been met in this case. We recognize that causation in the case before us is both several and comparative. The principal causes undeniably have been population movement and housing patterns, but state and local governmental actions, including school board actions, have played a substantial role in promoting segregation. It is, the Court believes, unfortunate that we cannot deal with public school segregation on a no-fault basis, for if racial segregation in our public schools is an evil, then it should make no difference whether we classify it de jure or de facto. Our

objective, logically, it seems to us, should be to remedy a condition which we believe needs correction. In the most realistic sense, if fault or blame must be found it is that of the community as a whole, including, of course, the black components. We need not minimize the effect of the actions of federal, state and local governmental officers and agencies, and the actions of loaning institutions and real estate firms, in the establishment and maintenance of segregated residential patterns — which lead to school segregation — to observe that blacks, like ethnic groups in the past, have tended to separate from the larger group and associate together. The ghetto is at once both a place of confinement and a refuge. There is enough blame for everyone to share.
CONCLUSIONS OF LAW
1. This Court has jurisdiction of the parties and the subject matter of this action under 28 U.S.C. §§ 1331(a), 1343 (3) and (4), 2201 and 2202; 42 U.S.C. §§ 1983, 1988, and 2000d.
2. In considering the evidence and in applying legal standards it is not necessary that the Court find that the policies and practices, which it has found to be discriminatory, have as their motivating forces any evil intent or motive. Keyes v. Sch. Dist. #1, Denver, D.C., 303 F.Supp. 279. Motive, ill will and bad faith have long ago been rejected as a requirement to invoke the protection of the Fourteenth Amendment against racial discrimination. Sims v. Georgia, 389 U.S. 404, 407-408, 88 S.Ct. 523, 19 L.Ed.2d 634.
3. School districts are accountable for the natural, probable and foreseeable consequences of their policies and practices, and where racially identifiable schools are the result of such policies, the school authorities bear the burden of showing that such policies are based on educationally required, non-racial considerations. Keyes v. Sch. Dist., supra, and Davis v. Sch. Dist. of Pontiac, D.C., 309 F.Supp. 734, and 6 Cir., 443 F.2d 573.
4. In determining whether a constitutional violation has occurred, proof that a pattern of racially segregated schools has existed for a considerable period of time amounts to a showing of racial classification by the state and its agencies, which must be justified by clear and convincing evidence. State of Alabama v. United States, 5 Cir., 304 F. 2d 583.
5. The Board's practice of shaping school attendance zones on a 593*593 north-south rather than an east-west orientation, with the result that zone boundaries conformed to racial residential dividing lines, violated the Fourteenth Amendment. Northcross v. Bd. of Ed. of Memphis, 6 Cir., 333 F.2d 661.
6. Pupil racial segregation in the Detroit Public School System and the residential racial segregation resulting primarily from public and private racial discrimination are interdependent phenomena. The affirmative obligation of the defendant Board has been and is to adopt and implement pupil assignment practices and policies that compensate for and avoid incorporation into the school system the effects of residential racial segregation. The Board's building upon housing segregation violates the Fourteenth Amendment. See, Davis v. Sch. Dist. of Pontiac, supra, and authorities there noted.
7. The Board's policy of selective optional attendance zones, to the extent that it facilitated the separation of pupils on the basis of race, was in violation of the Fourteenth Amendment. Hobson v. Hansen, D.C., 269 F.Supp. 401, aff'd sub nom., Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175.

8. The practice of the Board of transporting black students from over-crowded black schools to other identifiably black schools, while passing closer identifiably white schools, which could have accepted these pupils, amounted to an act of segregation by the school authorities. Spangler v. Pasadena City Bd. of Ed., D.C., 311 F.Supp. 501.
9. The manner in which the Board formulated and modified attendance zones for elementary schools had the natural and predictable effect of perpetuating racial segregation of students. Such conduct is an act of de jure discrimination in violation of the Fourteenth Amendment. United States v. School District 151, D.C., 286 F.Supp. 786; Brewer v. School Board of City of Norfolk, 4 Cir., 397 F.2d 37.
10. A school board may not, consistent with the Fourteenth Amendment, maintain segregated elementary schools or permit educational choices to be influenced by community sentiment or the wishes of a majority of voters. Cooper v. Aaron, 358 U.S. 1, 12-13, 15-16, 78 S.Ct. 1401, 3 L.Ed.2d 5.
"A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be." Lucas v. 44th Gen'l Assembly of Colorado, 377 U.S. 713, 736-737, 84 S.Ct. 1459, 1474, 12 L.Ed.2d 632.
11. Under the Constitution of the United States and the constitution and laws of the State of Michigan, the responsibility for providing educational opportunity to all children on constitutional terms is ultimately that of the state. Turner v. Warren County Board of Education, D.C., 313 F.Supp. 380; Art. VIII, §§ 1 and 2, Mich. Constitution; Daszkiewicz v. Detroit Bd. of Ed. of City of Detroit, 301 Mich. 212, 3 N.W.2d 71.
12. That a state's form of government may delegate the power of daily administration of public schools to officials with less than state-wide jurisdiction does not dispel the obligation of those who have broader control to use the authority they have consistently with the constitution. In such instances the constitutional obligation toward the individual school children is a shared one. Bradley v. Sch. Bd. of City of Richmond, D.C., 51 F.R.D. 139, 143.
13. Leadership and general supervision over all public education is vested in the State Board of Education. Art. VIII, § 3, Mich. Constitution of 1963. The duties of the State Board and superintendent include, but are not limited to, specifying the number of hours necessary to constitute a school day; approval until 1962 of school sites; approval of school construction plans; accreditation of schools; approval of loans based on state aid funds; review of suspensions and expulsions of individual students for misconduct [Op.Atty.Gen., July 7, 1970, No. 4705]; authority over transportation routes and disbursement of transportation funds; teacher certification 594*594 and the like. M.S.A. 15.1023(1), M.C.L.A. § 388.1001. State law provides review procedures from actions of local or intermediate districts (see M.S.A. 15.3442, M.C.L.A. § 340.442), with authority in the State Board to ratify, reject, amend or modify the actions of these inferior state agencies. See M.S.A. 15.3467; 15.1919(61); 15.1919 (68b); 15.2299(1); 15.1961, 15.3402, M.C.L.A. §§ 340.467, 388.621, 388.628(a), 388.681, 388.851, 340.402; Bridgehampton School District No. 2 Fractional of Carsonville, Mich. v. Supt. of Public Instruction, 323 Mich. 615, 36 N.W.2d 166. In general, the state superintendent is given the duty "[t]o do all things necessary to promote the welfare of the public schools and public educational instructions and provide proper educational facilities for the youth of the state." M.S.A. 15.3252, M.C.L.A. § 340.252. See also M.S.A. 15.2299(57), M.C.L.A. § 388.717, providing in certain instances for reorganization of school districts.
14. State officials, including all of the defendants, are charged under the Michigan constitution with the duty of providing pupils an education without discrimination with respect to race. Art. VIII, § 2, Mich.Constitution of 1963. Art. I, § 2, of the constitution provides:

"No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation."
15. The State Department of Education has recently established an Equal Educational Opportunities section having responsibility to identify racially imbalanced school districts and develop desegregation plans. M.S.A. 15.3355, M.C. L.A. § 340.355, provides that no school or department shall be kept for any person or persons on account of race or color.
16. The state further provides special funds to local districts for compensatory education which are administered on a per school basis under direct review of the State Board. All other state aid is subject to fiscal review and accounting by the state. M.S.A. 15.1919. See also M.S.A. 15.1919(68b), providing for special supplements to merged districts "for the purpose of bringing about uniformity of educational opportunity for all the pupils of the district." The general consolidation law M.S.A. 15.3401, M.C. L.A. § 340.401 authorizes annexation for even noncontiguous school districts upon approval of the superintendent of public instruction and electors, as provided by law. Op.Atty.Gen., Feb. 5, 1964, No. 4193. Consolidation with respect to so-called "first class" districts, i. e.,Detroit, is generally treated as an annexation with the first class district being the surviving entity. The law provides procedures covering all necessary considerations. M.S.A. 15.3184, 15.3186, M.C.L.A. §§ 340.184, 340.186.
17. Where a pattern of violation of constitutional rights is established the affirmative obligation under the Fourteenth Amendment is imposed on not only individual school districts, but upon the State defendants in this case. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed. 2d 5; Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256; U. S. v. State of Georgia, Civ. No. 12972 (N.D. Ga., December 17, 1970), rev'd on other grounds, 5 Cir., 428 F.2d 377; Godwin v. Johnston County Board of Education, D.C., 301 F.Supp. 1339; Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.), aff'd sub. nom., Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422; Franklin v. Quitman County Board of Education, D.C., 288 F.Supp. 509; Smith v. North Carolina State Board of Education, 444 F.2d 6 (4th Cir., 1971).
The foregoing constitutes our findings of fact and conclusions of law on the issue of segregation in the public schools of the City of Detroit.
Having found a de jure segregated public school system in operation in the City of Detroit, our first step, in considering what judicial remedial steps 595*595 must be taken, is the consideration of intervening parent defendants' motion to add as parties defendant a great number of Michigan school districts located out county in Wayne County, and in Macomb and Oakland Counties, on the principal premise or ground that effective relief cannot be achieved or ordered in their absence. Plaintiffs have opposed the motion to join the additional school districts, arguing that the presence of the State defendants is sufficient and all that is required, even if, in shaping a remedy, the affairs of these other districts will be affected.
In considering the motion to add the listed school districts we pause to note that the proposed action has to do with relief. Having determined that the circumstances of the case require judicial intervention and equitable relief, it would be improper for us to act on this motion until the other parties to the action have had an opportunity to submit their proposals for desegregation. Accordingly, we shall not rule on the motion to add parties at this time. Considered as a plan for desegregation the motion is lacking in specificity and is framed in the broadest general terms. The moving party may wish to amend its proposal and resubmit it as a comprehensive plan of desegregation.

[*] Mr. Bushnell was replaced 12-6-71 by George Roumell, Jr., and Louis D. Beer, Riley & Roumell, Detroit, Mich. A substitution of attorneys for the Detroit Board of Education was formally entered on that date.
[1] The standing of the NAACP as a proper party plaintiff was not contested by the original defendants and the Court expresses no opinion on the matter.

 
 484 F.2d 215 (1973)
Ronald BRADLEY et al., Plaintiffs-Appellees, v.
William G. MILLIKEN, Governor of Michigan, etc.; Board of Education of the City of Detroit, Defendants-Appellants, and
Detroit Federation of Teachers Local 231, American Federation of Teachers, AFL-CIO, Defendant-Intervenor-Appellee, and
Allen Park Public Schools et al., Defendants-Intervenors-Appellants, and Kerry Green et al., Defendants-Intervenors-Appellees.
Nos. 72-1809-72-1814.
United States Court of Appeals, Sixth Circuit.
June 12, 1973. Certiorari Granted November 19, 1973.
216*216 217*217 Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., George T. Roumell, Jr., Louis D. Beer, Russ D. Boltz, William M. Saxton, Detroit, Mich., Robert J. Lord, Fair Haven, Mich., for appellants.
Ralph B. Guy, Jr., U. S. Atty., David L. Norman, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for intervenor, United States.
Richard P. Condit, Bloomfield Hills, Mich., for intervenor, Southfield Public Schools.
Alexander B. Ritchie, Detroit, Mich., for intervenor, Denise Magdowski, and others.
Theodore Sachs, Ronald R. Helveston, Detroit, Mich., for intervenor, Detroit Federation.
William M. Saxton, John B. Weaver, Robert M. Vercruysse, X. Orhan, Detroit, Mich., for intervenor, Allen Park Public Schools.
Douglas H. West, Robert B. Webster, Detroit, Mich., for intervenor, Grosse Pointe Public Schools.
Kenneth B. McConnell, Bloomfield Hills, Mich., for intervenor, School District of City of Royal Oak.
William T. Downs, Detroit, Mich., for Inter-Faith Centers for Racial Justice, Inc., amicus curiae.
Theodore W. Swift, Foster, Lindemer, Swift & Collins, Lansing, Mich., Irwin Ellman Levin, Levin, Garvett, & Dill, Detroit, Mich., for intervenor, Michigan Education Assn.

Louis R. Lucas, William E. Caldwell, Ratner, Sugarmon & Lucas, Memphis, Tenn., J. Harold Flannery, Paul R. Dimond, Robert Pressman, Cambridge, Mass., Bruce A. Miller, Lucille Watts, Detroit, Mich., Jack Greenberg, Norman J. Chachkin, New York City, E. Winther McCroom, Cincinnati, Ohio, Nathaniel R. Jones, New York City, for appellees.
Before PHILLIPS, Chief Judge, and WEICK, EDWARDS, CELEBREZZE, PECK, McCREE, MILLER, KENT and LIVELY, Circuit Judges.
Certiorari Granted November 19, 1973. See 94 S.Ct. 538.
PHILLIPS, Chief Judge, delivered the opinion of the Court, in which EDWARDS, CELEBREZZE, PECK, McCREE and LIVELY, Circuit Judges, joined. WEICK, Circuit Judge (pp. 259-274) and MILLER, Circuit Judge (pp. 283, 284) filed dissenting opinions and KENT, Circuit Judge (pp. 274283) filed a separate opinion concurring in part and dissenting in part. Circuit Judge KENT died May 28, 1973 after the opinions were in the hands of the printer.
PHILLIPS, Chief Judge.
This is a school desegregation case which, as originally filed, was directed against the school system of Detroit, Michigan, but on this appeal involves both Detroit and school districts located in the surrounding metropolitan area.
The present appeal is the fourth time that the case has been before this court since the complaint was filed August 18, 1970. The earlier decisions of this court are reported at Bradley v. Milliken, 433 F.2d 897 (6 Cir. 1970); Bradley v. Milliken, 438 F.2d 945 (6 Cir. 1971); and Bradley v. Milliken, 6 Cir., 468 F.2d 902. cert. denied, 409 U.S. 844, 93 S.Ct. 45, 34 L.Ed.2d 83 (1972). (On November 27, 1972, the original panel dismissed for want of jurisdiction an "emergency motion" by the Detroit Board of Education that State officials be required to provide funds to keep the Detroit public schools operating for 180 regular days of instruction during the current school year.) On February 27, 1973, the Supreme Court denied review in Bloomfield Hills School District v. Roth, West Bloomfield School District v. Roth, and Birmingham School District v. Roth, 410 U.S. 954, 93 S.Ct. 1418, 35 L.Ed. 2d 687. In these cases this court had denied applications for writs of mandamus or prohibition against District Judge Roth. The School Districts contended that the District Judge usurped 218*218 jurisdiction by failing to convene three-judge courts and by subjecting the Schools Districts to his ruling and order in the school desegregation case in spite of the fact that the Districts were not parties to the desegregation proceedings and had not been found to have committed any act of de jure segregation. The action of the Supreme Court was without prejudice to the right of the School Districts to file application to intervene in the present action.)
Oral arguments were heard before a panel of this court on August 24, 1972. An opinion was announced by the panel on December 8, 1972, affirming two orders of the District Court, viz: (1) Ruling on Issue of Segregation, reported at 338 F.Supp. 582, and (2) Findings of Fact and Conclusions of Law on "Detroit only" plans of desegregation, dated March 28, 1972. The decision of the panel vacated the remaining three orders on appeal (enumerated below), but affirmed in principle the ruling of the District Court on the propriety of a metropolitan remedy to accomplish desegregation.
On January 16, 1973, this court granted rehearing in banc. Under the provisions of Rule 3(b) of the local rules of this court, the effect of granting rehearing in banc is "to vacate the previous opinion and judgment of the court, to stay the mandate and to restore the case on the docket as a pending appeal."

Oral arguments before the court in banc were heard February 8, 1973.
No specific desegregation plan has been ordered by the District Court. The procedural history of the litigation is set forth below.
Before this court at the present time are four interlocutory orders from which we have granted appeal pursuant to 28 U.S.C. § 1292(b) and one final order, viz:
1. Ruling on Issue of Segregation, dated September 27, 1971, reported at 338 F.Supp. 582;
2. Findings of fact and conclusions of law on "Detroit only" plans of desegregation, dated March 28, 1972;
3. Ruling on Propriety of a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, dated March 24, 1972;
4. Ruling on Desegregation Area and Development of Plan, and Findings of Fact and Conclusions of Law in support thereof, dated June 14, 1972, 345 F. Supp. 914; and
5. Order dated July 11, 1972, directing Michigan State officials to purchase 295 school buses (which this court considers to be a final order).
On July 13, 1972, following oral argument, the original panel granted a motion for a temporary stay of the District Court's order of July 11, 1972, ordering the purchase of 295 school buses.
On July 17, 1972, following oral argument, the original panel directed that its stay order remain in effect until entry by the District Court of a final desegregation order or until certification by the District Court of an appealable question as provided by 28 U.S.C. § 1292(b).
Thereafter, on July 19, 1972, the District Court certified that the orders set forth above involve controlling questions of law, as provided by 28 U.S.C. § 1292(b), and made a determination of finality under Rule 54(b), Fed.R.Civ.P.
On July 20, 1972, the original panel entered an order granting the interlocutory appeal concluding that:
"[A]mong the substantial questions presented there is at least one difficult issue of first impression that never has been decided by this court or the Supreme Court. In so holding we imply nothing as to our view of the merits of this appeal. We conclude that an immediate appeal may materially advance the ultimate termination of the litigation."
The motion for leave to appeal was granted and the case was advanced for oral arguments on the merits on August 24, 1972.
219*219 The July 20, 1972 order of the original panel included the following stay order, which has remained in effect pending final disposition of the appeal on its merits:
"The motion for stay pending appeal having been considered, it is further ORDERED that the Order for Acquisition of Transportation, entered by the District Court on July 11, 1972, and all orders of the District Court concerned with pupil and faculty reassignment within the Metropolitan Area beyond the geographical jurisdiction of the Detroit Board of Education, and all other proceedings in the District

Court other than planning proceedings, be stayed pending the hearing of this appeal on its merits and the disposition of the appeal by this court, or until further order of this court. This stay order does not apply to the studies and planning of the panel which has been appointed by the District Court in its order of June 14, 1972, which panel was charged with the duty of preparing interim and final plans of desegregation. Said panel is authorized to proceed with its studies and planning during the disposition of this appeal, to the end that there will be no unnecessary delay in the implementation of the ultimate steps contemplated in the orders of the District Court in event the decision of the District Court is affirmed on appeal. Pending disposition of the appeal, the defendants and the School Districts involved shall supply administrative and staff assistance to the aforesaid panel upon its request. Until further order of this court, the reasonable costs incurred by the panel shall be paid as provided by the District Court's order of June 14, 1972."
This court also has granted leave to appeal to various intervening parties and leave to file numerous amicus briefs. The briefs and arguments of all the parties have been considered in the disposition of this appeal.
We agree with two of the rulings of the District Court summarized above: (1) The Ruling on the Issue of Segregation and (2) the Findings of Fact and Conclusions of Law on "Detroit only" plans of desegregation. We hold that the findings of fact of the District Court as set forth in these rulings are not clearly erroneous, Rule 52(a), Fed. R.Civ.P., but to the contrary are supported by substantial evidence.
As to the District Court's third ruling pertaining to the propriety of a Metropolitan remedy, we agree in part and reverse in part. We vacate this and the two remaining orders and remand to the District Court for further proceedings as hereinafter set forth in detail in this opinion.
I. CHRONOLOGY OF PROCEEDINGS
On April 7, 1970, the Detroit Board of Education adopted a plan to effect a more balanced distribution of black and white students in the senior high schools through enactment of changes in attendance zones involving some 12,000 pupils, to become effective over a three year period. Three months later this modest effort was thwarted by the legislature of the State of Michigan through enactment of Act 48 of the Public Acts of 1970. Section 12 of the Act delayed implementation of the plan. The four members of the Board who supported the April 7 plan were removed from office through a citizen initiated recall election. The new members of the Board and the incumbent members who had orginally opposed the April 7 plan thereafter rescinded it.
The complaint in this case was filed by individual black and white school children and their parents, and the Detroit branch of the NAACP against the Board of Education of the City of Detroit, its members, and the then Superintendent of Schools, as well as the Governor, the Attorney General, the State Board of Education and the State Superintendent of Public Instruction of the 220*220 State of Michigan. (The State of Michigan as such is not a party to this litigation. References thereto should be read as references to the public officials, State and local, through whom the State is alleged or shown to have acted.)
The complaint alleged that the Detroit public school system was and is segregated on the basis of race as the result of actions and policies of the Board of Education and of the State of Michigan. The complaint specifically challenged the constitutionality of Act 48 of the Public Acts of 1970 of the State of Michigan, which in effect repealed the April 7, 1970 high school desegregation plan formulated by the Detroit Board.

The case was heard originally on plaintiffs' motion for a preliminary injunction to restrain the enforcement of Act 48. In response to this motion the District Judge denied a preliminary injunction, did not rule on the constitutionality of Act 48, but granted the motion of the Governor and Attorney General of Michigan for dismissal of the cause as to them. On appeal this court held that § 12 of Act 48 was an unconstitutional interference with the lawful protection of Fourteenth Amendment rights, that there was no abuse of discretion in denying a preliminary injunction, and that the Governor and Attorney General should not have been dismissed as parties defendant at that stage of the proceeding. The case was remanded to the District Court for an expedited trial on the merits. 433 F.2d 897.
On remand plaintiffs moved for immediate implementation of the April 7 plan. On December 3, 1970, following an evidentiary hearing on that plan and two updated plans, the District Court ordered implementation of the "Magnet" or "McDonald" plan effective at the beginning of the next full school year, pending ultimate disposition on the merits. Plaintiffs appealed and filed a motion for summary reversal. This court again held that the District Court had not abused its discretion in refusing to adopt the April 7 plan prior to an evidentiary hearing on the allegations of constitutional violations in the complaint. We remanded the case with instructions to proceed to trial expeditiously on the merits of plaintiffs' allegations concerning the Detroit public school system. 438 F.2d 945. The trial of the case on the issue of segregation began April 6, 1971, and continued until July 22, 1971, consuming 41 trial days. On September 27, 1971, the District Court issued its ruling on the issue of segregation, holding that the Detroit public school system was racially segregated as a result of unconstitutional practices on the part of the defendant Detroit Board of Education and the Michigan State defendants. 338 F. Supp. 582.
A decision on a motion to join a large number of suburban school districts as parties defendant was deferred on the ground that the motion was premature, in that no reasonably specific desegregation plan was before the court. The Detroit Board of Education was ordered to submit desegregation plans limited to the City, while State defendants were directed to submit plans encompassing the three-county metropolitan area. An effort was made to appeal these orders to this court. On February 23, 1972, this court held the orders to be non-appealable and dismissed the appeal. 468 F.2d 902,cert. denied, 409 U.S. 844, 93 S.Ct. 45, 34 L.Ed.2d 83 (1972).
After further proceedings concerning proposals for a Detroit only desegregation remedy and the presentation of three plans therefor, the District Judge on March 24, 1972, issued a ruling entitled "Ruling on Propriety of Considering a Metropolitan Remedy," and on March 28, 1972, he issued "Findings of Fact and Conclusions of Law on Detroit Only Plans of Desegregation." He rejected all Detroit only plans, saying in part: "Relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city."
221*221 Subsequently, the District Court issued an order on June 14, 1972, entitled "Ruling on Desegregation Area and Order for Development of Plan for Desegregation." In this ruling and order the District Court established tentative boundaries for a metropolitan remedy and provided for a panel of nine members to design plans for integration of the Detroit schools and those of 53 metropolitan school districts within certain guidelines. 345 F.Supp. 914.
The panel recommended preparatory purchases of school buses prior to implementation of an interim plan in September, 1972. Following a hearing, the District Court on July 11 ordered State defendants to purchase or otherwise acquire 295 school buses.
In view of the intervening Congressional action by the enactment of the "Broomfield Amendment," certification was made to the Attorney General of the United States that the constitutionality of § 803 of the Education Amendments of 1972, Pub.L. No. 92-318, 86 Stat. 235, had been called into

question. The Department of Justice intervened, filed a brief and participated in the oral arguments before this court.
II. The Issues
All of the parties to this litigation in one form or another present three basic issues which we phrase as follows:
1. Are the District Court's findings of fact pertaining to constitutional violations resulting in systemwide racial segregation of the Detroit Public Schools supported by substantial evidence or are they clearly erroneous?
2. Based on the record in this case, can a constitutionally adequate system of desegregated schools be established within the geographic limits of the Detroit school district?
3. On this record does the District Judge's order requiring preparation of a metropolitan plan for cross-district assignment and transportation of school children throughout the Detroit metropolitan area represent a proper exercise of the equity power of the District Court?
III. The Constitutional Violations
(A) Constitutional violations found to have been committed by the Detroit Board of Education:
(1) Segregative zoning and assignment practices. (a) The District Judge found that the Detroit Board of Education formulated and modified attendance zones to create or perpetuate racial segregation. He also found that the feeder system for junior and senior high schools was designed to maintain rather than eliminate black or white schools at the higher levels. Its practice of shaping school attendance zones on a north-south rather than an eastwest orientation resulted in attendance zone boundaries conforming to racial dividing lines. (b) He further found that the Detroit Board of Education's policies involved a substantial number of instances of transporting black children past white schools with available school space. He also found that it was the policy of the Board of Education to create optional attendance areas which permitted white students to transfer to all white or predominately white schools located nearer the city limits. The District Judge also found that the policies of the Detroit Board of Education (and State Board of Education) concerning school construction in some instances had the purpose of segregating students on a racial basis and in many others resulted in maintaining or increasing segregation.
222*222 The District Judge's findings of fact pertaining to alteration of zones and feeder patterns are as follows:
"The Board has created and altered attendance zones, maintained and altered grade structures and created and altered feeder school patterns in a manner which has had the natural, probable and actual effect of continuing black and white pupils in racially segregated schools. The Board admits at least one instance where it purposefully and intentionally built and maintained a school and its attendance zone to contain black students. Throughout the last decade (and presently) school attendance zones of opposite racial compositions have been separated by north-south boundary lines, despite the Board's awareness (since at least 1962) that drawing boundary lines in an east-

west direction would result in significant integration. The natural and actual effect of these acts and failures to act has been the creation and perpetuation of school segregation. There has never been a feeder pattern or zoning change which placed a predominantly white residential area into a predominately black school zone or feeder pattern. Every school which was 90% or more black in 1960, and which is still in use today, remains 90% or more black." 338 F.Supp. at 588.
The legal conclusion of the District Judge is as follows:
"5. The Board's practice of shaping school attendance zones on a north-south rather than an eastwest orientation, with the result that zone boundaries conformed to racial residential dividing lines, violated the Fourteenth Amendment. Northcross v. Board of Ed. of Memphis, 6 Cir., 333 F.2d 661." 338 F.Supp. at 592-593. * * * * * * "9. The manner in which the Board formulated and modified attendance zones for elementary schools had the natural and predictable effect of perpetuating racial segregation of students. Such conduct is an act of de jure discrimination in violation of the Fourteenth Amendment. United States v. School District 151, D.C., 286 F.Supp. 786; Brewer v. School Board of City of Norfolk, 4 Cir., 397 F.2d 37." 338 F.Supp. at 593.
There is, of course, other legal support for the conclusions set out above. Davis v. School District of Pontiac, 443 F.2d 573, 576 (6th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971); United States v. Board of Education, Ind. School District No. 1, 429 F.2d 1253, 1259 (10th Cir. 1970); United States v. Jefferson County Board of Education, 372 F.2d 836, 867-868 (5th Cir. 1965), aff'd in banc, 380 F.2d 385 (5th Cir. 1966), cert. denied sub nom. Caddo Parish School Board v. United States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1970); Clemons v. Board of Education, 228 F.2d 853, 858 (6th Cir.), cert. denied, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868 (1956); Spangler v. Pasadena Board of Education, 311 F.Supp. 501, 522 (C.D.Cal. 1970).
Witness Charles Wells, defendant School Board's assistant superintendent in charge of the Office of Pupil Personnel Services, read into the record and testified in support of the minutes of a meeting of the Citizens Association for Better Schools. Mr. Wells was the president of the Citizens' Association at the time the meeting was conducted. His testimony includes the following:
"Q. (By Mr. Lucas) Go ahead, sir. "A. "November 3, 1960.
"TO: Honorable Nathan Kaufman, Chairman Committee on Equal Education Opportunity.
`We should like to begin our presentation by reviewing with you briefly the development of our organization. We feel it is significant as it represents an attempt on the part of people who make up this organization to effectively deal with the frustrations historically inherent in attempting to provide for minority 223*223 group children an adequate education within the Detroit Public School System. A majority of the people of the Negro race moved into the now Center District from other school districts within the limits of the City of Detroit. Although better housing conditions were but one of the motives for such a move, of equal importance was a desire to provide their children with a more equitable and enriched educational experience.
`They were aware of the increased population within their new geographical area, and accepted the counselling of the then new administration of the Board of Education, to the effect that additional tax monies would have to be made available if educational standards within the City of Detroit were to be improved, or even maintained. Consequently, each of them made a strong personal investment in the millage compaign of Spring 1959. In this campaign, initially, their efforts did not meet the

wholehearted approval of the Negro community, since from past experience, particularly involving other millage campaigns, members of the Negro community had observed that the results of the expenditures of monies obtained from additional taxes, had little effect on the facilities, the equipment, or the curriculum available to their children.
`Despite this resistance, they were aware that there would be less justification for demanding adequate educational opportunities for their children if they did not accept their responsible share for the successful passing of the millage program. As a consequence of their efforts, their respective schools voted overwhelmingly for the millage program, and they logically expected that positive results would follow their efforts.
`Their first disillusionment occurred only a few months, but yet a few weeks after the passage of the millage — they were rewarded with the creation of the present Center District. In effect this District, with a few minor exceptions, created a segregated school system. It accomplished with a few marks of the crayon on the map, the return of the Negro child from the few instances of an integrated school exposure, to the traditional predominantly uniracial school system to which he had formerly been accustomed in the City of Detroit.
`Their attempts to meet this threat to their children's educational experience through existing school organizations met with little success. Their conferences with District and City-Wide administrators including the superintendent, Dr. Samuel Brownell, resulted in only rationalizations concerning segregated housing patterns, and denials of any attempts at segregation. When it was pointed out that regardless of motivation, that segregation was the result of their boundary changes, little compromise was effected, except in one or two instances, where opposition leadership was most vocal and aggressive.
`Concurrent with boundary changes, it was alarmingly noticeable that the school population within the Center District was rapidly increasing, and that the priority building program would have little positive effect in dealing with the problem. Attempts to discuss this problem with school and district administration gave promise of only minimal relief.
`Finally, it had been earlier noted by new residents moving into what is now the Center District that prior to and during its change from a uniracial (predominatly white) to a biracial system and again to a uniracial (predominatly Negro) school system that the quality of their children's previous educational experiences did not equip them to compete on an equal basis with resident children in the same grade and classifications.
`These experiences made them aware that no one organization composed of one or several schools, could effectively coordinate the mutual concern of the many parents residing within the Center District. Thus out of the several discussions of groups of people whose primary concern was the adequate and equitable education of their children, this organization was born. It is felt that no better 224*224 description of its purpose, its objective, and its reason for being can be found than in the preamble to its Constitution, which is:
`PREAMBLE: Our interest is in equal educational opportunities for all persons within the City of Detroit.
`We do not believe that such opportunities are possible within a segregated school system.
`We oppose a policy of containment of minority groups within specified boundaries, an example of which is the Center District. While the above is of utmost concern to us we are also aware that there

is need for improvement and enrichment of the standards within this district in practice as well as in theory.

