Brief in Support of Emergency Motion of Defendents For a Stay or Suspension of Proceedings

    UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.
Plaintiffs,

vs.
WILLIAM G. MILLIKEN, et al,

Defendants,
and
DETROIT FEDERATION OF TEACHERS LOCAL 231, No. 35257
AMERICAN FEDERATION OF TEACHERS, AFL-CIO,

Intervening Defendant,
and
DENISE MAGDOWSKI, et al,

Intervening Defendants.
ET AL.

BRIEF IN SUPPORT OF EMERGENCY MOTION OF 
DEFENDANTS WILLIAM G. MILLIKEN, GOVERNOR; 
FRANK J. KELLEY, ATTORNEY GENERAL; STATE 
BOARD OF EDUCATION AND JOHN W. PORTER,

' SUPERINTENDENT OF PUBLIC INSTRUCTION,
FOR A STAY OR SUSPENSION OF PROCEEDINGS

INTRODUCTION

In its Ruling on Issue of segregation dated September 
27, 1971, the Court concluded that both the State of Michigan 
and the Detroit Board of Education had committed acts which were 
causal factors in the segregated condition of the public schools 
of the City of Detroit. The Court then qualified its finding by 
saying that "The principal causes [of school segregation] undeni 
ably have been population movement and housing patterns. The



Court then requalified this conclusion by adding, "but state 
and local governmental actions, including school board actions, 
have played a substantial role in promoting segregation."

Since the State of Michigan is not a party to this 
suit, the references to the State of Michigan and state govern­
mental actions, if they have any bearing, must have been 
references to the Governor, the Attorney General, State Board 
of Education and the Superintendent of Public Instruction, 
the named defendant state officers.

In its Ruling the Court outlined the principals 
essential to a finding of de jure segregation, as follows:

1. The State through its officers and agencies, and 
usually the school administration, must have taken some action 
or actions with-a purpose of segregation.

2. This action or these actions must have created or 
aggravated segregation in the schools in question.

3. A current condition of segregation exists.

In the Ruling there is no finding that either the 
Governor or the Attorney General had committed any act that was 
a contributing factor in the alleged segregated condition of 
the Detroit Public Schools. Although in its Ruling the Court 
cited Const. 1963, Article I, Section 2 and Article VIII, Sec­
tion 2, neither of these constitutional provisions imposes any 
duties upon the Governor or the Attorney General with regard to 
either housing or education.

Neither the Superintendent of Public Instruction nor 
the State Board of Education have any duties under the constitu­
tion or laws of tire State of Michigan with regard to housing.

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O n e  evidentiary finding against the State Board of Education 
was that it issued a joint policy statement with the Michigan 
Civil Rights Commission under date of April 23, 1966. In this 
statement, the State Board of Education pledged itself to prevent 
and to eliminate segregation of children and staff on account of 
race or color "in programs administered, supervised or controlled" 
by it. There is no finding that any program administered, super­
vised or controlled by the State Board of Education was segregated 
on account of race or color. The sole finding of the Court with 
regard to the joint policy statement is the language "[L]ocal 
school boards must consider the factor of racial balance along with 
other educational considerations in making decisions about selec­
tion of new school sites, expansion of present facilities...Each 
of these situations presents an opportunity for integration." 
Clearly, the statement itself is not discriminatory. It is no 
more than a recommendation to local boards of education that they 
"consider" the factor of racial balance. It is impossible to 
see that the making of such a statement could be a causal factor 
in the segregated condition alleged to exist in the Detroit 
schools.

The other finding against the State Board of Education 
is the statement found in the Board's "School Plant Planning 
Handbook." It recommends "[c]are in site location... if a serious 
transportation problem exists or if housing patterns in an area 
would result in a school largely segregated on racial, ethnic or 
socio-economic lines." The statement itself is not claimed to 
be discriminatory. The power of site selection is vested in 
boards of education of local school districts. This statement 
is no more than a recommendation to local boards of education 
to use care in site selection. It is impossible to see how such

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a recommendation could be a causal factor in the alleged segrega­
tion within the Detroit public schools.

The Court's Ruling on Desegregation Ẑ rea and Order for Develop­
ment of Plan of Desegregation is predicated upon its Ruling that 
"illegal segregation exists in the public schools of the City of 
Detroit as a result of a course of conduct on the part of the State 
of Michigan and the Detroit Board of Education." The findings 
recited above are the sole basis for the Court’s razing 53 school 
districts established under the laws of the State of Michigan and for 
changing the schools, the teachers, the programs and, in fact, the 
entire educational system for 1/3 of the public pupils in the State 
of Michigan.

