Response to Request for Concurrence in Emergency Application for Stay

    UNITES STATES COURT OF AFFIAE8 
F08 THE SIXTH CIRCUIT

m m ®  BBABUET, et »1.»
Flatntl Cfs-A^pellees, C.S,v of Appeals

Ho.
WILLIAM S. HILLIKES, «t al,»

Coj'.eaSaata-AjJpelXatits, O.s. DistrictCourt Ho. 3525?
BETKfcsiT FIBEMTIMi OF TEACHKES,
LOCAL 231, AMERICAS FIDEHATIOH 
Of TEACHES, AFL-CXO,

Defendant-Intetvenor,
and
DENISE M G O m m i ,  at si.,

Deiendants-lnterveoar,
SSL&k* i

Ob appeal tram the United States District Coast lot the Eastern District of MichiganSouthern Division

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SL*1-

aESFCHSS JK DEFENDANTS* IBTERV EHOS*A??EliAKT S 
t m m  SHOW, EX At., ID EBlDESf W  COMiSEL

A m j c m o w

The cieieodants-iatervenoi.-appellants Kerry Onea, et si., 
neither epgeeiag nor concurring ta the easergeacy application at 
aer as aueis on * procedural ground, respectfully submit for the - 
Court's consideration that the instant temporary stay as graated 
be co»it itiued temporarily pending further related and appropriate 
proceedings in the lover court for the following reasonss



X, la March 1972» the loner court granted intervention 

to defendants*Intervener-appellants Kerry Green., mt al,, a class 

of Wayne, Oakland and Macomb County suburban school children and 

their parent# and Tri-County Cttisens for intervention In Federal 

Action He. 33157, a Michigan non-profit corporation.

2. m  March 24, 1/72, the lower court separately decided 

the propriety of considering a metropolitan remedy to accomplish 
desegregation of the Detroit public schools (applicants* Appendix 

G), the lower court relying upon Brown XI, 34/ US 294, 300, 301, 

as dispositive of this singularly threshold legal question.

3. On March 28, i972, the lower court separately decided 

matters of threshold l m  and fact, altogether to the effect as
set forth in the concluding paragraph of applicantsf Appendix H:

That the court must look beyond the limits of the 
Detroit school district for a solution to the prob­
lem of segregation in the Detroit public schools is 
obvious; that it has the authority, nay more, the 
duty to (under the circumstances of this case) do so 
appears plainly anticipated by Brown XX, seventeen 
years ago. While other school cases have not had 
to deal with our exact situation, the logic of their 
application of the command of Brown XX supports our 
view of our duty*

4. Commencing March 28, 1972, the lower court received 

testimony and exhibits concerning various proposed metropolitan

1



desegregation areas; and on May 4, 1972, defendant3-intecvenor- 
apoellaots Kerry Green, at #l«» filed their sbjeetioa# to said 
«etrej»«lit** desegregation area testimony and esMMta* ApfmAim
f% fl*

S» Oa June 20, 1*172, defendants-Intetnrenor-appellsnts 

Kerry Green, at al,, filled their notice of appeal ftom the lower 

court1 a June 14, 1972 decision (applicants* Appendix A), but they 

must candidly concede, and they have candidly conceded, that the 

said decision la within the '''twilight a#*" ofc finality (Title 28 

U.S.C. 8 USl) as described in Gillespie .y.

Corn.. 375 US at 152, and that forceful supporting arguments can
be made fm  and against the finality question.

#. The lower court baa not yet had an opportunity to hear 
and determine several related and appropriate notions for • stay 
and Rule 54(b) detaralnatioaa (Appendix *’»") filed bydefendaats- 
iataxvenor-appellaat* Kerry Green, at al., no July 7, 1872; not 
ha® the tesr court yet had an a§pge*tja#tfcy t® hear and determine 
another notion for a stay war* recently filed by soon 42 suburban 
school district defiendants-intet venose -appellants or yet another 
Rule 54(b) motion filed by the Setcolt school district defendants- 
appeliants prior to July 7, 1972.



