In delivering his blistering dissent of the US Supreme Court’s majority ruling in Milliken v. Bradley (1974), Justice Thurgood Marshall lamented that “after 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards… . I cannot,” he continued, “subscribe to this emasculation of our constitutional guarantee of equal protection of the laws… . Our nation, I fear, will be ill-served by the Court’s refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together.” Justice Marshall’s rebuke of the court’s abdication of responsibility distilled the social and political ramifications of effectively re-sanctioning the principle of separate and unequal education—the same principle he successfully overturned as the lead lawyer for the NAACP’s Legal Defense Fund in Brown v. Board of Education (1954). In many ways, Milliken became a bookend to the educational and democratic promises opened by Brown.Footnote 1
The national impact and importance of Milliken cannot be understated. Educational researchers have well documented how the decision halted desegregation at suburban school district lines and inaugurated a new era of education reform. However, their focus on the procedural history of the case and its national impact has diminished our understanding of the local and state educational policy throughlines connecting policies implemented before and after the decision with the decision itself. Scholars who have interrogated the intricacies of the local and state dynamics in the Milliken case have understated the decision’s impact in the decades that followed. Joyce A. Baugh’s The Detroit School Busing Case deeply examines the local and state dynamics that eventually pushed the case onto the Supreme Court’s docket and shaped the court’s pursuit of compensatory reforms.Footnote 2 However, it does not examine how the decision became interpreted and negotiated in the decades following it. Similarly, Jeffrey Mirel’s and Leanne Kang’s intensive studies of Detroit recognize the importance of Milliken within the city, but they underrate the historical throughlines of the state-city dynamic in education politics and policy, specifically how the state legislature, led by its suburban bloc, isolated Detroit for punitive reform after the decision.Footnote 3 Michelle Adams’s recent book draws crucial attention to how the NAACP’s legal team flooded Judge Roth with evidence of state violations and draws parallels between Milliken and the Gary B. v. Snyder (2016) case, in which Detroit students sued the state for depriving their right to literacy, but leaves open the decades of educational policy that bridge those two cases.Footnote 4 This article builds upon these works by situating Milliken within a broader history of segregative and unequal state educational policy to illustrate how the decision produced a legal and political context in which state policymakers—the majority of whom came from suburban and rural communities—could uphold segregation and inequality for their predominately White constituencies without consequence while increasing state intervention into Detroit.
My emphasis on state educational policy resurfaces the specifics of US District Court judge Stephen Roth’s holding that led him to order a metropolitan desegregation, and it provides a different lens for analyzing Milliken’s aftermath. For many scholars, Milliken is primarily a history of housing segregation, and for good reason. Federal policies from the New Deal onwards spurred suburban development and metropolitan segregation, as the decentralized structure of housing and urban renewal policies empowered local actors to shape municipal and metropolitan development, including neighborhood and school district boundaries, in the postwar era.Footnote 5 The myriad public and private actors who made concrete the racialization of space in postwar metropolitan growth amplified the power of suburban actors who leveraged exclusionary and discriminatory housing markets to increase their property values, and thus, in states where property values make up the largest portion of school funds, indirectly boost the resources of suburban schools.Footnote 6
Judge Roth recognized these developments, but his court order for metropolitan desegregation was predicated upon his finding of state liability. That holding was two-fold. First, the Michigan Constitution vested “plenary power” over education in the state, and thus individual districts were extensions of that power, not discrete governmental entities. For this reason, the actions of individual school districts were the actions of state government. Second, the state, through its board of education and legislature, took deliberative segregative actions—namely, those taken in the formation of district boundary lines, development and administration of school funding formulas, consolidation of school districts, selection and construction of school sites, and unequal transportation systems—that produced segregation in Detroit. The judge’s conclusion that the state violated the constitutional rights of Black students in Detroit provided the legal authority and responsibility to expand the scope of the remedy beyond the city itself. This article resurfaces those arguments to better appreciate the legal reasoning of state liability put forth by Judge Roth and to recognize the state’s role in producing segregation and inequality before and after the Supreme Court’s ruling.
This article also examines how the court majority’s rationale for overturning the decision sidestepped Roth’s analysis of state power and action by putting forth an ahistorical, fictional adherence to local control. In overturning Roth’s metropolitan desegregation plan, the court’s majority recognized that “state agencies did participate in the maintenance of the Detroit system,” but it argued that local school districts were discrete governmental entities, discarding the Michigan Constitution and decades of legal precedence that affirmed the state’s plenary power. The court’s majority claimed that “no single tradition in public education is more deeply rooted than local control over the operation of schools,” a rationale that Justice Marshall condemned for disappearing state liability behind a romantic fiction of local control because, despite “a record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit,” the majority’s holding meant “that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion.”Footnote 7 In the decades following the ruling, the court’s finding proved to preserve the sanctity of local control while isolating segregated Black school districts, namely Detroit, for targeted exercise of state plenary power. That state intervention, as Marshall argued, was protected from any meaningful remedy.
Centering the legal debate on state plenary power and its application expands our understanding of the political impact of the Milliken decision, including the educational policies implemented in Detroit and Michigan in its wake. Derek Black has persuasively argued that Milliken, alongside the Supreme Court’s ruling in San Antonio v. Rodriguez, produced an ahistorical legal adherence to local control that effectively operates as “a pretext for ignoring inequality rather than a legitimate constitutional justification for it.”Footnote 8 Extending that argument further, I contend the court’s Milliken ruling freed the state to exercise unprecedented state intervention into one segregated district—the largest school district and the one with the highest number of Black students—while venerating local control to consecrate segregation and inequality. Indeed, one of the cruelest ironies of the Milliken decision is that it overturned Judge Roth’s metropolitan desegregation plan on a historically inaccurate but politically powerful obeisance to local control that the state of Michigan would cast aside in the following decades as it usurped local governance in Detroit. The state amplified its plenary power in the decades following Milliken and controlled Detroit Public Schools through changes in the state funding formula as well as its implementation of state-mitigated mayoral control, school choice programs, emergency financial management, and the Education Achievement Authority.Footnote 9 The sanctity of local control, it proved, had limits, but the state’s authority, if directed at a certain district, could be limitless.
The irony at the heart of the Milliken decision persists today. Provisions for just, equitable, and democratic schooling are ultimately adjudicated, authorized, or ignored at the state level. Segregation primarily exists between school districts, rather than within them, and the most significant resource inequalities are across school districts.Footnote 10 Because state constitutions place the responsibility of providing free public education on states, it is state policy, action, and inaction that ultimately concentrate advantage and disadvantage across district lines.Footnote 11 Recentering the state draws heightened attention to state liability for upholding segregation and inequality while expanding remedial possibilities. It also demands a political and civic reckoning with state interests that elevate opportunities for some young people and deny them to others.
