Answer of Defendants Board of Education for the City of Detroit to Motion to Dismiss Appeals

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

NO. 72-1064

RONALD BRADLEY, et al. ,

Plaintiffs-Appellants, 
Cross-Appellee,

VS.

WILLIAM G. MILLIKEN, et al., '

Defendants-Appellees, 
Cross-Appellants,

DETROIT FEDERATION OF TEACHERS, LOCAL 231 
AMERICAN FEDERATION OF TEACHERS, AFL-CIO '

Defendant-Intervenor- 
Appellee ,
and

DENISE MAGDOWSKI, et al.,

Defendants-Intervenor.

Appeal from the United States District Court 
for the Eastern District of Michigan 

Southern Division

ANSWER OF DEFENDANTS BOARD OF EDUCATION 
~ FOR THE ~~

CITY OF DETROIT TO MOTION TO DISMISS APPEALS



Page
Table of Contents................ 1
Table of C a s e s ........................la
Statement of Issue......................lb
Statement of Procedural Facts .......... 2
Argument

Reasons Why the Motion to
Dismiss Appeal Should Be Denied. . 6

I. The Order of November 5, 1971 
is a Final Decision Within 
the Meaning of 28 U.S.C. 1291 •'

. as the term "Final Order" Has 
Been Interpreted By the United 
States Supreme Court, 6th Circuit, 
and Other Circuits .............. 7

II. Even if this Court Decides that 
the Order is not a Final Order, 
it is still Appealable to this 
Court as the Court has juris­
diction Under 28 U.S.C. 1292 
because it has the effect of
an injunction..................19

Conclusion..............'............ 23
Appendix J ............................ 2 4
Certificate of Service ................  25

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TABLE OF CASES

Board of Education of Oklahoma Citv v. Do w pI1. 
375 F .2d 158 (1967) -------------

Board of Education of the City of Chattanooaa.
V. Mapp (1961) ------a-

The Board of Public Instruction of Duval County 
v. Braxton, 326 F.2d 616 (1964)
Bradley v. Milliken, 433 F.2d 897 (1970)
■Bradley v. Milliken, 438 F.2d 946 (1971)
Brown Shoe v. United States, 370 U.S. 294 (1969)

Deal v. Cincinnati Board of Education.
419 F.2d 1387 (1969) ---

Dickinson v. Petroleum Conversion Corporation. 
338 U.S. 507 ----------- -------

Gillespie v. United States Steel Corp., 321 F.2d 
518 (1963), Aff'd in Part 379 U.S. 148
Kelley v. Metropolitan Board of Education.
436 F . 2d 856 (1970) ---------
Spencer v. Kugler, 40 L.W. 3329 (1972)
Steele v. Board of Public Instruction of Leon 
County, 371 F.2d 395 (19671 —
Taylor v. Board of Education, 288 F.2d 600 
(2d Cir. 1961) “

L a .? e

16

17

17, 21
3 / 18
4, 18
8, 10, 11

12, 13, 14
16, 17, 18

14
9

16

17
14

21, 22 

8, 17

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STATEMENT OF THE ISSUE

Is the order dated November 5, 1971, which incorporates 
the final findings of fact and conclusions of law that the 
Defendants Board of Education for the City of Detroit, et al have 
committed acts amounting to de jure segregation of the Detroit 
public schools contained in the District Court's Ruling on the 
Issue of Segregation, and which directs the Board to submit a 
plan of desegregation and an appealable order?

The Defendants Board of Education contend "yes".

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Defendants-Appellees, Cross-Appellants, the Board 
of Education for the City of Detroit, et al_ (hereinafter 
referred to as Board of Education) respectfully moves this 
Honorable Court to deny the Motion to Dismiss Appeals filed 
herein by Plaintiffs-Appellants and Cross-Appellees, for the 
reason that this Honorable Court has jurisdiction of this matter 
at this time because (1) the order appealed from by the Board of 
Education is a final order within the meaning of 28 U.S.C. 1291, 
or in the alternative, (2) is an appealable interlocutory order 
pursuant to 28 U.S.C. 1292 (a)(1).

