Petition for Rehearing and Suggestion of Appropriateness of Rehearing En Banc with Cover Letter

    4 S T A T E  O F  M IC H IG A N

D E P A R T M E N T  O F

A T T O R N E Y  G E N E R A L
LA N S IN G . M ICH IG AN

December 21, 1972

Mr. James A. Higgins, Clerk 
United States Court of Appeals 
601 U.S. Post Office 
Cincinnati, Ohio 45202

Re: Bradley, et al v Milliken, et al
Dear Sir:

Enclosed please find Petition for Rehearing and 
Suggestion of Appropriateness of Rehearing En Banc in the 
above entitled cause for filing with the court. Proof of 
Service is attached to the original petition.

Very truly yours
FRANK J. KELLEY 
Attorney General

Robert A. Derengoski 
Solicitor General

RAD:sir 
Enc.
cc: Counsel of Record



Nos. 72-1809 - 72-1814
IN THE

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,
v Plaintiffs-Appellees,

WILLIAM G. MILLIKEN, Governor of Michigan, 
etc.; BOARD OF EDUCATION OF THE CITY OF 
DETROIT, Defendants-Appe Hants,

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

Defendant-Intervenor-Appellee,
and

ALLEN PARK PUBLIC SCHOOLS, et al.,
Defendants-Intervenors-AppeHants,

and
KERRY GREEN, et al.,

Defendants-Intervenors-Appellees.

Appeal from the United States District Court for the 
Eastern District of Michigan, Southern Division

PETITION FOR REHEARING AND SUGGESTION OF 
APPROPRIATENESS OF REHEARING EN BANC

Business Address:
720 Law Building
525 West Ottawa Street
Lansing, Michigan 48913

FRANK J. KELLEY 
Attorney General

I

Robert A. Derengoski 
Solicitor General
Eugene Krasicky 
Gerald F. Young 
George L. McCargar Assistant Attorneys General
Attorneys for Petitioners



Nos. 72-1809 - 72-1814
IN THE

UNITED STATES COURT OF APPEALS 
For the Sixth Circuit

RONALD BRADLEY, et al,
Plaintiffs-Appellees, 

v
WILLIAM G. MILLIKEN, Governor of Michigan, 
etc.; BOARD OF EDUCATION OF THE CITY OF 
DETROIT, Defendants-Appellants,

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

Defendant-Intervenor-Appellee,
and

ALLEN PARK PUBLIC SCHOOLS, et al.,
Defendants-Intervenors-Appellants,

and
KERRY GREEN, et al.,

Defendants-Intervenors-Appellees.
/

To: Honorable Judges of Said Court

PETITION FOR REHEARING AND SUGGESTION 
OF APPROPRIATENESS OF REHEARING EN BANC

Petitioners, William G. Milliken, Governor of the 
State of Michigan; Frank J. Kelley, Attorney General of the 
State of Michigan; John W. Porter, Superintendent of Public 
Instruction for the State of Michigan; the State Board of



Education for the State of Michigan, and Allison Green,
Treasurer of the State of Michigan (hereinafter, collectively, 
called petitioners), by their undersigned counsel, respect­
fully request that pursuant to F.R.A.P. 40 and 35(a), this 
Court grant rehearing en banc of the December 8, 1972 
decisions in these causes by a Panel of this Court consisting 
of the Honorable Harry Phillips, Chief Judge, the Honorable 
George Edwards and the Honorable John W. Peck, Circuit Judges, 
as erroneous and in conflict with decisions of other panels 
of this Court.

I.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 
WITH REGARD TO THE GOVERNOR AND THE 
ATTORNEY GENERAL ARE CLEARLY ERRONEOUS
The panel began its opinion as follows:
"This is a school desegregation case involving 
the metropolitan area of Detroit, Michigan."

It should be noted that the case was commenced as a school
desegregation case and tried as a school desegregation case
involving bnly the Detroit public schools, a school district
and body corporate under the laws of the State of Michigan
and boundaries of which are coterminous with the City of Detroit,
and that the fundamental issue heard and determined was whether
the Detroit public school district was a de jure segregated
system. Brown v Board of Education, 347 US 483 (1954). Thê
complaint was filed on August 19, 1970 and was neither amended

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nor supplemented. The fundamental issue, therefore, had 
to be determined in light of events as they existed at that 
time. FR Civ P 7 and 15.