Moreover, the Court's rulings upon de jure segregation because 
of actions of the Detroit School District are not only inconsistent 
but equally unsound. The high praise that this Court heaped upon the 
defendant Detroit for integrating its faculty and administrators has 
been swept away by the Order of June 14, 1972 requiring racial balance 
of at least 10% of black faculty in every school within the 53 school 
districts, in direct disregard of Swann v Charlotte-Mecklenburg Board 
of Education, 402 US 1 (1971). Assuming arguendo that the Court is 
correct in its rulings as to actions of the Detroit School District, 
at best, a remedy requiring correction within the school district is 
all that is presently judicially mandated under Keyes v School District 
No, 1, Denver, Colorado, 445 F2d 990 (CA 10, 1971), cert granted 404 
US 1036 (Jan. 17, 1972). This is especially true in light of the recent 
reversal of Bradley v School Board of City of Richmond, Virginia,
__ F.2d___ (CA4, June 5, 1972), Case No. 72-1058 to 72-1060 and 72-1150,
so heavily relied upon by this Court in its Ruling on Propriety of 
Considering a Metropolitan Remedy to Accomplish Desegregation of the 
Public Schools of the City of Detroit of March 24, 1972, but con­
spicuously absent from the Court's Ruling and Order of June 14, 1972.

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I.

THIS COURT SHOULD, IN THE EXERCISE 
OF ITS SOUND DISCRETION, GRANT STATE
DEFENDANTS' MOTION FOR STAY OR .
SUSPENSION OF THIS COURT'S ORDER 
OF JUNE 14, .19 72.___________________

The authority for this Court's granting a stay of its 
mandatory injunctive order of June 14, 1972, pending appeal is 
contained in FR CivP62(c). This Court also has the authority under 
28 USC 2101(f) to grant a stay pending the disposition of the 
state defendants' petition for a writ of certiorari. In each 
instance the grant or denial of a stay is reposed in the sound 
discretion of the court. The state defendants, for the reasons 
set forth below, respectfully urge this Court in the exercise of 
its sound discretion, to grant their motion for a stay or suspen­
sion of the order entered herein on June 14, 1972.

In determining whether a stay should be granted, courts 
consider several factors. These factors include the probability 
of reversal on appeal, whether the denial of a stay will result 
in irreparable injury to the party seeking same, whether the grant­
ing of a stay will substantially harm the interests of the other 
parties, and finally whether a stay is in the public interest.
Long v Robinson, 432 F 2d 977 (CA 4, 1970); Belcher v Birmingham 
Trust National Bank, 395 F 2d 685 (CA 5, 1968).

In Bradley v School Board of City of Richmond, Virginia,
___ F 2 d ___ (Case Nos 72-1058 to 72-1060 and 72-1150, June 5,
1972) the Court of Appeals for the Fourth Circuit reversed a 
decision of the trial court granting a remedy substantially 
similar to that contained in this Court's order of June 14, 1972.
In that case the court directed a metropolitan remedy only after 
a trial involving the adjoining school districts which resulted

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in a finding of de_ jure segregation as to such school districts.
Here, as stated by the Court in its opinion of June 14, 1972, 
there has been no conclusion concerning either the establishment 
of the boundaries of the affected school districts .or the conduct 
of the 52 suburban school districts with respect to acts of de 
jure segregation. In addition this Court, after expressly finding 
no de jure segregation as to faculty and staff in the Detroit 
public schools, has ordered that 10% of the faculty and staff 
in each school be black. Thus contrary to the explicite language 
of Swann v Charlotte-Hecklenburg Board of Education, 402 US 1, 
16,24 (1971), reh den 403 US 912 (1971), this Court, in the 
absence of any finding of a constitutional violation as to 
faculty and staff has decreed an impermissible fixed racial 
balance for each school within the 53 school districts.

In view of the foregoing it is urged that this Court's 
order of June 14, 1972, extends beyond any existing federal 
appellate precedent in, school desegregation cases. Thus 
clearly there exists a substantial probability that this Court 
will be reversed on appeal.