In support of their prayer that the Motion to Dismiss 
should be denied as to their appeal, the Board of Education, _et 
al show the following:

STATEMENT OF PROCEDURAL FACTS

Plaintiffs commenced this litigation filing a complaint 
on August 18, 1970 against the Board of Education of the City of 
Detroit, its members and the then Superintendent of Schools, as 
well as the Governor, Attorney General, State Board of Education 
and State Superintendent of Public Instruction of the State of 
Michigan. Plaintiffs challenged the constitutionality of Act 48 
of the Public Acts of 1970 of the State of Michigan as it affected 
certain plans of the Detroit Board of Education, and also alleged 
that the Detroit Public School System was and is segregated on

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*

the basis of race as a result of the official policies and 
actions of the Board of Education. After making said allega­
tions, the Plaintiffs in two and one-half pages of pleadings 
asked for certain relief including preliminary injunctions 
requiring the Board of Education to implement a plan of desegre­
gation known as the "April 7, 1970" plan restraining implemen­
tation of the aforementioned Act No. 48 of Michigan Public Acts 
of 1970, restraining the Board of Education from all further 
school construction and requesting permanent decrees concerning 
the above, and enjoining the Board of Education from building 
schools, approving policies, curriculum and programs "which 
are designed to or have the effect of maintaining, perpetuating 
and supporting racial segregation in the Detroit School System" 
and ordering Defendant School Board to institute a plan of 
desegregation.

This case was initially tried on Plaintiffs' motion 
for preliminary injunction to restrain the enforcement of the 
aforementioned Act 48 so as to permit the so-called April 7,
1970 plan to be implemented. The trial court ruled that the 
Plaintiffs were not entitled to a preliminary injunction, did 
not rule on the constitutionality of Act 48, and granted a 
motion dismissing the cause as to all of the State Defendants.

This Court, in Bradley v. Milliken, 433 F.2d 897,989 
(6th Cir.1970), held that the Trial Court did not abuse its 
discretion in denying the motion for preliminary injunction, 
but,reversing the trial court in part/held that portions of

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#

of Act 48 were unconstitutional and that the State Defendants 
should remain in the suit. By so doing, this Court recognized 
that at that time it had jurisdiction to hear the appeal, even 
though the matter was still pending in the lower court and there 
had not then been a trial on the merits.

Subsequently, the Plaintiffs sought to have the Trial 
Court direct the Defendant, Detroit Board, to implement the 
"April 7th" plan prior to trial. The Court did not order imple­
mentation of the "April 7th" plan, but, instead,adopted a plan 
submitted by the Board of Education.

Plaintiffs again appealed to this Court, and again, 
the Court held that the Trial Court had not abused its discretion 
in refusing to adopt the April 7, 1970 plan. This Court further­
more remanded with instructions to proceed immediately to a trial 
on the merits of Plaintiffs' allegations about the Detroit School 
System. Bradley v. Milliken, 438 F.2d 946 (6th Cir.1971).
Again this Court did not question its jurisdiction to hear the 
second appeal, even though there had been no trial on the 
merits, but, instead, denied Plaintiffs the relief sought on 
grounds other than jurisdictional.

The trial on the issue of segregation began April 
6, 1971 and was concluded on July 22, 1971 after consuming 41 

trial days.
On September 27, 1971, the Trial Court issued a 

"Ruling on Issue of Segregation" which is attached as Appendix

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A to the Plaintiffs' motion herein.

In that ruling at page 25 (see Appendix A of
Plaintiffs motion), the Court stated with particular finality

In conclusion, however, we find that both 
the State of Michigan and the Detroit 
Board of Education have committed acts which 
have been causal factors in the segregated 
condition of the public schools of the City 
of Detroit. As we assay the principles 
essential to a finding of de jure segregation, 
as outlined in rulings of the United States 
Supreme Court, they are:..."
And at page 34 of the ruling, the Court stated:
"Having found a de jure segregated public 
school system in operation in the City of 
Detroit, our first step, in considering 
what judicial remedial steps must be taken..."
Pursuant to the above ruling, a pre-trial conference 

was held on Monday, October 4, 1971, the transcript of which 
has been attached to Plaintiffs' motion herein as Appendix B. 
As the transcript reveals the entire purport of the pre-trial 
conference on October 4, 1971 was directed towards a remedy 
implementing the Court's ruling.

