Emergency Motion to Convene Panel for Oral Argument

    No. 72-8002

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

BOARD OF EDUCATION OF THE SCHOOL 
DISTRICT OF THE CITY OF DETROIT, 
a school district of the first 
class,

Appellant,
vs.

RONALD BRADLEY, et al,

Appellees.

On Appeal from the United States District Court 
For the Eastern District of Michigan 

Southern Division

EMERGENCY MOTION OF BOARD OF EDUCATION 
OF THE SCHOOL DISTRICT OF THE. CITY OF DETROIT 

TO ORDER GOVERNOR OF THE STATE OF MICHIGAN, THE ATTORNEY 
GENERAL OF THE STATE OF MICHIGAN, THE TREASURER OF THE 

STATE OF MICHIGAN, THE SUPERINTENDENT OF PUBLIC INSTRUCTION 
FOR THE STATE OF MICHIGAN, THE MEMBERS OF THE STATE BOARD OF 

EDUCATION OF MICHIGAN AND OTHER STATE OFFICIALS TO 
- PROVIDE FUNDS TO KEEP THE DETROIT PUBLIC SCHOOLS 
OPERATING FOR A FULL 180 REGULAR DAYS OF INSTRUCTION______

EMERGENCY MOTION TO CONVENE PANEL FOR ORAL ARGUMENT
RILEY AND ROUMELL
George T. Roumell, Jr.
Louis D . Beer 
Jane Keller Souris 
Russ E. Boltz 
720 Ford Building 
Detroit, Michigan 48226 
Attorneys for Appellants and 
certain other named DefendantsNovember 22, 1972.



NO. 72-8002

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTfl CIRCUIT . •

BOARD OF EDUCATION OF THE SCHOOL 
DISTRICT OF THE CITY OF DETROIT, 
a school district of the first class,

vs.
Appellant,

RONALD BRADLEY, et al,

Appeellees.

/

EMERGENCY MOTION OF BOARD OF EDUCATION 
OF THE SCHOOL DISTRICT OF THE CITY OF DETROIT TO ORDER THE GOVERNOR OF THE STATE OF 
MICHIGAN, THE ATTORNEY GENERAL OF THE STATE 
OF MICHIGAN, THE TREASURER OF THE STATE 
OF MICHIGAN, THE SUPERINTENDENT OF PUBLIC 
INSTRUCTION FOR THE,STATE OF MICHIGAN,
THE MEMBERS OF THE STATE BOARD OF EDUCATION 
OF THE STATE OF MICHIGAN AND OTHER STATE 
OFFICIALS TO PROVIDE FUNDS TO KEEP THE 
DETROIT PUBLIC SCHOOLS OPERATING FOR A 
FULL 180 REGULAR DAYS OF INSTRUCTION

EMERGENCY MOTION
TO CONVENE PANEL FOR ORAL ARGUMENT

NOW COMES the BOARD OF EDUCATION OF THE SCHOOL DISTRICT 
OF THE CITY OF DETROIT, by its attorneys, GEORGE T. ROUMELL, JR., 
LOUIS D. BEER and RILEY AND ROUMELL, and move this Honorable 
Court as follows:



1. On June 22, 1972, following an application for a 
stay pending appeal, this Honorable Court issued an Order which, 
in part, read as follows:

"The motion for stay pending appeal having 
; ■■ h - - been considered:, it is further ordered that<

the Order for Acquisition of Transportation, 
entered by the District Court on July 11,
1972, and all orders of the District Court 

£ - * ” ' c ; concerned with pupil and faculty reassign- * 
bhm rm>'5 i ment awithin -the Metropolitan Area beyond1'the -'

geographical jurisdiction of the Detroit 
Board of Education, and all other proceedings 
in the District Court other than planning 
proceedings, be stayed pending the hearing 
of this appeal on its merits and the disposition 
of the appeal by this court, or until further . .

. ----- - . .order of this court..." App la593 (emphasis.
added)

2. On July 7, 1972, the District Court below ordered 
all "parties, their agents, employees, successors, and all 
others having actual notice of this Order" to maintain the status 
quo in the schools of the City of Detroit by offering fully 
180 days of instruction and refraining from causing the discharge 
of any teachers whose discharge had been planned due to lack of 
funds. Order of July 11, 1972, Bradley v. Milliken (ED Mich. 

Civil Action 35257) . See App. la 571 (Vol. IB).

3. The July 1972 Order was the result of a Motion for 
Injunction and/or Supplemental Order for Development of Plan 
of Desegregation re finances and terminations filed by the Detroit

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•  •

Federation of Teachers on June 22, 1972, upon a hearing which 
was held on June 30, 1972. .