Turning to the question of irreparable injury it is 
manifest that the implementation of this Court's desegregation 
decree in the Fall, 1972 term without full and final appellate 
review and the probability of reversal on appeal will result in 
irreparable injury to the state defendants and the people of the 
State of Michigan. The Court's order contemplates, as an 
irreducible minimum, K-6 implementation by the Fall, 1972 
term along with faculty and staff desegregation. This will 
subject students, parents, teachers and administrators to the 
trauma of reassignment with the distinct probability of further 
reassignment as a result of reversal on appeal.

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The Order of June 14, 1972 from which Stay is 
respectfully requested commands your defendants to pay the costs 
of the panel and to provide funds to insure that local officials 
cooperate fully. Further, they are mandated to "take immediate .
action," among others, to establish in-service training of faculty 
and staff, and to employ black counselors.

Your defendants possess no power under state law to
hire black counselors. Defendants Milliken and Kelley have no
powers whatever under state law in the area of education. Simply
put, tiie state defendants do not possess the power of the purse.it
Under Michigan .law/is reposed in the Michigan Legislature.
Const 1963, art 4, § 30:

"The assent of two-thirds of the members 
elected to and serving in each house of 
the legislature shall be required for the 
appropriation of public money or property 
for local or private purposes."

Const 1963, art 9, § 17:
"No money shall be paid out of the state treasury 
except in pursuance of appropriations made by law. "

Your defendants have no authority to expend funds without legislative 
approval and the legislature is not a party to this cause.

The school year 1971-72 is over. Teachers and other 
teaching school staff have left for their vacations or have embarked 
upon studies. Assuming that they could be reassembled and the time 
limits appear to make this not only impracticable but impossible, 
if these public funds are expended by your defendants and the Orders 
of this Court are reversed upon appeal, they will never be recovered 
to the loss and detriment of the people of this State.

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In addition this Court's remedial injunctive order
disrupts the education programs of 53 school districts, educat­
ing approximately 800,000 or 1/3 of the students in this state. 
Further this Court.'s remedial order requires the rearrangement 
of the financial, contractual and administrative aspects of 53 
separate school districts. Consequently a reversal on appeal 
will necessitate the re-establishing of such financial, adminis­
trative and contractual relationships. Clearly, the process of 
implementation of this Court's remedy, prior to full and final 
appellate review, will only serve to engender chaos and confusion 
should this Court's remedial decree be subsequently overturned 
on appeal.

A remedy of the scope and magnitude decreed herein, 
involving 18 school districts that are not parties to this 
litigation should not be undertaken prior to appellate review 
of the caiclusias and findings of de jure segregation and the 
propriety.of the metropolitan remedy. To do otherwise is to 
disregard the important aspects of stability and continuity in 
this state's educational system.

Moreover the development and implementation of this 
Court's judicially decreed remedy will necessitate the expenditure 
of substantial sums of state funds. These funds may not be 
recaptured even though this Court's remedial injunctive order may 
subsequently be overturned on appeal.

To summarize this aspect of state defendants argument 
it is simply untenable to implement this Court's remedial decree, 
broader in magnitude and scope than any remedial decree ever 
handed down in a school desegregation case in the absence of 
prior appellate review. Here it must be emphasized that in the

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Richmond case, supra, the Fourth Circuit Court of Appeals granted
a stay of implementation of the lower court's remedial decree 
pending appeal.

It may not be argued that the granting of a stay herein 
will result in substantial harm to the plaintiffs. This case 
was filed less than two years ago. A substantial portion of the 
intervening period was consumed by plaintiffs' attempts to secure 
preliminary injunctive relief both from this Court and the United 
States Court of Appeals for the Sixth Circuit on two separate 
occasions. Thus it cannot be said that there has been any undue 
delay in the effectuation of plaintiffs' constitutional rights 
in this cause.

This Court's injunctive order of June 14, 1972, already 
recognizes that for certain grade levels it is simply not 
practicable to implement desegregation in the Fall, 1972 term. 
Thus it cannot be reasonably maintained that the grant of a 
stay pending appeal will result in substantial harm to plaintiffs 
herein.

