Petition for Writ of Certiorari

    IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1972

BLOOMFIELD HILLS SCHOOL DISTRICT,
Petitioner

v.

STEPHEN J. ROTH, UNITED STATES DISTRICT JUDGE, 
EASTERN DISTRICT OF MICHIGAN,

Respondent

PETITION FOR WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT

CHARLES F. CLIPPERT 
1700 North Woodward 
P.O. Box 509
Bloomfield Hills, Michigan 48013 
Counsel for Petitioner

ROBERT V. PETERSON and 
DICKINSON, WRIGHT, McKEAN 
& CUDLIP

1700 North Woodward 
P.O. Box 509
Bloomfield Hills, Michigan 48013 
Of Counsel for Petitioner



■ ■

‘



1

INDEX

Page

OPINIONS AND ORDERS BELOW . . . . . . . . . . . ----- . . .  1

JURISDICTION......... ......................................... .. 1

QUESTIONS PRESENTED ............................................. 2

CONSTITUTIONAL PROVISIONS, STATUTES AND
RULES INVOLVED ..........................................................  2

STATEMENT OF THE CASE .................... .. 3

REASONS FOR GRANTING THE WRIT . . . ------------ - 4

I. The District Court Deprived Petitioner of Due Process 
of Law by Subjecting Petitioner to the June 14, 1972 
Ruling and Order in Bradley . . . . . . . . . . . . . . . . . . . .  4

II. The Imposition of the June 14 Ruling and Order 
in Bradley Upon Petitioner Is Jurisdictionally Defect­
ive Because of the District Court’s Failure To 
Convene a Three-Judge Court in That Case ................  6

III. The Court of Appeals Erred in Denying the Petition 
fo r Issuance o f a W rit o f Mandamus and/or 
Prohibition ................................................................... .. 8

CONCLUSION . . . . . . . . ----- . . . . . . . . . . . . . . . . . . . . . .  9

APPENDIX .................. ................... .. la



11

CITATIONS

Page
CASES

Allen v. State Board o f  Elections 393 U.S. 544 (1969) . . .  6

Armstrong v. Manzo 380 U.S. 545 (1965) . . . . . . . . . . . . .  5

Bradley, et al. v. Milliken, et al. 338 F. Supp. 582 (E.D.
Mich., 1 9 7 1 ) . . . . . . . . . . . . . . . . . . . . . . . . ___ . . . . . .  3

Bradley, et al. v. Milliken, et al. 345 F. Supp. 914 (E.D.
Mich., 1972)...............   1,3

Board o f Managers o f  Arkansas Training School v. George
377 F.2d 228 (C.A. 8, 1967) . . . . . . . . . . . . . . . . . . . . .  7

Jenkins v. McKeithen 395 U.S. 411 (1969) .........................  5
Kennedy v. Mendoza-Martinez 372 U.S. 144 (1963) . . . . .  6

Morrow v. District o f  Columbia 417 F.2d 728 (C.A. D.C.,
1969) ...............   9

Muskrat v. United States 219 U.S. 346 (1911) . . . . . . . . .  9

Phillips v. United States 312 U.S. 246 (1941) ....................  6

Roche v. Evaporated Milk Association 3 19 U.S. 21 (1943) 8

Sailors v. Kent Board o f  Education 387 U.S. 105 (1967) . 7

Spielman Motor Sales Co. v. Dodge 295 U.S. 89 (1934) . . 7

Stratton v. 56 ZowA S'. IV. Co. 282 U.S. 10 (1930) . . .  8

United States ex rel McNeill v. Tarumianz 242 F.2d 191 
(C.A. 3, 1957) . . . . . . . . ___ . . . . . . . . . . ........ ............. 7

L.B. Wilson, Inc. v. Federal Communications Commission
170 F.2d 793 (C.A. D.C., 1948) . . . . . . . . . . . . . . . . . .  5



Ill

CONSTITUTIONS Page

Art. VIII, Sec. 2, Mich. Const. 1963 ...................................... 2, 6

STATUTES

Title 28, U.S.C. §1254(1) ...................    2

Title 28,U.S.C. §1651 ..........................................   2 ,4

Title 28, U.S.C. §2281 ........................ ..............................  2, 6, 7, 8

MCLA 38.71, etseq. ............................................................... 7

MCLA 38.91 ..........................      2 ,7

MCLA 340.1,et seq...............    7

MCLA 340.77 ............................................................ • ........... 2 ,7

MCLA 340.352 .............................................• ........................  2, 5

MCLA 340.356 .......................................................................  2, 6

MCLA 340.569 .................. ...................................................  2, 7

MCLA 340.575 ....................................................................... 2, 7

MCLA 340.583 .......................................................................  2> 7

MCLA 340.589 ....................................................................... 2, 6

MCLA 340.614 .............    2 ,7

MCLA 340.882 ................................................................ .. 2, 7

MCLA 423.201, et seq.............................................................. 7

MCLA 423.209 ..................................................................... • 2 ,7

COURT RULES

Rule 21, F.R.A.P......................................................................   2 ,6 ,8

Rule 19, F.R.C.P.......................................................................  2 ,4



1

N o .___________
IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1972

BLOOMFIELD HILLS SCHOOL DISTRICT,

v.
STEPHEN J. ROTH, UNITED STATES 

EASTERN DISTRICT OF MICHIGAN,

Petitioner, 

DISTRICT JUDGE,

_______Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

The petitioner prays that a writ of certiorari be issued to review 
an Order of the United States Court of Appeals for the Sixth Cir­
cuit entered in this proceeding.

OPINIONS AND ORDERS BELOW

The June 14 Ruling and Order of the District Court in Bradley, 
et al. v. Milliken, et al. ( “Bradley”), which gave rise to the Petition 
for Writ of Mandamus and/or Prohibition referred to below is re­
ported at 345 F.Supp. 914 (E.D. Mich., 1972). The Ruling and 
Order appears in the Appendix (10a to 20a).[ 1 ]

The Court of Appeals entered an Order on July 17, 1972 deny­
ing p e t i t io n e r ’s application for Writ of Mandamus and/or 
Prohibition. An Order denying Petition for Rehearing was enter­
ed by the Court of Appeals on August 24, 1972. Neither Order has 
been reported. Each order appears in the Appendix (21a and 31a).

JURISDICTION

The Order of the Court of Appeals for the Sixth Circuit denying 
petitioner’s application for Writ of Mandamus and/or Prohibition 
was entered on July 17, 1972. A timely petition for rehearing was 
denied on August 24, 1972, and this petition for certiorari was 
filed within 90 days of that date. This Court’s jurisdiction is in-
^  Parenthetical page references followed by the letter “a” refer to  the 
page of the printed Appendix hereto.



2

voked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

I. Did the District Court deprive petitioner of due process of 
law and thereby usurp the jurisdiction vested in it by including 
petitioner in its June 14, 1972 Ruling and Order in Bradley in dis­
regard of the facts that petitioner was not a party to that action 
and has never been found to have committed any act of de jure 
segregation?

II. Did the District Court usurp the jurisdiction exclusively 
vested by Title 28, U.S.C. §2281 in a United States District Court 
of three judges by entering the June 14, 1972 Ruling and Order in 
Bradley which restrains the enforcement, operation and execution 
of various Michigan statutes?

III. Did the Court of Appeals err by denying the petition for 
issuance of a writ of mandamus and/or prohibition?

CONSTITUTIONAL PROVISIONS, STATUTES 
AND RULES INVOLVED

This case involves the Fifth Amendment to the Constitution of 
the United States; 62 Stat. 944, 63 Stat. 102, 28 U.S.C. § 1651(a); 
62 Stat. 968, 28 U.S.C. §2281; Rule 21 of the Federal Rules of 
Appellate Procedure; and Rule 19 of the Federal Rules of Civil 
Procedure. These are reprinted in pertinent part in the Appendix 
at 32a to 33a.

Reference is made in this petition to the following provisions of 
the Michigan School Code of 1955 which are reprinted in the 
Appendix in pertinent part at 23a to 25a: MCLA 340.77; MCLA 
3 4 0 .3 5 2 ; MCLA 340.356; MCLA 340.569; MCLA 340.575; 
MCLA 3 4 0 .5 8 3 ; MCLA 340.589; MCLA 340.614; MCLA 
340.882.

Reference is also made in this petition to Article VIII, Section 2 
of the Michigan Constitution of 1963; MCLA 38.91 and MCLA 
423.209. These are reprinted in pertinent part in the Appendix 
at 33a to 34a.



3

STATEMENT OF THE CASE

Petitioner is a school district located in Oakland County, Mich­
igan, organized and existing under the Constitution and laws of 
the State of Michigan. It is a body corporate under the law of 
Michigan with independent legal status and possesses broad powers 
with respect to educating approximately 9300 public school child­
ren within its geographical boundaries.

