Petitioner's Reply

    IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1973 

No. 73-434

WILLIAM G. MILLIKEN, et al,

v
Petitioners,

RONALD BRADLEY, et al,
Respondents.

PETITIONERS’ REPLY

FRANK J. KELLEY
Attorney General

Robert A. Derengoski 
Solicitor General
Eugene Krasicky 
Gerald F. Young 
George L. McCargar 

Assistant Attorneys General 
Attorneys for Petitioners 

William G. Milliken, et al.
Business Address:

750 Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913

P R IN T E D  B Y  S P E A K E R -H IN E S  A N D  T H O M A S , I N C .,  L A N S IN G , M IC H IG A N  -----  1 9 7 3



1

TABLE OF CONTENTS

Argument __________________________________________ 1

Conclusion __________________________________________ 5

CITATIONS

Gillespie v United States Steel Co, 379 US 148,
154 (1964) ________________________________________ 2

Higgins v Board of Education of the City of Grand 
Rapids, Michigan, (WD CA 6386), Slip Opinion 
of Judge Albert J. Engel, July 18, 1973 _____________  4

28 USC 1292(b)____________    1

Rule 54(b) FR Civ P _______________________________  1



— 1 —

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1973 
No. 73-434

WILLIAM G. MILLIKEN, et al,

v

RONALD BRADLEY, et al,

Petitioners,

Respondents.

PETITIONERS’ REPLY 

ARGUMENT

Respondents, Bradley, et al, attempt to persuade this 
Court to refrain from reviewing this case on the basis that 
the orders below are interlocutory. Nothing could be further 
from the truth. In its order dated July 20, 1972, the District 
Court determined as final, under Rule 54(b) of FR Civ P, 
its Ruling on Issue of Segregation, its Findings of Fact 
and Conclusions of Law on Detroit-Only Plans of Desegre­
gation, its Ruling on Propriety of Considering a Metropoli­
tan Remedy, and the Ruling for Desegregation Area and 
Development of Plans, among others, and certified as con­
trolling questions of law the issues presented therein to 
the Court of Appeals, under the provisions of 28 USC 
1292(b). (113a) D1 The Court of Appeals affirmed the 
Ruling on Issue of Segregation and the Findings of Fact
[i]

Hereafter references to the Joint Appendix filed heretofore will 
he indicated by page numbers enclosed in parentheses.



— 2—

and Conclusions of Law on Detroit-Only Plans of Desegre­
gation, and affirmed in principle the Ruling on Propriety 
of a Metropolitan Remedy and the Ruling on Desegregation 
Area and Development of Plans, but vacated the same for 
non-joinder of affected school districts as necessary parties. 
(189a-190a) On these questions, controlling and fundamental 
to the further conduct of this case, the decision of the Court 
of Appeals is final and binding upon petitioners unless re­
viewed now by this Court and reversed. Gillespie v United 
States Steel Co, 379 US 148,154 (1964). See also dissenting 
opinion of Judge Weick. (206a-207a).

Respondents, Bradley, et al, suggest that the newly 
added school districts and the petitioner intervening school 
districts may, upon proper showing,Ul present evidence 
going to the violation and sufficiency of the Detroit-Only 
remedy if the District Court chooses to admit such evi­
dence. Yet, in their amended complaint to conform to the 
evidence, paragraphs 10, et seq, they assert that the Detroit

[2]
Respondents do not reveal tlieir definition of the phrase “upon 

proper showing.” Due process, at a minimum, requires that a de­
fendant school district be given notice of the charges against it, 
the right to be present by counsel, the right to offer evidence, the 
right to cross-examine opposing witnesses and the right to be heard 
on all issues— factual and legal—that affects it. The exercise of 
these rights is not dependent “upon a proper showing,” regardless 
of how this term is defined. It is precisely these rights that are 
denied the added and petitioner intervening school districts by the 
Court of Appeals’ affirmance of the District Court’s Rulings on the 
Issue of Segregation and “Detroit-Only” plans of desegregation 
(178a) and the affirmance in principle of the District Court’s Rul­
ing on Propriety of Metropolitan Remedy (177a).