7, This action t* to© sKWtestous ta it* unprecedested and 
threshold mi Im&mi*  <pe*tla«s of law fact, altogether la
the local and national public interest calling for m  appropriate 
general stay pending a secure and tinseljr appellate review before 
tne tail 1973 tens, to suffer another round of procedural appeal 
challenge and possible dismissal.

S, Ha greatly share with applicants Chair understandable 
atwiety and concern for precipitous fell 1972 tens isspleaentatlon 
o£ the lower court’s unprecedented, threshold end Imvkmxk June 
14, ls>?2 decision, isufc ia all fairness tine lower south can hardly 
he faulted for denying applicants' written end oral notions for a 
stay ®sde, heard and detestsiaesi prior to the tisse that applicants 
filed their latest notices of appeal.

}* Ifce plaint!, ffs~appellees have fairly already eenearxed 
in the several tele 34(b) actions pending before the lower court, 
and there is no season to totiatpate that timely tele 54(h) deter* 
ainatioas will not he suite and entered by the lower court thereby 
securing to all interested litigants a secure route of appeal.

10. It Is understandable that plalntiffs-eppellee*, prior 
to hearing, did set voluntarily concur ia the several action* for 
a generally appropriate stay before the lower court, but that sloes



sot immtmm aittiar their eodiflcatlom of stseh posit:!013 or du# 

hearing miI m. the merit# sy eh.# court.

U U  $#e do mot eppoae the applicant#f mtiom at bar, but 
it respites no Special ability to anticipate that mht® counsel
foe plalmtt JT£s~ag»pel iee# will oppose for yroeedutal reason#*

It* 411 litigant interest# m M  be fairly protected* and 
orderly judicial procedure pfeeerved., U  this Court-! la the event 
of pxmmlmml denial of the applicants * emergency actions at oar, 
would altatcMlmmiy emeUe* iMgemully coatismiaf tit# teapstery 
July 13# lift stay, a# prantei by this Court, pamdlag the timely 
detexmdLmati&n of the related and appropriate stay mad Euie 54(b) 
aetleii# mimm f&e lewer mats*, fh* applicant# tk<m haring mo 
difficulty their mottom# for stay before the lower court
for timely hearlm#*

Respectfully submitted, 

mmmt j .  u o r d

Attorney for Defendants♦Intarvemer* Appellants Kerry Green, et aJU SJiS Mule ligtmy 
fair Saves, MitMgaa 4B023 
telephone: (313) 125*4231

**3 *



UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al., )
)
)
)
)
)
)
)
)
)
)

. Plaintiffs,

-vs-

WILLIAM G. MILLIKEN, et al.,

Defendants,

DETROIT FEDERATION OF TEACHERS, CIVIL ACTION
LOCAL #231, AMERICAN FEDERATION ) NO. 35257
OF TEACHERS, AFL-CIO, )

)
Defendant- )
Intervenor, )

)
and )

)
DENISE MAGDOWSKI, et al., )

)
Defendants- )
Intervenor, )

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et al. )

)

OBJECTIONS BY DEFENDANTS-INTERVENOR KERRY GREEN ET AL. 
TO TESTIMONY AND EXHIBITS CONCERNING METROPOLITAN REMEDY

The defendants-intervenor Kerry Green et al. object to, and move to 

strike, all the testimony and exhibits offered and received at the hearings 

on a metropolitan remedy commencing March 28, 1972 for the following reasons:

1. Brown v. Board of Education, 349 US 294 at 300 and 301 is not 

dispositive of the issue of the propriety of the consideration by this Court 

of metropolitan plans directed toward the desegregation of the Detroit public 

schools as an alternative to an intra-city desegregation plan pursuant to the 

Court’s "Ruling on Issue of Segregation" (September 27, 1971).

