Case: Milliken v. Bradley

This landmark case is about racial segregation in the Detroit metropolitan area schools, and has been described as the most significant school desegregation case since Brown v. Board of Education, 347 U.S. 483 (1954) (also in this Clearinghouse). The first Supreme Court ruling is often denoted as Milliken I, and was considered crucial for clarifying the distinction between de jure and de facto segregation. It confirmed that a school district would not be held responsible for segregation across district lines unless it could be shown that the district had engaged in a policy of deliberate segregation.

This summary focuses on the history of the case in the Detroit community, rather than the Supreme Court jurisprudence. We only have the docket starting in 1989, so this summary is based on opinions and The Detroit School Busing Case by Joyce Baugh (University of Kansas Press, 1st ed. 2011).

Background

On Apr. 7, 1970, to counter racial segregation in Detroit’s schools, the Detroit school board voted 4-2 to adopt a controversial integration and decentralization plan, which became known as the “April 7 plan.” The next day, the state legislature passed Act 48 in response, which repealed the April 7 plan, required there to be neighborhood schools, and reorganized the Detroit school system into eight regions along racial lines. All four of the school board members who had voted for the April 7 plan were recalled from the board in an election on Aug. 4, 1970.

On Aug. 18, 1970, NAACP attorneys filed a suit in the U.S. District Court for the Eastern District of Michigan against the Detroit Board of Education and other state defendants. The suit was filed on behalf of specific students (one of whom was Ronald Bradley) and these students' parents. The Detroit branch of the NAACP was also listed as a plaintiff. Later, the district court would define the class as "all school children in the City of Detroit, Michigan, and all Detroit resident parents who have children of school age.” 418 U.S. 717 (1974).

The plaintiffs’ original plan before the school board recall vote had been to challenge Section 12 of Act 48, the specific provision that struck down the April 7 plan. However, the recall necessitated a change in strategy, because all the school board members that had supported the plan were recalled and no pro-integration candidates were elected to replace them, so even if a challenge were successful, there would be no one on the board to support integration. Thus, the NAACP decided to challenge school segregation citywide, not just in the areas covered by the April 7 plan.

Early Days of the Lawsuit

The complaint, filed on 08/18/1970, alleged that racially discriminatory policies and practices had created segregation in Detroit’s public schools and challenged the repeal of the April 7 plan along with the provisions requiring segregated student assignments and racially identifiable regions. It also requested an injunction to (1) require implementation of the April 7 plan, (2) temporarily stop all school construction, and (3) halt implementation of Act 48.

The case was assigned to Judge Stephen Roth. Judge Roth denied the plaintiffs’ request for immediate implementation of the April 7 plan and suspension of all school construction; he scheduled a hearing to begin on Aug. 27, 1970. On Sept. 3, 1970, Judge Roth denied another motion by the plaintiffs to implement the April 7 plan, dismissed the governor and attorney general as defendants, and scheduled the trial to begin on Nov. 12, 1970. Joyce Baugh, The Detroit School Busing Case 88 (1st ed. 2011).

The plaintiffs then filed an emergency petition to the Court of Appeals for the Sixth Circuit, which was heard by Chief Judge Harry Phillips. Judge Phillips expedited the appeals procedure, and oral argument before a three-judge panel took place on Oct. 2, 1970, and the panel issued its decision on Oct. 13, 1970, finding that Act 48 violated the Fourteenth Amendment. It also reinstated the governor and attorney general as defendants and remanded the case to the district court for further proceedings, but did not overturn the denial of the preliminary injunction that would have required the implementation of the April 7 plan.

Back in district court on remand, the plaintiffs again requested implementation of the April 7 plan, this time to start at the beginning of the second semester. They also requested a delay of the trial date. Judge Roth scheduled a hearing for Nov. 4, 1970, postponed the trial by a month, and permitted the Detroit Federation of Teachers (DFT) to intervene as an additional defendant.

Two days after the hearing, Judge Roth ordered the school board to submit an integration plan to be implemented at the beginning of the second semester, by Nov. 16, 1970—either the April 7 plan or an alternative that would achieve “no less pupil integration.” Id. at 89.

