Draft Memorandum in Opposition to Petitions for Writs of Certiorari

    IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1972

No. 72-748

WEST BLOOMFIELD SCHOOL DISTRICT OF 
OAKLAND COUNTY, MICHIGAN, et al.,

Petitioners,
,, v s .

THE HONORABLE STEPHEN J. ROTH.

No. 72-747

BLOOMFIELD HILLS SCHOOL DISTRICT,
Petitioners,

VS •
THE HONORABLE STEPHEN J. ROTH.

No. 72-817

SCHOOL DISTRICT OF THE CITY OF BIRMINGHAM, 
OAKLAND COUNTY, MICHIGAN,

Petitioner,
vs.

THE HONORABLE STEPHEN J. ROTH.

MEMORANDUM IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI



JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

PAUL R. DIMOND 
906 Rose Avenue 
Ann Arbor, Michigan 48104

LOUIS R. LUCAS 
WILLIAM E. CALDWELL

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

NATHANIEL R. JONES 
1790 Broadway 
New York, New York 10019

E. WINTHER MCCROOM 
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

LUCILLE WATTS
3246 Cadillac Towers 
Detroit, Michigan

J. HAROLD FLANNERY 
ROBERT PRESSMAN

61 Kirkland Street 
Cambridge, Mass. 02138

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



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1972

No. 72-748

WEST BLOOMFIELD SCHOOL DISTRICT OF 
OAKLAND COUNTY, MICHIGAN, et al.,

petitioners,
vs.

THE HONORABLE STEPHEN J. ROTH.

No. 72-747

BLOOMFIELD HILLS SCHOOL DISTRICT,
Petitioners,

vs.
THE HONORABLE STEPHEN J. ROTH.

No. 72-817

SCHOOL DISTRICT OF THE CITY OF BIRMINGHAM, 
OAKLAND COUNTY, MICHIGAN,

Petitioner,
vs.

THE HONORABLE STEPHEN J. ROTH.

MEMORANDUM IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI

These petitions for writs of certiorari are collateral 

to the lawsuit commenced in 1970 to desegregate the public 

schools of the Detroit, Michigan area, Bradley v. Milliken.

That matter was last before this Court this past term on the



petition of the state officials who are defendants in the 

case seeking review (which was denied) of the dismissal of 

an interlocutory appeal by the Sixth Circuit. 468 F.2d 902, 

cert, denied, 93 S.Ct. 45 (1972).

Petitioners are all corporate entities, school 

districts which were created by and function pursuant to the 

authority of the state of Michigan, and each of which is located 

within Oakland County, Michigan —  the county which abuts the 

city of Detroit to its northwest. Each of the petitioners 

elected not to intervene in early 1972 before the District Court, 

at the time when some 40 similarly situated school districts 

sought and were granted the right to intervene in the Bradley 

v. Milliken proceedings since the District Court was considering 

possible forms of relief which might affect them as agents of 

the state of Michigan for educational purposes. Each of the 

petitioners instead waited until after the District Court issued 

an order defining the area surrounding and including the city 

of Detroit within which a desegregation plan was to be developed, 

and then petitioners sought writs of prohibition or mandamus 

from the Court of Appeals to halt proceedings in the District 

Court. In each instance, the petitions for mandamus or pro­

hibition were denied without prejudice to their right to seek

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intervention in the District Court. Even then petitioners 

did not avail themselves of the opportunity either to enter 

the case at the District Court level or to intervene in the 

Court of Appeals, which considered the merits of the District 

Court's order defining a "desegregation area" in an appeal 

argued August 24, 1972 pursuant to an order expediting proceed­

ings. Instead, each of the petitioners sought rehearing or

rehearing eii banc of the orders denying the extraordinary 

writs, and then file the petitions for review with this Court 

which are presently under consideration. Since.the filing of

the petitions, the Court of Appeals issued a ruling on December

8, 1972 in which it vacated the District Court's order

defining a desegregation area and remanded for additional 

remedy hearings, holding that school districts (such as peti­

tioners) who would be affected by such a desegregation order 

are necessary parties to proceedings in the District Court prior 

to the entry of such an order. (The December 8, 1972 opinion 

of the panel was reprinted as an appendix to the "Supplemental 

Brief in Support of petitions for Writs of Certiorari to the 

United States Court of Appeals for the Fourth Circuit" in Nos. 

