Plaintiffs' Memorandum in Opposition to Government's Motion to Intervene

    THEIN THE UNITED STATES DISTRICT COURT FOE 
EXTERN DISTRICT OF MICHIGA^ 
W  SOUTHERN DIVISION “

RONALD BRADLEY, et al., 

Plaintiffs,

WILLIAM G. MILLIKEN, et al., 
Defendants;

DETROIT FEDERATION OF TEACHERS,
Defendant-Intervenor,

and
DENISE MAGDOWSKI, et al.,

Defendants-Intervenor.

Civil Action No. 35257

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO 
GOVERNMENT'S MOTION TO INTERVENE

Plaintiffs have not heretofore flatly opposed the Govern­
ment's proposed intervention because neither the interest purported 
to be represented nor the claim or defense being asserted could be 
ascertained. We remain without the benefit of a pleading which 
would enable anyone to determine how the movant proposes to assist 
the Court and the parties to resolve the issues.

Therefore, we must assume that the entirety of the movant's 
position is reflected in its original papers of April 11, taken 
together with Assistant U.S. Attorney Rosenberg's representations 
to the Court, U.S, Attorney's Guy's representations to the news 
media, and the Justice Department's recent letter to the Court.

On that assumption we can now advise the Court that not only 
are the traditional requisites for intervention absent here, but 
that the substance of the movant's position is so utterly without 
merit that to allow intervention for its expression would be a 
futile imposition upon the Court and the parties. All that the 
movant proposes to say can be received and weighed as an amicus 

curiae submission. To permit intervention for presentation of a



simple motion-^^aither evidence in any nor other arguments
are proposed? followed by denial of the motion, followed by dis­
missal of the intervenor, would be a pointless minuet.

We urge that the motion to intervene be denied and that the 
motion to defer further* proceedings, received and considered as an 
amicus curiae submission, be denied.

1. Intervention '
The movant’s memorandum of law asserts that it is en­

titled to intervene here as of right under both Rule 24, F.R.
Civ. P. and 42 U.S.C. 200Oh-2. The movant concedes that both the 
Rule and the statute require "timely application," which is ad­
dressed to the discretion of the trial court. We would add that 
timeliness is to be measured by whether the proposed intervention 
will delay disposition of the litigation to the prejudice of-the 
parties, and that whether the proposed intervention is timely 
should be viewed on the whole circumstances of the case. McCausland 
v. Shareholders Management Co., 52 F.R.D. 521 (D.N.Y., 1971); Smith 
Petroleum Service, Inc, v. Monsanto Chemical Co., 420 F. 2d 1103 
(5th Cir. 1970).

It is clear from the legislative history of Section 
20Q0h-2 cited in the Government's memorandum that judicial con- . 
sideration of timeliness must be more than perfunctory. Scrutiny 
of the cited history discloses that most of it actually pertained 
to Section 302 of a proposed Civil Rights Act of 1963. That 
precursor of the present statute also provided for such inter­
ventions, but it did not contain the "timely application" require­
ment found in Section 2000h-2. H.R. Rep. No. 914, 88th Cong.,
1st Sess. 22 (1963). Therefore, timeliness must be carefully 
considered by this Court, especially in light of repeated ad­
monitions by the appellate judiciary, including the court of 
appeals in this case, to the effect that avoidable delays in 
the vindication of these rights are strongly disfavored. Carter 
v. West Feliciana Parish School Board, 396 U.S. 290 (1970).



• •
. The substance of the Government's motion to defer

further proceedings and its supporting memorandum, taken together 
with Assistant. U.S. Attorney Rosenberg's statement in open court, 
confirm that delay of the proceedings, to the unquestioned pre­
judice of plaintiffs and defendants, all of whom must mark time 
while uncertainty prevails, is not only a concomitant but the 
only purpose of the proposed intervention. Therefore, the court 
must look to the merits of the movant's offer to determine whether 
such an extraordinary purpose and effect can be justified.

