Reply and Supplemental Brief

    SUPREME COURT OF THE UNITED STATES

October Term 1971 

No. 71-1463

W ILLIAM  G. MILLIKEN Governor of the State of 
Michigan, et al.,

Petitioners,
vs.

RONALD BRADLEY, et al.,
Respondents.

REPLY AND SUPPLEMENTAL BRIEF

FRANK J. KELLEY  
Attorney General

Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Assistant Attorney General 
Attorneys for Petitioners

Business Address:
Law Building
525 West Ottawa Street
Lansing, Michigan 48913

PRINTED BY SPEAKER-H1NES AND TH O M AS, IN C ., LAN SIN G , M IC H IG A N ----  1 97 8



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TABLE OF CONTENTS

Introduction_________________________________________ 1

Additional Reasons for the Grant of Certiorari _____  1
R elief_______________    6

AUTHORITIES CITED

Swann v. Charlotte-Mecklenburg Board of Education,
402 US 1, 16 and 24 (1971) ________________________ 4

Const 1963, Art IV, Sec. 30 _________________________ 5

Art IX, Sec. 1 7 _________________________ 5



In The

SUPREME COURT OF THE UNITED STATES

October Term 1971

No. 71-1463

W ILLIAM  G. MILLIKEN  
Michigan, et al.,

Governor of the State of 

Petitioners,
vs.

RONALD BRADLEY, et al.,
Respondents.

REPLY AND SUPPLEMENTAL BRIEF 

INTRODUCTION

The petitioners believe arguments raised in the brief 
in opposition to the petition for certiorari have been eroded 
by subsequent events and, therefore, it is petitioners’ duty to 
bring these developments to the attention of the Court.

ADDITIONAL REASONS FOR THE GRANT 
OF CERTIORARI

I .

On June 14,1972 the district court issued its “FINDINGS 
OF FACT AND CONCLUSIONS OF LAW IN SUPPORT 
OF RULING ON DESEGREGATION AREA AND DE­
VELOPMENT OF PLAN” and entered its order entitled



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“ RULING ON DESEGREGATION AREA AND ORDER 
FOR DEVELOPMENT OF PLAN OF DESEGREGA­
TION.” These documents are contained in the supplemental 
joint appendix filed by petitioners and respondent inter­
vening school districts. References herein are references 
to the pages of the supplemental joint appendix unless 
otherwise indicated. Again the orders are couched in “non­
final” terms but set in motion events which would prevent 
effective review of same until the entire controversy has be­
come a fait accompli.

We believe the district court is in good faith in its attempt 
to achieve integration of the Detroit school system. How­
ever, we vigorously assert that the procedures and methods 
employed by the Court are in derogation of existing law 
and that there is no basis for decreeing relief in the manner 
and to the enormous extent contemplated by the district 
court.

II.

The order entered on June 14,1972 effectively compels the 
implementation of a massive metropolitan busing remedy 
prior to any appellate review on the questions of de jure 
segregation and the propriety of a metropolitan remedy. 
This order clearly puts to rest the contentions of plaintiffs- 
respondents concerning the lack, to date, of any significant 
decrees by the district court and petitioners ability to seek 
a stay and timely appellate review prior to implementation 
of the “ final” remedial order of the district court.

The grave error of the district court is related by the 
court itself when in the second sentence of its opinion the 
court says:

“ . . . It should be noted that the court has taken 
no proofs with respect to the establishment of the



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boundaries of the 86 public school districts in the 
counties of Wayne, Oakland and Macomb, nor on the 
issue of whether, with the exclusion of the city of 
Detroit school district, such school districts have com­
mitted acts of de jure segregation.” (laa, 2aa)

Yet, the “ desegregation area” chosen by the court includes 
Detroit and 52 other school districts. Moreover, 18 of these 
school districts are not even parties to the litigation. It is 
respectfully submitted that the equitable powers of the 
district court do not reach these 18 school districts.

The district court’s order plainly requires, within the 
judicially chosen “desegregation area” of 53 school districts, 
that at a minimum, a desegregation plan be prepared and 
implemented for the fall 1972 term including grades K-6, 
K-8, or K-9 in all or in as many clusters as practicable. 
This will occur less than 90 days from the date hereof. 
Complete and final desegregation must be accomplished no 
later than the fall 1973 term. Thus, for the fall 1972 term, 
there will be an “ interim plan” with a “ final plan” to be 
included in a subsequent “ final order.” (42aa, 43aa, 47aa). 
Petitioners are compelled to assert that the district court’s 
piecemeal relief process will make large scale metropolitan 
busing an accomplished fact prior to appellate review.