Judge Roth then permitted another group of defendants to intervene—a group of white parents in Detroit, who wanted to defend the school system against allegations of segregation. Many of these parents in this group were associated with the Concerned Citizens for Better Education (CCBE), the group behind the petition for the school board recall election.

On Nov. 9, 1970, the school board submitted three options: (1) the April 7 plan, (2) a plan to create magnet schools at the junior and senior high levels that black and white students could choose to attend, to be implemented in Sept. 1971, at the start of the next school year, and (3) a part-time desegregation plan, in which high school students would take some classes at a second school, so black and white students would be in classes together for part of the day.

On Dec. 3, 1970, Judge Roth issued a decision ordering the board to implement the magnet school plan the following school year. He also postponed the trial indefinitely, expressing doubt that the plaintiffs could prove their case of unconstitutional, systemwide school segregation.

The plaintiffs appealed to the Sixth Circuit. On Feb. 22, 1971, a three-judge panel refused to reconsider the plaintiffs’ request to implement the April 7 plan and upheld the district court’s acceptance of the magnet school plan. However, the panel rejected the indefinite postponement of the trial, and Judge Roth scheduled trial to begin on April 6, 1971.

The Trial

The trial lasted for 41 days. The plaintiffs had a two-part strategy, focusing (1) on housing discrimination and its effect on school segregation, and (2) on the defendants’ actions and decisions which, the plaintiffs alleged, intentionally created and perpetuated the segregated system.

As the housing phase of the case concluded, on April 20, 1971, the Supreme Court decided Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), unanimously holding that busing was an appropriate remedy to integrate a city and surrounding suburban schools, which were all in the same district.

In the second phase of their case, the plaintiffs presented evidence that the Detroit school board’s policies created and maintained segregated schools. The plaintiffs characterized the constitutional violation as the containment of blacks in a set of separate, de jure black schools, that gradually expanded over a twenty-year period, but always within a state-created racial line of containment.

On Sept. 27, 1971, Judge Roth issued his first ruling, finding that the Detroit schools were illegally segregated because of both housing segregation and de jure segregation by the local and state defendants. The court found that the school board had made decisions to create and maintain segregation in the schools through optional attendance zones; transportation policies for relieving overcrowding in schools; the alteration of attendance zones, grade structures, and feeder patterns; and new school construction location decisions. The opinion noted that the school board had admitted to busing black students past closer white schools with available space to farther-away black schools, despite the board’s stated policy of using transportation to increase integration. Judge Roth also found that the state defendants had acted to control and maintain the segregation pattern in Detroit schools, based on (1) funding decisions that had favored white suburban districts, (2) state approval of school construction that furthered racial segregation, and (3) passage of Act 48.

A few days before the trial ended, the CCBE moved to add the other 85 school districts, which were suburban and largely white, in the tri-county area (Wayne, Macomb, and Oakland counties) as defendants. The plaintiffs and all of the other defendants were opposed to this, and Judge Roth decided to wait to rule on the motion until after the parties had submitted their desegregation plans.

The state and local defendants appealed to the Sixth Circuit, before the district court had ordered a specific remedy.

Finding a Remedy

On Oct. 4, 1971, Judge Roth held a meeting with both parties to determine how to proceed and expressed skepticism about the effectiveness of a Detroit-only remedy. He ordered the Detroit school board to submit a progress report on the magnet school plan within 30 days and a desegregation plan within 60 days, and the state defendants were given 120 days to submit a metropolitan-wide plan for desegregation.

A few days later, Michigan’s Republican junior senator Robert Griffin introduced an amendment to the U.S. Constitution to prohibit busing as a remedy for school desegregation. Philip Hart, Michigan’s Democratic senior senator, led a successful filibuster against the amendment.

In Nov. 1971, the Detroit school board submitted its evaluation of the magnet plan. The report acknowledged that the non-magnet schools remained heavily segregated, and that the plan “accelerated the movement of white students out of majority black schools.” The authors concluded that to be more effective, the magnet plan would “have to cross district boundaries.”

