Petition for Rehearing and Suggestion for Rehearing In Banc

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UNITED STATES OF AMERICA 
IN THE COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

BLOOMFIELD HILLS SCHOOL DISTRICT,
Petitioner,

vs. No. 72-1651
STEPHEN J. ROTH, UNITED STATES 
DISTRICT JUDGE, EASTERN DISTRICT 
OF MICHIGAN,

Respondent.
/

PETITION FOR REHEARING AND 
SUGGESTION FOR HEARING IN BANC

DICKINSON, WRIGHT, McKEAN & CUDLIP 
1700 North Woodward 
P. 0. Box 509
Bloomfield Hills, Michigan 48013 
(313) 646-4300



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UNITED STATES OF AMERICA 
IN THE COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

BLOOMFIELD HILLS SCHOOL DISTRICT,
Petitioner,

vs- No. 72-1651
STEPHEN J. ROTH, UNITED STATES 
DISTRICT JUDGE, EASTERN DISTRICT 
OF MICHIGAN,

Respondent. 
_____________/

PETITION FOR REHEARING AND 
SUGGESTION FOR HEARING IN BANC

I• Events Occurring Subsequent to Filing of Petition for
Writ of Mandamus and/or Prohibition.

A. The Petition for Writ of Mandamus and/or Prohibition 
filed by Bloomfield Hills School District (Petitioner) on June 29, 
1972 alleged that the Honorable Stephen J. Roth, Respondent, (i) 
usurped the jurisdiction vested in him as a United States District 
Judge by subjecting Petitioner to his June 14, 1972 Ruling and Order 
in disregard of the facts that the Petitioner was not a party 
to the action and was not found to have committed any act of 
de jure segregation and (ii) usurped the jurisdiction exclusively 
vested by Title 28 U.S.C. § 2281 in a District Court of three 
judges by entering his June 14, 1972 Ruling and Order, which 
restrains the enforcement, operation and execution of various 
Michigan statutes. This Court denied that petition on July 17,
1972.



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B. While no reasons for this Court's action were given,
the order stated that the denial was without prejudice to the right 
of Petitioner to file an application to intervene in the case of 
g.radley v- Milliken pending in the United States District Court 
for the Eastern District of Michigan.

C. The intervening school district defendants in Bradley v. 
gLi.-̂ -̂ en filed an emergency application for stay with Respondent 
on July 12, 1972. A jurisdictional attack on Respondent's June 14, 
1972 Ruling and Order under § 2281 comprised one of the grounds 
for such emergency application. On July 19, 1972, Respondent 
denied that application without responding to such jurisdictional

I attack.

D. On July 20, 1972, Respondent made a determination 
of finality as to the following orders in Bradley v. Milliken 
under Rule 54(b), F.R.C.P., and certified the issues presented 
therein under the provisions of 28 U.S.C. § 1292(b):

1. Ruling on Issue of Segregation,
September 27, 1971;

2. Ruling on Propriety of Considering a 
Metropolitan Remedy To Accomplish 
Desegregation of the Public Schools
of the City of Detroit, March 24, 1972 ;

3. Findings of Fact and Conclusions of Law 
on Detroit-only Plans of Desegregation,
March 28, 1972;

4. Ruling on Desegregation Area and Develop­
ment of Plan, and Findings of Fact and 
Conclusions of Law in Support Thereof,
June 14, 1972; and

5. Order for Acquisition of Transportation,
July 11, 1972.

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E. On July 20, 1972, this Court entered an order which, 
inter alia, advanced the appeal of Bradley v. Milliken on its 
docket and scheduled a hearing therein for August 24, 1972.

F. Petitioner reiterates its assertion that Respondent's
June 14, 1972 Ruling and Order has the effect of enjoining the en­
forcement, operation and execution of a number of Michigan statutes
of which the following are illustrative:

1. MCLA 340.77
The board of any school district governed 
by the provisions of this chapter is author­
ized to locate, acquire, purchase or lease 
in the name of the district such site or 
sites within or without the district for 
schoolhouses, libraries, administration 
buildings, agricultural farms, athletic 
fields and playgrounds, as may be neces­
sary; to purchase, lease, acquire, erect 
or build and equip such buildings for 
school or library or administration or 
for use in connection with agricultural 
farms, athletic fields and playgrounds, 
as may be necessary; to pay for the same 
out of the funds of the district provided 
for that purpose; to sell, exchange or 
lease any real or personal property of the 
district which is no longer required there­
by for school purposes, and give proper 
deeds or other instruments passing title 
to the same...