This article traces the historical continuity and changes regarding the state’s use of plenary power in and beyond Detroit. It begins by analyzing the first prong of Judge Roth’s argument about the state’s plenary power that positions local districts as subordinated extensions of the state. The next section examines the second prong, which focused on specific instances of state (in)action in Detroit and other school districts to produce segregation and inequality. The third section recounts the overturning of Roth’s analysis by the Supreme Court, and the final section examines subsequent decades of state educational policy targeted at Detroit following the Milliken decision, highlighting how the court’s articulation of Michigan’s educational system legitimized such action. In so doing, it illustrates the cruelty and scale of Milliken’s irony while providing a different historical basis and frame for remedying past discrimination and addressing present inequality.
The Establishment of Michigan Schools and State Plenary Power
Judge Roth’s holding that the state was responsible for segregation in Detroit was, in part, predicated upon the educational power vested in the state. The Michigan Constitution endowed educational plenary power in the state, making all school districts instrumentalities of the state, not discrete governmental entities. Because Michigan organized its school system in this way, Judge Roth held that any segregative action taken by a school district was a manifestation of state power. By this logic, the Detroit board’s gerrymandering of school district lines and attendance zones and its discriminatory enrollment practices were state violations. The validity of that finding was affirmed by the state’s educational history, the Michigan Supreme Court, and the Sixth Circuit Appeals Court.
The adoption of the 1835 state constitution in Michigan (preceding its formal admittance to the union by two years) determined that the state would be responsible for establishing “a system of common schools, by which a school shall be kept up and supported in each school district at least three months in every year.” Isaac Crary, who oversaw Michigan’s constitutional convention, ensured that the educational funds acquired from public land sales accumulated in one state primary school fund (rather than within individual towns), so they could be distributed throughout the state at a proportional rate to the population of five- to seventeen-year-olds in each locality. Because this was a state system of education, a local district that neglected to provide public schooling for at least three months every year faced the possibility of being “deprived of its equal proportion of the interest of the public [state] fund.”Footnote 12 Michigan’s general education fund would be hampered by dubious land sale practices, nonpayment, and the state’s decision to use the fund for internal developments. To make up for the resultant deficit, Michigan’s 1850 constitutional convention led to the passage of a new general education tax.Footnote 13 Over time, the percentage of educational funds provided by the state decreased. Michigan’s primary school fund supplied 29 percent of educational expenditures statewide in 1839, and roughly 6 percent by 1880. The state began imposing minimal school, mill, and rate-bill taxes on localities to make up for this shortfall while retaining oversight of local districts. As localities sought to build new schools, they needed to secure state approval to sell bonds to provide the necessary revenue. In 1880, the primary school fund totaled $2,554,590.96, while localities raised roughly $2.4 million per year in taxes and paid more than $300,000 per year on bonded debts.Footnote 14 The increase of educational expenditures at the local level did not mean the state relinquished its power. Through mandates and policies (e.g., localities had to establish millage minimums to receive state funding), the state continued to exercise its plenary power.Footnote 15
The plaintiffs in Milliken submitted evidence to the exercise of this power in practice. For instance, following a Michigan Supreme Court ruling that there was no minimum length of day required under the state’s 180-day attendance rule, the Michigan State Board of Education, without action from the legislature, established a new administrative rule requiring a minimum number of hours per school year to be eligible for state aid. The plaintiffs further illustrated this power by documenting how various state rules and regulations governed education in local districts. By state law, all districts were required to employ certified teachers; teach civics, health, physical education, and driver’s education; provide excused absences for students to attend religious instruction classes; supply annual financial and other reports to the superintendent of public instruction; and adopt textbooks approved by the state.Footnote 16
Judge Roth drew upon the Michigan Constitution and these practices to demonstrate the scope of state plenary power, and he documented the Michigan Supreme Court’s repeated holding that local districts were subordinated extensions of the state.Footnote 17 In 1916, it ruled that “education belongs to the State. It is no part of the local self-government inherent in the township or municipality except so far as the legislature may choose to make it such” (MacQueen v. City Commission of City of Port Huron), and, a year later, it reaffirmed that “education in this State is not a matter of local concern, but belongs to the State at large” (Collins v. Detroit, 1917). It maintained this holding in 1922 (Child Welfare Society of Flint v. Kennedy School Dist.), 1947 (Board of Education of the City of Detroit v. Superintendent of Public Instruction), and 1951 (Rehberg v. Board of Education of Melvindale, Ecorse Township School District No. 11, Wayne County). In 1962, it held that “education is not inherently a part of the local self-government of a municipality except insofar as the legislature may choose to make it such,” noting that “the policy of the State has been to retain control of its school system, to be administered throughout the State under State laws by local State agencies organized with plenary powers to carry out the delegated functions given it by the legislature.”Footnote 18 Michigan adopted a new state constitution in 1963 that affirmed, “Leadership and general supervision over all public education … is vested in a state board of education.” Despite the growing reliance upon localities for school funds, the state board of education remained the primary adviser to “the legislature as to the financial requirements in connection therewith.”Footnote 19
Both the state constitution and the Michigan Supreme Court attested to the plenary power of the state, which made local districts subordinated extensions of state power. On the basis of that reasoning, Judge Roth held that the segregative actions (and inactions) of the Detroit Board of Education—its segregative zoning and assignment practices, modification of attendance zones, and changes in school feeder patterns—were manifestations of state power. The Sixth Circuit Court of Appeals affirmed the judge’s finding, citing the same provisions of the state’s constitution and its supreme court, writing that “it is well established under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative convenience.”Footnote 20 Legally speaking, these holdings meant that actions taken to produce segregation in Detroit were the product of state policies and practices, thus expanding the possible scope of the remedy.
Plenary Power in Action: District Reorganization, School Funding, Local Taxation, Bonding Rules, Debt Allowance, and Unequal Transportation Systems
The second part of Judge Roth’s finding on state liability was that actions taken by the Michigan State Board of Education and the state legislature had produced segregation and inequality in and around Detroit. Judge Roth cited the state’s role in school site selection and construction; its administration of inequitable funding systems; and its authorization of a segregative transportation program. He also noted that the authority and past practices of the state in creating, reorganizing, and dissolving school district lines had shaped segregation in Detroit and its surrounding districts. For Roth, the state’s power over district boundaries demonstrated a concrete remedy for the violation of Detroit’s Black students’ constitutional rights. This section examines these various arguments and situates them within their broader context by illustrating how imbalances in state power made Detroit vulnerable to state policy and (in)action, as well as how it energized suburban development through funding schemes that disempowered urban areas in favor of suburban and rural ones.Footnote 21 Judge Roth’s analysis led him to conclude that state action had cross-district segregative effects, enabling the scope of his proposed remedy to extend beyond Detroit’s boundaries.
