Response to Emergency Motion

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et. al . , )
Plaintiffs, )

vs. )
WILLIAM G. MILLIKEN, et. al., )

Defendants, )
and )
DETROIT FEDERATION OF TEACHERS, LOCAL )
231, AMERICAN FEDERATION OF TEACHERS, 
AFL-CIO, )

Defendant-Intervenor, )
and )
DENISE MAGDOWSKI, et. al., )

Defendants-Intervenor. )
)

Civil Action 
No. 35257

RESPONSE TO EMERGENCY MOTION OF 
DETROIT BOARD OF EDUCATION

The Grosse Pointe Public School System, Wayne County, 
Michigan (Grosse Pointe Schools), by its attorneys, HILL, LEWIS, 
ADAMS, GOODRICH & TAIT, in response to the Emergency Motion of 
the Board of Education for the School District of the City of 
Detroit, says:

1. This is a school desegregation case. The Complaint, 
as well as all subsequent pleadings and proofs, are based on the
Plaintiffs' claim for relief from alleged racial discrimination. 
It appears that the Detroit Board of Education is now at tern''tir.q 
to broaden the issues in this cause and add an entirely new 
claim for relief; i.e., relief from a denial of equal protection 
of the laws because of the effect of the Michigan system of



financing public education. This is not, however, a school 
finance case.

2. The Emergency Motion filed by the Detroit Board of
Education and the Memorandum in support thereof set forth two 
reasons for the granting of the relief prayed: (1) that the re­
lief is necessary to insure the Court's ability to implement 
its Preliminary Injunction previously issued under its Order of 
July 7, 1972, requiring the Detroit Board of Education to provide 
not less than 180 days of school during the 1972-73 school year; and 
(2) that the present system of financing public education in 
Michigan is violative of the Fourteenth Amendment rights of the 
Detroit school children, and, therefore, the State of Michigan 
should provide sufficient funds to remedy this Constitutional depri­
vation. Crosse Pointe Schools takes no position regarding temporary 
relief based on maintenance of the status quo, but objects strenu­
ously to consideration by this Court of the far-reaching issues 
raised by the second stated basis of the Detroit Schools' claim
for relief.

3. The Court's attention is called to the matter of 
Milliken, et. al, v. Green, et. al., a presently pending suit chal­
lenging the constitutionality of the system of financing public ed­
ucation in the State of Michigan. This case, originally commenced 
in the Circuit Court for the County of Ingham, was removed to the 
United States District Court for the Western District, and on 
November 16, 1971 Judge Noel P. Fox entered an Order for abstention 
(attached as Appendix A). In this Order, the Court stayed further 
proceedings in the United States District Court until the courts
of Michigan rendered a decision on the issues presented, preserving 
jurisdiction in the District Court, however, until the state courts 
had so ruled. This case has now been fully litigated and argued

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•  •

on appeal and is presently under advisement in the Supreme Court 
of the State of Michigan, Docket # 53,809, awaiting decision. Thus, 
the question of the constitutionality of the system of financing 
public education in the State of Michigan, as it applies to the 
Detroit School District as well as every other school district in 
the State of Michigan, is simultaneously before the Michigan Supreme 
Court and the United States District Court for the Western District 
of Michigan.

4* Milliken, et. al. v. Green, et. al. involves the 
same issues as those presented in Serrano v. Priest, 5 Cal. 3d 584, 
487 P.2d 1241 (1971) and its progeny, such as Rodriguez v. San 
Antonio Independent School Dist., 337 F.Supp. 280 (W.D. Tex. 1971), 
which has been argued before the United States Supreme Court, and 
in which a decision is expected shortly. Attached as Appendix B 
is the Order of the Michigan Supreme Court certifying the questions 
raising the issues contained in the Governor's Executive Message 
attached thereto. The memorandum in support of the Detroit Board's 
Emergency Motion to this Court essentially expresses as one of the 
two bases for its prayer for relief those same issues currently 
pending before the Michigan Supreme Court.

