Blue v. US Department of the Army Brief of Appellants Julius L. Chambers and Ferguson, Stein, Watt, Wallas & Adkins, P.A.

    I n  th e

§§>upxmw (Emtrt of Tlr? States
October Term, 1972

No. 72-747
B loomfield H ills  S chool D istrict ,

Petitioner,

T h e  H onorable S t e ph e n  J .  R o th .

No. 72-748
W est B loomfield S chool D istrict of 

Oakland County , M ich ig a n , et al., ■
Petitioners,

vs.
T h e  H onorable S t e ph e n  J. R o th .

No. 72-817
S chool D istrict of T h e  City  of B ir m ing ham ,

Oakland County , M ichigan ,
Petitioner, 

vs.
T h e  H onorable S teph en  J .  Ro t h .

MEMORANDUM IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI

J ack Greenberg 
N orman J .  Ch a c h k in  

10 Columbus Circle 
New York, New York 10019

P aul R . D imond .
906 Rose Avenue
Ann Arbor, Michigan 48104

E. W in t h e r  M cCroom
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

L ouis R. L ucas 
W illiam  E . Caldwell

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

N a th aniel  R. J ones 
1790 Broadway 
New York, New York 10019

L ucille  W atts
3246 Cadillac Towers 
Detroit, Michigan

M arian W right E delman 
J . H arold F lannery  
R obert P ressman

Cl Kirkland Street 
Cambridge, Mass. 02138

Attorneys for Respondents 
Ronald Bradley, et al., 
Plaintiffs Below



Isr t h e

(Urntrt nt %  BtaUs
O ctober T e r m , 1972

No. 72-747

B loom field  H ills  S chool D istr ic t ,
Petitioner,

vs.

T h e  H onorable S t e p h e n  J. R o th .

No. 72-748

W est  B loom field  S chool D istrict  of 
Oakland  C o u n ty , M ic h ig a n , et at.,

Petitioners,
vs.

T h e  H onorable S t e p h e n  J. R o t h .

No. 72-817

S chool D istrict  of T h e  C ity  of B ir m in g h a m , 
Oakland  C o u n ty , M ic h ig a n ,

Petitioner,
vs.

T h e  H onorable S t e p h e n  J. R o t h .

MEMORANDUM IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI

These Petitions for W rits of Certiorari are collateral to 
the lawsuit commenced in 1970 to desegregate the public



2

schools of the Detroit, Michigan area, Bradley v. MilliJcen. 
That matter was last before this Court this past Term on 
the Petition of the State officials who are defendants in the 
case seeking review (which was denied) of the dismissal 
of an interlocutory appeal by the Sixth Circuit. 468 F.2d 
902, cert, denied, 93 S.Ct. 45 (1972).

Petitioners are all corporate entities, school districts 
which were created by and function pursuant to the au­
thority of the State of Michigan, and each of which is 
located within Oakland County, Michigan—the county which 
abuts the City of Detroit to its northwest. Each of the 
Petitioners elected in early 1972 not to intervene before 
the District Court, at the time when some 40 similarly 
situated school districts sought and were granted the right 
to intervene in the Bradley v. MilliTcen proceedings since 
the District Court was considering possible forms of relief 
which might affect them as agents of the State of Michigan 
for educational purposes. Each of the Petitioners instead 
waited until after the District Court issued an order, 
defining the area surrounding and including the City of 
Detroit within which a desegregation plan was to be de­
veloped, and then Petitioners sought W rits of Prohibition 
or Mandamus from the Court of Appeals to halt proceed­
ings in the District Court. In each instance, the Petitions 
for Mandamus or Prohibition were denied without prej­
udice to their right to seek intervention in the District 
Court.

Even then Petitioners did not avail themselves of the 
opportunity either to enter the case at the District Court 
level or to intervene in the Court of Appeals, which con­
sidered the merits of the District Court’s order defining 
a “desegregation area” in an appeal argued August 24, 
1972 pursuant to an Order expediting proceedings. Instead, 
each of the Petitioners sought rehearing or rehearing



3

en banc of the orders denying the extraordinary writs, and 
then filed with this Court the Petitions for review which 
are presently under consideration.

