Reply and Supplemental Brief

    In The
SUPREME COURT OF THE UNITED STATES 

October Term 1971 
No. 71-1463

WILLIAM J. MILLIKEN Governor of the 
State of Michigan, et al.,

Petitioners,
vs.

RONALD BRADLEY, et al.,
Respondents.

/

REPLY AND SUPPLEMENTAL BRIEF

FRANK J. KELLEY 
Attorney General

Robert A. Derengoski Solicitor General

Eugene Krasicky 
Assistant Attorney General
Attorneys for Petitioners
Business Address:
Law Building
525 West Ottawa StreetLansing, Michigan 48913



TABLE OF CONTENTS

Introduction.................................
Additional Reasons for the Grant of Certiorari 
Relief.......................................

AUTHORITIES CITED

Swann v. Charlotte-Mecklenburg Board of Education,
402 US 1, 16 and 24 (1971)

Const 1963, Art IV, Sec . 30. .
Art IX, Sec . 17..



In The
SUPREME COURT OF THE UNITED STATES

October Term 19.J7J,------
No. 71-1463

WILLIAM J. MILLIKEN, Governor of the 
State of Michigan, et al.,

Petitioners,
vs.

RONALD BRADLEY, et al.,
Respondents.

/

REPLY AND SUPPLEMENTAL BRIEF 

INTRODUCTION

The petitioners believe arguments raised in the brief 
in opposition to the petition for certiorari have been eroded by 
subsequent events and, therefore, it is petitioners' duty to brihg 
these developments to the attention of the Court.

ADDITIONAL REASONS FOR THE GRANT OF CERTIORARI

I.
On June 14, 1972 the district court issued its "FINDINGS 

OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF RULING ON DESEGREGATION 
AREA AND DEVELOPMENT OF PLAN" and entered its order entitled "RULING 
ON DESEGREGATION AREA AND ORDER FOR DEVELOPMENT OF PLAN OF DESEGRE­
GATION." These documents are contained in the supplemental joint 
appendix filed by petitioners and respondent intervening school 
districts. References herein are references to the pages of the 
supplemental joint appendix unless otherwise indicated. Again the 
orders are couched in "non-final" terms but set in motion events 
which would prevent effective review of same until the entire con­
troversy has become a fait accompli.



We believe the district court is in good faith in its
attempt to achieve integration of the Detroit school system. However 
we vigorously assert that the procedures and methods employed by the 
Court are in derogation of existing law and that there is no basis 
for decreeing relief in the manner and to the enormous extent con­
templated by the district court.

II.

The order entered on June 14, 1972 effectively compels the 
implementation of a massive metropolitan busing remedy prior to any 
appellate review on the questions of de jure segregation and the 
propriety of a metropolitan remedy. This order clearly puts to rest 
the contentions of plaintiffs-respondents concerning the lack, to 
date, of any significant decrees by the district court and petitioners 
ability to seek a stay and timely appellate review prior to implementa­
tion of the "final" remedial order of the district court.

The grave error of the district court is related by the 
court itself when in the second sentence of its opinion the court
says :

"... It should be noted that the court has taken 
no proofs with respect to the establishment of 
the boundaries of the 86 public school districts 
in the counties of Wayne, Oakland and Macomb, 
nor on the issue of whether, with the exclusion 
of the city of Detroit school district, such 
school districts have committed acts of de jure 
segregation." (laa,2aa)

Yet, the "desegregation area" chosen by the court includes Detroit 
and 52 other school districts. Moreover, 18 of these school districts 
are not even parties to the litigation. It is respectfully submitted 
that the equitable powers of the district court do not reach these 18 
school districts.

The district court's order plainly requires, within the 
judicially chosen "desegregation area" of 53 school districts, that 
at a minimum, a desegregation plan be prepared and implemented for

-2-



the fall 1972 term including grades K-6, K-8, or K-9 in all or in 
as many clusters as practicable. This will occur less than 90 days 
from the date hereof. Complete and final desegregation must be 
accomplished no later than the fall 1973 term. Thus, for the fall 
1972 term, there will be an "interim plan" with a "final plan" to be 
included in a subsequent "final order." (33aa, 34aa, 38aa).
Petitioners are compelled to assert that the district court s 
piecemeal relief process will make large scale metropolitan busing 
an accomplished fact prior to appellate review.

