Order; Correspondence from Boyd to Judge Thompson
Public Court Documents
October 7, 1986 - October 9, 1986

7 pages
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Case Files, Milliken Hardbacks. Plaintiffs' Brief in Opposition to Motion to Dismiss, 1975. e4089444-54e9-ef11-a730-7c1e5247dfc0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a6e31b2c-4082-4d07-a2c1-99e4a2e64cc9/plaintiffs-brief-in-opposition-to-motion-to-dismiss. Accessed July 06, 2025.
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# IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RONALD BRADLEY, et al., X Plaintiffs, » X • CIVIL ACTION -VS- X : NO. 35257 WILLIAM G. MILLIKEN, et al., X Defendants. • X PLAINTIFFS 1 BRIEF IN OPPOSITION TO THE MOTION TO DISMISS BY DEFENDANTS' MILLIKEN, ET AL. In the Memorandum in Support of their Motion to Dismiss, the defendants Milliken, et al. request that the plaintiffs' Complaint and Amended Complaint should be dis missed as to them for two reasons. First, these defendants assert that, as to them, the decision of the United States Supreme Court in this case, Milliken v. Bradley, 414 U.S. 1038 (1974), reversed the lower court findings of segregatory conduct on their part, even as to the Detroit-only violations. Second, and in conjunction with the above, these defendants urge that complete relief from the unconstitutional conduct of the State Board of Education and the Detroit Board of Education may be obtained against the Detroit Board of Education alone. In this respect, these defendants assert that the Eleventh Amendment prevents this Court from requiring them to expend funds to comply with any equitable Detroit-only remedy. It is plaintiffs' position that upon close analysis, none of these contentions is viable. I. THE DEFENDANTS MILLIKEN, ET AL. SHOULD NOT BE DISMISSED FROM THIS CASE SINCE THEY HAVE BEEN FOUND TO HAVE COMMITTED CONSTITUTIONAL VIOLATIONS IN THE SCHOOL SYSTEM OF DETROIT. • # A. The district court opinion found the following con stitutional violation to have been committed by the State defendants as to Detroit-only violations: The State and its agencies, in addition to their general responsibility for and supervision of public education, have acted directly to control and maintain the pattern of segregation in the Detroit schools. The State refused, until this session of the legislature, to provide authorization or funds for the transportation of pupils within Detroit regardless of their poverty or distance from the school to which they were assigned, while providing in many neighboring, most white, suburban districts the full range of state supported transportation. This and other fi nancial limitations, such as those on bonding and the working of the state aid formula where by suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities. The State, exercising what Michigan courts have held to be in "plenary power" which includes 5 power "to use a statutory scheme, to create, alter, reorganize or even dissolve a school dis trict, despite any desire of the school district, it's board, or the inhabitants thereof," acted to reorganize the school district of the City of Detroit. The State acted through Act 48 to impede, delay and minimize racial integration in Detroit schools. The first sentence of Sec. 12 of the Act was directly related to the April 7, 1970 de segregation plan. The remainder of the section sought to prescribe for each school in the eight districts criterion of "free choice" (open enroll ment) and "neighborhood schools" ("nearest school priority acceptance"), which had as their purpose and effect the maintenace of segregation. In view of our findings of fact already noted, we think it unnecessary to parse in detail the activities of the local board and the state authori ties in the area of school construction and the furnishing of school facilities. It is our con clusion that these activities were in keeping, generally, with the discriminatory practices which advanced or perpetuated racial segregation in these schools. Bradley v. Milliken, 338 F.Supp 582, 589 (1971). These findings were repeated verbatim and affirmed by the en banc opinion of the Sixth Circuit Court of Appeals. Bradley v. Milliken, 484 F.2d 215, 238-39 (6th Cir. 1973). 