Supplemental Brief of Respondents School Districts in Support of Petition for Writ of Certiorari to the Sixth Circuit

    IN THE SUPREME COURT OF THE UNITED STATES 
October Term 1971 

No. 71-1463

WILLIAM J. MILLIKEN, Governor of the State of Michigan and ex-officio 
member of the Michigan State Board of Education; FRANK J. KELLEY, 
Attorney General of the State of Michigan; MICHIGAN STATE BOARD 
OF EDUCATION, a constitutional body corporate, and JOHN W. 
PORTER, Superintendent of Public Instruction, Department of Educa­
tion of the State of Michigan,

Petitioners,
-YS-

RONALD BRADLEY and RICHARD BRADLEY, by their Mother and 
Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother 
and Next Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE 
and DARRELL LOVE, by their Mother and Next Friend, CLARISSA 
LOVE; CAMILLE BURDEN, PIERRE BURDEN, AVA BURDEN, 
MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by their 
Father and Next Friend, MARCUS BURDEN; KAREN WILLIAMS 
and KRISTY WILLIAMS, by their Father and Next Friend, C. WIL­
LIAMS; RAY LITT and MRS. WILBUR BLAKE, parents; all parents

(Continued on Inside Front Cover)

SUPPLEMENTAL
BRIEF OF RESPONDENTS SCHOOL DISTRICTS 

IN SUPPORT OF PETITION FOR WRIT OF 
CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BUTZEL, LONG, GUST, KLEIN & 
VAN Z1LE 

John B. Weaver 
Robert M. Vercruysse,

Of Counsel

HILL, LEWIS, ADAMS, 
GOODRICH & TA1T 

Robert B. Webster,
Of Counsel

CONDIT AND MC GARRY, P.C. 
Richard P. Condit,

Of Counsel
HARTMAN, BE1ER, HOWLETT, 

MC CONNELL & GOOGASIAN 
Kenneth B. McConnell,

Of Counsel

WILLIAM M. SAXTON 
1881 First National Building 
Detroit, Michigan 48226

Counsel for Respondents Allen 
Park Public Schools, et al, Southfield 
Public Schools and School District 
of the City of Royal Oak

DOUGLAS H. WEST 
3700 Penobscot Building 
Detroit, Michigan 48226

Counsel for Respondent Grosse 
Pointe Public Schools



having children attending the public schools of the City of Detroit, 
Michigan, on their own behalf and on behalf of their minor children, 
all on behalf of any person similarly situated; and NATIONAL ASSO­
CIATION FOB THE ADVANCEMENT OF COLORED PEOPLE, DE­
TROIT BRANCH; DETROIT FEDERATION OF TEACHERS, LOCAL 
231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO; BOARD 
OF EDUCATION OF THE CITY OF DETROIT, a school district of 
the first class; PATRICK McDONALD, JAMES HATHAWAY and 
CORNELIUS GOLIGHTLY, members of the Board of Education of 
the City of Detroit; and NORMAN DRACHLER. Superintendent of 
the Detroit Public Schools; ALLEN PARK PUBLIC SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF BERKLEY, BRANDON 
SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL 
SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD 
SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN 
HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUB­
LIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF FERNDALE, 
FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC 
SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT 
OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE 
CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF 
THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, 
LAKEVIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LIN­
COLN PARK PUBLIC SCHOOLS, MADISON DISTRICT PUBLIC 
SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DIS­
TRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, 
NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DIS­
TRICT, OXFORD AREA COMMUNITY SCHOOLS, BEDFORD UNION 
SCHOOL DISTRICT NO. 1, RICHMOND COMMUNITY SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF RIVER ROUGE, RIVER- 
MEW COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC 
SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, 
WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC 
SCHOOLS, WAYNE-WESTLAND COMMUNITY SCHOOLS, WOOD- 
HAVEN SCHOOL DISTRICT and W YANDOTTE PUBLIC SCHOOLS, 
KERRY and COLLEEN GREEN, by their Father and Next Friend, 
DONALD G. GREEN, JAMES, JACK and KATHLEEN ROSEMARY, 
by their Mother and Next Friend, EVELYN G. ROSEMARY, TERRI 
DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHER­
RILL, KEITH, JEFFREY and GREGORY COULS, by their Mother 
and Next Friend, SHARON COULS, EDW ARD and MICHAEL ROMES- 
BURG, by their Father and Next Friend, EDWARD M. ROMESBURG, 
JR., TRACEY and GREGORY ARLEDGE, by their Mother and Next 
Friend, AILEEN ARLEDGE, SHERYL and RUSSELL PAUL, by their 
Mother and Next Friend, MARY LOU PAUL, TRACY QUIGLEY, by 
her Mother and Next Friend, JANICE QUIGLEY, IAN, STEPHANIE, 
KARL and JAAKO SUM , by their Mother and Next Friend, SHIRLEY 
8UNI, and TRI-COUNTY CITIZENS FOR INTERVENTION IN FED­
ERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and 
DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE 
MAGDOWSKI; DAYTD YTETTI by his Mother and Next Friend, 
VIOLET YTETTI, and the CITIZENS COMMITTEE FOR BETTER 
EDUCATION OF THE DETROIT METROPOLITAN AREA, a Mich­
igan nonprofit Corporation, SCHOOL DISTRICT OF THE CITY 
OF ROYAL OAK, SOUTHFIELD PUBLIC SCHOOLS, GROSSE 
POINTE PUBLIC SCHOOLS,

