
6 Mich. App. 364 (1967)
149 N.W.2d 239
MASON
v.
BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF THE CITY OF FLINT.
Docket No. 165.
Michigan Court of Appeals.
Decided March 28, 1967.
Robert A. Grimes, for plaintiff.
Bellairs & Dean, for defendant.
N.J. KAUFMAN, J.
The school district of the city of Flint is a second-class school district governed by the provisions of CLS 1961, §§ 340.141-340.166, as amended (Stat Ann 1959 Rev and Stat Ann 1965 Cum Supp §§ 15.3141-15.3166), in the school code of 1955. Under those provisions, the school district is placed under the jurisdiction of the defendant board of education of the school district of the city of Flint.
Prior to 1959, when 2 high schools served the educational needs of the community, the policy of permitting students to attend the school of their choice was in effect. With the opening of the third high school, attendance areas for the 3 high schools were established.[1]
In anticipation of the opening of a fourth high school in the fall of 1964, public hearings were held and new boundary lines establishing the present attendance areas were adopted. The criteria used by the Flint board of education and its administrative *367 staff in establishing high school boundary lines in the district were as follows:
1. Building capacity and plant utilization.
2. Stability of boundary lines.
3. Transportation lines.
4. Neighborhoods representative of school population (racial balance).
Plaintiff, as guardian ad litem for approximately 100 students residing in the Flint school district, sought a declaratory judgment directing the defendant board of education to allow the students represented by the plaintiff to attend Central high school, the school they formerly attended, or in the alternative any school of their choice.
Plaintiff charged in his amended complaint that defendant acted arbitrarily and capriciously in fixing the disputed boundary lines. Plaintiff further charged that the board of education attempted to achieve an equal percentage of races in each schoolhouse, thus denying students represented by the plaintiff equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution[2] and, as cited in plaintiff's brief, article 1, § 17 of the Michigan Constitution (1963).[3]
Plaintiff conceded in oral argument that the board of education did not act arbitrarily and capriciously in setting said boundary lines. It was further conceded that the board of education has the authority *368 to establish attendance areas. The case was then presented to the trial court solely on the constitutional issue, i.e., may the board of education consider racial balance as one of the criteria in establishing boundary lines of high school areas?
The lower court entered a judgment permanently restraining the defendant board of education from considering racial balance as one of the criteria in setting boundary lines.
Defendant board of education appeals the judgment of the lower court.
Where, under either the Fourteenth Amendment of the Federal Constitution, or article 1, § 17 of the Michigan Constitution (1963), as cited by plaintiff, or article 1, § 2 of the Michigan Constitution (1963),[4] is anyone deprived of equal protection of the laws by a board of education's considering racial balance as one of its criteria in setting attendance areas? This Court cannot find any such deprivation.
In an opinion written by Chief Justice Warren, which was unanimously concurred in by the Supreme Court of the United States, it was held that the plaintiffs, by reason of the segregation complained of, were deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. Brown v. Board of Education of Topeka (1953), 347 US 483 (74 S Ct 686, 98 L ed 873, 38 ALR2d 1180), supplemental opinion, 349 US 294 (75 S Ct 753, 99 L ed 1083). The "separate but equal" doctrine announced in Plessy v. Ferguson (1896), 163 US 537 (16 S Ct 1138, 41 L ed 256) involving equality in transportation facilities, under which equality of treatment is accorded by providing Negroes and Caucasians substantially equal though separate *369 facilities, was held to have no place in the field of public education.
In the Brown Case, the Supreme Court of the United States practically told every school board in the United States that it may consider racial balance when setting boundaries. In the supplemental opinion, 349 US 294 (75 S Ct 753, 99 L ed 1083), the Supreme Court of the United States stated:
"To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems." (Emphasis supplied.)
Where attendance boundaries[5] have been set without considering race, and a changing neighborhood causes segregation, there is no constitutional mandate to mix the races in order to remedy racial imbalance for educational purposes. Bell v. School City of Gary, Indiana (CA 7, 1963), 324 F2d 209, certiorari denied, 1964, 377 US 924 (84 S Ct 1223, 12 L ed 2d 216). This case cannot be read as prohibiting considerations of racial balance since, conversely, there is no mandate precluding such mixing. As stated in Springfield School Committee v. Barksdale (CA 1, 1965), 348 F2d 261, 266:
"It would seem no more unconstitutional to take into account plaintiffs' special characteristics and *370 circumstances that have been found to be occasioned by their color than it would be to give special attention to physiological, psychological or sociological variances from the norm occasioned by other factors. That these differences happen to be associated with a particular race is no reason for ignoring them."
The intent of the Flint board of education was to attempt in good faith to provide equal educational opportunities by the correction of racial imbalance. There was no effort made to conceal this consideration from the public. The board admitted in open hearings that racial balance was one of the criteria used in fixing the boundary lines.
Since 1867,[6] it has been the policy of this State to prohibit unjust discrimination in determining the right of a child to attend any school. Michigan was one of the first to recognize this concept and has long been a leader.
The Michigan Constitution (1963), article 8, § 2 states:
"Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin."
The committee comment to Michigan Constitution (1963), art 8, § 2 in the address to the people (2 Constitutional Convention Record [1961], p 3395), contains the following language:
"The antidiscrimination clause is placed in this section as a declaration which leaves no doubt as to where Michigan stands on this question."
*371 Attendance areas may not be arbitrarily fixed to exclude any given segment of the school population. If the attendance areas are not arbitrarily set, the child has no constitutionally guaranteed right to attend a public school outside of the attendance area in which he resides. Henry v. Godsell (ED Mich, 1958), 165 F Supp 87.
As stated in Olson v. Board of Education of Union Free School District No. 12, Malverne, New York (ED NY, 1966), 250 F Supp 1000, 1010:
"The plaintiff is not required to attend a school which, under similar circumstances, other students, regardless of race, are not also required to attend. The motivation is not discrimination but assistance to minority groups in providing equal educational opportunities."
The decision of the trial court is reversed. No costs, a public question being involved.
QUINN, P.J., and McGREGOR, J., concurred.
NOTES
[1]  The board of education is authorized to establish attendance areas under the authority of CLS 1961, § 340.589 (Stat Ann 1959 Rev § 15.3589).
[2]  "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
[3]  "No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed."
[4]  "No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation."
[5]  CLS 1961, § 340.589 uses the term attendance areas. In any metropolitan city having more than one high school, common sense dictates that the area for a particular school must be set by boundaries.
[6]  PA 1867, No 34, § 28, provided in part that: "All residents of any district shall have an equal right to attend any school therein: Provided, that this shall not prevent the grading of schools according to the intellectual progress of the pupils, to be taught in separate places when deemed expedient." See People, ex rel. Workman, v. Board of Education of Detroit (1869), 18 Mich 399. A substantially similar provision is embodied in the present school code, PA 1955, No 269 (CLS 1961, § 340.355 [Stat Ann 1959 Rev § 15.3355]).