This pre-trial conference concluded with the Court 
setting a time table for the presentation of proposed imple­
mentation plans. Though counsel for Plaintiffs has suggested 
that at page 29 of the pre-trial transcript that the then 
counsel for the Board of Education waived the entering of an 
order, the Court did enter its order of November 5, 1971, 
which is attached to Plaintiffs' motion as Appendix C, set 
forth therein the time table for the presentation of plans,

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*

and confirmed that as far as the Trial Court was concerned, 
its findings of fact and conclusions of law on the issue of 
segregation had been made and were final.1 Furthermore, in 
their motion now before this Court, the Plaintiffs at page 6 
concede that the Defendants had the right to insist on an 
order being entered.

It is also noted that the Trial Court had previously 
issued an injunction prohibiting the Defendant School Board 
from constructing any new school buildings. That order still 
remains in effect and the Court has enforced it and intends 
to do so as the Court's attached letter marked Appendix J 
attached hereto indicates.

ARGUMENT .

REASONS WHY THE MOTION TO 
DISMISS APPEAL SHOULD BE DENIED

INTRODUCTION

This Court has jurisdiction over the Appeal of Board 
of Education from the Order of November 5, 1971 either as a 
final decision under 28 U.S.C. 1291; as the term "final deci­
sion" has been interpreted by the United States Supreme Court,

As to this confirmation, the Court's attention is directed 
to the Trial Court's language at the outset of its order of 
November 5, 1971: "The Court having entered its findings of
fact and conclusions of law on the issue of segregation on 
September 27, 1971;"

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#

by the Court of Appeals for the Sixth Circuit and by other
Circuits; 28 U.S.C. 1291 reads in part:

"The Courts of Appeals shall have juris­
diction of appeals from all final decisions 
of the district courts of the United States..."

. If this Court does not deem the Order to be a "final
decision" within the meaning of §1291, then the only possible
alternative interpretation is that the Order is interlocutory,
and in the nature of an injunction from which appeals are
permitted pursuant to 28 U.S.C. 1292(a)(1):

"(a) The courts of appeals shall have 
jurisdiction of appeals from:

(1) Interlocutory orders of the 
district courts of the United States, 
the United States District Court for the 
District of the Canal Zone, the District 
Court of Guam, and the District Court of 
the Virgin Islands, or of the judges 
thereof, granting, continuing, modifying, 
refusing or dissolving injunctions, or 
refusing to dissolve or modify injunctions, 
except where a direct review may be had 
in the Supreme Court;"

I.
THE ORDER OF NOVEMBER 5, 1971 IS A FINAL 
DECISION WITHIN THE MEANING OF 28 U.S.C. 
1291 AS THE TERM "FINAL DECISION" HAS 
BEEN INTERPRETED BY THE UNITED STATES 
SUPREME COURT, 6TH CIRCUIT AND OTHER 
CIRCUITS.

It is ineluctable fact that none of the issues 
of fact or law raised in Plaintiffs’ complaint or Defendants' 
answer remain before the Trial Court. All were disposed of 
by the "Ruling on Issue of Segregation" of September 27, 1971,

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and the subsequent order incorporating that Ruling on 
November 5, 1971. All that remains is to fashion a remedy.

These facts, by clear logic and ample precedent, 
allow only the conclusion that the above Ruling constitutes 
a "final decision" within the meaning of §1291, which is 
appealable at this time.

With regard to precedent, there is more significance 
to the cases Plaintiffs fail to cite then those they do cite.

Plaintiffs' sole reliance for all practical pur­
poses is on Taylor v. Board of Education, 288 F.2d 600 (2d 
Cir.1961) in which the second circuit did hold that an order 
finding the existence of de jure segregation and mandating 
the school board to submit a desegregation plan was not appeal­
able either as a final order, or as an interlocutory injunction 
within the meaning of 28 U.S.C. 1292(a)(1). The Taylor decision 
is distinguishable from the case at Bar, is not the law of 
the Sixth Circuit, has not been followed on this point by 
any other Circuit, and most importantly, preceded by approxi­
mately 14 months the decision of the United States Supreme 
Court of June 26, 1969 in Brown Shoe Company v. United States, 
370 U.S. 294, in which the Supreme Court held that an appeal 
from an order analagous to the order in the case at Bar must 
be interpreted as a final appealable order.

