Appellant's Petition for Rehearing and Suggestion for Hearing In Banc with Cover Letter

    H I L L ,  L E W I S ,  A D A M S ,  G O O D R I C H  6c T A I T
3 7 0 0  P E N O B S C O T  B U I L D I N G

S H E R W I N  A . H J L L  ( 1 6 0 5 - 1 9 6 1 )T H O M A S  H .  A D A M S  
E D W A R D  T.  G O O D R I C H  
G A R L A N  D D.  T A I T  
J A Y  W .  S O R G  E 
E L L I O T T  H .  P H I L L I P S  
W I L L I A M  W.  S L O C U M ,  J R .  
T H O M A S  E .  C O U L T E R  
M A R T I N  C .  O E T T I  N G 
L E E  B D U R H A M ,  J R .
W.  M E R R I T T  J O N E S ,  J R .  
R O B E R T  B . W E B S T E R  
D O U G L A S  H .  W E S T  
D A V I D  L .  R O L L  
T I M O T H Y  W.  M A S T  
T I M O T H Y  D . W I T T L I N G E R

D E T R O I T ,  M I C H I G A N  4 0 2 2 6
T E L E P H O N E  ( 3 1 3 )  9 6 2 - 6 - 4 8 5  

C A B L E  A D D R E S S :  H I L L

December 21, 1972

G L E N N  M .  C O U L T E R  
C O U N S E L

C H A R L E S  E . L E W I S  
P E R C Y  J .  P O W E R
E D W I  N J .  M E R C E R

O F  C O U N S E L

O A K L A N D  C O U N T Y  O F F I C E  
I O I  S O U T H F I E L D  R O A D  
B I R M I N G H A M ,  M I C H I G A N  4 8 0 0 9  
T E L E P H O N E  6 4 2 - 9 6 9 2

M A R K  K . W I L S O N  
P A U L  J . K R A E M E R  
V I C T O R  F.  P T A S Z N I K  
R O B E R T  J .  L E I D I C H  
R O B E R T  J .  R O S S  
R I C H A R D  E . S M O K E

Mr. James A. Higgins, Clerk 
United States Court of Appeals 

for the Sixth Circuit 
Federal Building 
Cincinnati, Ohio 45202

Re: Bradley, et al v. Milliken, et al
Nos. 72-1809 - 72-1814

Dear Mr. Higgins:
Enclosed for filing please find Petition of Appellant 

Grosse Pointe Schools for Rehearing and Suggestion for Hear­
ing In Banc, together with 25 copies thereof.

Attached to the Petition is the Certification of ser­
vice on all counsel.

Very truly yours
HILL, LEWIS, ADAMS, GOODRICH & TAIT

DHW:cas 
Enclosures
cc : all counsel



IN THE UNITED STATES COURT OF APPEALS 
IN THE SIXTH CIRCUIT

Nos. 72-1809 - 72-1814

RONALD BRADLEY, et al,
Plaintiffs-Appellees,

vs .
WILLIAM G. MILLIKEN, Governor of

Michigan, etc.; BOARD OF EDUCATION 
OF THE CITY OF DETROIT,

Defendants-Appellants,

and
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. /
PETITION OF APPELLANT GROSSE POINTE 

SCHOOLS FOR REHEARING AND 
SUGGESTION FOR HEARING IN BANC



INTRODUCTION

Now comes Grosse Pointe Schools, one of the Defendant 
Intervenor school districts and an Appellant in this matter, and 
respectfully petitions this Court for a rehearing of these appel­
late proceedings and this Court's decision of December 8, 1972. 
Grosse Pointe Schools further respectfully suggests that a re­
hearing in banc would be appropriate under the circumstances of 
this case.

Grosse Pointe Schools reserves and reaffirms its argued 
position on each of the points presented by it in the Brief of In­
tervenor School Districts, filed by it jointly with all other inter­
vening school districts which were Appellants in this matter. Addi­
tionally, Grosse Pointe Schools makes specific reference to and in­
corporates herein by reference the Petitions for Rehearing currently 
being filed in this matter by such other Appellant school districts, 
as well as the Petition for Rehearing currently being filed by the 
State Defendants.