`We believe that once standards have become reasonably adequate, that such standards should be maintained. It should be further recognized that future population shifts brought about by urban redevelopment will adversely affect the above goals in the Center District, unless there is anticipation of the impact of this population growth upon this district.

`Since the inception of our organization we have noted the following:

`The public school system of the City of Detroit is divided into nine administrative districts, one of which is the Center District.

`Yet, every day, when the children in this city leave their homes to go forth to public schools, approximately one out of every four leaves a home in the Center District. Of the 154,969 children enrolled in public elementary schools as of September 30, 1960, 36,264 or 23.4 percent of these children leave a home in the Center District.

`There are 221 elementary school buildings in the Detroit Public School System. Of these 28 are in the Center District. This means, then, that the 23.4 percent of the total elementary school population is accommodated in 12.7 percent of the buildings.

`Fifteen percent of these children sit in classes of 40 to 44 students per class. This is in comparison to:

East North Northeast Northwest South Southeast West

.13 percent .05 percent .04 percent .08 percent .01 percent .01 percent .05 percent

`Sixty-two and one-half percent of all the children in the city's elementary schools who sit in classes of 45 to 49 are children in the Center District. These schools in the Center District find their capacities short by 6,352 pupil stations. In other words, their capacities are overtaxed to the extent of 16 percent; and the future building program, as set forth by the superintendent's report of October 17, 1960, will make available only 11,189 additional pupil stations within the next ten-year period. However, this will be insufficient to meet the demands of the Center District. Therefore, it is apparent that a school bussing program will have to become a permanent part of the school housing program. Thus the manner in which the bussing program is administered becomes a matter of acute concern.

`Presently, children are being bussed by grades. Under this system a number of problems are created:

1) It makes necessary a reorganization of the bussing school, as well as the school into which the children are bussed. 2) They are not integrated into the school into which they are bussed, except in minor instances. 3) There is a possibility of the separation of the family unit. 4) Parents are unable to establish a good rapport with the teachers and administrators in the new school since there exists a time limit in which these children will be members of that school.

`It is recommended that a policy of bussing by geographical areas instead of 225*225 by grades be instituted so as to eliminate the above problems.
`The emphasis on curricula objective are not comparable in the various school districts of the Detroit School System. There is a tendency in the Center District to stereotype the educational capacity of the children. This means that children entering the schools in this district whose background enables them to comprehend an enriched educational program, are not challenged.
`For example, one student in the Hutchins Intermediate School who desired to prepare for entrance into an Eastern college found that Latin was not offered, and only after considerable effort by members of the community, along with his family, was Latin placed back in the school curriculum. Many other instances can be cited upon request.
`Conversely, children whose initial capacity is retarded by deprived socio-economic circumstances also go unchallenged. The District Administrator has admitted that no program exists to take care of these children.
`The curriculum and counselling as they now exist, do not encourage students to achieve their maximum capacities. We feel that the responsibility for any inequities in the educational experience offered to any group of children within a given school system must be assumed by those persons charged with the overall responsibility of administering that system.
`Therefore, we recommend that strong policies be adopted by the top administration to erase inequities of the Detroit Public School System, and a policy of supervision through all levels of administration be instituted at all levels of administration to insure equal educational opportunities to all children.
`The Citizens' Association for Better Schools.'
"Q. Do you join in that statement in submission to the committee?
"A. Yes, I did."
Mr. Wells cited the example of the Center (administrative) District, where attendance boundaries were shaped in a gerrymandered fashion to conform to the racial residential pattern.
"Q. With regard to that same situation, you were expressing a problem which your committee had met in attempting to discuss this. Can you tell me how you came to be discussing this with the Board at that time? "A. It was not with the Board of Education, I believe it was with the administration of the school system. "Q. The administrative staff? "A. Including the superintendent. "Q. All right. "A. Our initial concern about the boundaries of the center district grew out of the concern we had in 1960 about the changing of the attendance areas between the Central High School and the Mackenzie High School. "Q. Is that the optional attendance area also set up in that? "A. A part of that was optional. Well, let's put it that way, a part of it had been optional, the proposal was to eliminate the option. In the process of eliminating the option what it would mean would be that by and large the few black children who had been attending Mackenzie would have been pulled back into the Central area.

"Q. Mackenzie at that time was a majority white school? "A. Predominately white. "Q. Central by that time had become black? "A. Predominately black. "Q. So the cancellation of the optional area which had been there had the effect of preventing black children choosing Mackenzie, is that correct? "A. That is right. "Q. Were there any other schools — there is a reference made to the establishment of the center district boundaries — were there any other 226*226schools which had not previously been in certain feeder patterns that were drawn back into the center district? "A. I am trying to remember now as I said eleven years. "Q. I understand. "A. If I remember correctly, the Sherrill School which also had been a part of it, that portion north of Tireman had been attending Mackenzie and they in turn, the total school then would have been returned to the Chadsey area. "Q. What about Tappan and that area, are you familiar at all with changes that took place? "A. Tappan was the junior high school in which Winterhalter, the elementary school in the area south of Davison just west of Ewald Circle attended. At that time the students from that area attended Tappan and all students from Tappan attended Mackenzie. "The new change would mean that the students from Winterhalter, and I think McKerrow which is just below Winterhalter would have attended Tappan through the 9th grade, but then had been pulled back into the center district to attend Central High School. "The other students in Tappan would have gone to Mackenzie. "Q. The other students in Tappan, were they predominately white students? "A. Yes. Our concern about this region really at that time was that we could draw a line which separated the black residents from the white residents and almost to the alley and that in effect was the boundary line of the center district."
There was evidence that school feeder patterns were changed so as to make particular junior high schools or senior high schools either generally white or generally black, as shown in the following testimony:
"MR. CALDWELL: Your Honor, I have copies of the Mumford High School district in 1959 which is taken from Plaintiff's Exhibit 78-A, and this makes it easier to see the schools. "Q. Let's get back to the 1962-63 overlay. "Prior to the 1962-63 — first of all, will you point out to the Court where the Vandenberg and Vernor Schools are. "A. This triangle to the northwest corner of this area. (indicating) "Q. Prior to 1962-63 where did the Vernor and Vandenberg youngsters go to high school? "A. Mumford High School. "Q. A boundary change was made in 1962-63? "A. That's right. "Q. Where did those youngsters go to school in that year? "A. Ford High School. "Q. How long did that feeder pattern continue? "A. Until 1966-67 when they returned to Mumford. "Q. All right. "MR. CALDWELL: Plaintiffs' Exhibit 128-A, your Honor, reflects that in 1960 Vandenberg and Vernor were 0 percent black. Mumford was 16.1 black, Ford was .1 percent black. With regard to Vandenberg and Vernor, there was a gradual increase in the black population until 1966 when Vandenberg was 39.5 percent black and Vernor was 39.8 percent black.

"Then in 1967 the change was made taking Vandenberg and Vernor back into Mumford. Vandenberg had become 70 percent black, Vernor had become 63.2 percent black. That year the change was made and Mumford was 78.1 percent black, Ford was 4.1 percent black. "Q. I believe that feeder pattern continued into the current school year? "A. That is right. 227*227 "Q. Those schools now feed back into Ford High School this year? "A. That is right."
The effect of such a policy was attested to by Dr. Gordon Foster of the University of Miami, director of the Florida School Desegregation Consulting Center:
"Q. The effect, Doctor, then, of the removal of Vandenberg and Vernor from the Ford feeder pattern into the Mumford feeder pattern, what was the effect in terms of race? "A. The effect of this move in 1967-68 of the transfer back of the two elementary schools was to increase the segregation at Mumford, to take blacks from the Ford High School and, therefore, increase the segregated pattern there, and, in my opinion, it reinforced inevitably the perception that Ford would be kept white as a matter of basic policy and that Mumford would be a racially contained isolated high school attendance area."
Similar testimony regarding the segregative effect of altering school feeder patterns was given with respect to the Jefferson and Hutchins Junior High Schools, Garfield and Spain Junior High Schools, Burton and Irving Elementary Schools, Higginbotham Elementary School, Jackson and Foch Junior High Schools, Stellwagen, Keating and Clark Elementary Schools, Cleveland and Nolan Junior High Schools, Courville Elementary School, Ford and Brooks Junior High Schools, Osborne and Pershing High Schools, Parkman Elementary School, the Ellis, Sills, Newberry and Sampson Elementary Schools, and Northwestern and Chadsey High Schools.
The District Judge made the following findings of fact pertaining to busing black children to black schools past white schools:
"The Board, in the operation of its transportation to relieve overcrowding policy, has admittedly bused black pupils past or away from closer white schools with available space to black schools. This practice has continued in several instances in recent years despite the Board's avowed policy, adopted in 1967, to utilize transportation to increase integration. "With one exception (necessitated by the burning of a white school), defendant Board has never bused white children to predominantly black schools. The Board has not bused white pupils to black schools despite the enormous amount of space available in inner-city schools. There were 22,961 vacant seats in schools 90% or more black." 338 F.Supp. at 588.
The legal conclusion of the District Judge follows:
"8. The practice of the Board of transporting black students from overcrowded black schools to other identifiably black schools, while passing closer identifiably white schools, which could have accepted these pupils, amounted to an act of segregation by the school authorities. Spangler v. Pasadena City Bd. of Ed., D.C., 311 F.Supp. 501." 338 F.Supp. at 593.
Additional support for the District Judge's legal conclusion includes: United States v. School District 151, 286 F. Supp. 786, 798 (N.D.Ill.1967), aff'd, 404 F.2d 1125, 1131 (7th Cir. 1968), on remand, 301 F.Supp. 201, 211, 222 (N.D. Ill.1969), aff'd, 432 F.2d 1147, 1150 (7th Cir. 1970), cert. denied, 402 U.S. 943, 91 S.Ct. 1610, 29 L.Ed.2d 111 (1971); United States v. Board of School Commissioners, Indianapolis, Ind., 332 F. Supp. 655, 669 (S.D.Ind.1971), aff'd 474 F.2d 81 (7th Cir. 1973).

The following testimony pertains to busing black children from overcrowded black schools past white schools with available pupil capacity to other black schools:
"Q. I am trying to anticipate, Mr. Ritchie's question. Have you noted some examples of the bussing of black children from black schools to other black schools?
"A. I have.
228*228 "Q. Could you give us a couple illustrations?
"MR. BUSHNELL: While Dr. Foster is looking through his notes, might I make the request that we made yesterday that on conclusion of his testimony we have access to the notes made?
"MR. LUCAS: At the conclusion, yes. We have no objection to that.
"A. In 1960-61, and we don't have any record for '61-62 so I am not certain as to that year, students were transported from Angell to Greenfield Park. This has already been part of our testimony, I believe, 186 students and students from Angell to Higginbotham, 118 students. In 1969 —
"Q. Excuse me, Doctor, let me ask you if the Angell-Higginbotham — were there white schools available with space, from your examination of the records?
"A. Yes, there were.
"Q. Between Angell and Higginbotham?
"A. Yes, sir, I believe I testified to that before.
"Q. All right.
"A. In 1969 the Ruthruff Elementary School which was 99 percent black transported 143 children to Herman Elementary, 55 percent black.
* * * * * *
"Q. (By Mr. Lucas, continuing) Dr. Foster, would you step to the map.
"I think we were talking about the Ruthruff-Herman Schools.
"A. Yes. We were testifying at recess about transportation of blacks past white schools. In 1969 we stated that Ruthruff Elementary which is here in the southeastern portion of the Mackenzie High School zone on the large 1970-71 attendance area map, in 1969 transported 143 children to Herman Elementary School which is just below the blue area on the undermap here — Herman Elementary School (indicating). Herman in 1969 was 55.6 percent black. Ruthruff was 99.1 percent black and I think it is important to note that the access to Herman goes right past the Parkman Elementary School which at that time had 136 spaces available and according to their capacity figures —
"Q. Parkman was what percentage?

"A. Parkman I don't have the figure for '69 and '70. Parkman was 12.8 percent black."
* * * * * *
"A. Another example was the Parker Elementary School which is in the general center of the Mackenzie High School zone. Parker in 1970 was 79.4 black; 61 children were bussed from Parker again to the Herman Elementary School which at that time was 58.5 percent black and again past the Parkman Elementary which in 1970 was 12.8 percent black.
"Q. Did Parkman have capacity at that time, Doctor?
"A. Parkman in '70, according to my data, had 121 spaces.
* * * * * *
"Q. Excuse me, would you give us the A. L. Homes.
"MR. BUSHNELL: I thought the Court ruled on that?
"THE COURT: He says he is pursuing a non-cumulative matter here. If that be true he may go ahead.
"A. A. L. Homes School, children were bussed from this school over to the McGraw School which is in the south end of the Northwestern District in center city. In 1970-71 the Post Junior High School, which is located —
"MR. BUSHNELL: If the Court please, Mr. Lucas just pointed out the location of Post which the witness obviously couldn't find on the map.
"THE COURT: Well, he hasn't moved it.
"A. I noted the west section of Cooley instead of the east. The Post Junior High School and Clinton Schools, which are in the east section of the Cooley High School attendance zone transported 54 students to the Jefferson School which is now in the Murray zone and it is located in the eastern section of the Murray High School attendance area. I 229*229think it is important to note that these students who were bussed came from a considerable distance north and there were several possibilities —
"Q. Excuse me, were the Post children in a black school or white school?
"A. The Post School this year, 1970-71 was 99.3 percent black. The Clinton School from which they also came was 97 percent black.
"Q. What about Jefferson?
"A. Jefferson was 87.6 percent black. There were two or three other possibilities much closer to the Post-Clinton area. One would have been in the western portion of the Mackenzie district here (indicating).

"Q. What is the racial composition?
"A. At this time it had 35.4 percent black with a capacity of 109 stations available. Another possibility would have been the Vetal School in the Redford zone, the southern portion of the Redford High School zone, which at this time was 2 percent black with vacancies of 203 pupil stations and a third alternative could have been the Coffey School to the east of the Ford attendance area which at this time was 29 percent black with 69 pupil stations available.
"Q. Did you say to the east was part of the Ford attendance area or outside of that, Doctor?
"A. It's in the Ford attendance area.
* * * * * *
"THE COURT: Well, to save time why don't we proceed on the assumption that that was his testimony. But if it proves otherwise we will strike it.
"MR. LUCAS: Thank you, sir.
"Q. (By Mr. Lucas) Doctor, I understand that the policy of the district is that bussing to relieve overcrowding would be done in such a manner as to improve integration at the receiving school. From your examination of the current bussing examples which you have given, do you have an opinion as to whether or not that policy has or has not been followed?
"A. Well, I think from the examples I have given so far it would give an indication that integration could have been effected in a much better way if the children, instead of going to the schools would have been dropped off at other schools where the racial balance was quite different.
* * * * * *
"Q. Are there any white schools from your examination of data, Doctor Foster, between Angell and Higginbotham which had capacity at that time?
"A. Yes, there were several which were a good deal closer to Angell than Higginbotham. The effect of this sort of zoning pattern was to provide segregated student ratios at all three of the elementary schools, and in terms of things that could be done or could have been done at that particular time to correct the segregated situation, it is my opinion that, first of all, the students being bussed from Angell could have been dropped off at any number of places on the way to Higginbotham, schools which had the space and had a better racial composition for this sort of input. This having been done, zone lines could have been redrawn at these three schools to have approached a racial balance situation which, in my opinion, would have helped to stabilize the situation at that time. This would have also assisted in the overcrowding at Pasteur and a couple of classrooms extra at Higginbotham.
"Q. Do you have an opinion, Doctor as to the perception created by the maintenance of the Higginbotham School under those circumstances, including the transportation of black students from Angell into it?
"A. Well, it is obvious that if you transport black children past white schools to an all black school that the community is going to perceive this as a segregated intent, a segregated action. If you have a

boundary situation which isolates and enforces black students to a particular area when the boundary lines could be changed to effectuate a better 230*230 pattern racially, then it seems to me that community perception would also be that the school is not doing what it could in terms of integration and equal opportunity.
"Q. Doctor, from your examination of the data in 1960 are there any administrative reasons, any administrative problems which would indicate to you a reason why this boundary was maintained rather than drawn in some other fashion?
"A. In terms of school capacity there are none, no."
Defendant's witness (Mr. Henrickson) admitted instances of busing black students past closer white schools to black schools:
"Q. We find on the under and over capacity map in the Higginbotham area that there were three schools surrounding Higginbotham. Vernor, which is listed as being 121 over capacity; MacDowell, 103, is it? Pasteur, 90. At the same time we find that Higginbotham was 489 under capacity. Is that what the exhibit shows, sir? "A. Yes. "Q. We also know, do we not, that Pasteur, MacDowell and Vernor were white schools? "A. Both Pasteur and MacDowell at that time, as I recall, had some beginning of black students as a result of the growth of the settlement of the Higginbotham area. "Q. They were predominantly white schools at that time? "A. Yes. "Q. Higginbotham was all or virtually all black? "A. Yes. "Q. Indeed, it had been the same in 1950, had it not? "A. Yes. "Q. At the same time that we are talking about you were transporting youngsters from Angell to Higginbotham, is that correct? "A. Yes. "Q. Those were black kids being transported from Angell to Higginbotham? "A. Yes. "Q. We also know on that exhibit that they were transported past such schools as Fitzgerald and Clinton which had more than enough capacity to handle them? "A. We have made no denial of that."
For some years it was a Board of Education policy to transport classrooms of black children intact to white schools where they were educated in segregated classes.
Testimony as to the intact busing practice follows:
"Q. (By Mr. Lucas, continuing) Will you go into the Detroit system, Doctor, on transportation. "A. Answering it generally, counsellor, my answer would be that the intact bussing is the practice of transporting classrooms of children intact from one school to another and leaving them intact when they are educated at the receiving school. "Q. Doctor, when such transportation occurs from a school which is 90 percent or more black to a school which is predominantly a white school, what effect, if any, does this have in terms of racial segregation on those children? "A. This would lead to what we call classroom segregation or segregation within a particular school. It could be sometimes resegregation, but essentially it is a segregated situation within a school which could be segregated or not segregated generally.

"Q. Doctor, in your experience with school segregation and school desegregation plans, is this a technique which you have had to deal with in the past? "A. On occasion, yes, sir. 231*231 "Q. Doctor, did you examine data or relevant information with respect to the transportation practices in the Detroit school system in connection with this type of bussing, intact bussing? "A. Yes, sir. "Q. What did your examination reveal, Doctor? "A. It is my understanding from the data that there was intact bussing generally in the late '50's, as I said, and early '60's. "Q. How did that intact transportation operate, Doctor? "A. It involved transporting classrooms in whole from one school to another receiving school and at the receiving school the classrooms were kept intact for instructional purposes. "Q. Was this policy changed at any time, Doctor, as far as you know? "A. It is my understanding it was changed in the middle '60's but I don't remember the exact date. "Q. What would the change be, Doctor? What type of bussing would result in terms of relieving overcrowding? "A. You simply gather children up on a geographical basis and transport them and assign them at random to whatever grade they are in the receiving school rather than keeping them in an intact classroom."
Segregating children by race within schools has been held repeatedly to be unconstitutional. Jackson v. Marvell School District No. 22, 425 F.2d 211, 212 (8th Cir. 1970); Johnson v. Jackson Parish School Board, 423 F.2d 1055 (5th Cir. 1970).
The record indicates that in at least one instance Detroit served a suburban school district by contracting with it to educate its black high school students in a Detroit high school which was overwhelmingly black by transporting them away from nearby suburban white high schools and past Detroit high schools which were predominantly white.
The District Judge found on this score that for years black children in the Carver School District were assigned to black schools in the inner city because no white suburban district (or white school in the city) would take the children.
This finding is supported by the testimony of Detroit School Superintendent Drachler, which follows:
"Q. When was the Carver District in existence as a separate entity? "A. The Carver District? The Carver is not in Detroit. "Q. Is it a separate school district whose students attended some Detroit high schools, in particular Northern? "A. Oh, I see what you're referring to. I am told that back in '57, '58, at that time I was not in Central Office, there were some students from Carver District who did not have a place for adequate high school facilities. An arrangement was made with Detroit for the Carver students to come in on buses and go to Northern High School. Now, the nearest school to Carver was Mumford at the time. And they did go past Mumford towards Northern. "Q. Is Carver a black district? "A. Yes, black and very poor. "Q. Has Carver District subsequently merged with Detroit? "A. Oak Park. "Q. With Oak Park? "A. That's right. "Q. And at that time the transportation was terminated?

"A. That's right. By the way, as a result of those youngsters coming, there was a rumor spread that Detroit children were being bussed, say, from the Higginbotham, which is north — Higginbotham area which is north of Mumford High School area but in Detroit, that they were being bussed to Northern, too, because they were black 232*232 students, people saw black students from the Eight Mile area coming down. But to the best of my knowledge these were outside students. "Q. There were black children being bussed to Higginbotham weren't they? "A. There were black children being bussed to Higginbotham. "Q. From Angell? "A. From Angell past some white schools. And when the issue was brought to Doctor Brownell's attention by me in about '59 or '60 — there were a series of instances like that. There was the Angell, there was from the military fort in the southwest, they were bussing their own children up to the Noble, and Doctor Brownell, as soon as it was brought to his attention, abolished that as well as the optional areas. "Q. Was this so-called intact bussing, that is a class being brought as a unit? "A. Generally speaking, yes. That policy of changing to geographic bussing occurred about '62-'63 as a result of the Equal Education Opportunities Committee. "Q. Was all of the bussing done in the City of Detroit of an intact nature until the Equal Opportunities study? "A. To the best of my knowledge it was. I know when my children were being bussed, they were bussed intact." (2) Optional Areas.
The record demonstrates that in many instances when neighborhoods in Detroit began to experience some immigration of black families, it was Board of Education policy to create optional attendance zones, thereby allowing white students to change schools to all white or predominately white schools, generally located farther toward the city limits. For many years the record indicates this practice to have been pervasive. It continued in at least one instance up to the 1970-71 school year.
As to optional attendance zones, the District Judge found:
"During the decade beginning in 1950 the Board created and maintained optional attendance zones in neighborhoods undergoing racial transition and between high school attendance areas of opposite predominant racial compositions. In 1959 there were eight basic optional attendance areas affecting 21 schools. Optional attendance areas provided pupils living within certain elementary areas a choice of attendance at one of two high schools. In addition there was at least one optional area either created or existing in 1960 between two junior high schools of opposite predominant racial components. All of the high school optional areas, except two, were in neighborhoods undergoing racial transition (from white to black) during the 1950s. The two exceptions were: (1) the option between Southwestern (61.6% black in 1960) and Western (15.3% black); (2) the option between Denby (0% black) and Southeastern (30.9% black). With the exception of the Denby-Southeastern option (just noted) all of the options were between high schools of opposite predominant racial compositions. The Southwestern-Western and Denby-Southeastern optional areas are all white on the 1950, 1960 and 1970 census maps. Both Southwestern and Southeastern, however, had substantial white pupil populations, and the option allowed whites to escape integration. The natural, probable, foreseeable and actual effect of these optional zones was to allow white youngsters to escape identifiably `black' schools. There had also been an optional zone (eliminated between 1956 and 1959) created in `an attempt . . . to separate Jews and Gentiles within the system,' the effect of which was that Jewish youngsters went to Mumford High School and Gentile youngsters went to Cooley. Although many of these optional areas had served their purpose by 1960 due 233*233 to the fact that most of the areas had become predominantly black, one optional area (SouthwesternWestern affecting Wilson Junior High graduates) continued until the present school year (and will continue to effect 11th and 12th grade white youngsters who elected to escape from predominantly

black Southwestern to predominantly white Western High School). Mr. Henrickson, the Board's general fact witness, who was employed in 1959 to, inter alia, eliminate optional areas, noted in 1967 that: `In operation Western appears to be still the school to which white students escape from predominantly Negro surrounding schools.' The effect of eliminating this optional area (which affected only 10th graders for the 1970-71 school year) was to decrease Southwestern from 86.7% black in 1969 to 74.3% black in 1970." 338 F. Supp. at 587-588.
From these facts the District Judge arrived at the following legal conclusion:
"7. The Board's policy of selective optional attendance zones, to the extent that it facilitated the separation of pupils on the basis of race, was in violation of the Fourteenth Amendment. Hobson v. Hansen, D.C., 269 F.Supp. 401, aff'd sub nom., Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F. 2d 175. [(1969)]." 338 F.Supp. at 593.
Additional support for the District Judge's legal conclusion includes: United States v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972); Northcross v. Board of Education of Memphis, 333 F.2d 661, 665-666 (6th Cir. 1964) (different but analogous situation); United States v. Board of School Commissioners of Indianapolis, 332 F.Supp. 655, 668 (S.D.Ind.1971) aff'd 474 F.2d 81 (7th Cir. 1973); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 502 (C.D.Cal.1970).
The effect of use of optional zones was described in Dr. Foster's testimony:
"The first method or technique I might cite that is used to maintain segregation would be the use of optional zones. "Would it be possible for me to step to the board to illustrate? "Q. Please do. (The witness proceeded to the blackboard.) "A. Optional zones are sometimes also referred to as dual zones or dual overlapping zones. I think it will be easier for me to illustrate this briefly. (The witness drew a sketch on the board.) "A. If you have, let's say, two high school districts, District X and District Y, frequently when you set up an optional zone you carve the zone out of one district, occasionally two, but assume we carve it out of District Y and the children in this optional zone are then permitted to go to either high school X or high school Y, this becomes in a sense an overlapping zone because if we refer to the boundaries of school District X at this point it not only includes the previous boundary but also takes in the optional zone. "District Y in turn would include its previous boundaries, also including the optional zone. I think this may explain the origin of the connotation of the word `overlapping'. "Essentially optional zones are set up for two or three reasons, one is to allow white students or black students the option of attending one of the two attendance areas which make up the boundaries of the zone and another is for, occasionally for religious purposes to provide alternatives for persons of different religions. Sometimes these are set up for socio-economic reasons and I have on occasion seen them set up by boards of superintendents as political gimicks in order to help pass a bond issue or one thing or another or a school board or superintendent will set up temporary optional zones as a favor to certain constitutents in 234*234 return for assistance in helping the school board with one thing or another. "I think in the framework in which we operate they are used primarily for maintaining segregated patterns. * * * * * * "Q. Dr. Foster, have you made a study and analysis of optional zones in the Detroit school system? "A. Yes, I have."

Dr. Foster's analysis of the purpose and effect of each optional zone in existence in the Detroit School District is exemplified in his testimony on the Mackenzie-Central option.
"Q. Doctor Foster, do you have an opinion as to the administrative use of the optional attendance zone in 1960 between and prior to that in Mackenzie-Central area? "A. Yes. I think it was used primarily — you mean as to the purpose of it? "Q. Well, as to whether or not it had any administrative value that you know of, Doctor, aside from race? "A. In terms of assignment I can see no advantage to it. * * * * * * "Q. Do you have an opinion as to its use in terms of segregation or desegration, Doctor Foster? "A. In my opinion it was used as an optional zone to allow whites during the period it was in existence in the '50's and also until such time as it was done away with in 1962 to be assigned to predominantly white Mackenzie High School. "Q. Doctor Foster, from your examination of the 1950 census and in turn the 1960 census exhibits, do you have an opinion as to the effect of such an optional zone on the community residence pattern in the community? * * * * * * "A. Community people and residents in a situation such as this generally have a perception that there is something wrong with their school, that the whites need an optional zone to get out into a less black situation and, therefore, this increases their perception of racial isolation and, in fact, physical containment. "Q. Does this have an effect, Doctor, in terms of the residence pattern? I believe you testified in 1950 the optional area was entirely white or zero to 4.9 per cent white. * * * * * * "A. In my opinion this tends to increase the instability of the community because they generally feel this is an ad hoc temporary interim situation and it increases white flight in this sort of situation. * * * * * * "Q. Doctor Foster, does the use of these techniques in some areas have an effect in terms of the perception of the community of schools besides the actual two schools to which the option was involved? * * * * * * "A. Thank you. Yes, I think the perception is not only of rank and file community residents, but people of considerable influence in the community, along with School Board administration people, School Board members, School Board officials. In many cases they have substantiated this perception that I have recounted; that the optional zones did lead to greater pupil segregation and a feeling of frustration that the school authorities were not doing what was called for in terms of desegregation, and it had a generally debilitating effect on the image of the schools as far as all of these groups were concerned."
Mr. Henrickson, defendant School Board's principal witness and divisional director of planning and building studies in the School Housing Division, did not deny the discriminatory effect of at least some of these optional zones.
235*235 "Q. In 1959 optional areas frustrated integration, did they not? "MR. BUSHNELL: Objection to the form of the question. "THE COURT: He may answer. "A. Some of these areas in 1959 had no effect whatever with movement of black or white students. They were either all black or all white. Some of them such as the Western-Southwestern area can be said to have frustrated integration and continued over the decade." (3) Building Construction.

