(dissenting):
Eighty-seven years before the landmark decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) was announced, the legislature of the State of Michigan, in Public Acts of Michigan, 1867, Act 34 § 28, had abolished segregation in the public school system which had prohibited Negro children from attending the same public schools as white children. This statute in relevant parts reads as follows:
“All residents of any district shall have an equal right to attend any school therein. . . . ”
The Supreme Court of Michigan, in an opinion written for the court by Chief Justice Cooley, construed the statute in 1869 and held it applicable to Detroit and that Detroit constituted one school district. In granting a writ of mandamus requiring the school board to admit a Negro child who had been denied admission, Chief Justice. Cooley said:
“It cannot be seriously urged that with this provision in force, the school board of any district which is subject to it may make regulations which would exclude any resident of the district from any of its schools, because of race or color, or religious belief, or personal peculiarities. It is too plain for argument that an equal right to all of the schools, irrespective of such distinctions, was meant to be established.” People, ex rel. Workman v. Board of Education of Detroit, 18 Mich. 400, 409 (1869).
The issues in this case do not concern the right of any Negro child in Detroit to attend any school he desires in that City. They do involve the authority of a district judge to adopt a so-called metropolitan plan designed to integrate the Negro school children living in Detroit with white children living in three adjoining counties and attending public schools in fifty-two additional school districts, eighteen of which districts have never been made parties to this lawsuit. Conditions were imposed on the districts allowed to intervene which rendered their intervention ineffective.
The District Judge followed the pattern of Judge Merhige in the Richmond case whose decision was reversed by the Fourth Circuit in Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (4th Cir. 1972), aff’d by equally divided court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (Nos. 72-549, 72-550, 1973). 41 U.S.L.W. 4685. The fact that Richmond involved dismantling of a dual system was regarded as unimportant by the District Judge.
In an unprecedented opinion, a panel of this Court and now a majority of the en banc Court have upheld findings of the District Court that segregation exists in Detroit and that it cannot be dismantled with a Detroit-only plan of desegregation and the District Court may consider and adopt a metropolitan plan.1
Just to start such a plan involves the expenditure of about $3,000,000 for the purchase of 295 buses and untold millions of dollars to operate them and for other expenses. It will involve about 780,000 children and, if ordered by the court, will force the busing of black children, against their will and without the consent of their parents, from the inner city of Detroit to one or more of the fifty-three different school districts in four counties, and the white children of these districts will be forcibly bused to *260the inner city. None of these children have committed any offense for which they should be so punished. It will disrupt the lives of these children and their parents. The metropolitan plan was ill conceived and is a legal monstrosity. However, such a plan will achieve a racial balance or quota in the desegregation area, which is what plaintiffs are seeking.
The District Court made no findings that any of the fifty-two school districts outside of Detroit had practiced desegregation tactics against Negro children in their districts or in any other district, or that they were in any wise responsible for the concentration of Negroes or their segregation in Detroit.
These fifty-two school districts have been created by the legislature as separate and independent corporate units with power to sue and be sued. They are governed by locally-elected Boards of Education. In each district, the real estate of the people living therein is taxed for the support of their public schools.
The school districts were established by neutral legislation when the cities were incorporated. There was not an iota of evidence in the record that the boundaries of the Detroit school district, or any other school district in Michigan, were established for the purpose of creating, maintaining or perpetuating segregation of the races. No such claim was ever made by the plaintiffs.
In 1910, long after the districts were created, the black population of Detroit was only 1.2% of the total population of the City. By 1970 it had increased to 43.9% of the total population of 1,511,000. It is obvious that the great influx of blacks, as well as whites, to Detroit was influenced by the favorable industrial climate existing in Michigan and the ability of its industry, principally automotive, to provide jobs.
In the school year 1970-1971, there was 285,512 students in the public school system in Detroit of which 168,200 or 63.8% were black and 117,312 or 37.2% were white. The School Board of Detroit ought not to be blamed for the heavy concentration of blacks in the inner City, for housing conditions, or for discrimination by public or private agencies or individuals and ought not to be saddled with the duty to dismantle the concentration. These same conditions exist in other cities throughout the country regardless of the type of school system in effect — whether de jure or de facto. Nor should the adjoining three counties and the fifty-two school districts be penalized because they are located near Detroit.
In his book Negroes in Cities, Dr. Karl Taeuber states that residential segregation exists “regardless of the character of local laws and policies and regardless of other forms of discrimination”. He said substantially the same thing in his article “Residential Segregation” in the August, 1965 issue of Scientific American.
In Bradley v. School Board of City of Richmond, 462 F.2d 1058 (4th Cir. 1972), aff’d by equally divided Court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (Nos. 72-549, 72-550, (1973), 41 U.S.L.W. 4685, the Court said:
“The root causes of the concentration of blacks in the inner city are simply not known. . . . ”
And:
“Whatever the basic causes, it has not been school assignments and school assignments cannot reverse that trend.”
The District Court was motivated in its decision by social considerations. In a pretrial conference on October 4; 1971 the District Court stated:
“We need not recite the many serious problems such a plan entails, suffice it to say that a plan of such dimensions can hardly be conceived in a day, to say nothing of the time it will require for implementation. A large metropolitan area such as we have in our case can not be made the subject of instant integration. We must bear in mind that the task we are called upon to perform is a social one, which
*261society has been unable to accomplish. In reality, our courts are called upon, in these school cases, to attain a social goal, through the educational system, by using law as a lever.” App. IV, pp. 454, 455.