Grosse Pointe Schools believes rehearing should be granted 
for the following principal reasons:

1. Even assuming arguendo that the State of Michigan 
has committed each of the constitutional violations described in 
Section III(b) of the Court's decision, that such acts are causally



related in any way to de jure segregation in the Detroit School 
System or in the Detroit Metropolitan area, is not supported by 

the record.
2. The Court's decision affirming the inadequacy of a 

Detroit only remedy and the necessity of a Metropolitan Plan of 
desegregation is inconsistent with this Court's previous decisions, 
as well as the decisions of other Federal Courts.

ARGUMENT

1. The Court has affirmed a finding that the "State 
of Michigan", through the named State Defendants, committed five 
specified constitutional violations:

(a) Pre-1962 supervision of discriminatory site
selections; ,

(b) Bonding authority discrimination;
(c) Transportation funds discrimination;
(d) Public Act 48;
(e) Approval of Transportation of Carver School students. 

Although Grosse Pointe Schools disagrees that the specified actions 
amounted to constitutional violations, it is assumed for purposes 
of this argument that the Court is correct in such findings. Even 
though assumed to be correct, however, Grosse Pointe Schools further 
disagrees with the conclusions drawn therefrom. The Court has 
found that the actions of the State Defendants "...are significant,

2



pervasive and' causally related to the substantial amount of segre­
gation found in the Detroit school system...." (slip opinion, p.
49). This statement is simply not supported by the record in this 
cause. There has been no showing whatsoever that these specific 
acts of the State Defendants had any causal connection with the 
segregation found to exist in the Detroit schools. The Court fur­
ther stated: "the record contains substantial evidence to support
the finding...that segregation of the Detroit public schools...was 
validated and augmented by the ...Michigan State Board action of 
pervasive influence through the system." (slip opinion, p. 50).
To the contrary, it is submitted that the record is devoid of any 
such evidence, except as the Court may have imputed other acts of 
the Detroit Board of Education to the State Board of Education.
In addition to the absence of any evidence of a causal connection 
between the actions of the State Defendants and segregation within 
Detroit, the record is even more obviously lacking with respect to 
the actions of the State Defendants and their effect throughout the 
Metropolitan area. Indeed, the Plaintiffs' Complaint and the trial 
before the District Court were limited solely to the issues of the 
segregated conditions within the Detroit Public Schools. Because 
the State of Michigan has plenary power over local school districts, 
the Court found that it had the duty to disregard school district 
boundary lines for the purpose of providing an effective desegregation 
plan to eliminate the racial identifiability of the Detroit Schools. 
The Court concluded:

3



"The- power to disregard such artifical barriers 
is all the more clear where, as here, the State 
has been guilty of discrimination which had the 
effect of crediting a nd~~ma in tanning racial segre­
gation along school district lines." (slip 
opinion, p. 65, emphasis added)

Again, it is most respectfully submitted that the Court has read 
into the record that which does not exist. The District Court 
stated in its June 14, 1972 Order that:

"...the Court has taken n_o proofs with respect 
to the establishment of the boundries of the 
86 public school districts in the Counties of 
Wayne, Oakland and Macomb..." (emphasis added)

No testimony was taken or evidence presented as to the effects of 
the actions of the State Defendants upon the racial make-up of the 
schools in the Detroit Metropolitan area. No testimony was taken 
or evidence presented as to whether any school district other than 
Detroit was de jure segregated as a result of the actions of the 
State Defendants., Grosse Pointe Schools is aware of the statement 
by the Court that its conclusions are amply supported by the record. 
With all due respect to the Court, however, it has misapprehended 
the content of the record to which it refers.