Every school district shall be a body corporate 
under the name provided in this act, and may 
sue and be sued in its name, may acquire and 
take property, both real and personal, for edu­
cational purposes within or without its corpo­
rate limits, by purchase, gift, grant, devise 
or bequest, and hold and use the same for such 
purposes, and may sell and convey the same as 
the interests of such district may require, 
subject to the conditions of this act contained....

3. MCLA 340.356
All persons, residents of a school district not 
maintaining a kindergarten, and at least 5 years 
of age on the first day of enrollment of the 
school year, shall have an equal right to attend 
school therein.

2. MCLA 340.352

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4. MCLA 340.569
The board of every district shall hire and 
contract with such duly qualified teachers 
as may be required....

5. MCLA 340.575
The board of every district shall determine 
the length of the school term. The minimum 
number of days of student instructions shall 
be not less than 180. Any district failing 
to hold 180 days of student instruction shall 
forfeit l/180th of its total state aid appro­
priation for each day of such failure....

6. MCLA 340.583
Every board shall establish and carry on such 
grades, schools and departments as it shall 
deem necessary or desirable for the maintenance 
and improvement of the schools; determine the 
courses of study to be pursued and cause the 
pupils attending school in such district to 
be taught in such schools or departments as 
it may deem expedient...

7. MCLA 340.589
Every board is authorized to establish atten­
dance areas within the school district.

8. MCLA 340.614
Every board shall have authority to make rea­
sonable rules and regulations relative to 
anything whatever necessary for the proper 
establishment, maintenance, management and 
carrying on of the public schools of such 
district, including regulations relative to 
the conduct of pupils concerning their safe­
ty while in attendance at school or en route 
to and from school.

9. MCLA 340.882
The board of each district shall select and 
approve the textbooks to be used by the 
pupils of the schools of its district on the 
subjects taught therein.

On June 29, 1972, Dr. John W. Porter, Superintendent 
of Public Instruction, in response to paragraph III of Respondent's 
June 14, 1972 Ruling and Order, filed his written report with the

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District Court. 
Porter discussed

At pages 33 and 34 of the June 29 report, Dr. 
the implications of Respondent's June 14, 1972

Ruling and Order with respect to certain provisions of the consti­
tution and statutes of Michigan. Pertinent portions of pages 33 
and 34 of that report are annexed hereto as Appendix A.

11• Reasons For Granting Petition For Rehearing.

A. The manifest purpose of Congress in enacting Title 
28, U.S.C. § 2281 was to prevent one federal judge from enjoining 
the operation of state laws. The applicability of § 2281 to 
Respondent's June 14, 1972 Ruling and Order has been presented 
to Respondent and to this Court. To date neither court has dis­
cussed this jurisdictional issue on its merits. Petitioner is 
aggrieved by the refusal of the courts to address the merits of 
this issue.

Moreover, the July 20, 1972 Order of Respondent 
makes moot the possibility that Petitioner can obtain redress 
from Respondent through the procedure suggested by this Court, 
namely, the filing of an application to intervene in Bradley v. 
Mild^iken. Thus, this Petition for Rehearing constitutes the 
only effective remedy available to Petitioner.

This Court has already scheduled an August 24,
1972 hearing for the appeal in Bradley v. Milliken. Without 
adversely affecting the rights of the parties in that appeal, 
the August 24 hearing can be readily expanded to give Petitioner 
its day in court with respect to the issues raised in its Petition 
for Writ of Mandamus and/or Prohibition.

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B. While it is clear that Respondent based his June 14,
1972 Ruling and Order upon the language contained in Brown II, 349 
U.S. 294 (1955), which discusses the breadth of equitable powers 
available to a district court in a school desegregation case, it 
is also clear that de jure acts of segregation violative of the 
Fourteenth Amendment of the United States Constitution are the 
jurisdictional sine quo non for the entry of a remedial decree.
It appears beyond dispute that Respondent's decree which interdicts 
the wide-spread operation of state statutes can be justified only 
upon the ground that the operation of such statutes conflicts 
with the Fourteenth Amendment. The convening of a three judge 
district court under § 2281 is mandatory when that conflict arises. 
Notwithstanding the opinion of Judge Merhige, (Bradley v. School 
Board of City of Richmond, Virginia, 324 F . Supp. 396 [1971]) , 
it is contrary to the manifest purpose and unambiguous language 
of § 2281 to suggest, on the one hand, that the validity of state 
laws under the United States Constitution never arises when a 
decree in a school desegregation case is being fashioned, and to 
justify, on the other hand, a decree enjoining the operation of 
those laws on the ground that acts of de_ jure segregation in vio­
lation of the United States Constitution have occurred.