72-549, 72-550, this term.) On January ___, 1973, however,

the Court of Appeals issued an order setting the matter down

-3-



I /

/
for rehearing en banc on February 8, 1973 with the effect of 

vacating the opinion of the panel.

The petitioners raise three basic issues, each of 

which is intimately bound up with the proceedings in the main 

appeals now pending before the United States Court of Appeals 

for the Sixth Circuit upon rehearing en banc, and each of 

which could be better considered by this Court in a review 

of the ultimate disposition rendered by the full Court of 

Appeals.

Petitioners claim first that the District Court 

should not have proceeded to enter a decree which affectsI '! •

the operation of their schools if they were not parties to 

the proceedings before the Court. Putting to one side the 

facts that petitioners chose not to avail themselves of the 

opportunity for intervention which was seized by many of their 

sister districts, and that petitioners are each subsidiary 

agents of the state of Michigan, which was represented before 

the District Court, the claim is an inappropriate one for review 

at this juncture. The panel of the Court of Appeals ruled on 

December 8, 1972, even though petitioners disdained to partici­

pate in the appeals before the Court, that petitioners were 

indeed necessary parties before the District Court. It is

-4-



entirely possible that the full Court upon reharing will

reaffirm this element of the decision since so far as these 

respondents are presently aware, none of the parties opposes 

the participation of petitioners in the remand hearings before 

the District Court which had been ordered by the panel. Thus, 

should that ruling be upheld en banc, the question whether the 

petitions for mandamus or prohibition were properly denied 

will be rendered moot.

Petitioners also complained that the District Court

acted improperly when it determined to include their school

districts in the "desegregation area" without specific findings

that petitioners or their agents had engaged in "de_ jure'

segregation practices. This matter is perhaps one which might

be viewed as lending support to petitioners’ claims that

mandamus or prohibition should have been issued, but it is

intimately concerned in the present proceedings before the

Court of Appeals and ought not to be reviewed at this stage.

The panel's opinion at page 68 held:

In fashioning an equitable remedy in this case, 
it will not be necessary for the District Court 
to find discriminatory conduct on the part of 
each school district, either de jure or de facto, 
as a.prerequisite to including such district in 
a desegregation area to be defined by the Court's 
decree.

We are, of course,- unable to predict whether this language 

will be adopted, modified, or rejected by the full Court, but



certainly this Court* consideration of so important an

issue will be materially aided by its intervening consideration

before the Court of Appeals. Cf. Brown Shoe Company v. United

States, 370 U.S. 294, 355 (Clark J., concurring)

Finally, two of petitioners argue that the order

of the District Court defining a desegregation area was one

which could only have been heard by a statutory three judge

court pursuant to 28 U.S.C. § 2281. This issue is likewise

before the Court of Appeals in its consideration of the main

case, and this Court would be better served by denying review

of these petitions and postponing its consideration for a

later stage following the ruling of the entire Court of Appeals

for the Sixth Circuit,

For these reasons, respondents Bradley, et al.,

respectfully submit that the petitions are pre-mature, consti­

tute attempts to secure piece-meal review, and should be

denied so as to afford the court of Appeals an opportunity to

rule upon the substantive questions common both to these

petitions and the matters now pending before it upon rehearing

en banc.

Respectfully submitted,

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

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PAUL R. DIMOND 
906 Rose Avenue 
Ann Arbor, Michigan 48104

E. WINTHER McCROOM 
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

LOUIS R. LUCAS 
WILLIAM E. CALDWELL

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

NATHANIEL R. JONES 
1790 Broadway- 
New York, New York 10019

LUCILLE WATTS
3246 Cadillac Towers 
Detroit, Michigan

J. HAROLD FLANNERY 
ROBERT PRESSMAN

61 Kirkland Street 
Cambridge, Mass. 02138

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