Letter from Opposing Counsel to Judges Kaess, Kieth and DeMascio RE: Bradley v. Milliken

    WALLACE D «*L£Y. 

GEORG-: T POUMSLL.JP 

JANS KE__£P SOUP'S 

LOU'S O. BEE»

K. PAUL 20 SEL 
E M M E T  £ t r a CY, J R  
TERENCE V. PAGE 
T PATRICK FREYOL 

RUSS E. eOLTZ 

JOHN w FRA5CO

R i l e y  a n d R o u m e l S
a t t o r n e y s  a n d  c o u n s e l o r s  a t  l a w

7  If F.L O O R F O R D  B U I L D I N G  

D E T R O I T ,  M I C H I G A N  4 8 2 2 6

December 6, 1972
T E L E P H O N E

( 3 1 3 )  9 6 2 - 8 2 5 5

Honorable Fred W. Kaess
Chief United States District Judge
Eastern District of Michigan
730 Federal Building
Detroit, Michigan 48226
Honorable Damon J. Keith 
United States District Judge 
Eastern District of Michigan 
707 Federal Building 
Detroit, Michigan 48226
Honorable Robert E. DeMascio 
United States District Judge 
Eastern District of Michigan 
Detroit, Michigan 48226

Re: Bradley v. Milliken
Your Honors:

On Tuesday, December 5, 1972, the Board of 
Education for the City of Detroit passed a resolution^ 
rescinding its prior resolution of November 8, 1972 which 
had ordered the closing of the Detroit Schools for an 
extended period of time on December 22, 1972. A copy^of 
this resolution, and the Superintendent's recommendation 
of this action is enclosed.

This letter is to advise this Honorable Court 
that this action of the Detroit Board, in its opinion, 
does not remove the need for action by the District Court. 
The Detroit Board respectfully urges this Court to hold 
the hearing previously ordered for December 11, 1972, 
and to grant the relief requested as modified in the pro­
posed order enclosed herein. Counsel proposes to file



R i ley and  Rou me l l

Honorable Fred W. Kaess 
Honorable Damon J. Keith 
Honorable Robert E. DeMascio 
December 6, 1972 
Page -2-

a supplemental memorandum of law supporting this position 
before the close of the week.

On November 8, 19 72, when the Board conditionally- 
ordered the school closing, there was no basis on which 
the Board could foresee that any additional funds would 
be forthcoming. The Board had previously exhausted its 
borrowing capacity in order to meet the sheer necessity 
of having funds to meet payrolls of November 14, and 
November 17, 1972. At that time, and between that time 
and November 21, 1972, when this office filed the present 
Emergency Motion with this Court, several high State 
officials both publicly and privately expressed their 
belief that the State could not be called upon to "bail 
out" the Detroit Schools.

However, since this Motion was filed, there 
has been a substantial change in position on the part of 
many State officials, particularly legislative leaders, 
who have now both publicly and privately told the Detroit 
Board that they are committed to finding a resolution of 
the immediate problem in order to allow all Defendants in 
this case to maintain school for 180 days, as previously 
ordered by this Court. It was on these assurances, and 
in a spirit of cooperation with the legislature, that 
the Detroit Board undertook to rescind its action closing 
school on December 22 failing intervention by this Court, 
electing to rely on the pledges of the legislative leader­
ship, and endeavoring to act in such a fashion as not to 
impede the legislature in any way in the performance of its 
Constitutional duty to fund education for Detroit school 
children.

However, while this action by the Detroit Board 
removes the possibility of an immediate disruption in the 
school year, the Board urges upon this Court the necessity



R i ley  and  Ro u me l l

Honorable Fred W. 
Honorable Damon J. 
Honorable Robert E 
December 6, 1972 
Page -3-

Kaess 
Keith 
. DeMascio

of proceeding with hearings at this point in time. With­
out doubting for a moment the good will and good faith 
of the legislative leadership, the Detroit Board knows, 
and^this Court may take judicial notice, that the legis­
lative process is a notoriously uncertain one. If the 
legislative process should fail to provide for relief, 
and the time between now and early or mid March - when 
the school district's funds will be entirely exhausted — 
has run, it will be too late for this Court to effectively 
intervene. While the State officials will then be in 
contempt, nevertheless schools will have closed, and 
the school children of Detroit will be left holding an empty bag.

The Detroit Board respectfully submits to this 
Court that the Constitutional rights of Detroit school 
children, rights which the United States Supreme Court has 
suggested may be the most important protected by the 
Constitution, are too vital and too important to be left 
solely to the inherent uncertainties of the legislative 
process, at a time when there is a clear and present 
danger that those rights may be cut off. It is imperative 
that this Court act to insure the preservation of those 
rights by ordering State Defendants to come forward with 
a plan to finance the Detroit schools using existing powers 
augmented by the equitable powers of this Court, in the 
event that the legislative process fails. Based on the 
assurances of the legislative leadership, the Detroit Board 
hopes and believes that such a plan will never have to be 
implemented, yet such a plan is crucially necessary to 
assure that the Constitutional rights of Detroit school 
children will be preserved.