2- As the Sixth Circuit concluded: The discriminatory practices on the part of the Detroit School Board and the State of Michigan revealed by this record are significant, pervasive and causally re lated to the substantial amount of segrega tion found in the Detroit school system by the District Judge. Bradley v. Milliken, supra, at 241. The Opinion of the United States Supreme Court stated: "[t]he District Court also found that the State of Michigan had committed several constituional violations with respect to its general responsibility for and super vision of public education." Milliken v. Bradley, 414 U.S. 1038, 41 L.Ed.2d 1069, 1081 (1974). (Footnote omitted). More significantly, the Supreme Court stated: School districts in the State of Michigan are instrumentalities of the State and sub ordinate to its State Board of Education and legislature. The Constitution of the State of j Michigan, Art. VIII, §2, provides in relevant part: "The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law." Similarly, the Michigan Supreme Court has stated that "the school district is a state agency. Moreover, it is of legislative creation...." Attorney General v. Aoweey, 131 Mich. 639 , 644 , 92 NW 2 8 9', 290 (1902); "Education in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature...." Attorney General v. Detroit Board of Education, 154 Mich. 584, 590, 118 NW 606, 609 (1908). Milliken v. Bradley, ___ U.S. ____, 41 L.Ed.2d 1069 , 1081 n. 5 (1974). The Supreme Court then catalogued the findings of the Court of Appeals with respect to the States* violations. See Milliken v. Bradley, ___ U.S. ____, 41 L.Ed.2d 1069 , 1085 n. 16 (1974). Only after these recitals and in the context of considering the appropriateness of metropolitan relief, the Supreme Court stated: "[0]ur assumption, arguendo... that state agencies did participate in the main tenance of the Detroit system, should make 3 • # it is clear that it is not on this point that we part company." Milliken v. Bradley, U.S. , 41 L.Ed.2d 1069, 1092 (197471 Thus, the Opinion of the Supreme Court does not support the contention of the State defendants that the Court reversed the findings of constitutional violations against the defendants Milliken, et al. In fact, the Supreme Court accepted the findings of the district court and the Sixth Cir cuit with respect to the state involvement in the Detroit-only violation. The State defendants attempt to tie the logic of their reasoning to speculation as to the Supreme Court's action denying plaintiffs motion to require each party to bear its own costs in that Court merely demonstrates the slender reed on which their argument rests. Speculation of this sort is perhaps as weak as speculation as to the Court's reasons for ,the denial of a petition for certiorari. The State defendants' central role in this litigation is highlighted by the history of the case and Michigan's brand of interposition. The Michigan Legislature enacted and the Governor signed into law, Act 48, Public Acts of 1970. The effect of Section 12 of this Act was to rescind for at least one year, the attempt made by the Detroit Board of Education to achieve integration in some of its high schools. The Sixth Circuit stated: " [w]e hold §12 of Act 48 to be unconstitu tional and of no effect as violative of the Fourteenth Amend ment." Bradley v. Milliken, 433 F.2d 897, 904 (1970). This holding was not overturned by the Supreme Court. See Milliken v. Bradley, ____ U.S. , 41 L.Ed.2d 1069, 1094(1974). — In fact they quite deliberately fail to advise this Court that they made almost the precise same argument to the Sicth Circuit, with respect to what they thought the cost dis pute and result in the Supreme Court meant. They sought to have the Sixth Circuit retax costs in that Court (it has pre viously ordered each side to bear its own costs). On December 20, 1974, the Sixth Circuit, en banc without a single dissent rejected their view and refused to retax costs. A copy of the opinion is attached hereto as Exhibit A. -4- # # These state defendants are as necessary now to the relief state of the proceedings in this case as when the Sixth Circuit determined them to be "proper parties" in 1970. See' Bradley v. Milliken, 433 F.2d 897, 905 (6th Cir. 1970). In that appeal the district court, on these same defendants' motion, dismissed them as parties. Plaintiffs appealed and argued that at the very least they might be needed for relief. We pointed out then and now that many times the Courts have been required to add State officials as parties to insure compliance with its orders in school cases. Just as Judge Roth, when it came time to order the purchase of transportation equipment, or require other payments by State defendants, found it necessary to add the State Treasurer, Allison Green, so too this Court will require the presence of State defendants as