Brief of Defendants-Appellants in Response to Motion to Dismiss

    No. 72-1065

IN THE
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al
Plaintiffs-Appellees

vs
WILLIAM G. MILLIKEN, Governor 
of the State of Michigan, et al,

Defendants-Appellants.

Appeal from the District Court of the United States 
for the Eastern District of Michigan 

Southern Division

BRIEF OF DEFENDANTS-APPELLANTS, WILLIAM G. 
MILLIKEN, FRANK J. KELLEY, THE STATE BOARD OF 
EDUCATION AND JOHN W. PORTER, IN RESPONSE TO 
MOTION TO DISMISS.

FRANK J. KELLEY 
Attorney General

Business Address: Robert A. Derengoski 
Solicitor General

7 Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913

Eugene Krasicky 
Assistant Attorney General
Attorneys for Defendants-Appellants





TABLE OP CONTENTS

Table of Cases — -----------------------------
Statement of the Issue -----------------------
Statement of Facts --------------- — ---------
Argument----------- ------ --------------------

I. The order is a final decision-------- -
II* Taylor is unsound and should not be

followed--- ---------------------------

TABLE OF CASES

Bradley v Milliken, 438 F2d 9^5 (1971) ------
Bradley v School Board of City of 
Richmond, Virginia, 51 FRD 139 (ED va, 1970)-
Same,   F2d ___, January 5, 1972 —  ---- — —
Brown Shoe Co v United States, 370 US 294 (1962)
Board of Education of Oklahoma City Public 
Schools v Dowell, 275 F2d 1 5 8 ------- --------
Board of Public Instruction of Duval County,
Florida v Braxton, 326 F2d 6l6, cert den
377 US 924 (1964) ------------- -------------- 13>

Dickinson v Petroleum Conv Corp, 338 US 507,
508 (1950) ----------------------------------
Gillespie v United States Steel Corp,
321 F2d 5 1 8-- -------------------------------

Kelley v Metropolitan County Board of 
Education of Nashville, 436 F2d 8 5 6 ------- —

Kelly v Greer, 354 F2d 209 --------------------

1 
1
2

11

18

6, 20 
20

8, 16 

16

14, 16 

4

10, 16

10
16

x



9

Lee v Macon County Board of Education,
267 P Supp 458 (MD ala, 1967)--- --------------- 5
Lansing District v State Board of Education,

367 Mich 591 (1962) — ----- -------------— ------ 5
Mapp v Board of Education of Chattanooga,
No. 14, 444, 295 F2d 6 1 7------- ------- ---------12, 13, 17
McCoy v Louisiana State Board of Education,
332" F2d 9 1 5 ------------------------------------- 15

Penn School District No. 7 v Lewis Cass 
Intermediate School District Board of
Education, 14 Mich App 109, 120 (1968) ---------  5
Stamicarbon, N.V. v Escambia Corp, 430 F2d 920.--  15
Robinson v Shelby County Board of Education,
Nos. 20123 and 20124 ----- ---------------------—  17
Swann v Charlotte-Mecklenburg Bd of Ed,
402 US 1; 91 S Ct 1267 ( 1971)------ ------------ 6
,, 1 O'P n n  r~\ f  1\7 o w  R n n V i P  1 1

X U J  Ju 'JA  V Ju JV U i. U  W j - U U V A ^ U  ^  ^  + -------y

288 F2d 600 — --- ------— -------------------*--- 12> !3S
Trahan v Lafayette Parish School Bd,
330 F Supp 450 (WD La, 1971) ----------- — -----  7

United States v Associated Air Transport, Inc.
256 F2d 857 -------- ---------------------------- 14

US v Board of School Commissioners, Indianapolis,
332 F Supp 655 --- ------------------------------- 6

Welling v Livonia Board of Education, 382 Mich 620 5
In re Wingreen Co, 412 F2d 1048 --------------- ■ I4

Workman v Board of Education of Detroit,
18 Mich 399 (1869) ------------ ---------------- 6

ii

1 6, 1'



STATEMENT OF THE ISSUE

Is the order dated November 5, 1971, which 
incorporates the findings of fact and conclusions of 
law that the state of Michigan has committed acts which 
have been causal factors in the de_ jure segregated 
condition of the Detroit public schools contained in 
the District Court's Ruling on the Issue of Segregation, 
and which directs these defendants to submit a metro­
politan plan of desegregation, an appealable decision or 
order?