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0

There has been indication that the Second Circuit's
position on this point is not broadiy aocepted for some time.
The late Mr. Justice Jackson, in reversing another decision
of the Second Circuit which had denied appealability on the
grounds of lack of finality, indicated as much:

"The only issue presented by this case 
turns on the finality of a judgment for 
purposes of appeal, a subject on which .
the volume of judicial writing already *

• formidable. The Court of Appeals
resolved^against finality of the decree 
n guestion, saying, however, that it did 
so against the unanimous conviction of the 
court as constituted but in deference tQh
c o n s t i t u t eSta^llshed bY a differently
173 F 2d ?lRC°Ur  °f thS SamS Circuit. Y cuit mnfi ; Because of this intracir- rr nflict, we made a limited grant 
of certiorari. 338 u.S. 811. That we
settle fhV1SS 3 f0rm °f WOrds that wil1 ta^n J ~ ' + 1 S  r ^ u r r e n t  Problem seems cer- ' t m  this case we agree with the 
convictions of the court below and revise
Corporate6?^* " ^ S i n s o n _v. Petroleum

Thus, the Second Circuit itself has long been split 
on the question of finality, and the Supreme Court, long ago, 
became dubious of the Second Circuit's views on finality. This 
alone is good reason for this Court not to blindly follow the 
decision of a split Second Circuit panel in Taylor.

There is a factual distinction between Taylor and 
the case at Bar. As a practical matter, the order in Taylor 

involved,basically,desegregating one school in a suburban district.

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Here we are speaking of an entire school system, reputedly 
the fourth largest school district in terms of student 
enrollment in the United States. Unlike Taylor, leaving 
the rights of the parties undetermined now at the appellate 
level could result in a great disservice to over 290,000 
school children.

Much more on point than the dubious Taylor case 
is the more recent pronouncement of the United States Supreme 
Court in Brown Shoe Company v. United States, 370 U.S. 294 
(1969) which dictates that the November 5, 1971' order be 
interpreted as a final appealable decision.

Brown Shoe Company resulted from a complaint brought 
by the United States government alleging that the merger of 
Brown Shoe Company and Kinney Shoe Company was in violation 
of Section 15 of the Clayton Anti-Trust Act (15 U.S.C. 25).
The District Court held that the Brown-Kinney merger did indeed 
violate Section 15 and entered a judgment so concluding, but 
reserved ruling on divestiture until the filing of divestiture 
plans for doing so. The case reached the United States 
Supreme Court by direct appeal pursuant to the so-called 
Expediting Act, 15 U.S.C.A. Section 29, which permitted 
direct appeals in the event of "final judgment of the district 
court."

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In holding that the judgment of the District 
Court could be interpreted as final, even though no plan 
for divestiture had been entered, the United States Supreme 
Court, speaking through Mr. Chief Justice Warren, said, 
beginning at 308:

"[5] We think the decree of the District 
Court in this case had sufficient indicia of 
finality for us to hold that the judgment is 
properly appealable at this time. We note, 
first, that the District Court disposed of 
the entire complaint filed by the Government. 
Every prayer for relxef was passed upon.
Full divestiture by Brown of Kinney's stock 
and assets was expressly required. . Appellant 
was permanently enjoined from acquiring or 
having any further interest in the business, 
stock or assets of the other defendant in 
the suit. The single provision of the judg­
ment by which its finality may be questioned 
is the one requiring appellant to propose 
in the immediate future a plan for carrying 
into effect the court's order of divestiture. 
However, when we reach the merits of, and 
affirm, the judgment below, the sole remaining 
task for the District Court will be its accep­
tance of a plan for full divestiture, and the 
supervision of the plan so accepted. Further 
rulings of the District Court in administering 
its decree, facilitated by the fact that the 
defendants below have been required to maintain 
separate books pendente Lite, are sufficiently 
independent of, and subordinate to, the issues 
presented by this appeal to make the case in 
its present posture a proper one for review 
now. Appellant here does not attack the full 
divestiture ordered by the District Court as 
such; it is appellant's contention that under 
the facts of the case, as alleged and proved by 
the Government no order of divestiture could 
have been proper. The propriety of divestiture 
was considered below and is disputed here on an 
~rall or nothing' basis. It is ripe for review" 
now, and will, thereafter, be foreclosed.