There is sound precedential authority, based upon the 
decisions of the United States Court of Appeals for the Sixth 
Circuit, in Davis v School District of the City of Pontiac Inc, 
309 F Supp 734 (ED Mich, 1970), aff’d 443 F 2d 573 (CA 6, 1971), 
order #20,477, June 3, 1970; Uorthcross v Board of Education of 
City of Memphis, 312 F Supp 1150 (WD Tenn, 1970), order Misc. 
1576, June 2, 1972, for the granting of a stay pending appeal. 
(The orders granting stays in these two cases are attached 
hereto as Appendix A and Appendix B, respectively.) In the 
Davis case, supra, the court squarely concluded that denial 
of a stay could result in irreparable injury to the defendants

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and that the granting of a stay would not result in irreparable 
injury to the plaintiffs. That case involved a remedial decree 
involving one Michigan school district. This case, involving 
53 separate Michigan school districts and some 800,000 pupils, 
is clearly a much more compelling case for the granting of a 
stay pending appeal. In contrast to Davis, supra, this case 
involves, the metropolitan reassignment of teachers and new 
interim and f i n a l  arrangements for 53 school districts 
concerning finances, hiring practices, curriculum, inservice 
training of staff, and administrative and governance aspects 
of school operation.

In Davis, supra, the court concluded that the grant 
of a stay was in the public interest. Consequently the conclu­
sion is compelled that the grant of a stay in this cause is even 
more so in the public interest of the people of the State of 
Michigan. The affected students, parents, teachers and adminis­
trators, stripped of their ability to know what school they will 
attend or work in come fall and as to teachers and administrators 
now bereft of their contractual rights, necessitate the granting 
of a stay herein.

In addition one recognized function of a stay pending 
appeal is to preserve the status quo. Pettway v American Cast 
Iron Pipe Co, 411 F 2d 998 (CA 5, 1969), reh den 415 F 2d 1376 
(CA 5, 1969). This cause, involving the most sweeping decree 
to date handed down in a school desegregation case, is certainly 
the perfect illustration of a case in which a stay should be 
granted preserving the status quo pending appeal. The trauma 
of reassignment, subject to probability of further reassignment 
in tiie event this Court's order is overturned on appeal, mani­
festly warrants the granting of a stay. This Court's order of

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June 14, 1972, with its provision for a 9 member panel to work 
out the mechanics of interim and final plans and its provision 
for recommendations by the Superintendent of Public Instruction 
as to interim and final arrangements covering the whole range 
of school district operations, vividly illustrates the many and 
complex problems inherent in this Court's remedial decree.
State defendants respectfully submit that such a massive under­
taking should not commence prior to the prompt appellate review 
that the state defendants have consistently sought in this cause.

One additional ground for the granting of a stay is the 
pendency of a case in the United States Supreme Court which, when 
decided, will settle many of the questions involved in the case 
in which a stay is granted. Blue Gem Dresses v Fashion Originators 
Guild of America, 116 F 2d 142 (CA 2, 1940). Currently pending 
in the United States Supreme Court is Keyes v School District No.
1/ Denver, Colorado, 445 F 2d 990 (CA 10, 1971), cert granted 404 
US 1036 (Jan 17, 1972) . Further, undoubtedly the decision of the 
Fourth Circuit Court of Appeals in Richmond, supra, is also cer­
tain to be reviewed by the United States Supreme Court. The 
resolution of -those cases by the United States Supreme Court 
will undoubtedly settle many, if not all, of the questions involved 
in tne instant cause.

In this regard, it should be stressed that there is

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presently pending in the United States Supreme Court petition 
for writ of certiorari entitled Milliken, et al v Bradley, et al, 
October Term, 1971, No. 71-1463, in which request is made of 
the nation's highest court to take this case and review the 
basic decisions of the District Court that the Detroit school 
district is a de jure segregated school because of actions of your 
defendants and that a metropolitan remedy is appropriate where the 
district court did not even consider and makes no finding that 
neighboring school districts are de jure segregated or the 
boundaries of such 52 school districts were established to create 
or maintain de jure segregation. The Clerk of the United States 
Supreme Court has advised your defendants that their petition for 
certiorari will be submitted to the Court for its action during 
the pres exit term.

Thus, a stay order should issue because of the possibility 
the United States Supreme Court will grant your defendants' 
petition for a writ of certioari, given the urgent and unique 
nature of this case. The Court has the authority to grant such 
an order under 28 USC 2101(f). This is most important because the 
granting of a writ of certioari is an automatic stay of the lower 
court order. Click v Ballentine Produce, Inc?, 397 F2d 590, 594 (CA 8, 
1968); United States v Eisner, 323 F2d 38, 42 (CA 6, 1963), reversed 
on other grounds, 329 F2d 410 (CA 6, 1964).