Michigan’s use of its plenary authority profoundly shaped the metropolitan landscape of the 1970s, and the direction of that power followed the power imbalance that favored the state’s legislature. Throughout the 1950s and 1960s, the state used its plenary power to change the geography of school districts and increase the resources available to rural and suburban districts. Suburban ascendancy would come after decades of rural domination.
Despite the concentration of nearly 30 percent of the state’s population in Detroit and 50 percent in the metropolitan area by midcentury, rural interests dominated Michigan’s legislature. Nearly half the seats in both the state House and Senate were from rural districts. In contrast, only 22 percent of representatives and 13 percent of senators came from the City of Detroit.Footnote 22 This imbalance in representation enabled the operation of thousands of small rural districts, with the legislature increasing state expenditures in those areas while diverting them from Detroit. The disparity in allocations was exposed in 1953 when rural districts were caught inflating enrollment numbers to increase state appropriations. The state then began mandating the consolidation of rural districts, and, between 1950 and 1965, the number of districts decreased from 4,841 to 993, and, following the passage of Public Act 289 (1964), which required all school districts to serve grades K-12, that number declined to 624 by 1974.Footnote 23 The state aid received by Detroit schools remained comparatively less than other districts, even after the state’s reorganization of school districts. A report published in 1958 found that the state paid an average of 54 percent of the educational costs of Michigan’s school districts (in some instances, as much as 85 percent), but it paid only 41 percent of those costs in Detroit.Footnote 24
The state’s requirement and oversight of district consolidation in these instances led Judge Roth to conclude that “school district lines are simply matters of political convenience and may not be used to deny constitutional rights.” The plaintiffs supplied evidence that the state legislature—through passage of a law requiring district consolidation—and the state board of education—which had ordered and negotiated mergers across multiple districts—had used this power to change school district lines and, in some instances, to equalize funding across previously separate districts.Footnote 25
Judge Roth also noted the state’s plenary power in the establishment and administration of Michigan’s school funding formula, as well as its role in setting the terms of district bonding and debt accrual.Footnote 26 Rural districts had long benefited at the expense of Detroit, but suburban advantage increased during the 1950s and 1960s as Detroit’s burgeoning suburbs became the primary power bloc within the state legislature. The rural hold over state government was broken by the Supreme Court’s ruling in Baker v. Carr (1962), which held that district lines needed to uphold the principle of “one man, one vote.”Footnote 27 The bi-partisan commission to redistrict seats used a combination of population and land size to determine districts—a calculation that was ruled unconstitutional by the Supreme Court in 1964 but remained in effect in Michigan until 1982.Footnote 28 After the new redistricting in 1963, Detroit lost 20 percent of its seats in the House and 22 percent of those in the Senate, and the city’s surrounding, segregated suburbs increased in their representation.Footnote 29
Meanwhile, suburban development was accelerating through federal housing programs, and population growth associated with the postwar “baby boom” required dramatic and quick school development, for which suburbs relied on state aid. At this time, many of Detroit’s suburbs had higher school millage rates, because their property values had not yet reached nor eclipsed those within the city.Footnote 30 The construction of new suburban schools relied upon the favorable terms of state-directed school construction programs, which, in turn, were connected to suburban homeowners’ interest in increasing the value of their property investment. The racial exclusivity of suburban life transformed the racialization of space in the metropolitan area into state educational policy that shifted resources from cities to segregated suburbs while producing an explicitly anti-urban political program.Footnote 31
While Judge Roth did not outline this legislative imbalance in his opinion, he cited the disparate outcomes as evidence of state violations. The state provided flexibility to rural and suburban districts for incurring debt and empowered local school boards to establish millage increases, but it denied that flexibility and local governing power to Detroit. In 1955, the state established new guidelines and requirements for local districts seeking bonds for school development. The state identified five classes of school districts according to size, in which the only Class 1 district (having more than 120,000 residents between the ages of five and twenty) was Detroit. To this day, Detroit remains in its own category.Footnote 32 Only Grand Rapids and Flint were categorized as Class 2 districts (30,001 to 120,000), and Class 3 districts (2,401 to 30,000)—the category applicable to nearly all suburban districts—were provided the most favorable terms for bonding and incurring debt. Class 3 school boards could borrow from the state up to 2 percent of the state’s equalization valuation without a referendum, and, by a simple majority vote, could borrow any amount. Notably, when population growth in Warren and Livonia (two Detroit suburbs) would have led to their recategorization as Class 2 schools, the state maintained their Class 3 distinction and the favorable borrowing terms afforded them. These districts were more responsive to the “baby boom” and could seek loans from the state with clear forecasting of interest rates and construction costs. School districts that took these loans in 1955 had lower interest rates and construction costs than those securing bonds in the 1960s.Footnote 33 These reduced costs energized suburban settlement, particularly of families with school-aged children. Suburban development shifted the racial and familial demographics of the metropolitan area, and, as Figures 1–4 below illustrate, the enormous growth of children under fifteen years old between 1950 and 1970 made affordable and efficient school construction a necessity for developing racially exclusive suburbs.
Map of total population less than fifteen years old in Detroit and the surrounding area by Census tract, 1950. (Based on data digitally transcribed from the Inter-university Consortium for Political and Social Research. Edited and verified by Michael Haines. Compiled, edited, and verified by Social Explorer. Accessed March 23, 2026).
Figure 1 Long description
The map displays the total population under 15 years old in the Detroit area by Census tract for the year 2000. It includes a detailed layout of Detroit, MI, outlined in green. Red dots represent areas with a population of less than 500 individuals under 15 years. The map covers various labeled locations such as Southfield, Warren, Dearborn and Westland. The distribution of red dots is denser within the outlined Detroit area, indicating higher concentrations of young populations. The legend clarifies the symbols used, with the green outline marking the Detroit, MI boundary.
Map of total population less than fifteen years old in Detroit and the surrounding area by Census tract, 1970. (Based on data from the US Census Bureau and Social Explorer. Accessed March 23, 2026).
Figure 2 Long description
The map shows the total population less than fifteen years old in Detroit and surrounding areas by Census tract for 1970. Each red dot represents a fixed number of children under 15. A green boundary outlines Detroit, MI. Labeled locations include Farmington Hills, Southfield, Livonia, Dearborn and Canton. The map is oriented with north at the top. Red dots are densely clustered in central Detroit, indicating higher concentrations of young populations, while suburban areas show sparser distributions. The legend specifies that each red dot represents a specific number of children, not areas under 500. This dot-density map highlights population distribution patterns, with notable clusters in central urban areas and fewer dots in outlying suburbs.
