Brief in Opposition to Certiorari

    IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1971

NO. 71-1463

WILLIAM J. MILLIKEN, et al.,
Petitioners,

v s .

RONALD BRADLEY, et al.

BRIEF IN OPPOSITION TO CERTIORARI

JACK GREENBERG 
NORMAN J. CHACHKIN 10 Columbus Circle 
New York, New York 10019

E. WINTHER MeCROOM
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

BRUCE MILLER 
LUCILLE WATTS

3246 Cadillac Towers 
Detroit, Michigan

LOUIS R. LUCAS 
WILLIAM E. CALDWELL525 Commerce Title Bldg. 

Memphis, Tennessee 38103
NATHANIEL R. JONES 1790 Broadway 

New York, New York 10019
J. HAROLD FLANNERY 
PAUL R. DIMOND 
ROBERT PRESSMAN

38 Kirkland Street 
Cambridge, Mass. 02138

Attorneys for Respondents 
Ronald Bradley, et al., plaintiffs below



INDEX
Page
1Opinions Below

Jurisdiction ............................................. 1
Question Presented ....................................... 1
Statement ................................................ 2
REASONS FOR DENYING THE WRIT
I. Considerations Of Practicality And Sound 

Judicial Administration As Well As The 
Strong Federal Policy Against Piecemeal 
Appeals Expressed In 28 U.S.C. § 1291
Compel Denial Of The Writ ........................... 6

II. Assuming Arguendo That The Court Of 
Appeals Had Jurisdiction, This Court 
Should Not Review The Substantive 
Issues Before The Court Of Appeals
Has The Opportunity To Rule ...................    15

CONCLUSION............................................... 17

TABLE OF AUTHORITIES
Cases;
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 (1969).. 7,12
Bohms v. Gardner, 381 F.2d 283 (8th Cir. 1967)............. 10,11
Borough of Ford City v. United States, 345 F.2d 645

(3d Cir.), cert, denied, 382 U.S. 902 (1965)............ 10
Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970)........... 1,2,3
Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971)........... 1,3-4,12
Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich. 1971)...... 1
Brown Shoe Co. v. United States, 370 U.S. 294 (1962)....... 11,15
Calhoun v. Cook, 451 F.2d 583 (5th Cir. 1971).............. 9
Clark v. Kraftco Corp., 447 F.2d 933 (2d Cir. 1971)........ 14
Cooper v. Aaron, 358 U.S. 1 (1958)......................... 8nCorpus Christi independent School Dist. v. Cisneros,

404 U.S. 1211 (1971).................................... 12
Corpus Christi Independent School Dist. v. Cisneros,

Misc. No. 1746 (5th Cir., July 10, 1970)................ 12
Firestone Tire & Rubber Co. v. General Tire & Rubber

Co., 431 F. 2d 1199 (6th Cir. 1970)...................... 14n
Franklin v. Quitman County Bd. of Educ., 443 F.2d 909

(5th Cir. 1971)......................................... 9
Gillespie v. United States Steel Corp., 370 U.S. 148 (1964).. 13,14n
Griffin v. County School Bd., 377 U.S. 218 (1964).......... 8n
Joseph F. Hughes & Co. v. United Plumbing & Heating Co.,

390 F. 2d 629 (6th Cir. 1968)...........................  14n

i



•  •
Page

Kelley v. Metropolitan County Bd. of Educ., 436 F.2d
856 (6th Cir. 1970)...................................  14n

Keyes v. School Dist. No. 1, Denver, 445 F.2d 990
(10th Cir. 1971), cert, granted, 404 U.S. 1036 (1972) ... 13

Keyes v. School Dist. No. 1, Denver, 313 F. Supp. 61,
90 (D. Colo. 1970)..................................... 13

Keyes v. School Dist. No. 1, Denver, 303 F. Supp. 279
(D. Colo. 1969)........................................ 13

Leonard v. Socony-Vacuum Oil Co., 130 F.2d 535
(7th Cir. 1942)........................................ 10

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62 (1948) ... 10
Russell v. Barnes Foundation, 136 F.2d 649

(3d Cir. 1943)......................................... 10
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.l(1971)................................................  8n, 9n, 12
Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 F.2d

138 (4th Cir. 1970), rev'd 402 U.S. 1 (1971)........... 13
Swann v. Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp.