This is incredible!
It is submitted that the courts are not called upon to integrate the school system, using law as a lever. Nor should judges assume to act as legislators, for which they are neither fitted nor qualified. It is enough for judges to perform their judicial function and to abide by the separation of powers doctrine provided by our Constitution.
The thesis of the panel which wrote the original opinion in this appeal is best stated in its own words in its slip opinion:
“This court in considering this record finds it impossible to declare ‘clearly erroneous’ the District Judge’s conclusion that any Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all .of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent.white and 13 per cent black. Big city school systems for blacks surrounded by suburban school systems for whites cannot represent equal protection of the law.” Slip Opin. p. 65.
The majority opinion adopts all of the paragraph except the last sentence which reads as follows:
“Big city school systems for blacks surrounded by suburban school systems for whites cannot represent equal protection under the law.”
In my opinion, the retained part of the paragraph expresses the same thought as the sentence which has been deleted.
No decision of the Supreme Court or any other court construing the Constitution supports this 'thesis and it is not our province to rewrite the Constitution.
The majority opinion sharply conflicts with Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J.1971), affirmed, 404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972). In Spencer the black students sued the Attorney General of the State of New Jersey, the Commissioner of Education and the State Board of Education alleging that they failed to achieve a racial balance among several districts of a state system of public schools. New Jersey, like Michigan, did not operate a dual system and the alleged imbalance was characterized as de facto segregation.
The three-judge Court which heard the case stated:
“In none of the schools of which the plaintiffs complain is any black pupil ‘segregated’ from any white pupil. Indeed, complaint is made that the blacks who reside in the school district served predominate over the whites, thus affording an example of complete desegregation which was the expressed object of the court in the Brown ease. 347 U.S. at page 487 of the Opinion at page 688 of 74 S.Ct. in Brown it is stated that:
‘In each of the cases [from Kansas, South Carolina, Virginia and Delaware] minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race.’
Such is not the basis upon which each of the plaintiffs in the present case seeks relief in this cause. On the contrary plaintiffs would have a substantial portion of the pupils now in attendance in their respective schools ordered by the court removed from these schools and assigned to a school in another district. Alternatively plaintiffs would have the court abolish the respective districts in which their *262schools are located and assign them to other districts in which the disproportion between white and black students is reduced in one direction or the other. If, as plaintiffs contend, the proportionate black attendance in their respective schools adversely affects the degree of excellence of education which they can receive there must be a point at which any excess of blacks over whites is likely to impair the quality of the education available in that school for the black pupils. Nowhere in the Appendix filed by the plaintiffs or in the facts involved in any of the judicial precedents which they cite are we informed of the specific racial proportions which are likely to assure maximum excellence of the educational advantages available for the whites. Assuming further that efforts to achieve the ideal interracial proportion necessarily include the alteration of the population factor determinative of the redistricting, there can be no assurance that the population factor will remain static. If so, it would be necessary to successively reassign pupils to another district as the rate of births and graduations alters the racial proportions creating the demand for the educational facilities as it changes from term to term. In sum, the difficulty complained of does not amount to unconstitutional segregation.” (Id. at 1239-1240).
Speaking oí school district boundaries, the Court stated:
“It is clear that these legislative enactments prescribe school district boundaries in conformity with municipal boundaries. This designation of school district zones is therefore based on the geographic limitations of the various municipalities throughout the State. Nowhere in the drawing of school district lines are considerations of race, creed, color or national origin made. The setting of municipalities as local school districts is a reasonable standard especially in light of the municipal taxing authority. The system as provided by the various legislative enactments is unitary in nature and intent and any purported racial imbalance within a local school district results from an imbalance in the population of that municipality-school district. Racially balanced municipalities are beyond the pale of either judicial or legislative intervention.” (Id. at 1240).
Spencer is on “all fours” with our case.
The majority opinion conflicts with prior decisions of this Court with the' unfortunate result that acts which do not violate the Constitution in Cincinnati, are held to be unconstitutional in Detroit.
The two decisions with which the majority opinion is in irreconcilable conflict are Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th Cir. 1969), cert, denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971); Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), cert, denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967), affirming, 244 F.Supp. 572. Twice the Supreme Court was afforded the opportunity to review Deal and as late as 1971 it refused to do so, with only one Justice dissenting.
More than eighty-two years ago Ohio, like Michigan, by statute had abolished segregation in the public schools in the State. The neighborhood school system, however, was provided by statute so that schools would be constructed at such places as will be convenient for the attendance of the largest number of children. Ohio Rev.Code § 3313.48. It was not then believed that neighborhood schools were obnoxious. Nevertheless, in Cincinnati the races were imbalanced in the public school system.
Some schools were attended entirely by Negroes and others entirely by whites, while others were attended in varying proportions by both white and Negroes. Some Negro schools were racially identified. The segregation was allegedly caused by gerrymandered school-zone lines, by housing discrimina*263tion by public and private agencies, by discrimination in job opportunities, and school construction.
We held in Deal I that the Board of Education had no constitutional duty to eliminate racial imbalance not caused or created by it, and upheld the neighborhood plan adopted by the State Legislature.