5. It is therefore respectfully submitted that it would 
be improper for this Court to now consider the Detroit Board's 
arguments relating to the unconstitutionality of the system of 
financing the Detroit Public Schools, as this would unnecessarily 
expand the scope of this case, already overburdened with novel 
and complex issues. Such a constitutional determination, based 
on factual and legal inquiries totally foreign to the instant 
cause, should be, and is, the subject of separate pending litiga­
tion. This Court should note the Order of the Michigan Supreme

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Court (attached as Appendix B) openly inviting intervention on 
behalf of alleged economically disadvantaged school districts.
The Detroit Board of Education chose not to intervene in Milliken, 
et. al. v. Green, et. al., but now attempts to raise those issues 
in this case.

6. The Preliminary Injunction entered by the District 
Court in its Order of July 7, 1972 recites that the only under­
lying reason for its issuance was to maintain the status quo
for the 1972-73 school year in order to enable the District Court 
to effectively implement its then proposed Metropolitan Plan of 
Desegregation. Insofar as the Emergency Motion of the Detroit 
Public Schools is based upon that issue, i.e., maintenance of 
the status quo, Crosse Pointe Schools takes no position and leaves 
the questions of the timeliness and propriety of such relief 
(particularly in view of apparent impending legislative action) 
to the sound discretion of this Court.

7. In the event this Court orders the State Defendants 
to present a Plan for the implementation of the July 7 Order,
The Grosse Pointe Public School System reserves the right to 
file objections to such a proposed Plan, to the extent that it 
might involve the diversion of funds otherwise appropriated and 
earmarked for disbursement to The Grosse Pointe Public School 
System.

Respectfully submitted,
HILL, LEWIS, ADAMS, GOODRICH & TAIT

. •  -■"............ B y  ;--------- 1 , ^  ■ [, A  V __________
Douglas H. West _

( i / 7 / /  x
And : ’ ■_ ____

Robert L. Webster '*
Attorneys for Grosse Pointe Schools 
3700 Penobscot Building 
Detroit, Michigan 48226

Diited: December 7, 1972 .

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I

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APPENDIX A

IK THE 
FOR

UNITED STATES OF AMERICA
DISTRICT COURT OF THE UNITED STATES
THE WESTERN DISTRICT OF MICHIGAN
' SOUTHERN DIVISION• »

WILLIAM G. MILLIKEN, Governor and 
FRANK J. KELLEY, Attorney General, 
in the name of and for the use and 
benefit of the People of the State 
of Michigan,

Plaintiffs, . .
' ' * G-303-71 C.A.. v • .* . ' * • •

• ALLISON GREEN, State Treasurer, .
' BLOOMFIELD IIILLS SCHOOL DISTRICT,

a body corporeite, DEARBORN CITY _
SCHOOL DISTRICT, a body corporate, ' . .
and GROSSE POINTS PUBLIC SCHOOLS, ' ■ '

' a body corporate, ■ • ...
Defendants.

ORDER FOR ABSTENTION

I



I

. Tho court having heard arguments and conoidercd briefs
f

from all parties on tho Plaintiffs' Motion to Remand, and having 
rendered an opinion on said Motion, for the reasons stated therein, 

IT IS HEREBY ORDERED: \

(1) That this court, sua sponte, invokes the doctrine 
of abstention on the grounds set forth in this day's opinion from 
the bench, and stays further proceedings in thi3 court until the 
courts of the State of Michigan have been afforded an opportunity 
to determine the issues presented in this case, which defendants 
sought to remove from the Ingham County Circuit Court, and retains 
jurisdiction to take such steps as may be necessary for the just 
disposition of the litigation should anything prevent prompt state 

court disnosition.

. (2) That the parties are to proceed with this litigation

in the Circuit Court for the County of Ingham, State of Michigan.

(3) That further proceedings in this cause are stayed .

. pending a decision of all the issues presented in the above entitled 

case, by the courts of the State of Michigan.