parties. If any one of them were to be let out of the case, and this Court then decided they were needed to assist in 9remedy, these same lawyers would scream that due process was violated in that an order had been entered which affected them at a time they were not parties. What defendants would have this Court do is fall into a trap so that the defendants might fill their "error bag." 2/ THE ELEVENTH AMENDMENT DOES NOT BAR THE PAR TICIPATION OF THE DEFENDANTS MILLIKEN, ET AL. IN EQUITABLE RELIEF FROM CONSTITUTIONAL VIOLATIONS. These defendants also assert that the Eleventh Amendment prohibits the expenditure of public funds from the State Treasury, in order to comply with orders of a Federal Court. See Edelman v. Jordan, 415 U.S. 657 (1974). Appar ently, at this juncture, the defendants Milliken,et al. are — The record reflects the Governor is an ex officio member of the State Board of Education. He signed Act 48 into law and he, after the recall of Detroit Board members, ap pointed a majority of the interim members of that Board. Act 48, of course, not only rescinded the Board’s plan for pupil assignment, it rescinded integrated regions and set up segre gated regional boundaries. It also set up segregation by pupil assignment methods. Bradley, supra, 433 F.2d 897, 901 (1970) . -5 # anticipating an order against them for the purchase of bus ses or other expenditures to implement the future Detroit- only remedy. These defendants conclude from Edelman that: [I]t is crystal clear, based on the authority of Edelman' v. Jordan, supra, that where, as here, the State of Michigan has not consented to this suit in federal court, the federal courts may not compel defendants Milliken, et al. to provide State funds from the State Treasury to pay for the acquisition of busses for a Detroit-only desegregation remedy. Brief of Defendant Milliken, et al., in support of their Motion to Dismiss, at 11. These defendants, however, have overlooked the important distinction the Court made in Edelman with respect to prospective relief. After discussing a series of cases, the Court concluded: But the fiscal consequences to state treasuries in these cases were the necessary I result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their of ficial conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra. Edelman v. Jordan, U.S. , 39 L.Ed.2d 662, 675 (1974). The argument of the defendants Milliken, et al. that the Eleventh Amendment precludes Federal courts from compel ling the payment of State funds from the State Treasury is based on a misapprehension of the jurisdictional nature of the Amendment. The Eleventh Amendment provides: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. The Amendment was proposed by the Congress and ratified by the states in response to the Supreme Court's decision in Chisolm v. Georgia, 2 Dali. 419 (1793), in which the Court held that 6 # # federal jurisdiction under Article III of the Constitution, encompassed a suit brought against a non-consenting state by citizens of another state. Thus the Eleventh Amendment was intended to clarify the intent of the Framers of the Consti tution and to restrict the language of Article III, Section 2 which states that the federal judicial power shall extend to "controversies... between a state and citizens of another state." The Eleventh Amendment limitation on suits against states is different than the limitations arising under the common law doctrine of sovereign immunity. While sovereign immunity, where it applies, protects states from suit in any forum absent consent, the Eleventh Amendment merely places jurisdiction limitations on federal courts. Justice Marshall, in his concurring opinion in Employees v. Department of Public Health and Welfare, 411 U.S. 279, 294 (1973), articulatedI this distinction: The root of the constitutional im pediment to the exercise of the federal judicial power in a case such as this is not the Eleventh Amendment but Art. Ill of our Constitution.... ■k k * This limitation upon the judicial power is, without question, a reflection of concern for the sovereignty of the States, but in a particularly limited context. The issue is not the general immunity of the States from private suit - a question of the common law - but merely the susceptibility of the States to suit before federal tribunals. In Edelman v. Jordan, U.S. , 39 L.Ed.2d 662 (T974), the Court underscored the jurisdictional nature of the 3/Eleventh Amendment. 3/ ...