concurring in part and dissenting:
I agree with much of the well written majority opinion which details at great length the history of this small school desegregation case over a period of nine years which is all too long and I think it is about time to write finis to it.
I
I concur in the vacation of the order of the district court in appeal No. 79-1723 but not in the remand for further proceedings, as I believe it is unnecessary. The order vacated was improvidently entered since the district court was usurping the functions of the Board of Education by providing many years after the alleged constitutional violation had been eradicated costly ($651,289.54) and unnecessary programs involving educational components and assessing the cost thereof not against the original wrongdoer, Kalamazoo Board of Education (KBE), but against only the State Board of Education (SBE). The State Board was not a party defendant in the case at the time the district court entered its temporary mandatory injunction eight days after the filing of the suit on August 12, 1971, putting in full force and effect the Racial Balance Plan adopted by a rump Board of Education (KBE) by a 4 to 3 vote, two members of which were replaced in an election held a few weeks thereafter and the Racial Balance Plan was promptly rescinded by the new local board of education, so that the plan was not implemented or in effect at the time the district court adopted and placed in full force and effect the rejected plan. In adopting it, not much of a hearing was afforded to anyone.
*821It is submitted that nothing like this has ever happened before in the annals of jurisprudence but apparently anything goes in a school desegregation case. There was never any claim in this case that the State Board of Education had anything to do with the rump local Board adopting a Racial Balance Plan or with the newly elected Board rescinding it.
It is significant that although the Kalamazoo Board (KBE) appealed from the mandatory temporary injunction adopting the Racial Balance Plan and the preliminary mandatory injunction entered a few days thereafter, nevertheless KBE commenced immediately to comply with the mandatory injunctions and completely balanced the races in the Kalamazoo school system in September 1971. This was provided by busing about 60 percent of the children attending the schools. This should have finished the case but it did not.
There is not an iota of evidence that the races were not balanced in September 1971. The district court made no findings that any imbalance still existed. Nevertheless on November 30, 1979, the district court entered the order that the State of Michigan pay $651,289.54 to the local Board for funding the ESAA educational programs for 1979-1980. This was seven years after the races had been balanced in the Kalamazoo school system and the children had been attending school in a unitary system over all of the years.
The obvious reason why the district court assessed the State of Michigan rather than the local Board was the State could pay this money to the local board out of its unappropriated funds. Without such reimbursement, the local Board would be compelled to collect from local taxpayers. The district court placed the burden on all of the taxpayers of Michigan to pay for the Kalamazoo educational programs which previously had been paid by the federal government.
The aptitude of the black children attending the Kalamazoo schools compared favorably with that of black children attending other Michigan public schools which did not have such programs so that in reality they were not necessary.
In Milliken v. Bradley, 433 U.S. 267, 295, 97 S.Ct. 2749, 2764, 53 L.Ed.2d 745 (1976), Mr. Justice Powell, concurring in the judgment stated:
First, it is argued that the order to pay state funds violates the Eleventh Amendment and principles of federalism. Ordinarily a federal court’s order that a State pay unappropriated funds to a locality would raise the gravest constitutional issues. See generally San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 40-42 [93 S.Ct. 1278, 1300, 36 L.Ed.2d 16] (1973); National League of Cities v. Usery, 426 U.S. 833 [96 S.Ct. 2465, 49 L.Ed.2d 245] (1976).
In the present case, the district court in holding that the state participated in unconstitutional violations relied on wholly impermissible factors, namely, housing patterns and covenants in deeds restricting sales for which conditions the court blamed the state. These are all matters for which the state was in no wise responsible and owed no duty to eliminate. There was no proof that the state participated in any constitutional violation of the rights of black school children attending the Kalamazoo school system.
The Supreme Court has repeatedly held that the school boards are under no constitutional duty to balance the races in the public school system but these holdings have not been uniformly adhered to by the lower courts.
In Milliken v. Bradley, supra, in footnote 14, the court stated:
Thus, the Court had consistently held that the Constitution is not violated by racial imbalance in the schools, without more. Pasadena Bd. of Education v. Spangler, 427 U.S. 424, 434 [96 S.Ct. 2697, 2703, 49 L.Ed.2d 599] (1976); Milliken I, 418 U.S., at 763 [94 S.Ct., at 3136] (White, J., dissenting); Swann, supra, [402 U.S.] at 26 [91 S.Ct. at 1281]. An order contemplating the “ ‘substantive constitutional right [to a] particular degree of racial balance or mixing’ ” is therefore *822infirm as a matter of law. Spangler, supra, at 434.
See also, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 [91 S.Ct. 1267, 28 L.Ed.2d 554] (1971)
It was not until September 18, 1979, that KBE filed a motion in the district court to make the Treasurer of the State of Michigan a party defendant which was granted so that the district court could order him to disburse unappropriated funds of the state to the local board of education to pay for the ESAA program for 1979-1980 amounting to $651,289.54. No doubt another motion will be filed for the year 1981-1982. No remand should be made for further consideration by the district judge.
II
I also dissent from the affirmance of the orders of the district court in appeals Nos. 79-1042 and 79-1101. They involved the validity of the appointments made by the district court of Green and Cohen, so-called experts and their research assistants to assist the district court in the performance of his judicial duties and the validity of allowances of compensation to the research assistants of $28,815.
In 1977, as stated in the majority opinion, the district court had ordered KBE to file a written report within the 21 days on its implementation of the court’s desegregation order and other details. On motion of the plaintiffs, the court on December 7, 1977, appointed Green and Cohen who are affiliated with Michigan State University and the University of Michigan, respectively, as the court’s experts to evaluate the report and to make recommendations and authorizing them to employ staffs and providing that the allowances would be taxed as costs. There was no claim that the court was in any wise incompetent to evaluate the report. The judge had been living with the case since 1971 and if we do not finish it the case will be with him until he expires. The majority opinion details the many proceedings which the judge conducted and the appeals including the present which total eight. The state board appealed from the order of the district court appointing the experts but it was dismissed for lack of a final appealable order. It has now become final because of the allowances made and we have jurisdiction to review it.
In my opinion, the appointment of masters or experts by a federal court in the present case to perform judicial functions is not authorized. Such references should be the exception and not the rule save in matters of account and difficult computation of damages and then on a showing that exceptional conditions require it. Rule 53(b), Fed.R.Civ.P. LaBuy v. Howes Leather Co., Inc., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1967). No such conditions existed in the present case. The district judge apparently did not need the so-called experts and their staffs when he put into effect the Racial Balance Plan and the many hearings he conducted thereafter. It was only after the races had been balanced when the case should have been terminated that he sought the aid of the experts in 1977 in order to adopt so-called educational components costing over $600,000.
The judge had already to use his own expression, “socked” the state and the local board enough. See 576 F.2d 714 at 717. He allowed seven lawyers for the plaintiff from New York, Washington and Memphis attorneys fees totaling $507,066.50 which included a multiplier of two as a bonus. He even allowed $15,000 to one of the plaintiffs for volunteered paralegal services. On appeal we held the multiplier was unauthorized and we modified the allowances further. 576 F.2d 714. In addition court costs of over $100,000 were assessed. The attorneys for the local and state board also had to be paid. All of this in a small school desegregation case involving a total of only 17,285 school children of whom 2,800 or 16.2 percent were black. If this case is not now concluded, we can expect more applications for fees, expenses and costs.
It is about time that the federal courts let loose with this case. I would vacate all of the orders and remand with instructions to dismiss the case.