The actions of the State Defendants, if assumed to be 
constitutional violations, related only to the operation of the 
schools in the City of Detroit and there is nothing from the nature 
of the actions themselves which could be presumed by the Court 
to naturally or probably lead to or tend to cause a segregated 
condition in one school district vis-a-vis surrounding school dis­
tricts. In summary, even if it is assumed that all schools within

4



the Detroit school system are de jure segregated, either by action
of the Detroit Board of Education or the State Defendants, or both, 
it is impossible to conclude from the record in this cause that 
any segregation which the Court might find to exist was created or 
maintained along school district lines as a result of actions of 
the State Defendants.

2. The Court has affirmed the District Court's finding 
that no "Detroit only" plan could achieve the desegregation of the 
Detroit Public School System and it has quoted with approval the 
District Court's findings of March 28, 1972 which hold that a 
Detroit only plan would make Detroit a "racially identifiable" 
system and that it would be "perceived as Black", thus making de­
segregation impossible. The Court has further held that "big city 
school systems for blacks surrounded by suburban school systems 
for whites" is constitutionally impermissible and is a "problem" 
which must be solved by disregarding school district boundary lines.

As stated above, the findings that actions of the State 
Defendants had the effect of creating and maintaining racial segre­
gation along school district lines are totally unsupported by the 
record and patently erroneous. It is respectfully submitted that 
this is a conclusion that has been begged from the Court's realiza­
tion that there exists an enormous social problem which the Court 
feels a compelling need to solve. In the Court's quest to find 
evidence necessary to satisfy the clearly established propostion 
that there must be a legally cognizable violation found to exist

5



as a prerequisite to the granting of equitable relief, the Court 
has either presumed that the five areas of constitutional viola­
tions found to have been committed by the State Defendants were 
causally connected with the problem it wishes to solve, or the Court 
has simply misapprehended what is contained in the record in this 
regard. That Detroit is a predominately black school system and 
that most suburban school districts are predominately white is un- 
controvertable. That they would not be any the less "perceived" or 
"identifiable" as black or white, or that there would not be any 
the less a "problem", even if the alleged actions of the State had 
never occurred, is also undeniable. Although the Court has sought 
legal justification for judicial intervention in this case, it is 
submitted that unless this Court is to abandon its previous decisions 
in Dea-1 1 , Deal II , Goss , Davis , and most recently Mapp , the de­
cision of this Court of December 8, 1972 should not stand as written.

The Court has emphasized that it does not consider school 
district boundary lines as being sacrosanct or inviolate in the face 
of a compelling need to remedy a deprivation of Constitutional rights. 
We agree. Nor did we argue to the contrary in the Brief of the 
Intervenor School Districts filed with the Court. What was argued, 
however, was the proposition that in any event the remedy (disregard­
ing district boundary lines) must be related to the wrong that has 
been found to exist. This could not have been more clearly stated 
than in Swann , at page 16:

1. Deal v. Cincinnati Bd. of Educ ., 369 F.2d 55 (CA6 , 19 6 6).
2. Deal v. Cincinnati Bd. of Educ., 419 F.2d 1387 (CA6, 1969).
3. Goss v. Bd. of Educ. of Knoxville, Tenn. , 444 F.2d 632

ICA6, 197ITT ~ '
4. Davis v. School Dist. of the City of Pontiac, 433 F .2d 573

Tc a g t t97Tt : ~ ..... . ~
5. Mapp v . Bd. of Educ. of Chattanooga, Slip Opinion, Oct. 11, 1972.
6. Swann v. Charlotte-Meaklenberg Bd. of Educ., 402 U.S. 1 (1.971) .

