Memorandum in Opposition to Petitions for Writs of Certiorari (Draft)

    MEMORANDUM IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI

As set forth hereafter, respondents Bradley, et al.

(plaintiffs in this cause), submit that this school segregation

. 1/case is not in an appropriate posture for Supreme Court review.

Basically, the petitioners seek review of interloc­

utory remedial orders in advance of the framing and adoption 

of a remedial plan and evidentiary hearings in the trial court.

No actual plan of desegregation has been approved or even 

considered by the courts below; no defendant has been ordered 

to do anything except to participate fully in planning and to 

join in the hearing in the district court. The Court of Appeals 

has affirmed the findings of constitutional violation and of 

inadequacy of relief limited to the Detroit school system, 

directed that plaintiffs amend their complaint to conform to 

the evidence, required joinder of any school district potentially 

affected by any plan, and ordered that a full hearing on remedy 

be held and that the Legislature of the State of Michigan be 

given an opportunity to act before any plan of desegregation 

is devised and approved by the district court.

Proceedings are underway in the district court in 

compliance with these directions. The court has ordered that 

school districts (and the chief school officials of districts)

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which may possibly be affected by any plans eventually adopted,

be joined as parties defendant so that they may be heard. 

Plaintiffs have filed an amended complaint to conform to the 

evidence and seeking full relief; the opinion of the Court of 

Appeals has been formally transmitted by the petitioner Attorney 

General to the Michigan Legislature for its consideration.

In such circumstances, this court cannot properly 

consider the very issues which are essential to review in a 

case like this. As yet, there are no plans, nor hearing on 

remedy, nor findings and conclusions thereon by the district 

court, nor review of any remedial orders by the Court of Appeeis. 

This Court is in no position to evaluate the practicalities of 

the local situation, the constitutional effectiveness of 

alternative plans of remedy, the extent and form of the remedy, 

the extent of transportation and administrative reorganization 

required, and the precise manner in which school district boun­

daries need be permeated for the limited purpose of accomplishing 

complete relief.

Petitioners, and all other school districts which may 

be affected by any plan, as well as all other parties to this 

litigation, and the Michigan state officials, now have the 

opportunity in the courts below to present evidence and argument

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which will shape a complete record in this cause. No one
2/

can foretell what contested issues will thereafter remain

among the parties, nor what record evidence will define those
3/

issues. It may well be that after the hearings in the

district court, the form, scope and indeed the source of the

remedy would be markedly different from that described in the 
4/

petitions. Under these circumstances, decision of the issues 

presented in the petitions at this stage of the proceedings 

would virtually require an advisory opinion. Judicial economy 

and the established practice of this Court require that the 

district court decide, and the Court of Appeals review, these 

issues based on the relevant evidence presented by all of the 

parties, prior to this Court’s review.

There is no reason to depart from this Court's 

established practice of refusing to review school segregation 

cases in the absence of a plan, especially when remedial pro­

ceedings are underway below, the final outcome is uncertain, 

and the resolution of issues depends upon the evidentiary contri­

butions both of petitioners and of newly added parties. No 

substantial harm will be visited upon petitioners should this 

Court decline review. If after the completion of the proceedings

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below, any party is still dissatisfied with the final determin­

ation and orders, recourse may be had to the Court of Appeals, 

and if necessary, to this Court. With the benefit of the 

ridings of the lower courts, this Court could better determine 

whether any remaining disputediissue presented by the completed 

record is worthy of review.

CONCLUSION

WHEREFORE, for the foregoing reasons, these respondents 

Bradley, et al. regretfully pray that the petitions for writs of 

certiorari be denied.

Respectfully submitted,

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[FOOTNOTES]

1/ We have chosen not to submit a lengthy Brief in Opposition 

to Certiorari correcting petitioners' various omissions of fact 

and mischaracterizations. In our view, the real issues, if 

any remain, will appear only after the actions and hearings 

directed by the Court of Appeals are concluded, and a decision 

has been rendered by the district court and reviewed by the 

Court of Appeals.

2/ In remanding this case the Court of Appeals directed the 

district court to afford to "any party against whom relief is 

sought, including school districts which heretofore have inter­

vened and school districts which hereafter may become parties 

. . . an opportunity to offer additional evidence, and to cross­

examine available witnesses who previously have testified, on 

any issue raised by the pleadings, including amendments thereto, 

as may be relevant and admissible to such issues." This 

direction is in accord with the traditional legal principles 

under which federal courts have always afforded parties litigant 

an opportunity to be heard upon a proper showing of the relevance 

and admissibility of evidence. Cf. Kelley v. Metropolitan 

County Bd. of Educ., 463 F.2d 732, 745-46 (6th Cir.), cert, denied.

U.S. (1972). We respectfully suggest that the district

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court should and will allow the added defendants to develop 

all relevant evidence necessary for decision and determination 

of the issues both of violation and of remedy. Petitioners 

correctly note that the Court of Appeals held that the district 

court !,need not” consider evidence with respect to constitutional 

violation. However, the Court did not direct the district 

court to refuse to consider such evidence if offered. We believe 

that petitioners and others added as parties may, upon a proper 

showing, present evidence on this issue; but in light of this

Court’s decision in Keyes v. fchool Dist. No. 1, Denver. ___ U.S.

___ (1973), and of the evidence already introduced documenting

the use by Detroit and Michigan school officials of virtually 

all of the classic segregating techniques which have been identi­

fied by this and other Courts, and since petitioners lack the 

power to rewrite history, the district court’s findings of 

violation seem likely to be reaffirmed. To date, the original 

intervening school districts have never suggested what evidence 

they can or would present on this issue.

3/ The district court will of course consider the evidence 

already introduced in this record at the lengthy trial; similarly, 

it will evaluate any other evidence to be presented by the 

parties which might lead it to modify, amend or supplement its

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original rulings. New evidence concerning the practicality 

and efficacy of proposed specific remedial techniques will of 

necessity be presented by all parties.

4/ For example, in a report to the district court, petitioner 

State Superintendent of Public Instruction recommended the 

exchange of pupils by contract among existing school districts, 

at least as an interim measure. Plaintiffs supported this 

recommendation below as a workable method of proceeding to 

accomplish complete relief from the constitutional violations 

with as little intrusion as possible into the State's existing 

internal structures for administering public education. Compare 

Bradley v. State Bd, of Educ.. 462 F.2d 1058, 1066-67 (4th Cir. 

1972), aff'd by an equally divided court, ___ U.S. ___ (1973).

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