Milliken v. Bradley/Dissent Douglas
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 [p758] 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.  The State controls the boundaries of school districts.  The State supervises schoolsite selection.  The construction is done through municipal bonds approved by several state agencies.  Education in Michigan is a state project, with very little completely local control,  except that the schools are financed locally, not on a state-wide basis. Indeed, [p759] the proposal to put school funding in Michigan on a state-wide basis was defeated at the polls in November, 1972.  Yet the school districts, by state law, are agencies of the State.  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. 
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;  and the blacks, we know, in many instances are likely to [p760] be poorer,  just as were the Chicanos in San Antonio School District v. Rodriguez, 411 U.S. 1. By that decision, the poorer school districts  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.  [p761]
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"]413 U.S. 189, 214-217, there is, so far as the school cases go, no constitutional difference between de facto and 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 413 U.S. 189, 214-217, there is, so far as the school cases go, no constitutional difference between de facto and 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 [p762] 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.  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.
^ . Mich.Const., Art. 8, §§ 2, 3.
^ . See 484 F.2d 215, 247-248; Mich.Comp.Laws §§ 340.402, 340.431, 340.447, 388.681 (1970).
^ . Mich.Comp.Laws § 388.851 (1948), as amended by Act 231, Mich. Pub.Acts of 1949, and Act 175, Mich. Pub.Acts 1962.
^ . See Mich.Comp.Laws §§ 132.1 and 132.2 (1970); 3 App. 157.
^ . See 484 F.2d at 248-249.
^ . 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.
^ . See 484 F.2d at 246-247; Mich.Const. Art. 8, §§ 2, 3.
^ . See n. 2, supra.
^ . 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).
- 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.
^ . 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. Prest, 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.
Glickstem & Want, Inequality in School Financing: The Role of the Law, 25 Stan.L.Rev. 335, 338 (1973).
^ . 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.
^ . 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 "inter-district" 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.