While both the trial court and the Panel of this Court 
considered and decided the matter as a suit against the State 
of Michigan, it is elementary that a sovereign state may not 
be sued without its consent in a federal court. US Const 
AM XI. See pp 49, 50 and 64 of the opinion of the Panel.
In re State of New York, 256 US 490, 497 (1921). No such 
consent was ever given and the State of Michigan is not a 
party to this suit.

It is equally elementary that the proscription of the 
equal protection clause of US Const, Am XIV applies to the 
states, and not to an individual. "No state shall . . . deny 
to any person within its jurisdiction the equal protection of 
the law." See discussion in Burton v Wilmington Parking
Authority, 365 US 715 (1961).

The dilemma is that the equal protection clause of 
US Const, Am XIV operates as a proscription only against the 
state, but US Const, Am XI prohibits suits against the states 
and, thus, on its face, renders the equal protection clause of 
US Const, Am XIV unenforceable in the courts against the entity 
upon which it operates. The answer, of course, is to clothe 
an individual or a governmental agency with the authority of 
the state.

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"The applicable principle is that where state 
officials, purporting to act under state authority, 
invade the rights secured by the Federal Con­
stitution, they are subject to the process of 
the federal courts in order that the^persons 
injured may have appropriate relief."
Sterling v Constantin, 387 US 378, 393 (1932).
More recently, the Supreme Court said:
"It is contended that the case is an action 
against the State, is forbidden by the Eleventh 
Amendment, and therefore should be dismissed.
The complaint, however, charged that state and 
county officials were depriving petitioner of 
rights guaranteed by the Fourteenth Amendment.
It has been settled law since Ex Parte Young,
(citation) that suits against state and county 
officials to enjoin them from invading consti­
tutional rights are not forbidden by the Eleventh 
Amendment." Griffin v County School Board of 
Prince Edward County, 377 US 218, 228 (1964).
The same concept was written into the civil rights

act of 1964. 42 USC 1983 says:
"Every person, who under color of any statute, 
ordinance, regulation, custom or usage, of any 
State or territory, . . . "  (Emphasis supplied)
The controlling principle is that individuals are

clothed with the authority of the state - are found to be acting
under the color of state law - so that their acts may be reached
under US Const, AM XIV and the provisions of the 1964 civil
rights act. The state is not reached through the individual.

In its ruling on issue of segregation (la 210), the
trial court determined "the principles essential to a finding
of de jure segregation, as outlined in rulings of the United
States Supreme Court to be:

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"1. The State, through its officers and agencies, 
and usually the school administration, must have 
taken some action or actions for the purpose of 
segregation.
"2. This action or these actions must have 
created or aggravated segregation in the 
schools in question.
"3. A current condition of segregation exists.

II• • •
Without doubt these are the essential principles, except 

the statement, "[t]he State, through its officers and agencies" 
could be construed as imposing a vicarious liability upon a state, 
contrary to the provisions of US Const, AM XI. Therefore, this 
phrase, to avoid confusion and a misapplication of constitutional 
principles should have read, "officers and agencies acting under 
the color of state law," or "officers and agencies clothed with
the authority of state law."

In passing upon the actions of the Governor and the
Attorney General, it may hardly be argued that either the Governor 
or the Attorney General shed any of their federally protected 
constitutional rights at the state capitol door. See Tinker v 
Des Moines Independent School District, 393 US 503, 506 (1968). 
Like every other citizen their actions should be judged fairly 
by the record and in accordance with due process of law.

Neither the trial court nor the Panel made any specific 
findings of misconduct against the Governor and the Attorney 
General, as indeed on the record, they could not. Also, no 
findings were made that they were necessary parties for relief.

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It must be concluded that the action of the Panel in 
affirming the decision against the Governor and the Attorney 
General must be based upon vicarious liability. Such rulings 
are clearly erroneous.

