Response of Defendants in Opposition to the Motions for Accelerated Schedule on Appeal and for Leave to Proceed on Original Papers

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BOARD OF EDUCATION OF THE SCHOOL DISTRICT 
OF THE CITY OF DETROIT, a school district 
of the first class, •

v
Appellant,

RONALD BRADLEY, et al,
Appellees.

/

On Appeal from the United States District 
Court for the Eastern District of Michigan 

Southern Division

RESPONSE OF DEFENDANTS WILLIAM G. MILL!KEN, 
GOVERNOR; FRANK J. KELLEY, ATTORNEY GENERAL;
THE STATE BOARD OF EDUCATION AND JOHN W. PORTER, 
SUPERINTENDENT'OF PUBLIC INSTRUCTION, IN OPPOSI­
TION TO THE MOTIONS FOR ACCELERATED SCHEDULE ON 
APPEAL AND FOR LEAVE TO PROCEED ON ORIGINAL PAPERS 
AND TO DISPENSE WITH PRINTED APPENDIX.

Business Address:
7 2 0 L aw B u i 1 d i. n g
525 West Ottawa Street
Lansing, Michigan 48913

FRANK J. KELLEY 
Attorney General
Robert A. Derengoski.
Solicitor General
Eugene Krasicky 
Gerald F. Young 
George L. McCargar
Assistant Attorneys General 
Attorneys for Defendants 
Governor, Attorney General, 
State Board of Education and 
Superintendent of Public 
Instruction



INTRODUCTION’

At the present time there are involved as parties defend­
ant in this action the original defendants, the Governor,
Attorney General, State Board of Education and Superintendent 
of Public Instruction of the State of Michigan; the Board of 
Education of the City of Detroit with the duty at law of educat­
ing more than 290,000 children; three members of its board of 
education, and its superintendent of schools. Early intervenors 
were Denise Magdowski, et al, representing a Detroit citizens 
group consisting of a substantial number of persons, and the 
Detroit Federation of Teachers, for and on behalf of more than 
11,000 teachers employed in the Detroit School District. After 
the entry of the District Court's order of November 5, 1971, 
directing the "state defendants" to submit a metropolitan plan 
of desegregation, 46 school districts (43 represented by the 
same counsel, and 3 by 3 different counsel), and a suburban 
citizens group were permitted intervention. The District Court's 
Ruling on Desegregation Area and Order for Development of Plan 
of Desegregation, entered June 14, 1972, included 13 school 
districts which are not parties in the action. Nine school 
districts that are parties by intervention are not included 
in the desegregation area.

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Notices of appeal of the District Court's order of June 
14, 1972, have already been filed by defendant Detroit Board 
of Education, defendants-intervenors Allen Park Public Schools, 
et al (including 42 school districts), defendant-intervenor 
Grosse Pointe Public Schools, defendant-intervenor Southfield 
Public Schools, and defendants-intervenors Kerry Green, et al. 
Thus, these appeals from the District Court's order of June 
14, 1972, involve diverse parties, soma being vitally interested 
in the finding of de_ jure segregation in the Detroit public 
schools and others being vitally concerned about the propriety 
of the lower court's judicially decreed metropolitan remedy. 
Consequently, these appeals present this Court with a number 
of complex factual and legal questions involving a multitude 
of parties with conflicting views and interests.

These defendants have petitioned the Supreme Court for 
a writ of certiorari to review the judgment and opinion of 
this Court entered herein on February 23, 1972, dismissing 
these defendants' earlier appeal in this cause from the Dis­
trict Court's Ruling on Issue of Segregation dated September 
27, 1971. The petition for certiorari has been submitted to 
the Court but, to date, the Court has not ruled upon such peti­
tion. These defendants have not yet filed a notice of appeal 
from the District Court's order of June 14, 1972, for the

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reason that they did not want to prejudice their petition for 
certiorari. These defendants will file a notice of appeal from 
the District Court's order of June 14, 1972, within the 30 day 
time period for filing such notice, absent a favorable disposi­
tion of their petition for certiorari by the Supreme Court 
within such time period.

As the chronology of events in this cause demonstrates, 
these defendants have consistently sought early appellate review 
of the decisions and orders of the trial court. Such a course 
of conduct clearly reveals that these defendants have not 
attempted to delay the prompt judicial resolution of plaintiffs' 
claims herein. However, a cause of. this magnitude, now involv­
ing 53 school districts and at least 780,000 school children 
and presenting major constitutional law questions, should not 
be rushed to judgment through the appellate courts as requested 
by defendant Detroit Board of Education. Rather, this cause 
warrants thorough and considered appellate review in the 
interests of justice for all concerned.

These defendants have filed with the District Court an 
emergency motion for stay or suspension of that Court's order 
of June 14, 1972, pending both an appeal to this Court from 
such order and the petition for certiorari filed by these defend 
ants with the United States Supreme Court. This motion was

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• •

argued before the trial court on June 29, 1972, and the motion 
was taken under advisement.