Map of total White and Black populations in Detroit and the surrounding area by Census tract, 1950. (Based on data from the US Census Bureau and Social Explorer. Accessed March 23, 2026).
Figure 3 Long description
The map displays the total White and Black populations in Detroit and surrounding areas by Census tract for 1950. It uses dots to represent population density, with each dot equating to 500 individuals. White population is marked with one color, while Black population is marked with another. The map highlights areas such as Detroit, Farmington Hills, Southfield and Wayne. A boundary outlines the main area of interest, with a legend indicating the color coding for White and Black populations. The distribution shows a concentration of Black population in certain tracts within the outlined area, while White population is more dispersed across the region.
Map of total white and Black populations by Census tract, 1970. Social Explorer (based on data from the US Census Bureau and Social Explorer; accessed March 23, 2026).
Figure 4 Long description
The map displays the total white and Black populations by Census tract in Detroit, MI, based on 2010 data. It uses dots to represent population density, with each dot equating to 500 individuals. White population is marked with green dots, while Black population is marked with orange dots. The map outlines the Detroit area with a bold green boundary. The distribution shows a higher concentration of Black population in the central and southern parts of Detroit, while the white population is more dispersed throughout the surrounding areas. Key locations such as Bristol, MI, are labeled. The legend clarifies the color coding and dot representation.
In contrast, it was not until 1965 that Detroit’s school board was able to borrow 2 percent of the state’s equalized valuation at its discretion.Footnote 34 Despite having the oldest facilities in Michigan, the state did not allow Detroit to incur debt for school building repairs—something the state allowed for all other districts—until 1973.Footnote 35 Unlike other districts in the state, Detroit’s school board could not increase school millages by the vote of a simple majority; rather, a majority vote from city homeowners was required. This policy was finally ruled unconstitutional in the mid-1960s, but its imposition significantly impaired school development, because it foregrounded White resistance to integration within Detroit that thwarted efforts to approve school bonding and millages. In many instances it led to delayed construction and further entrenched segregation within the schools that were built.Footnote 36 Moreover, the state government had funded teacher pension programs in every district in Michigan for decades with the exception of Detroit Public Schools. It would not begin covering those costs in DPS until 1968.Footnote 37
Suburban racial politics amplified Detroit’s disadvantage in the 1960s, as the city’s school population became majority Black. In addition to state-imposed barriers on selling bonds and incurring debt, the state continued disproportionately to underfund Detroit’s schools while withholding other forms of state educational aid to the city. In 1964, Detroit received $189 per pupil from the state while suburban districts averaged $240 per pupil.Footnote 38 In the 1967-1968 school year, 14.23 percent of all Michigan students were taught in DPS, but only 11.37 percent of the state’s aid went to Detroit.Footnote 39 When the state began reimbursing school districts for transportation costs in the 1960s, it did not provide those benefits to DPS. The state began reimbursing those costs in 1974, but at a significantly lower rate. The state, meanwhile, also authorized and funded the interdistrict movement of Black high school students out of the largely White Ferndale school district to segregated Black schools in Detroit.Footnote 40 To the frustration of many Detroiters, the state never provided any kind of back payments for its chronic disproportionate funding.Footnote 41
The strength of Detroit’s economy had enabled the district to partially offset this chronic underfunding, but its impact became amplified as the city’s economic situation deteriorated. Between 1969 and 1973, the total number of jobs in Detroit dropped by 19 percent. In 1958, Detroit recorded about $524 million in retail sales compared with $273 million in the suburbs, but, by 1977, suburban retail sales ($2.2 billion) were more than nine times than those in the city ($241 million). Property values in the city had remained static in the 1960s but declined across the 1970s while suburban property values soared. Suburban growth was, of course, dependent upon the favorable terms for school construction and improvement and was significantly aided by the state’s funding system. In 1968 Detroit’s Board of Education, recognizing the impending financial crisis, unsuccessfully sued the state for its decades of underfunding.Footnote 42
The scope of these state violations, combined with evidence of the evolving demographics of the broader metropolitan area, compelled Judge Roth to issue a metropolitan desegregation plan.Footnote 43 In his ruling on segregation, Judge Roth held the state responsible both for the Detroit Board of Education’s segregative actions and its own, specifically its role in school site selection and building, the state’s unequal funding system, inequalities within the transportation funding system, and the busing of Black students out of Ferndale into Detroit. He also argued that the state’s plenary power was even more expansive with respect to producing segregation and inequality, since the state chose when to excise its power to “use a statutory scheme, to create, alter, reorganize or even dissolve a school district” and when to not, and its employment of “other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities.”Footnote 44
Notably, as the Milliken case worked its way through the legal system, the Michigan Supreme Court reached similar conclusions about the options available to the state in redressing inequality. In 1972, the Michigan Supreme Court recognized the state’s plenary power and how it could be used to redress the inequalities between districts with highest property tax ability and those with the lowest, and it implored the legislature to remedy this inequality by reorganizing school district lines and changing the existing school funding formula. The court held that Michigan’s funding formula violated the Fourteenth Amendment’s Equal Protection Clause. It declared education “a fundamental interest of the people,” and it ruled that “local control” of schools was not a compelling state interest since the unequal school funding system failed to pass the test of rationality. The court saw “no logical connection between the asserted justification of ‘local control’ and the amount of school funds the state distributes or permits to be expended in a school district based solely on the fortuitous circumstance that the district has more or less valuable properties per pupil within its borders.” The court’s opinion criticized the state formula, writing that “the seemingly plausible argument of local control to permit school districts to opt for the greener pastures of education” was “a hoax” because poorer school districts could not “follow the richer school districts into the green pastures.” Yet, because the federal question had not yet been adjudicated and because the Michigan Supreme Court determined there was “no fair or effective way of testing and enforcing” its decision since the funding formula had been changed during the court’s deliberations, the court did not order changes or new forms of oversight. Instead, it encouraged the state legislators to find solutions themselves, noting, “Greater equality is clearly potentially available on the one hand through perfecting the deductible millage formula and on the other hand through the reformation of the taxing and expenditure boundaries of school districts.”Footnote 45
Although the court would vacate its opinion in 1973 following the San Antonio v. Rodriguez decision, its suggestion to alter district lines to equalize funding was in line with previous state practice, and, more recently, had been expressed as a possibility by General Motors. GM had pushed for metropolitan consolidation in Genesee County in the late 1950s and early 1960s as a way to grow Flint’s tax base and strengthen infrastructure in developing suburban communities where GM was building its new factories. Suburban communities in the midst of incorporating fought these efforts so tenaciously that despite the annexation of four suburban GM plants into Flint, those suburban school districts ensured that the tax revenue from those plants funded their schools, not the schools in Flint. Suburban legislators secured this arrangement by altering an original provision in the 1955 state aid act, which required all Class 2 schools to have district boundaries coterminous with municipal boundaries. This change preserved Flint schools’ Class 2 distinction while redirecting municipal property taxes from the new plants to suburban school districts. Without a state legislature willing to amend this exception, Flint’s suburban districts would never have been able to recapture the tax revenue from GM plants within Flint.Footnote 46 While Roth did not examine these developments in Genesee County in his opinion, the reorganization of school district funding lines corroborated his findings regarding state funding in and around Detroit, and it illustrated his larger point that the state’s plenary power enabled the manipulation of school district boundaries and inequality across them.Footnote 47