265 (E.D. N.C. 1970)................................... 13
Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F. Supp.

1358 (E.D. N.C. 1969)..................................  13
Taylor v. Board of Educ. of New Rochelle, 288 F.2d 600

(2d Cir. 1961)......................................... 8-9,12,15
The Palmyra, 10 Wheat. (23 U.S.) 502 (1825)...............  10
Utiited States v. Easement and Right-of-Way, 386 F.2d 769

(6th Cir. 1967)........................................ 14n
United States v. Texas Education Agency, 431 F.2d 1313

(5th Cir. 1970)........................................ 14n

Statutes:
28 U.S.C. §1254 (1) ........................................  1
28 U.S.C. §1291..........................................  5,6,7,9,15
28 U.S.C. §1292 (b)........................................ 12,13n

Rules:
F.R.C.P. 54(b)............................................ 6
F.R.C.P. 56 (c)............................................ 10
F.R.C.P. 56(d)............................................ 10

i i



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1971

NO. 71-1463

WILLIAM J. MILLIKEN, et al.,
Petitioners,

vs.
RONALD BRADLEY, et al.

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

Since the filing of the Petition for a Writ of 
Certiorari, the September 27, 1971 opinion of the district 
court, which was the subject of the appeal dismissed 
below, has been reported at 338 F. Supp. 582.

Neither the Court of Appeals' order of dismissal 
nor the rulings of the district court issued subsequent 
thereto have yet been reported; the prior opinions of the 
Court of Appeals are reported at 433 F.2d 897 and 438 F.2d 
945.

Jurisdiction
This Court has jurisdiction of this case pursuant 

to 28 U.S.C. § 1254(1) .

Question Presented
A single question is properly presented by this case: 

whether the Court of Appeals erred in dismissing Petitioners'



•  •

appeal from an interlocutory district court order requiring 
them to submit a desegregation plan for the court's 
consideration in the further stages of the litigation, 
when none of the Petitioners nor any other party was 
thereby enjoined to take any acts directly affecting the 
operation of the schools or the assignment of pupils and 
when important issues affecting the scope and content 
of any subsequent district court order remained to be 
resolved.

Statement
This is a school desegregation case which was 

commenced August 18, 1970 against the Superintendent 
of Schools and Board of Education of the City of Detroit, 
the Governor, Attorney General, State Board of Education 
and the State Superintendent of Public Instruction of 
Michigan. The present Petition for a Writ of Certiorari 
is filed only by the State defendants, although a Brief 
in Support of the petition has been submitted by a group 
of Respondent school districts located outside Detroit 
which were permitted to intervene as defendants in the 
district court.

The First Appeal Below
This litigation was filed a month and a half after 

the Michigan Legislature enacted a statute, described 
by the Court below in an earlier decision as "unconsti­
tutional' and of no effect as violative of the Fourteenth 
Amendment," which "thwarted, or at least delayed," 
implementation of a reassignment plan designed to achieve 
greater desegregation in Detroit's high schools which 
had been adopted by the Detroit Board of Education on 
April 7, 1970. Bradley v. Mil liken, 4II F.?d 897, 904 
( l> I 11 (' 1 r  . I '>/<>) . T h e  < '< ilii| >1 n I l i !  nr '< •< > l < I I li< | I •/ |<i n y m l  I I in I

-7-

f



a preliminary injunction issue against the operation of
the statute and that implementation of the April 7, 19701/plan be directed.

The complaint further alleged that the public 
schools of Detroit were being operated on a racially 
segregated basis as a result of historic policies, 
practices and actions of State authorities. It sought 
appropriate permanent relief requiring the dissolution 
of the segregated system and elimination of racially 
identifiable schools.

The district court initially denied the motion for 
preliminary injunction, but its ruling was reversed by 
the Court of Appeals, which held the statute unconstitu­
tional. 433 F.2d 897.