Respondents.



INDEX

Introduction ............................................................................  1

Opinions and Orders Below ....................................................... 2

Jurisdiction, Question Presented, and Statutory
Provisions Involved.................................................................. 2

Supplemental Statement of the Case ........................................3

Further Reasons for Granting the W rit......................................3

Conclusion ................................................................................... 8



11

CITATIONS

Cases: Page

Alexander v Holmes County Board o f  Education,
396 US 19 (1969).............................................................. 6

I

Bradley et al v School Board o f the City o f  Richmond,
338 F Supp 67 (1972), reversed____ F2d____ (June 5,
1972, CA 4) ....................................................................  1.7,8

Goss v Board o f Education o f  the City o f Knoxville, 444 
F2d 632 (CA 6, 1 9 7 1 ).......................................................  6

Swann v Charlotte-Mecklenburg Board o f  Education,
402 US 1(1971)............................................................... 4,6

\



IN THE
SUPREME COURT FOR THE UNITED STATES 

October Term 1971 
No. 71-1463

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

Petitioners,
-vs.-

RONALD BRADLEY, et al,
Respondents.

SUPPLEMENTAL
BRIEF OF RESPONDENTS SCHOOL DISTRICTS 

IN SUPPORT OF PETITION FOR WRIT OF 
CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE SIXTH CIRCUIT

INTRODUCTION

Under date of June 5, 1972, Respondents filed with this 
Court the Brief of Respondents School Districts In Support Of 
Petition For Writ Of Certiorari To The United States Court Of 
Appeals For The Sixth Circuit. Since the filing of said brief two 
highly significant and pertinent developments have occurred 
which Respondents believe should be considered by this Court 
in connection with the Petition For Writ Of Certiorari.

On June 5, 1972, the Court of Appeals for the Fourth Cir­
cuit, sitting en banc, ruled that a United States District Court 
could not compel the transfer and bussing of pupils between 
three (3) independent school districts for the purpose of achiev­
ing racial balance in the assignment of pupils to the public 
schools, absent invidious discrimination in the establishment or 
maintenance of the respective school districts, and in a 5 to 1 
decision reversed the decision in Bradley et al v School Board o f  
the C ity  o f  Richmond, 338 F Supp 67 (1972), reversed 
____F2d____(June 5, 1972,CA4).



2

On June 14, 1972, the District Court in the instant case 
issued a Ruling On Desegregation Area and Order for Develop­
ment of Plan of Desegregation together with Findings of Fact 
and Conclusions of Law In Support of Ruling On Desegregation 
Area and Development of Plan. The Order of the District Court 
directly and immediately affects approximately 800,000 pupils 
in fifty-two (52) independent school districts located in three 
(3) different counties surrounding the City of Detroit. [1] 
Moreover, in a completely irrational rush to judgment, the Dis­
trict Court has directed that within a mere forty-five (45) days a 
plan must be developed for the transportation and assignment 
of students for all schools and all grades in fifty-two (52) school 
districts.