Judge Roth’s finding of state violations led him to name the State of Michigan as the primary defendant in Milliken and thus responsible for developing a desegregation plan. When its efforts proved inadequate, he developed a metropolitan desegregation plan as an appropriate remedy given the scope of the violation at the state level and the changing demographics of Detroit’s schools. The City of Detroit and the State of Michigan appealed Roth’s finding but were initially stymied. The Sixth Circuit Court of Appeals affirmed Roth’s ruling. “The record contains substantial evidence to support the finding of the District Court that the segregation of the Detroit public schools, however rooted in private residential segregation, also was validated and augmented by the Detroit Board of Education and Michigan State Board action of pervasive influence through the system.” The court added that “even if the segregation practices were a bit more subtle than the compulsory segregation statues of Southern States, they were nonetheless effective.” It held that “the District Court was therefore authorized and required to take effective measures to desegregate the Detroit Public School System,” and that “the State … cannot escape its constitutional duty to desegregate the public schools of the City of Detroit by pleading local authority.”Footnote 48 Not only was Judge Roth “authorized” to issue a metropolitan desegregation plan, but “required” to, so that the remedy could match the scope of the constitutional violations. “In the instant case the only feasible desegregation plan involves the crossing of boundary lines between the Detroit School District and adjacent or nearby school districts,” the appeals court wrote, concluding that “the power to disregard such artificial barriers is all the more clear where, as here, the State has been guilty of discrimination which had the effect of creating and maintaining racial segregation along school district lines.”Footnote 49
Milliken v. Bradley: Revising State Plenary Power
The Supreme Court, however, overturned the proposed desegregation plan by disconnecting the state’s plenary power from its suburban districts, fashioning an understanding of Michigan’s educational system disconnected from its actual practice. In the court’s rendering, school districts were autonomous governmental entities, and the state’s (in)action in one district could not be analyzed or judged in comparison to its (in)action in other state districts. That argument departed from the volume of evidence and legal reasoning employed by Judge Roth and upheld by the appeals court. Moreover, it established a legal logic that simultaneously venerated local control while enabling discriminatory state action.
The decision to dismiss Roth’s reasoning of state plenary power was complicated. In many ways, state action proved the legal starting point for Milliken. The state legislature’s passage of Public Act 48—a school decentralization bill signed into law after the Detroit Board of Education passed its own desegregation plan—sparked the NAACP’s litigation and its inclusion of the state as defendants in the case. Pushed by Detroit’s Coleman Young in the legislature, the bill was an attempt to realize the ambitions of local demands for community control of school. The NAACP argued that the passage of the bill after the authorization of a school desegregation plan by the Detroit Board of Education was clear de jure segregation, because the state had intervened to stop desegregation in Detroit.Footnote 50 The court’s majority willingly affirmed this violation in its ruling.
However, whereas the court’s majority viewed Public Act 48 as an endpoint, it was a starting point for Judge Roth. Public Act 48, alongside the evidence presented in the case, expanded his analysis of the various ways state plenary power, enacted through the state legislature, the state board of education, and Detroit Board of Education (as subsidiaries of state authority), produced segregation in the city. Roth held that the state’s plenary power in education, combined with the requirement to provide equal protection inscribed in the Michigan and US Constitutions, meant that while “a state’s form of government may delegate the power of daily administration of public schools to officials with less than state-wide jurisdiction,” it “does not dispel the obligation of those who have broader control to use the authority they have consistently with the constitution.”Footnote 51 Using its existing plenary power, the state was required to remedy the segregation experienced by Detroit’s Black students.
The Supreme Court’s dissenting justices recognized Roth’s legal reasoning and its affirmation in the state’s historical record. Justice William O. Douglass noted the long history of state plenary power in his dissent, stating 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,” he summarized, “is a state project with very little completely local control.”Footnote 52 Citing Keyes v. School Dist. No. 1, Justice Marshall noted that the scope and severity of state violations authorized the district court judge to order a remedy that extended beyond Detroit’s boundaries, especially since the changing school population in the city made desegregation a statistical impossibility there. The court’s casting aside of a metropolitan desegregation plan, a frustrated Marshall pointed out, meant “that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion.”Footnote 53
Despite the historical evidence and the arguments of the dissenting justices, the 5-4 majority maintained that the state’s plenary power did not exist in practice because local districts were discrete governmental entities. The majority sought to prove this point by listing all the actions local boards took independent of the state, including determining the length of a school year, borrowing funds for school construction, levying taxes for school funding, and making rules and regulations for school operations. However, the powers listed by the majority were all subordinated to state policy. The restrictions the state imposed upon the Detroit Board of Education’s power to levy taxes and incur debt for facilities repairs highlighted this discrepancy as well as the previous evidence submitted that demonstrated how the minimum length of a school year was determined by the state legislature and its board of education.Footnote 54
The majority’s elision of these realities was necessary to substantiate the larger claim on which it justified its holding. The majority conceded that “state agencies did participate in the maintenance of the Detroit system,” but that “disparate treatment of white and Negro students occurred within the Detroit school system, and not elsewhere.”Footnote 55 As its rationale for arguing that segregative state action could not be the basis for a desegregation plan beyond the borders of Detroit, the court’s majority asserted that “no single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.”Footnote 56 The majority was willing to concede that state action may have contributed to segregation in Detroit, but those disparate actions did not enable a statewide (e.g., metropolitan remedy) because, in its opinion, those actions did not have interdistrict segregative effects, and suburban districts—discrete governmental entities—had not been shown to commit individual violations. Yet, as Roth had shown and the Sixth Circuit Court of Appeals affirmed, state action had created disparate treatment not only in Detroit but across Michigan districts.
In its subsequent ruling, commonly known as Milliken II (1977), the court more fully recognized the state’s responsibility for segregation in Detroit and held that federal courts could require state officials to fund compensatory programs in districts in which states took segregative action. The court’s rendering of Michigan’s educational system meant that school districts were discrete government entities that operated independent of the state, and thus state (in)action within one district was incomparable and disconnected from state (in)action in another district. By denying the breadth of the state’s plenary power, the court sanctioned state-produced inter-district segregation, holding that the state’s differential application of laws within and across districts could not be the basis for equal protection claims.
