By John Minnis
Legal News
Like the Stanley Cup, the state bar’s 36th Michigan Legal Milestone plaque recognizing the landmark Milliken v. Bradley case will make some stops before being installed in its permanent home in the federal courthouse in Detroit.
Unveiled at a Friday, Sept. 16, luncheon at the Hyatt Regency Dearborn, the 36th Michigan Legal Milestone plaque will again be displayed at a joint luncheon of the Federal Bar Associations’s Eastern District of Michigan Chapter and the Historical Society of the U.S. District Court for the Eastern District of Michigan on Nov. 17 at the historic Westin Book Cadillac Hotel. Joyce Baugh, author of “The Detroit School Busing Case: Milliken v. Bradley and the Controversy over Desegregation,” will discuss her widely acclaimed book about one of the most famous and controversial cases to have originated in the Eastern District of Michigan.
Baugh was also one of seven speakers at the Legal Milestone unveiling in Dearborn who was not only very knowledgeable about Milliken but were in many cases actually involved in the case.
After the Federal Bar and Historical Society luncheon, the plaque will likely be placed on an easel in the federal district court’s history room on the first floor, according to David Weaver, court administrator. A permanent location for the plaque has yet to be determined, he said.
Milliken v. Bradley was filed by the NAACP in 1970 in U.S. District Court in Detroit on behalf of Richard and Ronald Bradley. The civil rights suit followed passage of a bill by the Michigan Legislature that would have decentralized the Detroit Public Schools. The suit alleged public officials had intentionally segregated the Detroit schools.
Federal District Judge Stephen Roth agreed and had Detroit and state educators come up with plans to integrate Detroit schools. He found that a Detroit-only plan would not integrate the schools and favored a busing plan involving 53 suburban school districts in the tri-county area. While Roth’s ruling caused a firestorm of protest among the growing number of suburbanites — Detroit schools had already lost 51,000 white students by the mid-1970s — the U.S. Court of Appeals for the Sixth Circuit upheld the district court judge’s ruling.
The U.S. Supreme Court heard the case in 1974 and in a controversial 5-4 ruling that greatly limited Brown v. Board of Education of 20 years prior, held that federal courts “may not impose a multi-district, area-wide remedy for single-district de jure school segregation violations where there is no finding that the other included school districts have failed to operate unitary school systems or have committed acts that effected segregation within the other districts...”
In his dissent, Associate Justice Byron White accused the majority on the Burger Court of preferring convenience (district boundaries) over constitutional rights.
“What many of us weren’t taught,” said author Waugh, who led the panel of speakers at the 36th Legal Milestone unveiling, “was that racial segregation in education was not limited to the South.”
Rigid residential segregation maintained educational segregation, she said. “That was precisely the case in the Detroit metropolitan area.” Prior to the 1930s, Waugh said, Detroit schools were integrated, but by the mid-1930s, they were becoming increasingly segregated.
After the post-war boom, a long period of white flight began out of Detroit, taking adequate jobs and resources to the suburbs. Then followed the 1967 racial uprisings. “It is in this context that Milliken arises,” Waugh said.
Following Waugh, Janet Welch, executive director of the State Bar of Michigan, who co-moderated the luncheon with immediate past president W. Anthony Jenkins, introduced the next speaker, Professor Emeritus John E. Mogk of Wayne State Law School. Mogk was appointed to the Detroit Board of Education by Gov. Milliken to replace one of four recalled pro-integration members.
Mogk give a chronology of the build up to Milliken v. Bradley, which he described as “winning the battle but losing the war.”
Professor Daniel R. Ray of the Thomas M. Cooley Law School, spoke of the “judicial courage” evident in not only Milliken but also in Brown. He described judicial courage as “the ability to do right, to do justice, despite public objection.”
“Courage brings risk,” he said, “risk of criticism, embarrassment and even physical harm.”
In Brown, Ray said, “the Court ruled that separate but equal can never be equal, even though the court knew there would be widespread derision. In 1954, the Supreme Court literally put its credibility and its very existence on the line.”
Ray asked, “What if Milliken had been decided differently?”
“Think about the virtue of judicial courage,” he said. “Celebrate it and defend it.”