Dated: November 16, 1971.

cr.RTirir.n as a t r u e c o p y; 
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In re Executive Message of 
Governor He Certification of 
Quest ions Pertaining to 
Michigan .Cystom oh Financing 
Public Education
WILLIAM G. MILLIKEN, Governor 
and FRANK J. KELLEY, Attorney 
General/ in the nnine of and for 
the use and benefit of the People 
of the State of Michigan,

THOMAS M. KAVANAGM, 
Cliinf Justice,

EUGENE. E. HI.ACK,
PAUL. t. ADAMS, THOMAS E. BRENNAN, 
THOMAS G. KAVANAGH, 
JOHN It SWAINSON,
G. MENNEN WltLIAMS, 

Associate Justices

Plaintiffs,
v. 53009
ALLISON GREEN, State Treasurer, 
BLOOMFIELD HILLS SCHOOL DISTRICT, 
a body corporate, DEARBORN CITY 
SCHOOL DISTRICT, a body corporate, 
and GROSSE POINTS PUBLIC SCHOOLS, 
a body corporate,

. \ 
Defendants.

The Governor having on December 3, 1971, addressed 
an Executive Message to the Supreme Court with respect to 
the entitled cause, representing to the Supreme Court that 
the Circuit Court of Ingham County nas pending before ru 
controlling questions of public law involved in the entitled 
case or controversy, and such questions are of such public 
moment as to require early determination,NOW, THEREFORE, the Supreme Court does order and 
authorize the Circuit Court for Ingham County to certify such 
questions contained in the Executive Message to the Supreme 
Court, a copy of which is attached hereto. _ _It is further Ordered that the Ingham Circuit Court 
shall conduct a hearing and take proofs including all relevant 
and competent official public records and reports of like 
nature and scope as those discussed in Serrano v Priest 
(1971), 5 Cal 2d 584 (487 P2d 1241) and to make findings of 
fact and file said findings with this Court and certify the 
questions contained in the Executive Message within 90 days 
of date of this order;It is further Ordered that the Ingham Circuit Court 
shall further consider and allow intervention pursuant to GCR 
1963, 208-209, of interested parties who will fairly insure 
adequate representation of school children, taxpaying parents 
of said children, and alleged economically disadvantaged 
school districts;It is further Ordered 'hit lurcher proceedings 
relative to such case in the in e ' ; sa i. t. Court shall be,
and the same hereby are, stay, i : . , i -at; to receipt of
the certification of the trial court.

T. G. Kavanagh, J., not participating.
Brennan, il. , dissents.:
This lawsuit is merely another chapter in a continuing 

ha t tie between l In * executive .uni 1 • ■< i i s. 1 a t i ve branches < > I govei iv 
incut in our state.On,- const.i I nt ion prohibits the governor from suing 
i tu • 1 ini i s 1 a t 111 i:. Art . V , see. ---



o

It is unreasonable for certain selected supposedly 
wealthy school districts to be called upon to defend the fair­
ness" of the legislature's scheme of school financing. The 
addition of other nominal parties defendant, the appearance 
0f i i;; i i c u s curiae on both sides, and the generation of. public 
discussion in the press and elsewhere cannot remedy the defect
in these proceedings.■ The real parties in interest arc the House and Senate 
of Michigan. The Legislature is on trial here. .No Court has 
competence to supply the deficiencies in the legislative
box-score. _ , • . .Nor can I conceive of any possible issue arising 
under Art. I, sec. 2 of the Michigan Constitution. The same 
constitution which provides for equal protection of the laws 
in Art. I, sec. 2, places responsibility for determining the 
manner of school taxation in the hands of the State legislature, 
and contemplates the kind of school financing now existing in
Michigan. ' •Note Article VIII, sec. 2: • _"Sec. 2. The legislature shall maintain and support 
a system of free public elementary and secondary schools as 
defined by law. Every school district shall provide for the 
education of its pupils without discrimination as to religion, 
creed, race, color or national origin. •Consider also, Art. IX, sec. 6, concerning property 
taxes by school districts extending over county lines, Art. IX, 
sec. 16, permitting state borrowing for the purpose of making 
loans to school districts, as examples of the intention or the 
people of Michigan who adopted the 1963 Constitution. _ _The suggestion that our Michigan Constitution prohibits 
the nvipfinrt Michlnan svptem of school financing is so 
unfounded as to be entirely frivolous. _The question of Federal equal protection should 
be settled in the Federal courts. Nothing is gained by 
this Court taking jurisdiction for the purpose of attempting 
to forecast the eventual decision of the United States Supreme 
Court, except delay, confusion and expense.