The District Judge found and the record contains evidence that the Detroit Board of Education practices in school construction generally tended to have segregative effect; the great majority of schools were built in either overwhelmingly all black or all white neighborhoods so that the new schools opened as one race schools.
The District Judge's school construction findings were as follows:
"In 1966 the defendant State Board of Education and Michigan Civil Rights Commission issued a Joint Policy Statement on Equality of Educational Opportunity, requiring that `Local school boards must consider the factor of racial balance along with other educational considerations in making decisions about selection of new school sites, expansion of present facilities . . . . Each of these situations presents an opportunity for integration.' Defendant State Board's `School Plant Planning Handbook' requires that `Care in site locations must be taken if a serious transportation problem exists or if housing patterns in an area would result in a school largely segregated on racial, ethnic, or socio-economic lines.' The defendant City Board has paid little heed to these statements and guidelines. The State defendants have similarly failed to take any action to effectuate these policies. Exhibit NN reflects construction (new or additional) at 14 schools which opened for use in 1970-71; of these 14 schools, 11 opened over 90% black and one opened less than 10% black. School construction costing $9,222,000 is opening at Northwestern High School which is 99.9% black, and new construction opens at Brooks Junior High, which is 1.5% black, at a cost of $2,500,000. The construction at Brooks Junior High plays a dual segregatory role: not only is the construction segregated, it will result in a feeder pattern change which will remove the last majority white school from the already almost all-black Mackenzie High School attendance area. "Since 1959 the Board has constructed at least 13 small primary schools with capacities of from 300 to 400 pupils. This practice negates opportunities to integrate, `contains' the black population and perpetuates and compounds school segregation." 338 F.Supp. at 588-589.
Other cases in which such findings have been held to constitute a de jure act of segregation include: Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 21, 91 S.Ct. 1267, 28 L. Ed.2d 554 (1971); Cisneros v. Corpus Christi Independent School Dist., 467 F. 2d 142 (5th Cir. 1972), pet. for cert. filed, 41 U.S.L.W. 3225 (Oct. 31, 1972); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), petition for cert. filed, 41 U.S.L. W. 3114 (U.S. Aug. 28, 1972); Davis v. School District of Pontiac, 443 F.2d 573, 576 (6th Cir.), cert. denied 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971); Sloan v. Tenth School District, 433 F.2d 587, 590 (6th Cir. 1970); United States v. Board of Education of Tulsa, 429 F. 2d 1253, 1259 (10th Cir. 1970); Brewer v. School Board of Norfolk, 397 F.2d 37, 42 (4th Cir. 1968); United States v. Board of Public Instruction, 395 F.2d 66, 69 (5th Cir. 1968); Kelley v. Altheimer, Arkansas Public School Dist. No. 22, 378 F.2d 483, 496-497 (8th Cir. 1967); Johnson v. San Francisco Unified 236*236 School District, 339 F.Supp. 1315, 1326, 1341 (N.D.Cal.1971); United States v. Board of School Commissioners of Indianapolis, 332 F.Supp. 655 (S.D. Ind.1971) aff'd 474 F.2d 81 (7th Cir. 1973); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 522 (C.D.Cal.1970); United States v. School District 151, 286 F.Supp. 786, 798 (N.D.Ill.),aff'd, 404 F.2d 1125 (7th Cir. 1968); Lee v. Macon County Board of Education, 267 F.Supp. 458, 472 (M. D.Ala.), aff'd per curiam sub nom., Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967).
Record evidence pertaining to Detroit Board of Education building construction practices and their results include:
"Q. Doctor Foster, I show you a document in evidence, Plaintiff's Exhibit 70. I direct your attention to page 15 of the exhibit. The exhibit is School Planning Handbook, Bulletin 412, revised, January,

1970, Michigan Department of Education. Directing your attention to Chapter 2, the School Site, and the last full paragraph in the left-hand column on page 15, Doctor, would you read that paragraph?
"A. `Care in site location must be taken if a serious transportation problem exists or if housing patterns in an area would result in a school largely segregated on racial, ethnic or socio-economic lines.'
"Q. Doctor, would you step down to the map, please? Do you have a copy, Doctor, of Plaintiff's Exhibit 79?
"A. Yes, I do.
"Q. Doctor, would you examine Plaintiff's Exhibit 153, which shows new school construction, 1960 to 1970? Perhaps you had better step back here. Doctor, the black squares on here represent schools opening 80 to 100 per cent black in pupil enrollment. Would you direct your attention to the Drew Junior High School on the map and examine the exhibit and tell me when Drew was opened?
"A. According to the exhibit, the Drew Junior High School was opened in 1970.
"Q. And what was it opened as in terms of its enrollment, Doctor?
"A. 1,587 students.
"Q. And its percent black?
"A. 95 per cent black.
"Q. And the Eileen Primary School, Doctor, can you locate it on the map?
"A. The Eileen Primary is in the Cooley High School zone, I believe.
"Q. And when did it open, Doctor?
"A. 1970.
"Q. And what was its enrollment and its pupil population in terms of black?
"A. 333 students. The per cent black was 99.1.
"Q. Would you examine the map and locate the E. M. Turner Primary?
"A. Yes.
"Q. What year was that opened, Doctor?
"A. The Turner Primary was opened in 1969.
"Q. And its enrollment of pupil population?
"A. 362 pupils, 97.5 percent black.

"Q. Can you find the Stewart School on there, Doctor? "A. The Stewart School is in the same general area as Turner, a little to the south. "Q. What year was it opened? "A. 1970. "Q. Its population and percent black? "A. 766 enrollment, 98.8 percent black. "Q. Marxhausen Primary, Doctor, can you locate that on the map? "A. Marxhausen is in the Finney zone. "Q. Is that near or far away from the A. L. Holmes School, Doctor? "A. As I remember, rather close to the Holmes School. 237*237 "Q. Can you locate the Holmes School with reference to that? "A. The Holmes School is the next one to the northwest. "Q. And what was its pupil population when it opened? "A. Marxhausen was opened in 1970 with a pupil population of 302, 92.4 percent black. "Q. Would you locate Mack Primary, Doctor? "A. Mack Primary is also in the Finney zone. "Q. And when did it open? "A. Mack opened in 1970 with an enrollment of 173, 98.8 percent black. "Q. Could you locate the Angell Primary area, Doctor? "A. The Angell area is in the Northwestern attendance zone. "Q. And what was its enrollment and percent black? "A. Angell was 1,282 students when it opened in 1970. The percent black was 99.9. "Q. Is there an asterisk by that particular school, Doctor? "A. On the exhibit? "Q. Yes.

"A. Yes, there is. "Q. Would you refer to the cover and tell us what that asterisk indicates? "A. It says, `The racial count data included in existing school with the same name.' "Q. Can you locate the Stark School, Doctor? "A. The Stark School is in the Southeastern zone. "Q. And what was its enrollment? "A. The enrollment was 822 when it opened in 1969. "Q. And the percent black? "A. 98.4 percent black. "Q. Can you locate the new King Senior High School, Doctor? "A. The new King Senior High School? "Q. Yes. "A. Here. "Q. When did it open? "A. It opened in 1968. "Q. What was its enrollment? "A. 1,897 pupils. "Q. And its percent black? "A. 98.8 percent black. "Q. Can you locate the Field Annex, Doctor? "A. Just to the northeast of King, the Field Annex. "Q. And what was its enrollment? "A. 461. "Q. Its per cent black? "A. 90.5 per cent black.

"Q. Can you locate the Glazer School, Doctor Foster?
"A. The Glazer School is in the Central zone.
"Q. And when did it open?
"A. In 1967.
"Q. And what was its enrollment, Doctor?
"A. 850 students.
"Q. What was its per cent black?
"A. 100 per cent black."
Similar testimony was given with respect to the Stevenson, Cortez, Beaubien, Sander, St. Clair Annex, Murray, Kettering, Krolik, Joy, Tendler, Belleville, McGraw, Knudsen, Keidan, Jamieson, Butzel, Woodward, Tendler and Norvell Schools. White schools built to accommodate white residential areas included Fox, Lessenger, Murphy, Taft, Fleming, Earhart, Reeves, Brooks and McKenny Annex.
"Q. Thank you, Doctor. "Doctor Foster, from your examination of the pattern of construction in this school system, 1960 to 1970, do you have an opinion as to the effect of that pattern of construction on segregation in the Detroit School System? "A. My opinion is that construction practices were followed in such a way as to increase segregation. I say 238*238 this because of the large number of schools that were opened that were either all black or all white or with a disproportionate number of one race or the other upon opening. * * * * * * "Q. (By Mr. Lucas) Does the location of a school in a particular place have a long term effect on a school system? "A. In terms of the nature of the pupils assigned to the school, do you mean? "Q. Yes, sir. "A. Yes, it does. "Q. Are there alternatives in schoolhouse construction which can or should be considered by a school district in terms of affecting the racial composition of student bodies? "A. In terms of site selection there are, yes. "Q. What are some of the alternatives which can or should be utilized, in your opinion, Doctor? "A. It is customary in this day and age to consider the problem of integration or segregation very carefully in selecting sites for school buildings and, well, this was pointed out, I believe, in the bit I read from the Michigan State Department. "Q. What effect in terms of perception of the community does it have when a school is opened with an overwhelming enrollment of one race or the other? "A. Generally the community perceives, in my opinion, that the school has been thought of as being, going to be an all white school or all black school and in either case generally that it is racially isolated."
(B) The constitutional violations found to have been committed by the State of Michigan.

(1) School districts in the State of Michigan are instrumentalities of the State and subordinate to its State Board of Education and legislature. (See § V(A), pp. 245-249, infra.) Hence, the segregative actions and inactions of the Detroit Board of Education previously outlined are the actions of an agency of the State of Michigan.
(2) In 1970 the Detroit School Board undertook implementation of its April 7 desegregation plan applicable to its high schools. On meeting considerable resistance thereto, it nonetheless proceeded. At that point the State Legislature intervened by Act 48 of the Public Acts of 1970 specifically overruling the Detroit Board of Education's desegregation plan. While this statute has since been invalidated by judgment of this court, 433 F.2d 897, its contribution to preventing desegregation and to continuing and increasing segregation of the Detroit school system cannot be overlooked.
(3) Under Michigan law, M.S.A. § 15.1961, M.C.L.A. 388.851, school building construction plans must be approved by the State Board of Education. Prior to 1962 the State Board also had specific statutory authority to supervise school site selection. The proofs concerning the effect of Detroit's school construction program are therefore largely applicable to show State responsibility for the segregative results.
(4) During the critical years covered by this record the School District of Detroit was denied any allocation of State funds for pupil transportation, although such funds were made generally available for students who lived over a mile and a half from their assigned schools in rural Michigan.
(5) Finally, the cross-district transportation of black high school students from the Carver School, located in Ferndale school district, to a black high school in Detroit could not have taken place without the approval, tacit or express, of the State Board of Education. (See supra pp. 231-232
The District Judge's findings pertaining to constitutional violations by the State of Michigan are as follows:
"The State and its agencies, in addition to their general responsibility for and supervision of public education, 239*239 have acted directly to control and maintain the pattern of segregation in the Detroit schools. The State refused, until this session of the legislature, to provide authorization of funds for the transportation of pupils within Detroit regardless of their poverty or distance from the school to which they were assigned, while providing in many neighboring, mostly white, suburban districts the full range of state supported transportation. This and other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities. "The State, exercising what Michigan courts have held to be is `plenary power' which includes power `to use a statutory scheme, to create, alter, reorganize or even dissolve a school district, despite any desire of the school district, its board, or the inhabitants thereof,' acted to reorganize the school district of the City of Detroit. "The State acted through Act 48 to impede, delay and minimize racial integration in Detroit schools. The first sentence of Sec. 12 of the Act was directly related to the April 7, 1970 desegregation plan. The remainder of the section sought to prescribe for each school in the eight districts criterion of `free choice' open enrollment) and `neighborhood schools' (`nearest school priority acceptance'), which had as their purpose and effect the maintenance of segregation. "In view of our findings of fact already noted we think it unnecessary to parse in detail the activities of the local board and the state authorities in the area of school construction and the furnishing of school facilities. It is our conclusion that these activities were in keeping, generally, with the

discriminatory practices which advanced or perpetuated racial segregation in these schools." 338 F.Supp. at 589.
The District Judge arrived at the following legal conclusions:
"11. Under the Constitution of the United States and the constitution and laws of the State of Michigan, the responsibility for providing educational opportunity to all children on constitutional terms is ultimately that of the state. Turner v. Warren County Board of Education, D.C., 313 F.Supp. 380; Art. VIII, §§ 1 and 2, Mich. Constitution; Daszkiewicz v. Detroit Bd. of Ed. of City of Detroit, 301 Mich. 212, 3 N.W.2d 71. "12. That a state's form of government may delegate the power of daily administration of public schools to officials with less than state-wide jurisdiction does not dispel the obligation of those who have broader control to use the authority they have consistently with the constitution. In such instances the constitutional obligation toward the individual school children is a shared one. Bradley v. Sch. Bd. of City of Richmond, D.C., 51 F.R.D. 139, 143. "13. Leadership and general supervision over all public education is vested in the State Board of Education. Art. VIII, § 3, Mich. Constitution of 1963. The duties of the State Board and superintendent include, but are not limited to, specifying the number of hours necessary to constitute a school day; approval until 1962 of school sites; approval of school construction plans; accreditation of schools; approval of loans based on state aid funds; review of suspensions and expulsions of individual students for misconduct [Op.Atty.Gen., July 7, 1970, No. 4705]; authority over transportation routes and disbursement of transportation funds; teacher certification and the like. M. S.A. 15.1023(1), M.C.L.A. § 388.1001. State law provides review procedures from actions of local or intermediate districts (see M.S.A. 15.3442, M.C.L. 240*240 A. § 340.442), with authority in the State Board to ratify, reject, amend or modify the actions of these inferior state agencies. See M.S.A. 15.3467; 15.1919(61); 15.1919(68(b)); 15.2299 (1); 15.1961; 15.3402, M.C.L.A. §§ 340.467, 388.621, 388.628(a), 388.681, 388.851, 340.402; Bridgehampton School District No. 2 Fractional of Carsonville, Mich. v. Supt. of Public Instruction, 323 Mich. 615, 36 N.W.2d 166. In general, the state superintendent is given the duty `[t]o do all things necessary to promote the welfare of the public schools and public educational instructions and provide proper educational facilities for the youth of the state.' M.S.A. 15.3252, M.C.L.A. § 340.252. See also M.S.A. 15.2299(57), M.C.L.A. § 388.717, providing in certain instances for reorganization of school districts. "14. State officials, including all of the defendants, are charged under the Michigan constitution with the duty of providing pupils an education without discrimination with respect to race. Art. VIII, § 2, Mich. Constitution of 1963. Art. I, § 2, of the constitution provides: `No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.'" 338 F.Supp. at 593-594.
Some of the evidence in this record supporting the District Judge's findings of State acts which discriminatorily affected the Detroit Board of Education and contributed to pupil segregation follows. The State statutory scheme of support of transportation for school children directly discriminated against Detroit. Dr. John W. Porter, the State Superintendent of Public Instruction in Michigan, testified as to the State transportation aid formula:
"Q. (By Mr. Lucas) Dr. Porter, does the State pay the cost of pupil transportation in the State of Michigan? "A. The State pays roughly 75 percent of the cost. Last year the appropriation was $29 million. "Q. Do you know what percent of the school children in the State of Michigan are transported to the school at public expense? "A. Yes, I do. 40 percent of all students in Michigan are transported. That equates out to about 833,000 students last year.

"Q. Dr. Porter, is there some formula in terms of distance which makes a child eligible for transportation that would be aided by the state? "A. Yes. It is a very complicated formula that 197 computations, and we are in the process right now of reducing this — "Q. (Interposing) You mean the financial formula is complicated. But, in terms of distance from his home to the school — "A. A mile and a half outside the city limits. Until this year the legislature amended the Act based upon the recommendations of the State Board of Education to allow for in-city transportation which we had never had before. The legislature did not appropriate funds for that. So, now the funds that are now used are basically for rural areas and suburban areas where the students live a mile and a half from the school. "Q. When you say `city,' is there some limitation? For instance, would Grosse Pointe, Harper Woods, areas like that that surround the City of Detroit, are they eligible for transportation? "A. In the in-city. But, if the students come across the city boundary 241*241lines they live more than a mile and a half, which is quite prevalent throughout the state, then they are eligible for the funds. "Q. Well, I think my question may have been confusing. Is there some type of city — is it just any place incorporated as a city that is differentiated from the rural areas, or certain cities eligible for this state aid at the present time and receive the funds — "THE COURT: I think what Mr. Lucas is trying to get at is whether under the old practice whether any city has ceased state aid for transportation within the city. "A. Yes, we have a number of instances where the city would be receiving aid for transportation, because the law says that if the bus in order to get the students to the school crosses outside of the city boundary, the city is then eligible for aid, and we, and we have a number of instances where that exists. "THE COURT: In other words, where the student originates his ride outside the city limits transportation is assisted? "A. That's right, or where the student lives in the city but the bus has to go outside of the city and come back he is also eligible. This, however, does not negate local city officials, school board officials from providing transportation. There is no prohibition against that. "Q. (By Mr. Lucas) You said the legislature changed the law but didn't provide the money. Now, they are eligible for state aid but it is unfunded now, is that what you are saying? "A. The law was changed last year to permit in-city bus transportation but in changing the law the legislature said our department had to disburse the funds to the eligible existing areas which meant that since they did not increase the amount of funds appropriated we could not provide for in-city transportation. "Q. If a child lives in the city and lives more than a mile and a half from the school to which he is assigned he may not receive the state aid because it is unfunded at the present time? "A. That is correct. "Q. But if he lives the same distance away and lived outside the City of Detroit, for example, then he could receive state aide? "A. That is correct, or any other area."
The clearest example of direct State participation in encouraging the segregated condition of Detroit public schools, however, is that of school construction in Detroit and the surrounding suburban areas. Until 1962 the State Board of Education had direct statutory control over site planning for new school construction. During that time, as was pointed out above, the State approved school construction which fostered segregation throughout the Detroit Metropolitan area. (See supra pp. 235-239). Since 1962 the State Board has continued to be involved in approval of school construction plans.
IV. Conclusion as to Constitutional Violations

The discriminatory practices on the part of the Detroit School Board and the State of Michigan revealed by this record are significant, pervasive and causally related to the substantial amount of segregation found in the Detroit school system by the District Judge.
There is, of course, a significant distinction between this record and those school segregation cases which have flooded the courts since Brown v. Topeka, infra. This distinction is that Michigan has never enforced segregation by State laws which provided for separate black and white school systems, as was the pattern prior to 1954 in many other States. As a consequence, there always have been some instances of actual school integration in Detroit and still more instances of token school integration.
242*242 Defendants seek to insulate themselves from remedial action by federal courts by pointing to the long standing public policy of Michigan, as expressed in its statutes, of integration of public education. However, this court is not blind to the fact that governments can act only through the conduct of their officials and employees and that unconstitutional actions of individuals can be redressed. See, e. g., Clemons v. Board of Education, 228 F.2d 853 (6th Cir.), cert. denied, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868 (1956).
The record in this case amply supports the findings of the District Court of unconstitutional actions by public officials at both the local and State level.
Historically de jure segregation has come about through statutory command explicitly establishing dual school systems. Michigan's declared public policy is urged as a controlling distinction. No matter how important this distinction may be, it does not in our judgment negate the de jure segregation findings entered in this case by the District Judge. As said in United States v. The Board of School Commissioners of the City of Indianapolis, 474 F.2d 81, 83 (7th Cir. 1973): "[T]he actions of the Board of School Commissioners and its duly-appointed representatives and agents may be sufficient to constitute de jure segregation without being based on a state law, or even if they are in derogation of state law forbidding segregation."
The record contains substantial evidence to support the finding of the District Court that the segregation of the Detroit public schools, however rooted in private residential segregation, also was validated and augmented by the Detroit Board of Education and Michigan State Board action of pervasive influence through the system. Even if the segregation practices were a bit more subtle than the compulsory segregation statutes of Southern States, they were nonetheless effective.
It is our view that the findings of fact pertaining to actions of the Detroit Board of Education and the State of Michigan which caused or contributed to Detroit school segregation are not clearly erroneous and that the District Court was therefore authorized and required to take effective measures to desegregate the Detroit Public School System. Brown v. Board of Education of Topeka [I], 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Brown v. Board of Education of Topeka [II], 349 U.S. 294, 75 S. Ct. 753, 99 L.Ed. 1083 (1955); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L. Ed.2d 554 (1971); Davis v. Board of Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971).
This record contains a substantial volume of testimony concerning local and State action and policies which helped produce residential segregation in Detroit and in the metropolitan area of Detroit. In affirming the District Judge's findings of constitutional violations by the Detroit Board of Education and by the State defendants resulting in segregated schools in Detroit, we have not relied at all upon testimony pertaining to segregated housing except as school construction programs helped cause or maintain such segregation.

V. The District Court's Ruling that no Detroit Only Desegregation Plan is Possible
Subsequent to the entry of its findings of constitutional violations on the part of the Detroit Board of Education and the State of Michigan resulting in system-wide segregation of Detroit public schools, the District Court requested plans for Detroit only desegregation. His findings of fact pertaining to these plans warrant repetition:
"FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DETROITONLY PLANS OF DESEGREGATION
"In accordance with orders of the court defendant Detroit Board of Education 243*243submitted two plans, limited to the corporate limits of the city, for desegregation of the public schools of the City of Detroit, which we will refer to as Plan A and Plan C; plaintiffs submitted a similarly limited plan, which will be referred to as the Foster Plan. Hearings were had on said plans on March 14, 15, 16, 17 and 21, 1972. In considering these plans the court does not limit itself to the proofs offered at the hearing just concluded; it considers as part of the evidence bearing on the issue (i. e., City-Only Plans) all proofs submitted in the case to this point, and it specifically incorporates herein by reference the Findings and Conclusions contained in its "Ruling on Issue of Segregation," filed September 27, 1971.
"The court makes the following factual findings:
"PLAN A.
"1. The court finds that this plan is an elaboration and extension of the so-called Magnet Plan, previously authorized for implementation as an interim plan pending hearing and determination on the issue of segregation.
"2. As proposed we find, at the high school level, that it offers a greater and wider degree of specialization, but any hope that it would be effective to desegregate the public schools of the City of Detroit at that level is virtually ruled out by the failure of the current model to achieve any appreciable success.
"3. We find, at the Middle School level, that the expanded model would affect, directly, about 24,000 pupils of a total of 140,000 in the grades covered; and its effect would be to set up a school system within the school system, and would intensify the segregation in schools not included in the Middle School program. In this sense, it would increase segregation.
"4. As conceded by its author, Plan A is neither a desegregation nor an integration plan.
"PLAN C.
"1. The court finds that Plan C is a token or part-time desegregation effort.
"2. We find that this plan covers only a portion of the grades and would leave the base schools no less racially identifiable.

"PLAINTIFFS' PLAN
"1. The court finds that Plaintiffs' Plan would accomplish more desegregation than now obtains in the system, or would be achieved under Plan A or Plan C.
"2. We find further that the racial composition of the student body is such that the plan's implementation would clearly make the entire Detroit public school system racially identifiable as Black.
"3. The plan would require the development of transportation on a vast scale which, according to the evidence, could not be furnished, ready for operation by the opening of the 1972-73 school year. The plan contemplates the transportation of 82,000 pupils and would require the acquisition of some 900 vehicles, the hiring and training of a great number of drivers, the procurement of space for storage and maintenance, the recruitment of maintenance and the not negligible task of designing a transportation system to service the schools.
"4. The plan would entail an overall recasting of the Detroit school system, when there is little assurance that it would not have to undergo another reorganization if a metropolitan plan is adopted.
"5. It would involve the expenditure of vast sums of money and effort which would be wasted or lost.
"6. The plan does not lend itself as a building block for a metropolitan plan.
"7. The plan would make the Detroit school system more identifiably Black, 244*244 and leave many of its schools 75 to 90 per cent Black.
"8. It would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population.
"9. It would subject the students and parents, faculty and administration, to the trauma of reassignments, with little likelihood that such reassignments would continue for any appreciable time.
"In summary, we find that none of the three plans would result in the desegregation of the public schools of the Detroit school district.
"CONCLUSIONS OF LAW
"1. The court has continuing jurisdiction of this action for all purposes, including the granting of effective relief. See Ruling on Issue of Segregation, September 27, 1971.
"2. On the basis of the court's finding of illegal school segregation, the obligation of the school defendants is to adopt and implement an educationally sound, practicable plan of desegregation that promises realistically to achieve now and hereafter the greatest possible degree of actual school desegregation. Green v. County School Board, 391 U.S. 430, [88 S.Ct. 1689, 20 L.Ed.2d 716;] Alexander v. Holmes County Board of Education, 396 U.S. 19, [90 S.Ct. 29, 24 L.Ed.2d 19;] Carter v. West Feliciana Parish School Board, 396 U.S. 290, [90 S.Ct. 608, 24 L.Ed.2d 477;] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, [91 S.Ct. 1267, 28 L. Ed.2d 554.]

"3. Detroit Board of Education Plans A and C are legally insufficient because they do not promise to effect significant desegregation. Green v. County School Board, supra, at 439-440, 88 S.Ct. 1689.
"4. Plaintiffs' Plan, while it would provide a racial mix more in keeping with the Black-White proportions of the student population than under either of the Board's plans or as the system now stands, would accentuate the racial identifiability of the district as a Black school system, and would not accomplish desegregation.
"5. The conclusion, under the evidence in this case, is inescapable that relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city. The State, however, cannot escape its constitutional duty to desegregate the public schools of the City of Detroit by pleading local authority.
* * * * * *
"School district lines are simply matters of political convenience and may not be used to deny constitutional rights. If the boundary lines of the school districts of the City of Detroit and the surrounding suburbs were drawn today few would doubt that they could not withstand constitutional challenge. In seeking for solutions to the problem of school segregation, other federal courts have not "treated as immune from intervention the administrative structure of a state's educational system, to the extent that it affects the capacity to desegregate. Geographically or administratively independent units have been compelled to merge or to initiate or continue cooperative operation as a single system for school desegregation purposes."1
"That the court must look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools is obvious; that it has the authority, nay more, the duty to (under the circumstances of this case) do so appears plainly anticipated by Brown II,2 seventeen years ago. While other school cases have not had to deal with our exact situation,3 the logic 245*245 of their application of the command of Brown II supports our view of our duty.
"FOOTNOTES
"1. Bradley v. Richmond, supra [slip opinion p. 68].
"2. Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, pp. 300-301 [75 S.Ct. 753].
"3. Haney v. County Board of Education of Sevier County, 410 F.2d 920 (8th Cir. 1969); Bradley v. School Board of the City of Richmond, supra, slip opinion pp. 664-65; Hall v. St. Helena Parish School Board, 197 F.Supp. 649 (E.D.La. 1961), aff'd, 287 F.2d 376 (5th Cir. 1961) and 368 U.S. 515 [82 S.Ct. 529, 7 L.Ed.2d 521] (1962); Lee v. Macon County Bd. of Educ., 448 F.2d 746, 752 (5th Cir. 1971); Gomillion v. Lightfoot, 364 U.S. 339 [81 S.Ct. 125, 5 L.Ed.2d 110] (1960); Turner v. LittletonLake Gaston School Dist., 442 F.2d 584 (4th Cir. 1971); United States v. Texas, 447 F. 2d 551 [441] (5th Cir. 1971); Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th Cir. 1971)."
The District Judge's finding that no Detroit only plan can achieve desegregation of the Detroit public school system points up another substantial distinction between this case and the classical school segregation case. This record presents a wholly new fact pattern in a school segregation case so far as this Circuit is concerned. This court never before has been confronted by a finding that any less comprehensive a solution than a metropolitan area plan would result in an all black school system

immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.

Relevant to and supportive of the District Judge's findings are these school census figures showing trends toward segregation in the Detroit schools during the last decade:

1960

100 of 251 schools were 90% or more white

71 of 251 schools were 90% or more black

68% of all schools were 90% or more one race.

1970

69 of 282 schools were 90% or more white

133 of 282 schools were 90% or more black

71.6% of all schools were 90% or more one race.

1960-61

65.8% of the total number of black students in regular schools were 90% or more black schools.

1970-71

74.9% of the total number of black students in regular schools were in 90% or more black schools.

This record reflects a present and expanding pattern of all black schools in Detroit (resulting in part from State action) separated only by school district boundaries from nearby all white schools. We cannot see how such segregation can be any less harmful to the minority students than if the same result were accomplished within one school district.

The boundaries of the Detroit school district are identical to the geographical boundaries of the City of Detroit. This means that the Detroit school district, like the City, contains within its boundaries two entirely separate cites (and school districts), Hamtramck and Highland Park, and surrounds a third City (and school district), Dearborn, on three sides. Immediately adjacent to the boundaries of the Detroit school district are seventeen school districts. An overwhelming majority of these districts, other than Detroit, Highland Park, River Rouge and Hamtramck, are entirely white or contain only a token number of black students.

Like the District Judge, we see no validity to an argument which asserts that the constitutional right to equality before the law is hemmed in by the boundaries of a school district.

A. Status of School Districts under Michigan Law

This conclusion is supported by the status of school districts under Michigan law and by the historial control exercised over local school districts by the legislature of Michigan and by State 246*246 agencies and officials, which we now discuss.
As held by the District Court, it is well established under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative convenience.
The Northwest Ordinance of 1787 governing the Territory of Michigan provided:
"Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Art. III.
With this genesis, Michigan's four Constitutions have clearly established that the public school system in that State is solely a State function. The Constitution of 1835 in Article X, Section 3, provided, in part: "The legislature shall provide for a system of common schools . . ." The Constitution of 1850, Article XIII, Section 4, provided, in part: "The legislature shall . . . provide for and establish a system of primary schools . . ." Section 1 of the same Article provided, ". . . the Superintendent of Public Instruction shall have general supervision of public instruction . . ."
The Constitution of 1908 in Article XI, Section 2, provided that the Superintendent of Public Instruction "shall have general supervision of public instruction in the State." Article XI, Section 9, provided, in part as follows:
"The legislature shall continue a system of primary schools, whereby every school district in the State shall provide for the education of pupils without charge for tuition . . ."
The Constitution of 1963, the present Constitution of the State of Michigan, in Article VIII, Section 2, provides, in part as follows:
"The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law."
In interpreting the above educational provisions of the Constitution of 1850, the Michigan Supreme Court stated: "The school district is a state agency. Moreover, it is of legislative creation . . ." Attorney General v. Lowrey, 131 Mich. 639, 644, 92 N.W. 289, 290 (1902). Again, interpreting the Constitution of 1850, the Supreme Court of Michigan in Attorney General v. Detroit Board of Education, 154 Mich. 584, 590, 118 N.W. 606, 609 (1908),adopted lower court language which read:
"Education in Michigan belongs to the state. It is no part of the local self-government inherent in the township or municipality, except so far as the Legislature may choose to make it such. The Constitution has turned the whole subject over to the Legislature . . ."
The Supreme Court of Michigan interpreted Article XI, Section 9, of the Constitution of 1908 to mean:
"The Legislature has entire control over the schools of the state subject only to the provisions above referred to. The division of the territory of the state into districts, the conduct of the school, the qualifications of teachers, the subjects to be taught therein, are all within its control." Child Welfare v. Kennedy School Dist., 220 Mich. 290, 296, 189 N.W. 1002, 1004 (1922).