The Second Appeal
On remand, the plaintiffs sought again to require 

the immediate implementation of the April 7 Plan as a 
matter of interim relief to remedy the mischief created 
by the enactment of the unconstitutional statute, without 
determination of the more general issues raised in the 
complaint. The district court permitted the Detroit 
Board of Education to propose alternative plans and 
approved one of these; plaintiffs again appealed, but the 
Court below remanded the matter "with instructions that 
the case be set forthwith and heard on its merits," 
stating:

The issue in this case is not what might 
be a desirable Detroit school plan, but 
whether or not there are constitutional

J7~ Following adoption of the April 7, 1970 desegregation 
plan, a majority of the members of the Detroit Board of 
Education were recalled by the electorate and their 
positions filled by subsequent appointment by the Governor 
of Michigan.



violations in the school system as presently 
operated, and if so, what relief is necessary 
to avoid further impairment of constitutional rights.

438 F.2d 945, 946 (6th Cir. 1971) (emphasis supplied).

The Third Appeal
An extensive trial consumed most of the spring and 

summer of 1971 and on September 27, 1971, the district 
court issued Findings of Fact and Conclusions of Law, 338 
F. Supp. 582, in which it concluded that the racial 
segregation in the Detroit public schools was not acci­
dental but rather the product of a panoply of racially 
discriminatory actions by federal, state and local 
authorities, educational and other, combined with acts 
and results of private discrimination. The court scheduled
a pretrial conference to discuss further proceedings with

2/counsel, at which time the Detroit Board of Education 
and the Michigan State Board of Education were orally 
directed to submit proposed plans of desegregation. At 
the request of the State defendants, the district court 
on November 5, 1971 reduced its oral instructions to the 
parties to a written Order (see Appendix to Petition for 
Writ of Certiorari, pp. 29a-30a). On December 3, 1971, 
the Detroit Board of Education and the Petitioners filed

T7— A group of Detroit parents who had intervened 
in the proceedings had filed a motion seeking to join 
as parties other school districts surrounding Detroit 
so that the Court might fashion relief involving the 
exchange of pupils in such districts and the Detroit 
district. The lower court declined to pass upon this 
motion in its September 27 ruling but did later direct 
the State Board of Education to submit a metropolitan 
plan of desegregation for the court's consideration, 
as well as permit intervention by 43 school districts 
outside Detroit.

-4-



Notices of Appeal from the Order of November 5, 1971. 3/

On January 25, 1972, plaintiffs filed a Motion to 
Dismiss Appeals (which had been docketed in the Sixth 
Circuit on January 24) on the ground that the Court of 
Appeals lacked jurisdiction pursuant to 28 U.S.C. § 1291 
since the Order of November 5, 1971 could not be construed 
as a final order. After response by all parties, the 
Court of Appeals entered the order of which review is 
sought on February 22, 1972.

Subsequent Proceedings in the District Court
Following issuance of its Order of November 5, 1971 

and since dismissal of Petitioners' appeal, the district 
court has pursued further proceedings in this matter 
looking toward the shaping of an appropriate remedial 
decree for the constitutional violations it found to 
exist. Hie court has considered desegregation plans 
limited to the City of Detroit and not so limited; it 
has permitted intervention in the proceedings by a large 
number of school districts outside the City of Detroit; 
it has held exhaustive hearings this spring; it has 
received extensive proposed findings of fact and conclu­
sions of law on the remedy issue; and it has issued 
various interlocutory rulings and opinions of law (see 
Appendix to Petition, pp. 31a-43a) but no order, 
injunction or judgment. The matter is now awaiting the 
court's decision and the formulation of an equitable

17" On December 11, 1971, plaintiffs below filed a Notice 
of Appeal from the November 5 Order of the district court 
limited to the correctness of the district court's findings 
in the September 27, 1971 opinion on the subject of faculty 
segregation. In the Motion to Dismiss the Detroit Board's 
and Petitioners' appeals filed in the Court below, plain­
tiffs questioned the viability of their own appeal and 
consented to its dismissal as well if their motion were 
grantee).

-5-



•  •

decree —  a final order in this litigation.

REASONS FOR DENYING THE WRIT 
I

Considerations Of Practicality And Sound Judicial
Administration As Well As The Strong FederalPolicy Aga ns Piecemeal Appeals Expressed in 28
U.S.C. § 1291 Compel Denial Of The Writ.

