Memorandum in Opposition to Petitions for Writs of Certiorari (Draft)

    MEMORANDUM IN OPPOSITION TO PETITIONS FOR WRIT
OF CERTIORARI

As set forth hereafter, Respondents Bradley, et al. 

(plaintiffs in this cause), submit that this case is not in an 

appropriate posture for Supreme Court review. V

Basically, the petitioners seek review of interlocutory
tk-U/Ut  oh C ' j  iA tU nin^ hcn-v ^

remedial^plan and evidentary hearings in the trial Court. No 

actual plan of desegregation has been approved or even considered 

by the courts below; and no defendant has been ordered to do 

anything except to participate fully in planning and to join in 

the hearing in the district court. See, e.g., Petitioner's Joint 

Appendix, . The Court of Appeals has affirmed the

findings of constitutional violation and the inadequacy of relief 

limited to the Detroit school district, directed that plaintiffs 

amend their complaint to conform to the evidence, directed joinder 

of any school district to be affected by any plan, and ordered 

that a full hearing on remedy be held and that the legislature 

of the State of Michigan be given an opportunity to act before 

any plan of desegregation is approved by the district court. See 

Petitioners' Joint Appendix.-----—  .

Proceedings are underway in the District Court in compliance 

with these directions. The District Court has ordered that 

school districts (and their chief officials) , which may possibly 

be affected eventually by any plans, be joined as parties defendant 

so that they may be heard. Plaintiffs, pursuant to the order of the 

District Court, have filed an amended complaint to conform to the 

evidence and a prayer for relief, and the opinion of the Court of 

Appeals has been formally transmitted by the defendant Attorney 

General to the legislature for its consideration. .-------- ------



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In such.circumstances, this court cannot properly consi­

der the very issues which are essential to review in a
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case like this. AsTthere are no plans nor hearing on 

remedy, nor findings and conclusions on remedy by the 

district court, and no review of any remedial plan by the 

court of appeals, this Court is in no position to evaluate 

the practicalities of the local situation, the constitu­

tional effectiveness of alternative plans of remedy, the 

extent kiaxsanfiaxsix and form of the remedy, the extent of 

transportation and administrative reorganization required,

and the precise manner, if any, in which school district 
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' boundaries need be permeated for the limited purpose of •
• /accomplishing complete relief./

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In remanding this case the Court of Appeals directed the 

district court to afford to "any party against whom relief is sought, 

including school districts which heretofore have intervened and

school districts which hereafter may become parties ... an opportunity 

to offer additional evidence, and to cross-examine available 

witnesses who previously have testified, on any issue raised by the 

pleadings, including amendments thereto, as may be relevant and



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admissible to such issues". Petitioners Joint Appendix,

A^jTiirected by the Court of Appeals, an amended complaint has 'been 

filed and the district court has entered an order adding parties.

No evidentary hearings have been held and many of the added parties 

are not before this Court.

The federal courts, under traditional legal princip̂ ('j?fe u)/wcX>

have always afforded parties litigant an opportunity to be heard upon 

a proper showing of the relevance and admissibility of evidence.

c .f. Kelley v. Metropolitan School Board, 463 F 2d 732, 745-746 (1972).

We respectfully suggest that the district court„below
alfcvO . ,should and will -permit the added defendants^, including school districts

which "heretofore have intervened", an opportunity for the develop*-, 

ment of relevant evidence necessary for decision and determination 

of /both "the issues of violation and remedy. -// To f * i

With the remand to the district court and the direction
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to that Court to give the legislature of the State of Michigan

an opportunity to act, the addition of new parties, the filing of an

amended complaint with evidentiary hearings to follow, the exact 

-nature of the remedy remains speculative. Under these circumstances

.we suggest that Review at this time would anil for an abstract

. decision in the'nature of an advisory opinion A &£t may well be that 

after the^e hearings in the district court tjate form, scope and
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indeed the source of the remedy Would be such that this Court would
tH 6 /P-e ** f,̂ 4/ r 7 . £ , , .in no circumstances consider review. ' We respectfully suggest 

that this Court should not be requested to decide constitutional

issues while these matters remain to be done. At this point the 

parties simply don't know what, if anything, the legislature may do. 

Similarly this court should first permit the fedcgad. district court "b>

and the court of appeals to s^a&id-er»and— deelde- these issues based

-on the relevant evidence presented by all of the parties^

There is no reason to depart from this Court's established

practice of refusing to review school segregation cases in the absence
p r e c - ^ V  4ft eof a plan, especially whej?e remedial -hearings are underway below,.whose

final outcome is not only uncertain, but may also be affected by the

contributions both of petitioners and of newly added parties. No
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substantial harm will be visited on petitioners by this Court's t(tlA<



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refusal to review^aow. If, after the completion of the proceedings
• . .below, any party is still dissatisfied with the final determination

and orders, recourse may be had to the Court of Appeals. With the
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benefit of the rulings of the lower courts, this Court could 

determine whether any remaining disputed issue presented by the 

completed record is worthy of review.

CONCLUSION

Bradley,

WHEREFORE, for the foregoing reasons, these Respondents 

et al., respectfully pray that the Petition for a Writ of

Certiorari be denied.



FOOTNOTES

]J We have chosen not to submit a lengthy Brief in Opposition 

correcting Petitioners' various omissions of facts and mischaracterization. 

In our view, the real issues, if any remain, will only appear after the 

actions and hearings directed by the Court of Appeals are concluded and 

a decision rendered by the district court and review by the 6th Circuit.



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_/ While it is respondents position that petitioners and others added

as parties can upon a proper showing present evidence on the original ' ' '*’ *
j y

finding of violation, in light of this Court's decision in Keyes v.
•Siwt** pe&'W

School District # 1, _ _ __ _ U.S. , and without the power to rewrite

history, the £ourt’s findings of violation seems likely to be reaffirmed.

To date the original intervening school districts have never suggested what 

evidence they can or would present as to the issue o-f violation. The-oaly. 

^vidence which they sought to present was -in the nature of a suggestion ”
t

that desegregation is not needed>

. . . £  C W K C
a  3] The district court will no doubt properly consider the evidence in theS
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record as a result of a lengthy trial. Similarly, it will evaluate any other
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evidence presented by the parties which might modify, amend or supplement
__,__— ------ A.

its original rulings, i The Court of Appeals did not require that the 

district court hear again the evidence that it has already heard. Nor was 

the district court required by the Appeals Court to hear evidence "as to 

the matters contained in its Rulings on the Issue of Segregation... or its 

Findings of Fact and Conclusions of Law on the Detroit Only Plans of 

Desegregation." Petitioner's Joint Appendix . However, the

district court may, upon a proper showing, hear evidence on these or any 

other matters. No party has yet suggested what other facts beyond those 

presented in a heatedly contested trial by the Detroit Board and the State 

defendants they will seek to offer to cause the Court to modify either 

of these two findings. If they have evidence that the violation found in 

Detroit did not take place or evidence that the facts found by the District

Plaintiffs will not oppose their introduction. The district 

court will no doubt permit these facts to be brought to bear and examine 

its rulings in light of any additional evidence. 1

r  f*n a report to the district court, defendant 
tate Superintendent of Public Instruction recommended 

&tieh=arp^ppr^acLj, pending experience with the operation 
of a plan implemented on that -.basis and consideration 
by the legislature. Plaintiffs supported this recommenda­
tion below as a workable method of proceeding to accom­
plish complete relief from the constitutional violations . OS ( T 'b t b lf to
with as little intrusion in/the State's existing internal