In the leading case concerning construction of this section of the Michigan Constitution of 1963, the Michigan Supreme Court said:
"It is the responsibility of the state board of education to supervise the system of free public schools set up by the legislature and, as a part of that responsibility, to promulgate regulations specifying the number of hours necessary to constitute a school day for elementary school students as well as for other classifications or groupings of students, to determine the curricula and, in general, to exercise leadership 247*247 and supervision over the public school system." Welling v. Livonia Board of Education, 382 Mich. 620, 624, 171 N.W.2d 545, 546 (1969). See also Governor v. State Treasurer, 389 Mich. 1, 13, 203 N.W.2d 457 (1972).
Michigan has not treated its school districts as sacrosanct. To the contrary, Michigan always has regarded education as the fundamental business of the State as a whole. Local school districts are creatures of the State and act as instrumentalities of the State under State control. Cf. Senghas v. L'Anse Creuse Public Schools, 368 Mich. 557, 118 N.W.2d 975 (1962); McLaughlin v. Board of Education, 255 Mich. 667, 239 N.W. 374 (1931).
The record discloses a number of examples of State control over local public education in Michigan.
1. Following the holding of Welling v. Livonia Board of Education, supra, that there was no minimum length of day required under the 180-day school attendance rule absent a State Board of Education regulation, the Michigan State Board of Education, acting under its Constitutional mandate without legislative authority, established an administrative rule requiring local school boards to provide a minimum number of hours per school year. See, School Districts Child Account for Distribution of State Aid, Bulletin No. 1005, Michigan State Department of Education (1970).
2. Public Act 289 of 1964 (M.S.A. § 15.2299(1) et seq., M.C.L.A. § 388.681 et seq.) required Michigan school districts to operate K-12 systems. When Public Act 289 became effective, 1,438 public school districts existed in Michigan. By the beginning of 1968, this figure had been reduced to 738, meaning that 700 school districts in Michigan have disappeared since 1964 through reorganization. Annual Report, Committee on School District Reorganization, 1968 Journal of the Senate 422-423 (March 1, 1968).
3. Pursuant to Act 289 of 1964, supra, the State Board of Education ordered the merger of the Brownstown No. 10, Hand, Maple Grove and Carson school districts, all in Wayne County. The action is best explained by the fact that Brownstown was, at that time, the wealthiest school district in the State, indeed, with a property valuation of $340,000 backing each child, perhaps the wealthiest district in the nation, while the other three districts were extremely poor.
4. When the Sumpter School District was on the verge of bankruptcy in 1968, the State Board of Education, acting under Public Act 239 of 1967 (M.S.A. § 15.2299(51) et seq., M.C.L.A. § 388.711 et seq.), merged the district with four adjoining districts, including the Airport School District. Significantly, though Sumpter was in Wayne County, Airport was in Monroe County, showing that county lines are not inviolate in Michigan.
5. The Nankin Mills School District in Wayne County was beset with financial problems and had no high school. Again, pursuant to Act 239, the State Board of Education in 1969 ordered this school district to merge with the Livonia, Garden City and Wayne Community schools.
6. When the Inkster School District in Wayne County was on the verge of financial bankruptcy, the Michigan legislature passed Public Act 32 of 1968 (M.S.A. § 15.1916 et seq., M.C.L.A. § 388.201 et seq.) enabling the district to borrow $705,000 but on the condition that if the district could not

balance its budget, the State Board of Education could reorganize, merge or annex the district. The legislative history of Act 32 indicates at least two legislators voted against the bill in the House of Representatives because of the excessive control given to the State Board of Education:
"I voted No on House Bill No. 3332 because in setting up the machinery to bail out distressed districts, it takes from the local communities the control over their own educational system by 248*248 providing for excessive arbitrary reorganization powers in the hands of the Board of Education . . ." "This bill certainly sets up the State Board of Education to be a dictator of all school districts that run into financial problems." 1968 Journal of the House of Representatives 1965.
7. Too small and too poor to operate a high school, the all-black Carver School District in suburban Oakland County reached a crisis in 1960 when other surrounding white districts refused to accept Carver pupils on a tuition basis. The Carver district was merged with Oak Park.
8. The State Board of Education and Superintendent of Public Instruction may withhold State aid for failure to operate the minimum school year. M.S.A. § 15.3575, M.C.L.A. § 340.575. In 1970, funds were withheld from the City of Grand Rapids School District. 17 Michigan School Board Journal 3 (March, 1970). For Attorney General Opinions holding that State aid may be withheld by the State Board of Education from school districts for hiring uncertified teachers, defaulting on State loans and for other reasons, see Op.Atty.Gen. No. 880, 1949-1950 Report of the Attorney General 104 (January 24, 1949, Roth); No. 2333, 1955 Report of the Attorney General 561 (October 20, 1955, Kavanaugh); No. 4097, 1961-1962 Report of the Attorney General 553 (October 8, 1962, Kelley).
9. The State of Michigan contributes, on the average, 34% of the operating budgets of the 54 school districts included in the proposed Metropolitan Plan of Integration. In eleven of the 54 districts, the State's contribution exceeds 50% and in eight more, it exceeds 40%. State aid is appropriated from the General Fund, revenue raised through state-wide taxation, and is distributed annually to the local school districts under a formula devised by the legislature. See, e. g., Public Act 134 (1971), M.S.A. § 15.1919(51), M.C.L.A. § 388.611.
Though the local school districts obtain funds from the assessment of local property, the ultimate authority in insuring equalized property valuations throughout the State is the State Tax Commission. M.S.A. § 7.631 et seq., M. C.L.A. § 209.101 et seq.; M.S.A. § 7.206, M.C.L.A. § 211.148; M.S.A. § 7.52, M.C.L.A. § 211.34. The State's duty to equalize is required by the Michigan Constitution, Article IX, Section 3. This "State equalized valuation" serves as the basis for calculating local revenue yields. See, Ranking of Michigan Public High School — School Districts by Selected Financial Data, 1970, Bulletin 1012, Michigan State Department of Education (1971).
10. The Michigan School Code reaffirms the ultimate control of the State over public education. Local school districts must observe all State laws relating to schools,[1] hold school a minimum number of days per year,[2] employ only certified teachers,[3] teach civics, health and physical education and drivers' education,[4] excuse students to attend religious instruction classes,[5] observe State requirements when teaching sex education,[6] make annual financial and other reports to the Superintendent of Public Instruction,[7] adopt only textbooks which are listed with the Superintendent 249*249 of Public Instruction[8] and must follow all rules and regulations of the State Department of Education.
Local school districts, unless they have the approval of the State Board of Education or the Superintendent of Public Instruction, cannot consolidate with another school district,[9] annex territory,[10] divide or attach parts of other districts,[11] borrow monies in anticipation of State aid,[12] or construct, reconstruct or remodel school buildings or additions to them.[13]

The power to withhold State aid, of course, effects enormous leverage upon any local school district, since on the average 34 per cent of the operation budget of the 54 school districts included in the proposed Metropolitan Plan is paid for by the State.
In the instance of the City of Detroit, the State exhibited its understanding of its power over the local school district by the adoption of Act 48 of the Public Acts of 1970 which repealed a high school desegregation plan previously adopted by the Detroit Board of Education. See 433 F.2d 897.
B. De Jure Acts of Segregation
Thus, the record establishes that the State has committed de jure acts of segregation and that the State controls the instrumentalities whose action is necessary to remedy the harmful effects of the State acts. There can be little doubt that a federal court has both the power and the duty to effect a feasible desegregation plan. Indeed, such is the essence of Brown II. Brown v. Board of Education, 349 U.S. 294, 300-301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). In the instant case the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan. The power to disregard such artificial barriers is all the more clear where, as here, the State has been guilty of discrimination which had the effect of creating and maintaining racial segregation along school district lines. See Section III B, pp. 238-241, supra. United States v. Scotland Neck Board of Education, 407 U.S. 484, 489, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972); Wright v. City of Emporia, 407 U.S. 451, 463, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); United States v. State of Texas, 447 F.2d 441, 443-444 (5th Cir. 1971); Haney v. County Board of Education of Sevier County, 429 F.2d 364, 368 (8th Cir. 1970). See also Davis v. Board of School Commissioners, 402 U.S. 33, 36-38, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971).
There exists, however, an even more compelling basis for the District Court's crossing artificial boundary lines to cure the State's constitutional violations. The instant case calls up haunting memories of the now long overruled and discredited "separate but equal doctrine" of Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L.Ed. 256 (1896). If we hold that school district boundaries are absolute barriers to a Detroit school desegregation plan, we would be opening a way to nullify Brown v. Board of Education which overruled Plessy, supra.
This court in considering this record finds it impossible to declare "clearly erroneous" the District Judge's conclusion that any Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black.
250*250 We deal with a record which demonstrates more than ample support for the District Judge's findings of unconstitutional segregation by race resulting in major part from action and inaction of public authorities, both local and State. This segregation is found in the school system of the inner city of a metropolitan area 81% white against 19% nonwhite. Under this record a remedial order of a court of equity which left the Detroit school system overwhelmingly black (for the foreseeable future) surrounded by suburban school systems overwhelmingly white cannot correct the constitutional violations herein found.
VI. The District Judge's Order to Prepare A Metropolitan Area Desegregation Plan

The third major issue in this case pertains to the validity of the District Judge's ruling on desegregation area and order for development of a plan of desegregation dated June 14, 1972, accompanied by a statement of findings of facts and conclusions of law in support thereof, reported at 345 F.Supp. 914.
At the outset it is obvious from what we have said pertaining to the inadequacy of any Detroit only desegregation plan that this court feels that some plan for desegregation beyond the boundaries of the Detroit School District is both within the equity powers of the District Court and essential to a solution of this problem. We reiterate this, keeping in mind the admonition from Chief Justice Marshall:
"The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly case to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803).
We reject the contention that school district lines are sacrosanct and that the jurisdiction of the District Court to grant equitable relief in the present case is limited to the geographical boundaries of Detroit. We reiterate that school districts and school boards are instrumentalities of the State. See Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 3 L. Ed.2d 5 (1958). As early as Brown II the Supreme Court pointed out that:
"[T]he courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, . . ." 349 U.S. at 300-301, 75 S.Ct. at 756.
The Supreme Court has held that school boundary lines cannot be changed or new school systems created where the result is a larger imbalance in racial ratios in school systems where all vestiges of enforced racial segregation have not been eliminated. United States v. Scotland Neck Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972); Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). This is true regardless of "dominant purpose." Wright v. City of Emporia, 407 U.S. at 462, 92 S.Ct. 2196.
If school boundary lines cannot be changed for an unconstitutional purpose, it follows logically that existing boundary lines cannot be frozen for an unconstitutional purpose.
We therefore conclude that the District Court in the present case is not confined to the boundary lines of Detroit in fashioning equitable relief.
Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (4th Cir. 1972), aff'd by an equally divided court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973), is distinguishable in several respects. In that case the District Court ordered an actual consolidation of three separate school districts, all of which the Court of Appeals for the Fourth Circuit declared to be unitary. 251*251 In the instant case the District Court has not ordered consolidation of school districts, but directed a study of plans for the reassignment of pupils in school districts comprising the metropolitan area of Detroit. In the Richmond case the court found that neither the Constitution nor statutes of Virginia, previously or presently in effect, would have permitted the State Board of Education, acting alone, to have effected a consolidation of the three school districts into a single system under the control of a single school board. The Fourth Circuit held that compulsory consolidation of political subdivisions of the State of Virginia was beyond the power of a federal court because of the Tenth Amendment to the Constitution of the United States. The decisions which now are under review did not contemplate such a restructuring.

Furthermore, the court in the Richmond case cited provisions of the Constitution and statutes of Virginia in support of its holding that —
"The power to operate, maintain and supervise public schools in Virginia is, and always has been, within the exclusive jurisdiction of the local school boards and not within the jurisdiction of the State Board of Education." 462 F.2d at 1067.
The record in the present case amply supports the finding that the State of Michigan has not been subject to such limitations in its dealings with local school boards.
VII. Rights of Other School Districts To Be Made Parties and To Be Heard
In his "Ruling on Propriety of Considering a Metropolitan Remedy" the District Court defined the metropolitan area "for the present purposes" to comprise the three counties of Wayne, Oakland and Macomb. In his "Findings of Fact and Conclusions of Law in Support of Ruling on Desegregation Area and Development Plans" the District Court noted that "the court has taken no proofs with respect to the establishment of the boundaries in the counties of Wayne, Oakland and Macomb." In his "Ruling on Desegregation Area and Order for Development of Plan of Desegregation," the District Court defined the desegregation area to include some 53 school districts. Certain of these school districts have intervened in this case, but have not yet been afforded an opportunity to offer proof. Some of the other school districts are not parties to the litigation.
In United States v. Texas Education Agency, 467 F.2d 848, 873 (5th Cir. 1972), the Court said:
"The discriminatory acts of the school authorities infect the entire school system; they are particularly obvious in the so-called `pockets'. Some schools may be the `result' of state-imposed segregation even though no specific discriminatory school board action may be shown as to those schools. Had the school authorities not specifically segregated the minority students in certain schools other schools may have developed as desegregated facilities. Thus, though they may not be `pockets of discrimination', these schools are the `results' of discrimination."
Under the authorities heretofore discussed, these school districts are arms and instrumentalities of the State of Michigan. Nevertheless, under Michigan law, they may sue and be sued. See M.S.A. §§ 15.3154, 15.3192, M.C. L.A. §§ 340.154, 340.192.
Rule 19, Fed.R.Civ.P., provides that a person who is subject to service of process shall be joined as a party to the action if "in his absence complete relief cannot be accorded among those already parties." Under this rule joinder of necessary parties is required if jurisdiction over them can be obtained and if joinder will not defeat federal jurisdiction of the case.
We hold that school districts which are to be affected by the decree of the District Court are "necessary parties" under Rule 19. As a prerequisite 252*252 to the implementation of a plan in this case affecting any school district, the affected district first must be made a party to this litigation and afforded an opportunity to be heard.
While agreeing with the District Court in its conclusion that it can consider a metropolitan remedy, we express no views as to the desegregation area set forth in the orders of the District Court.

We vacate the order of March 24, 1972, entitled "Ruling on Propriety of a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of Detroit."
This Court recognizes that, as set forth above, the legislature of the State of Michigan has power to provide a complete remedy for the unconstitutional segregation disclosed in this record. It, too, has responsibility for following the great mandates of the United States Constitution.
If, however, the legislature fails to act, or it it acts in a manner inconsistent with the expeditious and efficient elimination of the unconstitutional practices and conditions described in this opinion, the District Court shall proceed to fashion such a remedy, including an interim remedy if found to be necessary, as it shall determine to be appropriate within the guidelines of this opinion.
On remand, any party against whom relief is sought, including school districts which heretofore have intervened and school districts which hereafter may become parties to this litigation, shall be afforded an opportunity to offer additional evidence, and to cross-examine available witnesses who previously have testified, on any issue raised by the pleadings, including amendments thereto, as may be relevant and admissible to such issues. The District Court may consider any evidence now on file and such additional competent evidence as may be introduced by any party. However, the District Court will not be required to receive any additional evidence as to the matters contained in its Ruling on the Issue of Segregation, dated September 27, 1971, and reported at 338 F. Supp. 582, or its Findings of Fact and Conclusions of Law on the "Detroit-only" plans of desegregation, dated March 28, 1972. We hold that the findings of fact contained in these rulings are not clearly erroneous, Rule 52(a), Fed.R.Civ.P., but to the contrary are supported by substantial evidence.
Upon remand, the plaintiffs and other parties shall be permitted to amend their pleadings to conform to the evidence (see Rule 15(b), Fed.R.Civ.P.), to add additional parties and to ask for any additional appropriate relief, the details of such amendments to be under the continuing supervision of the District Court.
We also vacate the District Court's Ruling on Desegregation Area and Development Plan, dated June 14, 1972, reported at 345 F.Supp. 914, except those parts of the order appointing a panel charged with the duty of preparing interim and final plans of desegregation. The panel appointed by the District Court is authorized to proceed with its studies and planning under the direction of the District Court. Pending further orders of the District Court or this Court, the defendants and school districts involved will continue to supply administrative and staff assistance to the panel upon its request. Until further order of the court, the reasonable costs incurred by the panel will be paid as provided by the District Court's order of June 14, 1972.
The order of the District Court directing the purchase of school buses, dated July 11, 1972, also is vacated, subject to the right of the District Court, in its discretion, to consider the entry of another order requiring the purchase of school buses at the appropriate time.
VIII. Equitable Relief
In this opinion we have emphasized the broad powers of a District Court to fashion equitable relief in school desegregation cases. For the 253*253 guidance of the District Court on remand, we now review the decisions on this subject in further depth.
1) The Fundamental Constitutional Holding:

"We conclude that in the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." Brown v. Board of Education, 347 U. S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954).
2) The Supreme Court's Initial Description of the Equitable Remedy:
"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies4 and by a facility for adjusting and reconciling public and private needs.5 These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. 4 See Alexander v. Hillman, 296 U.S. 222, 239, 56 S.Ct. 204, 80 L.Ed. 192. 5 See Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 88 L.Ed. 754.
"While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases." Brown v. Board of Education of Topeka [II], 349 U.S. 294, 300301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955).
3) Delay Is No Longer Tolerable:
"In determining whether respondent School Board met that command by adopting its `freedom-ofchoice' plan, it is relevant that this first step did not come until some 11 years after Brown I was decided and 10 years after Brown II directed the making of a `prompt and reasonable start.' This deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system. Such delays are no longer tolerable, for `the governing constitutional principles no longer bear the imprint of newly enunciated doctrine.' Watson v. City of Memphis, supra,373 254*254 U.S. at 529, 83 S.Ct. 1314, 10 L.Ed. 2d 529; see Bradley v. School Board, supra; Rogers v. Paul, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265. Moreover, a plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable. `The time for mere "deliberate speed" has run out,' Griffin v. County School Board, 377 U.S. 218, 234, 84 S.Ct. 1226, 12 L.Ed.2d 256; `the context in which we must interpret and apply this language [of Brown II] to plans for desegregation has been significantly altered.' Goss v. Board of Education, 373 U.S. 683, 689, 83 S.Ct. 1405, 10 L.Ed.2d 632.

See Calhoun v. Latimer, 377 U.S. 263, 84 S.Ct. 1235, 12 L.Ed.2d 288. The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now." Green v. County School Board, 391 U.S. 430, 438-439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968) (Emphasis added.)
4) State Imposed Segregation Must be Completely Removed at Earliest Practicable Date:
"The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weight that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness. Where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system `at the earliest practicable date,' then the plan may be said to provide effective relief. Of course, the availability to the board of other more promising courses of action may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed. See No. 805, Raney v. Board of Education, post, 391 U.S. 443 at 449, 88 S.Ct. 1697, 20 L.Ed.2d 727." Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716 (1968) (Emphasis added.)
5) The Court Has The Power and The Duty to Eliminate Effects of Past Discrimination:
"We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965). (Emphasis added). Compare the remedies discussed in, e. g.,NLRB v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 60 S.Ct. 203, 84 L.Ed. 219 (1939); United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160 (1944); Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L. Ed. 619 (1911). See also Griffin v. County School Board, 377 U.S. 218, 232-234, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). Green v. County School Board, 391 U.S. 430, n. 4 at 438, 88 S. Ct. 1689, 20 L.Ed.2d 716 (1968) (relating to the remedial command of Brown II).
6) Resegregation is Impermissible:
"Like the transfer provisions held invalid in Goss v. Board of Education, 255*255373 U.S. 683, 686, 83 S.Ct. 1405, 10 L.Ed.2d 632 `[i]t is readily apparent that the transfer [provision] lends itself to perpetuation of segregation.' While we there indicated that `free-transfer' plans under some circumstances might be valid, we explicitly stated that `no official transfer plan or provision of which racial segregation is the inevitable consequence may stand under the Fourteenth Amendment.' Id., at 689, 83 S.Ct. at 1409. So it is here; no attempt has been made to justify the transfer provision as a device designed to meet `legitimate local problems,' ibid.; rather it patently operates as a device to allow resegregation of the races to the extent desegregation would be achieved by geographically drawn zones. Respondent's argument in this Court reveals its purpose. We are frankly told in the Brief that without the transfer option it is apprehended that while students will flee the school system altogether. `But it should go without saying that the vitality of these constitutional principles cannot

be allowed to yield simply because of disagreement with them.' Brown II, 349 U.S. at 300, 75 S.Ct. at 756. "We do not hold that `free transfer' can have no place in a desegregation plan. But like `freedom of choice,' if it cannot be shown that such a plan will further rather than delay conversion to a unitary, nonracial, nondiscriminatory school system, it must be held unacceptable. See Green v. County School Board, supra, 391 U.S. at 439-441, 88 S.Ct. 1689. "We conclude, therefore, that the Board `must be required to formulate a new plan and, in light of other courses which appear open to the Board, . . . fashion steps which promise realistically to convert promptly to a system without a `white' school and a `Negro' school, but just schools." Id., at 442, 88 S.Ct. 1689. Monroe v. Board of Commissioners, 391 U.S. 450, 459-460, 88 S.Ct. 1700, 1705, 20 L.Ed.2d 733 (1968) (Emphasis added.)
7) The Remedial Tools:
In Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed. 2d 554 (1971), Chief Justice Burger, writing for a unanimous Court, said:
"If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. `The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.' Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 88 L.Ed. 754 (1944), cited in Brown II, supra, 349 U.S. at 300, 75 S.Ct. 753." a) The Flexible Ratio: "As the voluminous record in this case shows, the predicate for the District Court's use of the 71%29% ratio was twofold: first, its express finding, approved by the Court of Appeals and not challenged here, that a dual school system had been maintained by the school authorities at least until 1969; second, its finding, also approved by the Court of Appeals, that the school board had totally defaulted in its acknowledged duty to come forward with an acceptable plan of its own, notwithstanding the patient efforts of the District Judge who, on at least three occasions, urged the board to submit plans. As the statement of facts shows, these findings are abundantly supported by the 256*256 record. It was because of this total failure of the school board that the District Court was obliged to turn to other qualified sources, and Dr. Finger was designated to assist the District Court to do what the board should have done. "We see therefore that the use made of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement. From that starting point the District Court proceeded to frame a decree that was within its discretionary powers, as an equitable remedy for the particular circumstances. As we said in Green, a school authority's remedial plan or a district court's remedial decree is to be judged by its effectiveness. Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court." Swann v. Board of Education, 402 U.S. 1, 24-25, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971). b) Noncontiguous School Zoning: "The maps submitted in these cases graphically demonstrate that one of the principal tools employed by school planners and by courts to break up the dual school system has been a frank — and sometimes drastic — gerrymandering of school districts and attendance zones. An additional step was pairing, `clustering,' or `grouping' of schools with attendance assignments made deliberately to accomplish the transfer of Negro students out of formerly segregated Negro schools and transfer of white students to formerly all-Negro schools. More often than not, these zones are

neither compact nor contiguous; indeed they may be on opposite ends of the city. As an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a court. "Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems. "No fixed or even substantially fixed guidelines can be established as to how far a court can go, but it must be recognized that there are limits. The objective is to dismantle the dual school system. `Racially neutral' assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a `loaded game board,' affirmative action in the form of remedial altering of attendance zones is proper to achieve truly non-discriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral. "In this area, we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals. "We hold that the pairing and grouping of noncontiguous school zones is a permissible tool and such action is to be considered in light of 257*257 the objectives sought. Judicial steps in shaping such zones going beyond combinations of contiguous areas should be examined in light of what is said in subdivisions (1), (2), and (3) of this opinion concerning the objectives to be sought. Maps do not tell the whole story since noncontiguous school zones may be more accessible to each other in terms of the critical travel time, because of traffic patterns and good highways, than schools geographically closer together. Conditions in different localities will vary so widely that no rigid rules can be laid down to govern all situations." Swann v. Board of Education, supra, at 27-29, 91 S.Ct. at 1281-1282. (Emphasis added.) c) Transportation of Students: "The scope of permissible transportation of students as an implement of a remedial decree has never been defined by this Court and by the very nature of the problem it cannot be defined with precision. No rigid guidelines as to student transportation can be given for application to the infinite variety of problems presented in thousands of situations. Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. Eighteen million of the Nation's public school children, approximately 39%, were transported to their schools by bus in 1969-1970 in all parts of the country. "The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this and the companion case, Davis, supra. The Charlotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965 and then they allowed almost unlimited transfer privileges. The District Court's conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record. "Thus the remedial techniques used in the District Court's order were within that court's power to provide equitable relief; implementation of the decree is well within the capacity of the school authority. "The decree provided that the buses used to implement the plan would operate on direct routes. Students would be picked up at schools near their homes and transported to the schools they were to attend. The trips for elementary school pupils average about seven miles and the District Court found that they would take `not over 35 minutes at the most.' This system compares favorably with the transportation plan previously operated in Charlotte under which each day 23,600 students on all

grade levels were transported an average of 15 miles one way for an average trip requiring over an hour. In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. Desegregation plans cannot be limited to the walk-in school. "An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process. District courts must weigh the soundness of any transportation plan in light of what is said in subdivisions (1), (2), and (3) above. It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students. The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets but fundamentally no more so than remedial measures courts of equity have traditionally employed." Swann v. Board of Education, 258*258 supra, at 29-31, 91 S.Ct. at 1282-1283. (Emphasis added.)
In North Carolina v. Swann, 402 U.S. 43, 46, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586 (1971), the Chief Justice said: "As noted in Swann, supra, 402 U.S. at 29, 91 S.Ct. at 1282, bus transportation has long been an integral part of all public educational systems, and it is unlikely that a truly effective remedy could be devised without continued reliance on it."
d) Equity Power to Require Payment of Tax Funds for Integrated Schools:
In the exercise of its equity powers, a District Court may order that public funds be expended, particularly when such an expenditure is necessary to meet the minimum requirements mandated by the Constitution. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 233, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Eaton v. New Hanover County Board of Education, 459 F.2d 684 (4th Cir. 1972); Brewer v. School Board of City of Norfolk, 456 F. 2d 943, 947, 948 (4th Cir.), cert. denied, 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972); Plaquemines Parish School Board v. United States, 415 F.2d 817 (5th Cir. 1969).
This opinion heretofore has emphasized that the Legislature of Michigan has an opportunity to determine the organizational and governmental structure of an enlarged desegregation area to remedy the unconstitutional segregation results set forth in this opinion. In the event the Legislature fails to act effectively and expeditiously, the foregoing and other cases cited in this opinion outline the broad scope of equitable relief that may be fashioned by the District Court in this case on remand after all school districts to be affected are afforded an opportunity to be heard as hereinabove provided.
IX. Other Issues
Numerous other issues are presented which do not require discussion.
We do not consider it necessary to construe the "Broomfield Amendment," Pub.L. No. 92-318, 86 Stat. 235, § 803, known as the Education Amendments of 1972, since no final desegregation order has been entered. Deal v. Cincinnati Board of Education, 419 F.2d 1387, 1392 (6th Cir. 1969), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971) is not controlling. There the District Court made findings of fact that there had been no unconstitutional conduct on the part of the Cincinnati Board of Education. This court held that these findings of fact were not clearly erroneous. Rule 52(a), Fed.R. Civ.P.
All other contentions presented by the parties contrary to the conclusions reached in this opinion have been considered and are found to be without merit.

X. Conclusion
1. The Ruling of the District Court on the Issue of Segregation, dated September 27, 1971, and reported at 338 F. Supp. 582, is affirmed.
2. The findings of fact and conclusions of law on "Detroit-only" plans of desegregation, dated March 28, 1972, are affirmed.
3. The Ruling on Propriety of a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, dated March 24, 1972, is affirmed in part, but vacated for the reasons set forth above.
4. The Ruling on Desegregation Area and Development of Plan, dated June 14, 1972, and reported at 345 F. Supp. 914, is vacated except as hereinabove prescribed.
5. The order dated July 11, 1972, directing the purchase of school buses is vacated.
The case is remanded to the District Court for further proceedings not inconsistent with this opinion.
No costs are taxed. Each party will bear his own costs.
259*259 EDWARDS, CELEBREZZE, PECK, McCREE, and LIVELY, Circuit Judges, concur.
WEICK, Circuit Judge (dissenting):
Eighty-seven years before the landmark decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) was announced, the legislature of the State of Michigan, in Public Acts of Michigan, 1867, Act 34 § 28, had abolished segregation in the public school system which had prohibited Negro children from attending the same public schools as white children. This statute in relevant parts reads as follows:
"All residents of any district shall have an equal right to attend any school therein. . . ."
The Supreme Court of Michigan, in an opinion written for the court by Chief Justice Cooley, construed the statute in 1869 and held it applicable to Detroit and that Detroit constituted one school district. In granting a writ of mandamus requiring the school board to admit a Negro child who had been denied admission, Chief Justice Cooley said:
"It cannot be seriously urged that with this provision in force, the school board of any district which is subject to it may make regulations which would exclude any resident of the district from any of its schools, because of race or color, or religious belief, or personal peculiarities. It is too plain for argument that an equal right to all of the schools, irrespective of such distinctions, was meant to be established." People, ex rel. Workman v. Board of Education of Detroit, 18 Mich. 400, 409 (1869).
The issues in this case do not concern the right of any Negro child in Detroit to attend any school he desires in that City. They do involve the authority of a district judge to adopt a so-called metropolitan plan designed to integrate the Negro school children living in Detroit with white children living in three adjoining counties and attending public schools in fifty-two additional school districts, eighteen of which districts have never been made parties to this lawsuit. Conditions were imposed on the districts allowed to intervene which rendered their intervention ineffective.

The District Judge followed the pattern of Judge Merhige in the Richmond case whose decision was reversed by the Fourth Circuit in Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (4th Cir. 1972), aff'd by equally divided court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (Nos. 72549, 72-550, 1973). 41 U.S.L.W. 4685. The fact that Richmond involved dismantling of a dual system was regarded as unimportant by the District Judge.
In an unprecedented opinion, a panel of this Court and now a majority of the en banc Court have upheld findings of the District Court that segregation exists in Detroit and that it cannot be dismantled with a Detroit-only plan of desegregation and the District Court may consider and adopt a metropolitan plan.[1]
Just to start such a plan involves the expenditure of about $3,000,000 for the purchase of 295 buses and untold millions of dollars to operate them and for other expenses. It will involve about 780,000 children and, if ordered by the court, will force the busing of black children, against their will and without the consent of their parents, from the inner city of Detroit to one or more of the fifty-three different school districts in four counties, and the white children of these districts will be forcibly bused to 260*260 the inner city. None of these children have committed any offense for which they should be so punished. It will disrupt the lives of these children and their parents. The metropolitan plan was ill conceived and is a legal monstrosity. However, such a plan will achieve a racial balance or quota in the desegregation area, which is what plaintiffs are seeking.
The District Court made no findings that any of the fifty-two school districts outside of Detroit had practiced desegregation tactics against Negro children in their districts or in any other district, or that they were in any wise responsible for the concentration of Negroes or their segregation in Detroit.
These fifty-two school districts have been created by the legislature as separate and independent corporate units with power to sue and be sued. They are governed by locally-elected Boards of Education. In each district, the real estate of the people living therein is taxed for the support of their public schools.
The school districts were established by neutral legislation when the cities were incorporated. There was not an iota of evidence in the record that the boundaries of the Detroit school district, or any other school district in Michigan, were established for the purpose of creating, maintaining or perpetuating segregation of the races. No such claim was ever made by the plaintiffs.
In 1910, long after the districts were created, the black population of Detroit was only 1.2% of the total population of the City. By 1970 it had increased to 43.9% of the total population of 1,511,000. It is obvious that the great influx of blacks, as well as whites, to Detroit was influenced by the favorable industrial climate existing in Michigan and the ability of its industry, principally automotive, to provide jobs.
In the school year 1970-1971, there was 285,512 students in the public school system in Detroit of which 168,200 or 63.8% were black and 117,312 or 37.2% were white. The School Board of Detroit ought not to be blamed for the heavy concentration of blacks in the inner City, for housing conditions, or for discrimination by public or private agencies or individuals and ought not to be saddled with the duty to dismantle the concentration. These same conditions exist in other cities throughout the country regardless of the type of school system in effect — whether de jure or de facto. Nor should the adjoining three counties and the fifty-two school districts be penalized because they are located near Detroit.
In his book Negroes in Cities, Dr. Karl Taeuber states that residential segregation exists "regardless of the character of local laws and policies and regardless of other forms of discrimination". He said

substantially the same thing in his article "Residential Segregation" in the August, 1965 issue of Scientific American.
In Bradley v. School Board of City of Richmond, 462 F.2d 1058 (4th Cir. 1972), aff'd by equally divided Court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (Nos. 72-549, 72-550, (1973), 41 U. S.L.W. 4685, the Court said:
"The root causes of the concentration of blacks in the inner city are simply not known. . . ."
And:
"Whatever the basic causes, it has not been school assignments and school assignments cannot reverse that trend."
The District Court was motivated in its decision by social considerations. In a pretrial conference on October 4, 1971 the District Court stated:
"We need not recite the many serious problems such a plan entails, suffice it to say that a plan of such dimensions can hardly be conceived in a day, to say nothing of the time it will require for implementation. A large metropolitan area such as we have in our case can not be made the subject of instant integration. We must bear in mind that the task we are called upon to perform is a social one, which 261*261 society has been unable to accomplish. In reality, our courts are called upon, in these school cases, to attain a social goal, through the educational system, by using law as a lever." App. IV, pp. 454, 455. This is incredible!
It is submitted that the courts are not called upon to integrate the school system, using law as a lever. Nor should judges assume to act as legislators, for which they are neither fitted nor qualified. It is enough for judges to perform their judicial function and to abide by the separation of powers doctrine provided by our Constitution.
The thesis of the panel which wrote the original opinion in this appeal is best stated in its own words in its slip opinion:
"This court in considering this record finds it impossible to declare `clearly erroneous' the District Judge's conclusion that any Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black. Big city school systems for blacks surrounded by suburban school systems for whites cannot represent equal protection of the law." Slip Opin. p. 65.
The majority opinion adopts all of the paragraph except the last sentence which reads as follows:
"Big city school systems for blacks surrounded by suburban school systems for whites cannot represent equal protection under the law."
In my opinion, the retained part of the paragraph expresses the same thought as the sentence which has been deleted.

