Memorandum in Opposition to Petitions For Writs of Certiorari

    ^uprnttr GJnurt nf t e  lluitrii
October Term, 1973

In the

No. 73-434
W illiam G. Milliken, et al.,

Petitioners,
vs.

Ronald G. Bradley, et al.

No. 73-435
A llen Park Public Schools, et al.,

Petitioners,
vs.

Ronald G. Bradley, et al.

No. 73-436
The Grosse Pointe Public School System, et al.,

Petitioners,
vs.

Ronald G. Bradley, et al.

MEMORANDUM IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI

Jack Greenberg 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Paul R. Dimond 
210 East Huron Street 
Ann Arbor, Michigan 48108

Louis R. Lucas 
W illiam E. Caldwell 

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Nathaniel R. Jones 
1790 Broadway 
New York, New York 10019

Elliott Hall 
950 Guardian Building 
Detroit, Michigan 48226

J. Harold Flannery
Robert Pressman 

Larsen Hall, Appian W ay  
Cambridge, Mass. 02138

Attorneys for Respondents 
Ronald Bradley, et al., 
Plaintiffs Below



I n  t h e

Supreme QJmtrt of % Inittb Btatw
October T erm , 1973

No. 73-434

W illiam  G. M illik en , et al.,
Petitioners,

vs.

R onald G. B radley, et al.

No. 73-435

A llen  Park P ublic S chools, et al.,

Petitioners,
vs.

R onald G. B radley, et al.

No. 73-436

T he Grosse P ointe P ublic S chool S ystem , et al.,

Petitioners,
vs.

R onald G. B radley, et al.

MEMORANDUM IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI

As set forth hereafter, respondents Bradley, et al. (plain­
tiffs in this cause), submit that this school segregation case



2

is not in an appropriate posture for Supreme Court re­
view.1

Basically, the petitioners seek review of interlocutory 
remedial orders in advance of the framing and adoption of 
a remedial plan and evidentiary hearings in the trial court. 
No actual plan of desegregation has been approved or even 
considered by the courts below; no defendant has been 
ordered to do anything except to participate fully in plan­
ning and to join in the hearing in the district court. The 
Court of Appeals has affirmed the findings of constitutional 
violation and of inadequacy of relief limited to the Detroit 
school system, directed that plaintiffs amend their com­
plaint to conform to the evidence, required joinder of any 
school district potentially affected by any plan, and ordered 
that a full hearing on remedy be held and that the Legisla­
ture of the State of Michigan be given an opportunity to 
act before any plan of desegregation is devised and ap­
proved by the district court.

Proceedings are underway in the district court in com­
pliance with these directions. The court has ordered that 
school districts (and the chief school officials of districts) 
which may possibly be affected by any plans eventually 
adopted, be joined as parties defendant so that they may 
be heard. Plaintiffs have filed an amended complaint to 
conform to the evidence and seeking full relief; the opinion 
of the Court of Appeals has been formally transmitted by 
the petitioner Attorney General to the Michigan Legisla­
ture for its consideration.

1 W e have chosen not to submit a lengthy Brief in Opposition to 
Certiorari correcting petitioners’ various omissions of fact and mis- 
characterizations. In our view, the real issues, if any remain, will 
appear only after the actions and hearings directed by the Court 
of Appeals are concluded, and a decision has been rendered by the 
district court and reviewed by the Court of Appeals.



3

In such circumstances, this court cannot properly con­
sider the very issues which are essential to review in a case 
like this. As yet, there are no plans, nor hearing on remedy, 
nor findings and conclusions thereon by the district court, 
nor review of any remedial orders by the Court of Appeals. 
This Court is in no position to evaluate the practicalities of 
the local situation, and constitutional effectiveness of al­
ternative plans of remedy, the extent and form of the 
remedy, the extent of transportation and administrative 
reorganization required, and the precise manner in which 
school district boundaries need be permeated for the limited 
purpose of accomplishing complete relief.