Before doing so, however, we must note the suggestion 
of the United States Attorney (in his release to the news media), 
apparently in support of non-statutory intervention of right under 
Rule 24(a)(2), that the movant has an interest in the action that 
is not adequately represented by the present parties. Even a 
cursory reading of the record would disclose that, since this 
Court’s Ruling on Issue of Segregation in September of 1971, the 
state defendants, and more recently the intervening suburban 
school districts, have been the primary defendants. And the 
notion that these parties have been non-adversary to plaintiffs 
will astonish their counsel. We who are confronted by Mr.
Krasicky and the other gentlemen find the suggestion unworthy of 
serious consideration. Their efforts to defeat as well as delay 
relief have been unremitting. ' •

2. Proposed Delay
As noted above, in order to be fully advised in the 

exercise of its discretion with respect to the timeliness of 
this application, the Court should examine the merits of the 
movant’s proposal to determine whether any different interest is 
being represented and whether, in the words of Section 2000h-2, 
the movant would "be entitled to the same relief as if it had 
instituted the action." If the answers are in the negative, then 
no salutary purpose would be served'by the'intervention beyond 
that adequately fulfilled by treating the submission as an amicus

wmm



curias paper. In the words of Professor Moore: "Leave should not
be granted if the court could not grant intervener any relief 
(footnote omitted)." 3B Moore's Federal Practice 24-396, at 24.10[4] 

First, the Government concedes in its recent letter to the 
Court that the analogy between delay pending certain higher judicial 
action and that which would attend the vagaries of congressional 
deliberation is far-fetched. Delay and uncertainty are the hall­
marks of legislative deliberation; and that is especially true of 
proposals that have been characterized as unconstitutional by the 
ranking Republication member of the House Judiciary Committee 
(Congressman McCuliock of Ohio) and doubtful of passage by a leading 
Senate supporter of them (Senator Dominick of Colorado). If after 
Brown in 1954 the courts had awaited congressional action on school 
desegregation bills the first orders would have come only after the 
Civil Rights Act of 1964. Similarly, the arguments made in the 
Government's memorandum are equally applicable to the perennial 
anti-busing proposals of Senator Stannis and Congressman Whitten—  

none of which has yet been passed.
In sum, the Government proposes here what it is so far 

unable to get through Congress, i.e., a moratorium on relief in­
volving pupil transportation. If such, an effort succeeds here there 
will be no need for the legislation and we shall presumably remain 
in a state of unconstitutional suspended animation indefinitely.

Secondly, prior precedent discloses that this is not 
relief to which the Government would be entitled if it had 
initiated the action. Put bluntly, this delaying tactic was tried 
before and squarely rejected by the Supreme Court in Alexander v. 
Holmes County Board of Education, 396 U.S. 19 (1969),

Therefore, even treating the motion as "a pleading setting 
forth the claim or defense for which intervention is sought" (Rule 
24(c), F.R. Civ. P.), it is evident that intervention must be 
denied because no relief could be granted, and the only effect 
would be prejudicial delay to the present parties— the essence 

of untimely intervention.



Conclusion

For the foregoing reasons plaintiffs' urge that the 
motion to intervene-be denied or, in'the alternative, that' the 
motion to defer further proceedings be considered as an amicus
curiae submission, and denied.

May 8, 1972
Respectfully submitted,

Louis R. Lucas
Ratner, Sugarman, and Lucas
Memphis, Tennessee

Nathaniel R. Jones 
General Counsel NAACP 
New York, New York

E. Winther McCroom 
Cincinnati, Ohio

/is ts

2/, Harold Flannery 
//Raul R. Dimond '
Robert Pressman .
Center for Law and Education 
Harvard University 
Cambridge, Massachusetts

Jack Greenberg 
Norman J. Chachkin 
New York, New York

Certificate

I hereby certify that the foregoing memorandum was 
served upon the defendants by delivering copies to their counsel 
of record on May 9, 1972.