I.
RESPONSE TO MOTION FOR 

ACCELERATED SCHEDULE ON APPEAL

Defendant Detroit Board of Education's Motion for 
Accelerated Schedule on Appeal is clearly inappropriate in 
this cause involving 53 separate school districts and 1/3 
of the public school pupils in the State of Michigan. These 
defendants submit that the following three points demonstrate 
the unwisdom of granting defendant Detroit Board of Education's 
Motion for an Accelerated Schedule on Appeal that would allow 
each side only 20 days for writing their respective briefs 
and compel this Court to hear and decide this appeal, without 
careful and considered deliberation, if the prayed for relief 
is to be effectuated.

A. The Accelerated Procedure Sought by Defendant 
Detroit Board of Education Is Appropriate only 
Where the Necessity for an Immediate Appellate 
Decision Is the Overriding Consideration.

Lest it be thought that these defendants are opposing 
the defendant Detroit Board's motion for the purpose of delay,

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it should be noted that they promptly sought appellate review 
of the District Court's decision of de jure segregation. How­
ever, their appeal was dismissed by this Court on February 23, 
1972.

The power of this Court to suspend the requirements or 
provisions of the rules of appellate procedure is expressly 
recognized by Rule 2 of the Federal Rules of Appellate Procedure. 
The question is when should the court exercise this power. As 
nearly as can be determined, the cases have not addressed them­
selves specifically to that question. Superior Oil Co v Udall, 
409 F2d 1115 (CA DC, 19G9), indicates that a need for certainty, 
immediate certainty, affords a criterion. Here, although the 
need for certainty is important, the paramount consideration 
must be to obtain thorough appellate review and justice for all 
concerned.

United States v New York Timas, 403 US 713 (1971), 
would not appear to be applicable. The issue there involved 
the First Amendment and the right of every citizen, not just 
the parties, to know what his government was doing. Also,
New York Times, supra, involved a brief record, a limited 
number of parties and a single issue. The nature of the case 
itself made it suitable for an accelerated procedure. This 
is not true of the case at bar.



This case does not involve a matter where the overriding 
consideration is immediate certainty. The nature and complexity 
of the proceedings do not lend themselves to emergency appellate 
review.

B. The Case of Bradley v School Board of the City
of Richmond, Virginia, ___ F2d ___ (CA4, 1972),
Is Not Precedent for the Procedure Sought Herein.

Defendant Detroit Board of Education apparently believes 
that if the accelerated schedule it seeks were to be granted, 
a decision of this Court would be handed down prior to the 
beginning of the 19 72— / 3 school year, in the early part of 
September, 1972. It relies on Bradley, supra, for this con­
clusion. In fact, the order of the District Court from which 
appeal was taken in Bradley, supra, was entered on January 10, 
1972. The case was argued on April 13 and the court rendered 
its decision on June 5. The elapsed period of time was 5 
months, in round numbers.

Although these defendants do not wish to underplay the 
difficulties involved in Bradley, supra, when compared with 
the issues in this case and when compared with the number of 
parties, it was definitely much less complex than the instant 
case. It would appear by defendant Detroit Board of Education's

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own admission, relying upon Bradley, supra, that an accelerated 
schedule cannot possibly provide it with the hoped for relief.

C. The Number of Parties in the Case, the
Number of Issues, the Length of the Proceed­
ings and the Uniqueness and Importance of 
the Questions Presented Make This Case One 
Totally Unsuitable for Emergency Appellate 
Review as Sought by Defendant, Detroit 
Board of Education.

ihe numerous parties to this cause, including school dis­
tricts, state officers, teachers, and both Detroit and suburban 
parents, vividly illustrate the public importance attached to 
tnis cause. This important cause involves many issues for this 
Court s careful consideration and decision, including, by way 
of illustration,1 * * whether proofs as to racial segregation in 
housing are admissible herein, whether acts of omission con­
stitute de jure segregation as to some schools warrants a 
systemwide remedy, whether, in the presence of unexpress find­
ing of no faculty segregation, a remedial decree may require a 
fixed racial balance faculty quota in each school, whether 
these defendants may be impelled to expend funds which they 
possess no lawful authority to raise or expend under state 
lav,7, and, finally, whether a metropolitan remedy is appropriate

1This enumeration does not purport to be exhaustive. The
imitations of time and space make an exhaustive treatmentor issues not feasible here.

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• •

in the absence of a finding of de jure segregation as to 
either the establishment of the boundaries of the 53 affected 
school districts or the conduct of the 52 school districts 
other than Detroit.

Underlying these most significant constitutional lav/ 
questions is a voluminous record. As set forth in defendant 
Detroit Board of Education's Motion to Proceed on the Original 
Record, the trial on the merits consumed 41 days and produced 
4,710 pages of transcript and 403 trial exhibits. Subse­
quently , the hearings dealing with remedy have resulted in 
still more pages of transcript and exhibits. At a minimum, 
a careful review of this cause by this Court will include 
close scrutiny of substantial portions of the voluminous 
record m  this case. it is difficult, if not impossible, 
to conceive that the accelerated schedule sought herein will 
allow time for such close scrutiny of the lengthy and complex 
record in this cause by this Court.

