Richmond County Georgia Board of Education v Acree Brief of Opposition to Certiorari

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.f
Plaintiffs

- v s -

WILLIAM G. MILLIKEN, et al. ,
Defendants

-and-
DETROIT FEDERATION OF TEACHERS, 
LOCAL NO. 231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

Defendant-
Intervenor

CIVIL ACTION NO. 
35257

-and-
DENISE MAGDOWSKI, et al.,

Defendant-
Intervenor
______ ;__________ /

' DEFENDANT BOARD OF EDUCATION'S 
' RESPONSE TO PLAINTIFFS 1MOTION- 
FOR ORDER ALLOWING PLAINTIFFSTO 
""PRESENT DESEGREGATION PLANS 

AT THE BOARD'S EXPENSE

On December 9, 1971, plaintiffs in the above-entitled 
cause filed with the Court a paper entitled "Plaintiffs' Response 
to Board's 'Plans' and Motion for Order Allowing Plaintiffs to 
Present Desegregation Plan at the Board's Expense." The District 
Court in response set a hearing for December 20, 1971. This 
response by the Board is filed in order to clarify the issues for 
the Court and for all the parties.



I. NOTICE

Rule IX(a) of the Rules of the United States District
Court for the Eastern District of Michigan provides in part:

It shall be the responsibility of the movant 
to ascertain whether or not a contemplant motion 
will be opposed. The motion shall affirmatively 
state that the concurrence of counsel in the relief 
sought has been requested on a specified date, and 
that concurrence has been denied or has not been 
acquiesced in and hence it is necessary to bring the motion.

The Board asks the Court to take note that plaintiffs did not 
comply with Rule IX(a). Neither the Board nor, from all that 
appears, any of the other defendants received any inquiry concern­
ing whether plaintiffs' motion would be opposed. In fact, as will 
appear later, the Board does not oppose significant portions of 
the relief sought in the motion, and it would have been to the 
benefit of all parties as well as of the Court if the areas of 
disagreement could have been narrowed before the costly and time­
consuming expedient of a Court hearing. It is unfortunate, in a 
case like this involving the educational fate of literally hun­
dreds of thousands of schoolchildren, that counsel has to learn of 
a motion first from inquiring newspaper reporters, and that issues 
on which the parties can agree are made to appear to the public as 
matters of spirited dispute. It is the hope of the Board that 
matters of this gravity can be conducted in such a way as to mini­
mize bad feeling and strident controversy in the community at 
large. Plaintiffs' conduct in violating Rule IX(a) appears cal­
culated to have just the opposite effect.

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II. GOOD FAITH AND THE BOARD'S RESPONSIBILITY

Plaintiffs state that they consider the plans submitted 
by the Board on December 4 to have been submitted in "bad faith". 
Plaintiffs' response, [hereinafter cited as PR], at 2. The
Board respectfully repeats to the Court what it stated in the 
memorandum brief which was filed together with the plans, that is, 
that the plans are submitted in a good faith effort to comply 
with the Court's order. The Board repeats that it has attempted, 
within the limited time span of sixty (60) days, to formulate 
plans in accordance with the spirit indicated in the District 
Court's words:

Let is be understood that I had no preconceived 
notion about what the Board of Education should 
do in the way of desegregating its schools nor 
the outlines of a proposed metropolitan plan.
The options are completely open.

Transcript of October 4, 1971, hearing, at 27.
Reasonable men may, and do, differ over the solutions to 

the problems with which we are faced. No one, to the Board's 
knowledge, has provided a simple solution for desegregation of a 
large central city school system located in a metropolitan area 
with rapidly chaning racial population patterns. The Board 
believes that the plans submitted provide a sound basis for cur­
ing the ills that the District Court found existed, insofar as 
they can be cured within the city limits of Detroit. The fact
that plaintiffs or the editorial writers of the Detroit Free Press 
disagree with this evaluation does not change the Board's good 
faith belief.

4 *

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Plaintiffs argue at some length the merits of the Board's 
plans. Essentially their argument is that the plans do not pro­
vide enough racial balance and, inferentially, that a plan drawn 
under the auspices of plaintiffs would be so superior in this 
respect that the Court would have to conclude that the Board's 
plans were drawn in bad faith. But that is a judgment which can 
be made only on comparison of the plans filed by the Board with 
those filed by other parties. Currently, the Board's plan is the 
only one before the Court.