As to faculty and staff, the district court found no de jure 
segregation in the Detroit public schools on this issue in 
its “Ruling on Issue of Segregation” on September 27, 1971. 
In fact, at that time the court praised the exemplary con­
duct of the Detroit school board and the intervening de­
fendant union in the area of faculty and staff (14a-19a of 
petitioners’ original appendix). Yet, in its remedial injunc­
tive order of June 14, 1972 the court decreed:

“ . . . In the context of the evidence in this case, it is



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appropriate to require assignment of no less than 10% 
black faculty and staff at each school, and where there 
is more than one building administrator, every effort 
should be made to assign a bi-racial administrative 
team.” (45aa).

Patently, this demonstrates that, contrary to the explicit 
commands of this court in Swann v. Charlotte-Mecklenburg 
Board of Education, 402 US 1,16 and 24 (1971), the district 
court, in the absence of any finding of a constitutional vio­
lation as to faculty and staff, has decreed an impermissible 
fixed racial balance quota for each school within the 53 
school districts. Based on judicial speculation of a desir­
able racial balance, many teachers in the metropolitan area 
will be required to teach in new schools and school districts 
in the fall irrespective of their presently existing con­
tractual rights.

III.

The scope of the remedial injunctive order entered on 
June 14,1972 also extends to racial balance in future school 
construction and expansion and modification of existing 
administrative, financial, contractual, property and gov­
ernance arrangements as required to effectively operate a 
desegregated school system within the 53 school districts. 
(45aa, 46aa) The lower court has ordered the Superin­
tendent of Public Instruction, with assistance from the 
other state defendants, to make recommendations to the 
court for interim and final arrangements in each of the 
areas of school district administration set forth above. 
(46aa, 47aa) In addition, the Superintendent of Public 
Instruction has been expressly ordered to recommend what 
he deems necessary to achieve the objectives of the court’s 

N order in these areas independently of what state law pro­
vides in each of these areas. (46aa, 47aa).



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On the question of financing the metropolitan remedy, 
the district court has ruled that funds must either he raised 
or reallocated, where necessary, to secure plaintiffs’ con­
stitutional rights. (36aa). Further, the state defendants 
have been ordered to bear the costs of the nine member 
panel appointed by the court to design interim and final 
plans. (42aa). Simply put, the state defendants do not 
possess the power of the purse under Michigan law. The 
power to lawfully appropriate state funds under Michigan 
law is reposed in the Michigan Legislature. Const 1963, 
Art IV, Sec. 30:

“The assent of two-thirds of the members elected to 
and serving in each house of the legislature shall he 
required for the appropriation of public money or prop­
erty for local or private purposes.”

Art IX, Sec. 17:

“ No money shall be paid out of the state treasury 
except in pursuance of appropriations made by law.”

Petitioners have no authority to expend funds without legis­
lative approval and the legislature is not a party to this 
cause. Thus, the district court has assumed the role of 
final arbiter over school district finance and state funds 
for 53 school districts.

The necessity of this Court’s passing upon the three ques­
tions raised by the petition for certiorari are vividly illus­
trated by several aspects of the district court’s most recent 
“non-final” opinion and order. This opinion and order are 
truly remarkable in terms of the slender foundation, indeed 
a foundation of sand, upon which the lower court has 
erected a 53 district metropolitan desegregation edifice 
covering all aspects of the educational process.



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To conclude, the time has come for this Court to take 
jurisdiction of this cause and pass upon the three questions 
raised in the petition for certiorari. A metropolitan deseg­
regation remedy involving the busing of hundreds of thou­
sands of school children, the relocation of thousands of 
teachers, and the disruption of the educational programs 
of 53 separate districts, involving some 800,000 students 
must not be implemented prior to final appellate review 
by this Court. (See Exhibit A indicating areas affected 
by the district court orders.)

RELIEF

For the aforegoing reasons, a writ of certiorari should 
issue to review the judgment of the Sixth Circuit and this 
Court should assume jurisdiction to determine the three 
questions raised in the petition for certiorari prior to the 
implementation of the metropolitan remedy in this cause.

Respectfully submitted,
FRANK J. KELLEY 
Attorney General
ROBERT A. DERENGOSKI /s /  
Robert A. Derengosld 
Solicitor General

Eugene Krasicky 
Assistant Attorney General

Attorneys for Petitioners

Business Address:
Law Building
525 West Ottawa Street
Lansing, Michigan 48913

Dated: June 16, 1972



EXHIBIT A

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Note: Area designated by diagonal lines indicates present
Detroit School District.
Area in white indicates school districts to be affect­
ed by Judge Roth’s orders.