[I]t has been well-settled since the decision in Ford Motor Co. v. Department of Treasury, [323 U.S. 459 (1945)] that the Eleventh Amendment defense sufficiently par takes of the nature of a jurisdictional bar so that it need not be raised in the trial court. Edelman, supra, at 39 L.Ed.2d 681. -7 • • One limited purpose of the Eleventh Amendment is to minimize the tensions of federalism "inherent in making one sovereign appear against its will in the courts of the other." Employees v. Department of Public Health and Welfare, supra, 411 U.S. at 294 (Marshall, J. concurring). The very object and purpose of the 11th Amendment were to prevent the indig nity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties. It was thought to be neither becoming nor convenient that the several states of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons, whether citizens of other states or aliens, or that the course of their public policy and the ad ministration of their public affairs should be subject to and controlled by the mandates of judicial tribunals without their consent and in favor of individual interests. In re Ayers, 123 U.S. 443, 505-06 (1887). The Amendment there- fpre denies federal courts the jurisdiction to decide certain rights and liabilities when asserted against a state. The jurisdictional bar of the Eleventh Amendment is not absolute, however. A long line of cases, beginning with Ex parte Young, 209 U.S. 123 (1908), has established that suits for injunctive relief against state officials may be heard in federal courts, consistent with the Constitution, where the complaint is that the official, acting in his capacity as agent of the state, has engaged in unauthorized or unconstitu tional conduct. In Ex parte Young, supra, and subsequent cases, the Supreme Court harmonized this doctrine and the Eleventh Amendment by holding that such a suit is against the individual and not against the State, in spite of the fact that injunctive relief ordered in such cases may require the 4/ expenditure of state funds and other state action. 4/ The Court in Edelman (39 L.Ed.2d 675) explicitly noted that the kinds of relief authorized by Ex parte Young would result in the expenditure of state funds: State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the State Treasury than if they had been left free to pursue their previous course of conduct. -8- Edelman v. Jordan, supra, marked a clarification of the doctrine first enunciated in Ex parte Young. In Edelman the Supreme Court held that while suits for prospec tive injunctive relief against a state official are not barred by the Eleventh Amendment, at least certain actions which seek 5/ the award of an accrued monetary liability are prohibited. The Court found that there were essentially two causes of action in Edelman: one for injunctive relief, and one for monetary damages. On the facts before it, the Court held that federal courts do not have jurisdiction to hear 6/ certain causes of action which closely resemble actions for 5/ It is notable that while the Court in Edelman prohibits some kinds of monetary awards against states, nowhere does it state that no form of expenditures may be ordered. Indeed, the Court specifically recognizes that one of the in evitable consequences of the adjudication of cases involving state officials as defendants is that state funds will have to be expended. The Court points out, however, that, n[s]uch an ancillary effect on the state treasury is a permissible... consequence of the principle announced in Ex parte Young, supra." 39 L.Ed.2d 675. £/ As Mr. Justice Marshall, in dissenting in Edelman, noted (39 L.Ed.2d 690 n.2), the facts in Edelman did not pre sent the question of whether the Fourteenth Amendment in any way limits, or authorizes the Congress to limit, such immunity as is conferred by the Eleventh Amendment. See, e.g., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (Supp. II 1972) which authorizes suits by private individuals and the United States against state and local governments (42 U.S.C. 2000e(a)) for relief from employment discrimination, including back pay (42 U.S.C. 2000e-5). See also Curtis v. Loether, 415 U.S. 189, 196-197 (1974). While there are considerations which suggest that the Eleventh Amendment is limited in part by the Fourteenth, and that issue must eventually be decided (perhaps in a case seek ing "damages" for Fourteenth Amendment violations), we do not feel that the Court must resolve that question to decide the issue presented in this case. Of course, Section 718 of the Education Amendments presents this same question in that in effectuating the Fourteenth