OPINIONS AND ORDERS BELOW

The Opinions issued by the District Court prior to June 
14, 1972, are set forth in the appendix to the Petition For Writ 
of Certiorari previously filed with the Court and reference 
thereto is made in Respondents’ initial brief filed herein.

As noted above, the District Court on June 14, 1972, is­
sued (i) Ruling On Desegregation Area and Order for Develop­
ment of Plan of Desegregation t- l  (hereinafter called “Ruling 
and Order), and (ii) Findings of Fact and Conclusions of Law In 
Support of Ruling On Desegregation Area and Development of 
Plan (hereinafter called “Findings and Conclusions”).

JURISDICTION, QUESTION PRESENTED,
AND STATUTORY PROVISIONS INVOLVED.

The statements as to Jurisdiction, Question Presented and 
Statutory Provisions involved are set forth at pages 1 through 3 
of the Brief of Respondents previously filed with the Court.
[ 1 ]

Although there are fifty-three (53) school districts named in the 
Ruling and Order (Supplemental Joint Appendix, page 43aa), two of the 
districts, Dearborn and Fairlane, have merged into one district.
[ 2 ]

Supplemental Joint Appendix, page 39aa.
[3]

Supplemental Joint Appendix, page laa.



3

SUPPLEMENTAL STATEMENT OF 
THE CASE.

In addition to the matters set forth in Respondents initial 
Brief to this Court. Respondents incorporate herein by refer­
ence the Ruling and Order and Findings and Conclusions issued 
by the District Court on June 14, 1972, as a supplemental state­
ment of the case.I4 !

FURTHER REASONS FOR 
GRANTING THE WRIT

In accord with Rules 24(5) and 41(5) of the Supreme 
Court Rules, the undersigned Respondents School Districts sub­
mit herein certain cogent matters which have intervened subse­
quent to the preparation and filing of their initial Brief In Sup­
port of Petition for Certiorari.

On June 14, 1972, the District Court issued a Ruling and 
Order directing that a plan of desegregation be implemented ef­
fecting a racial balance in all grades and schools in at least fifty- 
two (52) geographically and politically independent school 
d i s t r i c t s . T h e  Order of the District Court is unprecedented 
not only in terms of its scope but also in the fact that there is 
no claim or judicial finding that any school district, except the 
City of Detroit, has been established or maintained so as to ex­
clude or separate pupils on the basis of race. The District Court 
candidly admits that —

“ . . . . 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

[4]
Ibid.

15]
Supplemental Appendix, pages 42aa and 43aa.



4

school dis t r icts  have commi t t ed  acts of de jure
segregation.” ^ ]

The District Court has apparently thus concluded that its reme­
dial powers are as broad as its own conception of desirable 
social reform without regard to any findings of impairment of 
constitutional rights. The remedy decreed by the District Court 
cannot be reconciled with this Court’s pronouncement in 
Swann v Charlotte-Mecklenburg Board o f Education, 402 US 1, 
16 (1971), as follows:

“ . . . . it is important to remember that judicial 
powers may be exercised only on the basis of a constitu­
tional violation . . . .  As with any equity case, the nature of 
the violation determines the scope of the remedy

The nature of the violation found by the District Court is 
that a single, solitary school district, the City of Detroit, failed 
to maintain a unitary school system and that such action was 
countenanced by executive officers of the State of Michigan. 
There is admittedly no claim that the asserted unconstitutional 
actions relative to the Detroit school system in any way per­
meated any one of the fifty-two (52) school districts selected 
by the District Court for inclusion in its remedy. Here, the 
scope of the remedy is predicated solely upon judicial inventive­
ness.

The Ruling and Order of the District Court is utterly in­
credible and patently demonstrates the imperative public impor­
tance of this case and the compelling need for this Court to 
exercise its jurisdiction without awaiting an intermediate ruling 
from the Court of Appeals. In this regard, the Court’s attention 
is directed hereinafter to just a few of the District Court’s direc­
tives which portend major disruptive consequences to fifty-two 
(52) school districts and approximately 800,000 children and 
their parents.

[6]
Supplemental Appendix, pages laa-2aa.