Since the filing of the Petitions, the Court of Appeals 
issued a ruling on December 8, 1972 in which it vacated the 
District Court’s order defining a desegregation area and 
remanded for additional remedy hearings, holding that 
school districts (such as Petitioners), who would be af­
fected by such a desegregation order, are necessary par­
ties to proceedings in the District Court prior to the entry 
of such an order.* On January 16, 1973, however, the 
Court of Appeals issued an Order setting the matter down 
for rehearing en banc on February 8, 1973, with the effect 
of vacating- the opinion of the panel.**

The Petitioners raise three basic issues, each of which 
is intimately bound up with the proceedings in the main 
appeals now pending before the United States Court of 
Appeals for the Sixth Circuit upon rehearing en banc, and 
each of which ought not be considered by this Court prior 
to disposition by the full Court of Appeals.

Petitioners claim, first, that the District Court should 
not have proceeded to enter a decree which affects the 
operation of their schools if they were not parties to the 
proceedings before the Court. Putting to one side the 
facts that Petitioners chose not to avail themselves of the 
opportunity for intervention which was seized by many 
of their sister districts and that Petitioners are each sub­
sidiary agents of the State of Michigan (which was rep­
resented before the District Court), the claim is an in-

* The December 8, 1972 opinion of the panel was reprinted as an 
appendix to the “Supplemental Brief in Support of Petitions for 
Writs of Certiorari to the United States Court of Appeals for the 
Fourth Circuit” in Nos. 72-549, 72-550.

** Rule 3(b), United States Court of Appeals for the Sixth 
Circuit.



4

appropriate one for review at this juncture. The panel 
of the Court of Appeals ruled on December 8, 1972—even 
though Petitioners disdained to participate in the appeals 
before the Court—that Petitioners were indeed necessary 
parties before the District Court. I t is entirely possible 
that the full Court upon rehearing will reaffirm this ele­
ment of the decision since, so far as these Respondents 
are presently aware, none of the parties opposes the 
participation of Petitioners in the remand hearings before 
the District Court which had been ordered by the panel. 
Thus, should that ruling be upheld en banc, the question 
whether the Petitions for Mandamus or Prohibition were 
properly denied will be rendered moot.*

Petitioners also complain that the District Court acted 
improperly when it determined to include their school 
districts in the “desegregation area” without specific find­
ings that Petitioners had engaged in “de jure” segregation 
practices. This matter is one which perhaps might be 
viewed as lending support to Petitioners’ claims that 
mandamus or prohibition should have issued, but it is 
intimately concerned in the present proceedings before the 
Court of Appeals and ought not to be reviewed at this 
stage. The panel’s opinion at page 68 held:

In  fashioning an equitable remedy in this case, it will 
not be necessary for the District Court to find dis­
criminatory conduct on the part of each school district, 
either de jure or de facto, as a prerequisite to including 
such district in a desegregation area to be defined by 
the Court’s decree.

We are, of course, unable to predict whether this language 
will be adopted, modified, or rejected by the full Court, 
but certainly this Court’s consideration of so important

* Of course, should the panel’s opinion be reversed by the full 
Court on the question of metropolitan desegregation relief, these 
Petitions will also thereby be mooted.



5

an issue will be materially aided by its intervening litiga­
tion before the Court of Appeals. Cf. Brown Shoe Com­
pany v. United States, 370 XJ.S. 294, 355 (Clark J., con­
curring).

Finally, two of Petitioners argue that the order of the 
District Court defining a desegregation area was one which 
could have been issued only by a statutory three judge 
court pursuant to 28 U.S.C. § 2281. This issue is likewise 
before the Court of Appeals in its consideration of the 
main case, and this Court would be better served by deny­
ing review of these Petitions and postponing its considera­
tion for a later stage following the ruling of the entire 
Court of Appeals for the Sixth Circuit.

For these reasons, Respondents Bradley, et al., respect­
fully submit that the Petitions are premature, constitute 
attempts to secure piecemeal review, and should be denied 
so as to afford the Court of Appeals an opportunity to 
rule upon the substantive questions common both to these 
Petitions and to the matters now pending before it upon 
rehearing en banc.

Respectfully submitted,

N orman J. Ch a c h k in  
10 Columbus Circle 
New York, New York 10019

J ack Greenberg N a th aniel  R. J ones 
1790 Broadway 
New York, New York 10019

P aul R. D imond
906 Rose Avenue
Ann Arbor, Michigan 48104

L ucille  W atts
3246 Cadillac Towers 
Detroit, Michigan

B .  W lN T H E R  M cC R O O M
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

M arian W right  E delman  
J .  H arold F lannery  
R obert P ressman

L ouis R . L ucas 
W illiam  B . Caldwell

61 Kirkland Street 
Cambridge, Mass. 02138

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Attorneys for Respondents 
Ronald Bradley, et al., 
Plaintiffs Below



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