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*

Repetitive judicial consideration of the 
same question in a single suit w-ill nnt 
occur here. (Citations Omitted)

A second consideration supporting our 
view is the character of the decree still 
to be entered in this suit. It will be an 
order of full divestiture. Such an order 
requires careful, and often extended, 
negotiation and formulation. This process 
does not take place in a vacuum, but, rather, 
in a changing market place, in which buyers 
and bankers must be found to accomplish the 
order of forced sale. The unsettling influ­
ence of uncertainty as to the affirmance of 
the initial, underlying decision compelling 
divestirue would only make still more diffi­
cult the task of assuring expeditious enforce­
ment of the anti-trust laws. The delay in 
withholding review of any of the issues in 
the case until the details of a divestiture 
had been approver, by the District Court and 
reviewed here could well mean a change In 
market conditions sufficiently pronounced 
to render impractical or otherwise unenforce­
able the very plan of asset disposition for 
which the litigation was held. The public 
interest, as well as that of the parties, 
would lose by such procedure." [emphasis added]

The analogy of Brown Shoe Company on the point of 
issue here to the case at Bar is clear. That Brown dealt with 
anti-trust law does not change the fact that it represents the 
true state of the law on this issue.

This becomes evident by noting the emphasized portions 
of the above quotation and comparing them to the facts in the 
instant case. Taken together, the September 27, 1971 Ruling 
and Order of November 5, 1971 answered, as in Brown "every 
prayer for relief". The Plaintiffs did not prevail on the 
issue of segregation among faculty and administration. They

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* *

prevailed on all other issues. As in the Brown case, the 
only matter left is the implementation and supervision of a 
remedy in accordance with the Trial Court's final conclusion 
on the issue of segregation. As in the Brown case, if this Court 
of Appeals affirms on the merits "the sole remaining task for 
the District Court will be its acceptance of a plan for a full 
divestiture, and the supervision of the plan so accepted". Here 
it will be the acceptance and supervision of a desegregation plan.

On the other hand, if this Court finds on appeal 
that the Trial Court erred in its Ruling on the Issue of Segre­
gation, then there will be no need for a remedy.

As was the appellant in Brown, the Board of Education 
is in an "all or nothing" position. The School Board's position 
is that there should be no order of desegregation just as the 
appellant in Brown claimed there should be "no order of dives­
titure" .

As ;'-n Brown, there will be no "repetitive judicial 
consideration" before this Court once this Court decides the 
basic segregation issue here which Defendants' appeal raises.

Just as Mr. Chief Justice Warren in Brown recognized 
that a divestiture order is a complicated order demanding time 
and consideration because of market conditions, likewise a 
desegregation order by its very nature is complex, not necessarily 
because of market conditions, but because of sociological,

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economic and changing population patterns which do require 
time. As in Brown, a delay here in withholding review will 
be contrary to the public's interest. If this Court finds no 
basis for remedy, then further action on remedy implementation 
is futile. If this Court finds that there is a basis for remedy, 
it will have established a firm footing for a remedy.

The Trial Court below seemed to merge the concept 
of facto segregation with de jure segregation. The law of 
the Sixth Circuit is that a school board is not responsible 
for de facto segregation. Deal v. Cincinnati Board of Education, 
419 F.2d 1387 (1969). There is also recent indication that 
the United States Supreme Court recognizes that the Boards of 
Education are not responsible for de facto segregation. See 
the Court's summary order in Spencer v. Kugler, 40 L.W. 3329 
(January 18, 1972) .