On September 27, 1971, the Hon. Stephen I. Roth, U.S. Dis­
trict Judge, issued a Ruling on Issue of Segregation in Bradley, et 
al. v. Milliken, et al, (338 F.Supp. 582, 594, [E.D. Mich., 1971]) 
finding a “de jure segregated school system In operation in the 
City of Detroit.” On June 14, 1972, Judge Roth entered an Order 
in Bradley denominated Ruling on Desegregation Area and Order 
for Development of Plan of Desegregation (345 F.Supp. 914 [E.D. 
Mich., 1972]) which, inter alia, mandates pupil reassignment to 
accomplish desegregation of the Detroit public schools within a 
geographical area encompassing Detroit and some 53 additional 
school districts (13a).

The June 14 Ruling and Order includes petitioner within the 
geographic area which the trial judge deemed requisite for the 
achievement of a racial mix to correct the segregated condition 
found by him to exist in the Detroit public schools (14a). Petition­
er was included within such area notwithstanding the facts that: 
(1) Petitioner is not and never has been a party to the proceedings 
in which the holding of de jure segregation relating to the Detroit 
schools was made or which considered the appropriateness of a 
metropolitan remedy, and (2) no claim or finding has been made 
in Bradley or any other action that petitioner has committed any 
act of de jure segregation.

Furthermore, the June 14 Ruling and Order restrains petitioner 
in the  enforcem ent, operation or execution of the powers 
conferred and the duties imposed upon it by the Constitution and 
laws of the State of Michigan. Illustrations of such restraints and 
the statutes with respect thereto are set forth in the Appendix (4a, 
5a and 23a-25a).

On June 29, 1972, petitioner filed a Petition for Writ of Manda­
mus and/or Prohibition (2a) in the Court of Appeals pursuant to



4

the All Writs Statute (28 U.S.C. § 1651). The petition was denied 
without a hearing by an Order entered July 17, 1972 (21a). A 
Petition for Rehearing and Suggestion for Hearing In Banc (22a) 
was filed in the Court of Appeals on July 27, 1972. The Petition 
for Rehearing was denied without a hearing on August 24, 1972 
(31a).

On July 20, 1972, the U.S. District Court in Bradley made a 
determination of finality as to certain orders entered therein, thus 
enabling the parties to that cause to take an appeal. Petitioner, a 
non-party, had no right to appeal in Bradley.

The appeal in Bradley was argued in the Court of Appeals on 
August 24, 1972 and briefs have been submitted by the parties. 
The Court of Appeals has not yet rendered its opinion.

Disposition of the appeal in Bradley may render this petition 
moot. It is respectfully requested, therefore, that this petition for 
writ of certiorari be held in abeyance pending final action by the 
Court of Appeals in Bradley. Petitioner will promptly advise the 
Court of its desire to press this petition or withdraw it, depending 
upon such final action by the Court of Appeals.

REASONS FOR GRANTING THE WRIT

L THE DISTRICT COURT DEPRIVED PETITIONER OF DUE 
PROCESS OF LAW BY SUBJECTING PETITIONER TO 
THE JUNE 14, 1972 RULING AND ORDER IN BRADLEY.

Petitioner is subjected to the June 14, 1972 Ruling and Order in 
Bradley even though it is not and never has been a party to 
Bradley. No claim or finding of de jure segregation has been made 
against it. As a non-party, petitioner has had no opportunity to 
examine or cross-examine any witnesses in Bradley or present 
evidence or oral argument therein.

The naked inclusion of petitioner within the ambit of the June 
14 Ruling and Order in Bradley contravenes Rule 19 F.R.C.P. but, 
more importantly, is a brazen denial of petitioner’s right to 
fundamental due process.

“The due process clause of the Fifth Amendment provides that
no person shall be deprived of life, liberty or property without



5

due process of law. An essential element of due process is an 
opportunity to be heard before the reaching of a judgment. By 
due process of law is meant ‘a law, which hears before it 
condemns; which proceeds upon inquiry, and renders judgment 
only after tr ia l’ Trustees of Dartmouth College v. Woodward, 
U.S. 1819, 4 Wheat. 518, 581, 4 L.Ed. 629 (Webster’s argu­
ment). As said in Galpin v. Page, U.S. 1873, 18 Wall. 350, 368, 
21 L.Ed. 959: Tt is a rule as old as the law, and never more to 
be respected than now, that no one shall be personally bound 
until he has had his day in court, by which is meant, until he 
has been duly cited to appear, and has been afforded an oppor­
tunity to be heard. Judgment without such citation and oppor­
tunity wants all the attributes of a judicial determination; it is 
judicial usurpation and oppression, and never can be upheld 
where justice is justly administered.’ (Italics supplied).” L.B. 
Wilson, Inc. v. Federal Communications Commission, 170 F.2d 
793, 802 (C.A. D.C., 1948)

“A fundamental requirement of due process is The opportun­
ity to be heard.’ *** It is an opportunity which must be granted 
at a meaningful time and in a meaningful manner.” Armstrong 
v. Manzo, 380 U.S. 545, 552 (1965)

“We have frequently emphasized that the right to confront 
and cross-exam ine witnesses is a fundamental aspect of 
procedural due process.” Jenkins v. McKeithen, 395 U.S. 411, 
428(1969)

The June 14 Ruling and Order in Bradley constitutes a usurpation 
of judicial power over petitioner. Consequently, the proceedings in 
Bradley are void as to petitioner.

School districts in Michigan, which are recognized in the 1963 
Michigan Constitution and established by the legislature, are 
corporate bodies having independent legal status. MCLA 340.352 
(24a). Petitioner, therefore, is independent of other defendants in 
Bradley and is independently entitled to fundamental due process.

The subjection of petitioner, a non-party, to the ruling in 
Bradley and, indeed, the imposition of a host of burdens upon 
petitioner without any hearing or finding with respect to petition­



6

er presents an extreme departure from the accepted and usual 
course of judicial proceedings. The District Court’s departure was 
sanctioned by the Court of Appeals through its refusal to even 
grant a hearing on petitioner’s Rule 21 F.R.A.P. Petition for Writ 
of Mandamus and/or Prohibition in that Court. The failure to 
afford fundamental due process in these proceedings calls for this 
Court’s exercise of its power of supervision.

II. THE IMPOSITION OF THE JUNE 14 RULING AND 
ORDER IN BRADLEY  UPON PETITIONER IS JURIS- 
D IC T IO N A L L Y  D EFECTIV E BECAUSE OF THE 
DISTRICT COURT’S FAILURE TO CONVENE A THREE- 
JUDGE COURT IN THAT CASE.

Reduced to its essence, Title 28 U.S.C. §2281 prohibits a one- 
judge district court from enjoining the enforcement, operation or 
execution by state officials of state statutes of general application 
upon the ground that such statutes violate the Constitution of the 
United States. The purpose of §2281 is “to prevent a single fed­
eral judge from being able to paralyze totally the operation of an 
entire regulatory scheme.. .by issuance of a broad injunctive order’’ 
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154 (1963), and to 
provide “procedural protection against an improvident state-wide 
doom by a federal court of a state’s legislative policy,” Phillips v. 
United States, 312 U.S. 246, 251 (1941). While it is true that 
§2281 must be strictly construed (Allen v. State Board o f Elec­
tions, 393 U.S. 544, 561 [19691), all of the statutory requisites 
were present in Bradley when the June 14 Ruling and Order was 
issued.

The June 14 Ruling and Order in Bradley interdicts petitioner 
in the enforcement, operation or execution of powers conferred 
and duties imposed upon it by the 1963 Constitution and statutes 
of Michigan. Illustrative of the injunctive effect of that Order are 
the restraints imposed upon petitioner in carrying out the follow­
ing responsibilities:

(a) The provision of educational opportunities to resident 
pupils within the school district. Art. VIII, Sec. 2, Const. 
1963; MCLA 340.356, 340.589. (See, 13a).

(b) The employment and allocation of teaching and adminis­



7

trative staff to educate resident pupils upon terms satis­
factory to the school district. MCLA 340.569, 423.209, 
38.91. (See, 15a).

(c) The construction, expansion and use of school facilities. 
MCLA 340.77. (See, 16a).

(d) The establishment of curriculum, activities and standards 
o f conduct and providing for the safety of students, 
faculty, staff and parents within the school district. MCLA 
340.575, 340.583, 340.614, 340.882. (See, 16a).

The effect of the June 14 Ruling and Order upon statutes of 
statewide application within the “desegregation area” is well 
summarized in the interim report filed by the Michigan Super­
intendent of Public Instruction in the District Court in Bradley 
(29a, 30a).

It is clear that the June 14 Ruling and Order enjoins statutes of 
statewide application rather than statutes which are local in 
application. Sailors v. Kent Board o f  Education, 387 U.S. 105 
(1967). The school board of petitioner is composed of “state 
officers” within the meaning of §2281 because the board is 
charged with the duty of enforcing policies of statewide concern 
as set forth in the 1963 Michigan Constitution, the Michigan 
School Code of 1955 (MCLA 340.1 et seq.), Teachers’ Tenure Act 
(MCLA 38.71 et seq.) and Public Employment Relations Act 
(MCLA 423.201 et seq.) within the geographical Emits of each 
school district. See, Spielman Motor Sales Co. v. Dodge, 295 U.S. 
89 (1934).