_ _ If such a plan were not available, and the
legislative process were to fail, then the Detroit schools 
would close in March of 1973. This would be an unqualified 
educational disaster, destroying the effectiveness of an 
entire semester of education for 280,000 children. It should



Honorable Fred W. Kaess 
Honorable Damon J. Keith 
Honorable Robert E. DeMascio 
December 6, 1972 
Page -4-

be emphasized that a system of 280,000 students, and 
over 300 buildings cannot be open and shut with the ease 
of starting and stopping an automobile. Any shut down, 
of sheer physical necessity and logistics, will be to some 
degree-protracted.- There must be-advanced planning to 
avoid such a disaster. That planning should begin now, 
by order of this Court, to insure that no such educational 
disaster will take place. Such action by this Court now 
will not precipitate a Constitutional crisis, but it may 
well prevent one from occurring.

Very truly yours, .
RILEY AND ROUMELL.

GTR:pg
Enclosure
cc: All Counsel



ri~. ■ n  *7 ' ‘

Of The School :ic: Kr OO" Detroit

WHEREAS, thin Board of Education in desirous of pro­
viding the children of Detroit a full school year aurxna 
1972-73 and is committed to seeking _ __
to adequately financing public education, and

long-term solution

.d the Governor have
JZ.

WHEREAS, legislative leaders ax <
oiven assurances that the problem of financing a ~ull 
school year for Detroit’s students would be or ton 
priority in the next session of the legislature, ana

WHEREAS, legislative leaders further 
determination to simultaneously arrive at 
the long-range financing of schools ix^Mic 
a disastrous continuation of fiscal crises

expressed their 
a solution to 
higan to avoid 
, and

WHEREAS, an advance in State 
authorized if the schools do not 
beginning December 21, 1972, and

Aid payment has been 
close for eight ’-»eeks

WHEREAS, this Board, its Superintendent and staff 
have committed themselves to do everything possible to 
provide a full school year,

THEREFORE BE IT RESOLVED, that the Detroit Hoard of 
Education does hereby rescind its action to close schools 
for the period December 21, 1972 to Fenruarv 19, 1373.



5r 1972

Tiie Sir,oerinter.dent and st
by St a te legisia tor s , end
Detroi U .o bUilOO Ja f nanci a
in the next sess ion of th
a ve ry important and oos i

all have considered recent Pledge 
orsad by the Governor, to make 
1 crisis a priority ratter earlv 
e legislature. We regard this as 
tive commitment on the oart of

go verninen t leaders nova forcafullv at once to
provide funding for Detroit Schools to enable us to stav 
open for a full school vear, They have stronalv requested
that we demonst:. ; f' « f *t f'k V» J.., C4, u u .n ch iir commitment and keen
schools open rather than implement the announced December 
21 to February 19 closing. This will allow the legis­
lature time to devise means of financing our operation 
before funds currently available are exhausted about March 
15, 1973. Because short-range finance solutions are 
meaningful only in terms of long-range finance plans for 
the next and ensuing years— the legislators have further 
pledged to address themselves at once to this necessary 
aspect of finance. '
While not closing December 21 and reopening February 19, 
thus providing two equal semesters of instruction {though 
curtailed) for Detroit students, will mean the loss of ‘ 
meaningful curriculum planning, I recommend- in view of 
the legislative commitment:

1. That the Board rescind that portion of its 
November 3, 1972 resolution which refers to 
the closing of schools from December 21, 
1972 to February 19, 1973, and

2. That the Board continue to operate the 
schools at the present "Survival" level 
until funds are exhausted or relief is pro­
vided which v/ill permit operation for the 
full school year.



1

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

.. )RONALD BRADLEY, et al, )
)Plaintiffs, )

v. )
)WILLIAM G. MILLIKEN, et al, )
)Defendants, )
)and )
)DETROIT FEDERATION OF TEACHERS, LOCAL )

231, AMERICAN FEDERATION OF TEACHERS, )
AFL-CIO, )

)Defendant-Intervenor, )
)and )
)DENISE MAGDOWSKI, et al, )
)Defendants-Intervenor. )

__________________  ____ _______________ )

Civil Action 
No- 35257

|

ORDER

At a session of said Court held in 
the Federal Building, Detroit,
Michigan, on December 11, 1972.
Present: _________________________ __

Honorable

The Defendant DETROIT BOARD OF EDUCATION and other Board j
Defendants having filed an Emergency Motion To Order the Governor

. !of the State of Michigan, the Attorney General of the State of
j

Michigan, the Treasurer of the State of Michigan, the Superinten-
|

dent of Public Instruction for the State of Michigan, the members
• . ' j

of the State Board of Education of the State of Michigan and Other
• \

State Officials to Provide Funds to Keep Detroit Public Schools Operating
|



i

For a Full 180 Regular Days of Instruction and For Other Relief, 
and the Court having heard oral arguments,

IT IS HEREBY ORDERED that the State Defendants; to-wit: 
the Governor of the State of Michigan, the Attorney General of 
the State of Michigan, the Treasurer of the State of Michigan, 
the Superintendent of Public Instruction for the State of 
Michigan, the members of the State Board of Education of the 
State of Michigan, and other State officials, either:

; \ .
1. Present to this Court by February 1, 1973,

i;; i
a showing that the State of Michigan has ̂i ’ ■|{;j undertaken by legislative action to provide the? ? •

! funds necessary to maintain the operation of
i ,the Detroit Public Schools pursuant to the

previous Order of this Court of July 7, 1972,I
or,hj

li -! ? 2. Present to this Court by February 1, 1973,
a plan for the financing of the Detroit

j j ,Public Schools pursuant to the previous Order
iiij of this Court of July 7, 1972, such plan to
! . .utilize the existing authority of Defendants
i ■ ' •

and any other necessary agents of the State
\i , _ .

of Michigan, augmented as necessary by the 
equitable power of this Court.

United States District Court Judge

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