Memorandum in Support of Motion

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IN THE

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

NO.

RONALD BRADLEY. et al

vs.
WILLIAM J. MILLIKEN, et al,

Appellants

Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

MEMORANDUM IN SUPPORT OF MOTION

Of counsel:
J. Harold Flannery 
Paul Dimond
Center for Law and Education 
Harvard University 
Cambridge, Massachusetts

Louis R. Lucas 
William E. Caldwell 
Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee
Nathaniel Jones, General Counsel 
N.A.A.C.P.
1790 Broadway 
New York, New York
Bruce Miller and 
Lucille Watts, Attorneys for 
Legal Redress Committee 
N.A.A.C.P., Detroit Branch 
3426 Cadillac Towers 1 1 1
Detroit, Michigan,' and
Attorneys for Appellants

\



• •

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

NO.

RONALD BRADLEY, et al,
' 'V • ;; ‘ ‘ ' . ' ■ Appellants,

V S  o

WILLIAM J. MXLLXKEN, et al, *

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION
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MEMORANDUM IN SUPPORT OF MOTION

Plaintiffs sought by an application for a preliminary injunc­
tion in the District Court below to enjoin the provisions of an 
act of the Michigan legislature which prohibited the Detroit, 
Michigan City Board of Education from implementing1 & plan of high 
school desegregation adopted by it on April 7, 1970„ Plaintiffs 
sought an acceleration' of1 that plan Of desegregation and modifica­
tion of certain features - faculty desegregation for the entire 
school system, and an injunction against any new construction pend­
ing the adoption of a complete plan of desegregation for the entirei ■ i { *; i _ ■ | i * i • 1 ! ' ■' ,
system- ' ! ‘ ' 1 1 1 ‘ 1 ■



;

Plaintiffs here seek by way of an injunction pending appeal 
for the purpose of preserving their rights and the jurisdiction 
of this Court over the issues raised by their appeal an injunction 
vacating the legislative stay passed by the Michigan Legislature 
following the adoption of the plan of desegregation by the Detroit 
Board and reinstatement of the status quo insofar as plaintiffs5 
rights are concerned, that is, the plan adopted by the Board, which 
would tend no eliminate a pattern of segregation in twelve Detroit 
high schools„

Rule 8 (a) of the Federal Rules of Appellate procedure provides 
that the application for such relief may be made to the Court of 
Appeals or to a Judge thereof. The rule requires a showing by the 
moving parties that the District Court has refused to grant the 
relief requested and the reasons given by the District Court for

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its action. This specific relief was requested of the District
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Couru. A copy of the Court*s decision denying the application for
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preliminary injunction is attached. (App. 134) Unfortunately, the
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District Court does not substantially avert to the constitutional
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defects of the action of the Michigan Legislature nullifying an- . : i ' ‘ : • 1 1  ' J i 1 1
action of the Detroit Board of Education and interposing itself by

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way of a legislative stay between the Board and plaintiffs.
i . 1 1 ' . '

In unis case, the Court of Appeals will not be in formal
i i >

session until substantially after schools have opened for the... , . I I ; I . I * ' • 1 ‘ - ■ ! »
1970-71 school term. Wherefore, plaintiffs have made their appli- 
cation to the Chief Judge of this Court.; 11.;! ! ! i i t i > (•••!■» * • ■' • ! ■ • • > i t , . i i

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• i 11; • i ■ i i i i i • i i i

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A judgment or a decision denying a motion for preliminary 
injunction is an appealable order. 28 U.S.C. 1292(1). This Court, 
or a single Judge thereof, has the power to issue all writs neces­
sary or appropriate in aid of its jurisdiction and agreeable to 
the usages and principles of law. 28 U.S.C. §1651 (a). An injunc­
tion pending appeal is such a writ. Aaron v. Cooper, 8th ^ir., 2oi 
F.2d 97, 101. The power granted to courts of appeals under §1651, 
commonly known as the "All Writs" statute, is meant to be used 
only in exceptional cases where there is clear abuse of discretion 
or usurpation of judicial power. Bankers Lire & casualty company v « 
Holland, 346 U.S. 379.