It is the contention of the Board that the amount of 
stable racial balance which can be achieved within the current 
boundaries of the Detroit School District is limited by the 
ineluctable facts of the racial composition of the district and 
by the changing nature of that composition as found by the 
District Court. (See below, The Metropolitan Context.) Plaintiffs 
seemingly argue that they can do better. The only way in which 
the Court can judge the accuracy of that prediction, it is sub­
mitted, is to compare any plaintiffs' plan when it is submitted 
with the Board's plans.

The Board therefore contends that the plaintiffs' action 
here is premature. The Court is being asked to render judgment 
in a vacuum. The Board, in its memorandum brief accompanying the 
filing of its plans, asked the Court to hold full hearings at the 
time all plans are submitted. The Board here repeats that request 
The Board submits that this is not the appropriate time for a 
hearing on the merits of its plans, prior to the filing of the 
State defendants' plan and those of any other party which may 
wish to file plans.

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The Board wishes to make it clear that it would not object 
to plaintiffs' action if plaintiffs merely were asking permission 
to file a plan, although of course the Board reserves the right 
to object to the plan itself, once filed, in whole or in part.
Nor does the Board object to that part of the plaintiffs' motion 
which seeks cooperation from the Board and its employees and 
staff in any reasonable way to the end that plaintiffs have 
sufficient information and date to draw any plan they wish. In 
fact, the Board during the pendency of this cause has provided 
room within the School Center Building and staff cooperation to 
representatives of the plaintiffs and the Board, if it had been 
requested to do so prior to the filing of this motion, would have 
undertaken to do the same again. The Board will continue to 
offer such cooperation so long as this case is in litigation or 
the Court requires.

But the prime thrust of plaintiffs' motion is not merely 
that plaintiffs should be allowed to file their own plan--a propos­
ition with which the Board has no quarrel. Plaintiffs also ask 
that the Board of Education pay approximately $20,000 (the exact 
amount is not specified) to finance the drawing of such a plan by 
plaintiffs' experts.

The Board contends that such a request of the Court is 
doubly premature. In the first place, it is premature to ask 
the Court for a ruling on the validity of the Board's plan— which 
plaintiffs' response all but demands. Secondly, it is premature 
to tax costs at this stage of the case.

The Board notes parenthetically that plaintiffs do not 
base their request on inability to pay, although they do mention 
briefly the lack of resources of the individual plaintiffs. (They 
do not mention, however, that the Detroit NAACP, one of the

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plaintiffs, has traditionally been the largest local NAACP Chapter 
in the United States. Nor do they mention that plaintiffs have 
been capable of financing a 41-day trial and numerous other legal 
expenses.) Consequently, plaintiffs' request cannot be treated 
as an in forma pauperis prayer-although even in such cases neces­
sary costs are usually assessed on the Court and not on other 
parties.

It is Hornbook law that the determination of costs waits 
upon the outcome of the case. This is based on the common-sense 
proposition that non-pauper parties (and plaintiffs do not claim 
paupers' status here) should not be allowed to prolong litigation 
at the expense of their adversaries.

This general principle is particularly applicable here.
To put it simply, the plans are not all in. The remedial phase 
of this case, which may require substantial time of all the parties 
and the Court, has only begun. The State defendants' plan, 
required by the Court to be filed sixty (60) days after the 
Detroit Board's plan, may prove fully acceptable to palintiffs—  
in which case all the money and effort expended on plaintiffs' 
plan will have proved a waste. Or the Court may find, for one 
reason or another, the plaintiffs' plan to be wholly unacceptable—  
in which case the $20,000 or so required will also have been 
spent to no avail.

Furthermore, the Court, at its full hearing, may find that 
defendants' Detroit School Board plan is acceptable. In addition 
there is always the possibility that other parties may submit 
plans and may petition the Court for the payment of fees by the 
defendants Detroit School Board for plans that may be wholly 
unacceptable to the Court or the plaintiffs again causing the 
spenditure of funds unnecessarily to an already financially bur­
dened Board of Education.

