Letter from Lord to Roth RE: Copy of Answer To Plaintiffs' Amended Complaint And Counterclaim For Declaratory Relief with Supporting Memo of Law

    R O B E R T  J. L O R D
Attorney at Law

S38S d i x i e  h i g h w a y

Fair Haven, Michigan 48023

September 20, 1973

Honorable Stephen J. Roth
United States District Court 
600 Church Street 
Flint, Michigan 48502

Re: Bradley v Milliken
Civil Action No. 35257

Dear Judge Roth:

Enclosed is a copy of Answer To Plaintiffsf Amended 
Complaint And Counterclaim For Declaratory Relief By 
Defendants-Intervenor Kerry Green, et al., with a 
supporting Memorandum of Law filed today.

Respectfully

RJL: ab 
ends
cc: All counsel of record



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION



FIRST DEFENSE

This District Court does not sit as a super-legislature to determine 

the wisdom, need or propriety of state legislation and the plaintiffs have 

failed to state any claim or establish any fact in this action to justify 

the entry of any order compelling the State defendants to lobby for any state 

legislation as requested by the plaintiffs in their August 1973 Motion to 

Require Submission of Proposals to Legislature.

SECOND DEFENSE

Plaintiffs have failed to state any claim or establish any fact that 

deliberate state-enforced separation of races exists in any public school in 

the tri-county area of Wayne, Oakland and Macomb counties beyond the City of 

Detroit or that any public school in said tri-county area beyond the City of 

Detroit is being operated by any deliberate state action in violation of the 

Equal Protection Clause of the Fourteenth Amendment.

THIRD DEFENSE

No child attending any public school in the said tri-county area is 

a creature of the state and the plaintiffs have failed to state any claim or 

establish any fact to justify the entry of any order or judgment of the Court 

encroaching upon, abridging, infringing or violating the fundamental liberty 

and privacy rights of residence, home, family life, parental child-rearing 

and attendance at unitary public schools now peaceably and lawfully enjoyed 

jointly and severally as the case may be by all the individual defendants- 

intervenors and all other individuals similarly situated in said tri-county 

area beyond the City of Detroit, said fundamental liberty and privacy rights 

being retained by the people as provided by the Ninth Amendment and being

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also within the zones of fundamental liberty and privacy rights guaranteed 

by the First, Fourth and Fifth Amendments and by the Due Process Clause of 

the Fourteenth Amendment.

FOURTH DEFENSE

There exists no constitutional or equitable reason, as mandated by the 

Equal Protection Clause or the Supreme Court, why the Detroit public schools 

cannot be made to operate equitably as a unitary Detroit school system, which 

is to say a school system from which no Detroit school child is effectively 

excluded by deliberate state action from any Detroit public school because of 

race, without any additional state-enforced or federal-enforced compulsory 

transfer or transportation of school children to the Detroit public schools 

from public schools or places beyond the City of Detroit for any so-called 

’limited1 remedial purpose as may be claimed by the plaintirfs.

FIFTH DEFENSE “

Plaintiffs have failed to state any claim or establish any fact in this

action to justify the Court’s entry of any order or judgment providing for the

compulsory transfer or transportation, or for the compulsory transfer and 

transportation, of any school child to a public school in the City of Detroit 

from a public school or a place beyond the City of Detroit for any so-called 

’limited’ remedial purpose or.otherwise, and no constitutional or compelling 

federal or state interest exists to justify any such judicial compulsory 

transfer or transportation.

SIXTH DEFENSE

Plaintiffs have failed to state any claim or establish any j_act in tnis

action to justify the Court’s entry of any order or judgment providing for the

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desegregation of any public schools other than the public schools within the 

Detroit school district or enlarging the territorial desegregation area beyond 

the City of Detroit so as to include public schools in places beyond the City 

of Detroit.

SEVENTH DEFENSE

Answering the complaint commencing this action, defendants-intervenors 

incorporate by reference the sixth defense in the pleading accompanying their 

amended motion to intervene.

EIGHTH DEFENSE

The complaint commencing this action, not amended at any time until 

September 1973 and then only ’to conform to evidence’, failed without any 

alleged reason therefor, as provided by FRCP Rule 19(a) and (c), to state the 

names known to plaintiffs of only lately alleged necessary parties defendant 

who were not joined as necessary defendants in this action when it was com­

menced in 1970, particularly numerous school districts in the said tri-county 

area other than the Detroit school district; and said numerous school dis­

tricts and their various officials are not bound to their prejudice by the 

Court's September 27, 1971 and March 28, 1972 decisions; nor does FRCP Rule 

15(b) apply to necessary parties who were not heretofore joined in this action; 

nor are those certain school districts which were at their own request grantee 

leave to intervene as defendants on March 15, 1972 bound to their prejudice by 

said decisions for the reason that said intervention was granted with such 

restrictions as to render the same legally ineffectual.

NINTH DEFENSE

1. Defendants-intervenors admit the averments contained in paragraphs

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2, 4, 5, 6, 7, 8 and 9 of plaintiffs' amended complaint.