It is generally held that a trial court abuses its discretion 
when it fails or refuses properly to apply the law to conceded orj I I 1 i I ■ ' I I ' ! ' 1 ’
undisputed facts. Union Tool Company v. Wilson, 259 U.S. 107, li2. 
Misapplication of the law to the facts is in itself an abuse of 
discretion. Hanover Star Milling Company v. Allen and Wheeler---  -------——;----:---- ; i i ; : ' ' '
Company, 7th Cir., 208 F.2d 513, 523. Clemons, et al, v. Board of
Education of Hillsboro, Ohio, et al, 6th Cir., 228 F.2d 853, 857.
------ ------------ ---------------!--------- '■ - ■ 1 ------- -------- -----------,

United States v. Beaty, 6th Cir., 288 F.2d 653, 656 (1961).---    --- r-n---r-r—!— I — , | ! i • • 1 1 ' .
The Supreme Court of the United States in Brown v. Board of 

Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, said
; . ■ '

"We conclude that in the field of public education 
the doctrine of "separate but equal" has no place. 
Separate educational facilities are inherently 
unequal. Therefore, we hold that the plaintiffs 
and others similarly situated for whom the actions 
have been brought are, by reason of the segregation 
complained of, deprived of the equal protection of 
the laws guaranteed by the Fourteenth Amendment."

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The existing segregation of the schools is detailed in the 
motion which quotes statistics from the testimony of Superintendent 
Drachler. Also, the admissions of the defendant made in the Citizens 
Committee study, reaffirmed with examples in the testimony of the 
Superintendent, also a defendant in this cause, establishes a clear 
underlying base for a finding of acts in the maintenance of a 
pattern of segregation in the Detroit school system, which pattern 
is yet to be overcome. However, it is not necessary for the Court 
to reach those issues in order to find the Michigan legislative 
interposition and nullification of the Board9s plan and preventing 
its implementation an unconstitutional form of state action perpet­
uating and maintaining segregation as it currently appears in those 
schools. In Keyes v. School District No. One, Denver, Colorado,
313 F.Supp. 61 (1970) the Court discussed the rescission of a 
previous board5s plan to take action for the purpose of preventingI ’ ' ' ! 1 ‘ ’ ’ i t ' [ ■■ I . '
the ultimate segregation of certain schools in the City of Denver,
the Court having previously refused to act with respect to those
schools. The Court stated the proposition as follows:* ' • » t 

"It perhaps looked to ultimate desegregation.
We must hold that this frustration of the board i ! : 
plan which had for its purpose relief of the 
effects of segregation at the polls was unlaw­
ful. Resolutions 1520 and 1524, as they apply 
to East and Cole, should be implemented.
"In reaching the above conclusion we have very 
carefully considered both the majority and 
minority opinions in the nbw famous Supreme Court 
decision in Reitman v. Mulkey, 387 U.S. 369, 87 
S.Ct. 1627, 18 L.Ed.2d 830 (1967$, and have " "■ 1 ■ 
concluded that both opinions fully support the 
position which we have taken. ■ , 1

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"It will be recalled that Mulkey, like the case 
at bar, had to do with the repeal of legislative 
acts which recognized rights guaranteed by the 
equal protection clause of the Fourteenth 
Amendment.

"Our case is like Mulkey in that it also involves 
repeal or rescission of a previous enactment 
which extended and upheld nondiscriminatory rights. 
Our case is stronger than Mulkey in that there the 
statute was brought to bear on private transactions. 
Here, on the other hand, there could be no question 
about whether it is the state which is discriminat­
ing .

"It cannot be argued in the case at bar that the 
legislative action of the school board was neutral.
The board specifically repudiated measures which 
had been adopted for the purpose of providing a 
measure of equal opportunity to plaintiffs and 
others. The school board action was, to say the 
least, not neutral and the causal relation between 
the school board action and the injuries is 
direct. We find and conclude then that Mulkey 

\  not only supports our position, it is a compelling 
authority in support of the conclusion which we 
have reached. It is so closely analogous that we 
would be remiss if we failed to follow it."