No decision of the Supreme Court or any other court construing the Constitution supports this thesis and it is not our province to rewrite the Constitution.
The majority opinion sharply conflicts with Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J.1971), affirmed, 404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972). In Spencerthe black students sued the Attorney General of the State of New Jersey, the Commissioner of Education and the State Board of Education alleging that they failed to achieve a racial balance among several districts of a state system of public schools. New Jersey, like Michigan, did not operate a dual system and the alleged imbalance was characterized as de facto segregation.
The three-judge Court which heard the case stated:
"In none of the schools of which the plaintiffs complain is any black pupil `segregated' from any white pupil. Indeed, complaint is made that the blacks who reside in the school district served predominate over the whites, thus affording an example of complete desegregation which was the expressed object of the court in the Brown case. 347 U.S. at page 487 of the Opinion at page 688 of 74 S.Ct. in Brown it is stated that: `In each of the cases [from Kansas, South Carolina, Virginia and Delaware] minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race.' Such is not the basis upon which each of the plaintiffs in the present case seeks relief in this cause. On the contrary plaintiffs would have a substantial portion of the pupils now in attendance in their respective schools ordered by the court removed from these schools and assigned to a school in another district. Alternatively plaintiffs would have the court abolish the respective districts in which their 262*262 schools are located and assign them to other districts in which the disproportion between white and black students is reduced in one direction or the other. If, as plaintiffs contend, the proportionate black attendance in their respective schools adversely affects the degree of excellence of education which they can receive there must be a point at which any excess of blacks over whites is likely to impair the quality of the education available in that school for the black pupils. Nowhere in the Appendix filed by the plaintiffs or in the facts involved in any of the judicial precedents which they cite are we informed of the specific racial proportions which are likely to assure maximum excellence of the educational advantages available for the whites. Assuming further that efforts to achieve the ideal interracial proportion necessarily include the alteration of the population factor determinative of the redistricting, there can be no assurance that the population factor will remain static. If so, it would be necessary to successively reassign pupils to another district as the rate of births and graduations alters the racial proportions creating the demand for the educational facilities as it changes from term to term. In sum, the difficulty complained of does not amount to unconstitutional segregation." (Id. at 1239-1240).
Speaking of school district boundaries, the Court stated:
"It is clear that these legislative enactments prescribe school district boundaries in conformity with municipal boundaries. This designation of school district zones is therefore based on the geographic limitations of the various municipalities throughout the State. Nowhere in the drawing of school district lines are considerations of race, creed, color or national origin made. The setting of municipalities as local school districts is a reasonable standard especially in light of the municipal taxing authority. The system as provided by the various legislative enactments is unitary in nature and intent and any purported racial imbalance within a local school district results from an imbalance in the population of that municipality-school district. Racially balanced municipalities are beyond the pale of either judicial or legislative intervention." (Id. at 1240).

Spencer is on "all fours" with our case.
The majority opinion conflicts with prior decisions of this Court with the unfortunate result that acts which do not violate the Constitution in Cincinnati, are held to be unconstitutional in Detroit.
The two decisions with which the majority opinion is in irreconcilable conflict are Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th Cir. 1969), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971); Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967),affirming, 244 F.Supp. 572. Twice the Supreme Court was afforded the opportunity to review Deal and as late as 1971 it refused to do so, with only one Justice dissenting.
More than eighty-two years ago Ohio, like Michigan, by statute had abolished segregation in the public schools in the State. The neighborhood school system, however, was provided by statute so that schools would be constructed at such places as will be convenient for the attendance of the largest number of children. Ohio Rev.Code § 3313.48. It was not then believed that neighborhood schools were obnoxious. Nevertheless, in Cincinnati the races were imbalanced in the public school system.
Some schools were attended entirely by Negroes and others entirely by whites, while others were attended in varying proportions by both white and Negroes. Some Negro schools were racially identified. The segregation was allegedly caused by gerrymandered school-zone lines, by housing discrimination 263*263 by public and private agencies, by discrimination in job opportunities, and school construction.
We held in Deal I that the Board of Education had no constitutional duty to eliminate racial imbalance not caused or created by it, and upheld the neighborhood plan adopted by the State Legislature.
The District Judge had excluded evidence of discrimination in the public and private housing markets. We held this ruling was correct on the ground that the discrimination, if it existed, was caused by persons not parties to that case and the Board of Education had no power to rectify that situation. We said: "[If] appellants have any valid claim for [infringing] their rights by public-housing or urban-renewal officials, they may obtain appropriate relief against them under the Fourteenth Amendment. With respect to private actions amounting to discriminatory practices, while there is no federal constitutional right available to appellants, they may seek relief from the state Civil Rights Commission, or in the state courts, if relief is denied under the provisions of the Ohio Fair Housing Law.[2] Deal I, 369 F.2d at 60 fn. 4.
The majority opinion also conflicts with Bradley v. School Board of Richmond, supra, and Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L. Ed.2d 554 (1971).
Swann stated that: "[The] objective is to dismantle the dual school system." Id. at 28, 91 S.Ct. at 1282. Here there has been no dual school system to dismantle. Although not racially balanced, Detroit for many years had achieved a unitary school system in which no student was precluded from attending any school in the district. Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). There are limits as to how far a district court can go. Swann, 402 U.S. at 28, 91 S.Ct. 1267.
Swann also stated:

"If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse." 402 U.S. at p. 24, 91 S.Ct. at p. 1280.
The metropolitan plan violates this principle which was applicable only to dual systems. It is even worse when the District Court applies broader orders to a unitary system than have ever been applied to dismantling of a dual system.
Swann, is violated by overloading the school system with excess "baggage." Id. at 22, 91 S.Ct. at 1279.
THE DETROIT ONLY PLAN
The finding of the District Court that a Detroit only plan could not accomplish desegregation is not supported by the evidence and are clearly erroneous. The percentage of black and white children in the public schools in 1970-1971 was 63.8% and 37.2% respectively. The racial composition of the state is 87% white and 13% black.
In Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L. Ed.2d 51 (1972), the Supreme Court approved a pairing plan for the City and County which had a racial composition of 34% white and 66% black. The existing ratios in Detroit are practically the same.
But the District Court in our case was concerned about its own forecast of population 264*264 trends that the percentage of black students would increase from 63.8% in 1970 to 72% in 1980, and in 1992 would be all black. This forecast is wholly speculative.
Such an unsupported and speculative forecast cannot be made the basis for a metropolitan crossdistrict order. Even if true, which it is not, the Board of Education is not responsible for the population remaining static, or for the mobility of the races. This was made clear in Spencer, supra, id., 326 F.Supp. at 1239, 1240, and also in Swann, supra, id., 402 U.S. at 31, 32, 91 S.Ct. 1267. Nor is the Board required from time to time to adopt plans to meet shifting population trends. Spencer, supra; Swann, supra.
Significantly, all that the plaintiffs are complaining about is the operation of the Detroit school system and the failure of the State defendants to properly supervise, control or finance it. Plaintiffs cannot complain about school district lines because those lines were neutrally drawn with the incorporation of the cities long before the Negroes had migrated north in large numbers. If school-zone lines in Detroit have not been properly drawn or if there are imbalances of black and white students, or imbalances on faculty or staffs in the Detroit schools, or if school buildings have been improperly located, or if plaintiffs have been discriminated against in any other respect, these inequities can all be remedied in the Detroit school system without forcibly moving Negroes and whites against their will across district lines into other counties and districts. An order requiring the adoption of a metropolitan plan under the facts of this case, merely to dismantle the concentration of blacks in the inner city, violates constitutional rights of both races and constitutes a flagrant abuse of judicial power.[3] Swann recognized a limitation on the power of District Judges. Id., 402 U.S. at 28, 91 S.Ct. 1267. Chief Justice Vinson, in writing the opinion for the court in Oyama v. California, 332 U.S. 633, 646, 68 S.Ct. 269, 275, 92 L.Ed. 249 (1948), stated:
"But assuming, for [the] purposes of argument only, that the basic prohibition is constitutional, it does not follow that there is no constitutional limit to the means which may be used to enforce it."

Thus, the District Court may not enter orders in school desegregation cases which impinge upon and violate the constitution rights of other persons.
Many Negroes as well as whites are opposed to integration of the races in the public school system by enforced busing.[4] A busing order directed at "benefiting" black students in Detroit (by distributing the black student population throughout the entire metropolitan area) produces a head-on clash of constitutional principles. Blacks are given an (alleged) benefit when other citizens "similarly situated", i. e., other minority-group students and even inner-city white students, are not given such benefits but are discriminated against. This result, of course, is a classic denial of the equal protection of the laws. Barbier v. Connolly, 113 U.S. 27, 32, 5 S.Ct. 357, 28 L.Ed. 923 (1885); Truax v. Corrigan, 257 U.S. 312, 333, 42 S.Ct. 124, 66 L.Ed. 254 (1921).
In a very recent thought-provoking article, appended hereto as Appendix A and entitled "Reverse Discrimination", Dr. Morton Teicher, Dean of the School of Social Science of the University of North Carolina, discussed the problems of deprived groups and remedies for past discrimination including quota systems. 265*265 Since opinions of sociologists were relied upon in Brown I, it is important that they not be overlooked here. See also the discussion entitled "Busing: A Review of `The Evidence'", The Public Interest No. 30 Winter 1973; "The Evidence on Busing," The Public Interest No. 28 Summer 1972; Ross, "Why Quotas Won't Work," Reader's Digest, Feb. 1973, p. 51.
The District Court's metropolitan cross-district order, an order purportedly directed at furthering the purposes of the equal protection clause, itself clashes with this constitutional principle.
The metropolitan busing remedy ordered by the Court is, however, unconstitutional on a more fundamental level. It invalidly assumes that the equal protection clause of the Fourteenth Amendment protects groups and not individuals. The entire thrust of the District Court's order is that the rights of blacks as a group must be redressed and that, in the process, the rights of individual black children (and non-black children) may be disregarded.
Consider the burden on the individual students who are bused in order to achieve a "racial balance" throughout the entire Detroit Metropolitan Area. Individual black and white students who formerly walked to a nearby school would be forced to travel substantial distances to other schools. These are not individuals who are burdened because their parents have chosen to reside far from the nearest school in the district or because they have special educational needs attended to in but a single school in the district. These are individual children who are burdened with being bused solely because they are black or white, as the case may be.
Parenthetically, it should be noted that if there were any question that busing involves a substantial burden on the individual who cannot attend his neighborhood school, that question has been dispelled by the urgings of desegregation-case plaintiffs that black children can not be "unequally burdened" by being the only students bused, the white students being permitted to attend their neighborhood schools. See e. g., Haney v. County Bd. of Education of Sevier Co., 429 F.2d 364, 371-372 (8th Cir. 1970); Brice v. Landis, 314 F.Supp. 974, 978-979 (N.D.Calif.1969).
Yet in proposing a remedy for black students as a group based on a head count, the District Court entirely disregards these individual black and white students and their right not to be burdened solely on account of their race.
The equal protection clause of the Fourteenth Amendment states:
". . . nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws." (Emphasis added.)

The Supreme Court has recognized the individual nature of the equal protection clause on a number of occasions.[5] In Shelley v. Kraemer, 334 U.S. 1, 22, 68 266*266 S.Ct. 836, 846, 92 L.Ed. 1161 (1948), the Court was explicit:
"The rights created by the first section of the Fourteenth Amendment [the equal protection clause] are, by its terms, guaranteed to the individual. The rights established are personal rights. [Court's n. 29.] McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 161-162, 35 S.Ct. 69, 59 L.Ed. 169 (1914); Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L.Ed. 208 (1938); Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948)."
It simply defies logic to have a "constitutionally required" remedy for a group of individuals which, in turn, unconstitutionally denies equal protection to the individuals in the group as well as individuals in other groups, and which remedy unconstitutionally imposes burdens on students within and without the group solely because of their race. Yet this is precisely what the District Court has held. The Court states (correctly) that discrimination against the black race in Detroit must be remedied, but then orders massive interdistrict busing of students to achieve racial balances, denying individual blacks (and nonblacks) their right not to be substantially burdened solely on account of their race.
But the fundamental error of the District Court order was in treating the Michigan school system as a dual system when it was not, and in proposing the dismantling of concentration of blacks in Detroit and distributing them in fifty-two other school districts in three other counties. Virtually all of the cases relied upon by the plaintiffs to support the District Court's rulings involved dual school systems.
DUE PROCESS VIOLATIONS OF FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION
Although, as stated by the majority, this is the fourth time that the case has been before us, the District Court has not as yet adopted any specific plan for desegregation; instead the District Court has entered a number of interlocutory orders some of which are now before us for review under 28 U.S.C. § 1292(b). These include rulings on the issue of Segregation, findings of fact and conclusions of law on Detroit Only Plan of Desegregation, propriety of a Metropolitan remedy to desegregate Detroit Schools, Desegregation Area, and Order directing Michigan State officials to purchase 295 school buses.
This procedure is unprecedented. Usually school desegregation cases are reviewed on appeal only after a plan of desegregation has been adopted. It appears to us that the District Court has placed the cart before the horse. It has entered a number of far-reaching piecemeal interlocutory orders from which no appeal could be taken without the court's permission, and which would bring about a fait accompli of a metropolitan plan without affording the defendants their right of appeal. This was in the absence of necessary and indispensable parties and to the prejudice of intervening school districts which had been denied effective participation in the proceedings.
The Complaint, which has never been amended, sought only the desegregation of the Detroit school system. There was no allegation that any other school district would be affected. As soon as it was determined that other school districts might be adversely affected, the District Court should have required the plaintiffs to make them parties defendant with a full opportunity to be heard on the merits of the case. These school districts were necessary and indispensable parties. This is the correct procedure, and was followed in Bradley v. School Board of the City of Richmond, 338 F.Supp. 67 (E.D.Va.1971), reversed on other grounds, 462 F.2d 1058 (4th Cir. 1972), aff'd by

equally divided Court, 412 U.S. 92, 93 S.Ct. 1952, 36 L. Ed.2d 771 (Nos. 72-549, 72-550, 1973), 41 U.S.L.W. 4685.
267*267 All school districts whose borders were being invaded were entitled, as a matter of right and not of mere grace, to be made parties defendant in the case and to be accorded the same rights as any other defendants. They were entitled to be heard on all issues in the case which affected them, and were entitled to participate effectively in the proceedings. They were entitled to be heard on the issues of segregation, the "Detroit-Only plan" and the "Metropolitan plan". They had the right to offer evidence and endeavor to prove that there was no causal connection between any act or omission of the Detroit Board of Education (or of the State) and the concentration of blacks in the inner City, and that whatever constitutional violations of the rights of the plaintiffs may have occurred, such violations could be remedied within the Detroit school district without invading other districts which were not in any manner responsible for conditions in Detroit. These rights were denied to the intervenors.
While the orders of the District Court on these three issues were interlocutory, the judgment entered by the majority is final and the issues may not be relitigated on remand. Thus judgment has been entered against the absent school districts as well as those allowed to intervene, in violation of their due process rights to a fair and impartial trial. The orders affirmed are far reaching; they will require the expenditure of untold millions, and will disrupt the lives of hundreds of thousands of children and their parents.
However, in its opinion the majority did provide for amendment of pleadings on remand, making new party defendants, for intervention, and for offering additional testimony. These provisions are wholly illusory with respect to the issues of segregation, the "Detroit-Only plan" and the "Metropolitan plan", as the opinion expressly excludes these issues from reconsideration upon the remand. The only remedy available to the intervening school districts is to petition the Supreme Court for certiorari. The eighteen school districts, as well as any additional school districts which the District Court may add to the desegregation area upon the remand, are without any remedy. Since they have never been made parties, they may not petition the Supreme Court for a writ of certiorari. They have surely been deprived of their property rights, not only without due process of law, but without any process of law.
The majority opinion, with its disapproval of the "Detroit-Only" plan and its order to the District Court to consider and adopt a so-called "Metropolitan" plan invading the borders of three counties and the boundaries of fifty-two school districts, completely destroys local control of the public school system along with all of its advantages. Local control is a traditional concept of the American public school system. Its merit and value were recognized by the Supreme Court in two very recent decisions. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16(decided March 21, 1973); and Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972).
In San Antonio Independent School District, supra, Mr. Justice Powell, wrote the opinion for the Court, cited and quoted from opinions of Chief Justice Burger and Justice Potter Stewart in Wright, stating:
"The Texas system of school finance is responsive to these two forces. While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level. In an era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived. The merit of local control was recognized last Term in both the majority and dissenting opinions in Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S. Ct. 2196, 33

L.Ed.2d 51 (1972). Mr. 268*268 Justice Stewart stated there that `[d]irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society.' Id., at 469, 92 S.Ct. 2196. The Chief Justice, in his dissent, agreed that `[l]ocal control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well.' Id., at 478, 92 S. Ct. at 2211. "The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means, as Professor Coleman suggests, the freedom to devote more money to the education of one's children. Equally important, however, is the opportunity it offers for participation in the decision-making process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. An analogy to the Nation-State relationship in our federal system seems uniquely appropriate. Mr. Justice Brandeis identified as one of the peculiar strengths of our form of government each State's freedom to `serve as a laboratory . . . and try novel social and economic experiments.' No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education." (411 U.S. at 49, 93 S.Ct. at 1305.)
As we have pointed out, the facts of the present case furnish no basis whatsoever for the Court to destroy local control of our public school system.
Unreasonable and intolerable conditions, however, were imposed by the Court on the intervention by the school districts.[6] The school districts filed objections to the conditions which were never ruled on by the Court. These conditions alone constituted a denial of due process to the intervenors who were precluded 269*269 from raising questions necessary for their own protection and who were denied the right to be heard fully on the merits of the case.
The type of intervention permitted by the District Court is graphically illustrated in the brief filed by counsel for the intervenors in which he complains about the following incidents with citation of supporting record references:
"Seven days after allowing appellants to intervene, as a matter of right but subject to oppressive conditions, [27] the trial court required the filing of written briefs on the legal propriety of a metropolitan plan of desegregation. (A. Ia397) The court did not require or permit oral argument. Less than 36 hours later the court issued its `Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit' (A. Ia439) rejecting the contentions of Intervenor School Districts. Testimony regarding metropolitan plans commenced four days later (a weekend and Motion day falling between) at 10:10 A.M. Prior to the noon recess, just two hours after Intervenor School District counsel had first appeared in the District Court and before completion of testimony of a single witness, the District Judge announced that counsel could stop by his office and pick up his `Findings of Fact and Conclusions of Law on Detroitonly Plans of Desegregation' (A. Ia456) wherein the court announced its intention to seek a more desirable racial mix by means of a Metropolitan Plan. Thus without any opportunity for oral argument, without opportunity to examine or cross-examine one witness, without opportunity to present one shred of evidence, and indeed, without opportunity to obtain copies of previous pleadings and testimony (let alone read same), the Intervenor School Districts had been effectively foreclosed from protecting their interests. [28]."
He further complains about the fact that the Court permitted him to take the deposition of Dr. David Armor, a sociologist of Harvard University, and then refused to receive it in evidence.

Dr. Armor was a well-qualified expert. He had previously written an article entitled "The Evidence on Busing" published in The Public Interest No. 28, Summer 1972, which exploded some of the existing theories on educational achievement resulting from busing.
In a subsequent article by Dr. Thomas F. Pettigrew and associates, they responded to Dr. Armor's article on busing and quoted from Judge Roth's ruling excluding his deposition as follows:
"This fundamental fact was dramatically demonstrated by the judicial reaction to Armor's deposition in the Detroit school case, a deposition based on an earlier draft of `The Evidence on Busing.' On June 12, 1972, U.S. District Court Judge Stephen H. Roth ruled the deposition inadmissible as evidence on the grounds of irrelevancy. The deposition, in Judge Roth's view, represented `a new rationale for a return to the discredited "separate but equal policy . . . .'"[7] The Public Interest No. 30, Winter 1973.
In an article entitled "The Double Double Standard" appearing in the same issue at page 119, Dr. Armor replied to the Pettigrew article stating among other things:
"The double standard here is obvious. One willingly applies social science findings to public policy if they are in accordance with one's values, but declares them irrelevant if they contradict one's values. . . ." Id. at 130.
270*270 The Supreme Court in Brown I relied heavily on testimony of sociologists as to the adverse effect of segregation on the educational achievement of Negro children. It is inconceivable that the District Court would hold contrary testimony of a sociologist irrelevant and exclude it. This was prejudicial error. In a court of justice not merely one side but both sides are entitled to offer evidence.
The District Court quashed a subpoena duces tecum issued by the intervenors for Charles Wells, an employee of the Detroit Board of Education, to bring with him "all records of the past two (2) years concerning incidents involving damage to property, safety of pupils or staff (whether perpetrated by other pupils, staff or outsiders) criminal activities, or fires in or on school property as regards each school in the Detroit public school system."
Although the Court had previously received the testimony of Freeman Flynn, offered by plaintiffs on the subject of safety, it denied permission to the Intervenors to offer evidence on the same subject by quashing the subpoena. The Court was not that technical in admitting into evidence Exhibit 16, although it was not properly identified, stating that the Court decided to follow Justice of the Peace Cane's rule: "We will let it in for what it is worth." Indeed, he did, but did not apply Justice Cane's rule to the deposition.
Due process required an opportunity to be heard which must be granted at a meaningful time and in a meaningful manner. Jenkins v. McKeithen, 395 U. S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); In Re Gault, 387 U.S. 1, 19-21, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948).
As well stated in Railroad Commission of California v. Pacific Gas & Electric Co., 302 U.S. 388, 393, 58 S.Ct. 334, 338, 82 L.Ed. 319 (1938):
"The right to a fair and open hearing is one of the rudiments of fair play assured to every litigant by the Federal Constitution as a minimal requirement. Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 304, 305."

The intervenors were entitled to the effective assistance of counsel, to have a reasonable time to examine the papers in the case and to prepare for trial, and to offer evidence in support of their contentions before the case is decided against them.
One other matter is worthy of comment. The District Court appointed a nine-member panel to set up a metropolitan plan of desegregation. Three members of the panel were from Detroit. Only one member was appointed to represent the fifty-two school districts whose school population exceeds that of Detroit by more than two times. This is a plain example of unfairness.
The Detroit Board of Education, although vigorously denying the commission of any purposeful segregative acts committed against Negroes and contending that plaintiffs have not proven their case, has taken an unusual and extraordinary position. It supports the plaintiffs on the issue of a metropolitan plan contending that if a constitutional violation has been shown, only such a drastic remedy will rectify it. It is obvious that the Detroit Board was motivated by its concern that a 63.8%black and a 37.2%-white quota was too heavily weighted with black pupils, and that it owed a constitutional duty to dilute that quota and to distribute the black-pupil population of Detroit into the other three counties and fifty-two additional school districts, in order to effectuate a quota of about 25%-black and 75%-white children in each school.
It is submitted that no such constitutional duty exists and that the District Court erred in ordering it; Swann, supra.
271*271 THE ELEVENTH AMENDMENT TO THE CONSTITUTION PROSCRIBES SUITS AGAINST THE STATE OF MICHIGAN, AND IT HAS SOVEREIGN IMMUNITY
The plaintiffs have attempted to sue the State of Michigan by making the Governor, the Attorney General, and the Acting Superintendent of Schools parties defendant. Later, when the District Court issued an order prior to the adoption of any plan for desegregation, to purchase 295 buses, it made the Treasurer of the State a party defendant in order to sequester funds in his hands.
It was the theory of the plaintiffs that under the doctrine of vicarious liability the state was liable for the acts and conduct of the Detroit Board of Education and of other political subdivisions, and that since the State is a party defendant it really was not necessary to make the Detroit School Board, or the school boards in the other districts, parties to the case. This theory has no legal support and is unsound. Each school district is a separate and independent corporate unit with power to sue and to be sued, and has separate taxpayers whose property is taxed for the support of the schools as well as for the payment of the district's bond issues.
If, as plaintiffs contend, the State has been made a party defendant, then such an action against the State is proscribed by the Eleventh Amendment.
The most recent decision of the Supreme Court upholding sovereign immunity of a state is Krause v. State of Ohio, 409 U.S. 1052, 93 S.Ct. 557, 34 L. Ed.2d 506 (1972).
To the same effect is Ex Parte State of New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921), where the court made it clear that the applicability of the Eleventh Amendment "is to be

determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding as it appears from the entire record." Id. at 500, 41 S.Ct. at 590.
The general rule was stated in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), as follows:
"The general rule is that a suit is against the sovereign if `the judgment sought would expend itself on the public treasury or domain or interfere with the public administration,' Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.' Larson v. Domestic & Foreign Corp., supra, 337 U.S. 682 at 704, 69 S.Ct. 1457, 93 L. Ed. 1628; Ex parte New York, 256 U.S. 490, 502, 41 S.Ct. 588, 65 L.Ed. 1057 (1921)."
The Civil Rights Act has not yet been construed as an exception to the Eleventh Amendment.
The order issued against the State defendants provided:
"1. The Defendant Detroit Board of Education shall acquire by purchase, lease or other contractual arrangement at least 295 buses for use in the interim desegregation plan during the 1972-73 school year. All financial obligations incurred as the result of this Order shall be the sole financial obligation of the State Defendants, including the added State Defendant State Treasurer Allison Green, as set forth below in Paragraph 2. Said order, lease, or other contract shall be entered into by negotiation and without the necessity for bids forthwith and in no event later than Thursday, July 13, 1972. 2. The State Defendants shall bear the cost of this acquisition and State Defendants, including the added State Defendant Green, shall take all necessary steps utilizing existing funds and sources of revenue, to be acquired State funds, legislatively authorized and funds directed by the State Constitution to the State School Aid Funds and by re-allocation of existing or new funds to pay for said transportation acquisition either directly or 272*272 through the Defendant Detroit Board." App. at 576, 577.
This order imposed a personal liability on the State defendants and would require them, if they complied with it, to misappropriate and misapply State funds in violation of state law. If they did not comply with it they could be punished for contempt.
In addition, the State defendants were ordered to pay the cost of the nine-member panel appointed by the Court to devise the Metropolitan Plan, (1 Ba 538). This cost was estimated at $22,500. All defendants were ordered to hire black counsellors and provide in-service training for teachers in the fifty-three school district desegregation area. The initial cost of the in-training was about $3,000,000.
The District Court was without authority to impose a personal liability on the State defendants or to order them to misapply and misappropriate State funds in violation of State law.[8]
The legislature of Michigan is not likely to act on the suggestion of the majority, accompanied by a veiled threat if it fails to so act, that it change school district boundary lines to benefit a few at the expense of many, and thereby violate the constitutional rights of many. School district lines may not be changed for an unconstitutional purpose. United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972); Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). Since an adequate remedy already exists within the Detroit school district to correct any constitutional violation therein, there is no occasion for the legislature to alter the existing neutral, non-discriminatory school district boundaries.

RELIEF
Because of prejudicial errors of constitutional magnitude committed by the District Court, each of the orders from which an appeal has been taken should be reversed and a new trial granted with instructions to consider and adopt a Detroit-only desegregation plan to remedy any constitutional violations which it may find to exist in said City.
The Governor, the Attorney General and the Treasurer of the State should be dismissed, as they are unnecessary parties to a determination of the issues of the case.
APPENDIX A
REVERSE DISCRIMINATION
The development of "affirmative action" programs for minority groups is posing some intractable problems. These problems arise from the existence of conflicting, fundamentally incompatible values. On the one hand, we social workers value righting the wrongs perpetrated for too long on minority groups. On the other hand, we value the right of all persons to be treated equally.
Distributive justice requires the dissemination of benefits to all without depriving any individual or group of something it values. This is far more in keeping with fairness and equity than the idea of redistributive justice, which confers benefits on one group at the expense of others. Redistributive justice, then, leads to reverse discrimination.
Redistributive justice is advocated to atone for our failure to live up to the belief in the capacity and the dignity of each human being. This failure does not negate the soundness of that belief. Rather, it should spur us to correct the failure — not the belief. When practices fail to reflect principles, then we should change our practices, not our principles.
273*273 For social workers, the issue has come to the forefront in agency and university hiring practices and admissions policies of schools of social work. Social agencies, especially those serving ghetto populations, are giving preference to minority group members in employment. Universities, beset by pressures from the U.S. Department of Health, Education, and Welfare, are similarly giving preference to women and minority groups. Some schools of social work have adopted quota systems in dealing with candidates for admission.
These practices conflict with the fundamental social work belief in individual human dignity and the libertarian belief that each person is entitled to be judged and valued as an individual. Quota systems and preferential treatment are artificial restrictions on this right because they substitute irrelevant group characteristics such as race or religion for consideration of an individual's capacity and potential. Respect for the individual is a basic part of social work's credo and commitment. We cannot reconcile this conviction with treating people only as representatives of a racial group.
When we try to eliminate discrimination and compensate for past wrongs by quota systems, we substitute one injustice for another. We deny the inherent equality of all people and undermine the proposition that each individual should have the same opportunity to achieve and to be judged according to his merits. We pit group against group and destroy the possibility of harmonious interaction. Quotas are pernicious instruments; they represent an unacceptable means for achieving a desirable end. "Preferential quotas are condescending, divisive and detrimental to the integrity of a university."[1]

A quota system institutionalizes discrimination and must be vigorously opposed. Ultimately, it is a form of segregation. The progressive democratization of the university through the elimination of any criterion for admission other than merit has been one of the success stories of America. Now some of the benighted beneficiaries of that victory ally themselves with those antilibertarian forces that would have blocked their own access to education. They are ready to eradicate the victory of equal opportunity over discriminatory quotas, for which their forebears fought so hard. That victory has only been partially won. We cannot falter now by substituting a host of irrelevant and inappropriate considerations for merit. The test a university must apply to each candidate is merit — not inherited status.
Some advocates of quota systems believe that quotas will redress wrongs and thus produce equal opportunity, when actually they eliminate equal opportunity. Quotas have historically been used for exclusion. They were an insidious manifestation of institutionalized bigotry, covertly designed to exclude unwanted groups. They were wrong in the past and they are wrong now, even though they are now designed to achieve inclusion, rather than exclusion. Discriminatory practices are wrong, no matter what their intent. Whether they are for or against particular groups, quota systems are morally indefensible.
For social workers, the distinctions among people based on race, ethnic background, religion, or creed that inhere in quota systems are particularly abhorrent. Our regard for the individual and our objection to hereditary caste as a status determinant should make quota systems especially impossible for us to accept.
For schools of social work, the argument that quotas for admission will produce student bodies that represent the proportion of racial, ethnic, or religious groups in society is a curious expression of bigotry. Proportional representation on a group basis is highly discriminatory. What taxonomy shall be used to categorize the groups that should be represented? Among the characteristics that defy classification are the following: 274*274cultural, economic, ethnic, gender, geographic, linguistic, national, occupational, racial, religious, social class, and tribal.
Some minority groups include the following: the aged, American Indians, Asian-Americans, Blacks, capitalists, Catholics, Chicanos, easterners, factory workers, farmers, German-Americans, Hispanic Americans, Hungarian-Americans, immigrants, Irish-Americans, Italian-Americans, Jews, the lower class, migrants, nomads, northerners, Polish-Americans, the poor, Puerto Ricans, slum-dwellers, southerners, Swedish-Americans, the upper class, wasps, westerners, and youths.
Who is not a member of a minority group? Who cannot find a place among this woefully incomplete list of minorities?
We are all minorities. Each of us comes from a distinctive racial, religious, or ethnic stock. Each of us is a newcomer or a descendant of newcomers. Even the native Americans — the Indians — came to North America from across the Bering Straits 25,000 years ago. Each of us has ties to our own roots. Each of us has pride in our origins. Each minority contributes to America — to its building, its evolution, and its maintenance.
(Morton Teicher)
Morton Teicher, Ph.D., is Dean, School of Social Work, University of North Carolina, Chapel Hill, North Carolina.
KENT, Circuit Judge (concurring in part and dissenting in part):

While I cannot concur in the majority opinion in these cases I am in accord with certain of the conclusions announced in that opinion.
To narrow the scope of this dissent it should be stated at the outset that I am in complete agreement with the majority's conclusion that on the record as presented and because of the concessions made by counsel for the School District of the City of Detroit during oral argument it appears without question that the Detroit city schools were unconstitutionally segregated and that an order for integration of those schools must be fashioned by the District Court. I am further in accord with the conclusion of the majority that the District Court's order for the purchase of buses for use in effectuating a plan of integration covering the metropolitan Detroit area is premature and must be stayed until an appropriate plan has been approved by the District Court. I agree that each of the suburban school districts which may be affected by any proposed metropolitan plan is a necessary party to the litigation within the meaning of Rule 19, Federal Rules of Civil Procedure, as found by the majority and that the pleadings must be amended to join such school districts and bring all parties before the Court.
It is at this point that I separate from the majority and find myself compelled to state the reasons why I cannot join in the majority opinion. The majority opinion approves the District Court's conclusion that a Detroit only integration plan would be insufficient to cure the unconstitutional segregation found to have been imposed in the Detroit city schools. Those who join in such a conclusion appear to me to have a misapprehension of the record in this case.
As stated by the Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, at page 22, 91 S.Ct. 1267, at page 1278, 28 L.Ed.2d 554 (1971):
"The constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in public schools is discrimination that violates the Equal Protection Clause. The remedy commanded was to dismantle dual school systems."
The "state-enforced separation of races" to which reference is made in the quoted material was not found to exist in the metropolitan Detroit area. While the District Judge made comments about the segregation of the races with reference to the situation existing within the 275*275 City of Detroit as related to at least some of the suburban communities within the counties of Wayne, Oakland and Macomb, which comments have been quoted with approval and adopted by the majority of this Court, we cannot escape the conclusion of the District Judge, as stated in his formal opinion, 345 F. Supp. 914, at page 920 (E.D.Mich.1972), where the Court said:
"It should be noted that the court has taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation."
With such a statement in the record it is beyond the comprehension of this writer to understand how the majority can approve the conclusion of the District Court which requires that at least some of the 86 public school districts outside the City of Detroit should be embraced within a metropolitan school district for the purpose of desegregating the Detroit city schools, the only district which has been found from the evidence to have "committed acts of de jure segregation." Without proof with regard to segregatory activities within the other school districts or in regard to district boundaries any conclusion by the District Court or by this Court that school district boundaries of other districts had the effect of maintaining or creating unconstitutionally segregated schools within the City of Detroit is obviously based on irrelevant, unsubstantial evidence or totally unsupported assumptions.