The June 14 Ruling and Order in Bradley is predicated upon a 
finding that the Michigan statutory educational structure is un­
c o n s titu tio n a l. I t  would be a “contradiction o f  reason, a 
usurpation o f  power” to attempt to enjoin the enforcement of a 
statute and at the same time not pass upon the constitutionality of 
the statute. United States ex rel. McNeill v. Tarumianz, 242 F.2d 
191, 195 (C.A. 3, 1957); Board o f  Managers o f  Arkansas Training 
School v. George, 377 F.2d 228, 231 (C.A. 8, 1967).

Clearly, it is a “contradiction of reason” to restrain petitioner 
by the June 14 Ruling and Order from the enforcement, operation



8

and execution of the powers granted to it under the 1963 Mich­
igan Constitution and nonsegregative statutes of the State of Mich­
igan, thereby nullifying the Michigan educational system as 
defined by legislative enactments and not pass upon the cons­
titutionality o f  such legislative enactments. Under the mandate of 
§2281, only a three-judge district court may determine the cons­
titutionality of such laws, enforcement of which is interdicted in 
the one-judge June 14 Ruling and Order.

An Order entered by a single district judge where a three-judge 
court should have been convened is void as being beyond the 
court’s jurisdiction. Stratton v. St. Louis S.W. Ry. Co., 282 U.S. 
10 (1930). The June 14 Ruling and Order was entered without 
jurisdiction in the District Court and therefore such an order 
cannot be binding upon petitioner. It constitutes a departure from 
the accepted and usual course of judicial proceedings. The Court 
of Appeals sanctioned such a departure by the District Court 
through its refusal even to grant a hearing on petitioner’s Rule 21
F.R.A.P. Petition for Writ of Mandamus and/or Prohibition. The 
failure to set aside the June 14 Ruling and Order in Bradley, as it 
applied to petitioner, calls for this Court’s exercise of its power of 
supervision.

HI. THE COURT OF APPEALS ERRED IN DENYING THE 
PETITION FOR ISSUANCE OF A WRIT OF MANDAMUS 
AND/OR PROHIBITION.

The Writ of Mandamus and/or Prohibition sought by petitioner 
in the Court of Appeals is the writ traditionally used to confine an 
inferior court to a lawful exercise of its prescribed jurisdiction. 
Roche v. Evaporated Milk Association, 319 U.S. 21, 26 (1943). By 
the June 14, 1972 Ruling and Order in Bradley, the District Court 
has exceeded its jurisdiction in two respects:

(a) Petitioner has never been a party to the proceedings in 
Bradley. No claim or finding has been made with respect to 
petitioner in that action. Petitioner has been afforded no hear­
ing. Absent these basic requirements of due process, the District 
Court is without jurisdiction over petitioner.

(b) The June 14, 1972 Ruling and Order enjoins the oper­
ation of numerous provisions of state law on the ground of the



9

unconstitutionality thereof. The one-judge District Court was 
without jurisdiction to enter such an Order.

The District Court’s failure to afford due process to petitioner is 
of vital concern not only to petitioner but to every school district 
in Michigan and the pupils, teachers, staff and residents thereof. A 
m a tte r  o f such “ pub lic  im portance” makes this a “case 
appropriate for the extraordinary writs.” Morrow v. District o f  
Columbia, 417 F.2d 728, 736, 737 (C.A. D.C., 1969).

Notwithstanding the foregoing, petitioner is subjected to the 
June 14 Ruling and Order in Bradley. This novel and unprecedent­
ed usurpation of judicial power by the District Court was un­
checked by the Courrt of Appeals in proceedings brought by peti­
tioner before it. This Court, therefore, should grant the within 
petition to the end that judicial power in these proceedings once 
again becomes “the power of a court to decide and pronounce a 
judgment and carry it into effect between persons and parties who 
bring a case before it for decision. ” Muskrat v. United States, 219 
U.S. 346, 356 (1911) (emphasis supplied).

CONCLUSION

For the reasons set forth above (but subject to the request set 
forth in the STATEMENT OF THE CASE to hold this petition in 
abeyance), petitioner prays for the issuance of a writ of certiorari 
to the Court of Appeals for the Sixth Circuit.

Respectfully submitted,

CHARLES F. CLIPPERT 
1700 North Woodward 
P.O. Box 509
Bloomfield Hills, Michigan 48013 
Counsel for Petitioner

ROBERT V. PETERSON and
DICKINSON, WRIGHT, McKEAN & CUDLIP 

1700 North Woodward 
P.O. Box 509
Bloomfield Hills, Michigan 48013 
Of Counsel for Petitioner



APPENDIX



la

INDEX TO APPENDIX

Petition for Writ of Mandamus and/or Prohibition . . . . .  2a

Ruling on Desegregation Area and Order for 
Development of Plan of Desegregation (Exhibit A 
to Petition)........................  10a

Letter dated July 12, 1972 supplementing Petition . . . .  19a

Order entered July 17, 1972 . . . . . . . . . . . . . . . . . . . . .  21a

Petition for Rehearing and Suggestion for Hearing
In Banc ........................................   22a

Order Denying Petition for Rehearing entered
August 24, 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . .  31a

Constitutional Provisions, Statutes and Rules Involved . . 32a



2a

UNITED STATES OF AMERICA 
IN THE COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BLOOMFIELD HILLS SCHOOL DIS­
TRICT,

Petitioner

vs.

STEPHEN J. ROTH, UNITED 
STATES DISTRICT JUDGE,

Respondent

No. 72-1651

PETITION FOR WRIT OF MANDAMUS 
AND/OR PROHIBITION

NOW COMES Bloomfield Hills School District, a Michigan body 
corporate, Petitioner, and petitions this Court, pursuant to the All 
Writs Statute (28 U.S.C. § 1651), to issue a writ of mandamus 
and/or prohibition directing Respondent Stephen J. Roth, Judge 
of the United States District Court for the Eastern District of 
Michigan, to:

(i) Delete the geographical area encompassed by Petitioner’s 
boundaries from the “desegregation area described in Paragraph 
II A of Respondent’s June 14, 1972 Ruling on Desegregation Area 
and Order for Development of Plan of Desegregation! (“June 14, 
1972 Ruling and Order”) in Bradley, et al. v. Milliken, et al., Civil 
Action No. 35257, United States District Court for the Eastern 
District of Michigan, Southern Division; and

(ii) Refrain from enforcing each provision of Respondent’s 
June 14, 1972 Ruling and Order which restrains Petitioner from 
exercising the powers conferred and discharging the duties 
imposed upon it by the 1963 Constitution and statutes of the 
State of Michigan.

FACTS SUPPORTING THIS PETITION
1. Petitioner is a Michigan school district classified by the 

Michigan School Code of 1955 (MCLA §§ 340.1, et secj.) as a

1 See copy attached as Exhibit A.



3a

fourth class district. Based upon data collected for the 1971-72 
school year, Petitioner has a pupil enrollment of 9,353 students. 
Approximately 45.25% of these students are enrolled in K-6 
elementary schools. In 1970-71, Petitioner ranked 45th in pupil 
enrollment among the 527 K-12 local school districts in Michigan. 
Approximately 86% of the taxable property in the school district 
is residential and 80.5% of Petitioner’s school operating budget is 
derived from local sources of revenue. Petitioner’s staff consists 
of: (i) 42 instructional and non-instructional administrative 
personnel; (ii) 474 teachers and teacher aides who are represented 
by Bloomfield Hills Education Association and are employed 
under a contract covering wages, hours and conditions of 
employment which will expire on August 28, 1973; (iii) 236 
support service employees who are represented by American 
Federation of State, County and Municipal Employees (Locals 
1384A and 1883A) and are employed under contracts covering 
wages, hours and conditions of employement which will expire on 
August 31, 1973 and December 31, 1973. Petitioner owns 16 
classroom school buildings located within the district and has a 
bonded indebtedness at the date hereof of $22,930,000, having 
maturities from July, 1972 through 1996.

2. Bradley v. Milliken was commenced on August 18, 1970, by 
the filing of a complaint which alleged the unconstitutionality of a 
Michigan statute which was applicable only to the City of Detroit 
school district and further claimed that plaintiffs’ constitutional 
rights were violated because of the segregated pattern of pupil 
assignments and racial identifiability of schools within the City of 
Detroit school system. The complaint has never been amended and 
at no time have the pleadings alleged that any school system other 
than the Detroit system has failed to maintain a unitary system of 
schools. A trial on the question of de jure segregation in the 
Detroit schools was held in Respondent’s court and concluded on 
July 22, 1971. On September 27, 1971, Respondent entered his 
Ruling on Issue of Segregation which was limited to the finding 
that illegal segregation exists in the public schools of the City of 
Detroit. Plans of desegregation involving only the Detroit schools 
as well as plans involving the metropolitan area school districts 
were subsequently filed with Respondent. Respondent received 
evidence from the original parties and intervenors relating to such 
plans. New intervenors (certain school districts, not including



4a

Petitioner) participated in the proceedings on the restricted basis 
outlined in Respondent’s March 15, 1972 Order. On March 24, 
1972, Respondent ruled that he could properly order a 
metropolitan plan to accomplish desegregation of the Detroit 
schools. On June 14, 1972, Respondent entered his Ruling and 
Order. That Order includes Petitioner within the geographic area 
that Respondent deemed necessary to achieve the racial mix 
required to correct the segregated conditions he found to exist in 
the Detroit schools.

3. Petitioner is not and never has been a party to the 
proceedings in which the holding of de jure segregation relating to 
Detroit was made or which considered the appropriateness of a 
tri-county remedy, nor has any claim ever been made tnat 
Petitioner has commited any act of de jure segregation.

4. A motion to join Petitioner, together with other school 
districts in the tri-county area, as a party defendant, was filed by 
intervening defendants Denise Magdowski, et al., on July 12, 
1971, but Respondent has refused to act upon their motion.

5. The first paragraph of Respondent’s June 14, 1972 Findings 
of Fact and Conclusions of Law in Support of Ruling on 
Desegregation Area and Development of Plan specifically states 
that Respondent “has taken no proofs with respect to . . . the 
issue of whether, with the exclusion of the City of Detroit school 
district, such school districts [all 86 school districts, including 
Petitioner, located within Wayne, Oakland and Macomb Counties! 
have commited acts of de jure segregation.”

6. Among the powers conferred and duties imposed upon 
Petitioner by the Michigan School Code of 1955 are the following: 
(i) To sue and be sued in its name, (ii) to purchase personal and 
real property for educational purposes, (iii) to employ a 
superintendent, administrative personnel and teachers for the 
education of its pupils, (iv) to establish courses of studies and 
select text books to be utilized therein, and (v) otherwise to 
establish policies for the education of the pupils residing within its 
corporate limits.^
2 See MCLA §§ 340.353; 340.77; 340.66; 340.569; 340.583; 340.882; 
340.575; 340.578; 340.613; 340.614 as illustrative of the powers and duties 
set forth.



5a

7. Respondent’s June 14, 1972 Ruling and Order restrains 
Petitioner in the enforcement, operation or execution of the 
powers conferred and the duties imposed upon it by the 1963 
Constitution and statutes of the State of Michigan in the following 
respects:

(a) The allocation of Petitioner’s staff or other services and 
the expenditures therefore. (11 I C)

(b) The enrollment in and attendance at Petitioner’s schools 
only of children who are residents, (11 II B, C, D, E)

(c) The employment of qualified teachers to educate 
resident pupils upon terms satisfactory to Petitioner. ( f  
II F, G)

(d) The use of Petitioner’s school facilities. (11 II H)

(e) The construction or expansion of school facilities. (11 II
I)

(f) The curriculum, activities and standards of conduct; the 
dignity and safety of Petitioner’s students, faculty, staff 
and parents. (11 II K)

Like restraints are imposed upon the other 53 school districts 
included within Respondent’s June 14, 1972 Ruling and Order.

8. Respondent’s June 14, 1972 Ruling and Order restrains the 
Michigan State Board of Education and the Superintendent of 
Public Instruction in the enforcement, operation or execution of 
the powers conferred and the duties imposed upon each of them 
by the 1963 Constitution and statutes of the State of Michigan in 
the following respects:

(a) The construction of new school facilities and the 
expansion of existing facilities. (11 III)

(b) The training and use of faculty and staff and the 
conduct of extra-curricular activities. (11 II L)

ISSUES PRESENTED

1. Did Respondent deprive Petitioner of due process of law 
and thereby usurp the jurisdiction vested in him as a United States



6a

District Judge by subjecting Petitioner to his June 14, 1972 Ruling 
and Order in disregard of the facts that Petitioner was not a party 
to the action and was not found to have committed any act of de 
jure segregation?

2. Did Respondent usurp the jurisdiction exclusively vested by 
Title 28, USC § 2281 in a United States District Court of three 
judges by entering the June 14, 1972 Ruling and Order which 
restrains the enforcement, operation and execution of various 
Michigan statutes?

REASONS WHY WRIT SHOULD ISSUE

I. As a non-party, Petitioner cannot appeal Respondent’s June 
14, 1972 Ruling and Order. That order has immense impact upon 
the 9,300 children being educated by Petitioner and upon the 
770,000 other children being educated within the 54 districts the 
order affects. The totally unknown effects which massive 
tri-county busing may have upon the education and safety of these 
children as well as the undeterminable cost in time and dollars of 
the order’s implementation make this a matter of “public 
importance” and a “case appropriate for the extraordinary writs.” 
Morrow v. District o f  Columbia, 417 F.2d 728 (C.A. D.C. 1969) at 
736,737.

II. Petitioner seeks the writ traditionally used to confine an 
inferior court to a lawful exercise of its prescribed jurisdiction. 
Roche v. Evaporated Milk Association, 319 U.S. 21 (1943) at 26. 
Petitioner is not and never has been a party to Bradley y.Milliken. 
Only parties who have been properly subjected to a federal court’s 
in personam jurisdiction, and those who have been shown to have 
acted in concert with such parties, can be legally subjected to the 
provisions of its injunctive orders. FRCP, Rule 65(d), specifically 
states: “Every order granting an injunction. . .is binding only upon 
the parties to the action, their officers, agents, servants, 
employees, and attorneys, and upon those persons that act in 
concert or participation with them. . . . ”

The evils prohibited by this provision of Rule 65 were 
articulated by Judge Learned Hand in Alemite Manufacturing 
Corporation v. Staff, 42 F.2d 832, 833 (2d Cir. 1930), as follows:



7a

. .no court can make a decree which will bind anyone but a 
party; a court of equity is as much so limited as a court of 
law; it cannot lawfully enjoin the world at large, no matter 
how broadly it words its decree. If it assumes to do so, the 
decree is pro tanto brutum fulmen, and the persons enjoined 
are free to ignore it. It is not vested with sovereign powers to 
declare conduct unlawful; its jurisdiction is limited to those 
over whom it gets personal service, and who therefore can 
have their day in court.

* * *

“This is far from being a formal distinction; it goes deep 
into powers of a court of equity. . . .It is by ignoring such 
procedural limitations that the injunction of a court of 
equity may by slow steps be made to realize the worst fears 
of those who are jealous of its prerogative.”

In addition, Respondent has acknowledged that he has taken no 
proofs as to whether Petitioner or the other affected school 
districts (with the exception of the Detroit school district) have 
committed acts of de jure segregation. Absent such a finding, 
Respondent’s remedial powers cannot extend to Petitioner. Swann 
v. Charlotte-Mecklenburg Board o f  Education, 402 U.S. 1 (1971); 
Spencer v. Kugler, 326 F. Supp. 1235 (1971), a ff’d. 92 Sup. Ct. 
707 (1972).

III. The aim of Congress in creating United States district 
courts of three judges was to erect “procedural protection against 
an improvident state-wide doom by a federal court of a state’s 
legislative policy.” Phillips v. United States, 312 U.S. 246, 251 
(1940). The legislative history of Title 28 USC § 2281 indicates 
that the section was “enacted to prevent a single federal judge 
from being able to paralyze totally the operation of an entire 
[state] regulatory scheme by issuance of a broad injunctive 
order.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154 (1962). 
Other decisions of the United States Supreme Court represent 
“unmistakable recognition of the congressional policy to provide 
for a three-judge court whenever a state statute is sought to be 
enjoined on grounds of federal unconstitutionality. . . .” Florida 
Lime Growers v. Jacobsen, 362 U.S. 73, 81 (1959).



8a

Where such circumstances are present, the case is one that is 
‘required by. . .Act of Congress to be determined by a district 
court of three judges.’ 28 USC § 1253. (Emphasis added.) 
Florida Lime Growers, supra, at 85.

It is manifest that Respondent’s June 14, 1972 Ruling and 
Order enjoins Petitioner (and 53 other tri-county school disctricts) 
from exercising and discharging a veritable host of powers and 
duties conferred upon each of them by the Michigan School Code 
of 1955. See paragraphs 7 and 8 of Facts, supra. Beyond all this, 
Respondent baldly orders the State Superintendent of Public 
Instruction to ignore state law in his recommendations to 
Respondent, if such law “conflicts with what is necessary to 
achieve the objectives of” Respondent’s June 14, 1972 Ruling and 
Order. If ever an order of an individual United States District 
Judge “paralyzes” or “dooms” a state’s legislative policy, the 
order in question is it. One can scarcely imagine a clearer case for 
application of the principle enunciated in Phillips, supra. The 
780,000 school children residing in the affected geographic area, 
together with their parents, teachers and school administrators, are 
without doubt entitled to the procedural protection afforded, m 
Congress’ wisdom and through its mandate, by a court of three 
judges. The convictions, and indeed prejudices, of an individual 
judge, no matter how learned, must be tempered when an 
injunction having the disruptive and dismantling effects of 
Respondent’s June 14, 1972 Ruling and Order is at issue.

INTERIM RELIEF REQUESTED

To implement the Writ of Mandamus and/or Prohibition sought 
herein by Petitioner, Petitioner prays this Court to stay or suspend 
forthwith the proceedings, at least to the extent they affect 
Petitioner, contemplated by Respondent’s June 14, 1972 Order 
and Ruling until such time as the ruling relative to this Petition has
occurred.



9a

ULTIMATE RELIEF REQUESTED 

Issuance of the writ herein requested.

DICKINSON, WRIGHT, McKEAN & CUDLIP 

By: /s/ Fred W. Freeman

I/s/ Charles F. Clipper!

/s/ Robert V. Peterson ' *

A ttorneys for Petitioners 
Bloomfield Hills School District 
1700 North Woodward Avenue 
P. O. Box 509
Bloomfield Hills, Michigan 48013 
(313) 646-4300

Dated: June 26, 1972



10a

EXHIBIT A

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs

v.
WILLIAM G. MILLIKEN, et al.,

Defendants
and

D E T R OIT FEDERATION OF 
TEACHERS, LOCAL 231, AMER­
ICAN FEDERATION OF TEACH-

CIVIL ACTION 
No. 35257

ERS, AFL-CIO,
Defendant-
Intervenor

and
DENISE MAGDOWSKI, et al.,

Defendants-

et al.
Intervenor

RULING ON DESEGREGATION AREA
AND

ORDER FOR DEVELOPMENT OF PLAN OF DESEGREGATION

On September 27, 1971 the court made its Ruling on Issue of 
Segregation, holding 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. Having found a constitutional violation as established, 
on October 4, 1971 the court directed the school board 
defendants, City and State, to develop and submit plans of 
desegregation, designed to achieve the greatest possible degree of 
actual desegregation, taking into account the practicalities of the 
situation. The directive called for the submission of both a



11a

“Detroit-only” and a “Metropolitan” plan.

Plans for the desegregation of the Detroit schools were 
submitted by the Detroit Board of Education and by the 
plaintiffs. Following five days of hearings the court found that 
while plaintiffs’ plan would accomplish more desegregation than 
now obtains in the system, or which would be achieved under 
either Plan A or C of the Detroit Board of Education submissions, 
none of the plans would result in the desegregation of the public 
schools of the Detroit school district. The court, in its findings of 
fact and conclusions of law, concluded that “relief of segregation 
in the Detroit public schools cannot be accomplished within the 
corporate geographical limits of the city,” and that it had the 
authority and the duty to look beyond such limits for a solution 
to the illegal segregation in the Detroit public schools. 
Accordingly, the court ruled, it had to consider a metropolitan 
remedy for segregation.

The parties submitted a number of plans for metropolitan 
desegregation. The State Board of Education submitted six - 
without recommendation, and without indication any preference. 
With the exception of one of these, none could be considered as 
designed to accomplish desegregation. On the other hand the 
proposals of intervening defendant Magdowski, et al., the Detroit 
Board of Education and the plaintiffs were all good faith efforts to 
accomplish desegregation in the Detroit metropolitan area. The 
three plans submitted by these parties have many similarities, and 
all of them propose to incorporate, geographically, most-and in 
one instance, all-of the three-county area of Wayne, Oakland and 
Macomb.

The hearing on the proposals have set the framework, and have 
articulated the criteria and considerations, for developing and 
evaluating an effective plan of metropolitan desegregation. None 
of the submissions represent a complete plan for the effective and 
equitable desegregation of the metropolitan area, capable of 
implementation in its present form. The court will therefore draw 
upon the resources of the parties to devise, pursuant to its 
direction, a constitutional plan of desegregation of the Detroit 
public schools.



12a

Based on the entire record herein, the previous oral and written 
rulings and orders of this court, and the Findings of Fact and 
Conclusions of Law filed herewith, IT IS ORDERED:

I.

A. As a panel charged with the responsibility of preparing and 
submitting an effective desegretation plan in accordance with the 
provisions of this order, the court appoints the following:

1. A designee of the State Superintendent of Public
Instruction;*

2. Harold Wagner, Supervisor of the Transportation Unit in
the Safety and Traffic Education Program of the State
Department of Education;

3. Merle Henrickson, Detroit Board of Education;

4. Aubrey McCutcheon, Detroit Board of Education;

5. Freeman Flynn, Detroit Board of Education;

6. Gordon Foster, expert for plaintiffs;

7. Richard Morshead, representing defendant Magdowski, et 
ah;

8. A designee of the newly intervening defendants;*

9. Rita Scott, of the Michigan Civil Rights Commission.

Should any designated member of this panel be unable to serve, 
the other members of the panel shall elect any necessary 
replacements, upon notice to the court and the parties. In the 
absence of objections within five days of the notice, and pending a 
final ruling, such designated replacement shall act as a member of 
the panel.

*The designees of the State Superintendent of Public Instruction and newly 
intervening defendants shall be communicated to  the court w ithin seven days 
of the entry of this order. In the event the newly intervening defendants 
cannot agree upon a designee, they may each submit a nominee within seven 
days from the entry of this order, and the court shall select one of the 
nominees as representative of said defendants.



13a

B. As soon as possible, but in no event later than 45 days after 
the issuance of this order, the panel is to develop a plan for the 
assignment of pupils as set forth below in order to provide the 
maximum actual desegregation, and shall develop as well a plan for 
the transportation of pupils, for implementation for all grades, 
schools and clusters in the desegregation area. Insofar as required 
by the circumstances, which are to be detailed in particular, the 
panel may recommend immediate implementation of an interim 
desegregation plan for grades K-6, K-8 or K-9 in all or in as many 
clusters as practicable, with complete and final desegregation to 
proceed in no event later than the fall 1973 term. In its 
transportation plan the panel shall, to meet the needs of the 
proposed pupil assignment plan, make recommendations, includ­
ing the shortest possible timetable, for acquiring sufficient 
additional transportation facilities for any interim or final plan of 
desegregation. Such recommendations shall be filed forthwith and 
in no event later than 45 days after the entry of this order. Should 
it develop that some additional transportation equipment is 
needed for an interim plan, the panel shall make recommendations 
for such acquisition within 20 days of this order.

C. The parties, their agents, employees, successors and all others 
having actual notice of this order shall cooperate fully with the 
panel in their assigned mission, including, but not limited to, the 
provision of data and reasonable full and part-time staff assistance 
as requested by the panel. The State defendants shall provide 
support, accreditation, funds, and otherwise take all actions 
necessary to insure that local officials and employees cooperate 
fully with the panel. All reasonable costs incurred by the panel 
shall be borne by the State defendants; provided, however, that 
staff assistance or other services provided by any school district, 
its employees or agents, shall be without charge, and the cost 
thereof shall be borne by such school district.

II.

A. Pupil reassignment to accomplish desegregation of the 
Detroit public schools is required within the geographical area 
which may be described as encompassing the following school 
districts (see Exhibit P.M. 12), and hereinafter referred to as the 
“desegregation area” :



14a

Lakeshore Birmingham Fair lane
Lakeview Hazel Park Garden City
Roseville Highland Park North Dearborn Heights
South Lake Royal Oak Cherry Hill
East Detroit Berkley Inkster
Grosse Pointe Ferndale Wayne
Centerline Southfield Westwood
Fitzgerald Bloomfield Hills Ecorse
Van Dyke Oak Park Romulus
Fraser Redford Union Taylor
Harper Woods West Bloomfield River Rouge
Warren Clarenceville Riverview
Warren Woods Farmington Wyandotte
Clawson Livonia Allen Park
Hamtramck South Redford Lincoln Park
Lamphere Crestwood Melvindale
Madison Heights Dearborn Southgate
Troy Dearborn Heights Detroit

Provided, however, that if in the actual assignment of pupils it 
appears necessary and feasible to achieve effective and complete 
racial desegregation to reassign pupils of another district or other 
districts, the desegregation panel may, upon notice to the parties, 
apply to the Court for an appropriate modification of this order.

B. Within the limitations of reasonable travel time and distance 
factors, pupil reassignments shall be effected within the clusters 
described in Exhibit P.M. 12 so as to achieve the greatest degree of 
actual desegregation to the end that, upon implementation, no 
school, grade or classroom be substantially disproportionate to the 
overall pupil racial composition. The panel may, upon notice to 
the parties, recommend reorganization of clusters within the 
desegregation area in order to minimize administrative inconven­
ience, or time and/or numbers of pupils requiring transportation.

C. Appropriate and safe transportation arrangements shall be 
made available without cost to all pupils assigned to schools 
deemed by the panel to be other than “walk-in” schools.

