Brief of Appellant-Intervenors with Certificate of Service

    IN THE

Supreme Court ot tfje Uniteb States:
O c t o b e r  T e r m , 1973.

Nos. 73-434, 73-435 and 73-436

WILLIAM G. MILLIKEN, e t  a l ., 

vs.
Petitioners,

RONALD G. BRADLEY, e t  a l .

ALLEN PARK PUBLIC SCHOOLS, e t  a l .,
Petitioners,

vs.

RONALD G. BRADLEY, e t  a l .

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, e t  a l .,
Petitioners,

vs.

RONALD G. BRADLEY, e t  a l .

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT.

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE 
AND BRIEF OF THE SCHOOL TOWN OF SPEED­

WAY, INDIANA AND THE SCHOOL CITY OF 
BEECH GROVE, INDIANA, AMICI CURIAE.

RICHARD L. BROWN, 
BUTLER, BROWN & HAHN, 

Room 400,
156 East Market Street, 
Indianapolis, Indiana 46204, 
632-9411,

RICHARD D. WAGNER,
KRIEG D eVAULT ALEXANDER 

& CAPEHART,
2860 Indiana National Bank 

Tower,
Indianapolis, Indiana 46204, 
636-4341,

Attorneys for Amici Curiae.

Gunthorp-Warren Printing Company, Chicago •  346-1717





IN THE

Supreme Court of tfje Mntteb States
O c t o b e r  T e r m , 1 9 7 3 .

Nos. 73-434, 73-435 and 73-436

WILLIAM G. MILLIKEN, e t  a l .,
Petitioners,

vs.

RONALD G. BRADLEY, e t  a l .

ALLEN PARK PUBLIC SCHOOLS, e t  a l .,
Petitioners,

vs.

RONALD G. BRADLEY, e t  a l .

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, e t  a l .,
Petitioners,

vs.

RONALD G. BRADLEY, e t  a l .

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT.

MOTION FOR LEAVE TO FILE BRIEF 
AMICI CURIAE.



2

The School Town of Speedway, Indiana and The School City 
of Beech Grove, Indiana hereby respectfully move for leave to 
file the attached Brief Amici Curiae in these cases. All attorneys 
for the parties in these appeals have been contacted and their 
consent requested to file such Brief. Some of such attorneys 
have given such consent, but movants have been unable to ob­
tain same from all such attorneys.

The interest of The School Town of Speedway, Indiana and 
The School City of Beech Grove, Indiana, arises from the follow­
ing facts. Both movants are school corporations created and 
existing under Indiana law. They own and operate school sys­
tems, which serve, respectively, the civil town of Speedway and 
the civil city of Beech Grove, Indiana, two small Communities 
adjacent to the City of Indianapolis.

On August 18, 1971, the United States District Court for the 
Southern District of Indiana, after a trial of an action brought 
by the United States, entered a judgment in which it found that 
the Indianapolis Public School System (IPS) was guilty of seg- 
regatory practices in the operation of its schools.1 The trial 
court speculated in its opinion that a desegregation plan limited 
to IPS would not remain demographically stable and that IPS 
would at some future point have enrolled a higher percentage 
of black students than was acceptable to the district court.

Subsequently an intervening complaint was filed and nineteen 
school corporations and certain state officials added as defend­
ants. Movants were among the added school corporations. 
Following another trial, the court entered a judgment in which 
it found, inter alia: (1) that the prior judgment against IPS 
was res judicata against the added school corporations, and state 
officials; (2) that none of the added school corporations were 
guilty of segregatory practices; and (3) that all of the school 
corporation defendants were amenable to orders effecting stu­
dent transfers between such defendants in quantities designed

1. U. S. v. Bd. of School Commissioners, 332 F. Supp. 655, 
aff’d., 474 F. 2d 81 (7th Cir. 1973), cert. den. 37 L. Ed. 2d 
1041 (1973).



3

to achieve a prescribed degree of racial balance within IPS. 
That decision is presently on appeal to the United States Court 
of Appeals for the Seventh Circuit.2 Thus, movants are in­
volved in an action similar to the case at bar. A decision by 
this Court in the instant action may provide precedent for the 
Seventh Circuit’s decision.