C. Bradley v. Milliken was not a three judge court case 
when initially filed. Bradley v. Milliken, 433 F .2d 897 (1970),
n. 2, p. 900. It becomes a three judge court case when an 
injunction is issued which restrains the operation of state 
statutes affecting 54 local school districts, 780,000 students 
and several thousand teachers and local school administrators 
upon the ground of unconstitutionalitv. Even the jurisdiction 
of this Court to hear an appeal upon issues beyond the scope



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of the Detroit school district is burdened by § 2281. Stratton 
v. St. Louis S.W. Ry. Co., 282 U.S. 10 (1930).

The argument in the appeal in Bradley v. Milliken 
will be heard in less than one month. Neither Respondent nor 
this Court has , as yet, responded to the merits of the juris­
dictional questions raised by § 2281. The most efficient and 
practical way of promptly resolving the § 2281 question as well 
as other questions raised in the Petition for Writ of Mandamus 
and/or Prohibition is to hear Petitioner's arguments with respect 
thereto in this Court on August 24, 1972, when arguments on the 
issues in Bradley v. Milliken are presented.

RELIEF REQUESTED

Petitioner prays this Court to:
a. Take this Petition for Rehearing under immediate 

advisement;
b. Restore this cause to the calendar and set 

August 24, 1972 as the time for hearing the Petition 
for Writ of Mandamus and/or Prohibition;

c. Order Respondent to file an Answer to the 
Petition for Writ of Mandamus and/or Prohibition in 
accordance with Rule 21, F.R.A.P., and order the 
filing of briefs in compliance with the schedule set 
forth in this Court's Order of July 20, 1972, in the 
appeal in Bradley v. Milliken.

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SUGGESTION FOR HEARING IN BANC

It is respectfully suggested that in the event the appeal in 
Bradley v. Milliken is heard by this Court in banc pursuant to 
Rule 35, F.R.A.P., the Petition of Bloomfield Hills School District 
for Writ of Mandamus and/or Prohibition be heard in banc.

Respectfully submitted,
DICKINSON, WRIGHT, McKEAN & CUDLIP

By : ____ _______________ ________
Fred W. Freeman

Charles F. Clippert

Robert V. Peterson
Attorneys for Petitioner Bloomfield 

Hills School District 
1700 North Woodward 
P. 0. Box 509
Bloomfield Hills, Michigan 48013 
(313) 646-4300

Dated: July 27, 1972



APPENDIX A
ABSTRACT OF DR. PORTER'S REPORT 

OF JUNE 29, 1972________
Implications for the Interim Period

Effective implementation of the desegregation plan during 
the interim period may require the following actions:

1. Amendment of, or a moratorium on, the provisions of 
Article IX, Section 6, of the Michigan Constitution, 
which sets a 15 mill limit on the property tax^

2. Amendment of Act 62, Public Acts of 1933, the Property 
Tax Limitation Act.

3. Amendment of Act 31, Public Acts of 1966, which deals 
with the assessing and collecting of taxes within a 
city.

4. Amendment of Act 190, Public Acts of 1962, which deals 
with adoption of special education millage on an in­
termediate district basis.

5. Amendment of, or a moratorium on, certain provisions 
of the School Code of 1955 which deal with the powers 
and duties of local school districts.

6. Amendment of, or a moratorium on, certain provisions 
of Act 3367 Public Acts of 1947, the Public Employees 
Relations ActI

7. Amendment of, or a moratorium on, certain provisions 
oFAct 4, Public Acts of 19 37 , the Teacher Tenure Act.

8. Amendment of Act 36, Public Acts of 1945, the Public 
School Employees Retirement Act.

9. Amendment of the Rules and Regulations Governing the 
Certification "of Teachers.

10. Amendment of Federal Statutes and Guidelines as embodied 
In Title I of the Elementary and Secondary Education Act 
of 1965, which provides approximately $25 million an­
nually to districts in the desegregation area, and"is 
based on concentrations of children from low income; 
families.

Implications for the Period of Full Implementation

It appears almost certain that the period of full imple­
mentation will have direct implications for the possible amendment 
of all the constitutional, statutory, and administrative provisions 
outlined in the above section dealing with the interim period. In 
addition, it appears the following statutes may require amendment:

(i)



(1) The State School Aid Act.
(2) Those provisions of the School Code of 1955 dealinq 

with the establishment or creation of school districts.
(3) Act 320, Public Acts of 1968, which deals with the 

establishment of area vocational centers.

(ii)