A. It Is Highly Likely That The Question Will Be Mooted 
Before This Court Reaches The Merits.
Petitioners sought to appeal from an interlocutory 

order of the district court which required nothing more 
than that they prepare and submit to the court a plan 
of desegregation —  an order so clearly considered by 
the district judge to be one concerned only with the 
manner of proceeding in the litigation that it was not 
reduced to writing except upon the request of counsel for 
Petitioners. Compare F.R.C.P. 54(b) (express direction 
for entry of judgment is predicate of appealability). 
Petitioners' appeals were dismissed by the Court below 
on February 22, 1972; the Petition for a Writ of Certio­
rari was docketed here May 9, 1972, seeking reversal of 
the Sixth Circuit's order dismissing the appeals because 
the district court decree was not final. Thus, should 
Petitioners prevail in this Court, the Court of Appeals' 
Order of Dismissal will be vacated and the matter restored 
to its docket for submission of briefs by the parties 
and oral argument.

Such a course of action is clearly unnecessary to 
protect Petitioners' right to review, and, indeed, events 
are likely to overtake this Court's process so as to 
require the dismissal of the Writ, if granted. For 
during the course of the proceedings in the Court of Appeals 
and here, the litigation of this matter before the district

-6-



court has continued. A set of hearings nearly as lengthy 
as those of the summer of 1971, which resulted in the 
district court's Memorandum Opinion finding unlawful 
segregation in the public schools, was held this spring 
on the issue of the appropriate remedy for such segregation 
and the entire matter is now under advisement before the 
district court, which has indicated that it would attempt 
to render its decision prior to the 1972-73 school year.

Thus, even if this Court were to grant the Petition, 
there is substantial likelihood that the district judge 
will shortly have entered a final order into which its 
prior rulings would be merged and from which Petitioners 
could, if dissatisfied, prosecute an appeal to the Sixth 
Circuit and litigate all of the issues they now seek to 
litigate in this Court.

In the circumstances of this case, therefore, 
favorable consideration of the Petition by this Court is 
unlikely to afford Petitioners any greater protection 
of their rights than denial.

B. Piecemeal Review Is Particularly Inappropriate In 
School Desegregation Cases.
The usual policy against piecemeal review (given 

expression in 28 U.S.C. § 1291) is particularly suited 
and essential in school desegregation cases. Not only 
are the issues of violation and remedy interrelated, but 
the immediacy requirements of Alexander v. Holmes County 
Bd. of Educ., 396 U.S. 19 (1969) weigh heavily against 
encouraging delay by fragmented appeals. Against the 
generalized claim advanced by Petitioners that the public 
interest would be served by a determination on the matter

-7-



of liability (Petition, at p. 12) must be placed the 
interest of black schoolchildren who are discriminated 
against and the public interest in the constitutional 
operation of the schools.

The considerations peculiar to school desegregation
cases were enunciated by Chief Judge Friendly of the
United States Court of Appeals for the Second Circuit
in 1961; his words bear quotation here:

There is a natural reluctance to dismiss 
an appeal in a case involving issues so 
important and evocative of emotion as 
this, since such action is likely to be 
regarded as technical or procrastinating. Although we do not regard the policy 
question as to the timing of appellate 
review to be fairly open, we think more 
informed consideration would show that the 
balance of advantage lies in withholding 
such review until the proceedings in the 
District Court are completed. To stay the 
hearing in regard to the remedy, as appel­
lants seek, would produce a delay that would 
be unfortunate unless we should find complete 
absence of basis for any relief —  the only 
issue that would now be open to us no matter 
how many others might be presented, since we 
do not kjiow what the District Judge will 
order —  and if we should so decide, that 
would hardly be the end of the matter. On 
the other hand, to permit a hearing on relief 
to go forward in the District Court at the 
very time we are entertaining an appeal, 
with the likelihood, if not indeed the 
certainty, of a second appeal when a final 
decree is entered by the District Court, 
would not be conducive to the informed appel­
late deliberation and the conclusion of this 
controversy with speed consistent with order, 
which the Supreme Court has directed and 
ought to be the objective of all concerned.
In contrast, prompt dismissal of the appeal 
as premature should permit an early conclu­
sion of the proceedings in the District