1



2. The cradle of equity is the power to afford adequate remedy where 

the law is impotent; it does not create new rights, but affords a remedy for 

existing rights. Berdie v. Kurtz, 88 F2d 158 at 159 (10 Cir.1937).

3. Questions of practice are not to be decided on principles of raw 

equity which conflict with precedent. Empire Engineering Corp. v. Mack, 217 

NY 85, 111 NE 475 at 478.

4. A court of equity cannot, by avowing that there is a right but no 

remedy known to the law, create a remedy in violation of law, or even without 

authority of law. Meyer v. City of Eufaula, Oklahoma, 132 F2d 648 at 652 

(10 Cir.1942) citing Rees v. City of Watertown, 86 US 107 at 122.

5. Absent a trial of the issue of the existence of state-enforced 

separation of races in the public schools in the suburban school districts 

in question, the entry of a judgment predicated on metropolitan plans as 

offered will constitute a denial of due process to the State defendants, the 

corporate suburban school districts concerned and to the defendants-intervenor.

6. It is always the duty of a court of equity to strike a balance 

between the needs of the plaintiff and the consequences of giving desired 

relief. Especially when governmental action is involved, courts should not 

intervene unless the need for equitable relief is clear, not remote and 

speculative. Eccles v. Peoples Bank, 333 US 426 at 431.

7. Substance, not semantics, must govern; and a consequence of the 

metropolitan plans, if implemented as offered, will be either (a) desegrega­

tion of the student populations in all or some of the suburban public schools 

concerned, or (b) integration of the student populations of the Detroit 

public schools with the student populations in all or some of the suburban 

public schools concerned, altogether without pleading and proof of state- 

enforced separation of races in all or any of the suburban public schools 

concerned, the question of whether or not the corporate suburban school

2



districts are sovereign entities, autonomous bodies or agencies of the State 

being immaterial.

8. Judicial powers may be exercised only on the basis of a constitu­

tional violation. Swann v. Chariotte-Mecklenburg Bd. of Ed., 402 US 1 at 16.

9. The plaintiffs have not shown a right and violation concerning the 

student populations in all .or any of the suburban public schools in question.

Respectfully submitted,

ROBERT J. LORD
Attorney for Defendants-Intervenor 
Kerry Green et al.

8388 Dixie Highway
Fair Haven, Michigan 48023
Telephone: 725-4231

3



R O B E R T  J. L O R D
A t t o r n e y  a t  l a w

6 3 6 S  D ix ie  H ig h w a y

Fa i r  H a v e n , M ic h i g a n  4 8 0 2 3

July 7, 1972

Honorable Stephen J. Roth 
United States District Judge 
Federal Building 
Flint, Michigan 48502

Re: Bradley v. Milliken
No. 35257

Dear Judge Roth:
Enclosed please find Conditional Motions for F.R.P.C. 62(d) 
Stay and 54(b) Revision of June 14, 1972 Ruling and Order, 
filed by defendants-intervenor Kerry Green, et al., together 
with notice of hearing and memorandum of law, this July 7.

Written requests for concurrence in the Rule 54(b) and Rule 
62(d) motions were mailed June 16 and June 23 respectively.

No counsel response has been received except from Mr. Lucas 
who has no opposition to the Rule 54(b) motion but opposes 
the Rule 62(d) motion.

Very truly yours

Robert J. Lord
RJL :ab

cc: All counsel on attached certificate of service



UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al.,

Plaintiffs,

-vs-

WILLIAM G. MILLIKEN, et al.,

Defendants,

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

Defendant- 
Intervenor,

and

DENISE MAGDOWSKI, et al.,

Defendants- 
Intervenor,

et al.

)
)
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)
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)
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.)

CIVIL ACTION 
NO. 35257

NOTICE OF HEARING

TO: Counsel for all parties

SIRS:

Please take notice that the within motions will be brought on for 

hearing before the Honorable Stephen J. Roth in the Federal Building, Detroit 

Michigan, on a day and at a time convenient to the Court.