The gratuitous, undefined phrase “upon a proper showing” is 
dissembling in two respects: (1) it conceals the lack of due process 
in the District Court, and (2) it suggests the existence of factual 
issues which, in fact, are foreclosed by the Court of Appeals’ 

'  affirmance of the District Court’s rulings.



3

school district is segregated and a multi-district remedy is 
required “ wholly apart from the actions of the suburban 
defendants or any of them.”  Thus, unless this Court 
grants certiorari and reverses and remands the decision 
of the Court of Appeals, the suggestion of respondents, 
Bradley, et al, is “wholly illusory with respect to the issues 
of segregation, the ‘Detroit-Only plan’ and the ‘ Metro­
politan plan’, as the opinion expressly excludes these 
issues from reconsideration upon the remand.”  Opinion 
of Judge Weick. (206a)

Even though all of the school districts in the tri-county 
area of Wayne, Macomb and Oakland, with the exception of 
Pontiac school district, are now parties in this action, the 
decision of the Court of Appeals and Amended Complaint 
to Conform to Evidence of respondents, Bradley, et al, fore­
close litigation of any factual issue as a predicate to multi- 
district relief. The legal predicates, segregation, insuffi­
ciency of a Detroit-Only plan and propriety of a multi- 
district remedy have been finally and adversely determined. 
The multi-district scope of the remedy has been determined. 
The multi-district form of the remedy has been determined.

Before hearings in the District Court commence and 
these districts are put to the expense of marshaling their 
efforts to hearings necessarily limited by the decision of 
the Court of Appeals to the extent of the multi-district 
remedy, and such other issues as the District Court by 
grace may permit, as contrasted with fulfilling their pri­
mary mission of educating resident children within each 
district, this Court should grant certiorari, receive briefs 
and hear oral arguments to dispose of the paramount is­
sues of constitutional law raised by the petitions for 
certiorari.

Respondents, Bradley, et al, at p 3, footnote 2, acknowl-



4-

edg’e and unsuccessfully attempt to paper over the lack 
of fundamental due process afforded the intervening and 
added school district defendants herein. Due process is 
not the opportunity, dependent upon the grace of the trial 
judge, to relitigate issues already finally and adversely 
determined by the trial court and the Court of Appeals, as 
proposed by respondents. Rather, due process is the right 
to notice and opportunity to be heard, as a matter of right, 
at a meaningful stage of the proceedings. (212a) (235a- 
236a) (239a-240a)

The proper procedure, where a multi-school district 
remedy is sought, is joinder of all potentially affected school 
districts, with full rights of participation, prior to the 
initial trial on the merits. See Higgins v Board of Educa­
tion of the City of Grand Rapids, Michigan, (WD, CA 
6386), Slip Opinion of Judge Albert J. Engel, July 18, 
1973, where this procedure was employed.

Respondents, Bradley, et al, are seeking a massive multi­
school district remedy involving the expensive transporta­
tion of school children across school district and county 
lines, together with faculty reassignment and major altera­
tions in the present legal and administrative arrangements 
governing Michigan school districts, all for the purpose of 
some artificial racial balance. The children, parents and 
school officials in each affected school district will bear 
the full burden of implementing respondents’ social goal. 
Thus, at a minimum, these hundreds of thousands of people 
deserve a fair opportunity to he heard on all issues. A 
major reason that the American people comply with un­
popular federal court orders is that they view the federal 
judicial process as a fundamentally fair process. Here, as 
to the affected school districts, simple fairness requires full 
opportunity to be heard on all issues, as a matter of right,



— 5

not of grace. (240a) Otherwise the proceedings remain 
fatally defective.

CONCLUSION

For the foregoing reasons, a writ of certiorari should 
issue to review the decision of the Sixth Circuit rendered 
herein on June 12, 1973.

Respectfully submitted,
FRANK J. KELLEY
Attorney General

Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Gerald F. Young 
George L. McCargar 

Assistant Attorneys General 
Attorneys for Petitioners 

William G. Milliken, et al.
Business Address:

750 Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913



\