5

The City of Detroit school district embraces 276,934 
pupils (Supplemental Joint Appendix, pages 49aa-52aa). The 
fifty-two (52) suburban school districts included in the District 
Court’s desegregation plan have 503,178 pupils (Supplemental 
Joint Appendix, pages 49aa-52aa). The District Court created a 
nine (9) member panel to prepare a plan of desegregation, 
which panel includes four (4) persons associated with the City 
of Detroit School District and only one (1) person to represent 
the other fifty-two (52) school districts and 503,178 pupils to 
be affected by such plan (Supplemental Joint Appendix, page 
41aa).

This case was commenced in August, 1970, and has been 
before the District Court for almost two (2) years. The trial on 
the merits was limited to the issue of whether the City of Det­
roit school district had failed to maintain a unitary school sys­
tem. The initial ruling of the Court found only that the City of 
Detroit school system was a de jure segregated school system 
(Appendix to Petition For Writ of Certiorari, pages la-27a). The 
Respondents School Districts intervened in the case on March 
1 5, 1972, and nineteen (19) of the school districts subjected to 
the District Court’s ruling have never been party to this case in 
any capacity. Despite the foregoing facts, the District Court has 
directed that within forty-five (45) days from the date of its 
Ruling and Order, a desegregation plan, including a transpor­
tation plan, must be finalized (Supplemental Joint Appendix, 
page 42aa) and may be implemented “now, i.e. . . .  for the 1972 
fall term” (Supplemental Joint Appendix, page 24aa). More­
over, the District Court has frankly conceded that there is no 
ruling from this Court on the issue of whether independent 
school districts, with respect to which there are no findings of acts 
of segregation, may be included in a desegregation remedy (Ap­
pendix to Petition For Writ Of Certiorari, page 34a). The fol­
lowing statement of the Court of Appeals for the Sixth Circuit 
is apropos to the instant case and emphasizes the urgent need 
for this Court to review this case now.

“Therefore, if it has taken the federal judiciary of this
country 17 years to come up with final answers, it would



6

be judicially arrogant for us to tell the school authorities 
. . .  to get the job done in the few months that will be 
available before the opening of the 1971 fall session . . .

“The hope or dream, that one day we will have be­
come a people without any motivation born of our dif­
ferent racial beginnings will have a better chance of fulfill­
ment if patience accompanies our endeavors. Strident and 
truculent judicial commands could indeed exacerbate what 
may now remain of racial bias and prejudice.” Goss v 
Board o f Education o f  the City o f Knoxville, 444 F2d 
632,639-640 (CA 6, 1971).

The situation here involved is not like that posed in Alex­
ander v Holmes County Board o f Education, 396 US 19 (1969) 
where the Court decreed that continued operation of racially 
segregated schools must be terminated “at once” rather than 
with “all deliberate speed” . Fifty-two (52) of the school dis­
tricts here involved have not even been afforded a judicial hear­
ing and there is no finding that they have failed to maintain a 
unitary school system or that the State of Michigan has fostered 
or maintained a dual school system.

In Swann v Charlotte- Mecklenburg Board o f  Education, 
402 US 1 (1971) this Court noted that the constitutional duty 
to desegregate and maintain a unitary school system does not 
require racial balancing or mixing, stating:

“ . . . If we were to read the holding of the District 
Court to require, as a matter of substantive constitutional 
right, any particular degree of racial balance or mixing, 
that approach would be disapproved and we would be ob­
liged to reverse. . . .” Swann, supra, at page 24.

In the instant case the District Court, after finding the City 
of Detroit School system to be de jure segregated, arbitrarily 
selected fifty-two (52) independent school districts to be in­
cluded in a desegregation plan calling for a racial balance rela­
tively proportionate to the overall pupil racial composition in 
the districts involved.



7

“Within the limitations of reasonable travel time and 
distance factors, pupil reassignments shall be effected with­
in the clusters described in Exhibit P.M. 1 2 [7] so as to 
achieve the greatest degree of actual desegregation to the 
end that, upon implementation, no school, grade, or class­
room by I be I substantially disproportionate to the overall 
racial composition. . . .” Supplemental Joint Appendix, 
pages 43aa-44aa. [Emphasis added.]