We recognize that the Trial Court attempted to 
charge the Board of Education with de jure segregation, but 
this attempt was based on three isolated findings. One 
suggesting that the Board had in one instance bussed black 
pupils past a white school was not supported on the record 
for the bussing to the school involved was for physical facility 
reasons (newer school) rather than due to any attempt to segre­
gate. The second finding concerned the Board's previous optional 
attendance zones, which the Trial Court itself found the Board

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#

had actively sought to eliminate, even hiring an expert to do 
so. (See page 13 - Ruling) The third isolated finding was a 
suggestion that in "at least once instance" the Board did 
build a school "which contains black students". We suggest 
that this is indeed an isolated instance in a school system 
of over three hundred school buildings with over 295,000 school 
children.

On the other hand, contrary to any other court decision 
in which a school board has been charged with de jure segregation, 
the Trial Court here,in effect,awarded the Board a summa cum 
laude degree in its efforts to advance integration. From page 
18 through page 24 of its Ruling, the Trial Court spends consi­
derable time setting forth the tremendous efforts which the 
School Board has expended in an effort to integrate. In fact 
the Court begins its entire discussion at page 18 by the following 
words:

"It would be unfair for us not to 
recognize the many fine steps the 
Board has taken to advance the cause 
of quality education for all in terms 
of racial integration and human relations.
The most obvious of these is in the field 
of faculty integration."
The issue then is clearly drawn. Do isolated instances 

which the Trial Court has properly or improperly found to be 
disciminatory form a basis for a finding of de jure student segre­
gation sufficient to support a comprehensive remedy when cast

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against the Trial Court's findings that the School Board has 
labored mightily to remove de facto segregation? This crucial 
issue, if decided in the School Board's favor, would be wholly 
dispositive of the case. If decided adversely to the School 
Board, it would not be susceptible to reargument in the hearings 
on proposed remedies. In either event, it is ripe for decision 
now.

The key, of course, is the practical interpretation 
of the word "final". The Court of Appeals for the Sixth Circuit
has traditionally followed an enlightened view in interpreting 
the term "finality" in permitting appeals. Thus, in Gillespie 
v. United Steel Corporation, 321 F.2d 518 (1963), this Court 
held that a motion striking all references to the statute of 
the State of Ohio, to unseaworthiness, or references to recovery 
for the benefit of brothers and sisters of the decedent in 
an action for recovery under the Jones Act was an appealable 
final order.

In upholding the Sixth Circuit on the issue of
finality, the United States Supreme Court in Gillespie v.
United States Steel Corporation, 379 U.S. 148 at 150 said:

"Under Section 1291 an appeal may be 
taken from any 'final order of a 
district court'. But as this court 
often has pointed out, a decision 
'final' within the meaning of Section 
1291 does not necessarily mean the 
last order possible to be made in a 
case.. .

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m

And our cases long have recognized that 
whether a ruling is 'final' within the 
meaning of Section 1291 is frequently so 
close a question that decision of that 
issue may either be supported with equally 
fcrcefui arguments, and that it is impos­
sible to devise a formula to resolve all 
marginal cases coming within might well 
be called the twilight zone of finality".
In a school segregation case, this Court in a short

order denied a motion to dismiss an appeal from an order similar
to the order here, Board^Qduca^ ,  of the City of Chattanooga
— MaP,P. (filed January 20, 1961).

We appreciate that in Taylor the Circuit Court criti­
cized this Court's decision in Mapp. But then again Taylor was 
before Brown. We also point out to the Court that although Taylor 
was called to the Fifth Circuit's attention, the Fifth Circuit 
went on to ignore Taylor and held that the ordering of a desegre­
gation plan dealing expressly with prohibited acts amounted to 
a mandatory injunction and was appealable. The Board of Public 
Instruction of Duval County v. Braxton, 326 F.2d 616,619 (5th 
Cir. 1964).

The Sixth Circuit has been true to the philosophy 
of Gillespie as subsequently expressed in Brown in permitting 
appeals of final orders such as this including those in school 
segregation case. We invite the Court's attention to its 
decision in Kelley v. Metropolitan Board of Education. 436 F.2d 
856,862 (6th Cir.1970) where the Court upheld the appealability

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*

of an order saying "pupil integration proceedings for an
indefinite time is appealable as a final order under 28 U.S.C. 
1291."