In Keyes, the Court was faced with the necessity of drawing
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the conclusion that the action of the newly elected school board
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in rescinding a previous board8s plan constituted a legislative
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1 » 1 . ' 'act and was therefore state action prohibited under the Fourteenth
: « i .

Amendment. Here no such link in the chain of logic is necessary.
The state by legislative act has specifically interposed and 
reversed a board-adopted plan to provide equal educational opportunity
by desegregating twelve high schools in the system.

In a somewhat analogous situation, the Fifth Circuit Court of1 I ! < 1 l 1 I i
Appeals acting under the 88All Writs88 statute, directed the District

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Court to issue an injunction, the terms of which were spelled out 
in the opinion of the Court of Appeals. As here, the school board 
had adopted a voluntary plan to desegregate to some extent the 
schools in its system. Its voluntary plan of desegregation was 
stayed as a result of the temporary restraining order the District 
Court had granted at the request of white parents who sought to 
prevent the Board of Education from going forward with its 
voluntary plan of desegregation. The Court of Appeals said:

if"We have the power to grant any necessary relie: 
to prevent irreparable damage to the minor 
appellants. Title 28 U.S.C.A. §1651. The pre­
trial order is also a final order within the 
meaning of 28 U.S.C.A. 1291 in that it determines 
substantial rights of the six minor Negro 
children and these rights will be irreparably 
lost if relief is delayed pending final judgment«
See United States v. Wood, 5th Cir., 1961, 295 
F.2d 772, 778; cert, denied 369 U.S. 850, 82 ! «
S.Ct. 933, 8 L.Ed.2d 9; Kennedy v. Lynd, 5th Cir., 
1962, 306 F.2d 222, 228; Hodges v. Atlantic 
Coastline Railroad Company, 5th Cir., 19*>2, 310 
F .2d 438, 443. ' ‘ ‘ 1

' "Under the school segregation cases, Brown v .
Board of Education, 1954, 347 U.S. 483 [citations 
omitted] 349 U.S. 294 [citations omitted]; Cooper 
v. Aaron, 1958, 358 U.S. 1, the irreparable damage 
being sustained by appellants consists of being 1 ‘ 
forced to attend a racially segregated school.
No comparable injury will be suffered by the 
appellee-plaintiffs if the motion for injunction 
pending appeal Is granted. Harris v. Gibson, 322 
F .2d 780, 5th Cir., 1963.

The Court went on to require that the injunction be issued 
against uhe school board despite the fact that the matter arose 
out of the adoption of a voluntary plan.

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It follows from what we have said that an injunc­
tion pending appeal should be granted. This will

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also solve the dilemma of the school board 
caught as it is between its own voluntary plan 
and the preventive order of the District Court 
as expressed in their request for direction.
322 F.2d 780, 782.

To the same point the Court in Lee v, Macon County Board of 
of Education, 231 F.Supp. 743, 1964 (three judge District Court) 
stated that

"the evidence in the case reflected that the 
Macon County School Board and the individual 
members thereof, and the Macon County Superin­
tendent of Education, have throughout this 
troublesome litigation fully and completely 
attempted to discharge their obligations as 
public officials and their oaths of office.
It is no answer however that these Macon County 
officials may have been blameless with respect 
to the situation that has been created in the 
school system in Macon County, Alabama. The 
Fourteenth Amendment and the prior orders of 
this Court were directed against actions of the 
State of Alabama; not only the action of County 
school officials, but the actions of all other 
officials whose conduct bears on this case is 
state action. In this connection see Cooperv.
Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 37 
1958, where the Supreme Court of the United 
States, among other things, discussed the 
contention advanced by the Little Rock, Arkansas 
school officials that they were to be excused 
from carrying out the prior orders of the Court 
by reason of conditions and tensions and dis­
order caused by the actions of the governor and 
the state legislature." 231 F.Supp. 743 at 752.

As it was in Stell v. Savannah-Chatham County Board of Educa 
tion, a case in the Fifth Circuit, 318 F.2d 425, 1963, it was in 
Detroit, Michigan in 1970, a clear abuse of the trial court*s 
discretion to deny plaintiff-appellants8 motion for preliminary 
injunction requiring the defendant school board to make a prompt
and reasonable start toward desegregation of its schools.