2. Defendants“intervenors deny the averments contained in paragraphs 

1 and 3, except they admit prior proceedings and decisions in this action as 

cited in paragraph 1 but without plaintiffs' commentary and that pleadings 

and some evidence of record in this action have been on file at times in the 

District Court and at times available for inspection and/or copying by any 

interested party.

3. Defendants-intervenors deny all the averments contained in para­

graphs 10 through 17, subtitled Additional Allegations to Conform to Evidence, 

except they admit that certain fact issues have been tried and determined by 

the District Court and that certain interlocutory fact findings have been 

affirmed or vacated by the Court of Appeals, and that school districts exist 

and operate in Michigan pursuant to state laws therefor made and provided, 

and that many persons located in the City of Detroit are employed and enjoy 

various services in said tri-county area beyond the City of Detroit, and that 

many persons located in various places throughout said tri-county area beyond 

the City of Detroit are employed and enjoy various services in the City of 

Detroit.

WHEREFORE, the defendants-intervenors deny that the plaintiffs are 

entitled to all or any of the relief as prayed for by them in their amended 

complaint but admit that the plaintiffs are entitled to an order or judgment 

of the Court implementing a desegregation plan whereby the Detroit public 

schools will be made to operate equitably as a unitary school system, which 

is to say a school system from which no Detroit school child is effectively 

excluded by deliberate state action from any Detroit public school because of 

race, without however any additional intervening judicial enforcement of the 

compulsory transfer or transportation of any school children to the Detroit 

public schools from public schools or places beyond the City of Detroit.

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COUNTERCLAIM

Defendants“intervenors, assuming that the plaintiffs will agree that 

the restriction against a counterclaim heretofore imposed on the defendants- 

intervenors is no longer effective in the interests of the fair play implicit 

in the Due Process Clauses of the Fifth and Fourteenth Amendments, set forth 

their counterclaim for. declaratory relief against the plaintiffs pursuant to 

28 USC 2201 and 2202 as follows:

1. Defendants-intervenors James, Jack and Kathleen Rosemary, by their 

Mother and Next Friend, Evelyn G. Rosemary, and James and Evelyn G. Rosemary, 

parents; Terri Doran, by her Mother and Ncixt Friend, Beverly Doran, and 

William and Beverly Doran, parents; Edward and Michael Romesburg, by their 

Father and Next Friend, Edward M. Romesburg, Jr., and Edward M. and Marie 

Romesburg, Jr., parents; Diann, James and Colleen Blaszak, by their Mother 

and Next Friend, Martha J. Blaszak, and Raymond J. and Martha J. Blaszak, 

parents; Diane, Chester and Allan Pruss, by their Father and Next Friend, 

Ronald Pruss, and Ronald and Hilda Pruss, parents; Tracey and Gregory 

Arledge, by their Mother and Next Friend, Aileen Arledge, and John and Aileen 

Arledge, parents; Sheryl and Russell Paul, by their Mother and Next Friend, 

Mary Lou Paul, and Duane and Mary Lou Paul, parents; Shauna, Scot and Keith 

Matthews, by their Father and Next Friend, Larry Matthews, and Larry and 

Nancy Matthews, parents; Deborah, Patricia and Denise Rossman, by their 

Mother and Next Friend, Maryann Rossman, and Thomas and Maryann Rossman, 

parents; Tracy Quigley, by her Mother and Next Friend, Janice Quigley, and 

Daniel and Janice Quigley, parents; Ian, Stephanie, Karl and Jaako Suni, by 

their Mother and Next Friend, Shirley Suni, and Armas and Shirley Suni, 

parents; Christopher and Scott Stefanko, by their Mother and Next Friend, 

Marthanne Stefanko, and Kenneth R. and Marthanne Stefanko, parents; and

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Susan, Scott and Kristie Ferguson, by their Mother and Next Friend, Sue M. 

Ferguson, and Samuel F. and Sue M. Ferguson, parents, are all minor children 

and parents of minor children attending public schools in the tri-county area 

of Wayne, Oakland and Macomb counties other than public schools in the City 

of Detroit which is co-terminus with the defendant Detroit school district; 

and said minor children and their parents are all members of two classes of 

persons so numerous that joinder of all such members in this counterclaim and 

action is impracticable, to wit; (1) all minor school children attending 

public schools in said tri-county area beyond the City of Detroit where they 

reside, have homes and family life and are reared by their parents, and (2) 

all parents of minor school children attending public schools in said tri­

county area beyond the City of Detroit where they reside, have homes and 

family life and rear their minor school children; and all the individual 

defendants-intervenors make this counterclaim pursuant to FRCP Rule 23 on 

their own behalf and representatively for and on behalf of all persons and 

members of the said classes similarly situated throughout said tri-county 

area beyond the City of Detroit; and there are common questions of law and 

fact affecting the constitutional rights of said minors and parents and the 

constitutional rights of all persons and members constituting said classes; 

and a common declaratory judgment is sought and the defendants-intervenors 

will fairly and adequately protect the interests of said classes; and the 

claims of the defendants-intervenors are typical oi the constitutional claims 

of said classes.