As to faculty and staff, the district court found no 
de jure segregation in the Detroit public schools on this issue in 
its "Ruling on Issue of Segregation" on September 27, 1971, In 
fact, at that time the court praised the exemplary conduct of the 
Detroit school board and the intervening defendant union in the 
area of faculty and staff (14a-19a of petitioners' original appendix). 
Yet, in its remedial injunctive order of June 14, 1972 the court 
decreed:

"...In the context of the evidence in this 
case, it is appropriate to require assign­
ment 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." (36aa).
Patently, this demonstrates that, contrary to the explicit 

commands of this court in Swann v. Charlotte-Mecklenburg Board of 
Education, 402 US 1, 16 and 24 (1971), the district court, in the 
absence of any finding of a constitutional violation as to faculty 
and staff, has decreed an impermissible fixed racial balance quota 
for each school within the 53 school districts. Based on judicial 
speculation of a desirable racial balance, many teachers in the metro­
politan area will be required to teach in new schools and school dis­
tricts in the fall irrespective of their presently existing contractual 
rights.

-3-



III.

The scope of the remedial injunctive order entered on 
June 14, 1972 also extends to racial balance in future school con­
struction and expansion and modification of existing administrative, 
financial, contractual, property and governance arrangements as re­
quired to effectively operate a desegregated school system within the 
53 school districts.(36aa,37aa) The lower court has ordered the Super­
intendent of Public instruction, with assistance from the other state 
defendants, to make recommendations to the court for interim and final 
arrangements in each of the areas of school district administration 
set forth above.(37aa;38aa) In addition, the Superintendent of Public 
instruction has been expressly ordered to recommend what he deems 
necessary to achieve the objectives of the court's order in these 
areas independently of what state law provides in each of these areas.

(37aa,38aa).

On the question of financing the metropolitan remedy, the 
district court has ruled that funds must either be raised or reallocated, 
where necessary, to secure plaintiffs' constitutional rights. ( 27aa ). 
Further, the state defendants have been ordered to bear the costs of 
the nine member panel appointed by the court to design interim and 
final plans. ( 33aa). Simply put, the state defendants do not possess
the power of the purse under Michigan law. The power to lawfully 
appropriate state funds under Michigan law is reposed in the Michigan
Legislature. Const 1963, Art IV, Sec. 30:

"The assent of two—thirds of tne members 
elected to and serving in each house of 
the legislature shall be required for the 
appropriation of public money or property 
for local or private purposes."
Art IX, Sec. 17:
"No money shall be paid out of the state treasury  ̂
except in pursuance of appropriations made by law.

-4-



Petitioners have no authority to expend funds without legislative 
approval and the legislature is not a party to this cause. Thus, 
the district court has assumed the role of final arbiter over school 
district finance and state funds for 53 school districts.

The necessity of this Court's passing upon the three 
questions raised by the petition for certiorari are vividly illustrated 
by several aspects of the district court's most recent "non-final 
opinion and order. This opinion and order are truly remarkable in 
terms of the slender foundation, indeed a foundation of sand, upon 
which the lower court has erected a 53 district metropolitan desegre­
gation edifice covering all aspects of the educational process.

To conclude, the time has come for this Court to take 
jurisdiction of this cause and pass upon the three questions raised 
in the petition for certiorari. A metropolitan desegregation remedy 
involving the busing of hundreds of thousands of school children, 
the relocation of thousands of teachers, and the disruption of the 
educational programs of 53 separate districts, involving some 
800,000 students must not be implemented prior to final appellate 
review by this Court. (See Exhibit A indicating areas affected by 
the district court orders).

-5-



RELIEF

For the aforegoing reasons, a writ of certiorari should 
issue to review the judgment of the Sixth Circuit and this Court 
should assume jurisdiction to determine the three questions raised 
in the petition for certiorari prior to the implementation of the 
metropolitan remedy in this cause.

Respectfully submitted,

FRANK J. KELLEY 
Attorney General

Robert A. Derengoski
i +-rvr R p n p r a l

7 U
// O'

Eugene Krasicky 
Assistant Attorney General
Attorneys for Petitioners
Business Address:
Law Building
525 West Ottawa Street
Lansing, Michigan 48913

Dated: June 16, 1972



ArmadaBrandon

Romeo Richmont

Ciarkston

Rochester

Pontiac Chippewa fL'Ans^, 

Utica J  Vailey ?Creuse /
Waterford

Avondale

•-* West n  , F  ^  
Bloomfield Bloomfield Hills Mount!

iClemnns
A r

Clinton S ’

d a | .e , /
Lake Shore

Birmingham Dawson + —y  Warren
Lamphere 4

Warren
Woodsl

RosevilleFarmington

Southfield Lakeview1 7 1 I__ Center Line

flak Park Fprndale Hazel ■ ^  J ”  ^ anOak Park Ferndaie ^  Fit2gerald Dyke East 2 
DetroitClarence. 

f _ v ille  .