William M. Saxton, counsel, director emeritus and former chairman and CEO at Butzel Long, was one of the petitioners in Milliken to the U.S. Supreme Court.
“Brown said schools and classrooms cannot be segregated but said nothing about being racially balanced,” he said, referring to District Judge Roth’s attempt in Milliken to have Detroit schools reflect the racial makeup of the tri-county area.
“Judge Roth’s ruling concerned Detroit schools only,” Saxton said. “Suburbs didn’t get involved until the remedial measures. That’s when I came in. I’ve never been a critic of Judge Roth, because I felt he was right. But he had his wrongs.”
He commended former Sixth Circuit U.S. Court of Appeals Judge Nathaniel Jones, who argued Milliken v. Bradley as general counsel for the NAACP. (Jones was one of the scheduled speakers but could not attend.)
“In the O.J. Simpson trial,” Saxton said, “you had the Dream Team. Judge Jones put together a Dream Team. That truly was a Dream Team. That was a great case.”
As attorney general at the time, Frank J. Kelley was a named co-defendant in the case and also argued before the U.S. Supreme Court. Nearly three decades later, he still carries the scars of Milliken.
“This has nothing to do with the racial acts of any state public official,” he said. “This case named me as a defendant, as was Gov. Milliken. There was no one more pro civil rights than Bill Milliken, as am I. I didn’t know anyone in Lansing who wanted to hurt civil rights.”
In fact, Kelley said it was his being linked with th case that cost him his bid for the U.S. Senate in 1972. “I was cursed by both sides,” her recalled.
In Milliken, Kelley argued that the scope of the remedy of the constitutional wrong should never exceed the wrong.
“This case was doomed for failure because of its scope,” he said. “This case was wrong. I don’t want latter-day historians painting with a broad brush.”
Thomas M. Costello Jr., president and CEO of the Michigan Roundtable for Diversity and Inclusion, said that “for many of us privileged folks,” safe neighborhoods and good schools are questions we never have to ask.
“While we in the North were watching hoses and dogs used on blacks in the South, we in the North were doing it with laws,” he said.
“Where you live determines the quality of education you are going to have. Gov. (Rick) Snyder wants Michigan schools open to everyone. People opposed to that are doing back flips to avoid stating the real reason. Since the early ‘70s, they don’t want black children in their schools.”
Before introducing George T. Roumel, former president of the State Bar and “godfather of the Legal Milestone program, Welch noted what a privilege it was to have such a panel to discuss the 36th Legal Milestone, Milliken v. Bradley. Roumel argued the Milliken case on behalf of the Detroit school board.
“I’ve always said to Bill (Saxton) that school districts are creations of the state,” he said. “I still think the Supreme Court was dead wrong.”
Roumel explained that he did not have a chance to argue before the high court because he entered the building through a wrong door and found himself in chambers, where he heard Chief Justice Burger state that desegregation had been set back decades.
“I really think Judge Roth did a great job,” he said, “and I wish the State Bar would defend him. When it comes to the Supreme Court, it really matters whose ox is being gored.”
He quoted a New York Times article following Milliken, stating, “To whites and blacks, the Court says the only rights are those that the white majority decides to grant.”
“The Supreme Court gave the children a raw deal,” he said. “Both black and white lost an opportunity to learn together.”
Roumel noted that the first and 36th Legal Milestones were devoted to cases involving civil rights in Detroit. The inaugural Legal Milestone dedicated the 1925-26 trial of Ossian Sweet, a black Detroit doctor who was charged with killing a member of a white mob attacking his home. Defended by Clarence Darrow, Sweet was acquitted when Presiding Judge Frank Murphy instructed the jury that “a man’s home is his castle” and Dr. Sweet had a right to defend it.
“We must all learn to live together,” Roumel concluded.
Jenkins acknowledged the Legal Milestones program as of the most successful of the State Bar of Michigan. Legal Milestones not only educate the public but also build lasting relationships with communities out of which the cases arise.
“The Legal Milestone program recognizes significant cases in our history,” he said, “and utilizes bronze plaques place around the state. The subject matter is as varied as the state itself.”
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