Thisis an intriguing argument: the district court here initially denied relief sought by the plaintiffs on 
two occasions without similar public outcry and was only 
persuaded after an extensive trial. Yet, whipped by 
emotional appeals of office-seekers, the public is said 
to be so aroused that compliance with the judicial Code is 
characterized as "profoundly inimical to the public interest. 
The history of school desegregation teaches that even the most carefully considered rulings of this Court do not 
escape the same reaction and manipulation. Set* Swann, supra, 402 U.S. at 12; Cooper v. Apron, ir>H II.S. 1 (lOSM) • griffin v . fniinl y gehoo 1 ltd . , l 77 11. S . .’ill ( I '*f>4 ) .



Court and result in a decree from which defendants have a clear right of appeal, 
and as to which they may seek a stay pending appeal if so advised. We —  and the 
Supreme Court, if the case should go there 
—  can then consider the decision of the District Court, not in pieces but as a whole, 
not as an abstract declaration inviting the 
contest of one theory against another, but 
in the concrete. We state all this, not 
primarily as the reason for our decision not 
to hear an appeal at this stage, but rather 
to demonstrate what we consider the wisdom 
embodied in the statutes limiting our juris­
diction, which we would be bound to apply 
whether we considered them wise or not.

Taylor v. Board of Educ. of New Rochelle, 288 F.2d 600,
605-06 (2d Cir. 1961). See also, Calhoun v. Cook, 451
F.2d 583 (5th Cir. 1971) (retaining jurisdiction of
appeal and remanding to permit plaintiffs to put on evidence
as to feasible plan of desegregation).

Finally, we are confident that we need not emphasize 
to this Court the considerations of judicial economy 
which support the decision below. These are particularly 
appropriate in school desegregation cases, which neces­
sarily are given some priority of treatment (see, e.g., 
Franklin v. Quitman County Board of Education, 443 F.2d
909 n. 1 (5th Cir. 1971)) and which already result in

5/significant litigation in the Court of Appeals.

C. The Ruling Below Correctly Applies The Decisional 
Law of This Court In Interpreting 28 U.S.C. § 1291 
As To The Jurisdiction Of The Courts Of Appeals.
We have made the point above that this is not a particu­

larly compelling case for the exercise of this Court's 
certiorari jurisdiction since a decision by this Court

— In Swann, supra, this Court noted that the Fifth 
Circuit had considered 160 appeals in school desegregation 
cases in less than one preceding year. 402 U.S. at 14.
In 1971, the Sixth Circuit considered and decided cases 
from Detroit, Kalamazoo, and Pontiac, Michigan; Nashville, 
Knoxville, Memphis, Jackson, Shelby County and Madison 
County, Tennessee involving school desegregation.

-n -



order

. . . neither granted nor denied the relief
the claimant seeks ... Thus, in the words 
of Catlin v. United States, supra, [324 U.S. 
229 (1945)] the litigation had not reached 
its end on the merits and there is more for 
the court to do than execute the judgment, 
or, as Judge Ridge said, in Smith v. Sherman, 
supra, p. 551 of 349 F.2d, the district 
court's action by no means was "the last 
word of the law."

The instant case is not at all akin to Brown Shoe 
Co. v. United States, 370 U.S. 294 (1962), cited by 
Petitioners. in that decision, Mr. Chief Justice Warren 
writing for the Court held that a direct appeal under 
the Expediting Act (15 U.S.C. § 29) was properly taken 
from an order granting relief in an antitrust case including 
divestiture, even though the details of a plan to accom­
plish this divestiture remained to be devised and submitted 
to the district court for approval. The Court relied 
upon three factors: (1) the order disposed of the entire
case, including every prayer for relief —  while ultimate 
divestiture was ordered, several specific injunctions 
were also issued (370 U.S. at 308); (2) delay in reviewing
the matter could result in harm to the parties and the 
public interest because market conditions might change 
during the pendency of an appeal in such a fashion as to 
prevent an already formulated and approved plan of divesti­
ture from being functional (370 U.S. at 309); and (3) 
the practice in the past, although not controlling, had
been to accept such appeals, usually without discussion

6/of finality (ibid.).