The state defendants contend "yes.



STATEMENT OF FACTS AND PROCEEDING

These defendants, collectively, will be called 
"state defendants" and individually by title of their 

offices.
The facts stated in plaintiffs' motion under 

the title of "procedural history of the litigation" are 
substantially correct and need not be amplified. The 
state defendants do not see the point of plaintiffs' 
self-serving statement, "Although plaintiffs have, from 
the outset, questioned the 'appealability' of the 
district court's order," in a procedural history of the 

litigation.
In their remarks on page 5 of their motion, under 

the heading "the substance of the order appealed from," 
plaintiffs have been somewhat less than candid, particularly 
in view of their remark on page 6 that it was permissible 
for the state defendants to insist upon a formal order, 
despite their previous waiver. On October 7, 197i} the 
state defendants prepared a proposed order reflecting 
the directions made by the district judge on October 4,
1971, and forwarded it to plaintiffs' attorneys. A copy 
of the letter of transmittal is attached hereto as 
Appendix 1. Three weeks later the state defendants' 
attorneys received a copy of a letter from plaintiffs

-2



«

attorney to Mr. Ritchie, attorney for some intervening 
defendants, in which plaintiffs’ attorney said that he 
had misplaced the proposed order, but that he would not 
approve it anyway because he wanted to be consistent.
A copy of this letter is attached as Appendix 2.

Thereafter, the state defendants’ attorneys 
submitted the order to the district judge for entry, 
with the result that the district judge prepared his 
own order, incorporating his findings of fact and 
conclusions of law, and entered it on November 5, 1971.

It appears that:
1. Plaintiffs did not want an order entered - 

without such an order the district judge's decision on 
the fundamental Issue could not be reviewed.

2. If plaintiffs were actually thinking in 
terms of waiver, they would have raised the point 
immediately upon receipt of the proposed order trans­
mitted on October 7, 1971, rather than misplacing the 
proposed order and claiming consistency three weeks 
later.

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ARGUMENT

I.
THE ORDER OF THE DISTRICT COURT ENTERED 
ON NOVEMBER 5, 1971, IS A FINAL ORDER 
WITH REGARD TO THE STATE DEFENDANTS.

In Dickinson v Petroleum Conv Corp, 338 US 507, 
508 (1950), Mr. Justice Jackson began the Court’s Opinion 
by saying:

"The only issue presented by this case turns 
on the finality of a judgment for purposes 
of appeal, a subject on which the volume of 
judicial writing already is formidable."

In the ensuing 20 years there does not appear to have been
a lessening in either volume or formidability.

The relative statutory provision is:
"The courts of appeals shall have jurisdiction 
of appeals from all final decisions of the 
district courts of the United States, the 
United States District Court for the District 
of the Canal Zone, the District Court of Guam, 
and the District Court of the Virgin Islands, 
except where a direct review may be had in 
the Supreme Court." 28 USC 1291

The decision and order of the District Court are 
unique. First, by requiring the submission of a metropolit 
plan of desegregation they grant relief for which the plain 
tiffs did not ask.

Second, under the Michigan Constitution of 1963



control over the public school system is lodged in the 
legislature and delegated by it to local school districts 
which are given plenary powers by the legislature to 
carry out the delegated functions given them by the 
legislature. Lansing District v State Board of Education, 
367 Mich 591 (1962). Welling v Livonia Board of Education. 
382 Mich 620 (1969). No power over the operation of the 
public school system is lodged in the Attorney General or 
the Governor, and the State Superintendent and State Board 
of Education have only limited powers with regard to local 
school districts, and none with regard to the unilateral 
alteration of school district boundaries or the reorgani­
sation of school districts as no such power uas ueen 
conferred upon them by the legislature. Penn School 
District No. 7 v Lewis Cass Intermediate School District 
Board of Education, 14 Mich App 109, 120 (1968). Yet, 
the District Court has not only found these defendants 
responsible in some degree for a dual school system in 
Detroit, but has ordered them to present a plan of 
desegregation which includes not only the Detroit School 
District but also an undetermined area outside of Detroit 
consisting of school districts that were not parties to 
this suit. This is not the case of Lee v Macon County 
Board of Education, 267 F Supp 458 (MD Ala, 1967), aff'd 
per curiam sub nom, Wallace v US_, 389 US 213 (1967),

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where certain state officers usurped power to interfere 
with the District Court's desegregation decree.

