Attorney Notes on Bradley Re-Argument

    VS.
B R A D L E Y . RONALD, ET A L .

WTT.LIAM H. MILLIKEN, ET AL.

WF. NO. 1 ^





3* Perhaps Affirmed. The Ruling on Propriety of a Metropolitan
Remedy to Accomplish Desegregation of the Public Schools of the
City of Detroit to the extent that the District Court held it
to go beyond the Detroit School -District
was proper/to accomplish relief. (pp. 4, 65-68,80)

4. Held that "school districts which are to be affected by
the decree of the District Court are ’necessary parties’ under
Rule 19. As a prerequisite to the implementation of a plan in
this case affecting any school district, the affected district
first must be made a party to this litigation and afforded an oppor-

4tunity to be heard" (p. 68).

5. Vacated the Riling on Propriety of Considering Metro 
(possibly "only" to/extent that it identified the tri—county area 
as the metropolitan area "for present purposes") (pp. 67-68, 80). * 01

3/1 say perhaps" because pp. 65-67 do not directly mention the 
metro propriety ruling, but instead refer to the ruling on area of 
esegregation. Yet just as the Metro ruling is a restatement

01 the Detroit-only ruling, so too the panel's opinion at pp. 65-67. 
is a summary and restatement of its affirmance of the ruling on the 
inadequacy of Detroit-only plans (pp. 51-65). The Court, apparently, 
views the metro propriety ruling as the beginning of the error of 
tne Ruling on Desegregation Area; the ruling may be affirmed to 
the extent that it expounds the applicable constitutional theory, 
but reversed (or vacated) to the extent that it begins to apply the 
law to^a particular area (or set of school districts) because of 
the faiiure to join necessary parties and give them an "opportunity 
oo be heard." This view is supported at p. 68:

while agreeing with the District Court in its conclusion that it 
can consider a metropolitan remedy, we express no views as to 
the desegregation area set forth in the orders of the District Court."

"Orders" refers to that aspect of the Metro propriety ruling which 
holds the tri-county area "for the present purposes" as the 
metropolitan area and the Ruling on Desegregation Area. A different 
view, however, may be suggested in the next paragraph where the 
metro,^jpppriety ruling is "vacated;" but,for the "guidance of the 
district^" it is held that acts of segregation need not be found 
on the part of the suburbs to include them.
4/ The "opportunity to be heard," in the Sixth Circuit's view, 
requires reversal (or vacating) at least at the point where the 
particular desegregation area is even beginning to be defined.and 
perhaps at the point where propriety of considering metro is to be resolved. 
(Our argument must be that the suburban districts are not any 
more necessary to accomplish "complete relief" at that stage of 
the proceedings (or any other) than are the tax collector in 
Griffin, the city council in Nashville, or the treasurer in 
Michigan ala our T.E.A. theory. Suburban districts become "necessary" 
["in his absence complete relief cannot be accorded among those 
who are already parties"] only if they refuse to go along with 
the state defendant's T.E.A. sanctions.)

2



BRADLEY RE-ARGUMENT

WHAT THE PANEL ACTUALLY DID IN ITS DEC. 8, 1972 OPINION

1. Affirmed. The Ruling on Issue of Segregation (pp. 4,8-51,
8 0 ) . 1

2. Affirmed. The Findings of Fact and Conclusions of Law
pon "Detroit-Only" plans of desegregation (pp. 4, 51-65, 80)

1/ At p. 51, the Court notes "ti]n affirming the District Judge's 
findings of constitutional violations by the Detroit Board of 
Education and by the State Defendants resulting in segregated 
schools in Detroit, we have not relied at all upon testimony 
pertaining to segregated housing except as school construction 
helped cause or maintain such segregation." This sentence, to 
say the least, is both ambiguous and contradicts what the Court 
of Appeals in fact relied upon. With reference to gerrymandering 
boundaries (p. 1 6), optional zones (p. 29) and school construction 
(p. 24, 29-40) the underlying segregatory housing patterns are 
relied upon to place the violation in context, as well as effect 
residential segregation (optional zones - p. 33; school construction - 
p. 40-41). Given these factual errors in the sentence, I would 
hope that it means that housing segregation proof is (1) no 
defense; (2) irrelevant that caused by (discriminatory?) state 
action except to the extent school authority action is responsible 
for such housing segregation; (3) relevant to show a "school" 
violation by "building upon/ by "gerrymandering" attendance zones,):./ 
creating and maintaining optional zones/('school construction 
practices. The handling of Deal at 79 is even more unlcear in 
light of m^ (advocate's?) interpretation of the sentence.
2/ The basis for the affirmance are:

(1) cannot achieve desegregation of the Detroit Public Schools 
with Detroit-only plan (p. 56-57, 66) and the violation 
must have a remedy (p. 66);

(2) constitutional right to equal protection cannot be hemmed 
in by boundaries of a school district (p. 57):
a. Subordinate status of School Districts to State under 

Michigan Low and Practice as "creatures" and "instrumenta­
lities" of the State (p. 57-64, 66);

b. "State has committed dejure acts of segregation" and 
controls the school districts "whose action is necessary 
to remedy the harmful effects of the state acts" (p. 64);

c. "the only feasible desegregation plan involves the crossing 
of the boundary lines between the Detroit School District 
and adjacent or nearby school districts for the limited 
purpose of providing an effective desegregation plan."
(p. 65)

d. Judicial power to disregard the "artificial barriers" 
of school district lines "is all the more clear where, 
as here, the state has been guilty of discrimination 
which had the effect of creating and maintaining racial 
segregation along school district lines." (p. 65).

e. If school district lines a barrier to desegregation,
■ then a way to resurrect Plessy v. Ferguson, establishing

a "new separate-but-equal" (or a present violation) 
by black city schools, white suburban schools (p. 65); 
i.e., "if school boundary lines cannot be changed for 
an unconstitutional purpose, it follows logically that 
existing boundary lines cannot be frozen for an 
unconstitutional purpose."

1



6. Held, "for the guidance of the District Court,...that,
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 dejure or defacto, as 
a prerequisite to including such district in a desegregation area 
to be defined by the court's decree" (p. 68)^ by relying, apparently, 
on the "results" (violation) notion of Austin (pp. 68-69).

' /* f P jJ,7. Vacated the Ruling on Desegregation/(and by implication 
Findings and Conclusions in Support thereof) (pp. 4, 67, 69, 80) 
except "those parts of the order appointing a panel charged with 
the duty of preparing interim and final plans of desegregation"
(p. 69), and vacated the order directing purchase of buses,
"subject to the right of the District Court to consider the entry 
of another order requiring the purchase of school buses at the 
appropriate time." (p. 4, 69, 80).

8. Reviewed the decisions concerning powers of equitable 
relief of school segregation (relied upon and applied by the District 
Court in all its remedial rulings, including those vacated by
the Sixth Circuit) in order to "outline the
broad scope of equitable relief that may be fashioned by the 
District Court in this case on remand after all school districts 
to be affected are afforded an opportunity to be heard as hereinabove 
provided." (pp. 69-7 9).

9* Held that need not consider Broomfield amendment; held that 
Deal not controlling because the District Court/found no "uncon­
stitutional conduct;" and held that all other contentions 
raised by the appellants"have been considered and are found to be 
without merit " (p. 79).

5/ This "guidance" holding suggests that the panel requires 
allowing all suburban districts to brief the question of the 
propriety of considering metro while at the same time making such 
"opportunity to be heard" a charade. And that is what really 
bothers me about the "necessary party" - "opportunity to be heard 
notion: the panel vacates the District Court on the very issues 
the panel feels free to rule upon with exactly the same lack 
of opportunity for at least 18 suburbs to be heard.

3



SUMMARY OF CRUCIAL AMBIGUITIES (ERRORS) IN PANEL'S OPINION

A. Of what does the "opportunity to be heard " of suburbs 
consist? Do they have to be given an opportunity to contest Ruling 
on Issue of Segregation and Inadequacy of Detroit-only remedies?
Do they have to be given an opportunity/that they have not engaged 
in any discriminatory conduct when such proof has already been 
held by the panel unnecessary for including such suburb?

B. How know which suburbs are "necessary" and must be 
joined until desegregation area roughly defined?

C. How can panel say the suburbs to be included in plan 
should have been heard before metro considered,when panel at

same time holds metro proper and required without having heard 18 

suburbs?

D. Why cannot complete relief be "accorded among those 
already parties" without suburbs under T,E,A. (and Griffin-treasurer) 
theory? Why do suburbs only become "necessary" at point of 
considering metro? Is this really a due process notion as opposed
to necessity for joining to accomplish complete relief at that 
point? Is this a statement by implication that panel will 
limit suburban district’s opportunity to be heard to proceedings 
after Detroit-only rulings? If so, why have not at least the 
intervening suburbs not been given an opportunity to be heard by 
the District Court?

E. On remand, does the panel expect a Metro violation hearing 
with Austin results theory binding on case as a sufficient (but
not the only possible) theory of relief? Does this mean remedial 
theories are insufficient or "less" sufficient 0r alftr/'ani/C p

F. What effect does the reconsideration of Michigan 
Serrano case have on the argument about the status of school 
districts under Michigan law?

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