'  I i; Winters. Clerk o f the Supreme Court of  the State of Michigan, do hereby certify th.il tl.i fort. „c .in, i i
, lll0 ;„ul correct copy of  an cider entered in mid court in sard cause; that l have compared the came w,tn the u r i n a l .
ami mat ,1 o a true tiansciipt therefrom, end the whole of said ordinal order.

IN TiSTiMONY WHhRLOt, I have heieunto set my mum anu
affixed the real of said Supreme Court at Laming.

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in tiii; :;t'Tiu;;n; conti oi nir - \u
;a<;i; ok william c. MiLiiWkN, govlrnor

December .’3, 1971

The Honorable Chief . hiytl.ee and An soda lie Justices of the Supreme Court:

William C. Millikcn, Governor of the State of Michigan, pursuant to 

rule 797 of the General Court Rules of 1963, appears before this Court and 

respectfully states as follows;

There is presently pending in the Circuit Court for the County of 

Ingham, State of Michigan, the case of William G. Millikcn, Governor and 

Frank J. Kelley, Attorney General, Plaintiffs, vs. Allison Green, State Treasurer, 

Bloomfield Hills School District, Dearborn City School District and Crosse Pointe 

Public Schools, Defendants, Civil Action No. 13664-C.

This matter seeks declaratory relief as well as judicial inter­

pretation of the constitutionality of the present system of financing the 

operation of Michigan public elementary and secondary schools.

parties defendant having filed answers to the complaint, the matter is at issue. 

On October 27, the defendant school districts petitioned for removal of this 

cause to the United States District Court for the Western District of Michigan. 

Upon plaintiffs' motion for remand, the United States District Court entered an 

Order of Abstention dated November 16, 1971, and directed the parties to proceed 

expeditiously in the state courts.

requires maintenance and support of a free public elementary and secondary school 

system. Such schools are financed in part by revenues from local ad valorem 

taxes upon real and tangible personal property and, in part, by appropriations 

from the state school aid fund. The amount of revenue per pupil available to a

of the taxable property per pupil within the districts. The resultant effect is 

substantial disparities among school districts exercising substantially the same 

local effort. It is alleged that State school aid fund appropriations do not
i '!'> . , .substantially equalize the disproportional revenues per pupil available for 

v fleho'ol operation purposes as a result of this system.

The instant litigation was commenced on October 15, 1971, and all

The mandate of Article VIII, Section 2, of the 1963 Michigan Constitution

local school district is dependent upon, and directly proportional to, the wealth



I oua ) u p p o r t  viu i t J .e s  t oc r i m i n a t e s  a g a i n s t  and d e n i e s  milmtaiU ia I equal  rduc?C .T l

Michigan students and deprivin'; them of constitutionally proLecLed r ].>;l 11; r;,

because of llie: unique and fundamental role that public education plays 

in our society, this matter now raises controlling questions of public law which 

arc of such public moment as to require early determination. Dependent upon the 

resolution of these questions is the orderly administration and operation of 

the public elementary and secondary education program of the State of Michigan.

Accordingly, in view of the magnitude and urgency of this matter, I 

respectfully submit the following suggested questions for, upon certification 

by the Circuit Court, this Court's immediate consideration and determination:

1. Does the Michigan public school financing system, consisting 

of local, general ad valorem property taxes and state school 

aid appropriations, by relying upon the wealth of local school 

districts as measured by the state equalized valuation of taxable 

property per student which results in substantial disparities

of revenue produced per student, invidiously discriminate 

against and deny substantially equal educational opportunity to 

students in violation of the equal protection of the laws guaranteed 

by Article I, Section 2, of the Michigan Constitution?