Each of these factors, considered in the present case, 
militates against treating the district court's decree

6/ So far as counsel for these Respondents are aware, this 
Court has never cited Brown Shoe to just i fy its acceptance 
of an appeal from an interlocutory decree in any but ,.nt i - t rust onsos.



of November 5, 1971 as a final order. In the first place,
every claim for relief was not passed upon. And far more
remained to be done than just the formulation of a plan
to effectuate a complex commercial transaction; indeed,
serious substantive legal issues concerning the nature and
scope of the available remedy remained to be passed upon.
See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1 (1971). Second, there is no danger of irreparable injury
to any party by delay of the appeal; the dismissal of the
appeals below hardly forecloses the issue whether the
"Court of Appeals, and ultimately this Court, should review
this matter before hundreds of thousands of school children
are loaded onto school buses [etc.]" (Petition, p. 11).
See Corpus Christi Independent School Dist. v. Cisneros,
404 U.S. 1211 (1971)(Mr. Justice Black); compare Alexander

7/
v. Holmes County Bd. of Educ., supra. Finally, the
settled course of practice (and with good reason, see §B,
supra) in school desegregation cases has been for appellate
courts to consider rulings on the questions of liability

8/
and appropriate remedy together. Taylor v. Board of
Educ. of New Rochelle, 288 F.2d 600 (2d Cir. 1961); Corpus 
Christi Independent School Dist. v. Cisneros, Misc. No. 1746 
(5th Cir., July 10, 1970)(refusing interlocutory appeal 
pursuant to 28 U.S.C. § 1292(b)); Bradley v. Milliken, 438 
F.2d 945 (6th Cir. 1971). Most litigants have followed 
this practice; for example, appeals challenging the findings

7/ We here express no view on the propriety of staying 
whatever remedial order may be entered by the district court, 
but merely point out that Petitioners will have an adequate 
opportunity to litigate that question when such an order is in 
fact entered. Since the order has not yet been entered, the 
effective date of any relief is as yet unknown.
8/ While Petitioners represent that double appeals will not 
require "repetitive judicial consideration of the same question," 
(Petition at p. 11), since the constitutional violation and the 
remedy are interdependent, see Swann v. Charlotte-Mecklenburg

12



of liability irr Swann v. Charlotte-Mecklenpurq Bd. of 
Educ., 300 F. Supp. 1358 (E.D.N.C. 1969) and Keyes v.
School Dist. No. 1, Denver, 303 F. Supp. 279 (D. Colo.
1969), 313 F. Supp. 61 (D. Colo. 1970) were not filed until 
after remedial decrees had been formulated, see Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp. 265 
(E.D.N.C. 1970); Keyes v. School Dist. No. 1, Denver, 313 
F. Supp. 90 (D. Colo. 1970). Swann v. Charlotte-Mecklenburg 
Bd. of Educ., 431 F.2d 138 (4th Cir. 1970), rev'd 402 
U.S. 1 (1971); Keyes v. School Dist. No. 1, Denver, 445 
F.2d 990 (10th Cir. 1971), cert. granted, 404 U.S. 1036 
(1972) .

We recognize with Petitioners that a final order "'does 
not necessarily mean the last order possible to be made in 
a case,' Gillespie v. United States Steel Corp., 379 U.S.
148, at 152 (1964)." (Petition at p. 12). Indeed, the law
of finality was infused with a necessary flexibility by the

1/decision in Gillespie. It does not, however, support
Petitioners' claims in this case.

Petitioners fail to observe that the holding in Gillespie,
which affirmed a determination by the court below in another
case to accept, rather than dismiss, an appeal on its merits,
does not remove the requirement of finality. As the Second
Circuit has put it:

. . . All that the Court decided in 
Gillespie was that a court of appeals 
has the power to review an order in a 
"marginal" case within the "twilight 
zone of finality" where the questions pre­
sented on appeal are fundamental to the

8/ (Continued)
Bd. of Educ., 402 U.S. at 16, the Court of Appeals would of 
necessity be reviewing the same evidence in passing upon the 
appropriateness of a remedial decree as it had considered in 
passing upon the correctness of the liability ruling.
9/ Gillespie effectively allows the Court of Appeals to 
relieve a party from the consequences of falling to week or 
obtain a certificate pursuant to 28 U.S.C. § 1292(b) 
authorizing interlocutory appeal, where irreparable harm would otherwise result.