Third, for more than 50 years by statute the 
boundaries of the Detroit School District and of the 
City of Detroit have been coterminous. 1919 PA 65, § 3; 
1927 PA 319, Part 1, Ch 8, § 3; 1955 PA 269, § 183; MCLA 
3*10.183; MSA 15.3183. The District Court's decision and 
order are the first holding by a trial court requiring the 
submission of a "metropolitan plan" to desegregate a local 
school district in a jurisdiction where the separation of 
the races was never imposed by lav/ and where school 
district boundaries were not established for the purpose 
of separating the races or for the purpose of creating 
racially separate school systems. Contrast Bradley v 
School Board of City of Richmond, Virginia, 51 FRD 139 
(ED Va, 1970); US v Board of School Commissioners, 
Indianapolis, Indiana, 332 F Supp 655 (SD Ind, 1971)•

In Workman v Board of Education of Detroit,
18 Mich 399 (1869), the Michigan Supreme Court ruled 
that an attempt to establish a segregated district in 
Detroit violated state law.

Although, in Swann v Charlotte-Mecklenburg 
Bd of Ed, 402 US 1; 91 S Ct 1267, 1284 (1971), the Cour.t

6-



holds out the hope that there can be a final, in the 
sense of last, judgment in a case where a dual school 
system is claimed, but in the same paragraph then adds.
"This does not mean that federal courts are without 
power to deal with future problems."

In Trahan v Lafayette Parish School Bd, 330 
F Supp 450 (WD La, 197D, the court began its opinion 
by noting that the case, filed on March 5, 1965, was 
before the court for the fifth time on motion by 
plaintiffs for further relief. It then added that in 
this type of case the process of making remedial 
adjustments Is a continuing one.

Although the subject matters are as diverse 
as cattle and people, a divestiture action by the United States 

to redress a violation of § 7 of the Clayton Act is a 
perfect parallel to a school desegregation case in terms 
of the methodology of remedy. The district court in a 
section seven case first makes a finding of illicit 
acquisition or merger and then orders the submission 
of a desegregation plan. In the anti-trust case where 
the United States is a party there is a provision for a 
direct appeal to the Supreme Court from "the final judgment 
of the district court," while under 28 USC 1291 the appeal

7-



is to the court of appeals from the "final decisions 
of the district courts." Thus, in Brown Shoe Co v 
United States, 370 US 294 (1962), where the government 
sought to enjoin the consummation of a merger between 
Brown and Kenney as a violation of the Clayton Act, 
a motion for a preliminary injunction was denied, and 
the companies were permitted to merge, provided that 
their businesses be operated separately and their assets 
be kept separate. Even in the nature of the temporary 
relief requested and granted there is a close parallel 
to a school desegregation suit in that while the district 
courts do not necessarily grant all of the relief pende 11te 
requested by the plaintiffs, arrangements are usually made 
either through agreements or preliminary injunctions so 
that actions are not taken during the pendency of the 
action by the school district that will make desegregation 
more difficult in the event that a dual school system is 

adjudged.

From a decree of the district court ordering 
divestiture, the defendant appealed to the Supreme Court. 
Although the government did not contest jurisdiction, the 
court noted that jurisdiction cannot be conferred by consent 
and, therefore, a review of the sources of the court’s 
jurisdiction is the threshold inquiry.

-8-



It then adopted what it called "the touchstone 
of federal procedure," "a pragmatic approach to the 
question of finality." The court held that the district 
court's decree had sufficient indicia of finality to be 
properly appealed because:

1. The decree disposed of the entire 
complaint - every prayer for relief 
passed upon.

2. The sole remaining task of the district 
court would be the acceptance of a plan 
for full divestiture and the supervision 
of the plan accepted.

3. The defendant did not attack the order of 
divestiture as such, its contention was 
that no order of divestiture would have 
been proper. Since divestiture was 
considered below and attacked on appeal
v*> vi ri 1 1 /-s y-v A v* rs* k  ̂  n t n  -v>^ n  k  -i' 4--? t rX U U  ViAXiigj -i- tli/a. » t
judicial considerations of the same 
question in a single suit will not occur.