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Plaintiffs are asking for an extraordinary remedy. They 
cite only one case in which it has been granted. (And even 
there, if the order is read carefully, it becomes clear that the 
District Court was reserving final decision on whether to impose 
costs of plaintiffs' plan initially on defendants.) We further 
point out that such a procedure was authorized in a system that 
had a tradition of a duel system. This is not the situation here 
where we do have a Board and that it is in good faith meeting the 
responsibility of the Court order.

Thus, plaintiffs are asking for unusual and extraordinary 
relief. They are asking the Court to make a determination as to 
one of the plans filed when it is impossible to determine, by 
measuring its effects against those of other plans, how relatively 
well it fulfills the Court's mandate. It is the belief of the 
Board that the plaintiffs' primary purpose in making this motion 
is to attempt to secure a premature adverse determination on the 
Board's plans before any of the parties or the Court have had the 
required amounts of time and methods of comparison— including 
the very existence of the other plans-necessary to make such a 
determination.

The Supreme Court has recently stated, in the definitive 
case in this area of the law, that the primary responsibility for 
the formulation of desegregation plans lies with the local board. 
gyAnn. v. Board of Education, 402 U.S.1(1971), at p.12, citing Brown 
v. Board of Education, 349 U.S. 294, 299, 300 (1955). And the 
Court takes note of the indisputable fact that local boards are 
far more aware of local particularities and have greater ability 
to tailor remedies to local situations than other parties who may 
not enjoy such continued acquaintance with the school district 
which is the subject of the cause. Swan V. Board of Education.
402 U.S. 1 (1971).

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Here the plaintiffs' objections to the Board's plans 
seem to show such lack of familiarity. Plaintiffs continue to 
attack the magnet plan concept, belittling the number of students 
involved in the program ordered into effect by the District 
Court, without mentioning the crucial fact that that program was 
on its own terms was a beginning pilot program. Plaintiffs, attempt 
to attach the "freedom of choice" label to defendants' plans with­
out mentioning the crucial differences between the plans proposed 
here-which employ racial balance criteria to prevent segregation—  
with the freedom of choice plans forbidden in Southern schools by 
the Supreme Court in cases like Green v. County School Board, 391 
U.S. 430)1968). Freedom of choice plans are not £er Se unconstitu­
tional and these may well be instances in which they can serve as 
an effective device (pp.439-41). See also, Swann v. Board of 
Education 402 U.S.1(1970) at pp. 26,27.

Such hasty and misleading criticism should not be the 
basis for an adjudication which would in effect determine, 
before any other plans are offered, that the Board's plans are 
inadequate. The Board has asked for a full hearing when all plans 
are submitted, and is ready to present expert witnesses in support 
of its submissions. There is no valid purpose to be served by 
making determinations of this nature at this juncture, without 
adequate notice of the nature of the question, on the pretext of 
determining whether plaintiffs should be entitled to $20,000 of 
the Board's money which they do not claim to need.

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H I  . THE METROPOLITAN CONTEXT

Plaintiffs attempt to belittle the idea that lasting 
desegregation cannot occur within the Detroit School District 
as currently constituted. In doing so they fly in the face of
the very District Court opinion which upheld their contentions on 
the main points of this cause.

Plaintiffs note, at 9 n.6, that only 36.2% of the pupils 
in the Detroit School System are white but it fails to mention 
other facts cited in the District Court's opinion which are of 
prime relevance in any determination of remedy. The first and 
foremost of these is that the percentage of black pupils in the 
Detroit Public Schools is rising rapidly— at 4.7% per year— more 
rapidly than in any other large city in the nation.

Apparently plaintiffs find it inconvenient to acknowledge, 
as the District Court did, that Detroit is moving rapidly toward ■ 
becoming an all-black school system. They argue that 36.2% is 
not de minimis. The Board asks plaintiffs if 31.5% (the white per­
centage for the next school year if current trends found by the 
District Court continue) is de minimis? If not, what about 26.8%?
Or 19.3% (the figure found by the District Court for 1980-81 if 
current trends continue)?

The point is not that the trend can be forecast with 
absolute precision. No one claims that. The point is that there 
is a decided and rapid trend, as the District Court found, a trend •• 
that may accelerate or decelerate somewhat, but is highly unlikely 
to cease or reverse. Some day not too far in the future a point 
that even plaintiffs will have to admit is de minimis will arrive. 
And plaintiffs have not yet explained how one can desegregate a 
school system when all of its pupils are of the same race.