The District Judge had excluded evidence of discrimination in the public and private housing markets. We held this ruling was correct on the ground that the discrimination, if it existed, was caused by persons not parties to that case and the Board of Education had no power to rectify that situation. We said: “[If] appellants have any valid claim for [infringing] their rights by public-housing or urban-renewal officials, they may obtain appropriate relief against them under the Fourteenth Amendment. With respect to private actions amounting to discriminatory practices, while there is no federal constitutional right available to appellants, they may seek relief from the state Civil Rights Commission, or in the state courts, if relief is denied under the provisions of the Ohio Fair Housing Law.2 Deal I, 369 F.2d at 60 fn. 4.
The majority opinion also conflicts with Bradley v. School Board of Richmond, supra, and Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L. Ed.2d 554 (1971).
Swann stated that: “[The] objective is to dismantle the dual school system.” Id. at 28, 91 S.Ct. at 1282. Here there has been no dual school system to dismantle. Although not racially balanced, Detroit for many years had achieved a unitary school system in which no student was precluded from attending any school in the district. Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). There are limits as to how far a district court can go. Swann, 402 U.S. at 28, 91 S.Ct. 1267.
Swann also stated:
“If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse.” 402 U.S. at p. 24, 91 S.Ct. at p. 1280.
The metropolitan plan violates this principle which was applicable only to dual systems. It is even worse when the District Court applies broader orders to a unitary system than have ever been applied to dismantling of a dual system.
Swann, is violated by overloading the school system with excess “baggage.” Id. at 22, 91 S.Ct. at 1279.
THE DETROIT ONLY PLAN
The finding of the District Court that a Detroit only plan could not accomplish desegregation is not supported by the evidence and are clearly erroneous. The percentage of black and white children in the public schools in 1970-1971 was 63.8% and 37.2% respectively. The racial composition of the state is 87% white and 13% black.
In Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), the Supreme Court approved a pairing plan for the City and County which had a racial composition of 34% white and 66% black. The existing ratios in Detroit are practically the same.
But the District Court in our case was concerned about its own forecast of pop*264ulation trends that the percentage of black students would increase from 63.-8% in 1970 to 72% in 1980, and in 1992 would be all black. This forecast is wholly speculative.
Such an unsupported and speculative forecast cannot be made the basis for a metropolitan cross-district order. Even if true, which it is not, the Board of Education is not responsible for the population remaining static, or for the mobility of the races. This was made clear in Spencer, supra, id., 326 F.Supp. at 1239, 1240, and also in Swann, supra, id., 402 U.S. at 31, 32, 91 S.Ct. 1267. Nor is the Board required from time to time to adopt plans to meet shifting population trends. Spencer, supra; Swann, supra.
Significantly, all that the plaintiffs are complaining about is the operation of the Detroit school system and the failure of the State defendants to properly supervise, control or finance it. Plaintiffs cannot complain about school district lines because those lines were neutrally drawn with the incorporation of the cities long before the Negroes had migrated north in large numbers. If school-zone lines in Detroit have not been properly drawn or if there are imbalances of black and white students, or imbalances on faculty or staffs in the Detroit schools, or if school buildings have been improperly located, or if plaintiffs have been discriminated against in any other respect, these inequities can all be remedied in the Detroit school system without forcibly moving Negroes and whites against their will across district lines into other counties and districts. An order requiring the adoption of a metropolitan plan under the facts of this case, merely to dismantle the concentration of blacks in the inner city, violates constitutional rights of both races and constitutes a flagrant abuse of judicial power.3 Swann recognized a limitation on the power of District Judges. Id., 402 U.S. at 28, 91 S.Ct. 1267. Chief Justice Vinson, in writing the opinion for the court in Oyama v. California, 332 U.S. 633, 646, 68 S.Ct. 269, 275, 92 L.Ed. 249 (1948), stated:
“But assuming, for [the] purposes of argument only, that the basic prohibition is constitutional, it does not follow that there is no constitutional limit to the means which may be used to enforce it.”
Thus, the District Court may not enter orders in school desegregation cases which impinge upon and violate the constitution rights of other persons.
Many Negroes as well as whites are opposed to integration of the races in the public school system by enforced busing.4 A busing order directed at “benefiting” black students in Detroit (by distributing the black student population throughout the entire metropolitan area) produces a head-on clash of constitutional principles. Blacks are given an (alleged) benefit when other citizens “similarly situated”, i. e., other minority-group students and even inner-city white students, are not given such benefits but are discriminated against. This result, of course, is a classic denial of the equal protection of the laws. Barbier v. Connolly, 113 U.S. 27, 32, 5 S.Ct. 357, 28 L.Ed. 923 (1885) ; Truax v. Corrigan, 257 U.S. 312, 333, 42 S.Ct. 124, 66 L.Ed. 254 (1921).
In a very recent thought-provoking article, appended hereto as Appendix A and entitled “Reverse Discrimination”, Dr. Morton Teicher, Dean of the School of Social Science of the University of North Carolina, discussed the problems of deprived groups and remedies for past discrimination including quota sys-*265terns. Since opinions of sociologists were relied upon in Brown I, it is important that they not be overlooked here. See also the discussion entitled “Busing: A Review of ‘The Evidence’ ”, The Public Interest No. 30 Winter 1973; “The Evidence on Busing,” The Public Interest No. 28 Summer 1972; Ross, “Why Quotas Won’t Work,” Reader’s Digest, Feb. 1973, p. 51.
The District Court’s metropolitan cross-district order, an order purportedly directed at furthering the purposes of the equal protection clause; itself clashes with this constitutional principle.
The metropolitan busing remedy ordered by the Court is, however, unconstitutional on a more fundamental level. It invalidly assumes that the equal protection clause of the Fourteenth Amendment protects groups and not individuals. The entire thrust of the District Court’s order is that the rights of blacks as a group must be redressed and that, in the process, the rights of individual black children (and non-black children) may be disregarded.