4. The nature of the divestiture order will 
be such that it can only be formulated 
after careful and extended negotiation. 
Because third persons, such as buyers 
and bankers must be found to accomplish 
the divestiture, having the underlying 
decision unsettled would only make still 
more difficult the expeditious enforcement 
of the anti-trust laws.

5. The final consideration is precedent - the 
Supreme Court has consistently reviewed 
district court anti-trust decrees con­
templating future divestiture plans.

It would appear that the above rationale is 
applicable in toto to a school desegregation case:

-9-



1. The decree disposed on the entire com­
plaint - every prayer for relief was 
passed upon.

2. The sole remaining task for the district 
court will be the acceptance of a plan 
for full desegregation and the supervision 
of the plan accepted.

3. The defendants here do not attack the order 
of desegregation as such; it is their 
contention that no order of desegregation 
should have been entered. The attack is on 
all or nothing basis.

4. The desegregation plan will require careful 
formulation and, undoubtedly, extended 
hearings if not negotiations.

5. As we have indicated, the district court's 
judgment is without precedent. Appellate 
review at this point will be a material 
factor in alleviating the unsettling 
influence and will materially lessen the 
djffir.uity in effectuftjng the desegregation 
plan, if the district court's judgment is 
affirmed.

6. This court has reviewed district court 
judgments which are fundamental to the 
further conduct of the case. Order 
filed June 20, 1961 in Happ v Board of 
Education of Chattanooga, No. 14,44L\. 
Gillispie, infra. Kelley v Metropolitan 
County Board of Education of Nashville,
436 F2d 856" (CA b, 1970) .

This court decided Gillespie v United States Steel 
Corp 321 F2d 518 (CA 6, 1963), rev'd on other grounds,
379 US 148 (1964). The district court had granted a motion 
to strike certain allegations of the complaint and the plain­
tiff appealed. Although Judge McAllister remarked that the

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district court's order, on its face, appeared to be
interlocutory and not appealable, on this issue he
concluded as follows:

"The question of whether the order of the 
District Court is an appealable or an 
nonappealable order is a close one. We 
would, at this time, in the interests of 
the due and proper administration of 
justice, prefer to decide the appeal on 
the merits, if that is possible; we think 
it is. . . ." p 522

In affirming on this point, the Supreme Court
said:

". . . We think that the questions presented 
here are equally 'fundamental to the further 
conduct of the case.' . .-. [I]n light of the 
circumstances we believe that the Court of 
Appeals properly implemented the same policies 
Congress sought to promote in § 1292(b) by 
treating this obviously marginal case as 
final and appealable under 28 USC § 1291 
(1958 ed)." 379 US 148, 154.

II.
THE HOLDING IN TAYLOR v BOARD OF EDUCATION OF 
NEW ROCHELLE, 288 F2d 600 (CA 2, 19 6 1) IS 
UNSOUND AND SHOULD NOT BE FOLLOWED.

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In their motion at page 7, plaintiffs say that 
the only possible source for this Court’s jurisdiction 
over the instant appeals is 28 USCA 1292(a)(1)., reading 
as follows:

"(a) The courts of appeal shall have juris­
diction of appeals from:

(1) Interlocutory orders of the 
district courts of the United States, the 
United States District Court of the District 
of the Canal Zone, the District Court of 
Guam, and the District Court of the Virgin 
Islands, or of the judges thereof, granting, 
continuing, modifying, refusing or dissolving 
injunctions, or refusing to dissolve or modify 
injunctions, except where a direct review may 
be had in the Supreme Court;"

They then cite and discuss Taylor v Board of Education of 
New Rochel£, 288 F2d 600 (CA 2, 1961), not only for this 
proposition but also for the proposition that a judgment 
of a district court is ordering the filing of a desegregation 
plan is not an order "granting, continuing, modifying, refusing 
or dissolving injunctions." Taylor cites Mapp, No. 14,444, 
memorandum opinion filed January 20, 1961 as the law of the 
Sixth Circuit, but refuses to follow it.

The state defendants respectfully submit that on 
the basis of the authorities cited earlier in this brief 
plaintiffs' assumption of "only possible source" is mani­
festly in error. The state defendants further submit that

12-



plaintiffs' reliance on Taylor without discussing the 
later reported cases of other circuits holding to the 
contrary is also in error.