Both the School Town of Speedway, Indiana and The School 
City of Beech Grove, Indiana are independent school corpora­
tions which have territorial boundaries coterminous with the 
municipalities which they serve. As such entities, they have com­
munity interests distinct and separate from other types of school 
corporations which will be adversely affected if this Court ap­
proves the power of district courts to enter orders such as those 
made in the cases at bar. The distinct interests of school corpora­
tions serving towns and cities has not heretofore been argued by 
the parties in this appeal or considered in the Court of Appeals 
below, and such interests are relevant to any disposition of this 
appeal. Movants do not believe that the arguments made in the 
attached Brief will be made by any other party to these appeals.

Respectfully submitted,

/ s /  RICHARD L. BROWN,
BUTLER, BROWN & HAHN, 

Room 400,
156 East Market Street, 
Indianapolis, Indiana 46204, 
632-9411,

RICHARD D. WAGNER,
KRIEG D eVAULT ALEXANDER 

& CAPEHART,
2860 Indiana National Bank 

Tower,
Indianapolis, Indiana 46204, 
636-4341,

Attorneys for The School Town of Speedway, Indiana, and The School City
of Beech Grove, Indiana.

2. United. States, Plaintiff-Appellant and Donny Brurell Buckley, 
et al., Intervening Plaintiffs-Appellees v. Board of School Com­
missioners, et al., Nos. 73-1968 through 73-1984, in the Seventh 
Circuit Court of Appeals.





IN THE

Supreme Court of tfje Urntrb States
O c t o b e r  T e r m , 1973.

Nos. 73-434, 73-435 and 73-436.

WILLIAM G. MILLIKEN, e t  a l ., 

vs.
Petitioners,

RONALD G. BRADLEY, e t  a l .

ALLEN PARK PUBLIC SCHOOLS, e t  a l .,
Petitioners,

vs.

RONALD G. BRADLEY, e t  a l .

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, e t  a l .,

vs.
Petitioners,

RONALD G. BRADLEY, e t  a l .

ON p e t it i o n  f o r  w r it  o f  c e r t io r a r i  t o  t h e  u n i t e d  s t a t e s  
c o u r t  o f  a p p e a l s  f o r  t h e  s i x t h  c i r c u i t .

BRIEF OF THE SCHOOL TOWN OF SPEEDWAY, 
INDIANA AND THE SCHOOL CITY OF 

BEECH GROVE, INDIANA,
AMICI CURIAE.





TABLE OF CONTENTS.

-------------  PAGE

Table of Authorities . .........................................................  i
Interest of Amici C u ria e ....................................................... 1
Argument ............................................................................... 2
Conclusion.................................................................   7

T a b l e  o f  A u t h o r it ie s .

Cases.

Deal v. Cincinnati Bd. of Ed., 369 F. 2d 55 (6th Cir. 
1966), cert, den., 389 U. S. 847 (1967 )........................  4

Gomillion v. Lightfoot, 364 U .S. 339 (1960 ).................. 5
Hunter v. Pittsburgh, 207 U. S. 161 (1907)......................  5
Keyes v. School District No. 1, Denver, Colorado, ........

U. S.......... , 37 L. Ed. 2d 548 (1973).............................  4
Pierce v. Society of Sisters, 268 U. S. 510 (1925 )...........  5
Spencer v. Kugler, 326 F. Supp. 1235 (D. N. J. 1971), 

aff’d. per curiam, 404 U. S. 1027 (1972 ).........................  5
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 

(1971) ..........................................................................  5
United States of America, Plaintiff-Appellant, and Donny 

Brurell Buckley, et al., Intervening Plaintiffs-Appellees 
v. Bd. of School Commissioners, et al., Nos. 73-1968 
through 73-1984, in the U. S. Court of Appeals, Seventh 
Circuit .................................................................................  2

U. S. v. Bd. of School Commissioners, 332 F. Supp. 655, 
aff’d., 474 F. 2d 81 (7th Cir. 1973), cert. den. 37 L.
Ed. 2d 1041 (1973) ............................................................ 1



11

Statutes and State Constitution.