Amendment, Congress expressly auth orized an award of attorney's fees against State school authorities, cf. Mobil Oil Corp. v. Kelley, 493 F.2d 784 (Fifth Circuit, 1974) n.l at 786; Boston Chapter NAACP, Inc, v. Beecher, 504 F.2d 1017, 1028-29 (First Circuit, 1974); Woods v. Strickland, 43 U.S.L.W. 4293 (1975). -9 monetary damages. "[A] suit that seeks the award of an ac crued monetary liability which must be met from the general revenues of a State..." is beyond the jurisdiction of the federal courts. Edelman v. Jordan, supra, 39 L.Ed.2d 673. The issue now before this Court is not, as it was in Edelman, whether the district court had jurisdiction under Article III of the Constitution, to decide the case. As noted above, Ex parte Young established and Edelman confirmed the jurisdiction of federal courts to hear actions for in junctive relief against state officials. Rather, the question presented here concerns whether a federal court, having juris diction to decide a case, may order defendants to take action which will cost them money. To state the question is to make plain that Edelman itself has already, in plain and simple language, answered the question, "yes." In choosing to defend an action properly brought in i a federal forum, defendants must assume responsibility for the normal incidents of such a suit, including the cost of prospective relief, Court costs, witness fees, and attorneys' Vfees. V Indeed it follows inevitably from the doctrine of Ex parte Young, 209 U.S. 123 (1908), that states will be requirecTTo expend funds in the court of litigating suits such as those now before this Court. 10 # CONCLUSION The defendants suggest on the one hand that they give large sums of money to the Detroit school district and that it is wealthy compared to other dis tricts. Such a simplicitic approach to school finance can only be intentional in light of the extensive exper ience school authorities throughout the nation have had with big city systems. Large numbers of dollars may show but the far higher per pupil costs because of the educa tion deficits suffered by minority and poor youngsters together with municipal tax over burden make such figures entirely misleading. However, the absurdity of their argument (footnore 2 at page 7 of their supplemental brief) is shown by the statement that the Detroit district has cut back on expenditures by "eighty million dollars" and that their remains a projected "one-hundred and eighty million dollar deficit that will have . . . to be elimi nated by both further reductions in expenditures and obtain ing additional revenue." Somehow or another they leap from that point to the argument that the State Board and State Treasurer should have no responsibility for assisting Detroit in the desegregation process. Not since the French Revolution has so cavalier a declaration of "let them eat cake" been made by public officials. This Court and the parties are faced with a great responsibility for developing a sound and effective remedy to desegregate the Detroit public schools within the limits of the constitutional authority granted by the United States Supreme Court. Even though such plan may be on an interim basis, the interests of the children involved must be paramount. Unfortunately, it would seem that the state officials have no interest in Detroit’s children, obviously because so many of them are black. -11- • # In conclusion, plaintiffs respectfully submit that there is absolutely no basis for the defendants' reading of the Supreme Court's Decision with respect to the respons ibilities of state school authorities for constitutional violations within the Detroit school district. The Supreme Court has accepted the findings of the District Court and the Sixth Circuit Court of Appeals with respect to the state defendants. Plaintiffs have never suggested that Allison Green is charged with any of the de_ jure violations. He was made a party simply because the defendants insisted that it was necessary in order to obtain an order for pay ment of state funds for both the desegregation panel and the purchase of transportation equipment. That order for purchase of transportation equipment was not directed at metro relief only. While the order was vacated by the Sixth Circuit in its en banc decision, it was with the expressed suggestion that it could be reinstated when it was necessary. Upon the reinstatement5the defendant Allison Green will need to remain a party. One further point illustrates the necessity for keeping the state defendants as parties in the action. Under