D. Consistent with the requirements of maximum actual 
desegregation, every effort should be made to minimize the 
numbers of pupils to be reassigned and requiring transportation, 
the time pupils spend in transit, and the number and cost of new 
transportation facilities to be acquired by utilizing such techniques 
as clustering, the “skip” technique, island zoning, reasonable



15a

staggering of school hours, and maximization of use of existing 
transportation facilities, including buses owned or leased by school 
districts and buses operated by public transit authorities and 
private charter companies. The panel shall develop appropriate 
recommendations for limiting transfers which affect the 
desegregation of particular schools.

E. Transportation and pupil assignment shall, to the extent 
consistent with maximum feasible desegregation, be a two-way 
process with both black and white pupils sharing the responsibility 
for transportation requirements at all grade levels. In the 
determination of the utilization of existing, and the construction 
of new, facilities, care shall be taken to randomize the location of 
particular grade levels.

F. Faculty and staff shall be reassigned, in keeping with pupil 
desegregation, so as to prevent the creation or continuation of the 
identification of schools by reference to past racial composition, 
or the continuation of substantially disproportionate racial 
composition of the faculty and staffs, of the schools in the 
desegregation area. The faculty and staffs assigned to the schools 
within the desegregation area shall be substantially desegregated, 
bearing in mind, however, that the desideratum is the balance of 
faculty and staff by qualifications for subject and grade level, and 
then by race, experience and sex. In the context of the evidence in 
this case, it is appropriate to require assignment of no less than 
10% black faculty and staff at each school, and where there is 
more than one building administrator, every effort should be made 
to assign a bi-racial administrative team.

G. In the hiring, assignment, promotion, demotion, and 
dismissal of faculty and staff, racially non-discriminatory criteria 
must be developed and used; provided, however, there shall be no 
reduction in efforts to increase minority group representation 
among faculty and staff in the desegregation area. Affirmative 
action shall be taken to increase minority employment in all levels 
of teaching and administration.

H. The restructuring of school facility utilization necessitated 
by pupil reassignments should produce schools of substantially 
like quality, facilties, extra-curricular activities and staffs; and the



16a

utilization of existing school capacity through the desegregation 
area shall be made on the basis of uniform criteria.

I. The State Board of Education and the State Superintendent 
of Education shall with respect to all school construction and 
expansion, “consider the factor of racial balance along with other 
educational considerations in making decisions about new school 
sites, expansion of present facilties * * and shall, within the 
desegregation area disapprove all proposals for new construction 
or expansion of existing facilties when “housing patterns in an 
area would result in a school largely segregated on racial * * * 
lines,” all in accordance with the 1966 directive issued by the 

State Board of Education to local school boards and the State 
Board’s “School Plant Planning Handbook” (see Ruling on Issue 
of segregation, p. 13.).

J. Pending further orders of the court, existing school district 
and regional boundaries and school governance arrangements will 
be maintained and continued, except to the extent necessary to 
effect pupil and faculty desegregation as set forth herein; 
provided, however, that existing administrative, financial, 
contractual, property and governance arrangements shall be 
examined, and recommendations for their temporary and 
permanent retention or modification shall be made, in light of the 
need to operate an effectively desegregated system of schools.

K. At each school within the desegregated area provision shall 
be made to insure that the curriculum, activities, and conduct 
standards respect the diversity of students from differing ethnic 
backgrounds and the dignity and safety of each individual, 
students, faculty, staff and parents.

L. The defendants shall, to insure the effective desegregation 
of the schools in the desegregation area, take immediate action 
including, but not limited to, the establishment or expansion of 
in-service training of faculty and staff, create bi-racial committees, 
employ black counselors, and require bi-racial and non-discrimin- 
atory extra-curricular activities.

III.

The State Superintendent of Public Instruction, with the



17a

assistance of the other state defendants, shall examine, and make 
recommendations, consistent with the principles established 
above, for appropriate interim and final arrangements for the (1) 
financial, (2) administrative and school governance, and (3) 
contractual arrangements for the operation of the schools within 
the desegregation area, including steps for unifying, or otherwise 
making uniform the personnel policies, procedures, contracts, and 
property arrangements of the various school districts.

Within 15 days of the entry of this order, the Superintendent 
shall advise the court and the parties of his progress in preparing 
such recommendations by filing a written report with the court 
and serving it on the parties. In not later than 45 days after the 
entry of this order, the Superintendent shall file with the court his 
recommendations for appropriate interim and final relief in these 
respects.

In his examination and recommendations, the Superintendent, 
consistent with the rulings and orders of this court, may be 
guided, but not limited, by existing state law; where state law 
provides a convenient and adequate framework for interim or 
ultimate relief, it should be followed, where state law either is 
silent or conflicts with what is necessary to achieve the objectives 
of this order, the Superintendent shall independently recommend 
what he deems necessary. In particular, the Superintendent shall 
examine and choose one appropriate interim arrangement to 
oversee the immediate implementation of a plan of desegregation.

IV.

Each party may file appropriate plans or proposals for inclusion 
in any final order which may issue in this cause. The intent of this 
order is to permit all the parties to proceed apace with the task 
before us: fashioning an effective plan for the desegregation of the 
Detroit public schools.

Fifteen days after the filing of the reports required herein, 
hearings will begin on any proposal to modify any interim plan 
prepared by the panel and all other matters which may be incident 
to the adoption and implementation of any interim plan of 
desegregation submitted. The parties are placed on notice that 
they are to be prepared at that time to present their objections,



18a

alternatives and modifications. At such hearing the court will not 
consider objections to desegregation or proposals offered 
“instead” of desegregation.

Hearings on a final plan of desegregation will be set as 
circumstances require.

DATE: JUNE 14, 1972.

/s/ Stephen J. Roth 
United States District Judge



19a

DICKINSON, WRIGHT, McKEAN & CUDLIP 
COUNSELLORS AT LAW 

1700 North Woodward Avenue 
P.O. Box 509

Bloomfield Hills, Michigan 48013 
Telephone (313) 646-4300

July 12, 1972

The Honorable Judges of the United States
Court of Appeals for the Sixth Circuit 

609 Post Office Building 
Cincinnati, Ohio 45202

Re: No. 72-1651, Bloomfield Hills School District, 
Petitioner, v. Honorable Stephen J. Roth,
United States District Judge, Eastern District 
of Michigan, Respondent

Dear Sirs:

On June 29, 1972, the Petition for Writ of Mandamus and/or 
Prohibition of Bloomfield Hills School District was docketed by 
the Clerk of your Court. The Petition relates to the June 14, 1972 
Ruling and Order of the Honorable Stephen J. Roth, Respondent 
to such Petition, in the so-called Detroit school desegregation case 
(Bradley, et al. v. Milliken, et al, Civil Action No. 35257, United 
States District Court for the Eastern District of Michigan). In 
compliance with Rule 21, Federal Rules of Appellate Procedure, a 
copy of such June 14, 1972 Ruling and Order is attached to the 
Petition.

Thereafter, on July 10, 1972, Judge Roth entered an oral Order 
directing the Detroit School District to purchase 295 buses for the 
purpose of implementing his June 14, 1972 Ruling and Order. The 
State defendants in Bradley v. Milliken, namely, the Governor and 
Attorney General of Michigan, the State Board of Education and 
the State Superintendent of Public Instruction, were ordered to 
pay for such buses. To implement such payment, the Treasurer of 
Michigan was added as an additional State defendant.

The bus purchase order further evidences Judge Roth’s intention



20a

to put his June 14, 1972 metropolitan desegregation busing order 
into effect as of the opening of school the first week in 
September, less than 60 days from now.

During the course of the hearing preceding the entry of Judge 
Roth’s bus purchase order, he candidly stated as follows:

“To my knowledge the propriety of going to a 
metropolitan plan has not been decided by the United States 
Supreme Court except in the language used in Brown in 
1954, where they in broad outline said you can do anything 
in order to achieve the job including dealing with school 
districts. They said that in ’54. That is what 1 am relying on 
and they never said otherwise but they never have had a 
school case such as this where an order for metropolitan 
desegregation is the issue.”

The entry of the bus purchase order underscores the urgency of 
immediate consideration by this Court of Bloomfield Hills School 
District’s Petition. Accordingly, we respectfully request this Court 
to take such Petition under immediate advisement, to enter an 
order directing Judge Roth to answer such Petition immediately, 
and to set a date for hearing on the Petition as soon as possible 
thereafter. In this connection, we reiterate the prayer contained in 
the Petition that, in the interim, a stay of the proceedings 
contemplated by Judge Roth’s June 14, 1972 Ruling and Order be 
entered.

Respectfully submitted,

DICKINSON, WRIGHT, McKEAN & CUDLIP

By: /s/ Fred W. Freeman 

/s/ Charles F. Clippert

/s/ Robert V. Peterson
A ttorneys for Petitioners 
Bloomfield Hills School District

FWF:mak



21a

#72-1651
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BLOOMFIELD HILLS SCHOOL DIS­
TRICT,

Petitioner

V . ORDER

STEPHEN J. ROTH,
United States District Judge,

Respondent **

Before: PHILLIPS, Chief Judge, EDWARDS and PECK, Circuit 
Judges

Upon consideration, IT IS ORDERED that the application for 
writ of mandamus and prohibition is denied and the petition is 
dismissed.