13



further conduct of the case" and "the 
inconvenience and costs of piecemeal 
review" are outweighed by "the danger 
of denying justice by delay." 379 
TJ.S. at 152-154, 85 S.Ct. at 311-312. Difficult questions of appealability 
may require a court of appeals to 
review the entire record in detail.
Gillespie recognizes the judicial 
inefficiency inherent in reviewing an 
entire appeal and then deciding that 
the court of appeals cannot act because 
it does not have jurisdiction. See 
Green v. Wolf Corp., 406 F.2d 291, 302 
(2d Cir. 1968), cert, denied, 395 U.S.
977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969);
9 J. Moore, Federal Practice ff 110.12 
(2d ed. 1970). However, the power recog­
nized in Gillespie should be used sparingly, 
and we do not believe that this is a proper 
case for its exercise.

Clark v. Kraftco Corp., 447 F.2d 933, 935-36 (2d Cir.
10/

1971).
We think, then, that the Court of Appeals was right in 

dismissing the appeal below because even if the lack of 
finality of the November 5, 1971 decree is considered open 
to question, there is no realistic danger of denying justice 
by delay which would compel review under Gillespie.

10/ A brief review of other decisions of the Sixth Circuit 
dealing with this issue will demonstrate convincingly that 
the Court properly applies the pragmatic tests endorsed in 
Gillespie. See United States v. Easement and Right-of-Way,
386 F.2d 769, 770 (6th Cir. 1967); Joseph F. Hughes & Co. 
v. United Plumbing & Heating, Inc., 390 F.2d 629, 630 (6th 
Cir. 1968); Firestone Tire & Rubber Co. v. General Tire &
Rubber Co., 431 F.2d 1199, 1200 (6th Cir. 1970); Kelley v. 
Metropolitan County Bd. of Educ., 436 F.2d 856, 862 (6th 
Cir. 1970) (citing Gillespie, and holding appealable a stay 
order which halted proceedings to devise a remedy for uncon­
stitutional school segregation). Accord, United States v. Texas, 
Education Agency, 431 F.2d 1313 (5th Cir. 1970).



II

Assuming Arguendo That The Court Of Appeals 
Had Jurisdiction, This Court Should Not Review 
The Substantive Issues Before The Court Of 
Appeals Has The Opportunity To Rule.

If the court below was correct in dismissing Petitioners' 
appeals because the November 5, 1971 order of the district 
court was not final within the meaning of 28 U.S.C. § 1291, 
that is the end of the matter. Even if this court should 
accept Petitioners' contentions as to appealability, however, 
the matter should be remanded for consideration on the merits 
by the court of Appeals and the grant of certiorari limited 
to the first question presented in the Petition.

Inasmuch as the Court of Appeals has not considered 
the second or third questions in the Petition, it has 
entered no judgment thereon and this Court could review the 
issues only directly from the district court, see Rule 20 
of the Supreme Court Rules.

Petitioners do not discuss the reasons which might 
justify such an exceptional exercise of this court's 
certiorari jurisdiction; both logic and precedent argue 
against review of these questions at this time.

The same practical considerations outlined by Judge 
Friendly in Taylor v. Board of Educ. of New Rochelle, supra 
(see p. 8-9 above) apply with added force to the determination 
whether to utilize an extraordinary procedure which "deprives 
. . . this court of the benefit of consideration by a Court
of Appeals." Brown Shoe Co. v. United States, supra, 370 
U.S. at 355 (Mr. Justice Clark, concurring). The vital role 
which the court of Appeals could play in resolving factual 
disputes and narrowing the issues is apparent from the nature

15



of this case and of the primarily factual questions 
presented in the Petition. Underlining these points is 
the fact that the 1971 trial on the constitutional violation 
in this case was the longest such hearing in a school

11/desegregation case insofar as these Respondents are aware; 
the finding of unlawful segregation made by the district 
court resulted from the analysis and sifting of an extra­
ordinary record, and review of its conclusion will require 
an equally burdensome and time-consuming investigation by 
an appellate court. But this Court sits primarily to correct 
legal, not factual errors.