ROBERT J. LORD
Attorney for Defendants-Intervenor 
Kerry Green, et al.
8388 Dixie Highway
Fair Haven, Michigan 48023
Telephone: 725-4231



UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al.,

Plaintiffs,

-vs-

WILLIAM G. MILLIKEN, et al.,

Defendants,

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

Defendant- 
Intervenor,

and

DENISE MAGDOWSKI, et al.,

Defendants- 
Intervenor,

et al.

)
)
)
)
)
)
)
)
)
)) CIVIL ACTION
) NO. 35257
)
)
)
)
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CONDITIONAL MOTIONS FOR F.R.C.P. 62(d) STAY AND 
54(b) REVISION OF JUNE 14.1972 RULING AND ORDER

If the State defendants' pending emergency motion for a stay is denied, 

then in that event defendants-intervenor Kerry Green, et al., move the Court 

for entry of an appropriate order staying enforcement in 1972 of the final 

decision, forcefully arguable within the meaning of 28 U.S.C. 1291, of the 

Court's "Ruling on Desegregation Area and Order for Development of Plan of 

Desegregation" (June 14, 1972), altogether in the exercise of the Court s 

sound discretion pursuant to Rule 62(d) upon the following grounds:
1. The several appeals, including the appeal of defendants-intervenor

taken from said June 14, 1972 "Ruling" and "Order" pursuant to 28 U.S.C. 1291
1



will be diligently prosecuted.

2. The probability of appellants' success on the merits of appeal is 

substantial and likely for the compelling reasons (a) that Brown II (349 U 0S 0 

at 300-301) is not dispositive of the unprecedented, threshold and landmark 

question for timely appellate review of the propriety of the metropolitan 

desegregation remedy granted, assuming arguendo that the Court's challenged 

findings (September 27, 1971) of state-enforced separation of races in the 

Detroit public schools will be affirmed on appeal, and (b) that said "Ruling" 

and "Order" is inconsistent with and contrary to the admonitions of Swann 

(402 U.S. at 22-24).
3. All the appellants will suffer irreparable injury unless a stay is 

granted.
4. Not having claimed or shown state-enforced separation of races in 

the suburban public schools within the metropolitan desegregation area as 

ordered, the plaintiffs cannot be substantially harmed if a stay is granted.

5. The public interest, local and national, will be served by a stay.

If the aforesaid motion for a stay is granted, then in that event the

defendants-intervenor move the Court for an appropriate order revising said

June 14, 1972 "Ruling" and "Order” so as (a) to contain the language and the

express determinations, to wit: "There is no just reason for delay and entry

of judgment is expressly directed.", as provided by Rule 54(b), and so as (b)

to make the said "Ruling" and "Order", so revised, an appealable Rule 54(b)

judgment for entry pursuant to Rule 58 not only against defendants-intervenor

Kerry Green, et al., but also against the parties already having filed their
«

notices of appeal or parties joining in this motion or otherwise expressing 

a desire to appeal, altogether upon the following grounds:

1. The Supreme Court has long recognized that whether a ruling is 

"final" within the meaning of 28 U.S.C. 1291 is frequently so close a question

2



•  •

that decision of that issue either way can be supported with equally forceful 

arguments, and that it is impossible to devise a formula to resolve all the 

marginal cases coming within what might be called the "twilight zone" of 

finality. Gillespie v. United States Steel Corn.. 379 U.S. at 152.

2. A "final decision" within the meaning of 28 U.S.C. 1291, the basic 

statute authorizing appeals to the courts of appeal, and its predecessors 

going back to §§ 21 and 22 of the Act of September 24, 1789, c. 20, Stat. 73, 

83-84, is one which ends the litigation on the merits and leaves nothing for 

the court to do but execute the judgment. Taylor v. Board of Education.