I am in accord with the application of the statement of the Court of Appeals for the Fifth Circuit (though not in the limitation to specific schools) in United States v. Texas Education Agency, 467 F.2d 848, at page 883 (5th Cir. 1972), en banc, where the majority opinion quoted the statement in Swann that "the nature of the violation determines the scope of the remedy," and then proceeded to conclude at page 884:
"The power of the district court will depend first upon a finding of the proscribed discrimination in the school system. Swann, 402 U.S. at 16, 91 S. Ct. 1267, 28 L.Ed.2d 554. In determining the fact of discrimination vel non, whether imposed by statute or as a result of official action, the district court must identify the school or schools which are segregated as a result of such discrimination. This identification must be supported by findings of fact. The importance of such a determination will be seen in some populous school districts embracing large geographical areas. There may be segregated schools which are the result of unconstitutional statutes or of official action. There may be other one race schools which are the product of neutral, non-discriminatory forces."
If we accept the premise that "the nature of the violation determines the scope of the remedy," as announced by the United States Supreme Court, then, clearly, the remedy proposed by the District Court, and approved by a majority of this Court, goes far beyond the "nature of the violation" since the District Court has already stated as a conclusion that no evidence was taken as to any violation with regard to any suburban school district.
While the minority in the Texas Education Agency case disapproved of the suggestion of the majority that specific schools within a system must be found to have been segregated, and treated separately, (476 F.2d 888 where the minority speaks through Judge Wisdom), yet the minority does not find nor even suggest that it would be appropriate to expand the order for relief beyond the system found to have committed acts which violated the constitutional rights of the plaintiffs in the action.
Through the majority's opinion runs the thread which holds it together. That thread is the unwillingness apparent 276*276 in the minds of the majority to sanction a black school district within a city which it concludes will be surrounded by white suburbs. While the majority does not now state that such a demographic pattern is inherently unconstitutional, nevertheless, I am persuaded that those who subscribe to the majority opinion are convinced, as stated in the slip opinion of the original panel, "big city school systems for blacks surrounded by suburban school systems for whites cannot represent equal protection of the law." While that statement has been removed from the opinion of the majority, yet the premise upon which the statement was obviously based must necessarily form the foundation for the conclusions reached in the majority opinion. It may be that such will become the law, but such a conclusion should not receive our approval on a record such as exists in this case.
As has been pointed out in the other opinions, the boundaries of the school district of the City of Detroit have been co-terminus with the boundaries of the City of Detroit for more than 100 years. Those lines were laid out at a time when there was a minimal black population in the metropolitan area of Detroit, if there was such metropolitan area at the time the boundary lines were established.
The District Judge and the majority make much of the fact that "if the boundary lines of the school districts of the City of Detroit and the surrounding suburbs were drawn today few would doubt that they could not withstand constitutional challenge." This interesting statement provides a fertile field for speculation but certainly has no validity. A proposal to adopt an amendment to the Constitution of the United States in the same manner and with the same people voting as adopted the Constitution of the United States would be stricken immediately. I know of no one who would suggest that because of changes in the methods of electing the membership of state legislatures that the

Constitution of the United States thereby becomes unconstitutional. The quoted statement is to me a complete non sequitur.
I know of no authority which would permit a Court to announce a conclusion, based upon a violation of the Constitution, absent the taking of proofs to establish such constitutional violation, which proofs the District Judge stated he did not take in this case.
Absent proofs, which clearly were not taken, to establish a violation of the constitutional rights of these plaintiffs by the suburban school district personnel and by the State of Michigan in laying out suburban school district lines it would appear that we are in complete and absolute conflict with the prior decisions of this Court. In Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), cert. denied 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967) (Deal I), this Court rejected the contention that the state had an affirmative obligation to balance schools racially (in that case within the City of Cincinnati) "to counteract the variety of private pressures that now operate to restrict the range of choices presented to each school child." 369 F.2d at 59.
Deal I was cited with approval by this Court in Davis v. School District of City of Pontiac, 443 F.2d 573 (6th Cir. 1971), cert. denied 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971). The Court said at page 575:
"Appellants correctly contend that under Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L. Ed.2d 114 (1967), a school district has no affirmative obligation to achieve a balance of the races in the schools when the existing imbalance is not attributable to school policies or practices and is the result of housing patterns and other forces over which the school administration had no control."
The majority, while refusing to overrule Deal I and Davis, creates without evidence an obligation to achieve a balance of the races in schools not in a school district but in a metropolitan 277*277 area, and does so while denying to the vast majority of the school districts involved in such metropolitan area the opportunity to offer evidence to establish that they had not been used for or guilty of any segregative practices. Many other appellate courts have agreed with Deal and Davis. Downs v. Board of Education of Kansas City, 336 F.2d 988, 998 (10th Cir. 1964):
"Appellants also contend that even though the Board may not be pursuing a policy of intentional segregation, there is still segregation in fact in the school system and under the principles of Brown v. Board of Education, supra, the Board has a positive and affirmative duty to eliminate segregation in fact as well as segregation by intention. While there seems to be authority to support that contention, the better rule is that although the Fourteenth Amendment prohibits segregation, it does not command integration of the races in the public schools and Negro children have no constitutional right to have white children attend school with them."
Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990, 1005 (10th Cir. 1971),cert. granted 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728 (1972):
"Our reluctance to embark on such a course stems not from a desire to ignore a very serious educational and social ill, but from the firm conviction that we are without power to do so. Downs v. Board of Education, 336 F. 2d at 998. Before the power of the federal courts may be invoked in this kind of case, a constitutional deprivation must be shown. Brown v. Board of Education, 347 U.S. 483, 493-495, 74 S.Ct. 686, 98 L.Ed. 873 (1954) held that when a state segregates children in public schools solely on the basis of race, the Fourteenth Amendment rights of the segregated children are violated. We never construed Brown to prohibit racially imbalanced schools provided they are established and maintained on racially neutral criteria, and neither have other circuits considering

the issue. Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966); 419 F.2d 1387 (1969); Springfield School Committee v. Barksdale, 348 F.2d 261 (1st Cir. 1965); Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963)."
United States v. Board of School Commissioners of City of Indianapolis, Indiana, 474 F.2d 81, 83, 84 (7th Cir. 1973):
"Appellants first assert that there is no constitutional duty to remedy the effects of racial imbalance or to maintain any particular racial balance in the public schools. The Government does not quarrel with this assertion, and, indeed, insofar as it relates to purely de facto segregation, unaided by any state action, it is the law of this circuit, Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), aff'g 213 F.Supp. 819 (N.D. Ind.1963)."
A similar prayer for re-districting was before the District Court in Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J. 1971), and was rejected. The Supreme Court affirmed without opinion, 404 U. S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972) with Mr. Justice Douglas dissenting.
While the Fifth Circuit in Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir. 1972), en banc, sustained a finding of unconstitutional segregation resulting from a neighborhood school policy which effectively segregated Mexican-Americans within a school district it did so based upon competent evidence.
The majority here announces, "If school boundary lines cannot be changed for an unconstitutional purpose, it follows logically that existing boundary lines cannot be frozen for an unconstitutional purpose." (P. 251). Again it may be that this will become the law. Clearly, the cases cited have reached this conclusion as to the attendance lines existing within a specific school system. I know of no case which permits such a 278*278 conclusion as to boundary lines existing between school districts, and while the conclusion that existing boundary lines cannot be frozen for an unconstitutional purpose may flow logically from the premise announced it should be based upon competent evidence justifying a finding of fact that such boundary lines have been frozen for an unconstitutional purpose, and the District Judge in this case announced that he took no evidence on that issue.
I do not understand how the majority can reach a conclusion as to an appropriate remedy without evidence of any violation, particularly when in Deal I and Deal II a contrary conclusion has been reached. As stated at 369 F.2d, page 59:
"If the state or any of its agencies has not adopted impermissible racial criteria in its treatment of individuals then there is no violation of the Constitution."
and again in Davis this Court framed the issues as follows:
"Accordingly, the principal question before us is whether there is sufficient evidence in the record to support the determination of the District Judge that appellants are responsible for the existing racial imbalance in the Pontiac School System." 443 F.2d at 575. (Emphasis supplied).
and in responding to that issue this Court said:
"Although, as the District Court stated, each decision considered alone might not compel the conclusion that the Board of Education intended to foster segregation, taken together, they support

the conclusion that a purposeful pattern of racial discrimination has existed in the Pontiac school system for at least 15 years." 443 F.2d at 576.
Thus, the cases in this Court, prior to this case, appear conclusively to have been decided on the basis of discriminatory intent, and unless we specifically reverse our previous decisions we cannot reach the conclusion announced by the majority in a case where the District Court specifically stated that it did not take any evidence to establish any discriminatory intent on the part of the suburban school districts who were not parties to the action or on the part of the State in the structure of the suburban school districts.
Other circuits have also required the establishment of a discriminatory intent. Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990 (10th Cir. 1971), cert. granted 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728 (1972); Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), cert. denied 377 U. S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964); United States v. School District 151, Cook County, Ill., 404 F.2d 1125 (7th Cir. 1968), cert. denied 402 U.S. 943, 91 S.Ct. 1610, 29 L.Ed.2d 111 (1971); United States v. Board of School Commissioners of Indianapolis, Indiana, 474 F.2d 81 (7th Cir. 1973); Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J.1971), aff'd 400 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972). But see: United States v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972).
The evidence in regard to building of school buildings within the City of Detroit and lack of state aid for transportation of pupils within the City of Detroit may have demonstrated that these factors contributed to racial segregation within the City of Detroit. Clearly, if the Court took no proofs with respect to the commission of acts causing segregation of the races as between the City of Detroit and the suburban school districts it would be inappropriate to include those school districts within any remedy to be adopted to eliminate segregation within the City of Detroit. The cases cited by the District Court and by the majority of this Court are inapplicable. In each case cited the school district involved and against which a remedial order was granted was found to have been guilty of segregative practices. In every instance, as we read the cases, that finding was supported by substantial evidence after an adversary 279*279 proceeding in which all the interested parties were represented. Such is not the case here.
It seems obvious to me that the majority and the District Court have become confused and are unable to distinguish between violation and remedy. As stated by the District Court no evidence was taken as to any violation in the fixing of the boundaries of the suburban school systems nor as to any violation because of the relationship between the suburban school systems and the schools of the City of Detroit.
The errors to which we have already alluded were brought about by the failure on the part of the District Court to require that all interested parties be brought into the case at the earliest appropriate moment. A review of this record reveals that on March 22, 1971, a group of white Detroit residents, who were parents of children enrolled in the Detroit public schools, were permitted to intervene as parties defendant. On June 24, 1971, the District Judge alluded to the possibility of a metropolitan school system, App. Vol. IV, pgs. 259, 260, and in that connection stated: "As I have said to several witnesses in this case: how do you desegregate a black city, or a black school system." App. Vol. IV, pg. 260. Subsequently, and on July 17, 1971, the white parents filed a motion in an effort to require the joinder of the 85 suburban school districts as parties defendant and gave the following reasons:
"1. That said suburban school districts are agents of the State of Michigan and subject to the jurisdiction and supervision of the State Board of Education. "2. That said school districts are white segregated school districts.

"3. That questions of law and fact common to the defendant, School District of the City of Detroit, and proposed additional suburban school districts have been presented to this Court. "4. In the event that this Court rules for the plaintiff, in the absence of joinder of the proposed school districts, complete relief cannot be awarded the plaintiff, and in addition would impose an unconstitutional burden on the intervening defendant, in that the resulting school district of the City of Detroit would be and will remain as established by the proofs already submitted an inferior school district." App. I at 142-3.
The trial court did not rule upon this motion, but in the course of the proceedings discussed it in September, 1971, and concluded that the motion should not be considered at that time because "in considering the motion to add the listed school districts we pause to note that the proposed action has to do with relief." App. Vol. I, pg. 215, 338 F. Supp. 582, at 595.
Between February 9 and February 17, 1972, four parties, Grosse Pointe Public Schools, Allen Park Public Schools, et al.,[1] Southfield Public Schools and the School District for the City of Royal Oak, made motions for leave to intervene. These motions were finally granted on March 15, 1972, during the second day of hearing on the plans for desegregation involving only the Detroit school system. Intervention, according to the District Judge, was permitted under Rule 24(a), "Intervention of Right," and also under Rule 24(b), "Permissive Intervention." Before permitting such intervention and on March 6, 1972, the District Judge set up a timetable for the consideration of plans already submitted, which timetable was as follows:
"1. Hearing on desegregation intra-city plans will proceed, beginning at 10:00 a. m., Tuesday, March 14, 1972. "2. Recommendations for `conditions' of intervention to be submitted not later than 10:00 a. m., March 14, 1972. 280*280 "3. Briefs on propriety of metropolitan remedy to be submitted not later than March 22, 1972. "4. Tentatively and unless the court rules otherwise, hearings on metropolitan remedy to commence 10:00 a. m., March 28, 1972." App. I at 397.
When intervention was granted, the District Judge placed strict limitations upon the part which the intervenors would be permitted to play. The order provides:
"The interventions granted this day shall be subject to the following conditions: 1. No intervenor will be permitted to assert any claim or defense previously adjudicated by the court. 2. No intervenor shall reopen any question or issue which has previously been decided by the court. 3. The participation of the intervenors considered this day shall be subordinated to that of the original parties and previous intervenors. 4. The new intervenors shall not initiate discovery proceedings except by permission of the court upon application in writing, accompanied by a showing that no present party plans to or is willing to undertake the particular discovery sought and that the particular matter to be discovered is relevant to the current stage of the proceedings. 5. No new intervenor shall be permitted to seek a delay of any proceeding in this cause; and he shall be bound by the brief and hearing schedule established by the court's Notice to Counsel, issued March 6, 1972. 6. New intervenors will not file counterclaims or cross-complaints; nor will they be permitted to seek the joinder of additional parties or the dismissal of present parties, except upon a showing that such action will not result in delay. 7. New intervenors are granted intervention for two principal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of considering a metropolitan plan; (b) To review any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting

objections, modifications or alternatives to it or them, and in accordance with the requirements of the United States Constitution and the prior orders of this court. 8. New intervenors shall present evidence, if any they have, through witnesses to a number to be set, and limited, if necessary, by the court, following conference. 9. With regard to the examination of witnesses, all new intervenors shall among themselves select one attorney per witness to act for them, unless one or more of the new intervenors show cause otherwise. These conditions of intervention shall remain subject to change or modification by the court in the interest of timely disposition of the case." App. Ia 408-410.
We point out that the intervening school districts (42 out of 85) came into the case while the court was already considering the Detroit only plans, were permitted a total of less than one week to prepare briefs in regard to a metropolitan remedy, and found themselves faced with a ruling favorable to the consideration of such remedy within two days after the date on which their briefs were due. All of this despite the fact that an effort had been made to bring the suburban school districts into the case almost eight months prior to the rulings in regard to the Detroit only plans and the metropolitan plan. The majority finds no fault with this timetable. It affirms the conclusions of the District Court in regard to the Detroit 281*281 only plan and the need for a metropolitan plan without affording to the suburban school districts any opportunity to be heard.
Those suburban school districts which are not yet parties to this action, 43 in number, have had no opportunity to be heard with respect to any alleged constitutional violation within their respective school districts or with respect to the existence of their respective school district boundaries. Of course, the pleadings do not assert any such violations but under the majority opinion a remedy will be imposed which will drastically affect the future schooling of their children without granting to them any opportunity to be heard with regard to any reasons which might support the adoption of such a remedy. The suburban school districts which were belatedly made parties to this action assert that because they have not been afforded the opportunity to offer evidence to demonstrate that they have not been guilty of any constitutional violation they have been denied the fundamental requirements of due process. The response of the appellee to the claimed rights of the suburban school districts is that there is no denial of "life, liberty or property" within the meaning of the Fifth Amendment. They also claim that the interests of the suburban school districts were adequately represented by "their parent state defendant."
An examination of the record in this case will effectively dispose of any claim that the interests of the suburban school districts were represented by the state defendants. Clearly, the state defendants were defending against the claims of the plaintiffs that the state had by its actions created racial segregation within the school district of the City of Detroit. As I examine the record it does not appear that any defendant felt compelled to offer evidence in defense of an unasserted claim that the existence of suburban school districts was without other evidence a violation of the constitutional rights of the students in the schools of the City of Detroit. Had the state defendants comprehended that the District Court intended to impose a metropolitan school district upon the schools of three counties the writer is confident that they would have joined in the earlier motion to require the suburban school districts to be named as parties defendant.
As to the first argument of the appellees it is clear from the language of the Court in Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), that the segregation of schools is a denial of due process within the meaning of the Fifth Amendment. If segregation is a denial of the Fifth Amendment due process then clearly orders eliminating such segregation are a part of the due process rights. In that case the Court said:

"Although the Court has not assumed to define `liberty' with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, * * *." 347 U.S. at 499, 74 S.Ct. at 694.
Even earlier, in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), the Supreme Court found a violation of the Fourteenth Amendment in matters relating to the liberty of parents to direct the upbringing and education of children under their control. Had we any doubt, it would have been settled in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), where the Court permitted parents to withdraw their children from the state public school system and found a constitutional right in parents to control the upbringing and religious training of their children. That the right under the Fifth Amendment applies to the states was recognized in Griswold v. Connecticut, 381 U.S. 479, at page 482, 85 S.Ct. 1678 at page 1680, 14 L.Ed.2d 510 (1965), where the court noted:
"By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable 282*282 to the States by the force of the First and Fourteenth Amendments."
Being convinced that the interest of parents in the education of their children represents a right protected by the Constitution as to all parents and not only those parents whose children are required to attend segregated schools, we then reach the question of the application of due process to that right.
As pointed out by the Court in Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965):
"A fundamental requirement of due process is `the opportunity to be heard.' * * * It is an opportunity which must be granted at a meaningful time and in a meaningful manner."
and in greater detail we find the same principal in Boddie v. Connecticut, 401 U.S. 371, 377-378, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971), where Mr. Justice Harlan, speaking for the Court, stated:
"Prior cases establish, first, that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. Early in our jurisprudence, this Court voiced the doctrine that `[w]herever one is assailed in his person or his property, there he may defend,' Windsor v. McVeigh, 93 U.S. 274, 277, 23 L.Ed. 914 (1876). See Baldwin v. Hale, 1 Wall. 223, 17 L.Ed. 531 (1864); Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897). The theme that `due process of law signifies a right to be heard in one's defense,' Hovey v. Elliott, supra, at 417, 17 S. Ct. 841,has continually recurred in the years since Baldwin, Windsor, and Hovey.Although `[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause,' as Mr. Justice Jackson wrote for the Court in Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 70 S. Ct. 652, 94 L.Ed. 865 (1950), `there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Id., at 313, 70 S.Ct. 656.
Thus, each party to a lawsuit should be advised as to the claims asserted by the other parties to the lawsuit and have an opportunity to be heard in respect to all such claims.
In this case no pleading has ever been filed suggesting any wrongdoing on the part of any suburban school district, none suggesting that the suburban schools and the schools of the City of Detroit constituted a dual school system or even intimating any possibility of a need for a metropolitan school district to eliminate the segregated conditions alleged to have existed in the schools of the

City of Detroit. We can only speculate upon the timing of the first suggestion of a metropolitan district but it appears that the District Judge seized upon the suggestion without requiring any amendments to the pleadings or the adding of any parties.
I question whether the suburban school districts have any interest in being heard as to the claim of segregation within the City of Detroit, and there can be no question as to the right of the trial court to place certain limitations upon the part which any intervening school district would be permitted to play. Had all of this, in regard to metropolitan school districts, come up at the eleventh hour as suggested by the appellees one might, although it is doubtful, accept the conditions imposed by the District Judge. Such was not the case here. The motion to require the joinder of the suburban school districts was made almost eight months before consideration was given to the Detroit only plans.
The Advisory Committee on the Rules anticipated that limitations and conditions 283*283might be placed upon intervention as a matter of right under Rule 24(a):
"An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings." 3B Moore's Federal Practice ¶ 24.01 [10], at 24-18 (2d Ed.).
and see also Galbreath v. Metropolitan Trust Co. of California, 134 F.2d 569, 570 (10th Cir. 1943); Chavis v. Whitcomb, 305 F.Supp. 1359, 1363 (S.D.Ind. 1969). The situation in this case is pointed up by the language found at 3B Moore's Federal Practice ¶ 24.16 [4], 2d Ed.
"It would be meaningless to give him an absolute right to intervene in order to protect his interest, if once in the proceeding he were barred from raising questions necessary to his own protection."
What we have said in regard to intervention under Rule 24 sets forth without the necessity of repetition those matters which should be considered by any court in determining the part which is to be played by one who is joined as a party under Rule 19, as well as one who intervenes as a party, aspects of this case which are almost completely ignored by the majority and the District Court.
In conclusion I am constrained to say that I do not suggest that a metropolitan remedy is totally beyond the realm of consideration in this case upon an appropriate record. My whole purpose in writing this opinion is to point out that the majority and the District Court have fallen into a state of confusion in failing to distinguish between violation and remedy and in failing to recognize the necessity for the finding of violation before the trial court embarks upon that broad field of equity which permits a trial judge to devise a remedy which will adequately overcome the violation previously found to be in existence. I have also written because I am satisfied that the District Judge in failing to consider the necessity for joining the suburban school districts pursuant to a motion filed more than a year before the disposition of the case was in error. The suggestion by the District Court that the suburban school districts were only involved in the remedy points up the trap into which both the District Court and the majority of this Court have fallen in failing to recognize the necessity for finding a violation before a remedy may be imposed.
I would reverse the District Court and remand the case with instructions to require the joinder of the suburban school districts of the counties of Wayne, Oakland and Macomb with permission to the representatives of those districts, with reasonable limitations, to participate in all aspects of this lawsuit which may affect the suburban school districts, and with particular attention to the necessity for finding a constitutional violation which would justify the imposition of a metropolitan remedy.
WILLIAM E. MILLER, Circuit Judge (dissenting).

It is my firm conviction that it is premature at this time for the Court to adjudicate any of the questions arising from the various orders of the district court from which this appeal is taken. This is true for the reason that school districts and parties to be affected by a metropolitan plan or remedy have not been afforded an opportunity to be heard or to present evidence upon all of the issues involved.
The majority opinion does indeed state:
On remand, any party against whom relief is sought, including school districts which heretofore have intervened and school districts which hereafter may become parties to this litigation, shall be afforded an opportunity to offer additional evidence, and to cross-examine available witnesses who previously have testified, on any issue raised by the pleadings, including amendments thereto, as may 284*284 be relevant and admissible to such issues. The District Court may consider any evidence now on file and such additional competent evidence as may be introduced by any party.
The effect of this conclusion is, in my opinion, vitiated by the two succeeding sentences:
However, the District Court will not be required to receive any additional evidence as to the matters contained in its Ruling on the Issue of Segregation, dated September 27, 1971, and reported at 338 F.Supp. 582, or its Findings of Fact and Conclusions of Law on the "Detroit-only" plans of desegregation, dated March 28, 1972. We hold that the findings of fact contained in these rulings are not clearly erroneous, Rule 52(a), Fed.R.Civ.P., but to the contrary are supported by substantial evidence.
Parties to be affected and against whom relief is sought should be accorded, in compliance with basic principles of due process, an opportunity to be heard at a meaningful time and in a meaningful manner not only with respect to the ultimate scope of the remedy to be fashioned, but also with respect to important, significant and perhaps even controlling issues, including the issue of segregation, a "Detroit only" school plan and the propriety of a metropolitan remedy. If any one of these issues is resolved in favor of parties outside the Detroit School District, the nature and scope of a remedy embracing outlying districts would not be reached. Hence the outlying districts have a vital interest in each issue separately and should be heard on each in a true adversary sense. Until this is done our expression of view on the merits of the several questions is uncalled for and illadvised. To permit these additional parties to be heard only in the restricted sense set forth in the majority opinion is to deny them basic rights guaranteed not only by Rule 19, Federal Rules of Civil Procedure, but by the Constitution itself.
I would, therefore, vacate all orders appealed from the district court, remand the action for the joinder of all parties to be affected, and direct the district court to afford the parties a proper opportunity to be heard and to present evidence on the issues indicated above.
[1] M.S.A. § 15.3252(c), M.C.L.A. § 340.252(c).
[2] M.S.A. § 15.3575, M.C.L.A. § 340575.
[3] M.S.A. §§ 15.1023(10)(a), 15.3570 M.C.L.A. §§ 388.1010(a), 340.570.
[4] M.S.A. §§ 15.1951, 15.3361, M.C.L.A. §§ 388.371, 340.361; M.S.A. §§ 15.3781-15.3782, M.C.L.A. §§ 340.781-340.782; M.S.A. § 9.2511(c), M.C.L.A. § 257.811(c).
[5] M.S.A. § 15.3732(g), M.C.L.A. § 340.732(g).
[6] M.S.A. § 15.3789, M.C.L.A. § 340.789.

[7] M.S.A. § 15.3612, M.C.L.A. § 340.612; M.S.A. §§ 15.3616, 15.3688, M.C.L.A. §§ 340.616, 340.688.
[8] M.S.A. § 15.3887(1), M.C.L.A. § 340.887(1).
[9] M.S.A. § 15.3402, M.C.L.A. § 340.402.
[10] M.S.A. § 15.3431, M.C.L.A. § 340.431.
[11] M.S.A. § 15.3447, M.C.L.A. § 340.447.
[12] M.S.A. § 15.3567(1), M.C.L.A. § 340.567(a).
[13] M.S.A. § 15.1961, M.C.L.A. § 388.851, Op.Atty.Gen. No. 1837, 1952-1954 Report of the Attorney General 440 (Nov. 8, 1954).
[1] While the present undefined desegregation area consists of three additional counties and 53 school districts, this could, of course, be expanded so as to include as many as the District Judge may order. The plan seeks to achieve a racial balance or quota in each public school in the system of 75% white and 25% black in a state which is 87% white and 13% black. The Plan violates Public Acts of Michigan, 1867, Act 34 § 28, by ordering children living in one district to attend school in another district.
[2] The Supreme Court in Jones v. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), has since held that Section 1982 of 42 U.S.C. applies to all discrimination in the sale or rental of property.
The majority distinguishes Deal I on the ground that the District Court made findings of fact that there had been no unconstitutional conduct on the part of the Cincinnati Board of Education. In Bradley, the District Judge had found similar facts to constitute a violation of the Constitution. Both District Court decisions, although inconsistent, have now been affirmed.
[3] Indeed, there is no finding by the District Court of any pattern of purposeful segregation by the School Board or finding of any causal relationship between any alleged segregative acts of the Board of Education and the concentration of blacks in the inner city.
[4] At the National Black Political Convention held in Gary, Indiana (March, 1972), mandatory busing and school integration were condemned as racist and as preserving a black minority structure.
[5] Of course, merely because equal protection is an individual right does not mean, as implied in United States v. Jefferson Co. Bd. of Education, 372 F.2d 836 (5th Cir. 1966), that a class action will not be available under Rule 23(a) for redress of discrimination. A class action lies where a number of persons have similar individual rights infringed.
On the other hand, it does not follow that simply because a class action is available to redress discrimination individual rights can be obliterated by superimposing the "rights" of the class.
The individual plaintiffs, who charge in their Complaint the maintenance of a desegregated school system in Detroit, were all Negroes except one. Nevertheless, the District Court in determining the class held "that the plaintiffs in their action represent all school children in the City of Detroit, Michigan, and all Detroit resident parents who have children of school age, . . .." Thus white and black children and their parents, who are not situated similarly with the plaintiffs and may violently disagree with plaintiffs' position, are arbitrarily placed in the same class. It will also be noted that the Complaint sought only the desegregation of the Detroit schools and made no claim against other counties and other school districts.
[6] "The interventions granted this day shall be subject to the following conditions:
1. No intervenor will be permitted to assert any claim or defense previously adjudicated by the court.
2. No intervenor shall reopen any question or issue which has previously been decided by the court.
3. The participation of the intervenors considered this day shall be subordinated to that of the original parties and previous intervenors.

