Milliken v. Bradley Supplemental Brief for Respondents Bradley

    I n  the

Glnurt ni %  Itttftd States
O ctober T erm , 1972 

No. 71-1463

W illiam  J. M il l ik e n , et al.,

vs.
Petitioners,

R onald B radley, et al.

SUPPLEMENTAL BRIEF 
FOR RESPONDENTS BRADLEY, ET AL.

Jack Greenberg 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

E. W inther M cCroom
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

B ruce Miller 
Lucille W atts

3246 Cadillac Towers 
Detroit, Michigan

L ouis R. Lucas 
W illiam E. Caldwell

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Nathaniel R. J ones 
1790 Broadway 
New York, New York 10019

J. H arold F lannery 
Paul R. D imond 
R obert Pressman

38 Kirkland Street 
Cambridge, Mass. 02138

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



I n the

(tort of %  luttrii States
O ctober T erm , 1972 

No. 71-1463

W illiam  J. M il l ik e n , et al.,

—vs.—
Petitioners,

R onald B radley, et al.

SUPPLEMENTAL BRIEF 
FOR RESPONDENTS BRADLEY, ET AL.

Pursuant to Rule 24(5) of the Rules of the Supreme 
Court, respondents Bradley, et al. respectfully file this 
Supplemental Brief to advise the Court of proceedings in 
this cause before the district court and the United States 
Court of Appeals for the Sixth Circuit which have taken 
place since the filing, by respondents school districts on or 
about June 21, 1972, of a Supplemental Brief and Supple­
mental Joint Appendix in support of the Petition. In light 
of these proceedings the question properly presented by the 
Petition is now moot.

In our Brief in Opposition to Certiorari, pages 6-7, we 
noted that the question of appealability of the district 
court’s September 27, 1971 opinion and order was likely to 
become moot prior to a decision on the merits by this Court 
even if certiorari were granted. We now can advise the 
Court that such issue is indeed moot at the present time, 
and there is no reason to grant the writ of certiorari in this
case.



2

After entry of the district court’s June 14, 1972 ruling 
and order, which is the subject of the Supplemental Brief 
and Joint Appendix filed last spring by other respondents, 
appeals were noted and various interlocutory proceedings 
transpired before the Sixth Circuit on matters of stays, 
mandamus and prohibition sought by various parties. On 
July 20, 1972, the district court entered an order pursuant 
to F.R.C.P. 54(b), directing entry of judgment as to certain 
claims, and pursuant to 28 U.S.C. § 1292(b), certifying the 
existence of controlling questions of law as to which sub­
stantial ground for difference of opinion existed, authoriz­
ing appeal of all its previous rulings (dated September 27, 
1971, March 24, 1972, March 28, 1972, June 14, 1972 and 
July 11, 1972).1 On the same day the Court of Appeals 
granted leave to appeal and stayed the July 11,1972 district 
court order “ and all orders of the district court concerned 
with pupil and faculty reassignment within the metropoli­
tan area beyond the geographic jurisdiction of the Detroit 
Board of Education, and all other proceedings in the dis­
trict court other than planning proceedings” pending ap­
peal. (See Appendix A  hereto).

The appeal was also expedited and scheduled for hearing 
on August 24, 1972; the parties submitted lengthy and 
thorough briefs on all issues, including those concerning the 
correctness of the September 27, 1971 district court order 
and opinion finding unlawful segregation of the Detroit 
public schools, as well as the subsequent orders of the dis­
trict court concerned with devising a remedy for that con­
stitutional violation. At the close of the argument on Au­
gust 24, 1972, the Court of Appeals denied an oral motion 
to vacate its stay.

1 On July 11, 1972, the district court entered an order directing 
the purchase of transportation equipment in order that capability 
to implement the Court’s June 14 order might be available during 
the 1972-73 school year.