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The Board believes that the duties of the parties to this 
cause cannot be properly discharged without consideration of these 
facts of modern American life. A school system all of whose 
pupils are black or white or oriental cannot be desegregated with­
out going beyond its boundaries. We repeat the wise words of 
Judge Sobeloff which plaintiffs quoted in their motion:

But school segregation is forbidden simply 
because its perpetuation is a living insult 
to the black children and inevitably taints 
the education they receive. This is the precise lesson of Brown.

Brunson v. Board of Trustees, 426 F.2d 820, 826 (4th Cir. 1970).
The Board cannot imagine a more segregated system, a 

greater "living insult" in Judge Sobeloff's words, than if the 
Detroit school system were to contain only black pupils and the 
school systems and the Detroit suburbs were to contain only white 
pupils. Cf Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967) 
modified sub nom. Smuck v. Hobson, 408 F. 2d 175 (D.C. Cir. 1969) . 
The Board, in preparing its plans for submission to the Court, 
has attempted in good faith, within the limitations imposed by its 
powers and boundaries, to respond with plans which will not lead 
to such a situation. It prays that the Court will not issue a 
ruling which will inferentially, on an incomplete record, deter­
mine the validity of its efforts.

IV- CONCLUSION

In summary, then, the Board opposes that portion of the 
plaintiffs' motion which would require defendant Detroit Board 
of Education to pay the costs of preparation of a plaintiffs' 
plan for desegregating the Detroit Public Schools. The Board 
urges the Court to reject this prayer for such an extraordinary 
remedy as unwarranted and premature, for the reasons stated here­
inabove .

George Roumell, Jr.Riley and Roumell
Attorneys for Defendants The

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Board of Education of the 
School District of the City 
of Detroit 
720 Ford Building 
Detroit, Michigan 48226 
962-8255

Dated: December 17, 1971

CERTIFICATION OF 
SERVICE

. *

STATE OF MICHIGAN )
) SS.

COUNTY OF WAYNE )

This is to certify that the copy of the foregoing has been 
served upon each of the attorneys of record on the 17th day of 
December, 1971 by U. S. mail, postage prepaid, addressed as fol­
lows :

Louis R. Lucas, Esq.
William E. Caldwell, Esq.
Ratner, Sugarmon & Lucas 
525 Commerce Title Building
Nathaniel Jones, General Counsel 
N.A.A.C.P.
1790 Broadway
New York, New York 10019
E. Winther McCroom, Esq.
3245 Woodburn 
Cincinnati, OHio 45207
Alexander B. Ritchie, Esq. 
Fenton, Nederlander & Dodge 
2555 Guardian Building 
Detroit, Michigan 48226

Theodore Sachs, Esq.
Rothe, Marston, Mazey, Sachs, 
O'Connell, Nunn & Freid 
1000 Farmer Street 
Detroit, Michigan 48226
Attorneys for Intervening 
Defendant - Detroit Federation 
of Teachers
J. Harold Flannery
Paul R. Dimond
Robert Pressman
Center for Law and Education
38 Kirkland Street
Cambridge, Mass. 02138

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Jack Greenberg
James N. Nabrit, III 
Norman J. Chachkin 
10 Columbus Circle 
New York, New York 10019
Bruce Miller and Lucille Watts 
Attorneys for Legal Redress Committee N.A.A.C.P. Detroit Branch 
2460 First National Building 
Detroit, Michigan 48226
Attorneys for Plaintiffs '
Frank J. Kelley, Esq.
Attorney General
Seven Story Office Building
Lansing, Michigan 48902
Eugene Krasicky, Esq.
Assistant Attorney General 
725 Seven Story Office Building Lansing, Michigan 48913
Gerald F. Young 
Assistant Attorney General 3007 Hillcrest 
Lansing, Michigan 48910
Attorneys for Defendants - 
Michigan State Board of Education

In the case of Louis R. Lucas and William E. Caldwell, 
the postage was sent air mail, special delivery.

' - p  ̂ /yy
George T. Roumell / J

Subscribed and sworn to before me 
this 17th day of December, 1971

, Notary PublicWayne County, Michigan 
My Commission Expires: 8/14/73

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