In Feb. 1972, the Sixth Circuit dismissed the state and local defendants’ appeals of the district court ruling, holding that since no remedy had been granted or denied, there was nothing to review.

On Mar. 15, 1972, Judge Roth accepted petitions to intervene from a white citizens’ group, the CCBE, and suburban school districts, on the condition that the intervenors would not focus on issues already decided. William Saxton represented forty of the suburban school districts, and only a few of the other suburban districts chose to retain separate counsel.

Hearings on the Detroit-only plans were held Mar. 14-21, 1972. On Mar. 24, 1972, before ruling on the plans, Judge Roth issued a ruling declaring that it would be appropriate to consider metropolitan plans if it were deemed necessary to remedy the constitutional violation, citing Green v. County School Board of New Kent County, 391 U.S. 430 (1968) and Brown II, 349 U.S. 294 (1955).

On Mar. 28, 1972, Judge Roth rejected the Detroit-only desegregation plans, and criticized both the proposals submitted by the Detroit school board (the voluntary transfer and part-time desegregation programs) and by the NAACP plaintiffs (redrawing attendance boundaries, with some pairing and clustering of schools).

The Detroit school board continued to deny any acts of segregation, but argued that if desegregation were going to take place, a metropolitan plan was preferable to a Detroit-only remedy. At this point, 70% of the Detroit school district’s student population was black, and the school board argued that white flight from Detroit schools would only increase in response to a Detroit-only remedy, creating an all-black district surrounded by all-white suburban districts. Judge Roth agreed.

Between Mar. 28 and Apr. 14, 1972, another set of hearings was held on the various metropolitan plans that were submitted by the NAACP plaintiffs, the state defendants, the Detroit school board, and the CCBE. The state board submitted six proposals, all of which the Judge rejected as ineffective. The Detroit school board’s plan was to include reassignment of students at all grade levels in 69 of the 86 districts in the tri-county area, while the CCBE recommended a 62-district plan, with desegregation to begin after fourth grade. The NAACP plaintiffs suggested a plan that was similar but covered 54 districts. Saxton argued that under Swann), “the nature of the violation determines the scope of the remedy,” and thus the desegregation should be limited to Detroit, where the segregation was found. The plaintiffs then introduced additional evidence demonstrating that the pattern of one-race school construction and faculty assignments extended throughout the metropolitan area.

Meanwhile, President Nixon instructed his attorney general to intervene in the Detroit case to oppose any metropolitan busing plan. Judge Roth denied the local U.S. Attorney’s request to intervene, but invited him to participate as an amicus curiae.

On June 14, 1972, Judge Roth ruled that the intra-district plans were inadequate. He reasoned that the court “must look beyond the limits of the Detroit school district for a solution to the problem,” designated 53 of the 85 suburban school districts plus Detroit as the “desegregation area,” and appointed and charged a special panel to prepare a specific student assignment and transportation plan within 45 days.

The Detroit school board, state defendants, and suburban district-defendants all appealed the ruling to the Sixth Circuit.

On July 5, 1972, the special panel reported that additional buses would be required to implement the plan. The district court added the state treasurer as a defendant and, on July 11, 1972, ordered that funds be issued to purchase the requested buses. Two weeks later, the Sixth Circuit granted the state defendants’ motion to stay the order. On July 20, 1972, the district court certified the major issues for appeal to the Sixth Circuit.

On Aug. 24, 1972, a three-judge panel of the Sixth Circuit heard oral argument. On Dec. 8, 1972, the panel unanimously affirmed the district court’s findings of de jure segregation of Detroit public schools by the Detroit school board and the state of Michigan and the inadequacy of a Detroit-only remedy. The panel vacated portions of the ruling, including the designation of the geographic “desegregation area,” and the remedy was put on hold to allow the state legislature to voluntarily craft a remedy.