4. The new intervenors shall not initiate discovery proceedings except by permission of the court upon application in writing, accompanied by a showing that no present party plans to or is willing to undertake the particular discovery sought and that the particular matter to be discovered is relevant to the current stage of the proceedings.
5. No new intervenor shall be permitted to seek a delay of any proceeding in this cause; and he shall be bound by the brief and hearing schedule established by the court's Notice to Counsel, issued March 6, 1972.
6. New intervenors will not file counterclaims or cross-complaints; nor will they be permitted to seek the joinder of additional parties or the dismissal of present parties, except upon a showing that such action will not result in delay.
7. New intervenors are granted intervention for two principal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of considering a metropolitan plan; (b) to review any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting objections, modifications or alternatives to it or them, and in accordance with the requirements of the United States Constitution and the prior orders of this court.
8. New intervenors shall present evidence, if any they have, through witnesses to a number to be set, and limited, if necessary, by the court, following conference.
9. With regard to the examination of witnesses, all new intervenors shall among themselves select one attorney per witness to act for them, unless one or more of the new intervenors show cause otherwise. These conditions of intervention shall remain subject to change or modification by the court in the interest of timely disposition of the case.
DATE: March 15, 1972." App. at 408-410.
[7] Judge Roth's language is not understandable in view of the 1869 decision of the Supreme Court of Michigan in People, ex rel. Workman v. Board of Education of Detroit, supra, upholding the right of Negro children to attend any school in their district.
[8] The orders entered by the District Court have certainly been expended on the public treasury, have interfered with public administration, have restrained the State from acting, and have compelled it to act, which is the test for determining whether the action is against the State, under Dugan v. Rank, supra. Such an action is clearly proscribed by the Eleventh Amendment.
[1] Editorial, "Discrimination by HEW," New York Times, March 2, 1972.
[1] The others referred to included 38 additional suburban school districts.

 
 Case: 2:70-cv-35257-AC As of: 01/29/2013 10:41 AM EST 1 of 5
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:70−cv−35257−AC

CLOSED

Bradley v. Milliken, et al Assigned to: District Judge Avern Cohn Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff
Ronald Bradley

Date Filed: 08/18/1970 Date Terminated: 02/24/1989 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Horace E. Stone (SUSPENDED) Stone &Richardson 2910 E. Jefferson Avenue Detroit, MI 48207−4208 313−393−6700 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant William G. Milliken Governor of the State of Michigan
Defendant School Board of the School District of the City of Detroit

represented by Paul J. Zimmer Michigan Department of Attorney General Education Division P.O. Box 30212 Lansing, MI 48909 517−373−4875 Fax: 517−373−4875 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George T. Roumell , Jr. Roumell, Lange, 615 Griswold 7th Floor Detroit, MI 48226−3986 313−962−8255 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Detroit Federation of Teachers
Intervenor Detroit Federation of Teachers

represented by Theodore Sachs Sachs Waldman 1000 Farmer Street Detroit, MI 48226 313−965−3464 Fax: 313−965−3464 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theodore Sachs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:70-cv-35257-AC As of: 01/29/2013 10:41 AM EST 2 of 5

Date Filed 01/11/1989
01/19/1989 01/27/1989
01/31/1989 02/03/1989 02/08/1989 02/08/1989 02/10/1989 02/10/1989 02/10/1989 02/16/1989
02/24/1989
03/10/1989 03/28/1989
03/29/1989
03/30/1989

# Docket Text

1625

MEMORANDUM opinion and order by Judge Avern Cohn, granting Detroit Board of Education's motion to terminate jurisdiction and supervision over student assignments, faculty assignments and student code of conduct; to declare the Detroit Public Schools has achieved unitary status;to vacate all existing orders and injunctions except for the vocational education order of 9/13/88; and for dismissal of this case in its entirety (RH) (Entered: 01/13/1989)

1626 ERRATA for order [1625−2] that section II.A., paragraph 1 line 6 should read as follows: "... decisions of the Supreme Court, 418 U.S. 717 (1974) and 433 U.S. ..." (RH) (Entered: 01/24/1989)

1627 NOTICE by defendant Det, School Board of presentment of final order and judgment of dismissal with prejudice for entry with court pursuant FRCP 58 and the Court's memorandum of 11/11/89 with proposed order and proof of mailing (RH) (Entered: 01/30/1989)

1628 NOTICE of hearing on entry of proposed order; objections are due 2/13/89 (RH) (Entered: 02/01/1989)

1629 OBJECTIONS by defendant Det Federation Teach to Detroit Board's draft final order and judgment for dismissal with brief attachments and proof of mailing (RH) (Entered: 02/06/1989)

1630 ANSWER by defendant Det, School Board to objection by Det Federation Teach [1629−1] with proof of mailing (RH) (Entered: 02/10/1989)

1631 APPLICATION of Thomas I Atkins for attorney fees with exhibits (RH) Modified on 02/16/1989 (Entered: 02/10/1989)

ATTORNEY added for Ronald Bradley − Jeanne E. Mirer (RH) (Entered: 02/14/1989)

1632 APPLICATION by Jeanne E. Mirer for plaintiff Ronald Bradley for attorney fees with attachments and proof of mailing (RH) (Entered: 02/14/1989)

1633 APPLICATION by Michael Barnhart for attorney fees with brief and proof of mailing (RH) Modified on 02/16/1989 (Entered: 02/14/1989)

1634 ORDER by Judge Avern Cohn requesting that Thomas I. Atkins, Michael Barnhart and Jeanne Mirer supplement their applications for attorney fees within 20 days and the other parties to the case have 20 days to respond (RH) Modified on 03/07/1989 (Entered: 02/16/1989)

1635

JUDGMENT by Judge Avern Cohn that Court supervision and jurisdiction over the desegregation remedial plan including student assignments, faculty assignments and Code of Student Conduct is terminated. Further ordered that all existing injunctions are vacated except the injunctive portion of the September 13, 1988 order concerning the five Vocational Technical Centers. (pp) (Entered: 02/27/1989)

1636 SUPPLEMENTAL applications for attorney fees by Michael Barnhart [1633−1], by Jeanne E. Mirer [1632−1],and Thomas I Atkins [1631−1] for plaintiff Bradley (pursuant to the Court order of 2/16/89) (RH) (Entered: 03/13/1989)

1637 RESPONSE by defendant Det, School Board, defendant Det Federation Teach, defendant William G Milliken to application of Thomas Atkins, Michael Barnhart and Jeanne Mirer for attorney fees with with proof of mailing (RH) (Entered: 03/29/1989)

1638 MEMORANDUM by defendant Det, School Board in opposition to application for attorney fees by Michael Barnhart [1633−1], ;Jeanne E. Mirer [1632−1], and Thomas I Atkins for attorney fees [1631−1] with proof of mailingand proof of mailing (RH) (Entered: 03/30/1989)

1639 APPLICATION by Horace Stone for attorney fees with proof of mailing (RH) (Entered: 03/31/1989)

Case: 2:70-cv-35257-AC As of: 01/29/2013 10:41 AM EST 3 of 5

03/31/1989 04/14/1989 04/21/1989 04/21/1989 04/25/1989 04/25/1989 04/28/1989 05/04/1989 05/17/1989 05/17/1989 06/08/1989
06/09/1989 06/28/1989 07/17/1989
07/25/1989 08/16/1989 08/17/1989 08/17/1989 08/23/1989

1640 PROOF of mailing of application for attorney fees [1639−1] (RH) (Entered: 04/03/1989)

1641 RESPONSE by defendant Det, School Board to application for attorney fees [1639−1] with proof of mailing (RH) (Entered: 04/17/1989)

1642 RESPONSE by defendant Det, School Board, defendant Det Federation Teach, defendant William G Milliken to application for attorney fees [1639−1] with proof of mailing (RH) (Entered: 04/24/1989)

1643 MOTION by NAACP to extend time to 20 days to petition for fees and costs and to enter appearance of counsel with brief and proof of mailing (RH) (Entered: 04/24/1989)

1644 ORDER by Judge Avern Cohn granting motion to extend time to 20 days to petition for fees and costs and to enter appearance of counsel [1643−1] (RH) (Entered: 04/25/1989)

1645 RESPONSE by defendant Det, School Board to motion to extend time to 20 days to petition for fees and costs and to enter appearance of counsel [1643−1] with brief and proof of mailing (RH) (Entered: 04/26/1989)

1646 RESPONSE by plaintiff Ronald Bradley in opposition to defendants' Detroit Board of Education 's response opposing an award of attorney's fees and costs with proof of mailing (RH) (Entered: 05/02/1989)

1647 CORRECTED PROOF of mailing of answer [1646−1] (RH) (Entered: 05/05/1989)

1648 PETITION by Grover Hankins, General Counsel for NAACP/SCF for attorney fees and costs with attachments (RH) (Entered: 05/18/1989)

1649 APPLICATION of Edward Hailes Jr., Assistant General Counsel NAACP for attorney fees and costs with exhibits and affidavit (RH) (Entered: 05/18/1989)

1650

RESPONSE by defendant Det, School Board, defendant Det Federation Teach, defendant William G Milliken to application of Edward Hailes Jr., Assistant General Counsel NAACP for attorney fees and costs [1649−1], petition by Grover Hankins, General Counsel for NAACP/SCF for attorney fees and costs [1648−1], application for attorney fees by Ronald Bradley [1633−1], application by Jeanne E. Mirer for plaintiff Ronald Bradley for attorney fees by Jeanne E. Mirer [1632−1], application of Thomas I Atkins for attorney fees [1631−1] with proof of mailing (RH) (Entered: 06/09/1989)

1651 RESPONSE by defendant Det, School Board to application of Edward Hailes Jr., Assistant General Counsel NAACP for attorney fees and costs [1649−1] with brief, exhibit and proof mailing (RH) (Entered: 06/13/1989)

1652 NOTICE of hearing on petition for attorney fees (RH) (Entered: 06/29/1989)

1653

ORDER by Judge Avern Cohn denying application for attorney fees [1639−1], denying application for attorney fees by Ronald Bradley [1633−1], denying application by Jeanne E. Mirer for plaintiff Ronald Bradley for attorney fees by Jeanne E. Mirer [1632−1], denying application of Thomas I Atkins for attorney fees [1631−1] and Grover Hankins (RH) (Entered: 07/18/1989)

1654 LETTER from George Roumell, Jr. regaring Edward Hailes' attorney fee application (RH) (Entered: 07/28/1989)

1655 APPEAL by attorneys for plaintiff Ronald Bradley (Thomas I. Atkins, Jeanne Mirer and Michael Barnhart) of order [1653−1] to USCA with certificate of service. − FEE: PAID − Receipt #: 200361 (lB) (Entered: 08/17/1989)

1656 PROOF of mailing of appeal [1655−1]. (lB) (Entered: 08/17/1989)

1657 CERTIFIED copy of appeal by Ronald Bradley [1655−1] and docket transmitted to USCA. (lB) (Entered: 08/17/1989)

ATTORNEY added for Ronald Bradley − Horace E. Stone (RH) (Entered: 08/23/1989)

Case: 2:70-cv-35257-AC As of: 01/29/2013 10:41 AM EST 4 of 5

08/30/1989 09/01/1989 09/11/1989 09/11/1989 09/11/1989 09/20/1989
09/25/1989 10/23/1989 11/28/1989
12/05/1989 12/11/1989 11/20/1990
12/27/1990
05/18/1994
05/18/1994
05/26/1994
06/09/1994 06/20/1994
07/12/1994 08/22/1994 09/01/1994

1658 ACKNOWLEDGEMENT from USCA of receipt of appeal by Ronald Bradley [1655−1] − appeal case # 89−1986 (RH) (Entered: 08/30/1989)
1659 TRANSCRIPT of proceedings taken on 7/13/89 for appeal by Ronald Bradley [1655−1] (RH) (Entered: 09/05/1989)
1660 TRANSCRIPT order form by plaintiff Ronald Bradley for appeal by Ronald Bradley [1655−1] requesting transcript of: 7/13/89 (RH) (Entered: 09/18/1989)
DESIGNATION of record by plaintiff Ronald Bradley for appeal by Ronald Bradley [1655−1] (RH) (Entered: 09/18/1989)
1661 PROOF of mailing of appeal transcript [1660−1] (RH) (Entered: 09/20/1989)
1662 RECORD of appeal by Ronald Bradley [1655−1] transmitted to USCA − appeal case # 89−1986 − # of volumes:1 − # of transcripts: 1 − # of depositions: 0 (RH) (Entered: 09/20/1989)
1663 ACKNOWLEDGEMENT from USCA of receipt of appeal record − appeal case # 89−1986 (RH) (Entered: 09/28/1989)
1664 DESIGNATION of record received from Thomas I. Atkins for appeal by Ronald Bradley [1655−1] (RH) (Entered: 10/26/1989)
1665 SUPPLEMENTAL record of appeal by Ronald Bradley [1655−1] transmitted to USCA − appeal case # 89−1986 − # of volumes: 2 − # of transcripts: 0 (RH) (Entered: 11/28/1989)
1666 ACKNOWLEDGEMENT from UPS of delivery of appeal record supplement [1665−1] (RH) (Entered: 12/06/1989)
1667 ACKNOWLEDGEMENT from USCA of receipt of supplemental appeal record − appeal case # 89−1986 (RH) (Entered: 12/12/1989)
1668 NON−CERTIFIED copy of order from USCA affirming the decision of the District Court regarding appeal by Ronald Bradley [1655−1]− appeal case # 89−1986 (CD) (Entered: 11/27/1990)
1669 MANDATE from USCA affirming the decision of the District Court regarding appeal by Ronald Bradley [1655−1] of order [1653−1] − appeal case # 89−1986 (SB) (Entered: 01/08/1991)
1670 MOTION by Dennis Hayes counsel for plaintiff for attorney fees and for costs , with brief and proof of mailing (RH) Modified on 08/13/1996 (Entered: 05/19/1994)
1671 MOTION by Dennis Hayes, cousel for plaintiff for defendants to produce documents and costs , with proof of mailing −no brief− (RH) (Entered: 05/19/1994)
MOTION hearing held on motion for attorney fees by Ronald Bradley [1670−1] − disposition: t.u.a. − Judge Avern Cohn − Court Reporter: Cheryl Warren−Daniel (jc) (Entered: 05/26/1994)
1672 ANSWER by Ronald Bradley to Conditional Order (per phone conference) on 5/26/1994 (dt) (Entered: 06/13/1994)
1673 JOINT reply by defendants William G Milliken et al and Det School Bd to response of plaintiff Ronald Bradley to court's conditional order of 5/26/94 (by telephone conference) [1672−1] with attachments and proof of mailing (lh) (Entered: 06/21/1994)
1674 NOTICE of status conference (dt) (Entered: 07/13/1994)
1676 SUPPLEMENTAL MOTION by plaintiff for attorney fees , and for costs with brief and proof of mailing (ld) (Entered: 11/22/1994)
1677 ORDER by Judge Avern Cohn re: attorney fees , costs , and discovery (ld) (Entered: 11/22/1994)

Case: 2:70-cv-35257-AC As of: 01/29/2013 10:41 AM EST 5 of 5

09/07/1994 11/21/1994 11/21/1994 01/06/1995

1675 PROOF of mailing by plaintiff Ronald Bradley of Order re: attorney fees and costs and discovery (generic) (Entered: 09/08/1994)
1678 RESPONSE by defendant William G Milliken to motion for attorney fees by Ronald Bradley [1676−1], motion for costs by Ronald Bradley [1676−2] with proof of mailing (ld) (Entered: 11/22/1994)
1679 RESPONSE by defendant Det School Bd to motion for attorney fees by Ronald Bradley [1676−1], motion for costs by Ronald Bradley [1676−2] with proof of mailing (ld) (Entered: 11/22/1994)
1680 MEMORANDUM and order by Judge Avern Cohn denying motion for attorney fees by Ronald Bradley [1676−1], denying motion for costs by Ronald Bradley [1676−2] (generic) (Entered: 01/09/1995)

 
 No. 76-447
fit ZTte ,Ouptente quart nji the trtitul tat
OCTOBER TERM, 1976
WILLIAM G. MILLIKEN, ET AL., PETITIONERS V.
RONALD G. BRADLEY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES AS ANIMUS CURIAE
DANIEL M. FRIEDMAN, Acting Solicitor General,
DREW S. DAYS III, Assistant Attorney General,
LAWRENCE G. WALLACE, Deputy Solicitor General,
FRANK H. EASTERBROOK, Assistant to the Solicitor General,
BRIAN K. LANDSBERG, JUDITH E. WOLF,
Attorneys, Department of Justice,
Washington, D.C. 20530.

INDEX

Page

Questions presented

1

Interest of the United States

1

Statement

3

A. Proceedings through this Court's de-

cisions in Milliken I

3

B. Proceedings on remand

5

Summary of argument

14

Argument

17

I. A court may order educational changes

to be made as part of the remedy for

racial discrimination in the oper-

ation of the schools

17

A. The remedy for racial dis-

crimination should elimi-

nate all of the effects of the

constitutional violation

17

B. Alterations in the educa-

tional program of a school

system undergoing deseg-

regation may be necessary

to eradicate the lingering

effects of racial discrimina-

tion

22

C. The district court's plan is

reasonable

28

II. The direction to petitioners to pay part

of the costs of the remedial plan does

not violate the Tenth or Eleventh

Amendment

32

Conclusion

35

230-456--77-1

(I)

II

CITATIONS

Cases:

Page

Alexander v. Holmes County Board of Ed-

ucation, 396 U.S. 19

3, 18

Bradley v. School Board of the City of

Richmond, 416 U.S. 696

33

Brown v. Board of Education, 347 U.S.

483

2

Brown v. Board of Education, 349 U.S.

294

2 , 18

Comstock v. Group of Institutional Inves-

tors, 335 U.S. 211

28

Cooper v. Aaron, 358 U.S. 1

2

Edelman v. Jordan, 415 U.S. 651

16, 32, 33

Fitzpatrick v. Bitzer, 427 U.S. 445

33, 34

Gilmore v. City of Montgomery, 417 U.S.

556

18

Goss v. Board of Education, 373 U.S. 683_ 2-3

Graham v. Richardson, 403 U.S. 365

33

Green v. County School Board, 391 U.S.

430

3, 15, 17, 18, 20

Griffin v. County School Board, 377 U.S.

218

31, 33

Hart v. Community School Board of

Brooklyn, 383 F. Supp. 699, affirmed,

512 F. 2d 37

23, 27

Hills v. Gautreaux, 425 U.S. 284

23

Keyes v. School District No. 1, Denver,

Colorado, 413 U.S. 189

3, 18

Keyes v. School District No. 1, Denver,

Colorado, 521 F. 2d 465, certiorari de-

nied, 423 U.S. 1066

27

Louisiana v. United States, 380 U.S. 145

20

Milliken v. Bradley (Milliken I), 418 U.S.

717

2, 4, 5, 14, 17, 19, 28, 30, 34

Mitchum v. Foster, 407 U.S. 225

34

III

Cases-Continued

Page

Morgan v. Kerrigan, 530 F. 2d 401, cer-

tiorari denied sub nom. White v. Morgan,

426 U.S. 935

26-27

Morgan v. McDonough, 540 F. 2d 527, cer-

tiorari denied, January 10, 1977- (No.

76-664)

27

Morgan v. McDonough, C.A. 1, No. 76-

1121, decided January 26, 1977

27

Mt. Healthy City School District Board

of Education v. Doyle, No. 75-1278, de-

cided January 11, 1977

31

National League of Cities v. Usery, 426

U.S. 833

34

North Carolina Board of Education v.

Swann, 402 U.S.43

3, 23

Norwood v. Harrison, 413 U.S. 455

18

Pasadena City Board of Education v.

Spangler, No. 75-164, decided June 28,

1976

3, 30

Plaquemines Parish School Board v.

United States, 415 F. 2d 817

26

Reitman v. Mulkey, 387 U.S. 369

4

Runyon v. McCrary, 427 U.S. 160

3

School Board of City of Richmond v. State

Board of Education, 412 U.S.92

3

South Carolina v. Katzenbach, 383 U.S.

301

34

Spencer v. Kugler, 404 U.S. 1027, affirming

326 F. Supp. 1235

19

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1

3, 15, 18, 19, 20, 30

Tasby v. Estes, 517 F. 2d 92

26.

United States v. Jefferson County Board

of Education, 380 F. 2d 385, certiorari

denied sub nom. Caddo Parish. School

Board v. United States, 389 U.S. 840 25-26.

IV

Cases—Continued United States v. Missouri, 523 F. 2d 885__ P26

United States v. Wilcox County Board of

Education, 494 F. 2d 575, certiorari de-

nied, 419 U.S. 1031

26

Village of Arlington Heights v. Metropoli-

tan Housing Development Corp., No. 75-

616, decided January 11, 1977

19

Virginia, Ex parte, 100 U.S. 339

34

Waller v. Florida, 397 U.S. 387

31

Wright v. Council of City of Emporia, 407

U.S. 451

3

Constitution and statutes:

United States Constitution:

Tenth Amendment

1, 33, 34

Eleventh Amendment

1, 32, 33

Fourteenth Amendment

16, 32, 33, 34

Section 5

33

Civil Rights Act of 1964:

Title IV, 78 Stat. 248, 42 U.S.C. 2000c

et seq.

2, 23

42 U.S.C. 2000c-2

23

42 U.S.C. 2000e-3

24

42 U.S.C. 2000c-4

24

42 U.S.C. 2000c-6

2

Title VI, 78 Stat. 252, 42 U.S.C.

2000d

2

Title IX, 78 Stat. 266, 42 U.S.C.

2000h-2

2

Emergency School Aid Act, 86 Stat. 354, as

et seq. 20 U.S.C. (Supp. V) 1605(b) 20 U.S.C. (Supp. V) 1606(a)

2, 24 2, 25 2, 25

Constitution and statutes—Continued

Page

Equal Educational Opportunities Act of

1974, 88 Stat. 514, 20 U.S.C. (Supp. V)

1701 et seq.

2

20 U.S.C. (Supp. V) 1703(b)

20, 33

20 U.S.C. (Supp. V) 1712

19

28 U.S. 2403

2

Mich. Stat. Ann. § 15.1919 (525) (1975

rev.)

12

Miscellaneous:

Orfield, How to Make Desegregation Work:

The Adaptation of Schools to Their

Newly Integrated Student Bodies, 39

L. & Contemp. Prob. 314 (1975)

25

gartmt cottri ,njl flit SIMI gtatts
OCTOBER TERM, 1976
No. 76-447 WILLIAM G. MILLIKEN, ET AL., PETITIONERS
V.
RONALD G. BRADLEY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
QUESTIONS PRESENTED
The United States will discuss the following questions :
1. Whether a court may order educational changes to he made as part of the remedy for racial discrimination in the operation of the schools.
2. Whether the relief granted against the State violated the Tenth or Eleventh Amendment.
INTEREST OF THE UNITED STATES
The United States has participated in several courts during the lengthy history of this case. The United
(1)

2
States intervened in this case in the court of appeals 1 and participated as amicus curiae in this Court when the case was last here. See Milliken v. Bradley, 418 U.S. 717 (Milliken I).
The United States has substantial responsibility under Titles IV, VI and IX of the Civil Rights Act of 1964, 78 Stat. 248, 252, 266, 42 U.S.C. 2000c-6, 2000d and 2000h-2, and under the Equal Educational Opportunities Act of 1974, 88 Stat. 514 et seq., 20 U.S.C. (Supp. V) 1701 et seq., with respect to school desegregation. The Court's resolution of the issues presented in this case would affect that enforcement responsibility. The United States also contributes financially to school systems in the process of desegregation, and federal payments include support for educational programs as components of the desegregation process. See the Emergency School Aid Act, 86 Stat. 354, 357, 359, as amended, 20 U.S.C. (Supp. V) 1605 (b) and 1606(a). The expenditures under this Act might be affected by the Court's disposition of this case.
For these and other reasons, the United States has participated, either as a party or as amicus curiae, in most of this Court's school desegregation cases, including Brown v. Board of Education, 347 U.S. 483, 349 U.S. 294 ; Cooper v. Aaron, 358 U.S. 1; Goss v.
1 This intervention was authorized by 28 U.S.C. 2403 because the constitutionality of an Act of Congress had been drawn into question. The court of appeals found it unnecessary to pass upon the constitutionality of the statute that had precipitated the intervention (see 484 F. 2d 215, 258 (en bane)) , and the United States subsequently was dismissed as a party to this case.

3
Board of Education, 373 U.S. 683; Green v. County School Board, 391 U.S. 430; Alexander Holmes County Board of Education, 396 U.S. 19 ; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1; Wright v. Council of City of Emporia, 407 U.S. 451; School Board of City of Richmond v. State Board of Education, 412 U.S. 92 ; Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189; Norwood v. Harrison, 413 U.S. 455 ; Runyon v. McCrary, 427 U.S. 160 ; Pasadena City Board of Education v. Spangler, No. 75-164, decided June 28, 1976; and Vorchheimer v. School District of Philadelphia, No. 76-37, argued February 22, 1977.
STATEMENT
A. PROCEEDINGS THROUGH THIS COURT'S DECISION IN MILLIKEN I
This suit was brought in 1970 as a class action against city and state officials by parents and their children attending Detroit public schools. Plaintiffs alleged that defendants had pursued a policy and practice of racial discrimination in the Detroit public schools.
In September 1971, after several preliminary proceedings (see 433 F. 2d 897, 438 F. 2d 945), the district court found that the Detroit school board had engaged in official acts of racial discrimination that had contributed to racial separation in the school system.'
2 The board had used optional attendance zones, transported children on a racially-discriminatory basis, gerrymandered attendance zones and altered grade structures, and pursued discriminatory school construction policies. 338 F. Supp. 582.
230-456-77 2

The court also found that official acts of state agencies had contributed to racial separation in the Detroit schools. The court concluded that the State of Michigan, through passage of Act 48 in 1970, had overruled Detroit's voluntary desegregation plan and thus had contributed to the problem. Cf. Reitman v. Mulkey, 387 U.S. 369. In addition, the State supervised school site selection, approved Detroit's discriminatory construction program, and denied Detroit state funds for pupil transportation that were made generally available in other parts of the State. See 338 F. Supp. 582, 589, 592, 593-594.
After considering various remedial plans submitted by plaintiffs and the Detroit Board,' the district court ordered the preparation of a student assignment plan that would encompass Detroit and 53 suburban school districts. See 345 F. Supp. 914. The court of appeals affirmed the findings of constitutional violations committed by both the Detroit school board and the State. See 484 F. 2d 215, 221-242. The court went on to hold that the remedy must include provisions for assigning students to schools outside the school districts in which they resided, because only such assignments could produce the racial mix the court thought to be desirable. Id. at 250-258.
This Court reversed in part in Milliken I. It did not disturb the findings that the State took part in the discrimination leading to the current conditions
3 The court of appeals had refused to upset the order requiring the submission of plans. See 468 F. 2d 902.

5
in Detroit. 418 U.S. at 748. The Court held, however, that since the record contained no significant evidence of violations having an interdistrict effect, the interdistrict relief was not commensurate with the scope of the violations. The Court remanded the case for further proceedings "leading to prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy Which has been delayed since 1970." 418 U.S. at 753.
B. PROCEEDINGS ON REMAND
On remand, the district court ordered plaintiffs and the Detroit Board to submit remedial plans involving only the City of Detroit. The State defendants were ordered to submit a critique of the Detroit Board's plan (Pet. App. 13a). Hearings were held on the submitted plans, and the district court approved the Detroit Board's plan with some modifications (402 F. Supp. 1096; Pet. App. 7a-149a). It selected the Board's plan over that of plaintiffs because the Board's plan was more flexible and did not involve extensive transportation of minority students from one predominantly black school to another (Pet. App. 30a, 45a-49a, 62a). The court set out guidelines for the revision of the Board's plan to make greater use of student reassigmnents accomplished by rezoning and grade restructuring (Pet. App. 62a-72a).
Although plaintiffs' plan related solely to student assignment, the Detroit Board's plan included a num-

6
ber of "educational components." The educational components suggested were (Pet. App. 35a) :
a. In-Service Training [of teachers] b. Guidance and Counseling c. School-Community Relations d. Parental Involvement e. Student Rights and Responsibilities f. Testing g. Accountability h. Curriculum Design i. Bilingual Education j. Multi-Ethnic Curriculum k. Co-curricular Activities.
The district court found that the proposed plan did not distinguish "between those components that are necessary to the successful implementation of a desegregation plan and those that are not" (Pet. App. 35a). It stated that, although the "Board's plan * * * includes a number of educational components intended to facilitate desegregation[,] [s]ome are unrelated to desegregation and have been inserted with the hope that they could be implemented by court order" (Pet. App. 55a). • The district court included the "educational components" in the final plan only to the extent that it found them necessary to carry out desegregation. The court concluded that "the majority of the educational components included in the Detroit Board plan are essential for a school district undergoing desegregation" and should be mandated "where they are needed to remedy effects of past segregation, to assure a suc-

7
cessful desegregative effort and to minimize the pos-
sibility of resegregation" (Pet. App. 36a). Expert witnesses for the Detroit Board, plaintiffs
and the State had given testimony to show the need
for various educational programs to bring about desegregation. Dr. Edward Simpkins, Dean of the Wayne State University College of Education, testified that
educational components should be included in the desegregation plan (A. 30-31) :
I believe they should be included in the desegregation plan because the effort to desegregate has to have that going for it. The situations that were tolerable seem to become intolerable once integration becomes a part of the educational process. * People who don't have a program in ethnic studies are going to want to have a program in ethnic programs and studies, once they find out they have to mix with ethnic groups. * The fact that a counseling program, maybe there is a counseling ratio of 300— or one to 300 within a school or one to 350 which is educationally unsound, we know that. It becomes educationally intolerable generally once integration is made part of the total school program so you address yourself to, you certainly should address yourself to those educational issues that are sound and advantageous anyway whenever you take the desegregation step of the proportions that we are considering in this city w , there is going to be a need to address a number of educational issues that should have been addressed long before.

Dr. Simpkins also discussed the role of testing in the
desegregation process (A. 31) :
In a number of school systems and certainly in the City of Detroit at one time or another we have had tracking systems built into the school systems and testing has been used as a device for segregating and isolating racial groups within schools. We know this has occurred. * In addressing the testing question and the review question it seems to me that the Board has attempted to insure that even if the youngster finds himself in a classroom setting that an immediate test result might indicate he belongs in, there is going to be an opportunity for review so that he is not going to be assigned to that seat, that classroom setting on any permanent basis.
Margaret Ashworth, another expert witness called
by the Detroit Board, testified that in-service train-
ing of teachers was necessary because (A. 33) :
[w]hen we bring black and white children together in a classroom certain kinds of problems surface that are unlike those that existed before. Teachers have to have specific training in terms of how they will relate to those differences. In the event that black children have for the first time a white teacher, or vice versa, certain kinds of problems exist. In the first place there will be tensions, there will be hostilities, there will be resistance to the change, something that we have had experiences with and research to back up and that has to do with how one relates to differences. * * *

With respect to counseling and testing, Ashworth

testified (A. 34-37) :

I am very much convinced that the present

counseling and guidance program would be

inadequate * '. I am referring to counsel-

ors who have not understood the cultural dif-

ferences, the racial differences, the life styles

of students unlike themselves. * * * [W]hat I

am saying is that students have been counseled

in or out of certain programs based on their

race.

*

*

*

We believe and it is supported by a section in the plaintiff's critique that testing is very important in the desegregation effort in that adequately trained teachers and the administration of tests play a very important part in whether or not youngsters are admitted in certain curriculums, whether or not they are tracked and particularly as it relates to placement in special education type settings.