288 F2d at 602, citing Catlin v. United States. 324 U.S. at 233.

3. The several appeals taken from said "Ruling" and "Order", in the 

probable event of procedural challenge, could be supported with forceful 

arguments that the same is a "final decision" within the meaning of S 1291, 

particularly applying a "practical" rather than a "technical" construction 

as held in Gillespie at 152.

4. On the other hand, said "Ruling" and "Order" on its face does not 

appear to be a final decision, the concluding sentence particularly providing 

that hearings on a final plan of desegregation will be set as circumstances 

require; and a probable procedural challenge to the several appeals already 

taken, therefore, could be supported with forceful arguments that the same

is not a "final decision" and subject to dismissal for failure of any party 

to seek a Rule 54(b) judgment or a 28 U.S.C. 1292(b) certificate.

5. Absent merely an already provided continuing order of complete and 

final desegregation of the desegregation area public schools to proceed no 

later than the fall 1973 term, said "Ruling" and "Order", when read together 

with all other findings made and entered, substantially and realistically 

constitutes a decision which ends the litigation on the merits and leaves 

nothing for the Court to do but to execute the judgment, a judgment which is

3



not only unprecedented, threshold and landmark in import and scope but also
*

of major significance to the school desegregation jurisprudence of the United

6. No just reason exists for delay in appeal for "technical” challenge.

7. To obviate another procedural appeal challenge, on the present 

record of this action, Rule 54(b) determinations present a more practical and 

less restrictive appeal route than a 28 U.S.C. 1292(b) certification of a 

question of law only, for the reason particularly that the metropolitan

desegregation area and plan as ordered is predicated in part on findings of 

fact set forth in the Court's March 28, 1972 "Findings of Fact and Conclusions 

of Law on Detroit-Only Plans of Desegregation".

8. Granting Rule 54(b) determinations as requested would not only be 

within the Court's sound discretion but would also serve the public interest 

in conserving judicial energies.

States.

ROBERT J. LORD
Attorney for Defendants-Intervenor 
Kerry Green, et al.
8388 Dixie Highway
Fair Haven, Michigan 48023
Telephone: 725-4231

4



UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD BRADLEY, et al., ))
Plaintiffs, ))-vs- ))WILLIAM G. MILLIKEN, et al., ))
Defendants, ))

DETROIT FEDERATION OF TEACHERS, ) CIVIL ACTION
LOCAL #231, AMERICAN FEDERATION ) NO. 35257
OF TEACHERS, AFL-CIO, ))

* Defendant- )
Intervenor, )

and )

DENISE MAGDOWSKI, et al., ))
Defendants- )
Intervenor, )

, )et al. )
-------- ----------------------------------)

MEMORANDUM OF LAW IN SUPPORT OF MOTIONS

In relevant part, Rule 62(d) provides that when an appeal is taken the 

aPPellant may obtain a stay of proceedings to enforce a judgment.

Briefly stated, parties seeking a stay pending appeal must show (1) 

that they will likely prevail on the merits of the appeal, (2) that they will 

suffer irreparable injury if the stay is denied, (3) that other parties will 

not be substantially harmed by the stay, and (4) that the public interest will 

be served by granting the stay. Long v. Robinson. 432 F2d at 979.

Is Brown II, as the Court decided in the March 24, 1972 "Ruling on 

Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of

1



the Public Schools of the City of Detroit", dispositive of the unprecedented, 

threshold and landmark question number 3 for briefing in the Court's March 6, 

1972 "Notice to Counsel”?