State Plenary Power After Milliken
The majority’s opinions in Milliken I and II created a legal understanding of educational governance contradictory to how it was defined in the Michigan Constitution, understood by the Michigan Supreme Court, and enacted by its legislature and state board of education. The state, increasingly dominated by suburban interests, could penalize, disproportionately fund, and subvert Detroit’s local control without consequence. Although this claim may seem too far-reaching, it’s worth considering what followed.
DPS teetered on fiscal insolvency after Milliken. By the late 1960s, White voters constituted the majority of the city’s electorate, while Black students constituted the majority of the school system. Fears of desegregation led White voters to refuse to approve millage increases, a sentiment that had become entrenched after Judge Roth’s ruling. As one resident put it, “If they have less money, they’ll have less money to buy buses.”Footnote 57 However, segregationist voters in Detroit were not the only barrier to increased funding. After the state finally authorized the Detroit Board of Education with the power to levy taxes without a popular vote, Governor William Milliken responded to the Michigan Supreme Court’s call to reform the state’s funding system by putting forth a constitutional amendment to equalize education funding across the state. The proposed amendment shifted the primary form of educational funding from revenue generated by property taxes to the state’s graduated income tax. White voters overwhelming voted down the measure, connecting their vote to their outrage over Judge Roth’s metropolitan desegregation plan and their fear that the amendment would further weaken the underlying rationale of local control that upheld segregation. The governor backed away in response to this resistance, leaving Detroit suspended in fiscal chaos. In 1973, the state legislature raised the minimum millage requirement to receive full state aid, an amount intentionally higher than what was levied in Detroit, thus decreasing the amount of state aid going to the city.Footnote 58
The suburban-led legislature went further in controlling the city’s finances when the district sought to borrow money to offset its operating deficit. It negotiated a package of loans and payback agreements that enabled the school board to impose a 2.25-mill tax to repay the loan and to levy a 1 percent sales tax. Upon a majority vote, the sales tax could convert to a 7-mill property tax. Voters converted the sales tax, and the added millages meant that the city now levied 25.4 mills to fund its schools in 1974, exceeding the requirement for full state aid. However, the state underfunded the district ($916 in per-pupil funding, rather than $975) on the logic that the 2.25 mills imposed to pay off the school operating budget debt to the state—a deficit, in part, produced by chronic state underfunding—did not count, and thus the district had only levied 23.15 mills.Footnote 59 These punitive calculations were exacerbated by the fact that Detroit’s total tax rate in 1975 was by the far the highest in the state and 55 percent higher than the state average, as city residents taxed themselves at an equivalent of 85 mills. Michigan’s school funding formula had mechanisms for remedying discrepancies between high tax rates and limited funding (“municipal overburden”), but the state only approved 28 percent of that possible funding in Detroit, costing the district roughly $61 million per year.Footnote 60 The debt-relief agreement also gave the state more control over the district’s budget, as it could enforce or eliminate specific policy and programmatic proposals if it believed those changes would avoid future deficits.Footnote 61 The state’s antagonism toward Detroit had been strengthened following the election of Coleman Young as the city’s first Black mayor in 1973, and the already hostile state legislature sought to punish the city’s new mayor and residents.Footnote 62 While local control may have been sacrosanct in suburban and rural districts, the state’s plenary power was an unrelenting force in Detroit.
As the number of White students in the city’s schools decreased, the city’s economy declined, and residents’ property values and incomes went down, Detroit residents were left responsible for an untenable situation in which local control was evaporating. From 1975 to 1989, the intradistrict desegregation plan ordered by the Supreme Court in the Milliken decision curtailed local autonomy through the oversight of the district court, even as White flight made desegregation statistically unfeasible. Declining property values, high rates of poverty, and low incomes made millage increases to meet the needs of Detroit students—46 percent of whom in 1990 lived below the poverty line—a herculean, if not impossible, task. Detroiters still tried, voting in favor of eight of nine millage proposals between 1977 and 1985.Footnote 63 Across the state, Michigan voters voted down four separate ballot measures to change how the state funded its schools between 1972 and 1992.Footnote 64 As the Michigan Supreme Court observed in 1972, Detroit could not tax itself into “greener pastures.”
These compounding political and fiscal problems were intensified by the Detroit Federation of Teachers’ demands for pay increases. Some scholars have criticized the union’s efforts to secure pay raises at this time, accusing it of putting personal interest over public interest.Footnote 65 While perhaps true, the city’s Board of Education conceded to these requests and voters approved millage increases to pay the debt incurred to fund them because Detroit’s teachers earned significantly less than those teaching in the suburbs. If the district had not increased pay for teachers, what would have happened? Still, while the district had closed out the 1986-1987 fiscal year with a $26 million deficit, it grew to nearly $160 million just two years later.Footnote 66 In 1990, the state legislature responded by passing the Local Government Fiscal Responsibility Act, which empowered the state to declare a financial emergency in any unit of local government if it did not eliminate an existing deficit within two years or if the debt exceeded 10 percent of the local government’s general fund.Footnote 67
The law was a sign of things to come. In 1993, Governor John Engler enacted his campaign promise of reducing property taxes and redefining education in the state. Because of its heavy reliance on local property taxes for school funding, Michigan had one of the highest property tax rates in the country. The state’s poorest districts faced the unsustainable squeeze of declining property values and high tax rates, but the political will to enact change only emerged after Kalkaska Public Schools—a White, rural district in the northern part of the state—closed its schools before the end of the academic year because it lacked the necessary operational funds.Footnote 68 This dramatic event was followed by an equally dramatic decision by the state legislature to fully eliminate property taxes as a funding source for the state’s schools without a plan for replacing the lost tax revenue, which enabled Governor Engler to compel the state to make a radical change in how it funded schools or risk not funding them at all. The governor presented Michigan voters with a choice to finance schools through an increase in the state income tax or the state sales tax. Voters chose an increased sales tax (Proposal A) as the vehicle for making the state the primary financier of education.Footnote 69