Michigan law the State Superintendent of Public Instruction of the State Board had, and has, the power to require each board of education and the officers there of to observe the laws relating to schools, and to compel the observance of such law by appropriate legal proceedings, 'instituted in the proper courts under the direction of the Attorney General. See MSA 15.2352. State law also imposes the duty on the Superintendent of Public Instruction to do all things necessary to promote the welfare of the public schools and public education institutions. MSA 15.3355 sets forth that no separate school or department should be kept for any person or persons on account of race or color. Ultimately, the State Superintendent of Public Instruction 12 # # has the power to remove from office, upon satisfactory proof and proper notice, any member of a local school board who shall have persistently and without sufficient cause refused and neglected to discharge any of the duties of his office, which obviously would include complying with the probitions against racially separate schools or the orders of this Court. See MSA 15.3253; MSA 15.3355. With regard to the Eleventh Amendment argument we respectfully submit that it is simply not applicable to the prospective relief situation before this Court. Plaintiffs submit that this Court should not only deny state defendants’ motion but that it should consider requir ing these defendants to assume a full measure of their own affirmative duty to end school segregation. RATNER, SUGARMON, LUCAS & SALKY 525 Commerce Title Building Memphis, Tennessee 38103 JOHN A. DZIAMBA 746 Main Street P.O. Box D Willimantic, Connecticut 06226 ELLIOTT S. HALL 2755 Guardian Building 500 Griswald Avenue Detroit, Michigan NATHANIEL JONES . General Counsel N.A.A.C.P. 1790 Broadway New York, New York 10019 J. HAROLD FLANNERY PAUL DIMOND WILLIAM E. CALDWELL Lawyers' Committee For Civil Rights Under Law 733 15th Street, N.W. Suite 520 Washington, D.C. 20005 Counsel for Plaintiffs -13- # CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Plaintiffs’ Brief In Opposition To The Motion To Dismiss By Defendants’ Milliken, Et Al. has been served on all counsel of record by depositing same to them at their office by United States mail, postage prepaid, this 3 day of March, 1975. -14- Nos. 72-1809-14 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RONALD BRADLEY, et al., Plaintiffs-Appellees, v. WILLIAM G. MILLIKEN, Governor of Michigan, etc.; Board of EDUCATION OF THE CITY OF DETROIT, Defendants-Appellants, Iand DETROIT FEDERATION OF TEACHERS LOCAL 231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Defendant-Intervenor-Appellee, and ALLEN PARK PUBLIC SCHOOLS et al., Defendants-Intervenors-Appellants and KERRY GREEN et al., Defendants-Intervenors-Appellees. ) > ) > ) ) ) ) ) ) ) ) ) ) / ) ) ) ) ) > ) ) ) ) ) ) > ) ) ) ) l-~t ji u { ̂ ; U b* . r. HEHMV ' K ORDER Jerk Before PHILLIPS, Chief Judge, and WEICK, EDWARDS, CELEBREZZE, PECK, McCREE, MILLER, LIVELY and ENGEL, Circuit Judges. Nos. 72-1809-14 - 2 In the decision of this court, reported at 484 F.2d 215 (1973), it was ORDERED that no costs be taxed and that each party bear his own costs in the Court of Appeals. The Supreme Court reversed the decision of this court in certain particulars in an opinion reported at 42 U.S.L.W. 5249 (July 25, 1974) and remanded the causes to this court for further proceedings in conformity with the opinion of the Supreme Court. This court has remanded the causes to the United States District Court for the Eastern District of Michigan for further proceedings in conformity with the opinion of the Supreme Court.' The Supreme Court taxed costs in that court against Ronald Bradley and Richard Bradley, by mother and next friend, Verde Bradley, in the sum of $20,329.60. Motions have been filed in this court for re- faxation of costs in the Court of Appeals. This court con strues the decision of the Supreme Court to reverse the this decision of/court in certain particulars but that the Supreme Court did not reverse the decision of this court with respect 4 Nos. 72-1809-14 - 3 to the taxation of costs in the Court of Appeals. This remains a question for determination by the Court of Appeals. the responses thereto, it is ORDERED that all motions for retaxation of costs be and hereby are overruled. It is further ORDERED that no costs are taxed in the Court of Appeals and that each party will bear his own costs in this court. Upon consideration of the various motions and - Entered by order of the court. i