The Order of the District Court portends the reassignment 
of pupils between the fifty-three (53) school districts for the 
1972 fall term (Supplemental Joint Appendix, page 24aa), less 
than 90 days from the date of this brief. It is respectfully sub­
mitted that the unprecedented remedy here involved, which is 
principally founded upon the judicial inventiveness of one man, 
should be reviewed by this Court now.

Since the filing of Respondents’ initial brief in this case, 
the Court of Appeals for the Fourth Circuit reversed the Dis­
trict Court’s decision in Bradley et al v School Board o f the City
o f Richmond, 338 F Supp 67 (1972),___F 2 d___ (CA 4, June
5, 1972) calling for the forced assignment of pupils between 
three (3) school districts in order to effect a racial balance in 
the public schools. The District Court in this case previously 
placed strong reliance on the lower court’s opinion in Bradley v 
Richmond (Appendix to Petition For Writ Of Certiorari, page 
41a-42a).

The Court of Appeals in Bradley v Richmond, supra, 
stated that where geographically and politically independent 
school districts have not been established or maintained with 
the intent of circumventing any federally protected right, a 
State’s right to structure its own internal government is abso­
lute. Here the District Court has conceded that there is no 
evidence that the school districts embraced within its Order 
were established to circumvent any federally protected right 
and no evidence that any of the fifty-three (53) school districts,
[71

Supplemental Joint Appendix, pages 48aa-52aa.



8

except Detroit, have defaulted in their constitutional obligation 
to maintain a unitary school system (Supplemental Joint Ap­
pendix, pages laa-2aa).

The underlying premise for the Order of the District Court 
is its determination that even if the City of Detroit school dis­
trict was operated on a unitary basis, the student population 
would be predominantly black and therefore the Court is em­
powered to use its remedial powers to effect a racial balance. 
The Fourth Circuit Court of Appeals expressly rejected such 
rationale, stating:

. . there is no right to a racial balance within even a 
single school district, Swann v Charlotte-Mecklenburg 
Board o f  Education, supra, at 24, but only a right to at­
tend a unitary school system.” Bradley v Richmond,___
F2d____(CA 4, June 5, 1972).

The matter of the scope of judicial remedy in school dese­
gregation cases is one of national concern. The public is acutely 
aware of the varying Court decisions in this area and the diver­
gent and conflicting decisions of the lower courts have created 
much confusion and engendered tremendous emotional reac­
tions from all segments of the public. The decision of the Court 
of Appeals in Bradley v Richmond, supra, is diametrically op­
posed to the Ruling and Order of the District Court in the in­
stant case.

Our democratic form of government is founded upon obe­
dience to the rule of law. But what is the rule of law in cases 
such as the instant one? Only a decision by this Court will re­
solve the question. The magnitude of such question and its im­
pact upon the lives of millions of children and parents cries out 
for an immediate review and determination by this Court.

CONCLUSION

For the reasons hereinbefore set forth, and those expli­
cated in Respondents’ initial brief, this Court should grant the

\



9

Petition For Writ Of Certiorari To The United States Court Of 
Appeals For The Sixth Circuit, to the end that immediate and 
final direction may be had with respect to the appropriate scope 
of judicial remedy in school desegregation cases.

BUTZEL, LONG, GUST, KLEIN & 
VAN ZILE 

John B. Weaver 
Robert M. Vercruysse,

Of Counsel

HILL, LEWIS, ADAMS, 
GOODRICH & TAIT 

Robert B. Webster,
Of Counsel

CONDIT AND MC GARRY, P.C. 
Richard P. Condit,

Of Counsel

HARTMAN, BEIER, HOWLETT, 
MC CONNELL & GOOGASIAN 

Kenneth B. McConnell,
Of Counsel

Respectfully submitted,

WILLIAM M. SAXTON 
1881 First National Building 
Detroit, Michigan 48226

Counsel for Respondents Allen 
Park Public Schools, et al, Southfield 
Public Schools and School District 
of the City of Royal Oak 
DOUGLAS H. WEST 
3700 Penobscot Building 
Detroit, Michigan 48226

Counsel for Respondent Grosse 
Pointe Public Schools

Dated: June 21, 1972



M