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These cases which we have cited to the Court involving
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preliminary injunctive relief through the action of the Court of
Appeals all arose in the context of the "deliberate speed" doctrine
since replaced by the United States Supreme Court in Alexander v .
Holmes County, 396 U.S„ 19 (1969) , with a clear doctrine of

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immediacy. Here unless this Court acts to require the implementa­
tion of the Board’s desegregation plan* members of the appellants® 
class will be denied their constitutional rights for yet another 
school term or longer. In McCoy v. Louisiana State Board of Educa­
tion , 332 F.2d 915 (1964) 5th Cir. ,  the Court ordered action to be 
taken because of the pendency of the summer school term. See also 
Woods v. Wright, 334 F.2d 369 (5th Cir., 1964). With respect to 
a contention that administrative problems might arise if changes

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are made at this date in the operation of the school system, it isi i i ; i ■ ■ . 1 ! t
sufficient to point out that the courts have repeatedly held that

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administrative problems are not those created by the plaintiffs. 
Historically, plaintiffs in this cause have sought desegregation

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in the Detroit school system, as reflected in the minutes of the
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Board of Education. The desegregation process would have been
• 1 | ‘ ■ ! . , | , i | > . , . < ( • *

begun, although in a small way, at twelve Detroit high schools but‘ ’ ’ •:'■■■! i • !* : ■ 1 , I . i (■ ,
for the action of the Michigan legislature in passing Act 48. In

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Davis v. Board of School Commissioners of Mobile County, Alabama,
332 F.2d 356, 358 (5th Cir., 1963) the Court was faced with the

» ■ , J . . , < - i , • ‘ »! ‘ ■ ’contention that the trial date, as the trial date here, was fixed; , i . <, . i . ’ 11 i < t ; i ’ * 1 ’ ’ 1. • * 1 >
in November and it saids

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"With the trial date now fixed in Novembers, it 
seems that effective relief is denied for another 
school year with no assurance that even at such 
later date anything but a reaffirmation of the 
teachings of the Brown decision will be forth­
coming . "

The Court in Davis also pursuant to the "All Writs" statute in the 
exercise of the appropriate jurisdiction, proceeded to order the

*

District Court for the Southern District of Alabama to enter an 
order for an immediate start of the desegregation of the Mobile 
schools.

With respect to the uncontroverted evidence of acts which 
tended to establish and maintain a pattern of segregated schools 
in Detroit, referred to above, Superintendent Drachler admitted a 
number of examples of discriminatory acts on the part of the Detroit 
Board. These acts, as more fully set forth in the Motion, are:
The Detroit Board has in the past utilized such discriminatory 
techniques as optional attendance zones (Tr. 142-43), intact busing 
(Tro 139-40). busing of black children past white schools with

I ; . I , , i ' i .i ’ ' ■ . i i ■ ! , ■ "  i I i I 1 i 1 • t I , t ; ,

available space (Tr. 141-42), gerrymandering zone lines (Tr. 143-44) ,
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and "open enrollment" or "free transfer" provisions (Tr. 50-52) , all 
in a manner which created and perpetuated segregated schools., Also 
uncontroverted in this record is the fact that at least as late as 
1961 the Detroit system utilized a racially discriminatory policy• ... • M • ‘ 1
and practice of faculty assignments to the effect that there was 
a pattern of white teachers assigned to white schools while black

c  . i i . i * i , ! 1 I • ' ! ' 1 I

teachers were assigned only to black or racially mixed schools
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(Tr• 133-35)v This proof, taken together with the 1969 statistical