Board of Public Instruction of Duval County, 
Florida v Braxton, 326 F2d 6l6 (CA 5, 1964), cert den 377 
US 924 (1964), raised the initial question of whether the 
order appealed from was appealable. As distinguished from 
the case at bar, the board was challenging not the fact 
of desegregation, but the form of the order requiring it. 
The order appealed from contained preliminary paragraphs 
restraining, e.g., "continuing to operate a compulsory 
bi-racial school system in Duval County, Florida; assigning 
pupils to schools on the basis of race and color of the 
pupils, etc.," and then stated that these paragraphs shall 
not be effective until the further order of the court, and 
further directed the defendants to submit a detailed and 
comprehensive plan for putting the preliminary paragraphs 
into effect. The Court of Appeals in a two to one decision 
held the district court's order to be an injunction and 
appealable under 28 USC 1292(a)(1).

The Court considered and distinguished Taylor, 
supra, by saying that in Duval the language of the order 
(injunction) was different from Taylor in that the plan was

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to comply with specific provisions set forth in the 
postponed injunction. However, it did go on to say that 
to the extent that its definition of an injunction may 
differ from the understanding of what constitutes an 
injunction as expressed by the Court of Appeals for the 
Second Circuit, it must respectfully disagree. Certainly, 
when a panel of one circuit tells a panel of another circuit 
that it erred, this should be done as ambiguously and 
indirectly as possible. The fact remains that the Court 
of Appeals for the Fifth Circuit was not impressed by the 
decision of the Court of Appeals for the Second Circuit.

The extent of this disagreement is made even 
clearer by United States v-Associated Air Transport, Inc,
256 F2d 857 (CA 5, 1958), where the Court held that a 
conditional injunctive order is not appealable until the 
condition is complied with.

Duval has been cited as controlling in a number 
of later cases in the Fifth Circuit, all requiring the doing 
of an act in the course of litigation as opposed to an order 
determining a liability. In the case of In re Wingreen Co, 
412 F2d 1048 (CA 5, 1969), in a bankruptcy chapter X 
reorganization the Internal Revenue Service was ordered 
to audit the debtor's records for the purpose of determining

-14-



whether there might be a tax refund. On appeal the 
trustee claimed the nonappealability of the order. The 
Court held that the order had sufficient operative finality 
to be appealable.

In Stamicarbon, N.V. v Escambia Corp, 430 F2d 920 
(CA 5j 1970), a patent infringement suit, the Court said 
that the thread that runs through the cases is the idea 
"that we must look at what the district court did and 
measure that against the standard of section 1292 to determine 
appealability."

To same effect in the segregation context is
McCoy v Louisiana State Board of Education. 332 F2d 915
(CA 5, 1964), where a black student sought admission to a
college limited by state law to white students only. The
district court refused to act on the plaintiff's motion for
a preliminary injunction until she sought mandamus in the
Court of Appeals. Then the district court dismissed the suit
as to the state board and ruled that the board members were
necessary parties. In determining that the district court's
order was appealable, the Court said:

"In view of the short time remaining until 
the start of the summer session, it is clear 
that the practical effect of the court's order 
was to deny the preliminary injunction. Thus 
the district court's order was appealable under 
28 USC § 1292(a) or 28 USC 1291." P 917

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Although the Court did not rely upon Duval, supra,

ln Kelly v G r e e r , 354 F2d 209 (CA 5, 1965), the Court held 
that an order quashing a writ of assistance was appealable. 
It said:

"Furthermore, the Supreme Court has recently 
stated that a 'final decision' within the 
meaning of section 1291 'does not necessarily 
mean the last order possible to be made in 
the case' and that the requirement of finality 
is to be given a 'practical rather than a 
technical construction.'" [citing Gillespie, 
supra.] p 210 ..

In Board of Education of Oklahoma City Public Schools 
v Dowell, 275 F2d 158 (CA 10, 1967), an order directing the 
filing of a desegregation plan was appealed. The Court 
decided the matter on the merits without raising the question 
of the appealability of the order.

Now for Taylor, 288 F2d 600 (CA 2, 1 9 6 1). While 
Judge Friendly's opinion is entitled to the greatest respect, 
he was unable to persuade one of his own brethren, as he was 
unable to persuade Judges Tuttle and Johnson in Duval.
Second, Taylor has not been followed in another circuit and, 
as nearly as can be determined, has not been cited as authority 
in a majority opinion in a case which involved the type of 
order considered.

