Milliken v. Bradley

No. 76-447

Argued March 22, 1977

Decided June 27, 1977

433 U.S. 267

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus



After this Court, in Milliken v. Bradley, 418 U.S. 717 (Milliken I),

determined that an inter-district remedy for de jure segregation in the

Detroit school system exceeded the constitutional violation, and

remanded the case for formulation of a decree, the District Court

promptly ordered submission of desegregation plans limited to the

Detroit school system.  After extensive hearings the court, in addition

to a plan for student assignment, included in its decree educational

components, proposed by the Detroit School Board, in the areas of

reading, in-service teacher training, testing, and counseling.  The

court determined that these components were necessary to carry out

desegregation, and directed that the costs were to be borne by the

Detroit School Board and the State.  The Court of Appeals affirmed the

District Court's order concerning the implementation of and cost sharing

for the four educational components.



Held:



1. As part of a desegregation decree, a district court can, if the

record warrants, order compensatory or remedial educational programs for

schoolchildren who have been subjected to past acts of de jure

segregation.  Here the District Court, acting on substantial evidence in

the record, did not abuse its discretion in approving a remedial plan

going beyond pupil assignments and adopting specific programs that had

been proposed by local school authorities.



(a) "In fashioning and effectuating [desegregation] decrees, the courts

will be guided by equitable principles," Brown v. Board of Education,

349 U.S. 294, 300, and, in applying such principles, federal courts are

to focus on the nature and scope of the violation, the fact that the

decree must be remedial, and the interests of state and local

authorities in managing their own affairs.



(b) Where, as here, a constitutional violation has been found, the

remedy does not "exceed" the violation if the remedy is tailored to cure

the "condition that offends the Constitution," Milliken I, supra at 738,

i.e., Detroit's de jure segregated school system.  Matters other than

pupil assignment must on occasion be addressed by federal courts to

eliminate the effects of prior segregation, United State v. Montgomery

[433 U.S. 268] County Board of Education, 395 U.S. 225, and federal

courts have, over the years, required inclusion of remedial programs in

desegregation plans, when the record warrants, to remedy the direct

consequences of dual school systems.



2. The requirement that the state defendants pay one-half the additional

costs attributable to the four educational components does not violate

the Eleventh Amendment, since the District Court was authorized to

provide prospective equitable relief, even though such relief requires

the expenditure of money by the State.  Edelman v. Jordan, 415 U.S. 651,

668.



3. The Tenth Amendment's reservation of nondelegated powers to the

States is not implicated by a federal court's judgment enforcing the

express prohibitions of unlawful state conduct enacted by the Fourteenth

Amendment, nor are principles of federalism abrogated by the decree.



540 F.2d 229, affirmed.



BURGER, C.J., delivered the opinion of the Court, in which BRENNAN,

STEWART, WHITE, MARSHALL, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined.

 MARSHALL, J., filed a concurring opinion, post,   POWELL, J., filed an

opinion concurring in the judgment, post,  [433 U.S. 269] BURGER, J.,

lead opinion



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 jure

segregation 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. [433 U.S. 270] A



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 inter-district

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 nine-member

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

metropolitan-wide 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 Swann standard "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 inter-district

violation [433 U.S. 271] calling for an inter-district 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. 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.  In contrast to

respondent Bradley's [433 U.S. 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.



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 -- in-service training for teachers and

administrators, guidance and counseling programs, and revised testing

procedures.  Pursuant to the District Court's direction, the State Board

of Education, on April 21, 1975, [433 U.S. 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. 38-39.



After receiving the State Board's critique, 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.  Based on this [433 U.S. 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 [433 U.S. 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 he 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 in-service teacher [433 U.S. 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} [433 U.S. 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 [433 U.S. 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 [433 U.S. 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 [433 U.S. 280]

effectuating the [desegregation] decrees, the courts will be guided by

equitable principles."  Brown v. Bard 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. Charlotte-Mecklenburg 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 [433 U.S. 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 29.  (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 [433 U.S. 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, (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 "`condition

that 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 States v. 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 [433 U.S. 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  

(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

[433 U.S. 284] District 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); Lee v. 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. [433 U.S. 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 [433

U.S. 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 a necessarily approving

holdings not reviewed by this Court.  However, they demonstrate that the

District Court in the case now [433 U.S. 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 [433 U.S. 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 [433 U.S. 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   (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 future with 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 [433 U.S. 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} [433 U.S. 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. MARSHALL, J., concurring



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 [433 U.S. 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. POWELL, J., concurring



MR JUSTICE POWELL, concurring in the judgment.



The Court's opinion addresses this case as if it were conventional

desegregation litigation.  The wide-ranging 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,   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 [433 U.S. 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.



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 [433 U.S. 294] included in the

desegregation decree:  remedial reading, in-service training of

teachers, testing, and counseling.  The State, understandably anxious to

preserve the state budget from federal court control or interference,

now contests the decree on two grounds. [433 U.S. 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  Hills v. Glautreaux, 425 U.S. 284,

(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 system-wide 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 [433 U.S. 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 [433 U.S.

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. [433 U.S. 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,   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.  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.

Footnotes BURGER, J., lead opinion (Footnotes)



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 intra-district 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, 221-241 (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 metropolitan-wide 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 metropolitan-wide 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 co-curricular 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 counseling appeared to

deserve special emphasis in a desegregation effort.



We support the notion of a guidance and counseling 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 inter-district 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. POWELL, J., concurring

(Footnotes)



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 "co-curricular 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

would only mean a concomitant elimination of existing programs.



It is virtually impossible for the Detroit Board of Education to reorder

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 ongoing 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, 25251 (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