Petitioners assert that if the writ issues "they can
demonstrate through thorough analysis of the testimony and
exhibits, that the findings of fact made below —  insofar
as they seem to support a finding of de jure segregation —
are clearly erroneous, F.R.C.P. 52(a)." (Petition, pp. 12-13)
(emphasis supplied). passing upon such claims is the

12/archetypal function of the Courts of Appeals.
At most, the district court's opinion of September 27, 

1971 —  the basis of its November 5, 1971 order —  determines 
only the accountability of state and local educational 
authorities for constitutional violations. It prescribes 
no remedy and requires no metropolitan desegregation to be

11/ The trial lasted 41 days, produced 4710 pages of transcript 
and 408 trial exhibits.
12/ This case bears little resemblance to those cited by 
the other Respondents in which review prior to judgment in 
the Court of Appeals was granted; each of those involved 
a. substantial legal issue plainly presented, usually of 
major importance to the continued operation of a federal 
statute or other national program, in a context shorn of 
significant factual dispute.

16



effectuated. As to the issue of metropolitan desegregation, 
the district court's rulings of March 24 and March 28, 1972 
(Appendix to Petition, pp. 31a-43a) are expressions of 
opinion, but no orders or judgments have been entered. All 
of the considerations discussed above apply with added force 
to the desirability of denying review of the third question. 
While there may be occasions when the importance of an 
issue merits dispensing with intermediate appellate review 
(see cases cited in Rule 20 of the Supreme Court Rules), it 
is hardly conceivable that this Court can render anything 
but advisory pronouncements if it is to bypass the district 
court as well, as Petitioners and other Respondents suggest.

CONCLUSION

WHEREFORE, for the foregoing reasons, these Respondents 
respectfully pray that the Petition for a Writ of Certiorari 
be denied.

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

E. WINTHER MCCROOM3245 Woodburn Avenue 
Cincinnati, Ohio 45207

BRUCE MILLER 
LUCILLE WATTS

3246 Cadillac Towers 
Detroit, Michigan

Attorneys for Respondents 
Ronald Bradley, et al., plaintiffs below

Respectfully submitted,

LOUIS R. LUCAS 
WILLIAM E. CALDWELL

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

NATHANIEL R. JONES 1790 Broadway 
New York, New York 10019

J. HAROLD FLANNERY 
PAUL R. DIMOND 
ROBERT PRESSMAN38 Kirkland Street 

Cambridge, Massachusetts 02138

17



IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1971

NO. 71-1463

WILLIAM J. MILLIKEN, et al..
Petitioners,

vs.
RONALD BRADLEY, et al.

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Brief in 
Opposition to Certiorari was this 13th day of June, 1972, served 
upon counsel of record by United States Mail, postage pre-paid,
addressed as follows:
DOUGLAS H. WEST, ESQ.
ROBERT B. WEBSTER, ESQ.
3700 Penobscot Building 
Detroit, Michigan 48226
WILLIAM M. SAXTON, ESQ.
1881 First National Building 
Detroit, Michigan 48226
ROBERT J. LORD, ESQ.8388 Dixie Highway
Fair Haven. Michigan 48023
EUGENE KRASICKY, ESQ. Assistant Attorney General 
Seven Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913

THEODORE SACHS, ESQ.1000 Farmer
Detroit, Michigan 48226
ALEXANDER B. RITCHIE, ESQ.
2555 Guardian Building 
Detroit, Michigan 48226
RICHARD P. CONDIT, ESQ.Long Lake Building
860 West Long Lake Road
Bloomfield Hills, Michigan 48013
KENNETH B. MCCONNELL, ESQ.74 West Long Lake Road 
Bloomfield Hills, Michigan 48013
GEORGE T. ROUMELL, JR., ESQ.
720 Ford Building 
Detroit, Michigan 48226

Attorney for 
Bradley, et a spondents Ronald" 

plaintiffs below