In its opinion at page 62 the Panel of the Court ruled 
that the Governor and the Superintendent of Public Instruction 
helped to merge the Carver district with Oak Park. Neither the 
Governor nor the Superintendent of Public Instruction merged the 
Carver District with Oak Park since the Oakland Intermediate 
School District ordered the merger as authorized by the legislature 
pursuant to the provisions of MCLA 340.3; MSA 15.3003. Further, 
there is no evidence on the record in this cause that this merger 
was for the purpose of and created or aggravated segregation in 
the Detroit public schools. The testimony of Dr. Green is that 
after the merger the Carver children were doing very well in a 
unitary school system. (Transcript 939-40) ,

II.
FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO 
SUPERINTENDENT OF PUBLIC INSTRUCTION AND THE 
STATE BOARD OF EDUCATION ARE CLEARLY ERRONEOUS.
On the record in this case, three specific acts alleged

against these petitioners are: that the State Board of Education
entered into a joint policy statement with the Civil Rights
Commission (plaintiffs' exhibit 174, IX a 281); that the State
Board of Education published a school plant planning handbook
(la 203) quoted in the trial court's opinion as follows:

6-



f

I

"Care in site selection must be taken if a 
serious transportation problem exists or if 
housing patterns in an area would result in 
a school largely segregated on racial, ethnic, 
or socio-economic lines."; and

that the Superintendent of Public Instruction failed to use the 
power over site selection that he had prior to 1962.

It is untenable to argue that the State Board of 
Education's joining in the joint policy statement was an act 
taken for the purpose of segregation or that it created or 
aggravated segregation. From the standpoint of the State Board 
of Education, the joint policy statement was a recammendarion. 
(Testimony of Dr. Porter, Ilia 99-101). If it conferred rights 
on appellee-plaintiffs, the rights arose under the laws of the 
State of Michigan, not under the Constitution of the United States, 
because state laws do not create federal constitutional rights. 
Baker v Carr, 369 US 186, pp 194-195 Fn 15 (1962). Calder v 
Bull, 3 Dali 386, 1 L Ed 648 (1798) . Gentry, v Howard, 288 
F supp 495 (ED Tenn, 1969). Further, the power to enforce 
Michigan law in this area is vested in the Civil Rights Commission, 
not a party to this action, and not in petitioners. Const 1963,
art 5, § 29.

During the period 1949 to 1962 the Superintendent of 
Public Instruction had the power to approve schoolhouse sites. 
1949 PA 231. By MCLA 388.1014; MSA 15.1023(14) certain powers 
of the Superintendent of Public Instruction were vested in the 
State Board of Education, but the site selection approval was

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removed from the Superintendent of Public Instruction prior 
to this vesting. 1962 PA 175. The State Board of Education 
never was given authority by the legislature to approve school 
sites. Thus, the Court is clearly in error. The incidents of 
site selection relied upon by the Panel of this Court and the 
trial court in their conclusions of de jure segregation in the 
Detroit public schools occurred after the effective date of 
1962 PA 175. The assertion that the selection of sites within 
the Detroit school district was a purposeful act of the State 
Board of Education and the Superintendent of Public Instruction 
when neither of them had any control over site selection nor 
sought to exercise any control (they never selected any of the 
controversial sites) is not only erroneous but indefensible.

Again, it defies reality to suggest that a statement 
in the School Construction Handbook to use care in site selection 
if housing patterns in an area would result in a school largely 
segregated on racial, ethnic, or socio-economic lines, was an 
act taken with a purpose of segregation or was an act which 
created or aggravated segregation.

III.
MATTERS OF BONDING, TRANSPORTATION AND FINANCE
These were considered by the Panel (p 41 of opinion) 

under the heading "(B) The constitutional violation found to 
have been committed by the State of Michigan." First, the 
State of Michigan is not a party to this lawsuit. See Argument I.

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The Panel's first point was school construction. This 
was discussed above and will be briefly here. MCLA 340.961;
MSA 15.1961 for the approval of construction plans by the State
Board of Education is directed to safety and health factors.
The Superintendent of Public Instruction's power to supervise 
location of sites was repealed in 1962, prior to any of the 
evidence against the Detroit Board of Education with reference 
to site selection. There was no showing that the State Board 
of Education's approval of the Detroit school district's con­
struction plans as to health and safety was an act taken with 
a purpose of segregation.