4. In announcing his intention to enter the aforementioned 
Order of July 7, 1972, the Trial Judge on June 30, 1972 said, in 
part, as follows: ;

I think m  connection with the issuance of the 
P5elijinary injunction in this case perhaps it

: .. should 5 Pointed out that what I propose to
order and what I have ordered is in the Court's 
opinion required of the defendants under the
S  nfr^ Cn±0J S ^ USB °f the Fourteenth Amend­ment of the United States Constitution and the
constitution of the State of Michigan. Quite 

?!1 the issues of the legal propriety of
S % u lndl5g °f desegregation or the propriety 
S l ^ \ ? rdfr ?f metropolitan desegregation, I
t n t j f 8 case nor the officials involved 
n the litigation, would take the position that 
the pupils m  the public schools of the City of
vear°of t-h e^ ltled anYthing less than a full year of schooling m  the 1972-73 school year.
TrILS?^?1ofYprate 5?re t5an two-thirds equality." iranscnpt of Proceeding of June 30, 1972, at 1.

5. The Trial Judge was, correct in noting that all school 
districts m  Michigan, and in particular, the school districts 
m  the metropolitan area of Detroit, all are offering their 
students,under the auspices of the State of Michigan, 180 days of 
public instruction.

6. The DETROIT BOARD OF EDUCATION has attempted, to 
the best of its ability, to faithfully follow the dictates of 
the Order of the Court, and has made numerous attempt to obtain 
the necessary revenue and cut costs to continue the operation

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of its schools as so ordered. Specifically:

A. The DETROIT BOARD OF EDUCATION has submitted a 
total of four millage proposals to the electorate 
in 1972 at three separate elections, the latest

i ... being on November 7, 1972, and has campaigned
to the fullest extent of its abilities for their 

u T passage. Each time these millage proposals have
been rejected by the voters, including the failure 
to renew an expiring 5 mills which means a loss 
of previously available revenue of about 28.8 
Million Dollars a year.

B. The DETROIT BOARD OF EDUCATION has borrowed,to 
its borrowing capacity,operating funds from the 
major financial institutions of the City of 
Detroit, pursuant to statute CL 148, 388.1231;
MSA 15.1919(631) ,

C. Pursuant to statute, CL 1948, 388.1236; MSA 

15.1919(636), Act 258 of Public Acts of 1972, 
the DETROIT BOARD OF EDUCATION has requested 
that the Superintendent of Public Instruction 
advance State Aid Funds to the DETROIT BOARD 
and although the Superintendent of Public 
Instruction announced that he would do so in 
the amount of 20 Million Dollars , said amount 

is not sufficient to provide a full 180 regular



D.

school days of instruction as more specifically 
set forth and the Superintendent of Public 

Instruction has placed a condition on said advance­
ment; namely, that the DETROIT BOARD keep schools open 
December, January and February, 1973, which the 

DETROIT BOARD for the reasons set forth below cannot 
do in the interests of education.

The Board m  the last 30 months has cut 44 Million 
Dollars of expenses, including the elimination of 

.... some 461 teachers, the elimination of 51 admini­
strative posts and negotiation of a collective 
bargaining contract which provides for no salary 
increases in the 1972-73 school year. The Affidavit 
of Harold Brown, Business Manager of the DETROIT 
BOARD, attached hereto, sets forth the details of 

i the financial problems and the efforts that the 
DETROIT BOARD has made toward solving them.

7. Even though the DETROIT BOARD OF. EDUCATION has 
borrowed monies and even though the Superintendent of Public 
Instruction has offered to advance 22 Million Dollars of State 
Aid pursuant to the above-cited statute on the condition that 
the DETROIT BOARD operate the schools in December, January, and 
February, 1973, said funds are not sufficient to provide for

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school instruction in the Detroit school system beyond early 
March, 1973, which is a period substantially less than 180 

regular school days. Even with the borrowing of funds from the 
financial institutions of Detroit and even if there were a State 
Aid advance, it would be clear that the schools in Detroit would 
have to be closed in March, 1973, as set forth in the following 
financial statement which shows a $7,100,000.00 deficit by March, 
1973 and no cash flow. As matters now stand, the projected cos/ 
of operating the School District will result in an 80 Million
Dollar deficit by June, 1973. More specifically, the financial 
^̂ -9"ures are as follows:

November December
l?72________ 1972 January

1972
Beginning Balance 
Revenue - $ 11,,647,000 $ 9,100,,000 $ 900,,000

Property Taxes 
State Aid 320 ,000 5,700, 000 21,700,.000
State Aid Loans 22, 000,, 000

21,,300, 000 -
Other Revenue 2, 

Total Funds Available36, 
Expenditures -

533,
500,

-000
.000 1­

37,
,400,
, 500,

000
000

2
25

,500,
,100,

000
000

Payrolls
Other 24,

3,

0 
0 
0 

0 
0 000

000
32,
4,

600,
000,

000
000

19
5
,200,
,000,

000
000

Ending Balance $ 9,100, 000 $ 900, 000 $ 900, 000

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February
Beginning Balance 
Revenue -
Property Taxes 
State Aid 
State Aid Loans 
Other Revenue 