Petitioners, and all other school districts which may be 
affected by any plan, as well as all other parties to this 
litigation, and the Michigan state officials, now have the 
opportunity in the courts below to present evidence and ar­
gument which will shape a complete record in this cause.2

2 In remanding this case the Court of Appeals directed the dis­
trict court to afford to “any party against whom relief is sought, 
including school districts which heretofore have intervened and 
school districts which hereafter may become parties . . .  an oppor­
tunity to offer additional evidence, and to cross-examine available 
witnesses who previously have testified, on any issue raised by the 
pleadings, including amendments thereto, as may be relevant and 
admissible to such issues.” This direction is in accord with the tra­
ditional legal principles under which federal courts have always 
afforded parties litigant an opportunity to be heard upon a proper 
showing of the relevance and admissibility of evidence. Cf. Kelley 
v. Metropolitan County Bd. of Educ., 463 F.2d 732, 745-46 (6th 
Cir.), cert, denied, 409 U.S. 1001 (1972). W e respectfully suggest 
that the district court should and will allow the added defendants 
to develop all relevant evidence necessary for decision and deter­
mination of the issues both of violation and of remedy. Petitioners 
correctly note that the Court of Appeals held that the district 
court “need not” consider evidence with respect to constitutional 
violation. However, the Court did not direct the district court to 
refuse to consider such evidence if offered. W e believe that peti­
tioners and others added as parties may, upon a proper showing, 
present evidence on this issue; but in light of this Court’s decision 
in Keyes v. School Dist. No. 1, Denver,------- U .S .--------  (1973), and



4

No one can foretell what contested issues will thereafter 
remain among the parties, nor what record evidence will 
define those issues.3 It may well be that after the hearings 
in the district court, the form, scope and indeed the source 
of the remedy would be markedly different from that de­
scribed in the petitions.4 Under these circumstances, deci­
sion of the issues presented in the petitions at this stage 
of the proceedings would virtually require an advisory 
opinion. Judicial economy and the established practice of 
this Court require that the district court decide, and the 
Court of Appeals review, these issues based on the relevant 
evidence presented by all of the parties, prior to this 
Court’s review.

There is no reason to depart from this Court’s established 
practice of refusing to review school segregation cases in

of the evidence already introduced documenting the use by Detroit 
and Michigan school officials of virtually all of the classic segre­
gating techniques which have been identified by this and other 
Courts, and since petitioners lack the power to rewrite history, the 
district court’s findings of violation seem likely to be reaffirmed. 
To date, the original intervening school districts have never sug­
gested what evidence they can or would present on this issue.

3 The district court will of course consider the evidence already 
introduced in this record at the lengthy trial; similarly, it will 
evaluate any other evidence to be presented by the parties which 
might lead it to modify, amend or supplement its original rulings. 
New_ evidence concerning the practicality and efficacy of proposed 
specific remedial techniques will of necessity be presented by all 
parties, including (if they so desire), evidence by petitioners in­
tended to demonstrate the impracticality of any remedy extending 
beyond the present boundaries of the Detroit school district,

4 For example, in a report to the district court, petitioner State
Superintendent of Public Instruction recommended the exchange 
of pupils by contract among existing school districts, at least as an 
interim measure. Plaintiffs supported this recommendation below 
as a workable method of proceeding to accomplish complete relief 
from the constitutional violations with as little intrusion as pos­
sible into the State’s existing internal structures for administering 
public education. Compare Bradley v. State Bd. of Educ., 462 F.2d 
1058, 1066-67 (4th Cir. 1972), aff’d iy  an equally divided court, 
------- U .S .--------- (1973).



5

the absence of a plan, especially when remedial proceedings 
are underway below, the final outcome is uncertain, and the 
resolution of issues depends upon the evidentiary contribu­
tions both of petitioners and of newly added parties. No 
substantial harm will he visited upon petitioners should 
this Court decline review. If after the completion of the 
proceeding’s below, any party is still dissatisfied with the 
final determination and orders, recourse may be had to the 
Court of Appeals, and if necessary, to this Court. With the 
benefit of the rulings of the lower courts, this Court could 
better determine whether any remaining disputed issue pre­
sented by the completed record is worthy of review.

W herefore, for the foregoing reasons, these respondents 
Bradley, et al. respectfully pray that the petitions for writs 
of certiorari be denied.

CONCLUSION

Respectfully submitted,

Jack Greenberg 
Norman J. Chachkin

Nathaniel R. Jones 
1790 Broadway 
New York, New York 1001910 Columbus Circle 

New York, New York 10019
Elliott Hall 

950 Guardian Building 
Detroit, Michigan 48226

Paul R. Dimond 
210 East Huron Street 
Ann Arbor, Michigan 48108

J. Harold Flannery
Louis R. Lucas Robert Pressman

Larsen Hall, Appian W ay  
Cambridge. Mass. 02138

W illiam E. Caldwell 
525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Attorneys for Respondents 
Ronald Bradley, et al., 
Plaintiffs Below