3

Thus the issue presented by the Petition for Writ of 
Certiorari is m oot; petitioners have obtained their hearing 
before the Court of Appeals and all district court decrees 
which might affect the operation of the Detroit area public 
schools have been stayed pending the outcome of the appeals 
now under submission in the Sixth Circuit. Whatever rea­
son might once have existed for reviewing the dismissal of 
the prior appeal by the Sixth Circuit, or the orders of the 
district court, the proper course at this time is to deny the 
Petition and permit the Court of Appeals to complete its 
consideration of the matter, which may render unnecessary 
any further proceedings before this Court on behalf of 
petitioners.

CONCLUSION

For the foregoing reasons, respondents Bradley et al. 
respectfully pray that the writ be denied.

Respectfully submitted,

Jack Greenberg L ouis R. Lucas
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

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

E. WlNTHER McCROOM
3245 Woodburn Avenue 
Cincinnati, Ohio 45207

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

B ruce Miller 
Lucille W atts

J. H arold Flannery 
P aul R. D imond 
Robert Pressman3246 Cadillac Towers 

Detroit, Michigan 38 Kirkland Street 
Cambridge, Mass. 02138

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



APPENDIX A

#72-8002

UNITED STATES COURT OF APPEALS 

F ob th e  S ix t h  C ircuit

R onald B radley, et al.,

Plaintiffs-Appellants,

W illiam  Gr. M il l ik e n , et al.,

Defendants-Appellants,
and

D etroit F ederation op T eachers L ocal 231, 
A merican  F ederation of T eachers, AFL-CIO,

Defendant-Intervenor,
and

D enise M agdowski, et al.,

Defendants-Intervenors.

Before:

P h ill ip s , Chief Judge, E dwards and P eck , Circuit Judges.

O r d e r

The District Court has certified that certain orders en­
tered by him in this case involve controlling questions of 
law, as provided by 28 U. S. C. §1292 (b), and has made a 
determination of finality under Rule 54(b), Fed. R. Civ. P.



2a

Appendix A

This court concludes that among the substantial questions 
presented there is at least one difficult issue of first im­
pression which never has been decided by this court or the 
Supreme Court. In so holding- we imply nothing as to our 
view of the merits of this appeal. We conclude that an im­
mediate appeal may materially advance the ultimate termi­
nation of the litigation. Accordingly, it is O rdered that the 
motion for leave to appeal be and hereby is granted.

It is further Ordered that the appeal in this case be ad­
vanced on the docket of this court and scheduled for hearing 
Thursday, August 24, 1972, at 9. a.m. The appendix and 
simultaneous briefs of all parties shall be filed not later 
than 25 days after the entry of this order. Reply briefs 
shall be filed not later than August 21, 1972. Typewritten 
appendix and briefs may be filed in lieu of printed briefs, 
together with ten legible copies produced by Xerox or simi­
lar process. An appendix must be filed. The court will not 
entertain a motion to hear the appeal on the original record.

The motion for stay pending appeal having been con­
sidered it is further Ordered that the Order for Acquisition 
of Transportation, entered by the District Court on July 11, 
1972, and all orders of the District Court concerned with 
pupil and faculty reassignment within the Metropolitan 
Area beyond the geographical jurisdiction of the Detroit 
Board of Education, and all other proceedings in the Dis­
trict Court other than planning proceedings, be stayed pend­
ing the hearing of this appeal on its merits and the disposi­
tion of the appeal by this court, or until further order of 
this court. This stay order does not apply to the studies and 
planning of the panel which has been appointed by the Dis­
trict Court in its order of June 14, 1972, which panel was 
charged with the duty of preparing interim and final plans 
of desegregation. Said panel is authorized to proceed with



3a

Appendix A

its studies and planning during the disposition of this ap­
peal, to the end that there will be no unnecessary delay in 
the implementation of the ultimate steps contemplated in 
the orders of the District Court in event the decision of the 
District Court is affirmed on appeal. Pending disposition 
of the appeal, the defendants and the School Districts in­
volved shall supply administrative and staff assistance to 
the aforesaid panel upon its request. Until further order 
of this court, the reasonable costs incurred by the panel shall 
be paid as provided by the District Court’s order of June 
14, 1972.

Entered by order of the Court.

/ s /  J ames A . H iggins

Clerk



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