Memorandum in Support of Emergency Motion

    NO. 72-8002
IN THE UNITED STATES COURT OF

for the sixth circuit
appeals

DISTRICT OF^THE^CITY^OF^DF^CHOOkisr1 distrL' - s."S5f ■■
Appellant,

vs.
RONALD BRADLEY, et al

Appellees.

. 0n Appeal 
District Court For th tpU ted States ° , ,the Eastern Distri Southern Division of Michigan

TO ORDER THE GOVERNOR O F  EMERGENCY MOTION 
MICHIGAN, THE ATtoZ v L ®  STATE 0F 
OF MICHIGAN, THE A T T O R N F V ^ ^  °F THE STATE 
OF MICHIGAN, THE S a s uS r °F THE STATEMICHIGAN, THE SUPFRTm^ R °F THE STATE OF 
INSTRUCTION F O ^ tS  o S ™  0F pUBLIC 
MEMBERS of the STf?E BOARn n / ICHIGAN; THE 
the state of m i c h i cL  of EDUCa tion of 
Officials to S  S f p ®  0THER state
DETROIT PUBLIC SCHOOT T° KEEP THE '
180 REGULAR DAYS OF I N S ^ R n ^ r ^  F°R A ^  EMERGENCY MOT TDM rnn ^STRUCTION and
argument to convenf panel f o r oral

cert*nGyS u°r APPeHants and certain other named
Defendants -

George T. Roumell, jr. Louis D. Beer 
Jane Keller Souris Russ E. Boltz 
720 Ford Building 
e roit, Michigan 48226

November 22, 1972



NO. 72-8002
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,

Appellant,
v s .

RONALD BRADLEY, et al,
Appellees.

________________________________ _____  ____________/

MEMORANDUM IN SUPPORT OF EMERGENCY MOTION 
TO ORDER THE GOVERNOR OF THE STATE OF 
MICHIGAN, THE ATTORNEY GENERAL OF THE STATE 
OF MICHIGAN, THE TREASURER OF THE STATE OF 
MICHIGAN, THE SUPERINTENDENT OF PUBLIC 
INSTRUCTION FOR THE STATE OF MICHIGAN, THE 
MEMBERS OF THE STATE BOARD OF EDUCATION OF 
THE STATE OF MICHIGAN AND OTHER STATE 
OFFICIALS TO PROVIDE FUNDS TO KEEP THE 
DETROIT PUBLIC SCHOOLS OPERATING FOR A FULL 
180 REGULAR DAYS OF INSTRUCTION and 
EMERGENCY MOTION TO CONVENE PANEL FOR ORAL ARGUMENT .

On July 7, 1972, the United States Court of the 
Eastern District of Michigan issued an Order directed against 
the parties, their agents, employees, successors, and all 

others having actual notice of this Order", requiring that 
the schools of the City of Detroit remain open for the full 
180 days of instruction previously scheduled and required by 
law, CL 1948, 340.575; MSA 15.3575. App.- Xa571..



ihis Order of the District Court was never appealed; 
no party filed a claim of appeal nor was it included in the 
Certification to this Court under either Fed R. Civ Proc 
54 (b) or 29 U.S.C.A. 1292 (b) under which this Court heard the 
appeals currently pending. Nor indeed was it seriously 
•opposed at the time of its issuance, all parties presumably 
agreeing with the District Court that the children of the 
-City of Detroit were entitled to a full measure of Equal 
Protection. ....

In announcing his intention to enter the aforementioned 
Order of July 7, 1972, the Trial Judge on June 30, 1972 said 4 
in part, as follows:

"I think in connection with the issuance of the 
injunction in this case perhaps it 

should be pointed out that what I propose to 
order and what I have ordered is in the Court's 
opinion required of the defendants under the 
Equal Protection clause of the Fourteenth Amend­
ment of the United 'States Constitution and the 
Constitution of the State of Michigan. Quite 
aside from the issues of the legal propriety of 
the finding of. desegregation or the propriety 
of the order of metropolitan desegregation, I '
would think that no one, certainly no one 
involved in this case nor the officials involved 
in the litigation, would take the position that 
the pupils in the public schools of the City of 
Detroit are entitled to anything less than a full 
year of schooling in the 1972-73 school year.
They certainly rate more than two-thirds equality." 
Transcript of Proceeding of June 30, 1972, at 1.