2. Does the Michigan public school financing system, consisting of local, 

general ad valorem property taxes and state school aid appropriations, 

by relying upon the wealth of local school districts as measured

by the state equalized valuation of taxable property per student 

which results in substantial disparities of revenue produced per 

student, invidiously discriminate against and deny substantially 

equal educational opportunity to students in violation of the 

■ equal protection of the laws guaranteed by the Fourteenth

Amendment to the United States Constitution? •

I submit that the foregoing questions raised by the above entitled 

action are controlling questions of public law and are of such public moment 

as to require early determination. Accordingly, I urge that this Court, 

pursuant to rule 797 of the General Court Rules of 1963, exercise its discretion 

in authorizing and directing the Circuit Court for the County of Ingham to 
certify to this Court the above stated question:;, and such other questions as 

this Court: nay deem necessary and proper.
Respect fully submitted,

W m i  am C, Mill I ken, Governor



CERTIFICATION

This is to certify that a copy of the foregoing Response 
to Emergency Motion of Detroit Board of Education, filed by the 
Grosse Pointe Public School System, has been served upon counsel 
of record by United States Mail, postage pre-paid, addressed as 
follows:
LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
525 Commerce Title Building 
Memphis, Tennessee 38103
NATHANIEL R. JONES 
General Counsel, NAACP 
1790 Broadway 
New York, New York 10019
E. WINTHER MC CROOM 
3245 Woodburn Avenue 
Cincinnati, Ohio 45207
JACK GREENBERG 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019
J. HAROLD FLANNERY
PAUL R. DIMOND
ROBERT PRESSMAN
Center for Law & Education
Harvard University
Cambridge, Massachusetts 02138
DAVID L. NORMAN 
Department of Justice 
Washington, D.C. 20530
ROBERT J. LORD
8388 Dixie Highway
Fair Haven, Michigan 48023
RALPH GUY
United States Attorney 
Federal Building 
Detroit, Michigan 48226
GEORGE T. ROUMELL, JR.
LOUIS D. BEER 
7th Floor 
Ford Building 
Detroit, Michigan 48226

WILLIAM M. SAXTON
JOHN B. WEAVER
1881 First National Building
Detroit, Michigan 48226
EUGENE KRASICKY 
GERALD YOUNG
Assistant Attorney General
Lav; Building, 525 W. Ottawa Street
Lansing, Michigan 48913
THEODORE SACHS 
1000 Farmer
Detroit, Michigan 48226
ALEXANDER B. RITCHIE 
1930 Buhl Building 
Detroit, Michigan 48226
BRUCE A. MILLER 
LUCILLE WATTS
2460 First National Building 
Detroit, Michigan 48226
RICHARD P. CONDIT
Long Lake Building
860 West Long Lake Road
Bloomfield Hills, Michigan 48013
KENNETH B . MC CONNELL 
74 West Long Lake Road 
Bloomfield Hills, Michigan 48013
DONALD F . SUGERMAN
2460 First National Building
Detroit, Michigan 48226
THEODORE W. SWIFT
900 American Bank & Trust Building 
Lansing, Michigan 48933
JOHN F. SHANTZ
222 Washington Square Building
Royal Oak, Michigan 48067



FRED W. FREEMAN CHARLES E. KELLER ̂ _
CHARLES F. CLIPPERT 1600 Penobscot Building
1700 N. Woodward Avenue Detroit, Michigan 48226
P.O. Box 509 '
Bloomfield Hills, Mich. 48013
ERWIN B. ELLMANN
1800 Penobscot Building
Detroit, Michigan 48226

Respectfully submitted,
HILL, LEWIS, ADAMS, GOODRICH & TAIT

Douglas'" H. West 
3700 Penobss/ot Building 
Detroit, Michigan 48226

Dated: December 7, 1972