The defendants sought en banc review, which was granted. On Feb. 8, 1973, all nine of the Sixth Circuit judges heard oral argument. On June 12, 1973, the Sixth Circuit voted 6-3 to affirm Judge Roth’s ruling on the issue for segregation and the need for a metropolitan remedy. In the majority opinion, Chief Judge Harry Phillips concluded that the record “amply” supported the district’s findings of “unconstitutional actions by public officials at both the local and State level.” 484 F.2d 215, 242 (6th Cir. 1973). However, the opinion noted that their affirmance did not rely on the evidence about segregated housing with the exception of how school construction programs helped to cause or maintain such segregation. The opinion explained that this case was different from the “classical” school segregation case in that failing to adopt a metropolitan-wide plan “would result in an all black school system immediately surrounded by practically all white suburban school systems.” 484 F.2d 215, 245 (6th Cir. 1973). Finally, the opinion expressed concern that to hold that school district boundaries could not be crossed “would be opening a way to nullify Brown”. 484 F.2d 215, 249 (6th Cir. 1973).

The panel agreed that a metropolitan plan was both necessary and within the power of the federal courts, vacated the remedy portion of the district court’s ruling, and remanded the case to the district court for further proceedings so that the suburban districts affected by the orders could be heard. The panel also vacated the July 11, 1972 order directing the purchase of school buses.

On Sept. 6, 1973, the state defendants and suburban districts filed writs of certiorari, requesting Supreme Court review of the case. The Supreme Court granted certiorari. At that point, two other cases, Allen Park Public Schools v. Bradley (filed by Saxton on behalf of 40 districts), and Grosse Pointe Public School System v. Bradley (filed by a single district), had been consolidated with the original suit.

The Supreme Court - Milliken I

On July 25, 1974, in a 5-4 opinion written by Chief Justice Burger, the Supreme Court upheld the finding of de jure segregation of the Detroit school district but rejected an interdistrict remedy. The opinion held that with “no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect,” the metropolitan remedy was “wholly impermissible” and not justified by Brown. 418 U.S. 717, 745 (1974). The case was remanded to the district court to develop a Detroit-only remedy.

Judge Roth died on July 11, 1974, and the case was reassigned to Judge Robert DeMascio. Judge DeMascio ordered that the plaintiffs and the Detroit school board submit each submit desegregation plans by Apr. 1, 1975. The plaintiffs’ proposal covered almost all of Detroit’s 290 schools, and aimed for the schools to more closely mirror the district’s racial composition: a range from 41% to 90% black students. The board’s plan focused on the city’s 84 majority-white schools and only some of the majority-black schools, and involved attendance zone changes, new feeder patterns, noncontiguous zoning, pairing and clustering schools, and revised grade structures.

The Remedy - A Detroit-Only Busing Plan

Judge DeMascio tried, unsuccessfully, to get the parties to agree to a single plan. In a written opinion dated Aug. 15, he issued a partial judgment, rejecting the NAACP’s proposal and ordering the school board to revise its plan. The ruling provided for a very limited Detroit-only busing plan. It excluded three regions from the central city area and involved only 27,524 of the district’s 247,774 students, which meant that 80% of the city’s black students were excluded from the plan. The judgment also ordered that several educational components be implemented in all of Detroit’s schools as ancillary relief: (1) a remedial reading program, (2) in-service training for faculty and staff, (3) vocational education, (4) a testing program, (5) a new code of student conduct, (6) a school community relations program, (7) a counseling and career guidance program, (8) co-curricular activities, and (9) bilingual and multicultural studies. The busing plan was successfully implemented in Jan. 1976, though the plaintiffs, state, and school board continued to disagree about various aspects of the district court’s orders.

In May 1976, Judge DeMascio ordered the state to pay for half of the cost of four of the educational components: the remedial reading program, in-service training, testing, and the counseling and career guidance program. The school board was to pay for the other half of the costs through its regular budget and federal grants. The state argued that there was no constitutional violation justifying these costs, and that it should not have to pay for any of them, while the school board argued that all of the components were necessary to remedy segregation, and that the state should pay 75% of the costs.

