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.