Obviously in Kelley, the Court believed that the 
matter should be reviewed by the appellate court because of 
xts importance to the parties involved. A similar view was 
taken by the Tenth Circuit in Board of Education of Oklahoma 
— ty v“ DoweH / 375 F . 2d 158 (10th Cir.1967) where that Court 
did not even question its jurisdiction in reviewing an order
requiring a local board to submit a plan with certain specified 
features.

The practical approach in a case such as the case 
at Bar is to permit the appeals by recognizing that the 
November 5, 1971 order incorporated the September 27, 1971 
ruling as a final appealable order. All the parties are 
entitled to know whether or not the lower court was correct in 
its decision just as the Plaintiff was permitted to find out 
even before trial whether Public Act 48 was constitutional, 
Bradley v. Milliken, 443 F.2d 897 (1970), and whether the Trial 
Court abused its discretion in not implementing the so-called 
April 7, 1970 plan. Bradley v. Milliken, 438 F.2d 945 (6th 
Cir. 1971). The only difference now is that the order is final 
and it is Defendants seeking review.

It should be noted that the Plaintiffs-Appellees

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have also filed an appeal challenging the ruling of the Trial 
Court as to faculty desegreation. If this Court of Appeals 
finds that Defendants' Board of Education appeal cannot be 
interpreted as a final order, the Court still is saddled with 
Plaintiffs' appeal. Since the ruling on that issue denied 
relief, it is as final a decision as is going to be made. There 
would be no logic to hearing only that portion of the case now. 
Thus, it becomes imperative in the interest of judicial economy 
that all appeals be heard at this time.

We suggest to the Court that the rights of students 
are just as important as the right of corporations which were 
involved in the Brown case and for this reason, these appeals 
should be heard by this Honorable Court at this time.

II.

EVEN IF THIS COURT DECIDES THAT THE ORDER 
IS NOT A FINAL ORDER, IT IS STILL APPEALABLE 
TO THIS COURT AS THE COURT HAS JURISDICTION 
UNDER 28 U.S.C. 1292 BECAUSE IT HAS THE EFFECT 
OF AN INJUNCTION.

this Court should interpret the order of November 
5, 1971 as not a final order that can be appealed under 28 U.S.C. 
1291, it is the position of Defendants Board of Education that 
the order entered by the District Court on November 5, 1971, 
is appealable to the United States Court of Appeals for the 
Sixth Circuit as a matter of right under 28 U.S.C. §1292(a)(1).

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This statute is the direct descendant of the Evarts
Act of 1891, 26 Stat. 828, which was designed to facilitate
the appeals of certain interlocutory orders. The relevant
portion of the statute, as currently in force, reads as follows:

"(a) The courts of appeals shall have 
jurisdiction of appeals from:
(1) Interlocutory orders of the district 
courts of the United States,. . . or of the 
judges thereof, granting, continuing, modi­
fying, refusing or dissolving injunctions, 
or refusing to dissolve or modify injunctions, 
except where a direct review may be had in 
the Supreme Court; ..."

28 U.S.C. §1292(a) (1) . .

As interpreted by the courts and academic commentators, 
§1292 does not necessarily allow appeals of all orders which are 
labeled injunctions, nor does it preclude appeal of orders which 
are not labeled injunctions. Here, as elsewhere in the law, 
substance rules over form. The consensus of the judicial and 
academic authorities seems to be that §1292 permits appeals 
from the granting or denying of injunctive relief when that 
relief goes to the heart of the case, and is not merely inci­
dental to the trial.

It is clear that the order which Defendant Board 
of Education is challenging gives some or all of the substan­
tive relief sought by a complaint. In fact, it is not too 
much to say that the order goes to the heart of the case.
The District Court, after finding against Defendants Board of

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Education on the issue of de jure segregation, issued this 
order requiring the submission of a plan for desegregating 
the Detroit schools. The plan ordered is directed precisely 
to the ultimate relief sought by Plaintiffs.