This order is entered without prejudice to the right of the 
petitioner School District to file application to intervene in the 
case of Bradley v. Milliken now pending in the Eastern District of 
Michigan.

Entered by order of the Court.

/s/ James A. Higgins 
Clerk

Filed July 17, 1972 
James A Higgins, Clerk



22a

UNITED STATES OF AMERICA 
IN THE COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BLOOMFIELD HILLS SCHOOL DIS­
TRICT,

Petitioner,

vs.

STEPHEN J. ROTH, UNITED STATES 
DISTRICT JUDGE, EASTERN DIS­
TRICT OF MICHIGAN,

Respondent.

No. 72-1651

PETITION FOR REHEARING AND 
SUGGESTION FOR HEARING IN BANC

L Events Occurring Subsequent to Filing o f Petition for Writ o f 
Mandamus and/or Prohibition.

A. The Petition for Writ of Mandamus and/or Prohibition filed 
by Bloomfield Hills School District (Petitioner) on June 29, 1972 
alleged that the Honorable Stephen I. Roth, Respondent, (i) 
usurped the jurisdiction vested in him as a United States District 
Judge by subjecting Petitioner to his June 14, 1972 Ruling and 
Order in disregard of the facts that the Petitioner was not a party 
to the action and was not found to have committed any act of de 
jure segregation and (ii) usurped the jurisdiction exclusively vested 
by Title 28 U.S.C. I 2281 in a District Court of three judges by 
entering his June 14, 1972 Ruling and Order, which restrains the 
enforcement, operation and execution of various Michigan 
statutes. This Court denied that petition on July 17, 1972.

B. While no reasons for this Court’s action were given, the 
order stated that the denial was without prejudice to the right of 
Petitioner to file an application to intervene in the case of Bradley 
v. Milliken pending in the United States District Court for the 
Eastern District of Michigan.

C. The intervening school district defendants in Bradley v.



23a

Milliken filed an emergency application for stay with Respondent 
on July 12, 1972. A jurisdictional attack on Respondent's June 
14, 1972 Ruling and Order under § 2281 comprised one of the 
grounds for such emergency application. On July 19, 1972, 
Respondent denied that application without responding to such 
jurisdictional attack.

D. On July 20, 1972, Respondent made a determination of 
finality as to the following orders in Bradley v. Milliken under 
Rule 54(b), F.R.C.P., and certified the issues presented therein 
under the provisions of 28 U.S.C. § 1292(b):

1. Ruling on Issue of Segregation, September 27, 1971;

2. Ruling on Propriety of Considering a Metropolitan 
Remedy To Accomplish Desegregation of the Public 
Schools of the City of Detroit, March 24, 1972;

3. Findings of Fact and Conclusions of Law on Detroit-only 
Plans of Desegregation, March 28, 1972;

4. Ruling on Desegregation Area and Development of Plan, 
and Findings of Fact and Conclusions of Law in Support 
Thereof, June 14, 1972; and

5. Order of Acquisition of Transportation, July 11, 1972.

E. On July 20, 1972, this Court entered an order which, inter 
alia, advanced the appeal of Bradley v. Milliken on its docket and 
scheduled a hearing therein for August 24, 1972.

F. Petitioner reiterates its assertion that Respondent’s June 14, 
1972 Ruling and Order has the effect of enjoining the 
enforcement, operation and execution of a number of Michigan 
statutes of which the following are illustrative:

1. MCLA 340.77

The board of any school district governed by the 
provisions of this chapter is authorized to locate, acquire, 
purchase or lease in the name of the district such site or 
sites within or without the district for schoolhouses, 
libraries, administration buildings, agricultural farms, 
athletic fields and playgrounds, as may be necessary; to



24a

purchase, lease, acquire, erect or build and equip such 
buildings for school or library or administration or for 
use in connection with agricultural farms, athletic fields 
and playgrounds, as may be necessary; to pay for the 
same out of the funds of the district provided for that 
purpose; to sell, exchange or lease any real or personal 
property of the district which is no longer required 
thereby for school purposes, and give proper deeds or 
other instruments passing title to the same . . .

2. MCLA 340.352

Every school district shall be a body corporate under the 
name provided in this act, and may sue and be sued in its 
name, may acquire and take property, both real and 
personal, for educational purposes within or without its 
corporate limits, by purchase, gift, grant, devise or 
bequest, and hold and use the same for such purposes, 
and may sell and convey the same as the interests of such 
district may require, subject to the conditions of this 
act contained . . .

3. MCLA 340.356

All persons, residents of a school district not maintaining 
a kindergarten, and at least 5 years of age on the first day 
of enrollment of the school year, shall have an equal right 
to attend school therein.

4. MCLA 340.569

The board of every district shall hire and contract with 
such duly qualified teachers as may be required . . .

5. MCLA 340.575

The board of every district shall determine the length of 
the school term. The minimum number of days of 
student instructions shall be not less than 180. Any 
district failing to hold 180 days of student instruction 
shall forfeit 1/180th of its total state aid appropriation 
for each day of such failure . . .



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6. MCLA 340.583

Every board shall establish and carry on such grades, 
schools and departments as it shall deem necessary or 
desirable for the maintenance and improvement of the 
schools; determine the courses of study to be pursued 
and cause the pupils attending school in such district to 
be taught in such schools or departments as it may deem 
expedient. . .

7. MCLA 340.589

Every board is authorized to establish attendance areas 
within the school district.

8. MCLA 340.614

Every board shall have authority to make reasonable rules 
and regulations relative to anything whatever necessary 
for the proper establishment, maintenance, management 
and carrying on of the public schools of such district, 
including regulations relative to the conduct of pupils 
concerning their safety while in attendance at school or 
en route to and from school.

9. MCLA 340.882

The board of each district shall select and approve the 
textbooks to be used by the pupils of the schools of its 
district on the subjects taught therein.

On June 29, 1972, Dr. John W. Porter, Superintendent of 
Public Instruction, in response to paragraph III of Respondent’s 
June 14, 1972 Ruling and Order, filed his written report with the 
District Court. At pages 33 and 34 of the June 29 report, Dr. 
Porter discussed the implications of Respondent’s June 14, 1972 
Ruling and Order with respect to certain provisions of the 
constitution and statutes of Michigan. Pertinent portions of pages 
33 and 34 of that report are annexed hereto as Appendix A.

II. Reasons For Granting Petition For Rehearing.

A. The manifest purpose of Congress in enacting Title 28, 
U.S.C. § 2281 was to prevent one federal judge from enjoining the



26a

operation of state laws. The applicability of § 2281 to 
Respondent's June 14, 1972 Ruling and Order has been presented 
to Respondent and to this Court. To date neither court has 
discussed this jurisdictional issue on its merits. Petitioner is 
aggrieved by the refusal of the courts to address the merits of this 
issue.

Moreover, the July 20, 1972 Order of Respondent makes moot 
the possibility that Petitioner can obtain redress from Respondent 
through the procedure suggested by this Court, namely, the filing 
of an application to intervene in Bradley v. Milliken. Thus, this 
Petition for Rehearing constitutes the only effective remedy 
available to Petitioner.

This Court has already scheduled an August 24, 1972 hearing 
for the appeal in Bradley v. Milliken. Without adversely affecting 
the rights of the parties in that appeal, the August 24 hearing can 
be readily expanded to give Petitioner its day in court with respect 
to the issues raised in its Petition for Writ of Mandamus and/or 
Prohibition.

B. While it is clear that Respondent based his June 14, 1972 
Ruling and Order upon the language contained in Brown II, 349 
U.S. 294 (1955), which discusses the breadth of equitable powers 
available to a district court in a school desegregation case, it is also 
clear that de jure acts of segregation violative of the Fourteenth 
Amendment of the United States Constitution are the 
jurisdictional sine quo non for the entry of a remedial decree. It 
appears beyond dispute that Respondent’s decree which interdicts 
the wide-spread operation of state statutes can be justified only 
upon the ground that the operation of such statutes conflicts with 
the Fourteenth Amendment. The convening of a three judge 
district court under § 2281 is mandatory when that conflict 
arises. Notwithstanding the opinion of Judge Merhige, {Bradley v. 
School Board o f  City o f  Richmond, Virginia, 324 F. Supp. 396 
[1971]), it is contrary to the manifest purpose and unambiguous 
language of § 2281 to suggest, on the one hand, that the validity 
of state laws under the United States Constitution never arises 
when a decree in a school desegregation case is being fashioned, 
and to justify, on the other hand, a decree enjoining the operation 
of those laws on the ground that acts of de jure segregation in



27a

violation of the United States Constitution have occurred.