Under the terms of Proposal A, local districts could pass millage increases, but the state established caps on how much a locality could tax itself. Proposal A also established a new calculation for school funding in which dollars followed students. This, combined with the passage of a different law that year that authorized the establishment of publicly funded, privately operated schools of choice (charter schools), established new relationships between districts as well as limits upon government control.Footnote 70 Within the first decade of its passage, the largest beneficiaries of Proposal A proved to be rural districts, like Kalkaska, whose per-pupil funding increased dramatically with the new state minimum allowance, and suburban districts whose growing enrollments led to increased funds. Since the state’s new funding structure dramatically slowed school funding growth, enrollment trends proved particularly important. Districts like Detroit, losing large numbers of students, faced the steepest funding declines.Footnote 71
One year after Proposal A’s implementation, Governor Engler sought greater control of Detroit’s schools. He eventually succeeded in these efforts by leveraging an existing state takeover law in 1999. Under the academic and fiscal conditions stipulated for takeover in the original legislation, Detroit was in better shape than other districts. However, the suburban-led state legislature revised the legislation so that mayors of cities with districts of student populations exceeding a hundred thousand (i.e., Detroit) could work in conjunction with the state board of education to appoint a school board. Rhetorically, the plan was called “mayoral control,” but the ultimate power rested with the state. The mayor appointed six members to the new board of education, and the state board of education (operating on behalf of the governor) appointed the final member, who held ultimate veto power. The newly appointed board was freed from any form of constituent oversight and was authorized to select a new chief executive officer who would assume all the powers previously held by the board. As Detroit representative Ed Vaughn observed, “The only school district targeted is the biggest and the Blackest.”Footnote 72
Helen Moore, who had spent nearly her entire life fighting for educational justice in Detroit, filed a lawsuit in federal court against the state, claiming its takeover violated the Voting Rights Act of 1965 as well as the Fourteenth and Fifteenth Amendments. Moore argued that the takeover effectively disenfranchised 60 percent of all Black voters in the state since they could no longer elect their own school board, and that to tighten its grip on DPS, the state had ignored policies already in place to address schools struggling academically or financially. Meanwhile other districts, some in worse academic or financial standing, remained untouched. Moore criticized the bill’s discriminatory impact because it further compounded the inequalities following the state’s passage of Proposal A, which she argued had perpetuated disparities in funding while also seizing control of the city’s recently realized budgetary surplus and its $1.5 billion bond for capital improvements.Footnote 73 The same US district court from which Judge Roth ordered his metropolitan desegregation remedy dismissed Moore’s lawsuit, reflecting Milliken’s harshest irony. The state legislature had leveraged its plenary power to a new degree and targeted those changes at DPS. Its alteration of the state aid formula, punitive terms for debt relief, passage of an emergency financial management act, and implementation of a revised law for state-mitigated mayoral takeover all targeted Detroit. The very power that the Supreme Court’s majority in the Milliken decision had denied existed was limitless and without redress.
The state did not stop there. As students continued to leave the district, DPS hemorrhaged state funds. In 2000, DPS lost roughly 4,700 students and approximately $31.5 million in state aid. Two years later, school leaders estimated a $70 million deficit by year’s end and a rise to $135 million the following year. The loss of students between 2000 and 2005 meant that DPS would lose $226 million in state funding.Footnote 74 As Wayne State law professor Peter Hammer pointed out, the state effectively penalized districts that had been faced with historical disenfranchisement and state underfunding for losing students.Footnote 75 For city residents like Helen Moore, frustration mounted at the fact that the city’s debt burden had been, at least in part, the result of state policies and had happened under state intervention in the governance of the city’s schools. Moreover, the $1.5 billion in bond money for school construction available before the adoption of Proposal A had not led to any new construction in the city and had seemingly disappeared. Mayoral takeover and the subsequent appointment of a CEO transformed a $93 million surplus into a $200 million deficit. In the residents’ view, state intervention had not only usurped local governance but had increased the district’s debt while exacerbating inequality.Footnote 76
Given the chance at the ballot to overturn state-mitigated mayoral control, Detroiters did, and, in 2005, they elected school board members for the first time in six years. Four years later, in January 2009, Governor Jennifer Granholm called a state of emergency and appointed DPS’s first emergency financial manager. As with previous policies, the implementation of an emergency financial manager targeted Detroit. Robert Bobb, the appointed manager, had significant backing from local and national foundations (e.g., Skillman, Broad, and Gates Foundations) that favored market reforms and charter school expansion. The Broad Foundation even paid a portion of Bobb’s salary. Bobb hired four education management organizations to oversee and ostensibly turn around the seventeen worst-performing schools in the district. He resigned two years later, having reduced the deficit from $316 million to $284 million.Footnote 77
In the wake of Bobb’s resignation, the state sought to seize even greater control of the city’s educational system, expand choice, and break up the Detroit Federation of Teachers. Rick Snyder was elected governor in 2010, and he signed into law Public Act 4, which expanded the powers of the emergency manager (only operational in Detroit) to include all those previously held by the Board of Education, not just the power over district finances. The law also enabled emergency managers to break collective bargaining agreements, fire public officials, and privatize or sell public assets. Soon after, Governor Snyder, Susan Martin (president of Eastern Michigan University), and the new emergency manager, Roy Roberts, established the Educational Achievement Authority (EAA), a stand-alone statewide school district intended to reform the state’s lowest-performing schools (bottom 5 percent) in Michigan. Its charge enabled the EAA to transfer authority of ninety-eight schools from the Michigan Department of Education to itself, but it transferred only fifteen schools, all in DPS. The horrific learning conditions within the EAA have been well documented, as has the fact that under emergency management and as a result of the development—then dissolution—of the EAA, DPS’s deficit ballooned to $515 million in 2015.Footnote 78
Out of this state-created fiscal chaos emerged a $617 million bailout agreement between Detroit and the state that effectively retired DPS as a debt-bearing fiscal entity to be paid off, dissolved, and then replaced by the new Detroit Public Schools Community District (DPSCD), which would bring the city’s traditional public schools and charter schools under one governing body.Footnote 79 The bailout plan required Detroiters to levy new taxes to pay off the debt, much of it incurred under state governance. The harsh terms afforded by the state to Detroit have only been made clearer by contrasting this bailout plan with the state’s efforts to ease fiscal challenges in other districts by facilitating district consolidation and offering debt forgiveness.Footnote 80 Such a contrast is reminiscent of the differing state responses to school districts in the 1950s and 1960s.