Of course, the fact that the November 5, 1971 order 
was not stated in terms of prohibition does not affect the 
fact that it is an injunction. Mere labels are not decisive 
in determining whether an order is an "injunction" under §1292 
(a)(1), and it is clear that mere words of prohibition are not 
an essential element of an injunction. In effect, Defendants 
Board of Education has been prohibited, with all the sanctions 
available to the District Court, from not submitting a plan. 
Furthermore, the Trial Court has enjoined the Board from 
engaging in any school construction and this injunction must 
be interpreted as part of the November 5, 1971 order.

Thus Courts of Appeals, in other cases involving the 
desegregation of schools, have recognized appealability of 
orders under §1292(a)(1). For example, the Fifth Circuit con­
cluded "that the ordering of a plan dealing expressly with 
these prohibited acts amounts to a mandatory injunction." Board 
of Public Instruction of Duval County v. Braxton, 326 F.2d 616, 
619 (5th Cir.1964). The Fifth Circuit has also upheld the 
appealability under §1292(a)(1) of an order "denying the 
plaintiff's motion to modify the plan." Steele v. Board of

- 21-



•  •

Instruction of Leon County, 371 F.2d 395,396 (5th Cir.1967). 
See also Board of Education of Oklahoma City v. Dowell, 375 F.2d 
158 (10th Cir.1967), where the Court did not even discuss the 
question of its jurisdiction to review a District Court order
requiring a local board to submit a plan with certain specified 
features.

In all of these cases,the District Court's order 
was held appealable under §1292(a)(1). m  none of them was the 
order stated in prohibitory terms. In each case, the order 
concerned the preparation of a desegregation plan, and the Courts 
of Appeals considered and decided the issues presented on appeal.

Following the lead of the Fifth Circuit and the Tenth 
Cxrcuit, there is absolutely no reason why this Court of Appeals 
could, in the alternative, interpret the order of November 5,
1971 as appealable under Section 1292(a)(1) as it is in the nature 
of an injunction. More importantly, the issue of segregation 
is now ripe for review.

CONCLUSION

Based upon the reasons set forth above, there is 
no question that the order of November 5, 1971 was properly

- 22 -



appealed to this Court and this Court has jurisdiction in the 
matter as it was either a final decision within the meaning
of 20 U.S.C. 1291 or an interlocutory appealable order within 
the meaning of 28 U.S.C. 1292(a)(1).

Respectfully submitted,
RILEY AND ROUMELL

George T. fP!ou
Attorneys for Defendants 
Board of Education for the 
City of Detroit, et al

Dated: February 3, 1972.

23



APPENDIX J

(Elfmttfxera of

jifcplfcn 31. ̂ Roilf
Jire tr tii JJu&fle

UNITED STATES DISTRICT COURT
Fo r  t h e  Ea s t e r n  D is t r ic t  o f  M ic h ig a n  

b a y  C i t y , M ic h ig a n , 48709

January 25, 1972

Mr. Louis D. Beer 
Riley and Roumell 
7th Floor Ford Building 
Detroit, Michigan 48226

RE: Civil Action No. 35257,
Bradley v. Milliken, 

_____et al.
Dear Mr. Beer:

I have read your letter of January 20th respecting 
proposed modifications of the "construction" injunction 
of the court in the above entitled matter. I consider 
it better practice in such matters to make a motion 
for the amendment of the injunction. I suggest that a 
motion be brought for that purpose and that the matter 
be noticed for the morning of February 10, 1972, at 
any time convenient to counsel. If there is no 
opposition, as seems to be the present indication, you 
or someone from your office, may simply appear and 
present the necessary orders for my signature.

Very truly yours,

SJR:bjg

XC: All counsel of record:
Mr. Lucas 
Mr. Ritchie 
Mr. Sachs 
Mr. Krasicky

- 24-



CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing 
Answer in response to motion to dismiss was served upon the 
following named counsel of record by United States mail, 
postage prepaid, addressed to their respective addresses:

Messrs. Louis R. Lucas and William E.
Caldwell

Mr. Theodore Sachs
Mr. Alexander B. Ritchie
Mr. Eugene Krasicky

Dated: February 3, 1972.