2. Defendant-intervenor Tri-County Citizens For Intervention In 

Federal School Action No. 35257 is a Michigan non-profit corporation formed, 

as shown by Article II of Articles of Incorporation filed with the Michigan 

Department of Treasury on October 26, 1971, for the following purpose:

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• •

To take all organizational and necessary legal action to 
intervene representatively as a defendant in Civil Action 
No. 35257, pending in the United States District Court,
Eastern District of Michigan, Southern Division, for and 
on behalf of all school children and all resident parents 
who have children of school age in each and every school 
district in Macomb County, Oakland County and in Wayne 
County other than the City of Detroit, and in general to 
do all things in connection therewith and incident thereto 
not forbidden by the laws of the State of Michigan and with 
all the powers conferred upon non-profit corporations by 
the State of Michigan.

3. The individual plaintiffs represent two classes of persons, to wit: 

(1) all school children in the City of Detroit, and (2) all Detroit resident 

parents who have children of school age; and plaintiff National Association 

For The Advancement Of Colored People, Detroit Branch, is an unincorporated 

association, which sues on behalf of its membership who are members of the 

plaintiff classes.

4. A case of actual constitutional controversy has arisen and exists 

between the defendants-intervenors and the plaintiffs, to wit:

(a) the defendants-intervenors say and claim that school children 

and their parents residing throughout the tri-county area of Wayne, Oakland 

and Macomb counties beyond the City of Detroit and having homes and family 

life, including parental child-rearing and attendance at unitary public 

school systems throughout said tri-county area, peaceably and lawfully enjoy 

such fundamental liberty and privacy rights as will be encroached upon, 

abridged, infringed and violated by any state-compelled or federal-compelled 

transfer or transportation of said school children to the Detroit public 

schools for any so-called ’limited’ remedial purpose of eliminating or 

balancing the racial identity of Detroit public schools or making the same 

operate as a unitary Detroit school system or otherwise, the said fundamental 

liberty and privacy rights of residence, home, family life, parental child- 

rearing and attendance at unitary public school systems throughout the said

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tri-county area, being retained by the people as provided by the Ninth Amend­

ment and being within the zones of fundamental liberty and privacy rights
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guaranteed by the First, Fourth and Fifth Amendments and by the Due Process 

Clause of the Fourteenth Amendment; whereas to the contrary on information 

and belief

(b) the plaintiffs say and claim that said school children and 

their said parents neither have nor enjoy any such said fundamental liberty 

and privacy rights or, if they do have and enjoy such said fundamental liberty 

and privacy rights or some of them, the same will not be encroached upon, 

abridged, infringed or violated by a state-compelled or federal-compelled 

transfer and transportation of said school children, or a certain number of 

them selected at random from public schools and places throughout the said 

tri-county area beyond the City of Detroit, to the Detroit public schools for 

a so-called ’limited’ remedial purpose of eliminating or balancing the racial 

identity of Detroit public schools or making the same operate as a unitary

Detroit school system or otherwise.

WHEREFORE, defendants-intervenors respectfully claim and request an 

appropriate judgment of the Court declaring the respective and relative 

constitutional rights of the defendants -interveners and the plaintiffs, more 

particularly:

A. That the Court enter an appropriate class action order as requestec 

by the defendants-intervenors.

B. That the Court order a timely hearing of this counterclaim for

declaratory relief.

C. That the Court enter a judgment declaring that the individual 

defendants-intervenors and the classes of persons of which the individual 

defendants-intervenors are members do jointly and severally have and peaceabl}’ 

and lawfully enjoy fundamental liberty and privacy rights of residence, home,

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family life, parental child-rearing and attendance at unitary public school 

systems throughout the said tri-county area beyond the City of Detroit as 

retained by the people as provided by the Ninth Amendment and within the 

zones of fundamental liberty and privacy rights guaranteed by the First, 

Fourth and Fifth Amendments and by the Due Process Clause of the Fourteenth 

Amendment.

D. That the Court enter a judgment declaring that the said fundamental 

liberty and privacy rights will be encroached upon, abridged, infringed and 

violated by any state-compelled or f ed er a 1 ~ c. omp el led transfer or transporta­

tion of school children to the Detroit public schools from public schools and 

places in said tri-county area beyond the City of Detroit for a so-called 

'limited' remedial purpose of eliminating or balancing the racial identity of 

Detroit public schools or making the same operate as a unitary Detroit school 

system or otherwise as may be claimed and requested by the plaintiffs.

E. That the Court grant the defendants-intervenors such other and 

further relief as the Court may deem appropriate and proper pursuant to 28 

USC 2202.

Dated: September 17, 1973

ROBERT J. LORD 
Attorney for Defendants- 
Intervenors Kerry Green et al. 

8388 Dixie Highway 
Fair Haven, Michigan 48023

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