There may be cases where it is more important to have 
a decision than it is to have a reasoned and correct decision. 
These defendants submit that this is not such a case. At 
least 780,000 children are affected by the June 14, 1972, 
order. They constitute 1/3 of the public school children in 
the otate of Michigan. If there was ever a case that deserves

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• •

the most careful briefing by the parties and the most careful 
consideration by the Court, this one is it. To suspend the 
usual procedures established by a court rule to provide for 
careful and thorough briefing in order for the Court to have 
available to it the greatest help from the parties in reaching 
its decision, and to decide matters of this significance in 
an atmosphere of haste, will not only place an unreasonable 
burden upon the Court, but, also, will undermine confidence 
in the judicial process.

These defendants submit that the motion for an 
accelerated schedule on appeal brought by defendant Detroit 
Board of Education constitutes a severe departure from the 
Federal Rules of Appellate Procedure, clearly inappropriate 
in a cause of this scope and magnitude. However, in order to 
expedite this singularly important litigation, these defen­
dants will agree to 30 days for the filing of their brief as 
appellants instead of 20 days requested by defendant Board of 
Education of the School District of the City of Detroit and 
the 40 day period permitted by appropriate court rule.
Moreover, these defendants pledge every effort to comply 
with any decision of this Court intended to reasonably 
accelerate and expedite the appellate review process herein.

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II.
RESPONSE TO MOTION FOR LEAVE TO PROCEED 
ON THE ORIGINAL PAPERS AND TO DISPENSE 
_________WITH PRINTED APPENDIX

When these defendants sought appeal to this Court from 
the District Court's Ruling on Issue of Segregation (September 
27, 1971) and its Order for a Metropolitan Plan of Desegrega­
tion (November 5, 1971), the plaintiffs filed a motion for 
leave to proceed on the original papers, etc. Defendant 
Detroit Board of Education filed a response thereto, a copy 
of which is attached hereto as Exhibit A. The response 
concluded as follows:

WHEREIORE, because of the crucial importance 
of this case to all of the residents of a major 
metropolitan area, and the pivotal role in its 
determination which both parties predict may 
be played by tine trial transcript, defendant 
appellee and cross-appellant the Board of 
Education of the City of Detroit, respectfully 
prays that an order be entered denying the 
motion of Plaintiffs . . . "

If the transcript would have played a pivotal role then, most 
certainly it plays a crucial role now.

Defendant Detroit Board refers to the preparation of 
an appendix in terms of "enormous costs" and "prodigious cost." 
It should be apparent that the costs of the preparation of a 
printed or lithographed appendix is insignificant when compared 
with the costs of the lawsuit to date.

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If tiie judges of this Court are going to have an 
appendix available to them in a usable form, the court rule 
must be complied with. This is the purpose of the rule.

Remarks of Chief Judge Phillips with regard to briefs 
and appendices in the Court of Appeals are reported in 45 
FRD 293 (1968). Judge Phillips emphasized the imperative 
necessity of a clear, readable page because of the tremendous 
amount of reading each judge of this Court is required to do.
He further emphasized the convenience to the judges of having

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an appendix filed as a single volume or set of volumes. He
notes what would appear to be the only exception, cases where 
the record was 100 pages or less.

It is axiomatic that the longer the record and the more 
complicated tne proceedings, the greater the necessity for an 
appendix meeting the requirements of the court rule.

On the matter of the cost of preparation and printing 
the appendix, these defendants have agreed in the past and 
continue to agree that they will pay a substantial share of

2 ------- -
FR App P, 30(a)-30(b) now require a single appendix with each 
party able to designate the portion of the record he wants 
included.

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the initial cost, and there are numerous other defendants with 
whom the burden can be shared. Hence, an appendix complying 
with the court rules will not impose any undue financial burden 
upon tiie defendant Detroit Board of Education.

' CONCLUSION

This cause, containing the most sweeping remedial 
desegregation decree ever handed down by a district court, 
involves the continued existence of 53 legally separate and 
independent school districts and the educational future of 
at least 780,000 students. It is, without doubt, the most 
momentous school desegregation case since Brown v Board of 
Education, 347 US 483 (1954). This case presents to this 
Court' major constitutional law questions arising from a 
voluminous record of transcripts and exhibits. Thus, it 
should not be decided on the original record in a rush to 
judgment. Rather, careful and thorough appellate review 
is manifestly in order, to the end that justice may be done 
herein. In this regard, these defendants, who have consistently 
sought prompt appellate review, will in no way unduly delay 
any aspect of the appellate review process in expediting this 
appeal.

WHEREFORE, these defendants respectfully request this 
Honorable Court to enter an order denying defendant Detroit

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Board of Education's motions for an accelerated schedule on 
appeal and for leave to proceed on the original papers and 
to dispense with the printed appendix.

Respectfully submitted,
FRANK J. KELLEY 
Attorney General
Robert A. Derengoski

Gerald F. Young 
George L. McCargar
Assistant Attorneys General
Attorneys for Defendants 
Governor, Attorney General, 
State Board of Education and 
Superintendent of Public 
Instruction
Business Address:
Law Building
525 West Ottawa Street
Lansing, Michigan 48913

Dated: July 3, 1972

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