Total Funds Avail-, 
able

Expenditures - 
Payrolls 
Other

$ 9 0 0 , 0 0 0

2 1 , 3 0 0 , 0 0 0 *
20,000,0004,200,000
4T74W7ooo

2 3 , 6 0 0 , 0 0 0
4 , 5 0 0 , 0 0 0

Ending Balance

Expenditures - 
Payrolls 
Other

Ending Balance

. ?  1 8 , 3 0 0 , 0 0 0

May

$ (30 , 9 0 0 , 0 0 0 )

3 0 0 , 0 0 0

4,, 0 0 0 , , 0 0 0
$ (26  j, 6 0 0 , - 0 0 0 )

2 2 , 1 0 0 , 0 0 0
4 , 5 0 0 , 0 0 0

$ ( 5 3 ,

If 
tsj

 
II 

O
 

II 
o

 
II 

> 000.)

Beginning Balance 
Revenue -
Property Taxes 
State Aid 
State Aid Loans 
Other Revenue 

Total Funds Avail­
able

March

$ 1 8 , 3 0 0 , 0 0 0

5 0 0 , 0 0 0

2 , 7 0 0 , 0 0 0
2 1 , 5 0 0 , 0 0 0 “

2 3 , 6 0 0 , 0 0 0
5 , 0 0 0 , 0 0 0

$ ( 7 , 1 0 0 , 0 0 0 )

June

$ ( 5 3 , 2 0 0 , 0 0 0 )

3 0 0 . 0 0 0
6 0 0 . 0 0 0

4 , 7 0 0 , 0 0 0  
$ ( 4 7 , 6 0 0 , 0 0 0 )

2 8 , 1 0 0 , 0 0 0
4 , 3 0 0 , 0 0 0

$ ( 8 0 , 0 0 0 , 0 0 0 )

A p r i l  ■

$ ( 7 , 1 0 0 , 0 0 0 )

7 0 0 , 0 0 0

3 , 8 0 0 ,ooo 
( 2 , 6 0 0 , 0 0 0 )

2 3 , 6 0 0 , 0 0 0  
■ 4 , 7 0 0 , 0 0 n

$ ( 3 0 , 9 0 0 , 0 0 0 )

A i r i f 1Id vL cea?1L t \ r w m t noteChI“b er' 1 ” 2 ' i f  S tate
occurring in March, 1972, or thereafter. defiolt

8. The .enters of the DETROIT BOARD OP EDUCATION concu 
m  the District Court Order of June 7, 1972, and .ore specifical 
concur with the proposition stated by the District Court on June

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30, 19,/, which, in summary, suggests that it is a violation of 

the Fourteenth Amendment Equal Protection provision for a state 
to provide 180 days of public instruction to all children of the 
State of Michigan, except the 280,000 of the school district of 
the City of Detroit, which includes 180,000 black children, the 
vast majority of black students in Michigan.

9. There is no question that public education in the

*... t? °f “lchl9an ls a function and responsibility of the state
as set forth in the Michigan Constitution of'1963 and that the
School District of the city of Detroit, as well as all other
school districts in Michigan are mere agencies of the st»t 
Brief of Appellant Detroit -Board of Education at «1-54,

10. The DETROIT BOARD OF EDUCATION, after exhausting all 
possible avenues of obtaining revenue, has approved the recomm­
endation of Dr. Charles J. Wolfe, Superintendent of the School 
District of the City of Detroit, providing that the Detroit school 
will close on December 21, 1972, not to re-open again until 
February 19, 1973, and to close again in late April or early 

May, 1973. The reason for this recommendation,- as approved by 
the DETROIT BOARD on November 8, 1972, is set forth in the 
attached Affidavit of Dr. Charles J. Wolfe. Basically, because 
of the School District's uncertain financial situation, the 
duration of the second semester of school, as scheduled, is 
most uncertain; that educationally speaking, such uncertainty

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causes anxieties in the instructional courses for students.

Dr. Charles J. Wolfe recommended that,based upon known-financial 
facts, about 35 days of school be cut out between December 21, 
1972, and February 19, 1973, saving 1-1/4 Million Dollars per 
day of operational costs, which savings could be tacked on to 
the second semester expanding that second semester. Thus, the 
students would receive two orderly semester of instruction, 
...although abbreviated, rather than one semester of instruction 
with the duration of the second semester highly in doubt.

n *  0n November 21, 1972, the State Board of Admini­
stration, at the urgings of the Governor and the State Superintendent 
of Public Instruction, offered to advance State Aid payments to 
the Detroit School District of some 20 Million Dollars, but on 
the condition that the School District not close from December 
21, 1972, to February 19, 1973, with no assurances of financing 
beyond mid-March, 1973. Such a proposition on the part of the 
State Board of Administration is educationally unsound as set 
forth in Dr. Wolfe's attached Affidavit, and does not tackle the 
basic problem; namely, that as matters now stand, no party to 
this litigation can obey the order of July 5, 1972, which order 
stated that the Detroit School District is to operate 180 
regular days of instruction for the 1972-73 school year.