Consider the burden on the individual students who are bused in order to achieve a “racial balance” throughout the entire Detroit Metropolitan Area. Individual black and white students who formerly walked to a nearby school would be forced to travel substantial distances to other schools. These are not individuals who are burdened because their parents have chosen to reside far from the nearest school in the district or because they have special educational needs attended to in but a single school in the district. These are individual children who are burdened with being bused solely because they are black or white, as the case may be.
Parenthetically, it should be noted that if there were any question that busing involves a substantial burden on the individual who cannot attend his neighborhood school, that question has been dispelled by the urgings of desegregation-case plaintiffs that black children can not be “unequally burdened” by being the only students bused, the white students being permitted to attend their neighborhood schools. See e. g., Haney v. County Bd. of Education of Sevier Co., 429 F.2d 364, 371-372 (8th Cir. 1970); Brice v. Landis, 314 F.Supp. 974, 978-979 (N.D.Calif.1969).
Yet in proposing a remedy for black students as a group based on a head count, the District Court entirely disregards these individual black and white students and their right not to be burdened solely on account of their race.
The equal protection clause of the Fourteenth Amendment states:
“ . . . nor shall any state deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.)
The Supreme Court has recognized the individual nature of the equal protection clause on a number of occasions.5 In Shelley v. Kraemer, 334 U.S. 1, 22, 68 *266S.Ct. 836, 846, 92 L.Ed. 1161 (1948), the Court was explicit:
“The rights created by the first section of the Fourteenth Amendment [the equal protection clause] are, by its terms, guaranteed to the individual. The rights established are personal rights. [Court’s n. 29.] McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 161-162, 35 S.Ct. 69, 59 L.Ed. 169 (1914); Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L.Ed. 208 (1938); Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948).”
It simply defies logic to have a “constitutionally required” remedy for a group of individuals which, in turn, unconstitutionally denies equal protection to the individuals in the group as well as individuals in other groups, and which remedy unconstitutionally imposes burdens on students within and without the group solely because of their race. Yet this is precisely what the District Court has held. The Court states (correctly) that discrimination against the black race in Detroit must be remedied, but then orders massive interdistrict busing of students to achieve racial balances, denying individual blacks (and non-blacks) their right not to be substantially burdened solely on account of their race.
But the fundamental error of the District Court order was in treating the Michigan school system as a dual system when it was not, and in proposing the dismantling of concentration of blacks in Detroit and distributing them in fifty-two other school districts in three other counties. Virtually all of the cases relied upon by the plaintiffs to support the District Court’s rulings involved dual school systems.
DUE PROCESS VIOLATIONS OF FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION
Although, as stated by the majority, this is the fourth time that the case has been before us, the District Court has not as yet adopted any specific plan for desegregation; instead the District Court has entered-a number of interlocutory orders some of which are now before us for review under 28 U.S.C. § 1292(b). These include rulings on the issue of Segregation, findings of fact and conclusions of law on Detroit Only Plan of Desegregation, propriety of a Metropolitan remedy to desegregate Detroit Schools, Desegregation Area, and Order directing Michigan State officials to purchase 295 school buses.
This procedure is unprecedented. Usually school desegregation eases are reviewed on appeal only after a plan of desegregation has been adopted. It appears to us that the District Court has placed the cart before the horse. It has entered a number of far-reaching piecemeal interlocutory orders from which no appeal could be taken without the court’s permission, and which would bring about a fait accompli of a metropolitan plan without affording the defendants their right of appeal. This was in the absence of necessary and indispensable parties and to the prejudice of intervening school districts which had been denied effective participation in the proceedings.
The Complaint, which has never been amended, sought only the desegregation of the Detroit school system. There was no allegation that any other school district would be affected. As soon as it was determined that other school districts might be adversely affected, the District Court should have required the plaintiffs to make them parties defendant with a full opportunity to be heard on the merits of the case. These school districts were necessary and indispensable parties. This is the correct procedure, and was followed in Bradley v. School Board of the City of Richmond, 338 F.Supp. 67 (E.D.Va.1971), reversed on other grounds, 462 F.2d 1058 (4th Cir. 1972), aff’d by equally divided Court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (Nos. 72-549, 72-550, 1973), 41 U.S.L.W. 4685.
*267All school districts whose borders were being invaded were entitled, as a matter of right and not of mere grace, to be made parties defendant in the case • and to be accorded the same rights as any other defendants. They were entitled to be heard on all issues in the case which affected them, and were entitled to participate effectively in the proceedings. They were entitled to be heard on the issues of segregation, the “Detroit-Only plan” and the “Metropolitan plan”. They had the right to offer evidence and endeavor to prove that there was no causal connection between any act or omission of the Detroit Board of Education (or of the State) and the concentration of blacks in the inner City, and that whatever constitutional violations of the rights of the plaintiffs may have occurred, such violations could be remedied within the Detroit school district without invading other districts which were not in any manner responsible for conditions in Detroit. These rights were denied to the intervenors.
While the orders of the District Court on these three issues were interlocutory, the judgment entered by the majority is final and the issues may not be relitigat-ed on remand. Thus judgment has been entered against the absent school districts as well as those allowed to intervene, in violation of their due process rights to a fair and impartial trial. The orders affirmed are far reaching; they will require the expenditure of untold millions, and will disrupt the lives of hundreds of thousands of children and their parents.