6



"...it is important to remember that judicial powers 
may be exercised only on the basis of a constitu­
tional violation. Remedial judicial authority does 
not put judges automatically in the shoes of school 
authorities whose powers are plenary. Judicial 
authority enters only when local authority defaults.
...As with any equity case, the nature of the vio­
lation determines the nature of the remedy." (emphasis 
added)

The nature of the violation found to exist in this case had nothing 
whatsoever to do with the Metropolitan remedy which the Court 
wishes to impose, as a means of correcting the racial identifiability 
of the black city school district vis-a-vis the white suburban dis­
tricts. We do not believe that it could be seriously argued that the 
demographic composition of the City of Detroit and its suburban 
communities would be any different today if the discriminatory 
acts alleged to have been committed by the State Defendants had 
never taken place. Yet it is the demography of the entire Metro­
politan Detroit area that has been made the subject of the Court's 
equitable powers; not the effects of the State's Constitutional 
violations (if any) which might ultimately be found to be causally 
related to the acts of the State Defendants.

On October 11, 1972, this Court issued its decision in 
Mapp v, Bd. of Educ. of Chattanooga, supra, in which the Court 
approved a finding that certain schools in Chattanooga would not 
be subject to a racial balance order because the District Court had 
found that the racial imbalance with respect to such schools was 
not the result of past or present discrimination. This Court held:

7



"We do not believe that Boards of Education can be 
faulted for the residential patterns of a city, 
or for the heavy concentration of black or white 
population in certain areas, or for the mobility 
of both races. These are matters over which the 
school system has no control, neither does it have 
authority to assume such control. It has always 
been the practice in the American educational system, 
until recently, to locate schools near residences, 
and these schools have been known as neighborhood 
schools. Neighborhood schools enabled parents of 
children to participate in the school's operation, 
enabled the children to engage in other activities 
and to associate with their friends and neighbors, 
and even to walk to and from school. Destruction of 
the neighborhood school system deprives both parents 
and their children of these advantages, and can even 
lower the quality of education." (slip opinion, 
p. 9)

It is respectfully submitted that this, and other portions of 
the Court's decision in Mapp, are totally inconsistent with the 
opinion of this Court in the instant matter. Indeed, the Court's 
decision is inconsistent with its prior decision in this same 
case7, wherein the Court stated:

"The issue in this case is not what might be a 
desirable Detroit School Plan, but whether or 
not there are constitutional violations in the 
school system as presently operated, and, if 
so, what relief is necessary to avoid further 
impairment of constitutional rights."
The Court has apparently conclusively determined that 

judicial relief on a metropolitan scale is in all events necessary 
because anything less "...would result in an all black school 
system immediately surrounded by practically all white suburban

7. Bradley v. Milliken, 438 F.2d 945 (CA6, 1970) at pg. 946.

8



school systems, with an overwhelmingly white majority population 
in the total metropolitan area", (slip opinion, page 56). If this 
is the case, and if this is the real underlying reason for the 
Court's decision, it is respectfully submitted that, rather than 
postulate the effects of isolated acts of Constitutional violations 
by certain State agencies in an effort to conform the legal propo-

gsitions upon which the decision is based with the progeny of Brown /
the Court should declare the existence of a racial imbalance as
between schools in a single school district and as between several
school districts to constitute the constitutional violation per 

9se.

CONCLUSION

Rule 35 of the Federal Rules of Appellate Procedure 
provides that a rehearing in banc will not ordinarily be granted 
except:

(1) When consideration by the full Court is necessary 
to secure or maintain uniformity of its decisions, or
(2) When the proceeding involves a question of excep­
tional importance.

On November 28, 1972, this Court granted a rehearing in banc 
of the decision in Mapp, supra. Because of the inconsistency of 
this Court's decision in the instant case with that of Mapp, as
well as other decisions of this Circuit cited above, it is

Brown v. Board of Educ . of Topeka, 347 U.S. 483 (1954) .
9. Cf. Spencer v. Kugler, 326 F.Supp. 1235 (N.J. 1971), aff'd.