Third, Taylor was decided before either Gillespie, 
supra, or Brown Shoe, supra.



Taylor is also distinguishable from thas case of 
Bradley because the district judge in his decision expressly 
stated that it was "unnecessary at this time to determine 
the extent to which each of the items of relief requested 
by plaintiffs will be afforded." As the state defendants 
have indicated above, the district judge in the case at bar 
passed upon the entire complaint and claims for relief.

At page 604 of Taylor attempts to equate the order 
directing that a desegregation plan be submitted after a 
full hearing on the merits to the order of a judge directing 
the parties (actually their attorneys) to file briefs, findings and 
other papers. The analogy is too unbelievable to persuade.

Plaintiffs appear to endorse Judge Friendly's 
criticism of this Court in its handling of Mapp v Board of 
Education, 14,444 and 14,517, 295 F2d 617. If this Court's 
handling of Mapp did present a problem, there appears to be 
no evidence of it in the opinion. Second, Tennessee had a 
dual school system by statute. Therefore, the issue, as 
opposed to the issue in the case at bar, was not whether a 
dual school system existed, but how it was going to be 
dismantled. For the same reason, plaintiffs' citation of 
Robinson v Shelby County Board of Education, Nos. 20123 and 
20124, is inappropriate. As in Mapp, neither of these cases 
from Tennessee really involve the question of whether a dual

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+

school system existed. After Brown I, this was a foregone 
conclusion.

• CONCLUSION

In the second appeal in this cause, this Court 
emphatically made the point that there should be a prompt 
hearing on the merits, with appropriate findings of fact 
and conclusions of law in accordance with FR Civ P 52a.
Bradley v Milliken, 438 F2d 945 (1971). The trial has been 
completed, the district judge has made his findings of fact 
and conclusions of law of de jure segregation in the Detroit 
school district as a result of the conduct of the defendants, 
and these findings and conclusions have been incorporated 
in the order entered November 5, 1971. The fundamental 
question of plaintiffs’ right to relief has been conclusively 
established. The state defendants are now seeking appellate 
review on this question of fundamental importance to this 
cause.

The defendants have not sought a stay of proceedings 
pending this appeal. Thus, the appeal enhances the expeditious 
resolution of the questions presented in this cause. The 
process of formulating and submitting desegregation plans, 
both intra-district and metropolitan in scope, is going 
forward pending appeal.

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If this Court reverses on the finding of de_ jure 
segregation, there will be no need for further remedy 
proceedings. If this Court affirms, then any subsequent 
appeals will be limited to the question of the appropriate 
scope and form of the remedy, with the exception of the 
question of faculty segregation, which will be discussed 
infra.

Further, it may very well be that the relief afforded 
herein will be ordered implemented in stages. One order may 
implement an intra-district remedy with a subsequent order 
implementing some form of metropolitan remedy for the reason 
that the process of formulating a metropolitan remedy is 
obviously much more complex and time consumings Which 
remedial order will be a final decision for purposes of 
appeal?

Moreover, the parties are presently in the process 
of preparing and submitting metropolitan plans to the district 
court. A motion to join 85 suburban school districts as parties 
is currently pending before the trial judge. The state 
defendants' attorneys are informed and have good reason to 
believe that a substantial number of suburban school districts 
and other persons residing in the suburban school districts 
intend to file intervention motions in this cause. The 
precedent established in a case involving a metropolitan

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remedy is to order or allow the affected school districts 
to become parties to the case with further evidentiary 
proceedings relating to such parties so that they may obtain 
due process of law. Bradley v School Board of Richmond,
Virginia, 51 FRD 139 (ED Va, 1970). Same, ____F2d _____
(Jan. 5, 1972). Given the complicated question of a 
metropolitan remedy and the joinder or intervention of other 
parties, the additional proceedings before the district court 
will be substantial. Thus, if appeal is now denied, it will 
be very difficult at a later date to fairly review the 
fundamental question of right to relief against the original 
defendants as distinguished from the question of remedy.