The second point made by the Panel was that Detroit 
was discriminated against in its bonding authority. These figures 
cited by the panel are in error. Prior to 1969 the bonding 
authority of first, second and third class districts was 2%.
1965 PA 28, 1962 PA 177 and 1955 PA 269, § 115. The limitation 
was raised to 3% in first class districts and 5% in all other 
districts, by 1968 PA 316 and increased to 5% in first class 
districts by 1971 PA 23. The record does not show that the 
bonding limitations were imposed for the purpose of segregation 
or that they created or aggravated segregation. (pp 41, 42 of 
Opinion) It is undisputed that the Detroit Board of Education 
never exhausted the bonding limitations. Even assuming arguendo 
that the percentage bonding limitations were discriminatory, they 
were not racially discriminatory because they affected all children
regardless of race.

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The third point made by the Panel was that the school
district of Detroit was denied any allocation of state funds for 
transportation, although such funds were available for students 
living over a mile and one-half from their assigned school in 
rural areas, and some suburban districts received such funds 
under an alleged "grandfather clause." The Panel refers to 
"SB 1269, Reg Session 671(2)(a)(b)(1972)." First, "S.B. 1269"
is not a part of the record of this litigation, although it is
< ! in the Appendix (IXa 617). The record is barren that any
suburban district involved in the metropolitan area is a
"grandfather" beneficiary.

The second misapprehension is that the statutory dis­
tinction between city and rural was for the purpose of segregation 
and that it created or aggravated segregation. There is no 
evidence in this record to so show. The act affects all urban 
school districts in the same manner. This has been determined 
to be a reasonable classification, Sparrow v Gill, 304 F Supp 86 
(MD NC, 1969), and in any event, it is not racially discriminatory.

Assuming arguendo what the Panel is saying is true 
relative to bonding, financing^ construction and transportation, 
the Carver school district, and even 1970 PA 48, § 12, based on the 
record, none of these actions had the effect of creating and main­
taining racial segregation along school district lines. Thus 
the ruling of the Panel on page 65 of its opinion is totally 
unwarranted. Moreover, with the exception of Dr. Porter's 
testimony as to transportation, all the proofs as to bonding.

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finance, construction, and other proofs as to transportation 
were admitted into evidence after your petitioners made motions 
to dismiss pursuant to FR Civ P, 41(b), and petitioners rested.
To consider evidence introduced after they rested is clearly j 

error. A. & N. Club v Great American Insurance Co, 404 F 2d 
100, 103-104 (CA 6, 1968).

IV.
THE MANDATE FOR A METROPOLITAN REMEDY
Plaintiffs complained and tried their case on the 

theory that the Detroit public schools was a segregated school 
district and without reference to any other school district.
Yet, based upon one factual finding, the trial court not only 
gave plaintiff a new cause of action, but also decided this cause 
of action in plaintiffs' favor without giving any of the allegedly 
discriminating school districts the opportunity to be heard.

The Panel has erroneously affirmed the order of the 
trial court that relief of segregation in the public schools of 
the City of Detroit cannot be accomplished within the Detroit 
school district. The sole fact in support of this conclusion 
was that the student population was predominately black. See 
Panel's opinion, pp 52, 53.

The trial court's sole factual findings, affirmed by 
this Court, reinforces the position of petitioners: (1) The
Detroit school district is not a de jure segregated district but 
is a school district with a predominately black student population 
(2) that this condition is not a denial of equal protection under

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US Const, Am XIV, Swann v Charlotte-Mecklenburg Board of Education, 
402 US 1 (1971), Wright v Council of City of Emporia, 407 US 451 
(1972), United States v Scotland Neck Board of Education, 407 
US 484 (1972), and (3) that this condition was not caused by 
the purposeful acts of the defendants, especially the acts of 
petitioners. None of the three conditions precedent to a finding 
of de jure segregation have been met. Yet, by resort to the 
theory of vicarious liability, the Panel affirms a metropolitan 
remedy without providing affected neighboring school districts 
their day in court.