Bums Ind. Stat. § 28-2603 ................................................... 6
Indiana Constitution, Art. 2, § 2 ..........................................  6

Other.

P. Smith, As a City Upon a Hill, The Town in American 
History (Alfred A. Knopf, 1 9 6 6 ) ................................. 2, 4, 7

U. S. Dept, of Commerce, Bureau of the Census, Vol. 1, 
Governmental Organization, 1972 Census of Govern­
ments .................................................................................... 2

Will Herberg, Ed.: The Writings of Martin Buber (New 
York: Meridian Books; 1956) ........................................ 4



1

INTEREST OF AMICI CURIAE.

The interest of The School Town of Speedway, Indiana and 
The School City of Beech Grove, Indiana, arises from the 
following facts. Both movants are school corporations created 
and existing under Indiana law. They own and operate school 
systems which serve, respectively, the civil town of Speedway 
and the civil city of Beech Grove, Indiana, two small com­
munities adjacent to the City of Indianapolis.

On August 18, 1971, the United States District Court for 
the Southern District of Indiana, entered a judgment in which 
it found that the Indianapolis Public School System (IPS) was 
guilty of segregatory practices in the operation of its schools.1 
The trial court speculated in its opinion that a desegregation 
plan limited to IPS would not remain demographically stable 
and that IPS would at some future point have enrolled a higher 
percentage of black students than was acceptable to the district 
court.

Subsequently an intervening complaint was filed and nine­
teen school corporations and certain state officials added as 
defendants. Movants were among the added school corpora­
tions. Following another trial, the court entered a judgment in 
which it found, inter alia: (1) that the prior judgment against 
IPS was res judicata against the added school corporations and 
state officials; (2) that none of the added school corporations 
were guilty of segregatory practices; and (3) that all of the 
school corporation defendants were amenable to orders effect­
ing student transfers between such defendants in quantities 
designed to achieve a prescribed degree of racial balance within 
IPS. That decision is presently on appeal to the United States

1. U. S. v. Bd. of School Commissioners, 332 F. Supp. 655, 
aff’d., 474 F. 2d 81 (7th Cir. 1973), cert. den. 37 L. Ed. 2d 
1041 (1973).



2

Court of Appeals for the Seventh Circuit.2 3 Thus, movants are 
involved in an action similar to the case at bar. A decision by 
this Court in the instant action may provide precedent for the 
Seventh Circuit’s decision.

ARGUMENT.
"It is not the time to try to say with final authority 
what the town has meant in American life. Its mean­
ings are profound and various. But of its importance 
there can be no question.”*

One of the questions in the case at bar and in the action in 
which these amici are parties is whether a federal district court 
may order the busing of school students between separate, in­
dependent school corporations in order to remedy discriminatory 
practices found to exist in only one of such school corpora­
tions. These amici believe that the far reaching impact of such 
an order may be seen in clearer detail when viewed from the 
vantage point of a school corporation which serves a city or 
town separate and distinct from the school district in which 
such discriminatory practices were effected.

Throughout this country, hundreds of school corporations 
exist which have geographical boundaries coextensive with small 
towns and cities.4 Several of such school corporations are

2. United States, Plaintiff-Appellant and Donny Brurell Buckley, 
et al., Intervening Plaintiffs-Appellees v. Board of School Com­
missioners, et al., Nos. 73-1968 through 73-1984, in the Seventh 
Circuit Court of Appeals.

3. P. Smith, As a City Upon a Hill, The Town in American 
History (Alfred A. Knopf, 1966), p. 307.

4. In 1972, the U. S. Bureau of the Census reported the 
existence in the United States of 15,281 “independent school dis­
tricts,” i.e., school districts which are administratively and fiscally 
independent of any other government. Of this number, 597 of 
such districts had coterminous “citywide” boundaries. The same 
source reported a total of 1457 “dependent school districts” of which 
247 had coterminous “citywide” boundaries. In total, there were, 
in 1972, 844 “citywide” systems with 8.2 million pupils. U. S. 
Dept, of Commerce, Bureau of the Census, Vol. 1, Governmental 
Organization, 1972 Census of Governments, pp. 3, 6, 8 and 40.