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data showing 62.8 percent of the pupils in the system in schools 
over 90 percent one race or the other and the fact that, while the 
faculty is 38.4 percent black system-wide, there are 56 faculties 
less than 10 percent black {47 of them in schools over 80 percent 
white) and 61 faculties over 60 percent black (all 61 of them in 
schools over 90 percent black), is although not necessary for a 
decision on the Motion, evidence of a racially segregated school 
system. This evidence stands in the record without contradiction. 
The record reflects testimony from the defendant Board that the 
desegregation plan was adopted to provide equality of educational 
opportunity, to desegregate the high schools involved? that the 
act of the legislature was passed with the intention and purpose 
of "turning back the page" on the Board's efforts to begin desegre­
gation and that it was Act 48 which prevented and continues to
prevent the implementation of the Board's plan. All of this testi-

’ ' * - ! • • . * • - ? ' . » 1 *

mony remains uncontradicted. Again, the testimony remains uncontra­
dicted that little or no additional pupil transportation will be

* t i » , ■ ! f I

required, that there are no physical plant reasons why the plan
• > . j . . i 1

cannot be implemented at once (Tr. 310-312), and that the plan 
would require only a brief administrative period to implement.

i ' , 1 ; i , . 1  i • i I ’ 1 i . : i 1 i ' I i ! ■ ' '  .

It is the obligation of every school system to desegregate• , l ! • r , i ! 11 i . . i 1 ‘ < : '
its schools "at once and to operate now and hereafter only unitary

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schools." Alexander v. Holmes County Board, 396 U.S. 19 (1969).
This obligation is to be carried out, insofar as there is a plan

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in existence (e.g., the Board's April 7 plan), pending (not follow- 
ing) litigation. Carter v. West Feliciana Parish School Board,

i i i ■ ■ • ' ■ • ■ 1 • ' ■ . . -
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396 U.S. 290 (1970) . As the Fifth Circuit has held with regard to 
existing HEW plans: "Because the tenor of ... [Alexander and
Carter] is to shift the burden from the standpoint of time for 
converting to unitary school systems from a status of litigation 
to one of unitary operation pending litigation, we have, in the 
past, ordered immediate implementation of the HEW plan despite 
defects it might have where it was the only plan in the record 
which currently gave any promise of ending the dual system. See,

United States v. Board of Education of Baldwin County,
F-23 ____ (5th Cir., No. 28,880, March 9, 1970)." Andrews v. City
of Monroe, ____ F.2d ___ , No. 27358 (5th Cir. 1970) (Slip Op. 6-7).
Accord, Nesbit v. Statesville City Bd. of Ed., 418 F.2d 1040 (4th 
Cir. 1969)(en banc).

' ) I . 1 ! ! i ' , . i ' , ,

The constitutional obligation to operate schools which are
' • •. : • ■' } ' . . : . • I

• • - I ? ! '

not racially identifiable is imposed upon every school sysuem in
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the United States.
As stated by the Court in the Charlotte-Mecklenburg case,1 * ' 1 > • • • i j ■ *11 i i i 1 • i ■ ’ i ■ i ■ . f i , i 11 .

quoting the first Brown decision:
i i . i , i ; ----------- :------
i • ■ ! » 1 I i '

"We conclude that in the field of public educa­
tion the doctrine of 3 separate but equal9 has 
no place. Separate educational facilities are 
inherently unequal ... (emphasis added). ...
" ••• such segregation has long been ‘a  nation-' .
wide problem, not really one of sectionaT
concern7*"! ' (emphasis added) . * r 1 '' . ' ■ > • - 1

The selection of cases for the Brown decision demonstrates 
the nationwide reach of that concern; Brown lived in Kansas 
and the defendant Board of Education was that of Topeka, ! 
Kansas; defendants in companion cases included school 
authorities in Delaware and the District of Columbia.

' I ’ • • ' • ' i ' ' I 1 I ■ ' ‘ I i  t 1 r  • j t i i I I I ■ . . ■ | . I , H  t '  < • 11 - I ' | | ( ' ,  h  , , < .

■ 1 ' I ' ' 1 1 1 I 1 l« * > • i • I ‘ • ! i •"! • ■ ■ ■ 1 M I M  I • • . ' • ) ! > !  | , • ,,; . I .

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♦
Later important cases have involved not just southern 
schools, but also schools in New York, Chicago, Ohio,
Denver, Oklahoma City, Kentucky, Connecticut and other 
widely scattered places.
Swann v. Charlotte-Mecklenburg Board of Education, 306 F.Supp. 