The first cross district desegregation plan was ordered 
by Judge Merhige in Bradley v School Board of City of Richmond, 
Virginia, 338 F Supp 67 (1972), rev'd 462 F 2d 1058 (1972), 
based upon a finding of purposeful establishment and maintenance 
of school district boundaries with intent to segregate after 
notice and nearing to the affected school districts. There is 
no finding here that school district boundary lines were created 
and maintained for the purpose of segregation.

In this connection it should be noted that Haney v 
County Board of Education of Sevier County, 429 F 2d 364 (CA8,
1970), cited by this Court at p 56 of its opinion, contained a 
specific finding that the boundary lines were created and maintained 
for the purpose of enhancing the segregation of the schools 
required by state law in that case.

Another example of the application by the Panel of 
the vicarious liability principle is:

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"Thus, the record establishes that the State 
has committed de jure acts of segregation and 
that the State controls the instrumentalities 
whose action is necessary to remedy the harmful 
effects of State acts. . . (p 64 of Opinion)
The state is not a party to this action and further,

is immune from suit. Second, assuming arguendo that officers
or agencies, clothed with the authority of the state did act
unconstitutionally, this does not mean that their acts may be
attributed to other individuals and agencies, clothed with the
authority of the state and not before the court. Another example
of the vicarious liability reasoning is:

"If we hold that school district boundaries are 
absolute barriers to a Detroit school desegregation 
plan, we would be opening a way to nullify Brown 
v Board of Education, which overruled Plessy, 
supra." (p 65 of Opinion)
The law is that school boundaries which were not created 

and maintained for the purpose of segregation are not a violation 
of the United States Constitution and, therefore, the courts have 
no jurisdiction to interfere. Spencer v Kugler, 326 F Supp 1235 
(D NJ, 1971), aff'd 404 US 1027 (1972). On this record, by the 
express admissions of the trial court, there is not a single 
finding that school district boundaries were created and maintained 
for the purpose of school segregation.

At p 66 of the opinion, the Panel states that there is a 
vested constitutional right to a metropolitan remedy in this case, 
and this is the same as saying that there is a vested constitutional 
right to a particular ratio of black to white in a school district. 
This concept was rejected by the Supreme Court on numerous occasions.

13



Swann, supra; Spencer v Kugler, supra; Wright v Council of
Emporia, supra; Cotton v Scotland Neck, supra. It is also 
contrary to Deal v Cincinnati Board of Education, 369 F 2d 55 
(CA 6, 1966) , cert den 389 US 847 (1967) , Deal v Cincinnati 
Board of Education, 419 F 2d 1387 (CA 6, 1969), cert den 402 
US 962 (1971), and Mapp v Board of Education of the City of
Chattanooga, __ F 2d ___ (CA 6, 1972), slip opinion October 11,
1972, rehearing granted November 29, 1972.

This analysis demonstrates the grievous misapprehension 
of not only the facts, but also of the applicable principles of 
constitutional law enunciated by the Supreme Court and by this 
Circuit.

SUGGESTION OF APPROPRIATENESS OF A REHEARING EN BANC
The decision of the Panel is unquestionably unique, 

unprecedented and, for the reasons set forth, erroneous. It 
rests upon a rationale clearly inconsistent with Deal, supra, 
and Mapp, supra. These inconsistencies must be reconciled and 
harmonized.

Petitioners note the granting of a petition for 
rehearing en banc in the case now pending before this Court of 
Mapp v Board of Education, supra. That case, undoubtedly, raises 
important questions, but they do not compare with either the 
unprecedented nature or the importance of the questions presented 
herein. This case merits equal rehearing en banc.

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RELIEF

WHEREFORE, Petitioners respectfully pray this
Honorable Court to grant them an en banc rehearing of the 
decision filed by a panel of this Court on December 8, 1972.

FRANK J. KELLEY

Robert A. Deren_

Attorney Genera

Solicitor General

Eugene Krasicky 
Gerald F. Young 
George L. McCargar 
Lawrence G. WardAssistant Attorneys General
Attorneys for Petitioners-Defendants

Business Address:
720 Law Building
525 West Ottawa Street
Lansing, Michigan 48913

Dated: December 21, 1972