12. The various State officials named herein, including 
the Governor, the Attorney General, the State Treasurer, the 
Superintendent of Public Instruction and the State Board of

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Education can take positive remedial steps to relieve the serious
financial crisis in the Detroit School District, including hut 
not limited to,the following:

A. The Governor of the stale ee »„• a*the state of Michigan could, pursuant
to the Michigan Constitution of 1973, Article V, 

Section 15, call the state Legislature into a special 
session for .the. .purpose of -passing legislation to 
aid the Detroit School District, including, but not 
limited to, providing the means of raising additional 
revenues, it is noted that the state Legislature 

is due to go into session on November 27, 1972, through 
on information and belief, December 19,1972, at which 
time the Governor could send them a special message 
on this crisis, if ordered by this Court to do so.

B. The Attorney General, the State Treasurer, the State 
Superintendent of Public Instruction and the state 
Board of Education could be advising the Governor and 
the State Legislature as to the means and methods of 
providing finances for the Detroit School District. 
The Superintendent of Public Instruction, the State 
Board of Education and the Treasurer of the State of 
Michigan can, on information and belief, divert 
State funds, including State Aid funds, to the aid 
of the Detroit School District,

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13. The Court should be advised that, as more specifi­
cally ser rorth m  the attached Affidavit of Harold Brown, Business 
Manager of the Detroit School District, even with the present 
State advances and present loans (said advances being conditional), 
the Detroit School District cannot operate later than early March, 
1973, and even under the present plan, the operation would limit 
instruction to approximately 117 days. The net result of this 

, would deprive 280,000 students of the Detroit School District of 

the Constitutional Equal Protection in that other Michigan students 
are being provided 180 days of instruction. Such a financial 
collapse makes a mockery of Plaintiff's efforts in this matter 
and their efforts for naught. There will not be a system to 
integrate if integration is the order of this Court.

14. The Governor, and all other State officials, have 
the opportunity prior to the closing of school on December 21,
1972, to take actions so that educational planning can be made 
to assure 180 regular days of school instruction.

15. Defendant School District for-the .City of Detroit, 
and its individual members who are Defendants herein, apologize 
for bringing this Motion to the Court while the Court is in the 
midst of its deliberation on the case in chief, but we only do 
so respectfully because we believe that this is of utmost dire 
emergency. We further believe that there is still time for 
the State officials to act.



This Court, pursuant to Federal Rules of Civil 
Procedure S2G, has the power »to make any Order appropriate to

P eserve the status The purpose of this request is
to maintain the ^  namely, to provide ^  ^

"  C“ y ^  DStr0it —  of instruction that they had
previously enjoyed in previous years and that all other school
districts in Michigan are enjoying- that tojoying, that to permit the closing
of schools on December 21 1Q7? M .

‘ ' -  ' 1972' or March' 1973, would not be
preserving the status.guo.

17- we further ash that this Court convene an emergency 
session of the Panel for the purpose of dealing with the problem 
raised by this Motion and the attached Affidavits.

WHEREFORE, we pray that ttiio tr ,P y that this Honorable Court as follows:

1- Convene an emergency session at its convenience as
rt has done in previous occasions in this litigation to consider 
this matter*

2. Order the Oovernor of the State of Michigan, the 
Attorney General, the state Treasurer, the Superintendent of 
Public instruction and the State Board of Education o, Michigan 
and all other State of Michigan officials, to take a!l action 
possible to insure 180 days of Instruction in the Detroit School 
District for the 1972-73 school year, including, but not limited 
o. the calling of the legislature Into a special session to '

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to consider the problem, reviewing and reporting to the Court 
as to the possibilities of diverting existing State funds, 
including State Aid, to the Detroit School District and that 
said reports to this Court be made prior to December 21, 1972, 
in order to assure sound educational planning.

3. Order any other relief which in good conscience 
this Court may order to accomplish 180 full days of education for 
the students of the Detroit School District.

Repsectfully submitted,

RILEY AND ROUMELL

Jane Keller Souris 
Russ E. Boltz

Attorneys for Appellant Board 
of Education of the School 
District of the City of Detroit 
720 Ford Building 
Detroit, Michigan 48226 
Telephone: 313-962-8255

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November 22, 1972.