In addition, the cost involved in preparing and 
implementing desegregation plans involving either a school 
district with almost 300,000 students or a metropolitan area 
with scores of school districts and approximately 900,000 

students is clearly enormous. Such massive undertakings, 
involving the expenditure of very substantial sums of public 
funds, should not be implemented prior to appellate review 
on the basic question of do jure segregation.

Finally, there is plaintiffs' cross-appeal on the 
question of faculty segregation. If this appeal is dismissed, 
the district court will order implementation of a remedy

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involving the students prior to a subsequent appeal. A 
stay of such order may or may not be sought or obtained.
Plaintiffs will then appeal the faculty question. If 
they prevail on that question, further remedial orders 
will be required from the district court. Once again, the 
operation of the affected school district or school districts 
will be disrupted. Many children, having recently been 
required to attend a new school, will then be required to 
adjust to new teachers in their classrooms and in their 
school buildings. The continuity and stability of their 
educational experience will once again be disturbed. The question 
of remedy should be approached within the context of an 
appellate decision settling the question of the scope of the 
right to relief as a guide to the remedy.

It is respectfully submitted that the plaintiffs 
herein seek to avoid entirely appellate review on the merits 
or, if that is not feasible, to postpone such review until 
the question of relief is an accomplished fact. The state 
defendants are seeking appellate review of the district 
court's final and conclusive decision, reduced to a written 
order, that ae jure segregation exists in the Detroit school
district as a result of the conduct of the state defendants.



f t

The state defendants respectfully request that this Court 
deny plaintiffs' motion to dismiss the appeal of the state
defendants herein.

Respectfully submitted,
FRANK J. KELLEY 
Attorney General
Robert A. Derengoski

Assistant Attorney General
Gerald F. Young 
George L. McCargar 
Assistant Attorneys General

Attorneys for State Defendants
Business Address:
7 Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913

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October 7, 1971

Mr. Louis R. Lucas 
Attorney at Law 
525 Commerce Title Building 
Memphis, Tennessee 38103

He: Bradley, et al v. Hilllken
' iiO. 35257

Dear Mr. Lucas:

Enclosed please find a proposed order reflecting 
the decisions made by Judge Roth on October 1 9 7 1.

an order 
suggested 
for their 
note the

It appears that some of my clients v/lsh to read 
of the court, I contacted Judge Roth and he 
that I prepare it and circulate to all parties 
approval. If it meets with your approval, please 

same and send it on to Mr. Bushnell for his approval

Sincerely,

LK: hb 
Erie.

Eugene Krasicky 
Assistant Attorney General

APPENDIX 1



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ii’.irsioa oif plans and a report and evaluation of tho 
iiaanot l*lan for ty approval, x nae no nej<Se«?»ity ?or
-,ii w.,I lli’’ «i“i Or-..U,.' US.,, k-wiUj. ■: ><lu; i.j -  ̂̂ Ca.UUt
ca/.au v ail parties ac t.*a previous conference- la open 
Court, 1 save not u ,pxovou :.r. j.rasi c,;y ‘ ,j orcar. i ii 
notifyinj you so taat you xaf take wnsstevar action with 
regard to the or*?r yon d-?.so necessary, anJ tuen pass 
it on to dr. uusiViiail.

1 lavs wisplaosc*. Gr. krasiCKy * a proposed ora-ar 
ana am p? copy of tnis is tear rcpuasciua tnafc no iumisn 
you with another copy.

• Very truly - yours-.

PCui-8 , tiiCiiS
LP.L, i f #  ‘

cc ■ honorable! dfcaphen J. doth
George t. ;-.u»ha«il, dr.,- cut.
Cujtnu r.rasic:;j’, is;i .w
i *<’. J w C - 0 1  *3 i i ^  i-j-i-*"’' «

APPENDIX 2



CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing
brief in response to motion to dismiss was served upon the
following named counsel of record by United States mail, 
postage prepaid, addressed to their respective business addresses

Messrs. Louis R. Lucas and 
William E. Caldwell

Mr. Nathaniel R. Jones
Messrs. J. Harold Flannery, 

Paul R. Dimond and 
Robert Pressman

Mr. E. Winther McCroom

Messrs. Jack Greenberg and 
Norman J. Chachkin

Mr. George T. Roumell, Jr.
Mr. Theodore Sachs
Mr. Alexander B. Ritchie

Ehgene Krasicky ■ 
Assistant Attorney General

Dated: February 1, 1972