3

parties to these appeals. These amici are also school corpora­
tions which have such territorial boundaries and which serve 
small municipalities located in the State of Indiana.

Typical of such municipal school corporations is one of 
these amici, The School Town of Speedway. The civil town of 
Speedway, Indiana, which it serves, has a population of approxi­
mately 17,500. The town is governed by a board of trustees 
elected by the citizens of the town. The town board is em­
powered to control all other municipal departments and ap­
points their administrators. Schools which serve the com­
munity are owned and administered by an independent corpora­
tion created by statute and designated as The School Town of 
Speedway. The administration of that school corporation is 
vested in a three-man board of school trustees appointed by 
the civil town board of trustees on a non-partisan basis. The 
School Town of Speedway neither owns nor operates school 
buses. All schools are physically located within the town 
boundaries so that students have access thereto either by walk­
ing or other means of transportation provided by the students 
or their parents. The operational funds for the schools are 
provided almost entirely through taxes paid by citizens of the 
Town. Although this small community is geographically 
dwarfed by the adjacent City of Indianapolis, it encompasses 
large industries in which many of its citizens work. In short, 
it is a distinct community whose citizens take pride in local 
community projects and operations, and which has a municipal 
government and school system responsive to the local problems 
and needs of the community.

The rationale of state legislatures in fixing school boundaries 
to the boundaries of the small towns and cities which they serve 
is not limited to mere physical convenience:

[I]f we except the family and the church, the basic 
form of social organization experienced by the vast major­
ity of Americans up to the early decades of the 20th 
Century was the small town. In the words of Thorstein 
Veblen: “The country town is one of the great American



4

institutions; perhaps the greatest, in the sense that it has 
and had and continues to have a greater part than any 
other in shaping public sentiment and giving character to 
American culture.”3

The real essence of a community is found in the fact that it 
has a center, and the beginning of a community arrives when 
its members have a common relation to the center.5 6 It is this 
common relationship which gives vitality to a school system 
serving the small community. The importance of this common 
relationship becomes readily apparent when one views the chaos 
of many big city school systems as contrasted to the stability 
and quality of those found in smaller communities.

The small community, then, as many legislatures and educa­
tors have found, provides a desirable environment for imple­
mentation of a community-wide school system which can truly 
give consideration to such important factors as home-school 
communication, children attending school within the vicinity 
of home, minimization of transportation safety hazards, economy 
of cost and ease of pupil placement and administration. See 
opinion of Mr. Justice Powell, concurring in part and dissent­
ing in part, Keyes v. School District No. 1, Denver, Colorado,
........ U. S............, 37 L. Ed. 2d 548 (1973); Deal v. Cincinnati
Bd. of Ed., 369 F. 2d 55 (6th Cir. 1966), cert, den., 389 
U. S. 847 (1967).

It is thus beyond argument that towns and cities provide a 
logical, reasonable and desirable setting for operation of in­
dependent school corporations. The essential question is whether 
federal courts can forcibly transfer children attending such a 
school system, and otherwise disregard the independent nature 
of such a system,7 in order to effect a judicially prescribed 
degree of racial balance in a given geographical area.

5. P. Smith, supra, pp. vii-viii.
6. Will Herberg, Ed.: The Writings of Martin Buber (New

York: Meridian Books; 1956), p. 129.
7. In one of the district court orders entered in the case in 

which these dmici were parties, the trial court has presumed the 
power to consolidate all of the school corporations in the Indianapolis



Absent an overt, affirmative state act which contravenes a 
Constitutionally protected right, federal courts have no power 
to circumscribe the rights of the states to establish municipalities 
and school corporations to serve the members of such com­
munities. Spencer v. Kugler, 326 F. Supp. 1235 (D. N. J. 
1971), aff’d. per curiam, 404 U. S. 1027 (1972); Gomillion v. 
Lightfoot, 364 U. S. 339 (1960); and Hunter v. Pittsburgh, 
207 U. S. 161 (1907). These principles alone, in addition to 
this Court’s rejection of the concept of “racial balance or mix­
ing”, Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 
1 at 24 (1971), provide sufficient authority for a reversal of 
the lower courts in the instant case.