C. Bradley v. Milliken was not a three judge court case when 
initially filed. Bradley v. Milliken, 433 F.2d 897 (1970), n. 2, p. 
900. It becomes a three judge court case when an injunction is 
issued which restrains the operation of state statutes affecting 54 
local school districts, 780,000 students and several thousand 
teachers and local school administrators upon the ground of 
unconstitutionality. Even the jurisdiction of this Court to hear an 
appeal upon issues beyond the scope of the Detroit school district 
is burdened by § 2281. Stratton v. St. Louis S. W. Ry. Co., 282 
U.S. 10(1930).

The argument in the appeal in Bradley v. Milliken will be heard 
in less than one month. Neither Respondent nor this Court has, as 
yet, responded to the merits of the jurisdictional questions raised 
by § 2281. The most efficient and practical way of promptly 
resolving the § 2281 question as well as other questions raised in 
the Petition for Writ of Mandamus and/or Prohibition is to hear 
Petitioner’s arguments with respect thereto in this Court on 
August 24, 1972, when arguments on the issues in Bradley v. 
Milliken are presented.

RELIEF REQUESTED 

Petitioner prays this Court to:

a. Take this Petition for Rehearing under immediate 
advisement;

b. Restore this cause to the calendar and set August 24, 
1972 as the time for hearing the Petition for Writ of Mandamus 
and/or Prohibition;

c. Order Respondent to file an Answer to the Petition for 
Writ of Mandamus and/or Prohibition in accordance with Rule 
21, F.R.A.P., and order the filing of briefs in compliance with 
the schedule set forth in this Court’s Order of July 20, 1972, in 
the appeal in Bradley v. Milliken.

SUGGESTION FOR HEARING IN BANC 

It is respectfully suggested that in the event the appeal in



28a

Bradley v. Milliken is heard by this Court in banc pursuant to Rule 
35, F.R.A.P., the Petition of Bloomfield Hills School District for 
Writ of Mandamus and/or Prohibition be heard in banc.

Respectfully submitted,

DICKINSON, WRIGHT, McKEAN & CUDLIP

By: /s/ Fred W. Freeman

/s/ Charles F. Clippert

/s/ Robert V. Peterson
A ttorneys for Petitioners 
Bloomfield Hills School District 
1700 North Woodward 
P.O. Box 509
Bloomfield Hills, Michigan 48013 
(313) 646-4300

Dated: July 27, 1972



29a

APPENDIX A
ABSTRACT OF DR. PORTER’S REPORT 

OF JUNE 29, 1972

Implications for the Interim Period

Effective implementation of the desegregation plan during the 
interim period may require the following actions:

1. Amendment of, or a moratorium on, the provisions o f  
Article IX, Section 6, o f  the Michigan Constitution, 
which sets a 15 mill limit on the property tax.

2. Amendment o f  A ct 62, Public Acts o f  1933, the Proper­
ty Tax lim itation Act.

3. Amendment o f  A ct 31, Public Acts o f  1966, which 
deals with the assessing and collecting o f taxes within a 
city.

4. Amendment o f  A ct 190, Public Acts o f  1962, which 
deals with adoption o f  special education millage on an 
intermediate district basis.

5. Amendment of, or a moratorium on, certain provisions 
o f the School Code o f  1955 which deal with the powers 
and duties o f  local school districts.

6. Amendment of, or a moratorium on, certain provisions 
o f  A ct 336, Public Acts o f  1947, the Public Employees 
Relations Act.

7. Amendment of, or a moratorium on, certain provisions 
o f A ct 4, Public Acts o f  1937, the Teacher Tenure Act.

8. Amendment o f  Act 36, Public Acts o f  1945, the Public 
School Employees Retirement Act.

9. Amendment o f the Rules and Regulations Governing 
the Certification o f  Teachers.

10. Amendment o f Federal Statutes and Guidelines as 
embodied in Title I  o f  the Elementary and Secondary 
Education A ct o f  1965, which provides approximately



30a

$25 million annually to districts in the desegregation 
area, and is based on concentrations o f children from 
low income families.

Implications for the Period o f Full Implementation

It appears almost certain that the period of full implementation 
will have direct implications for the possible amendment of all the 
constitutional, statutory, and administrative provisions outlined in 
the above section dealing with the interim period. In addition, it 
appears the following statutes may require amendment:

(1) The State School Aid Act.

(2) Those provisions o f  the School Code o f 1955 dealing 
with the establishment or creation o f school districts.

(3) Act 320, Public Acts o f  1968, which deals with the 
establishment o f  area vocational centers.



31a

No, 72-1651
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BLOOMFIELD HILLS SCHOOL DIS­
TRICT,

Petitioner,
ORDER DENYING

V . PETITION FOR
STEPHEN J. ROTH, UNITED STATES 

DISTRICT JUDGE, EASTERN DIS­
TRICT OF MICHIGAN,

Respondent.

REHEARING

Before PHILLIPS, Chief Judge, EDWARDS and PECK, Circuit 
Judges.

No judge of this court having suggested rehearing in banc, the 
petition for rehearing has been considered by the original hearing 
panel.

It is ORDERED that the petition for rehearing be and hereby is 
denied.

Entered by order of the court.

/s/ James A. Higgins 
Clerk

Filed August 24, 1972 
James A. Higgins, Clerk



32a

CONSTITUTIONAL PROVISIONS, STATUTES 
AND RULES INVOLVED

The Fifth Amendment to the Constitution of the United States 
provides in pertinent part as follows:

No person shall be . . . deprived of life, liberty, or property, 
without due process of law ;. . .

The Judicial Code, 28 U.S.C. § 1651(a) provides:

§ 1651. Writs

(a) The Supreme Court and all courts established by Act of 
Congress may issue all writs necessary or appropriate in aid of 
their respective jurisdictions and agreeable to the usages and 
principles of law.

The Judicial Code, 28 U.S.C. §2281 provides:

§2281. Injunction against enforcement of State statute; three- 
judge court required

An interlocutory or permanent injunction restaining the en­
forcement, operation or execution of any State statute by 
restraining the action of any officer of such State in the en­
forcement or execution of such statute or of an order made by 
an administrative board or commission acting under State 
statutes, shall not be granted by any district court or judge 
thereof upon the ground of the unconstitutionality of such 
statute unless the application therefor is heard and determined 
by a district court of three judges under section 2284 of this 
title.

Rule 21 of the Federal Rules of Appellate Procedure provides in 
pertinent part as follows:

(a) Mandamus or Prohibition to a Judge or Judges; Petition 
for Writ; Service and Filing. Application for a writ of mandamus 
or of prohibition directed to a judge or judges shall be made



33a

by filing a petition therefor with the clerk of the court of 
appeals with proof of service on the respondent judge or judges 
and on all parties to the action in the trial court. * * *

(b) Denial; Order Directing Answer. If the court is of the 
opinion that the writ should not be granted, it shall deny the 
petition. Otherwise, it shall order that an answer to the petition 
be filed by the respondents within the time fixed by the order. 
The order shall be served by the clerk on the judge or judges 
named respondents and on all other parties to the action in the 
trial court. All parties below other than the petitioner shall also 
be deemed respondents for all purposes. Two or more respond­
ents may answer jointly. If the judge or judges named respond­
ents do not desire to appear in the proceeding, they may so 
advise the clerk and all parties by letter, but the petition shall 
not thereby be taken as admitted. The clerk shall advise the 
parties of the dates on which briefs are to be filed, if briefs are 
required, and of the date of oral argument. The proceeding shall 
be given preference over ordinary civil cases.

Rule 19 of the Federal Rules of Civil Procedure provides in per­
tinent part as follows:

JOINDER OF PERSONS NEEDED FOR JUST 
ADJUDICATION

(a) Persons to be Joined if Feasible. A person who is subject 
to service of process and whose joinder will not deprive the 
court of jurisdiction over the subject matter of the action shall 
be joined as a party in the action if (1) in his absence complete 
relief cannot be accorded among those already parties, or (2) he 
claims an interest relating to the subject of the action and is so 
situated that the disposition of the action in his absence may (i) 
as a practical matter impair or impede his ability to protect that 
interest or (ii) leave any of the persons already parties subject to 
a substantial risk of incurring double, multiple, or otherwise in­
consistent obligations by reason of his claimed interest. If he 
has not been so joined, the court shall order that he be made a 
party. * * *



34a

The Michigan Constitution of 1963, Article VIII, Section 2, 
provides as follows:

The legislature shall maintain and support a system of free 
public elementary and secondary schools as defined by law. 
Every school district shall provide for the education of its pupils 
without discrimination as to religion, creed, race, color or 
national origin.

MCLA 38.91 provides in part as follows:

After the satisfactory completion of the probationary period, 
a teacher shall be employed continuously by the controlling 
board under which the probationary period has been com­
p le ted , and shall not be dismissed or demoted except as 
specified in this act. . .

MCLA 423.209 provides as follows:

It shall be lawful for public employees to organize together or 
to form, join or assist in labor organizations, to engage in lawful 
concerted activities for the purpose of collective negotiation or 
bargaining or other mutual aid and protection, or to negotiate 
or bargain collectively with their public employers through rep­
resentatives of their own free choice.