Warren E. Burger

“ 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. ”

“ 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? ”

“ 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. ”

“ Following the District Court's abrupt announcement that it planned to consider the implementation of a multi-district, 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 multi-district plans "may, as a practical matter, impair or impede [the intervenors'] ability to protect" the welfare of their students. ”

“ 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. ”

“ With respect to the Detroit Board of Education's practice 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. ”

“ 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. ”

“ 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 Negro or predominantly Negro Detroit schools. ”

“ 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. ”

“ 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 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. ”

“ 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 [p747] 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. ”

“ Viewing the record as a whole, it seems clear that the District Court and the Court of Appeals shifted the primary [p740] 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. ”

“ 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 [p726] white children to predominantly black school. 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 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. ”

“ 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. ”

“ 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.
↑ . 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, creed, race, color or national origin," Mich.Const.1963, Art. ”