Plymouth P —^  Dearborn Height^1] ^ / p M H
•' | v3 Crestwood

garden City 11 f Dearborn

12 ChBr[V Hili/w e s tw o o d  " / >  
Inkster i  '
| 1 2 j j y  2 U P earborn^Melvindafe^

AHeiN/̂ C
Wayne-Westland

Park /Lincoln^ Ecorse
Romulus

Wyandotte

Riverview

Woodhaven
Trenton

XlFJatrock

Gilbraltar

EXHIBIT A

Note: Area designated by diagonal lines'indicates present Detroit ;
School District. ■ _ . •Area in white indieates school districts, to be affected Judr?|> 
Rothes ’ord 6 i ? £ ‘ 1



In The
SUPREME COURT OF THE UNITED STATES 

October Term 1971 
No. 71-1463

WILLIAM J. MILLIKEN Governor of the State of Michigan, et al.,

vs.
Petitioners,

RONALD BRADLEY, et al.,
Respondents.

/

REPLY AND SUPPLEMENTAL BRIEF

FRANK J. KELLEY 
Attorney General

Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Assistant Attorney General
Attorneys for Petitioners
Business Address:
Law Building
525 West Ottawa Street
Lansing, Michigan 48913



TABLE OF CONTENTS

Introduction.................................
Additional Reasons for the Grant of Certiorari 
Relief.......................................

AUTHORITIES CITED

Swann v. Charlotte-Mecklenburg Board of Education, 
402 US 1, 16 and 24 (1971)....................

Const 1963, Art IV, Sec. 30......................
Art IX, Sec. 17......................



In The
SUPREME COURT OF THE UNITED STATES

October. Term 19_72------
No. 71-1463

WILLIAM J. MILLIKEN, Governor of the 
State of Michigan, et al.,

Petitioners,
vs.

RONALD BRADLEY, et al.,
Respondents.

/

REPLY AND SUPPLEMENTAL BRIEF 

INTRODUCTION

The petitioners believe arguments raised in the brief 
in opposition to the petition for certiorari have been eroded by 
subsequent events and, therefore, it is petitioners' duty to bring 
these developments to the attention of the Court.

ADDITIONAL REASONS FOR THE GRANT OF CERTIORARI

I.
On June 14, 1972 the district court issued its "FINDINGS 

OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF RULING ON DESEGREGATION 
AREA AND DEVELOPMENT OF PLAN" and entered its order entitled "RULING 
ON DESEGREGATION AREA AND ORDER FOR DEVELOPMENT OF PLAN OF DESEGRE­
GATION." These documents are contained in the supplemental joint 
appendix filed by petitioners and respondent intervening school 
districts. References herein are references to the pages of the 
supplemental joint appendix unless otherwise indicated. Again the 
orders are couched in "non-final" terms but set in motion events 
which would prevent effective review of same until the entire con­
troversy has become a fait accompli.



we believe the district court is in good faith in its
attempt to achieve integration of the Detroit school system. However 
we vigorously assert that the procedures and methods employed by the 
Court are in derogation of existing law and that there is no basis 
for decreeing relief in the manner and to the enormous extent con­
templated by the district court.

II.

The order entered on June 14, 1972 effectively compels the 
implementation of a massive metropolitan busing remedy prior to any 
appellate review on the questions of de jure segregation and the 
propriety of a metropolitan remedy. This order clearly puts to rest 
the contentions of plaintiffs-respondents concerning the lack, to 
date, of any significant decrees by the district court and petitioners 
ability to seek a stay and timely appellate review prior to implementa­
tion of the "final" remedial order of the district court.

The grave error of the district court is related by the 
court itself when in the second sentence of its opinion the court
says :

"... It should be noted that the court has taken 
no proofs with respect to the establishment of 
the boundaries of the 86 public school districts 
in the counties of Wayne, Oakland and Macomb, 
nor on the issue of whether, with the exclusion 
of the city of Detroit school district, such school districts have committed acts of de jure 
segregation." (laa,2aa)

Yet, the "desegregation area" chosen by the court includes Detroit 
and 52 other school districts. Moreover, 18 of these school districts 
are not even parties to the litigation. It is respectfully submitted 
that the equitable powers of the district court do not reach these 18 
school districts.

The district court's order plainly requires, within the 
judicially chosen "desegregation area" of 53 school districts, that 
at a minimum, a desegregation plan be prepared and implemented for

-2-



the fall 1972 term including grades K-6, K-8, or K-9 in all or irk 
as many clusters as practicable. This will occur less than 90 days 
from the date hereof. Complete and final desegregation must be 
accomplished no later than the fall 1973 term. Thus, for the fall 
1972 term, there will be an "interim plan" with a "final plan" to be 
included in a subsequent "final order." (33aa, 34aa, 38aa).
Petitioners are compelled to assert that the district court's 
piecemeal relief process will make large scale metropolitan busing 
an accomplished fact prior to appellate review.