However, in its opinion the majority did provide for amendment of pleadings on remand, making new party defendants, for intervention, and for offering additional testimony. These provisions are wholly illusory with respect to the issues of segregation, the “Detroit-Only plan” and the “Metropolitan plan”, as the opinion expressly excludes these issues from reconsideration upon the remand. The only remedy available to the intervening school districts is to petition the Supreme Court for certiorari. The eighteen school districts, as well as any additional school districts which the District Court may add to the desegregation area upon the remand, are without any remedy. Since they have never been made parties, they may not petition the Supreme Court for a writ of certiorari. They have surely been deprived of their property rights, not only without due process of law, but without any process of law.
The majority opinion, with its disapproval of the “Detroit-Only” plan and its order to the District Court to consider and adopt a so-called “Metropolitan” plan invading the borders of three counties and the boundaries of fifty-two school districts, completely destroys local control of the public school system along with all of its advantages. Local control is a traditional concept of the American public school system. Its merit and value were recognized by the Supreme Court in two very recent decisions. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (decided March 21, 1973); and Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972).
In San Antonio Independent School District, supra, Mr. Justice Powell, wrote the opinion for the Court, cited and quoted from opinions of Chief Justice Burger and Justice Potter Stewart in Wright, stating:
“The Texas system of school finance is responsive to these two forces. While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district’s schools at the local level. In an era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived. The merit of local control was recognized last Term in both the majority and dissenting opinions in Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S. Ct. 2196, 33 L.Ed.2d 51 (1972). Mr. *268Justice Stewart stated there that ‘[djirect control over decisions vitally-affecting the education of one’s children is a need that is strongly felt in our society.’ Id., at 469, 92 S.Ct. 2196. The Chief Justice, in his dissent, agreed that ‘[l]ocal control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well.’ Id., at 478, 92 S. Ct. at 2211.
“The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means, as Professor Coleman suggests, the freedom to devote more money to the education of one’s children. Equally important, however, is the opportunity it offers for participation in the decision-making process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. An analogy to the Nation-State relationship in our federal system seems uniquely appropriate. Mr. Justice Brandéis identified as one of the peculiar strengths of our form of government each State’s freedom to ‘serve as a laboratory . . . and try novel social and economic experiments.’ No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education.” (411 U.S. at 49, 93 S.Ct. at 1305.)
As we have pointed out, the facts of the present case furnish no basis whatsoever for the Court to destroy local control of our public school system.
Unreasonable and intolerable conditions, however, were imposed by the Court on the intervention by the school districts.6 The school districts filed objections to the conditions which were never ruled on by the Court. These conditions alone constituted a denial of due process to the intervenors who were pre-*269eluded from raising questions necessary for their own protection and who were denied the right to be heard fully on the merits of the case.
The type of intervention permitted by the District Court is graphically illustrated in the brief filed by counsel for the intervenors in which he complains about the following incidents with citation of supporting record references:
“Seven days after allowing appellants to intervene, as a matter of right but subject to oppressive conditions, [27] the trial court required the filing of written briefs on the legal propriety of a metropolitan plan of desegregation. (A. Ia397) The court did not require or permit oral argument. Less than 36 hours later the court issued its 'Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit’ (A. Ia439) rejecting the contentions of Intervenor School Districts. Testimony regarding metropolitan plans commenced four days later (a weekend and Motion day falling between) at 10:10 A.M. Prior to the noon recess, just two hours after Intervenor School District counsel had first appeared in the District Court and before completion of testimony of a single witness, the District Judge announced that counsel could stop by his office and pick up his ‘Findings of Fact and Conclusions of Law on Detroit-only Plans of Desegregation’ (A. Ia456) wherein the court announced its intention to seek a more desirable racial mix by means of a Metropolitan Plan.
Thus without any opportunity for oral argument, without opportunity to examine or cross-examine one witness, without opportunity to present one shred of evidence, and indeed, without opportunity to obtain copies of previous pleadings and testimony (let alone read same), the Intervenor School Districts had been effectively foreclosed from protecting their interests. [28].”
He further complains about the fact that the Court permitted him to take the deposition of Dr. David Armor, a sociologist of Harvard University, and then refused to receive it in evidence.
Dr. Armor was a well-qualified expert. He had previously written an article entitled “The Evidence on Busing” published in The Public Interest No. 28, Summer 1972, which exploded some of the existing theories on educational achievement resulting from busing.
In a subsequent article by Dr. Thomas F. Pettigrew and associates, they responded to Dr. Armor’s article on busing and quoted from Judge Roth’s ruling excluding his deposition as follows:
“This fundamental fact was dramatically demonstrated by the judicial reaction to Armor’s deposition in the Detroit school ease, a deposition based on an earlier draft of ‘The Evidence on Busing.’ On June 12, 1972, U.S. District Court Judge Stephen H. Roth ruled the deposition inadmissible as evidence on the grounds of irrelevancy. The deposition, in Judge Roth’s view, represented ‘a new rationale for a return to the discredited “separate but equal policy . . . . ’”7 The Public Interest No. 30, Winter 1973.
In an article entitled “The Double Double Standard” appearing in the same issue at page 119, Dr. Armor replied to the Pettigrew article stating among other things:
“The double standard here is obvious. One willingly applies social science findings to public policy if they are in accordance with one’s values, but declares them irrelevant if they contradict one’s values. . . . ” Id. at 130.
*270The Supreme Court in Brown I relied heavily on testimony of sociologists as to the adverse effect of segregation on the educational achievement of Negro children. It is inconceivable that the District Court would hold contrary testimony of a sociologist irrelevant and exclude it. This was prejudicial error. In a court of justice not merely one side but both sides are entitled to offer evidence.
The District Court quashed a subpoena duces tecum issued by the interve-nors for Charles Wells, an employee of the Detroit Board of Education, to bring with him “all records of the past two (2) years concerning incidents involving damage to property, safety of pupils or staff (whether perpetrated by other pupils, staff or outsiders) criminal activities, or fires in or on school property as regards each school in the Detroit public school system.”
Although the Court had previously received the testimony of Freeman Flynn, offered by plaintiffs on the subject of safety, it denied permission to the Inter-venors to offer evidence on the same subject by quashing the subpoena. The Court was not that technical in admitting into evidence Exhibit 16, although it was not properly identified, stating that the Court decided to follow Justice of the Peace Cane’s rule: “We will let it in for what it is worth.” Indeed, he did, but did not apply Justice Cane’s rule to the deposition.
Due process required an opportunity to be heard which must be granted at a meaningful time and in a meaningful manner. Jenkins v. McKeithen, 395 U. S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); In Re-Gault, 387 U.S. 1, 19-21, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948).
As well stated in Railroad Commission of California v. Pacific Gas & Electric Co., 302 U.S. 388, 393, 58 S.Ct. 334, 338, 82 L.Ed. 319 (1938):
“The right to a fair and open hearing is one of the rudiments of fair play assured to every litigant by the Federal Constitution as a minimal requirement. Ohio Bell Telephone Co. v. Public Utilities Comm’n, 301 U.S. 292, 304, 305.”
The intervenors were entitled to the effective assistance of counsel, to have a reasonable time to examine the papers in the case and to prepare for trial, and to offer evidence in support of their contentions before the case is decided against them.
One other matter is worthy of comment. The District Court appointed a nine-member panel to set up a metropolitan plan of desegregation. Three members of the panel were from Detroit. Only one member was appointed to represent the fifty-two school districts whose school population exceeds that of Detroit by more than two times. This is a plain example of unfairness.
The Detroit Board of Education, although vigorously denying the commission of^any purposeful segregative acts committed against Negroes and contending that plaintiffs have not proven their case, has taken an unusual and extraordinary position. It supports the plaintiffs on the issue of a metropolitan plan contending that if a constitutional violation has been shown, only such a drastic remedy will rectify it. It is obvious that the Detroit Board was motivated by its concern that a 63.8%-black and a 37.-2%-white quota was too heavily weighted with black pupils, and that it owed a constitutional duty to dilute that quota and to distribute the black-pupil population of Detroit into the other three counties and fifty-two additional school districts, in order to effectuate a quota of about 25%-black and 75%-white children in each school.
It is submitted that no such constitutional duty exists and that the District Court erred in ordering it; Swann, supra.
*271THE ELEVENTH AMENDMENT TO THE CONSTITUTION PROSCRIBES SUITS AGAINST THE STATE OF MICHIGAN, AND IT HAS SOVEREIGN IMMUNITY
The plaintiffs have attempted to sue the State of Michigan by making the Governor, the Attorney General, and the Acting Superintendent of Schools parties defendant. Later, when the District Court issued an order prior to the adoption of any plan for desegregation, to purchase 295 buses, it made the Treasurer of the State a party defendant in order to sequester funds in his hands.
It was the theory of the plaintiffs that under the doctrine of vicarious liability the state was liable for the acts and conduct of the Detroit Board of Education and of other political subdivisions, and that since the State is a party defendant it really was not necessary to make the Detroit School Board, or the school boards in the other districts, parties to the case. This theory has no legal support and is unsound. Each school district is a separate and independent corporate unit with power to sue and to be sued, and has separate taxpayers whose property is taxed for the support of the schools as well as for the payment of the district’s bond issues.
If, as plaintiffs contend, the State has been made a party defendant, then such an action against the State is proscribed by the Eleventh Amendment.
The most recent decision of the Supreme Court upholding sovereign immunity of a state is Krause v. State of Ohio, 409 U.S. 1052, 93 S.Ct. 557, 34 L.Ed.2d 506 (1972).
To the same effect is Ex Parte State of New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921), where the court made it clear that the applicability of the Eleventh Amendment “is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding as it appears from the entire record.” Id. at 500, 41 S.Ct. at 590.
The general rule was stated in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), as follows:
“The general rule is that a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury or domain or interfere with the public administration,’ Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’ Larson v. Domestic & Foreign Corp., supra, 337 U.S. 682 at 704, 69 S.Ct. 1457, 93 L.Ed. 1628; Ex parte New York, 256 U.S. 490, 502, 41 S.Ct. 588, 65 L.Ed. 1057 (1921).”
The Civil Rights Act has not yet been construed as an exception to the Eleventh Amendment.
The order issued against the State defendants provided:
“1. The Defendant Detroit Board of Education shall acquire by purchase, lease or other contractual arrangement at least 295 buses for use in the interim desegregation plan during the 1972-73 school year. All financial obligations incurred as the result of this Order shall be the sole financial obligation of the State Defendants, including the added State Defendant State Treasurer Allison Green, as set forth below in Paragraph 2. Said order, lease, or other contract shall be entered into by negotiation and without the necessity for bids forthwith and in no event later than Thursday, July 13, 1972.
2. The State Defendants shall bear the cost of this acquisition and State Defendants, including the added State Defendant Green, shall take all necessary steps utilizing existing funds and sources of revenue, to be acquired State funds, legislatively authorized and funds directed by the State Constitution to the State School Aid Funds and by re-allocation of existing or new funds to pay for said transportation acquisition either directly or *272through the Defendant Detroit Board.” App. at 576, 577.
This order imposed a personal liability-on the State defendants and would require them, if they complied with it, to misappropriate and misapply State funds in violation of state law. If they did not comply with it they could be punished for contempt.
In addition, the State defendants were ordered to pay the cost of the nine-member panel appointed by the Court to devise the Metropolitan Plan, (1 Ba 538). This cost was estimated at $22,500. All defendants were ordered to hire black counsellors and provide in-service training for teachers in the fifty-three school district desegregation area. The initial cost of the in-training was about $3,000,000.
The District Court was without authority to impose a personal liability on the State defendants or to order them to misapply and misappropriate State funds in violation of State law.8
The legislature of Michigan is not likely to act on the suggestion of the majority, accompanied by a veiled threat if it fails to so act, that it change school district boundary lines to benefit a few at the expense of many, and thereby violate the constitutional rights of many. School district lines may not be changed for an unconstitutional purpose. United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972); Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). Since an adequate remedy already exists within the Detroit school district to correct any constitutional violation therein, there is no occasion for the legislature to alter the existing neutral, non-discriminatory school district boundaries.
RELIEF
Because of prejudicial errors of constitutional magnitude committed by the District Court, each of the orders from which an appeal has been taken should be reversed and a new trial granted with instructions to consider and adopt a Detroit-only desegregation plan to remedy any constitutional violations which it may find to exist in said City.
The Governor, the Attorney General and the Treasurer of the State should be dismissed, as they are unnecessary parties to a determination of the issues of the case.
APPENDIX A
REVERSE DISCRIMINATION
The development of “affirmative action” programs for minority groups is posing some intractable problems. These problems arise from the existence of conflicting, fundamentally incompatible values. On the one hand, we social workers value righting the wrongs perpetrated for too long on minority groups. On the other hand, we value the right of all persons to be treated equally.
Distributive justice requires the dissemination of benefits to all without depriving any individual or group of something it values. This is far more in keeping with fairness and equity than the idea of redistributive justice, which confers benefits on one group at the expense of others. Redistributive justice, then, leads to reverse discrimination.
Redistributive justice is advocated to atone for our failure to live up to the belief in the capacity and the dignity of each human being. This failure does not negate the soundness of that belief. Rather, it should spur us to correct the failure — not the belief. When practices fail to reflect principles, then we should change our practices, not our principles.
*273For social workers, the issue has come to the forefront in agency and university hiring practices and admissions policies of schools of social work. Social agencies, especially those serving ghetto populations, are giving preference to minority group members in employment. Universities, beset by pressures from the U.S. Department of Health, Education, and Welfare, are similarly giving preference to women and minority groups. Some schools of social work have adopted quota systems in dealing with candidates for admission.
These practices conflict with the fundamental social work belief in individual human dignity and the libertarian belief that each person is entitled to be judged and valued as an individual. Quota systems and preferential treatment are artificial restrictions on this right because they substitute irrelevant group characteristics such as race or religion for consideration of an individual’s capacity and potential. Respect for the individual is a basic part of social work’s credo and commitment. We cannot reconcile this conviction with treating people only as representatives of a racial group.
When we try to eliminate discrimination and compensate for past wrongs by quota systems, we substitute one injustice for another. We deny the inherent equality of all people and undermine the proposition that each individual should have the same opportunity to achieve and to be judged according to his merits. We pit group against group and destroy the possibility of harmonious interaction. Quotas are pernicious instruments; they represent an unacceptable means for achieving a desirable end. “Preferential quotas are condescending, divisive and detrimental to the integrity of a university.” 1
A quota system institutionalizes discrimination and must be vigorously opposed. Ultimately, it is a form of segregation. The progressive democratization of the university through the elimination of any criterion for admission other than merit has been one of the success stories of America. Now some of the benighted beneficiaries of that victory ally themselves with those antilib-ertarian forces that would have blocked their own access to education. They are ready to eradicate the victory of equal opportunity over discriminatory quotas, for which their forebears fought so hard. That victory has only been partially won. We cannot falter now by substituting a host of irrelevant and inappropriate considerations for merit. The test a university must apply to each candidate is merit — not inherited status.
Some advocates of quota systems believe that quotas will redress wrongs and thus produce equal opportunity, when actually they eliminate equal opportunity. Quotas have historically been used for exclusion. They were an insidious manifestation of institutionalized bigotry, covertly designed to exclude unwanted groups. They were wrong in the past and they are wrong now, even though they are now designed to achieve inclusion, rather than exclusion. Discriminatory practices are wrong, no matter what their intent. Whether they are for or against particular groups, quota systems are morally indefensible.
For social workers, the distinctions among people based on race, ethnic background, religion, or creed that inhere in quota systems are particularly abhorrent. Our regard for the individual and our objection to hereditary caste as a status determinant should make quota systems especially impossible for us to accept.
For schools of social work, the argument that quotas for admission will produce student bodies that represent the proportion of racial, ethnic, or religious groups in society is a curious expression of bigotry. Proportional representation on a group basis is highly discriminatory. What taxonomy shall be used to categorize the groups that should be represented? Among the characteristics that defy classification are the follow*274ing: cultural, economic, ethnic, gender, geographic, linguistic, national, occupational, racial, religious, social class, and tribal.