Now the DETROIT BOARD OF EDUCATION finds itself 
at the point of fiscal exhaustion. The details of the complete

2



•  •

lack of funds of the Detroit School Board are spelled out in the 
Emergency Motion plus the attached Affidavit of Harold R. Brown, 
Business Manager of the Detroit Board of Education which we 
again urge the Court to review. As we have pointed out in the 
pleadings and in Mr. Brown's Affidavit even if the State Administrate 
Board advances an additional $20,000,000.00 aid that is due 
m  April, 1973 to the Detroit School Board it will not remedy 
the existing condition. Furthermore, the advance proposed by 

" the State Administrative Board educationally unsound for it ‘ "
provides for no guarantee for the continuation of instruction 
in the school in the spring of 1973.

The fact of the matter is that the Detroit School 
system has exhausted all its revenues, and by March, 1973 will 
have spent all tax revenues and already has reached the end 
of its borrowing capacity. By that date this school system
will be $7,100,000.00 in debt, and by June, 1973 will be

• '
$80,000,000.00 in debt.

The time has come for all parties including the 
Governor, the Attorney General, the State Board of Education 
and its members, the Superintendent of Public Instruction and 
the State Treasurer to recognize that Judge Roth's Order of 
July 7, 1972 was addressed to them also.

3



The Board of Education for the School District of 
the City of Detroit has done everything it possibly can do 
including , since Judge Roth's Order, placing a renewal millage 
proposition on the ballot twice to-wit, August, 1972 and November, 
1972 and doing so actually three times during the year 1972 only 
to be rejected by the voters. And we point out that the voters 
have rejected a 5 mill renewal thus depriving the system of 
28.8 million dollars.

Mr. Brown's Affidavit points out all the attempts 
that the Board has made to save money including the extraordinary 
success of having its teachers agree to no raise during the 
current year.

We also believe that under Federal Rules of Civil 
Procedure 62G, this Court has the power "to make any order 
appropriate to preserve the status quo or the effectiveness 
of the judgment subsequently entered."

A collapse of the Detroit School System is not pre­
serving the status quo. If this Court should order integration 
a collapse of the school system would leave no school district 
to integrate. We further believe that Judge Roth's statement 
as to the reason for his 180 regular school day order is so 
elegant that no citation of authority is needed. The actual

4



formulation of ths proposition gives us the answer.

The DETROIT BOARD OF EDUCATION would respectfully 
submit that in an attempt to preserve the status quo pendente 
lite this Court intended, and should intend, that that status 
£uo included the continued operation of the Detroit Public 
Schools. The absence of Court intervention at this time 
will not result in preservation of the status quo, but rather 
the most severe disruption of it imaginable. This precise 
problem led then-Circuit Judge William H. Taft, speaking of 
preliminary injunctions, to state:

"...but it sometimes happens that the status 
is a condition not of rest, but of" action, 

ana the condition of rest is exactly what will
uC? thS irreParable injury upon complainant, which he appeals to a court of equity to protect him from." ^

Toledo, A .A. & N.M. Ry Co. v. Pennsylvania Co. 54 F. 730, 741 
(CCA 6 1893).

Therefore, the DETROIT BOARD OF EDUCATION res­
pectfully requests that this Court take such action as will 
allow the DETROIT BOARD OF EDUCATION to continue to operate 
so that that status quo may be preserved.

It is indisputable that the School District of the 
City of Detroit is faced with imminent closure of its facilities

5



to the schoolchildren of the district. While those school 
doors are locked, the Detroit schoolchildren will be unable 
to attend school, although in virtually every other district 
within the state, children will be attending school at that 
time. Yet in juxtaposition to their total exclusion from the 
educational process are the historic words of the Supreme 

..Court .in Brown .vs. Board of ̂ Education, 347 U.S. 483 at 49-3 
(1954):

"Today, education is perhaps the most important 
function of State and local governments. Com­
pulsory school attendance laws and the great 
expenditures for education both demonstrate 
a recognition of the importance of education 
to our democratic society...
In these days, it is doubtful that any child 
may reasonably be expected to succeed in life 
if he is denied the opportunity of an education. 
Such an opportunity, where the State has under­
taken to provide it, is a right which must be 
made available to all on equal terms."
Emphasis added.