In an attempt to avoid the limitations found in the above 
precedents and other cases, the Sixth Circuit Court of Appeals 
in the cases at bar apparently adopted the theory that all school 
corporations are agents of the state and since the state is 
responsible for school matters, the rights of individual school 
corporations could be ignored. Such a theory is flawed in many 
respects. These amici wish to only point out that if this concept 
is not rejected by this Court, it will allow one school corporation 
to be held to answer for the wrongdoings of another. In ad­
dition to the fact that guilt by association is anathema to our 
jurisprudence, such a novel concept would effect a fundamental 
deprivation of the Constitutional rights of the innocent school 
corporation. Long ago this Court held that private corporations 
created under state law for school purposes were entitled to the 
protection afforded by the guarantees of the United States 
Constitution. Pierce V. Society of Sisters, 268 U. S. 510 (1925). 
No reason exists for holding that public school corporations 
are to be treated differently.

Many other legal arguments could be discussed, but they will 
undoubtedly be made by the parties to these appeals. It is the
area “along metropolitan lines”. Supplemental Memorandum of 
Decision, entered December 6, 1973, by The U. S. District Court, 
Southern District of Indiana, Cause No. IP 68-C-225, Slip Opinion, 
p. 19.

5



6

practical and factual impact of the opinion of the Sixth Circuit 
in the instant case which these amici wish to primarily empha­
size. If that opinion is allowed to stand and becomes the law 
of the land, judicial power in desegregation cases will know no 
bounds. Students will be transported from the small towns and 
cities in which they, their families and friends reside, into the 
schools of large metropolitan areas. The burden of busing for 
racial balance may fall upon school children who have always 
walked to a nearby school (as is the case with most Speedway 
students). Parental interest and participation in school affairs 
will be frustrated. Many school officials are elected by voters 
who reside within the territorial boundaries of the school cor­
poration or district.8 Small town citizens may thus experience 
the anomaly of being required to send their children to a school 
system administered by officials over whom they exercise no 
voting control. Every school corporation located in any degree 
of proximity to a large metropolitan area will become amenable 
to remedial racial balancing decrees, no matter how separate or 
independent those school corporations may be. The touchstone 
of judicial power will be demography, not equity.

8. This is the case for example, with respect to school officials 
of the Indianapolis Public School System. See Indiana Constitution, 
Art. 2, § 2; Burns Ind. Stats. § 28-2603. Thus in the case in which 
these amici are parties, residents of Beech Grove and Speedway 
cannot vote for Indianapolis school officials.



7

CONCLUSION.

The district courts involved in the cases with which this Brief 
is concerned have promulgated decrees which eventually could 
destroy one of the traditional fabrics of American life. Their 
decrees formulate a blueprint for federally constituted school 
systems which ignore the natural community interests of parents, 
teachers and children. Our nation has drawn its life from small 
communities, and it is itself a community of communities.9 
This Court should not affirm a court decree which would forever 
destroy the rights of the citizens of the towns and cities of this 
nation to educate their children in school corporations designed 
and established to serve individual communities.

Respectfully submitted,

RICHARD L. BROWN, 
BUTLER, BROWN & HAHN, 

Room 400,
156 East Market Street, 
Indianapolis, Indiana 46204, 
632-9411,

RICHARD D. WAGNER,
KRIEG D eVAULT ALEXANDER 

& CAPEHART,
2860 Indiana National Bank 

Tower,
Indianapolis, Indiana 46204, 
636-4341,

Attorneys for The School Town of Speedway, Indiana, and The School City
of Beech Grove, Indiana.

9. P. Smith, supra, p. 14.







•‘r  .