The case returned to the Sixth Circuit. A three-judge panel heard arguments on June 15, 1976. The Sixth Circuit issued a decision on Aug. 4, 1976, affirming the district court order and finding that the challenged programs were “essential to the effort to combat the effects of segregation” and that requiring the state to pay half of the costs was within the district court’s power. 540 F.2d 229, 241, 244 (6th Cir. 1976). The panel also affirmed the district court’s student assignment plan, except for its exclusion of schools in the three central city regions: “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.” 540 F.2d 229, 239 (6th Cir. 1976). The panel noted that it could not provide any guidelines to the district court to resolve this issue on remand, however, because it believed that “genuine constitutional desegregation cannot be accomplished within the school district boundaries.” 540 F.2d 229, 239 (6th Cir. 1976).

The Supreme Court - Milliken II

The state appealed to the Supreme Court, which granted certiorari in Nov. 1976 and heard oral arguments on Mar. 22, 1977. It issued its decision (Milliken II) on June 27, 1977. The Court unanimously affirmed the Sixth Circuit, noting that the district court’s remedial plan which extended beyond “mere pupil assignments” was “expressly approved” by Swann and United States v. Montgomery County Board of Education, 395 U.S. 225 (1969). 433 U.S. 267, 286 (1977). The court also held that the state could bear some of the costs of the remedial programs without violating Michigan's immunity from suit established by the Eleventh Amendment.

District Judge DeMascio's Recusal

Meanwhile, at the district court level, in 1976, the plaintiffs moved for Judge DeMascio to recuse himself from the case, claiming a lack of impartiality and that they had been improperly excluded from meetings the judge had held with the school board and DFT. In Jan. 1977, Judge DeMascio denied the motion and this decision was upheld by another district judge; but, in 1978, the Sixth Circuit suggested that Judge DeMascio recuse himself, which he did on Aug. 8, 1980. 495 F. Supp. 217 (E.D. Mich. 1980). He was replaced by a panel of three district judges: Chief Judge John Feikens, and Judges Avern Cohn and Patricia Boyle.

The 1980s

Over the next several years, the plaintiffs, school board, and state continued to dispute the programs’ costs. In 1984, the panel disbanded the Monitoring Commission, which had been created to oversee the plan, and ended its oversight of the educational components.

However, the Sixth Circuit ordered that the panel reinstate the Monitoring Commission and two of the educational components, the school community relations program and the student code of conduct. In 1985, Judge Cohn assumed sole responsibility for the case. He continued his supervisory role until Sept. 1988, when he terminated jurisdiction over the educational components.

On Jan. 11, 1989, Judge Cohn declared that Detroit schools had achieved unitary status and vacated all existing orders and injunctions except for a vocational education order.

On Feb. 24, 1989, nineteen years after the suit was filed, Judge Cohn held that court supervision and jurisdiction over the desegregation plan had terminated, though litigation about attorneys’ fees continued through Jan. 1995.

Available Opinions

Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970).

Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971).

Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich. 1971).

Bradley v. Milliken, 468 F.2d 902 (6th Cir. 1972).

Bradley v. Milliken, 345 F. Supp. 914 (E.D. Mich. 1972).

Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973).

Milliken v. Bradley, 418 U.S. 717 (1974).

Bradley v. Milliken, 402 F. Supp. 1096 (E.D. Mich. 1975).

Bradley v. Milliken, 411 F. Supp. 943 (E.D. Mich. 1975).

Bradley v. Milliken, 411 F. Supp. 937 (E.D. Mich. 1975).

Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976).

Milliken v. Bradley, 429 U.S. 958 (1976).

Milliken v. Bradley, 433 U.S. 267 (1977).

Bradley v. Milliken, 460 F. Supp. 299 (E.D. Mich. 1978).

Bradley v. Milliken, 460 F.Supp. 325 (E.D. Mich. 1978).

Bradley v. Milliken, 620 F.2d 1143 (6th Cir. 1980).

Bradley v. Milliken, 495 F. Supp. 217 (E.D. Mich. 1980).

Bradley v. Milliken, 585 F. Supp. 348 (E.D. Mich. 1984).

Bradley v. Milliken, 772 F.2d 266 (6th Cir. 1985).

Bradley v. Milliken, 828 F.2d 1186 (6th Cir. 1987).

Bradley v. Milliken, No. 89-1986, 1990 WL 177183 (6th Cir. Nov. 14, 1990).