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SUMMARY

The State of Michigan is not a party to this action. 
Defendants Milliken, Kelley, State Board of Education and Porter 
are parties to this action. Based upon a record that shows:

1. Defendant Milliken pursuant to a constitutional duty 
imposed upon him by Mich Const art 4, § 33, approved 
1970 PA 48. Under its provisions he appointed a 
first class school district boundary commission. He 
is an ex-officio member, without vote, of Defendant 
State Board of Education;

2. Defendant Kelley rendered legal opinions as required 
by law. MCLA 14.32; MSA 3.185;

3. Defendant State Board of Education adopted a joint 
policy statement v/ith the Michigan Civil Rights 
Commission encouraging voluntary consideration of 
racial balance in location of school buildings and 
in the area of school construction published a hand­
book recommending care in site selection if housing 
patterns would result in segregation on racial, 
ethnic or socio-economic grounds; and

4. Defendant Porter is the Superintendent of Public 
Instruction and Chairman of the State Board of 
Education <■

this Court found that your defendants have taken actions with the 
purpose of segregation and these actions must have created or 
aggravated segregation in the Detroit Public School District.

11



Over the continuing objections of your defendants, this
Court permitted evidence to show discrimination in housing patterns.
Thus the Court refused to follow the clear, controlling law as laid
down by the United States Circuit Court for the Sixth Circuit in
Deal v Cincinnati Board cf Education (Deal I), 369 F2d 55 (CA 6,
1966), cert den 389 US 847 (1967), and restated in Deal v Cincinnati
Board of Education (Deal II), 419 F2d 1387, at 1392 (CA 6, 1969),

(1971)cert den 402 US 962/ Defendants Milliken, Kelley, State Board of 
Education and Porter have no lawful authority over housing.

Moreover this Court has in its findings of fact and con­
clusions of law in support of its Ruling and Order of June 14, 1972, 
conceded that it has taken no proofs as to the establishment of the 
boundaries of the 53 affected school districts nor on the issue 
whether such school districts, other than Detroit, have committed 
acts of de jure segregation. Yet the Court has imposed racial 
balances as to students and faculty in these districts contrary to 
Swann, supra, and the recent Fourth Circuit Court of Appeals 
decision in Bradley v School District of the City of Richmond, 
Virginia, supra.

Based upon such analysis, it can only be concluded that 
there is, indeed, strong probability that this Court will be reversed 
upon appeal.

The Order of this Court of June 14, 1972 imposes a duty 
upon Defendants Milliken, Kelley, State Board of Education, and 
Porter to finance and pay the costs of the panel and the local 
school districts in cooperating with the panel. Further they must 
provide in-service training for teachers and staff and hire black 
counsellors. The order sets a fine, closely meshed schedule that 
will vitally effect 160,000 children and thousands of teachers by 
fall of 1972. Your defendants have no power of the purse. The

12



legislature has made appropriations for their support in discharge 
of powers and duties conferred by Michigan law. Payment of expenses 
and programs contemplates the expenditure of large sums of public 
money that will be irretrievably lost if the decision of the Court 
is reversed.

This Court has ordered minimum K-6 integration for 
September, 1972 and has imposed a heavy burden upon anyone that 
would delay the same. However, the Court has not made the same 
requirement for high school pupils, imposing a September, 1973 date. 
Under these rulings, it is respectfully submitted that the plain­
tiffs will not suffer loss if the Stay is granted.

The public interest demands that the ruling of this Court 
be finally reviewed before 160,000 children (K-6) of 800,000 affected 
and thousands of teachers, staff and administrators are vitally 
affected by change of school assignment in September of 1972. If 
this Court is reversed, the trauma of changing schools for the second 
time for children will be irreparable. Clearly a Stay is in the 
best public interest of all the people of the State of Michigan 
until a speedy, final review is secured.

RELIEF

Defendants Milliken, Kelley, State Board of Education 
and Porter respectfully request this Court to grant a stay or sus­
pension of its Order of June 14, 1972 pending action upon their 
petition for certiorari entitled Milliken, et al v Bradley, et al, 
October 1971 Term, No 71-1463 by the United States Supreme Court, 
or alternatively, pending their appeal to the United States Court

13



of Appeals for the Sixth Circuit from this Court's order of 
June 14, 1972.

Respectfully submitted,
FRANK J. KELLEY 
Attorney General

Assistant Attorney General
Gerald F. Young 
Assistant Attorney General
George L. McCargar 
Assistant Attorney General

Attorneys for Defendants
Business Address:

720 Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913 
(517) 373-1162

Dated: June 19, 1972