However, the imminent closing'of the Detroit school will deprive 
the Detroit schoolchildren of their right to the opportunity 
of an education. This right to access to education is a right . 
which has been clearly and repeatedly established and re­
cognized by the Federal Judiciary, not only in the context of 
racial segregation, but in the field of school taxation, Van
Dusartz v. Hatfield, 334 F. Supp. 870 (DC Minn. 1971); Rodriguez v. 
San Antonio, Civil Action 68-175 SA (W. B. Tex. 1971), in the 
area of equal educational opportunity, Hansen v. Hobson,

6



408 F.2d 175 (D.C. Cir. 1969), and in requiring education for 
the handicapped, Pennsylvania Association for Retarded Children v. 
Commonwealth of Pennsylvania, 343 F.Supp. 279 (E D Pa. 1972),
MiHs y. Board of Education of the District of Columbia . Civil 
Action No. 1939 - 71 (DDC 1972).

Moreover, the Federal Judiciary has been cognizant 
of the inherent deprivation of equal protection of the laws 
to schoolchildren of one district who face the closing of 
their schools, in the face of open schools in other school 
districts adjacent thereto. Thus, in Hall v. St. Helena Parish 
School Board, 197 F.Supp. 649 (E D La. 1961), aff'd 368 U.S.
515 (1962), a three-judge district court found it not only 
to be a violation of equal protection of Negro students for a 
State permit schools within one district to be closed, with 
schools in another remaining open, but found:

_ [I]nevitably, another effect of the statute 
is to discriminate geographically against 
all students, white and colored, in St. Helena 
or any other community where the schools are closed..." • '

197 F.Supp. at 656.

In prohibiting the closing of the St. Helena schools, 
the St. Helena Court held:

7



•  •

"Applying familiar principles to the admitted 
facts, that conclusion seems inescapable. Thus, 
it is clear enough that, absent a reasonable 
basis for so classifying, a state cannot close 
the public schools in one area while, at the 
same time it maintains schools elsewhere with public funds". Ibid,

The conclusion is inescapable: Allowing the schools
of the City of Detroit to be closed, while permitting school 
districts elsewhere in the State to remain open, is a violation ‘ 
of equal protection which the State of Michigan is not free - 
to pursue. Moreover, financial difficulty the State might face 
of keeping the Detroit School System open is insufficient to 
permit the closing of the Detroit schools, for when the State 
of Michigan undertakes to provide educational benefits, it must 
do so even handedly throughout the State. Hall v. St. Helena 
Parish School Board, 197 F.Supp. at 659. Thus, financial.'dis­
crimination or discrimination on the basis of wealth or its 
lack is constitutionally impermissible. Rodriguez v. San Antonio, 
supra.; Van Dusartz v. Hatfield, supra.; Smith v, Reynolds,
277 F.Supp. 65, af f ’ d.. sub nom. Shapiro v. Thompson, 394 U.S. ... 
618 (1969) . ■/ .

If the Court is concerned as to what action it may 
take we suggest that our pleadings give some possible aid to 
the Court. The Governor of Michigan certainly can call the 
Legislature into session to address itself to this matter.

8



•  •

The Attorney General and the Superintendent of Public Instruction 
and the State Board of Education and the State Treasurer can 
advise the Governor and the Legislature to divert funds to help
the school system and in general lend themselves to creative 
political statesmanship.

We cannot overemphasize to this Court the seriousness 
of this matter. We believe that action can be taken prior to '

..December 21, 1972 when the school district will be closed down--
for an 8 week recess. As Dr. Charles Wolfe, Superindentent 
of Detroit Schools points out in his Affidavit, and as we have 
done so in our pleadings, the reason for closing down Detroit 
Schools is to bring some order to the chaos by giving instruction 
for at least two semesters in an orderly fashion even though 
the semesters are abbreviated.

We cannot help but call the Court's attention to 
the proposition that in the world's wealthiest nation, and in 
.one of its wealthiest states, for some reason our political 
processes cannot provide 280,000 students With a 180 day 
education, though those processes can provide suburban middle 
class children and other children in the state with 180 day 
education. The framers of the Constitution and the Fourteenth 
Amendment would certainly be aghast at such an incredible 
situation.

9



We ask this Court to give this matter emergency treat­
ment and we are as prepared to come to Cincinnati at the earliest 
time to consider this matter with the court as we were when 
the suburban schools were seeking stays of bussing orders.

The author of this brief recognizes that he is 
first and foremost an officer of this Court and will do everything 
within his power-to act in that capacity to aide the Court in " ' 
considering this serious constitutional situation.

Respectfully submitted, 
RILEY AND ROUMELL

BY
oumell

Louis D. Beer 
Jane Keller Souris 
Russ E. Boltz
Attorneys for Appellant Board 
of Education of the School 
District of the City of Detroit 
720 Ford Building 
Detroit, Michigan 48226 
Telephone: 313-962-8255

Dated: November 22, 1972.