404 U.S. 1027(1972).

9



apparent that rehearing in banc should be granted so that
uniformity of decisions within the Circuit may be maintained. 
Additionally, the exceptional importance of this case is also 
apparent. It involves novel and complex issues of first impres­
sion in this Circuit, dealing with the education of almost 1,000,000 
children and the potential expenditure of enormous amounts of public 
funds to implement a Metropolitan plan of desegregation. The decision 
of this Court of December 8, 1972 is, as frankly noted by the Court, 
in direct conflict with the 4th Circuit in Bradley v. School Bd. of 
Richmond, 462 F.2d 1058 (4th Cir. 1972), petition for cert, filed 
41 U.S.L.W. 3211 (U.S. Oct. 5, 1972). The decision of this Court 
is also in direct conflict with the 10th Circuit in Keyes v .
School District No. 1, Denver, Colorado (10th Cir. 1971) cert, 
granted 404 U.S. 1036.

fully requests that this Court order this Appeal to be reheard 
and it suggests that a rehearing before the Court sitting in banc 
would be appropriate under the circumstances.

For the foregoing reasons, Grosse Pointe Schools respect-

Respectfully submitted,
HILL, LEWIS, ADAMS, GOODRICH & TAIT

December 21,
Dated:

Intervenor Grosse Pointe Schools 
3700 Penobscot Building 
Detroit, Michigan 48226 
962-6485

10



CERTIFICATION
This is to certify that a copy of the attached Petition 

of Appellant Grosse Pointe Schools for Rehearing and Suggestion for 
Hearing In Banc, filed by the Grosse Pointe Public School System, 
has been served upon counsel of record by United States Mail, pos­
tage pre-paid, addressed as follows:
LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
525 Commerce Title Building 
Memphis, Tennessee 38103

WILLIAM M. SAXTON 
JOHN B. WEAVER 
1881 First National Bldg. 
Detroit, Michigan 48226

NATHANIEL R. JONES 
General Counsel, NAACP 
1790 Broadway 
New York, New York 10019
E. WINTHER MC CROOM 
3245 Woodburn Avenue 
Cincinnati, Ohio 45207
JACK GREENBERG 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019
J. HAROLD FLANNERY
PAUL R. DIMOND
ROBERT PRESSMAN
Center for Law & Education
Harvard University
Cambridge, Mass. 02138
DAVID L. NORMAN 
Department of Justice 
Washington, D.C. 20530
ROBERT J. LORD
8388 Dixie Highway
Fair Haven, Michigan 48023
RALPH GUY
United States Attorney 
Federal Building 
Detroit, Michigan 48226

EUGENE KRASICKY 
GERALD YOUNG
Assistant Attorney General 
Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913
THEODORE SACHS 
1000 Farmer
Detroit, Michigan 48226
ALEXANDER B. RITCHIE 
1930 Buhl Building 
Detroit, Michigan 48226
BRUCE A. MILLER 
LUCILLE WATTS
2460 First National Building 
Detroit, Michigan 48226
RICHARD P. CONDIT
Long Lake Building
860 West Long Lake Road
Bloomfield Hills, Mich. 48013
KENNETH B. MC CONNELL 
74 West Long Lake Road 
Bloomfield Hills, Mich. 48013
DONALD F. SUGERMAN
2460 First National Building
Detroit, Michigan 48226



THEODORE W. SWIFT
900 American Bank & Trust Bldg.
Lansing, Michigan 48933
FRED W. FREEMAN 
CHARLES F. CLIPPERT 
1700 N. Woodward Avenue 
P. 0. Box 509
Bloomfield Hills, Mich. 48013
GEORGE T. ROUMELL, JR.
LOUIS D. BEER
7th Floor
Ford Building
Detroit, Michigan 48226

JOHN F. SHANTZ
222 Washington Square Bldg.
Royal Oak, Michigan 48067
ERWIN B. ELLMANN
1800 Penobscot Building
Detroit, Michigan 48226
CHARLES E. KELLER
1600 Penobscot Building
Detroit, Michgian 48226

Respectfully submitted,
HILL, LEWIS, ADAMS, GOODRICH & TAIT

Douglas H. West 
3700 Penobscot Building 
Detroit, Michigan 48226

Dated: December 21, 1972.