As to faculty and staff, the district court found no 
de jure segregation in the Detroit public schools on this issue in 
its "Ruling on Issue of Segregation" on September 27, 1971, In 
fact, at that time the court praised the exemplary conduct of the 
Detroit school board and the intervening defendant union in the 
area of faculty and staff (14a-19a of petitioners' original appendix). 
Yet, in its remedial injunctive order of June 14, 1972 the court 
decreed:

"...Inthe context of the evidence in this 
case, it is appropriate to require assign­
ment 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." (36aa).
Patently, this demonstrates that, contrary to the explicit 

commands of this court in Swann v. Charlotte-Meeklenburg Board of 
Education, 402 US 1, 16 and 24 (1971), the district court, in the 
absence of any finding of a constitutional violation as to faculty 
and staff, has decreed an impermissible fixed racial balance quota 
for each school within the 53 school districts. Based on judicial 
speculation of a desirable racial balance, many teachers in the metro­
politan area will be required to teach in new schools and school dis­
tricts in the fall irrespective of their presently existing contractual 
rights.

-3-



III.

The scope of the remedial injunctive order entered on 
June 14, 1972 also extends to racial balance in future school con­
struction and expansion and modification of existing administrative, 
financial, contractual, property and governance arrangements as re­
quired to effectively operate a desegregated school system within the 
53 school districts.(36aa,37aa) The lower court has ordered the Super­
intendent of Public Instruction, with assistance from the other state 
defendants, to make recommendations to the court for interim and final 
arrangements in each of the areas of school district administration 
set forth above.(37aa;38aa) In addition, the Superintendent of Public 
Instruction has been expressly ordered to recommend what he deems 
necessary to achieve the objectives of the court's order in these 
areas independently of what state law provides in each of these areas.
(37aa,38aa).

On the question of financing the metropolitan remedy, the
district court has ruled that funds must either be raised or reallocated,
where necessary, to secure plaintiffs' constitutional rights. ( 27aa ).
Further, the state defendants have been ordered to bear the costs of
the nine member panel appointed by the court to design interim and
final plans. ( 33aa). Simply put, the state defendants do not possess
the power of the purse under Michigan law. The power to lawfully
appropriate state funds under Michigan law is reposed in the Michigan
Legislature. Const 1963, Art IV, Sec. 30:

"The assent of two-thirds of the members 
elected to and serving in each house of 
the legislature shall be required for the 
appropriation of public money or property 
for local or private purposes."
Art IX, Sec. 17:
"No money shall be paid out of the state treasury  ̂
except in pursuance of appropriations made by law."

-4-



Petitioners have no authority to expend funds without leqislative 
approval and the legislature is not a party to this cause. Thus, 
the district court has assumed the role of final arbiter over school 
district finance and state funds for 53 school districts.

The necessity of this Court's passing upon the three 
questions raised by the petition for certiorari are vividly illustrated 
by several aspects of the district court's most recent non-final 
opinion and order. This opinion and order are truly remarkable in 
terms of the slender foundation, indeed a foundation of sand, upon 
which the lower court has erected a 53 district metropolitan desegre­
gation edifice covering all aspects of the educational process.

To conclude, the time has come for this Court to take 
jurisdiction of this cause and pass upon the three questions raised 
in the petition for certiorari. A metropolitan desegregation remedy 
involving the busing of hundreds of thousands of school children, 
the relocation of thousands of teachers, and the disruption of the 
educational programs of 53 separate districts, involving some 
800,000 students must not be implemented prior to final, appellate 
review by this Court. (See Exhibit A indicating areas affected by 
the district court orders).

-5-



RELIEF

For the aforegoing reasons, a writ of certiorari should 
issue to review the judgment of the Sixth Circuit and this Court 
should assume jurisdiction to determine the three questions raised 
in the petition for certiorari prior to the implementation of the 
metropolitan remedy in this cause.

Respectfully submitted,

FRANK J. KELLEY 
Attorney General

1
/ U  y't ^ 7 C

Robert A. Derengoski 
Solicitor General

ty

Eugene Krasicky 
Assistant Attorney General
Attorneys for Petitioners
Business Address:
Law Building
525 West Ottawa Street
Lansing, Michigan 48913

Dated: June 16, 1972



Area designated by diagonal lines'indicates nresent Detroit . 
School District. •Area in white indicates school districts, to be affected b-s Judpp 
Roth 's 'ord11?s' 1

Note: