Milliken v. Bradley Brief in Opposition to Certiorari

    I n t h e

Ctart nf %  lutein IHates
O ctobee T eem , 1971 

No. 71-1463

W illiam  J. M il l ik e n , et al.,
Petitioners,

vs.

R onald B radley, et al.

BRIEF IN OPPOSITION TO CERTIORARI

Jack Greenberg 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

B .  W lN T H E R  M c C r OOM

3245 Woodburn Avenue 
Cincinnati, Ohio 45207

Bruce Miller 
Lucille W atts

3246 Cadillac Towers 
Detroit, Michigan

Louis R. Lucas 
W illiam E. Caldwell

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Nathaniel R. J ones 
1790 Broadway 
New York, New York 10019

J. H arold F lannery 
Paul R. D imond 
Robert Pressman

38 Kirkland Street 
Cambridge, Mass. 02138

, Attorneys for Respondents 
Ronald Bradley, et al., 
Plaintiffs Below



I N D E X

Opinions Below ...................................................................  1

Jurisdiction ..................................................     1

Question Presented .................................................-.........  2

Statement ...........................................................................-  2

Tlie First Appeal Below ............................ - ...........  2

The Second Appeal - ...................................................  3

The Third Appeal...........................................   4

Subsequent Proceedings in the District Court....... 5

R easons eor D enying  th e  W rit—

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 W rit ........... 6

A. It is Highly Likely That the Question Will be 
Mooted Before This Court Reaches the Merits 6

B. Piecemeal Review Is Particularly Inappropri­
ate in School Desegregation Cases ................... 7

C. The Ruling Below Correctly Applies the De­
cisional Law of This Court in Interpreting 28 
U.S.C. §1291 as to the Jurisdiction of the Courts
of Appeals ...........................................    10

PAGE



u

II. Assuming Arguendo That the Court of Appeals 
Had Jurisdiction, This Court Should Not Review 
the Substantive Issues Before the Court of Ap­
peals Has the Opportunity to R u le ..........................  15

Co n c l u s io n ........................................................................... 18

T able of A uthorities

Cases:

Alexander v. Holmes County Bd. of Edue., 396 U.S. 19 
(1969) ...............................................................................7,12

Bohms v. Gardner, 381 F.2d 283 (8th Cir. 1967)........... 11
Borough of Ford City v. United States, 345 F.2d 645

(3d Cir.), cert, denied, 382 U.S. 902 (1965)................. 11
Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970)......... 3
Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971)....... 13
Bradley v. Milliken, 338 F. Supp. 582 (E.H. Mich. 1971) 1
Brown Shoe Co. v. United States, 370 U.S. 294 (1962)

11,12n, 16

Calhoun v. Cook, 451 F.2d 583 (5th Cir. 1971)............... 9
Clark v. Kraftco Corp., 447 F.2d 933 (2d Cir. 1971)..... 15
Cooper v. Aaron, 358 U.S. 1 (1958)..................................  8n
Corpus 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)......................  13

Firestone Tire & Rubber Co. v. General Tire & Rubber 
Co., 431 F.2d 1199 (6th Cir. 1970)................................  15n

PAGE



I ll

Franklin v. Quitman County Bd. of Educ., 443 F.2d 909 
(5th Cir. 1971) ................................................... .............  10

Gillespie v. United States Steel Corp., 370 U.S. 148
(1964) ............................................................. 13,14,14n, 15n

Griffin v. County School Bd., 377 U.S. 218 (1964)......... 8n

Joseph F. Hughes & Co. v. United Plumbing & Heat­
ing Co., 390 F.2d 629 (6th Cir. 1968)........ ............ .....  15n

Kelley v. Metropolitan County Bd. of Educ., 436 F.2d
856 (6th Cir. 1970) ............ ......................................... . 15n

Keyes v. School Hist. 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, 303 F. Supp, 279 (D. Colo. 
1969) .............................................................     13

Leonard v. Socony-Vacuum Oil Co., 130 F.2d 535 (7th 
Cir. 1942) .........    11

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62
(1948) ............................................................................... 11

Russell v. Barnes Foundation, 136 F.2d 649 (3d Cir. 
1943) ............    10

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1 (1971) .........................................................................lOn, 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)

PAGE

13



IV

Taylor v. Board of Educ. of New Rochelle, 288 F.2d
600 (2d Cir. 1961) .............................................. 9,13,15,16

The Palmyra, 10 Wheat. (23 U.S.) 502 (1825)............... 10

United States v. Easement and Right-of-Way, 386 P.2d
769 (6th Cir. 1967) .......................................................... 15n

United States v. Texas Education Agency, 431 F.2d 
1313 (5th Cir. 1970) ...................................................... 15n

Statutes:

28 U.S.C. §1254(1) .............................................................  1

28 U.S.C. §1291 ................................................... 5, 6, 7,10,15

28 U.S.C. §1292(b) ....................................................... 13,14n

PAGE

Rules:

F.R.C.P. 54(b) ....................................................................  6

F.R.C.P. 56(c) ....................................................................  11

F.R.C.P. 56(d) ....................................................................  11



I n the

ghtjjmne (tart ni %  Initrii States
O ctober T erm , 1971 

No. 71-1463

W illiam  J. M il lik e n , et al.,

Petitioners,

—vs.—

R onald B radley, 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 
ruling's of the district court issued subsequent thereto have 
yet been reported; the yirior opinions of the Court of Ap­
peals 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).



2

Question Presented

A  single question is properly presented by this case: 
whether the Court of Appeals erred in dismissing 'Peti­
tioners’ 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 litiga­
tion, 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 Gov­
ernor, 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 per­
mitted 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 “unconstitutional 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 desegrega­
tion in Detroit’s high schools which had been adopted by



3

the Detroit Board of Education on April 7, 1970, Bradley 
v. Milliken, 433 F.2d 897, 904 (6th Cir. 1970). The com­
plaint accordingly prayed that a preliminary injunction 
issue against the operation of the statute and that imple­
mentation of the April 7, 1970 plan be directed.1

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 pre­
liminary injunction, but its ruling was reversed by the 
Court of Appeals, which held the statute unconstitutional. 
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 deter­
mination of the more general issues raised in the complaint. 
The district court permitted the Detroit Board of Educa­
tion to propose alternative plans and approved one of 
them; plaintiffs again appealed, but the Court below re­
manded 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 de­
sirable Detroit school plan, but whether or not there

1 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.



4

are constitutional 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 author­
ities, educational and other, combined with acts and results 
of private discrimination. The court scheduled a pretrial 
conference to discuss further proceedings with counsel,2 3 
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

2 A  group of Detroit parents who had intervened in the proceed­
ings had filed a motion seeking to join as parties other school dis­
tricts 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 Edu­
cation to submit a metropolitan plan of desegregation for the 
court’s consideration, as well as permit intervention by 43 school 
districts outside Detroit.



5

Board of Education and the Petitioners filed 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 look­
ing toward the shaping of an appropriate remedial decree 
for the constitutional violations it found to exist. The 
court has considered desegregation plans limited to the 
City of Detroit and not so limited; it has permitted inter­
vention 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 conclusions 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 
decree—a final order in this litigation.

3 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, plaintiffs questioned the viability of their own appeal 
and consented to its dismissal as well if their motion -were granted.



6

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.

A. It is Highly Likely That the Question W ill 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 desegre­
gation—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 Certiorari was docketed here May 9, 
1972, seeking reversal of the Sixth Circuit’s order dis­
missing 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 dis­
missal 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 court has con-



7

tinned. A  set of hearings nearly as lengthy as those of the 
summer of 1971, which resulted in the district court’s Memo­
randum 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 indi­
cated 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 ex­
pression 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 im­
mediacy 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



8

of liability4 (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 re­
garded 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 appellants 
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 know 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

4 This is an intriguing argument: the district court here initially 
denied relief sought by the plaintiffs on two occasions without simi­
lar 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. See Swann, supra, 402 U.S. at 13; Cooper v. 
Aaron, 358 U.S. 1 (1958) ; Griffin v. County School Bd., ?77 U.S 
2?8 (1964).



9

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 conclusion of the 
proceedings in the District 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 jurisdiction, 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 appro­
priate in school desegregation cases, which necessarily ai'e



10

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 significant litigation 
in the Court of Appeals.5

C. The Ruling Below Correctly Applies the Decisional 
Law o f  This Court in Interpreting 28 U.S.C. §1291 
as to the Jurisdiction o f the Courts o f 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 is 
likely to have little practical impact and since piecemeal 
review is especially unsuited to school desegregation cases. 
We argue in this section that Petitioners’ legal arguments 
are likewise unconvincing; rather, the Court below reached 
a correct result after weighing the factors delineated by the 
decisions of this Court affecting the issue of finality, and 
the two cases cited by Petitioners fail to support their 
contentions.

We begin with the fact that the Order of November 5, 
1971 required only that the Michigan State Board of Edu­
cation and the Board of Education of the City of Detroit 
submit desegregation plans for the further consideration 
of the district court. No injunction was entered at that time 
affecting the daily operation of the schools or the assignment 
of pupils. Thus, the order was akin to a grant of partial 
judgment on the issue of liability alone, which is not appeal- 
able. E.g., The Palmyra, 10 Wheat. (23 U.S.) 502 (1825) 
(Marshall, C.J.); Russell v. Barnes Foundation, 136 F.2d

5 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 IJ.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.



11

649 (3d Cir. 1943); Borough of Ford City v. United States, 
345 F.2d 645, 647 (3d Cir.), cert, denied, 382 U.S. 902 
(1965); Leonard v. Socony-Vacuum Oil Co., 130 F.2d 535 
(7th Cir. 1942); see cases cited by Mr. Justice Frankfurter 
in Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68 
(1948). And see F.R.C.P. 56(c) (interlocutory summary 
judgment on liability); F.R.C.P. 56(d) (partial summary 
judgment).

The general principles affecting the determination of 
finality were cogently summarized by Mr. Justice Blackmun 
in Bohms v. Gardner, 381 F.2d 283, 285 (8th Cir. 1967), 
wherein the Eighth Circuit dismissed an appeal from an 
order remanding a social security benefit determination to 
the Secretary of HEW because the lower court’s 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 accomplish this di­
vestiture 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, includ­
ing every prayed for relief—while ultimate divestiture was



12

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 be­
cause market conditions might change during the pendency 
of an appeal in such a fashion as to prevent an already 
formulated and approved plan of divestiture 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 of finality (ibid.).6

Each of these factors, considered in the present case, 
militates against treating the district court’s decree of 
November 5, 1971 as a final order. In the first place, every 
claim for relief was not passed upon. And far more re­
mained to be done than just the formulation of a plan to 
effectuate a complex commercial transaction; indeed, seri­
ous substantive legal issues concerning the nature and 
scope of the available remedy remained to be passed upon. 
See Swann v. Charlotte-MecMenburg 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); comr 
pare Alexander v. Holmes County Bd. of Educ., supra.7

6 So far as counsel for these Respondents are aware, this Court 
has never cited Brown Shoe to justify its acceptance of an appeal 
from an interlocutory decree in any but antitrust eases.

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.



13

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 ques­
tions of liability and appropriate remedy together.8 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 inter­
locutory appeal pursuant to 28 U.S.C. §1292 ( b ) ) ; Bradley 
v. MilliJcen, 438 F.2d 945 (6th Cir. 1971). Most litigants 
have followed this practice; for example, appeals chal­
lenging the findings of liability in Swann, v. Charlotte- 
Mecklenburg 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 (I). 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 District 
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, gra/nted, 
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 de­

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-Macklenburg Bd. of Educ., 
402 U.S. at 16, the Court of Appeals would of necessity be review­
ing 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.



14

cision in Gillespie.9 It does not, however, support Peti­
tioners’ 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 presented on appeal are funda­
mental to the further conduct of the case”  and “the 
inconvenience and costs of piecemeal review” are out­
weighed by “the danger of denying justice by delay.” 
379 U.S. at 152-154, 85 S.Ct. at 311-312. Difficult ques­
tions of appealability may require a court of appeals 
to review the entire record in detail. Gillespie recog­
nizes the judicial inefficiency inherent in reviewing an 
entire appeal and then deciding that the court of 
appeals cannot act because it does not have jurisdic­
tion. See Green v. W olf 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 
M110.12 (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.

9 Gillespie effectively allows the Court o f Appeals to relieve a 
party from the consequences of failing to seek or obtain a certifi­
cate pursuant to 28 U.S.C. §1292(b) authorizing interlocutory 
appeal, where irreparable harm would otherwise result.



15

Clark v. Kraftco Corf., 447 F.2d 933, 935-36 (2d Cir. 
1971).10

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.

II.

Assuming Arguendo That the Court of Appeals Had 
Jurisdiction, This Court Should Not Review the Sub­
stantive 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 IT.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 he 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

10 A brief review of other decisions of the Sixth Circuit dealing 
with this issue will demonstrate convincingly that the Court prop­
erly 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).



16

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 pp. 8-9 above) apply with added force to the 
determination whether to utilize an extraordinary procedure 
which “deprives . . . this Court of the benefit of considera­
tion by a Court of Appeals.” Brown Shoe Co. v. United 
States, supra, 370 U.S. at 355 (Mr. Justice Clark, con­
curring). The vital role which the Court of Appeals could 
play in resolving factual disputes and narrowing the issues 
is apparent from the nature 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 desegregation case insofar as these 
Respondents are aware;11 the finding of unlawful segrega­
tion made by the district court resulted from the analysis 
and sifting of an extraordinary 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—

11 The trial lasted 41 days, produced 4,710 pages of transcript 
and 408 trial exhibits.



17

are clearly erroneous, F.R.C.P. 52(a).” (Petition, pp. 12-13) 
(emphasis supplied). Passing upon such claims is the 
archetypal function of the Courts of Appeals.12

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 
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 impor­
tance of an issue merits dispensing with intermediate ap­
pellate 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.

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 con­
tinued operation of a federal statute or other national program, 
in a context shorn of significant factual dispute.



18

CONCLUSION

W herefore, 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. W inther Me Groom
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

Bruce Miller 
Lucille W atts

3246 Cadillac Towers 
Detroit, Michigan

Louis R. Lucas 
W illiam E. Caldwell

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Nathaniel R. Jones 
1790 Broadway 
New York, New York 10019

J. H arold Flannery 
Paul R. D imond 
Robert Pressman

38 Kirkland Street 
Cambridge, Mass. 02138

Attorneys for Respondents 
Ronald Bradley, et al., 
Plaintiffs Below



19

Certificate of Service

I n the

S upreme C ourt op th e  U nited S tates 

O ctober T erm , 1971

No. 71-1463

W illiam  J. M illik e n , et al.,

-vs.—
Petitioners,

R onald B radley, et al.

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:
D ouglas H. W est, Esq. 
Robert B. W ebster, E sq. 
3700' Penobscot Building 
Detroit, Michigan 48226
W illiam M. Saxton, E sq. 
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
A lexander B. R itchie, 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. M cConnell, Esq. 
74 West Long Lake Road 
Bloomfield Hills, Michigan 48013
George T. Roumell, Jr., E sq. 
720 Ford Building 
Detroit, Michigan 48226

Norman J. Chachkin 
Attorney for Respondents 

Ronald Bradley, et al., Plaintiffs Below



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