The Court of Appeals and the Supreme Court, as the case may be, are 

likely to say "no" not only for the reasons set forth in the "Objections by 

Defendants-Intervenor Kerry Green et al. to Testimony and Exhibits Concerning 

Metropolitan Remedy” , filed on May 4, 1972, but also for the reason that the 

alternative metropolitan desegregation area and plan remedy as now granted is 

inconsistent with and contrary to the admonitions in Swann at 22-23:

The constant theme and thrust of every holding from 
Brown I to date is that state-enforced separation of 
races in public schools is discrimination that violates 
the Equal Protection Clause. The remedy commanded was 
to dismantle dual school systems.
We are concerned in these cases with the elimination 

of the discrimination inherent in the dual school sys­
tems, not with myriad factors of human existence which 
can cause discrimination in a multitude of ways on rac­
ial, religious, or ethnic grounds. The target of the 
cases from Brown I to the present was the dual school 
system. The elimination of racial discrimination in 
public schools is a large task and one that should not 
be retarded by efforts to achieve broader purposes 
lying beyond the jurisdiction of school authorities.
One vehicle can carry only a limited amount of baggage.
It would not serve the important objective of Brown I 
to seek to use school desegregation cases for purposes 
beyond their scope, although desegregation of schools 
ultimately will have impact on other forms of discrim­
ination. . . .

Our objective in dealing with the issues presented by 
these cases is to see that school authorities exclude no 
pupil of a racial minority from any school, directly or 
indirectly, on account of race; it does not and cannot 
embrace all the problems of racial prejudice, even when 
those problems contribute to disproportionate racial 
concentrations in some schools.

and at 24:
. . .The constitutional command to desegregate schools 

does not mean that every school in every community must 
always reflect the racial composition of the school sys­
tem as a whole. . . .

2



Litigant prudence and judicial prudence, at the very least, together 

caution an appropriate stay of proceedings to enforce the possible fall 1972 

term metropolitan desegregation plan as ordered pending a timely and secure 

appellate review of the unprecedented, threshold and landmark questions of 

law and fact upon which the ultimate fall 1973 term plan as ordered in this 

action is predicated.

The national significance of the action at bar is no less than this:

If Brown II is dispositive of the question of propriety of the metropolitan 

remedy as ordered, then Brown I will at once thereby have been rewritten. If 

this Court is affirmed on appeal, then every district court, relying upon the 

Brown II instrument of equity alone, may consider and enforce an enlargement 

of the desegregation area beyond which a Brown I constitutional violation is 

claimed, shown and found.

All key issues are formulated and decided.

Do the unprecedented, threshold and landmark questions of law and fact 

at bar sound in "remedy" or in "right and violation"?

The Court says "remedy"; we say "right and violation".

The Court's rationale is explicit.

So too is the litigant challenge.

Equity follows the law.

Equity does not create new rights. In Re Bowman, 24 F. Supp. at 384.

Where there is no legal liability, equity can create none; and equity 

cannot apply a remedy where there is no right. Pewitt v. Pewitt, 240 SW2d

at 528.

Thus far the Court alone has shouldered all the burden of the momentous 

question of metropolitan remedy propriety. Who is there to gainsay that the 

time is now for the Court, without slightest offense to any Supreme Court 

mandate, to share that lonely burden with appellate courts?

3



Nor can a moderate fall 1972 term stay be casually or cynically equated 

with inequitable and insensitive delay in the vindication of the plaintiffs' 

constitutional rights. Nothing militates against a stay order so fashioned 

so as to permit both the unhurried continuity of committee preparation of the 

fall 1973 term metropolitan plan as well as implementation of the plaintiffs' 

Detroit-only plan on an interim basis pending appeal.

Appeals will surely move on apace.

A problem of responsible advocacy at bar is selecting, with the Court's 

assistance, a route of timely law and fact appeal secure from another round 

of appeal challenge and possible dismissal.

Citizen to citizen, in good faith, we call upon the plaintiffs and 

their able counsel, in the light of the totality of public interest in this 

action, to consider realistically what if any substantial harm can result if 

a stay is granted as moderately suggested. Realities being what they are, is 

there not as much danger of substantial harm to the cause itself of vindicat­

ing constitutional rights if a prudent stay is not granted merely for lack of 

the plaintiffs' consent?

Respectfully submitted,

ROBERT J. LORD
Attorney for Defendants-Intervenor 
Kerry Green, et al.
8388 Dixie Highway
Fair Haven, Michigan 48023
Telephone: 725-4231

4