Some minority groups include the following: the aged, American Indians, Asian-Americans, Blacks, capitalists, Catholics, Chícanos, easterners, factory workers, farmers, German-Americans, Hispanic Americans, Hungarian-Americans, immigrants, Irish-Americans, Italian-Americans, Jews, the lower class, migrants, nomads, northerners, Polish-Americans, the poor, Puerto Ricans, slum-dwellers, southerners, Swedish-Americans, the upper class, wasps, westerners, and youths.
Who is not a member of a minority group ? Who cannot find a place among this woefully incomplete list of minorities ?
We are all minorities. Each of us comes from a distinctive racial, religious, or ethnic stock. Each of us is a newcomer or a descendant of newcomers. Even the native Americans — the Indians —came to North America from across the Bering Straits 25,000 years ago. Each of us has ties to our own roots. Each of us has pride in our origins. Each minority contributes to America— to its building, its evolution, and its maintenance.
(Morton Teicher)
Morton Teicher, Ph.D., is Dean, School of Social Work, University of North Carolina, Chapel Hill, North Carolina.
. While the present undefined desegregation area consists of three additional counties and 53 school districts, this could, of course, be expanded so as to include as many as the District Judge may order. The plan seeks to achieve a racial balance or quota in each public school in the system of 75% white and 25% black in a state which is 87% white and 13% black. The Plan violates Public Acts of Michigan, 1867, Act 34 § 28, by ordering children living in one district to attend school in another district.
. The Supreme Court in Jones v. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), has since held that Section 1982 of 42 U.S.C. applies to all discrimination in the sale or rental of property.
The majority distinguishes Deal I on the ground that the District Court made findings of fact that there had been no unconstitutional conduct on the part of the Cincinnati Board of Education. In Bradley, the District Judge had found similar facts to constitute a violation of the Constitution. Both District Court decisions, although inconsistent, have now been affirmed.
. Indeed, there is no finding by the District Court of any pattern of purposeful segregation by the School Board or finding of any causal relationship between any alleged segregative acts of the Board of Education and the concentration of blacks in the inner city.
. At the National Black Political Convention held in Gary, Indiana (March, 1972), mandatory busing and school integration were condemned as racist and as preserving a black minority structure.
. Of course, merely because equal protection is an individual right does not mean, as implied in United States v. Jefferson Co. Bd. of Education, 372 F.2d 836 (5th Cir. 1966), that a class action will not be available under Rule 23(a) for redress of discrimination. A class action lies where a number of persons have similar individual rights infringed.
On the other hand, it does not follow that simply because a class action is available to redress discrimination individual rights can be obliterated by superimposing the “rights” of the class.
The individual plaintiffs, who charge in their Complaint the maintenance of a desegregated school system in Detroit, were all Negroes except one. Nevertheless, the District Court in determining the class held “that the plaintiffs in their action represent all school children in the City of Detroit, Michigan, and all Detroit resident parents who have children of school age, . . . .” Thus white and black children and their parents, who are not situated similarly with the plaintiffs and may violently disagree with plaintiffs’ position, are arbitrarily placed in the same class. It will also be noted that the Complaint sought only the desegregation of the Detroit schools and made no claim against other counties and other school districts.
. “The interventions granted this day shall be subject to the following conditions:
1. No intervenor will be permitted to assert any claim or defense previously adjudicated by the court.
2. No intervenor shall reopen any question or issue which has previously been decided by the court.
3. The participation of the intervenors considered this day shall be subordinated to that of the original parties and previous intervenors.
4. The new intervenors shall not initiate discovery .proceedings except by permission of the court upon application in writing, accompanied by a showing that no present party plans to or is willing to undertake the particular discovery sought and that the particular matter to be discovered is relevant to the current stage of the proceedings.
5. No new intervenor shall be permitted to seek a delay of any proceeding in this cause; and he shall be bound by the brief and hearing schedule established by the court’s Notice to Counsel, issued March 6, 1972.
6. New intervenors will not file counterclaims or cross-complaints; nor will they be permitted to seek the joinder of additional parties or the dismissal of present parties, except upon a showing that such action will not result in delay.
7. New intervenors are granted intervention for two principal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of considering a metropolitan plan; (b) to review any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting objections, modifications or alternatives to it or them, and in accordance with the requirements of the United States Constitution and the prior orders of this court.
8. New intervenors shall present evidence, if any they have, through witnesses to a number to be set, and limited, if necessary, by the court, following conference.
9. With regard to the examination of witnesses, all new intervenors shall among themselves select one attorney per witness to act for them, unless one or more of the new intervenors show cause otherwise. These conditions of intervention shall remain subject to change or modification by the court in the interest of timely disposition of the case.
DATE: March 15, 1972.” App. at 408-410.
. Judge Rotli’s language is not understandable in view of the 1869 decision of the Supreme Court of Michigan in People, ex rel. Workman v. Board of Education of Detroit, supra, upholding the right of Negro children to attend any school in their district.
. The orders entered by the District Court have certainly been expended on the public treasury, have interfered with public administration, have restrained the State from acting, and have compelled it to act, which is the test for determining whether the action is against the State, under Dugan v. Rank, supra. Such an action is clearly proscribed by the Eleventh Amendment.
. Editorial, “Discrimination by HEW,” New York Times, March 2,1972.