1299, 1309-10 (W.D. N.C. 1969). See also, Keyes v. School District 
No. One, Denver, 303 F.Supp. 289 and 298 (D. Colo. 1969), preliminary 
injunction stayed (10th Cir. 1969), stay vacated, 396 U.S. 1215 
(1969); Crawford v. Board of Educ. of Los Angeles, No. 822-854 
(Superior Ct. Calif. Feb. 11, 1970); Berry v. School Dist. of the 
City of Benton Harbor, Civ. Act. No. 9, (W.D. Mich. Feb. 3, 1970) 
(oral opinion); Davis v. School Disc, of the Cxty of Pontiac, 309 
F.Supp. 734 (E.D. Mich. Feb. 17, 1970)? United States v. School 
Dist. 151 of Cook County, 111., 404 F.2d 1125 (7th Cir. 1968), 
affirming 286 F.Supp. 786 (N.D. 111. 1968).

"[Ijn 1954 the Supreme Court was dealing not just with a 
multiracial community but with a multiracial nation and dealing 
with segregation ... IT]he Supreme Court was dedicated ootn educa­
tionally and constitutionally that where Negro students dad to 
attend ma ority Negro scnools or al^ Negro schools t*.ey were
being deprived of an educational opportunity to fulfill &ix of 
their dreams, at least m  this country." (Spongier v. Paoadena 
City Board of Education, No. 68-1438-R (C.D. Calif. Jan. 20, .̂970) 
(oral opinion at 2400) . Therefore, the obligation of every school 
system i. the nation is to establish "a system without a 'white* 
schoo. and a ’Negro' school, but just schools." Gigc.i v. ounty 
School Board, 391 U.S. 430, 442 (1968). The obj active ii aonooi

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♦
system without schools which are racially identifiable. Kemp v . 
Beasley, No. 19,782 (8th Cir. Mar. 17, 1970) (per Blackmun, J.); 
Clark v. Board of Education of Little Rock, No. 19,795 (8th Cir. 
May 13, 1970) (en banc); Adams v. Mathews, 403 F.2d 181 (5th Cir. 
1968); Green v. School Board of City of Roanoke, No. 14,335 (4th 
Cir. June 17, 1970); Whitley v. Wilson City Bd. of Educ., No. 
14,517 (4th Cir. May 26, 1970).

CONCLUSION
Unless this Court acts, the personal rights of each Negro 

child affected directly or indirectly by this plan will be effec­
tively denied for at least another term. The injury is irreparable 
and the denial of equal educational opportunities recognized by 
the defendant Board.

Unless this Court acts, the issue for this semester and
possibly the entire year may become moot, thus depriving this Court 
of jurisdiction.

The Supreme Court said in Watson v. City of Memphis, 373 U.S. 
526, 535 (1963): "The rights here asserted are, like all such
rights, present rights; they are not merely hopes to some future
enjoyment of some formalistic constitutional promise (Emphas:
in original). Plaintiffs respectfully submit that where the trial 
court has refused properly to apply the law to the conceded or

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undisputed facts and permitted almost without comment a section of
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a legislative act which, from the proof in this record, had no
other purpose than a racial one to continue to stay the implementation

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of a starr on high school desegregation. The intervention of 
this Court is required to preserve its jurisdiction and prevent 
irreparable injury and manifest injustice.

Respectfully submitted,

Louis R. Lucas 
William E. Caldwell 
Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee
Nathaniel Jones, General Counsel 
N.A.A.C.P.
1790 Broadway 
New York, New York
Bruce Miller and 
Lucille Watts, Attorneys for 
Legal Redress Committee 
N.A.A.C.P., Detroit Branch 
3426 Cadillac Towers 
Detroit, Michigan, and
Attorneys for Appellants

a  . t  i ■ ' ■ ■ ■ ■ •

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* • i i '  ! ■ I • • I A l l  I 1 I

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Of counsel:
J. Harold Flannery 
Paul Dimond
Center for Law and Education 
Harvard University 
Cambridge, Massachusetts

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