Are you telling this Court that testing has been segregatory?
A. Yes, I am.* * -'k Q. Would it be fair to say that the testing component in the Board's plan is designed to prevent this type of segregatory effect ?
A. Yes it would. * * I believe it to be an
essential part and a necessary part to make desegregation work and to correct the inequities that have come about as a result of testing practices in the Detroit Public Schools.

10
Dr. Michael Stolee, one of plaintiffs' experts, testified that counseling could be helpful in encouraging use by all students of programs traditionally utilized by only one race (A. 55). Dr. Gordon Foster, Director of the Miami Title IV Desegregation Center, was asked whether reading programs have been shown to be important in eliminating the lingering effects of racial discrimination. He answered (A. 56)
Very definitely so. * * [B]oth in our work at the center and in the funds that are requested through the Emergency School Assistance Act for the Federal Government for desegregation, the Florida District perceives this to be perhaps their highest priority item.
Finally, one of petitioners' experts, Dr. Charles Kearney of the Michigan Department of Education, testified that an in-service training program for professional staffs would prepare the staffs for desegregation. He noted that while in-service training already existed, additional training was needed to create (A. 87) :
an awareness * * * about the cultural diversity of this country, of this city * [T]he teacher, the professional ought to have an appreciation for those heritages and ought to be able to capitalize on kinds of differences, rather than look upon them as negative kinds of factors in dealing with children.
Dr. Kearney also testified that counseling, non-discriminatory testing, and curriculum changes are necessary to extirpate the effects of discrimination (A. 90-96).

11
The district court concluded (Pet. App. 36a-37a) :
In a segregated setting many techniques deny equal protection to black students, such as discriminatory testing, discriminatory counseling and discriminatory application of student discipline. In a system undergoing desegregation, teachers will require orientation and training for desegregation. Parents need to be more closely involved with the school system and properly structured programs must be devised for improving the relationship between the school and the community. We agree with the State Defendants that the following components deserve special emphasis : (1) In-Service Training; (2) Guidance and Counselling; (3) Student Rights and Responsibilities * * * (4) School-Community Relations-Liaison; (5) Parental Involvement; (6) Curriculum Design; (7) Multi-Ethnic Curriculum; and (8) CoCurricular Activities. Additionally, we find that a testing program, vocational education and comprehensive reading programs are essential. We find that a comprehensive reading instruction program together with appropriate remedial reading classes are essential to a successful desegregative effort.
The district court emphasized the importance of an effective reading program (Pet. App. 72a) and discussed the importance of the other educational programs to the elimination of the effects of discrimination (id. at 73a-83a). See also id. at 127a135a. The court ordered the city and state defendants to institute comprehensive programs for reading and communication skills, in-service training, testing, and
230-450-77-3

12
counselling and career guidance (id. at 146a). Thus,
of the 11 educational components originally proposed
by the Detroit Board, only three were incorporated into the court's final order, and a fourth (reading and communication skills training) was added by the
court itself.
The court concluded that the cost of these four
programs should be borne by both the city and State. The court ordered the Detroit Board to disclose its
highest budget allocation in any year for each of the
enumerated education programs already in existence. The court ordered the city defendants to provide that
much money to pay for the educational components.
The excess cost is to be paid equally by the Detroit Board and the state defendants (Pet. App. 146a147a).4
4 The highest annual budget allocated for each of the four components (in effect in the 1975-1976 school year) was $75,989,000. The excess cost of complying with the district court's order was computed by the Detroit Board to be $11,645,000. Thus, under the district court's order, the state and city defendants each must contribute approximately 5.8 million dollars annually for expansion of educational programs (Pet. Br. 12-13).
The district court also found (Pet. App. 39a) that the State of Michigan does not supply the Detroit school district with as much money as it could be providing under a statute designed to aid districts that are unable to raise sufficient tax revenues (Mich. Stat. Ann. § 15.1919 (525) (1975 rev.). If the district were fully funded, it would receive an additional $61,682,000; at the time of the district court's order, only 28 percent of the tax overburden section of the Act was funded by the state legislature. The court found that Detroit taxpayers have the highest municipal overburden in the state (Pet. App. 38a). It did not state whether other districts were also underfunded.

The court of appeals reversed the district court's order insofar as it adopted a student assignment plan that excluded three inner-city regions. The court affirmed the orders in all other respects (540 F. 2d 229 Pet. App. 151a-190a).
Petitioners had argued that there was no finding of constitutional violation that justified the inclusion of educational components in the plan. The court of appeals held, however, that the district court's finding that the educational components 'are necessary to 64 ' remedy effects of past segregation, to assure a successful desegregation effort and to minimize the possibility of resegregation' * is not clearly erroneous, but to the country is supported by ample evidence" (Pet. App. 170a). The court of appeals sum-
marized the evidence as follows (id. at 170a-171a) :

The need for in-service training of the edu-

cational staff and development of nondiscrimi-

natory testing is obvious. The former is needed

to insure that the teachers and administrators

will be able to work effectively in a desegregated

environment. The latter is needed to insure that

students are not evaluated unequally because of

built-in bias in the tests administered in for-

merly segregated schools.

We agree with the District Court that the

reading and counseling programs are essential

to the effort to combat the effects of segregation.

*

*

*

*

*

Without the reading and counseling components, black students might be deprived of the motivation and achievement levels which the desegregation remedy is designed to accomplish.

The court of appeals therefore held that the district court acted within its powers (Pet. App. 171a) and that the remedy was related to the violation (id. at 179a) :
Since Michigan State officers and agencies were guilty of acts which contributed substantially to the unlawful de jure segregation that exists in Detroit, the State has an obligation not only to eliminate the unlawful segregation but also to insure that there is no diminution in the quality of education.
The court of appeals also held that the district court properly required the State to bear part of the costs of the educational components because the order (Pet. App. 178a) "imposes no money judgment on the State of Michigan for past de jure segregation practices. Rather, the order is directed toward the State defendants as a part of a prospective plan to comply with a constitutional requirement to eradicate all vestiges of of de jure segregation."
SUMMARY OF ARGUMENT
I
The remedy in a school desegregation case "is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Milliken v. Bradley, 418 U.S. 717, 746 (Milliken I). The goal of the remedy in a case like the present one is to eliminate the racial discrimination and all of its lingering effects. Petitioners, how-

15
ever, have confused the goal of the remedy with the tools available to a district court to reach that goal. The courts are not limited to undoing step-by-step the particular acts of discrimination perpetrated by the defendants.
The evidence showed that discrimination in the operation of the schools often has pervasive effects on the educational process. The district court was required to formulate a plan that would overcome these effects, and at the same time not disrupt the education of the students. The court also was required to adopt a plan addressing any new problems that would result from the process of desegregation itself. In other words, it was required to adopt a plan that would work. Green v. County School Board, 391 U.S. 430. The record in this case supports the district court's conclusion that educational programs were needed in order to make the desegregation plan work.
"Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15. The district court therefore has the authority to require educational programs, where such programs are necessary to eradicate the lingering effects of racial discrimination and to bring about effective desegregation.
The educational components of the district court's plan in this case serve that goal. The in-service

16
teacher training program is designed to help faculty understand and overcome the problems of teaching in newly integrated schools and to capitalize on the diversity of the student body; the testing program is designed to detect and eradicate misleading information about individual students' capabilities that may have been generated by racial discrimination; the counseling and reading programs will help overcome educational deficiencies that can be traced, at least in part, to racial discrimination. It was, therefore, proper for the district court to require Detroit officials to comply with the educational components of the plan.
II
Petitioners' argument that the district court lacks the authority to require them to pay part of the cost of the plan is insubstantial. Both courts below found that petitioners took part in the racial discrimination in the operation of the Detroit schools, and petitioners do not challenge that finding here. That being so, the district court was authorized to provide prospective equitable relief, even though such relief may require the expenditure of money. Edelman v. Jordan, 415 U.S. 651, 664-668.
The order to pay for the equitable relief does not infringe state sovereignty. The purpose of the Fourteenth Amendment was to prevent States and their subdivisions from engaging in invidious discrimination, and it is not an invasion of their "sovereignty" to compel them to make amends for viola-

17
tions of that Amendment. "[N]o state law is above the Constitution" (Milliken I, Supra, 418 U.S. at 744), and no decision of this Court has held that judicial remedies for violations of the Constitution must yield to principles of state sovereignty. See Fitzpatrick v. Bitzer, 427 U.S. 445; Ex parte Virginia, 100 U.S. 339.
ARGUMENT
I
A COURT MAY ORDER EDUCATIONAL CHANGES TO BE MADE AS PART OF THE REMEDY FOR RACIAL DISCRIMINATION IN THE OPERATION OF THE SCHOOLS
A. TIIE REMEDY FOR RACIAL DISCRIMINATION SHOULD ELIMINATE ALL OF THE EFFECTS OF THE CONSTITUTIONAL VIOLATION
Whether the district court abused its discretion in ordering the Detroit Board to adopt (and petitioners to pay part of the cost of) certain educational programs in this case depends in large measure upon the goal the remedial order in such cases should be designed to achieve. The Court has articulated the goal in Milliken I, supra, 418 U.S. at 746: "[T]he remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct."
The goal, in other words, is to eliminate "root and branch" the violations and all of their lingering effects. Green v. County School Board, 391 U.S. 430, 438. It is to eliminate those effects whatever they may

18
be and wherever they may be found, starting from the common understanding that "racially inspired school board actions have an impact beyond the particular schools that are the subjects of those actions." Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 203. The goal is not merely to adopt a plan to rearrange student assignments; it is, rather, to adopt a plan that promises "realistically to work" in overcoming the effects of discrimination. Green, supra, 391 U.S. at 439.
"In fashioning and effectuating the [desegregation] decrees, the courts will be guided by equitable principles." Brown v. Board of Education, 349 U.S. 294, 300. The task of an equitable decree is to correct the condition that offends the Constitution. As the Court observed in Swum v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 13 : "The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation."
Racial discrimination in the operation of the schools often has a pervasive effect on the educational process and on the hearts and minds of the students. See Brown v. Board of Education, 347 U.S. 483, 494. 5 The remedial decree should seek to alleviate these intangible effects, no less than to alleviate the assignment of students to racially identifiable schools. To this end there must be broad equitable power "to remedy past wrongs" (Swann, supra, 402 U.S. at 15).
'See also Gilmore v. City of Montgomery, 417 U.S. 556, 571; Norwood v. Harrison, 413 U.S. 455, 469.

19
We agree with petitioners that a court is not at liberty to produce a result merely because it may find the result desirable. The existence of a violation of the Constitution does not authorize a court to bring about conditions that never would have existed in the absence of official racial discrimination. The remedy should not be designed to eliminate arguably undesirable states of affairs that are caused by private conduct ("de facto segregation") or state-caused conditions not related to racial discrimination. This much has been settled by Milliken I. See also Spencer v. Kugler, 404 U.S. 1027, affirming 326 F. Stipp. 1235 (D. N.J.) ;" Village of Arlington Heights v. Metropolitan Housing Development Corp., No. 75-616, decided January 11, 1977, slip op. 12-13 and n. 15, 17-18 and n. 21.
The task of a remedial decree in a school desegregation case "is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution. * * As with any equity case, the nature of the violation determines the scope of the remedy." Swann, supra, 402 U.S. at 16. Congress has made a similar judgment. In the Equal Educational Opportunities Act of 1974, 88 Stat. 516, 20 U.S.C. (Sapp. V) 1712, Congress provided that " [i]n formulating a remedy for a denial of equal educational opportunity or a denial of equal protection of the laws, a court " shall seek or impose
In Spencer the Court summarily affirmed a district court's holding that extreme racial imbalance, without more, does not authorize a court to revise neutrally established school district lines.

20
only such remedies as are essential to correct particular denials of equal educational opportunity or equal protection of the laws."
Petitioners, however, have confused the goal of the remedy with the tools available to a district court to reach that goal. They seem to contend that because the defendants did not use the lack of in-service training, for example, as part of a plan of discrimination, in-service training cannot be part of the plan to eliminate the lingering effects of the proved discrimination. This approach would unduly constrict the flexibilty of a court charged with creating a decree that will eliminate all of the effects of the racial discrimination.' Congress has provided (20 U.S.C. (Supp. V) 1703 (b)) that no State may deny equal educational opportunity by failing "to take affirmative steps ' * to remove the vestiges" of discrimination. Petitioners would deny district courts the tools needed to achieve that goal.
A district court has great flexibility in crafting an equitable remedy to meet the problems presented by particular cases. It cannot be confined to ordering the defendants to undo the discrimination itself, because that often would leave the effects of the discrimination untouched. In Green, for example, although the unconstitutional racial discrimination was the assignment of students to one school or another on the basis of race, it was not a sufficient remedy to
7 In. a desegregation case the district court "has not merely the power but the duty to render a decree which will so far 'as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Louisiana v. United States, 380 U.S. 145, 154.

21
order the defendants to implement a "freedom of choice" plan, under which no student would be assigned on the basis of race to any school. The freedom of choice plan did nothing to overcome the lingering racial identifiability of the schools.
The principle is the same when the lingering effects of racial discrimination include deficient education received by black students in racially identifiable schools (with resulting disparities in achievement levels among students to be integrated) and the attitudes that teachers may have acquired during the many years racial discrimination was practiced by the school officials. To say that the district court is powerless to address these consequences of racial discrimination would be to say that some of the most damaging consequences of discrimination will go unattended. The mere mixture of racial groups does not constitute effective desegregation—and, indeed, may not result in a workable plan for desegregated education—if students and teachers are not given the tools necessary to overcome problems that arise in the process of desegregation.
" [W]ords are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern" (Swann, supra, 402 U.S. at 31). In Swann itself the district court's order included a requirement of in-service training of teachers and the creation of a hi-racial advisory committee to help the school system begin the process of desegregation. 318 F. Supp. 786, 802. 8 As we now show, such
8 Petitioners err in asserting (Br. 20-21) that the .CharlotteMecklenburg decree was limited to student assignments.

22
provisions in remedial decrees may be integral parts of the process of eradicating the lingering effects of discrimination. Whether or not they are properly used in particular cases rests primarily within the sound discretion of the district court; no per se rule forbids (or requires) their use.
B. ALTERATIONS IN THE EDUCATIONAL PROGRAM OF A SCHOOL SYSTEM UNDERGOING DESEGREGATION MAY BE NECESSARY TO ERADICATE TI-IE LINGERING EFFECTS OF RACIAL DISCRIMINATION
The assignment of students to schools on the basis of race, the construction of schools so that they usually are or quickly become racially identifiable, and the other instruments of racial discrimination that may be found in metropolitan school systems have effects that extend far beyond the placement of students in particular schools. A remedial plan that does no more than reassign students will not eliminate whatever psychological and educational effects may have been caused by the discrimination. A simple reassignment of students might prevent psychological effects and educational deficiencies from arising in the future, but it would do nothing about the burdens imposed on the students who have suffered from racial discrimination in the past.
Nor does the mere reassignment of students provide relief that may be required for problems that result from the desegregation process itself. In at least some cases, the inclusion in a remedial plan of "educational components" similar to those at issue here will provide relief to those who have been victims of

23
discrimination before they leave the school system. It may, in other words, provide relief for the particular harms done to particular students, whereas the student reassignment provisions of the plan are designed to provide relief to the school system as a whole and prevent the violations from recurring.
In the event of a constitutional violation "all reasonable methods [must] be available to formulate an effective remedy." North Carolina Board of Education v. Swann, 402 U.S. 43, 46. "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann, supra, 402 U.S. at 15. No principle of equity limits the remedy to undoing, step by step, all of the acts making up the racial discrimination. Instead, courts have and must have the discretion to choose among many tools designed to bring about the elimination of the effects of the violation. Cf. Hills v. Gautreaux, 425 U.S. 284, 296-297.
Congress has determined that special educational programs often are necessary as part of a plan of desegregation, in order to eliminate the effects of racial discrimination and to address the new problems arising in the desegregation process. Title IV of the Civil Rights Act of 1964, 78 Stat. 248, as amended, 42 U.S.C. 2000c et seq., authorizes the Commissioner of Education to provide information about "effective methods of coping with special educational problems occasioned by desegregation" (42 U.S.C. 2000c-2), to

24
provide grants for training programs "designed to improve the ability of teachers, supervisors, counselors, and other elementary or secondary school personnel to deal effectively with special educational problems occasioned by desegregation" (42 U.S.C. 2000c-3), and to make grants to pay all or part of the cost of in-service training of teachers and other school personnel to deal with problems incident to desegregation (42 U.S.C. 2000c-4).
In the Emergency School Aid Act, 86 Stat. 354, as amended, 20 U.S.C. (Supp. V) 1601 et seq., Congress authorized federal financial assistance
to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools; [and] * * to aid school children in overcoming the educational disadvantages of minority group isolation.
20 U.S.C. (Supp. V) 1601. The Act provides federal financial assistance for special remedial programs, employment of staff members trained in solving the problems incident to desegregation, the retraining of existing staff, in-service teacher education to help overcome racial stereotypes and other impediments to desegregation, comprehensive guidance and counseling for students, development of new curricula and institutional methods to instruct students of all ethnic and economic backgrounds, career education, innovative interracial programs, community activities in support of the remedial plan, administrative serv-

25
ices to facilitate the success of the plan, planning, and remodeling of facilities. 20 U.'S.C. (Supp. V) 1606(a). The Act also provides funds for "unusually promising pilot programs or projects designed to overcome the adverse effects of minority group isolation by improving the academic achievement of children in one or more minority group isolated schools * * *." 20 U.S.C. (Supp. V) 1605(b).
The courts of appeals, which have extensive experience with the problems of overcoming the continuing effects of racial discrimination, often have used or approved educational changes similar to those required by the courts below in the instant case.' The Fifth Circuit, which deals most often with school cases, has recognized that educational changes are integral parts of effective remedial plans. That court therefore has instructed district courts to require school officials to "provide remedial education pro()Tams which permit students attending or who have previously attended segregated schools to overcome past inadequacies in their education." United States v. Jefferson County Board of Education, 380 F. 2d
9 See also Orfield, How to Make Desegregation Work: The Adaptation of Schools to Their Newly Integrated Student Bodies, 39 L. & Contemp. Prob. 314 (1975). Professor Orfield argues that teaching methods, curricula, and traditional means of grouping students should be reassessed to facilitate the process of desegregation. The author also observes that one study has shown that when curriculum changes accompanied student reassignments, many children returned to the public schools from private schools. Id. at 338.

26
385, 394 (C.A. 5) (en bane), certiorari denied sub nom. Caddo Parish School Board v. United States, 389 U.S. 840.
The guidelines established in Jefferson County Board of Education were designed to apply to all school cases within the Fifth Circuit." Thus, in Plaquemines Parish School Board v. United States, 415 F. 2d 817, that court approved a plan requiring
the school board to establish remedial educational programs for black students who, under the student
assignment plan, would be attending formerly all-
white schools. The court stated (415 F. 2d at 831) :
The remedial programs, ordered by the district court, are an integral part of a program for compensatory education to be provided Negro students who have long been disadvantaged by the inequities and discrimination inherent in the dual school system. The requirement that the School Board institute remedial programs so far as they are feasible is a proper exercise of the court's discretion. The Fifth Circuit does not stand alone in using such techniques. In United States v. Missouri, 523 F. 2d 885, 887 (C.A. 8), the court required the defendants to establish in-service training programs for faculty and staff. In Morgan v. Kerrigan, 530 F. 2d 401 (C.A. 1), certiorari denied sub nom. White v. Morgan, 426 U.S.
10 In United States v. Wilcox County Board of Education, 494 F. 2d 575 (C.A. 5), certiorari denied, 419 U.S. 1031, the court of appeals held that it was error not to create a countywide advisory and liaison committee. See also Tasby v. Estes, 517 F. 2d 92 (C.A. 5) (appointment of tri-ethnic committee to advise the school district).

27
935, the court ordered several schools to be converted
to "magnet" schools and educational changes to be
made in other schools; the court also appointed a com-
mittee of universities to oversee the development.' In Hart v. Community School Board of Brooklyn, 383 F. Supp. 699 (E.D.N.Y.), affirmed, 512 F. 2d 37
(C.A. 2), the court ordered the creation of a "magnet
school" and the implementation of educational im-
provements." The multiplicity of methods devised by these courts
demonstrates that, in fashioning remedial tools to be
used against racial discrimination, the district courts
are not confined to eliminating the devices that once
were used as tools of discrimination.
11 Cf. Morgan v. McDonough, 540 F. 2d 527 (C.A. 1), certiorari denied, January 10, 1977 (No. 76-664) (placing one high school in receivership and ordering educational changes to avoid frustrating desegregation) ; Morgan v. McDonough, C.A. 1, No. 76-1121, decided January 26, 1977 (approving certain orders concerning the receivership).
12 Petitioners incorrectly rely (Br. 21-22) on Keyes v. School District No. 1, Denver, Colorado, 521 F. 2d 465, 480-483 (C.A. 10), certiorari denied, 423 U.S. 1066, for the proposition that educational components never may be included in a desegregation plan. The Tenth Circuit held that a district court overstepped its authority by requiring a "pervasive and detailed" (521 F. 2d at 482) plan for bilingual and bicultural education of minority children. The court disapproved the plan because it was not designed to eradicate the continuing effects of the racial discrimination and because it was an excessive intrusion into the prerogatives of local education authorities. The court did not hold, however, that no educational components could be ordered under any circumstances.

28
C. THE DISTRICT COURT'S PLAN IS REASONABLE
If, as we contend, and as the courts below held, a remedial plan properly may require some adjustments in the school system's educational programs, the remaining question is whether the district court abused its discretion by ordering the Detroit Board to implement the four "educational components" in this case. Both the district court and the court of appeals found that the "educational components" in the plan were necessary to ameliorate the lingering effects of official racial discrimination in the operation of the schools. This is therefore an appropriate occasion to invoke the "seasoned and wise rule of this Court [that] concurrent findings of two courts below [are] final here in the absence of very exceptional showing of error." Comstock v. Group of Institutional Investors, 335 U.S. 211, 214. See also Milliken I, supra, 418 U.S. at 738 n. 18. Petitioners have not argued that the district court abused its discretion; they have argued, instead, that it has no discretion in this regard. If the Court rejects petitioners' argument that the district court is powerless to order any "educational component," that should be the end of this case.
In any event, the evidence we have recounted at pages 6-14, supra, supports the district court's holding that the educational components are necessary to bring to an end the continuing effects of racial discrimination in the operation of the schools and to deal with the problems resulting from desegregation. The in-service teacher training program is designed to

29
help faculty understand and overcome the problems of transition to a nondiscriminatory school system
and to capitalize on the diversity of their students ;
the testing program is designed to detect and eradi-
cate misleading information about individual students'
capabilities that may have been generated by racial discrimination; the counseling program is designed to
provide career and educational guidance for students
whose opportunities may have been impaired by acts of racial discrimination and to inform all students
of the new opportunities available to them; the read-
ing program is designed to compensate for the edu-
cational deficiencies in the Detroit schools that may
be traced, at least in part, to racial discrimination." There might be cause for concern if the district court
had promulgated a plan that stripped the school board of the discretion to devise and carry out an educa-
13 Both the district court (Pet. App. 9a, 36a, 58a, 78a, 104a, 107a) and the court of appeals (id. at 170a) also concluded that the educational components were justified as part of an attempt to prevent "resegregation." This apparent concern about probable stability in the anticipated racial composition of the student population is not impermissible. In choosing between otherwise permissible remedial plans, a district court does not abuse its discretion in selecting the one causing the least adverse private reaction, whether that reaction might take the form of "white flight" or, as in some cities, violent resistance. Moreover, to the extent that "resegregation" may include the reassertion, as a result of the lingering effects of past discrimination, of the racial identifiability of the schools attributable to that discrimination, it must be dealt with and overcome in any remedy designed to put the school system in the position it would have occupied but for the racial discrimination. For example, changes in the educational program of the schools may be necessary to induce white parents to send their children to schools that were formerly identifiably "black" and that may have

30
tional program, or if the district court unnecessarily had interfered with that authority. "School authorities are traditionally charged with broad power to formulate and implement educational policy" (Swann-, supra, 402 U.S. at 16), and district courts ought not to assume that role in the absence of a default by local authorities—and then only to the extent necessary
to rectify that default. That is all that has occurred here ; the remedy at issue is specifically designed to alleviate the effects of racial discrimination in the operation of the schools.
Whenever possible, a federal court ought to avoid prescribing the details of educational policy, but the present case does not present the spectre of a district court's running the educational program of an entire school system. The "educational components" of the remedial plan here were proposed by the Detroit school board. The plan has received the full support of the Detroit officials, respondents in this Court. The district court's plan does not prescribe the day-
acquired a reputation, attributable to racial discrimination, as educationally inadequate.
Thus, there is no reason to believe that the courts below undertook to engage in the kind of exercise prohibited by Pasadena City Board of Education v. Spangler, No. 75-164, decided June 28, 1976. Spangler held that a district court may not reassign students annually to take account of demographic changes in student populations and shifts in racial composition of the schools not attributable to new acts of racial discrimination. Nor should the references below to resegregation be construed as requiring a particular degree of racial balance in each school or classroom. There is no indication that the courts below held, contrary to the law of the case (see Milliken I, supra, 418 U.S. at 740-741) , that such racial balance must be achieved.

31
to-day details of administration of the educational components; rather, the plan states broad objectives, and the local school authorities are free to achieve them as they think best. We therefore submit that the district court did not abuse its discretion in ordering the implementation of the four educational components challenged by petitioners.
There remains the question whether the district
court should have ordered petitioners to pay part of the cost of providing these educational compo-
nents. The district court did so in light of the findings, not challenged here by petitioners, that petitioners took part in the racial discrimination. That, in our view, is a sufficient foundation for the order to pay half of the increased costs attributable to the implementation of the educational components." Cf. Griffin v. County School Board, 377 U.S. 218, 233 (a federal court may order a county to levy taxes to raise funds necessary to carry out desegregation).'
14 Petitioners' argument (Br. 14, 38) that the court of appeals has written a "blank check" on the state treasury is incorrect. If the costs of the educational components of the plan increase unexpectedly, petitioners could ask the district court for relief ; if relief were denied, they could seek review by the court of appeals. Similarly, if the district court were to increase petitioners' proportionate contribution to the costs of the plan higher than 50 percent, petitioners could obtain appellate review. The court of appeals has approved only the plan before it.
15 Indeed, municipalities and school boards are subdivisions of the States. Although they are not equated with the States for all purposes (see Mt. Healthy City School District Board of Education v. Doyle, No. 75-1278, decided January 11, 1977, slip op. 5-6), they exist by leave of the State, and it cannot entirely disclaim responsibility for their deeds. See Waller v. Florida, 397 U.S. 387.

32
II
THE DIRECTION TO PETITIONERS TO PAY PART OF THE COSTS OF THE REMEDIAL PLAN DOES NOT VIOLATE THE TENTH OR ELEVENTH AMENDMENT
Petitioners argue that, even if the district court properly ordered the Detroit Board to implement the educational components of the remedial plan, it was powerless to order the state defendants to pay any part of the cost (Br. 23-38). Petitioners do not, however, contest the holding of both the district court (338 F. Supp. at 589, 592-594), and the court of appeals (484 F. 2d at 238-241), that they took part in and fostered the acts of racial discrimination within Detroit. See also Milliken I, supra, 418 U.S. at 734735 n. 16, 748 (declining to disturb the findings of state participation). Petitioners therefore are arguing, in effect, that if relief for violations of the Fourteenth Amendment will require a State to spend money, federal courts may not order relief (see Br. 26-38). The law, however, is settled to the contrary.
1. Although the Eleventh Amendment ordinarily precludes a federal court from directing a State to pay a sum of money as an accrued liabiilty (Edelman v. Jordan, 415 U.S. 651), it does not prevent a court from providing an equitable remedy for constitutional violations, even when that remedy will entail the expenditure of funds (id. at 664). In the present case, the expenditures required of petitioners all are incident to prospective compliance with injunctive relief, and their requirement, therefore, is not barred by the Eleventh Amendment (id. at 667-668).

33
The "direct" nature of the order to provide money does not change the result. In Griffin v. County School
Board, 377 U.S. 218, 233, the Court stated that a
county could be ordered to levy taxes to raise funds necessary to carry out desegregation. See also Graham
v. Richardson, 403 U.S. 365, in which the Court upheld a prospective order to pay welfare benefits.
Edelman, too, indicates that a prospective order to pay money does not offend the Eleventh Amendment."
2. The Tenth Amendment, upon which petitioners
rely (Br. 29-31), does not forbid enforcement of the
Fourteenth Amendment. The major purpose of the
Fourteenth Amendment is to prevent States from en-
gaging in invidious discrimination. The Fourteenth
16 The Equal Educational Opportunities Act of 1974, 88 Stat. 515, 20 U.S.C. (Supp. V) 1703 ( b) , provides that no State may deny equal educational opportunity by "the failure of an educational agency which has formerly practiced * * * deliberate segregation to take affirmative steps * * * to remove the vestiges of a dual school system." This statute was enacted in part pursuant to Congress' power under Section Five of the Fourteenth Amendment, and it applies to this case as a new law enacted during the pendency of the litigation. See Bradley v. School Board of the City of Richmond, 416 U.S. 696. Congress therefore has indicated that courts may require affirmative action to eliminate the continuing effects of racial discrimination in the operation of the schools, and the Eleventh Amendment does not forbid the award of monetary relief under a statute based upon Section Five of the Fourteenth Amendment. Fitzpatrick v. Bitter, 427 U.S. 445.
Neither the district court nor the court of appeals relied upon Section 1703 (b) , and it is not clear to what extent they believed that the educational components of the plan were necessary to comply with this statute. The existence of such a statute demonstrates, however, that the Eleventh Amendment erects no absolute bar against the type of relief awarded in this case. See Fitzpatrick, supra.

34
Amendment would be feeble indeed if, as petitioners contend, the Tenth Amendment erects a shield that prevents enforcement of the Fourteenth whenever curing the racial discrimination practiced by a State requires the expenditure of money. Cf. Fitzpatrick v. Bitzer, 427 U.S. 445; South Carolina v. Katzenbach, 383 U.S. 301, 308; Ex parte Virginia, 100 U.S. 339.
This Court has concluded in Fitzpatrick, Virginia, and other cases that the Fourteenth Amendment is a restriction on state sovereignty to the extent necessary to carry out its goals. See also Mitchum v. Foster, 407 U.S. 225, 238-239. Petitioners apparently argue that National League of Cities v. Usery, 426 U.S. 833, supports a contrary position, but they are wrong. "[N]o state law is above the Constitution." Milliken I, supra, 418 U.S. at 744. National League held that Congress lacks the power under the Commerce Clause to interfere with the sovereign decisions of States with respect to compensation of their employees; the Court did not rely upon the Tenth Amendment for this holding, and it did not intimate that judicial remedies for violations of the Constitution would be required to yield to principles of state sovereignty. Fitzpatrick, decided four days later, demonstrates that the authority of Congress and the courts to rectify violations of the Fourteenth Amendment stands unimpaired.

35 CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted. DANIEL M. FRIEDMAN, Acting Solicitor General. DREW S. DAYS, III, Assistant Attorney General. LAWRENCE G. WALLACE,
Deputy Solicitor General. FRANK H. EASTERBROOK, Assistant to the Solicitor General. BRIAN K. LANDSBERG, JUDITH E. WOLF,
Attorneys. MARCH 1977.
U.S. GOVERNMENT PRINTING OFPICE:1977