Detroiters have sought to strengthen the city’s school system, levying a millage rate of 68.5, higher than almost every other district in the state, to pay for their schools. In theory, this brings the district’s per-pupil funding (supplemented by federal aid) into line with other districts. Yet because one third of the district’s budget is spent servicing these debts, the district has one of the lowest funding rates in Michigan.Footnote 81
The question of state responsibility in producing unequal educational conditions in Detroit came to the fore again in 2016, when Detroit students filed a lawsuit (Gary B. v. Snyder) against the state for denying their constitutional right to a basic education. In their complaint, students attested to the pervasive presence of mice, cockroaches, bedbugs, and other vermin in their classrooms; the unhealthy and unsafe conditions produced by rampant mold and crumbling ceilings and walls; the academic consequences of the state authorizing the hiring of non-certified teachers in Detroit; and the absence of textbooks, novels, and other basic materials for learning. They argued that the state was constitutionally responsible for remedying the illiteracy it created because of its governing failures, from state-mitigated mayoral control to emergency financial management, and because it was constitutionally obligated to provide education to all students. The state sought to have the case dismissed on procedural and merit grounds. On procedure, the state claimed that by the time of the lawsuit, local control had been restored and thus the state was not responsible. On the merits, it argued that there is no fundamental right to access to literacy and there was no race-based equal protection case since all students in Detroit, regardless of race, had to endure the conditions attested by plaintiffs. The district court ruled in favor of the plaintiffs on procedural grounds and the defendants on the merits, ultimately dismissing the case.Footnote 82
The defendants’ and the court’s logic, seemingly haunted by the specter of Milliken, meant that practically speaking, the state’s targeting of Black school districts for state intervention effectively nullified equal protection claims on the basis of race. That is, state action targeted at a segregated school district that produced inequality could not be compared to state (in)action in other districts. The logic of Milliken limited, if it did not nullify, the scope of relief available to Black students in Detroit.
The plaintiffs appealed the decision, reemphasizing that the suit was not just about the years of state governance in Detroit, but the state’s power to supervise and administer education as outlined in the Michigan Constitution. The state continued to argue that since local control had been returned to Detroit, it could not be held liable for the violations cited in Gary B. The appeals court criticized the state’s misunderstanding of its own power. The defendants, the court opined,
misconstrue[d] Plaintiffs’ central claim in this case, which is that the state—as the primary authority for public schools in Michigan—has failed to provide them with a basic minimum education… . The gravamen of Plaintiffs’ argument is that the state, by virtue of its supervisory authority over all public education in Michigan, has a responsibility to ensure that each school it oversees at least provides access to literacy.Footnote 83
The appeals court ruled the state was liable because of its power in organizing and operating the state’s school system, and it ruled that literacy was a fundamental right because “it is foundational to our system of self-governance… . Its ubiquitous presence and evolution through our history has led the American people universally to expect it. And education … is essential to nearly every interaction between a citizen and her government.”Footnote 84
The decision in Gary B. was groundbreaking, but short-lived. The state reached a $94 million dollar literacy supplement settlement to be used by the district no later than 2027, and, five days after the settlement was agreed to, the court of appeals voted to hear the case en banc, eventually vacating the previous opinion because of the settlement. Education advocates like Helen Moore viewed the increased literacy support as an encouraging step but hardly sufficient to repair decades of underfunding, usurpation of local control, and punitive debt relief.Footnote 85
There is an important connection to Milliken in the reasoning of the since-vacated Gary B. opinion. Although the appeals court ruled in favor of the plaintiffs on their right to literacy, it denied their equal protection claim because they did not allege “disparity in the state’s allocation of resources between their schools and others.” Nor did they “attack any specific decision or policy implemented by Defendants that treats their schools differently from others in the state,” or identify “a governmental action or policy that discriminates against them.”Footnote 86 The findings of Judge Roth and the history of state action following the Milliken ruling above demonstrate the state policies and actions that might be the basis of an equal protection claim. The segregation and inequality found within Detroit’s schools cannot be understood without state responsibility and cannot be remedied without an equivalent scale of state action.
However, the court’s ruling in Milliken would perhaps impede the finding of a violation and potential remedies given its reconstruction of the state’s educational system as a conglomeration of discrete districts governed independently of the state. The concentration of advantage and disadvantage across district lines relies upon the erasure of state power in establishing and administering the financial systems that fund schools, in producing and reorganizing district boundaries, and in the targeted use and nonuse of state governing authority within those boundaries.Footnote 87 It is fair to wonder how state action may have unfolded differently in the decades after Milliken if the Supreme Court had recognized the state’s plenary power and thus upheld its responsibility for redressing segregation in its statewide system while also recognizing that the logic of the court’s ruling effectively insulated the state from meaningful redress for violation of Detroit’s Black students’ constitutional rights. Indeed, such comparisons should compel reevaluation of how we understand the scope of state power in the provision of public education, as well as further interrogation of how the state might meaningfully address its past discrimination and present inequality.
Conclusion
The conditions endured by Detroit youth in Gary B. throw into stark relief the legal and political terrain established in the decades following the Supreme Court’s ruling in Milliken. A suburban-led state legislature targeted its plenary power—a power that the court’s majority denied existed—at the state’s “largest and Blackest” school district. Those actions not only comparatively disadvantaged Detroit youth but also failed to provide a constitutionally required basic-level education. Local control was venerated to preserve advantages in some districts as state intervention exacerbated inequality and usurped democratic governance in another. The state used its plenary power to redraw district lines, consolidate districts, and forgive incurred debt—but not Detroit’s. It is worth wondering on what grounds the court’s majority would have based its ultimate decision if it had not so flagrantly denied the state’s plenary power in education to substantiate its ahistorical doctrine of local control. It’s also worth contemplating how the majority’s holding produced a legal and political terrain that freed the state to target the exercise of its plenary power in one district while upholding segregation in others on the premise of local control.
The national impact of the Milliken decision cannot be understated, but peeling back the underlying facts of the case to foreground state action prior to and after the decision illuminates Michigan’s expansive powers in organizing, funding, and governing its school system. Activists, lawyers, and scholars have already leveraged the state’s role in financing public schools as a legal mechanism for equitable school funding by pushing for implementation of different equalization formulas or compelling states to honor those already legislated.Footnote 88 With the history of Michigan’s state intervention in mind, contemporary advocates might also begin to consider how the state’s plenary power over school systems’ organization and governance could be used in other ways to provide the schooling required by state constitutions. If states are held liable for segregation and inequality across districts, what remedies may be employed? If district lines are not accepted as self-evident and immovable, what new possibilities emerge? If states, through coercive legislation or direct intervention, can shape the governance of schools, how might that power be directed toward equalizing opportunity in and across districts?
These questions, of course, come with dangers. The history of targeted intervention and policy discipline vis-à-vis Detroit illustrates the perils of state action that usurps local control, imposes punitive debt relief, and dictates the employment of market-based reforms. The double-edged sword of state (in)action highlights its importance in both the past and present. There is no doubt that state authority, in all its forms, is crucial for contemporary policymaking discussions aimed at redressing past discrimination and present inequality.
Competing Interests
The author declares none.
Matt Kautz is an NAEd/Spencer Postdoctoral Fellow and assistant professor at Eastern Michigan University. His scholarship has been previously published in The History Teacher, Journal of Urban History, and Harvard Educational Review. He appreciates the anonymous reviewers and the editors for their generative feedback and support in strengthening the manuscript, and he is grateful to Milton Gaither for his keen insights during the revision process.
