Petition for Writ of Certiorari

    SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1972

No.

WEST BLOOMFIELD SCHOOL DISTRICT OF OAKLAND 
COUNTY, MICHIGAN and CLARENCEVILLB SCHOOL DIS­
TRICT OF OAKLAND AND WAYNE COUNTIES, MICHIGAN,

Petitioners,

v.
THE HONORABLE STEPHEN J. ROTH, District Judge for the 

Eastern District of Michigan, Southern Division,
Respondent

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF 
APPEALS FOR THE SIXTH CIRCUIT

DELL, SHANTZ, BOOKER & SCHULTE 
John F. Shantz

222 Washington Square Building
Royal Oak, Michigan 48067





1

TABLE OF CONTENTS

OPINIONS BELOW......... ............     1-2

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

QUESTIONS PRESENTED FOR REVIEW . ___. . . .  2-3

STATEMENT OF THE CASE . . . . . . ___ . . . ____  3-4

REASONS FOR GRANTING WRIT . . . . . . . . . ___ _ 4-11

CONCLUSIONS ...........     11-12

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  la-56a



11

CASE CITATIONS

CASES Page

Board of Education of Detroit v. Superintendent o f
Public Instruction 319 Mich 436 (1947) ....................  6,7

Bradley, et al v. Milliken, et al 338 F. Supp. 582 (E.D.
Mich 1971) .....................................................................  4?5

Bradley, et al. v. Milliken, et al 345 F. Supp. 914 (E.D.
Mich 1972) .....................................................................  6

Bradley, et al v. School Board of City o f Richmond 338
F. Supp. 67 (1972) ......................................................  8

Bradley, et al v. Richmond 462 F.2d 1058 (CA 4th
1972) ........................    8

Brown v. Board of Education 349 U.S. 294 (1955) . . . .  10

Ex Parte Republic o f Peru 318 U.S. 577, 582 (1942) . .  9

Florida Lime and Avacado Growers v. Jacobsen 362
U.S. 73, 80S. Ct. 568 (1959) ...................................... 10

Hunter v. City o f Pittsburgh 207 U.S. 161 (1 9 0 7 ) .........  8

Jones v. Grand Ledge Public Schools 349 Mich 1 (1957) 7

King v. School District No. 5 261 Mich 605 (1933) . . .  6

Marathon School District No. 4 v. Gage 39 Mich 484
(1878) ..............................................................................  6

Stratton v. St. Louis Southwestern R. Co. 282 U.S. 10,
75 Law Ed, 135 (1930) .................................................  11

Swann v. Charlotte-Mechlenburg Board o f Education
402 U.S. 1,91 S. Ct. 1267 ( 1 9 7 1 ) ...............................  8

Swift and Co. v. Wickham, 382 U.S. 111,86 S. Ct. 258
(1965) .............................................................................. 10



Ill

LIST OF CONSTITUTION AND STATUTORY CITATIONS

CONSTITUTIONS Page

Art. VIII, Sec. 2, Mich. Const. ........................................ .. 7,55a
Art. VIII, Sec. 3, Mich. Const. . . . . . . . . . . . . . . . . . . . .  7
Art. Ill, Sec. 2, U.S. Const. ...............................................  55a
Art. IX, Sec. 11, Mich. Const. ............. ................. 7
Art. V, Sec. 1, U.S. Const. .................................... ............. 55a

UNITED STATES STATUTES

Title 28 U.S.C. §1254 .....................................................   2
Title 28 U.S.C. §2281 ............................................. 3,9,10,11,56a

STATUTES OF MICHIGAN

MCL 340.1, et seq. ............................................. ............... 56a
MCL 340.352 ................................................................. 6,10,56a
MCL 340.582 ..............................................................   7

MICHIGAN COMPILED LAWS ANNOTATED

MCLA 340.356 ........    3,5,9
MCLA 340.569 .................................    6,7,10

MICHIGAN PUBLIC ACTS

1970P.A. 48 .......................................................................  10
1955 P.A. 269 . . . . . . . . . . . . . . . ................................. . 10



1

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1972 
No,

WEST BLOOMFIELD SCHOOL DISTRICT OF OAKLAND 
COUNTY, MICHIGAN and CLARENCEVILLE SCHOOL DIS­
TRICT OF OAKLAND AND WAYNE COUNTIES, MICHIGAN,

Petitioners,

v.
THE HONORABLE STEPHEN I. ROTH, District Judge for the 

Eastern District of Michigan, Southern Division,
Respondent

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE SIXTH CIRCUIT

To the Honorable Chief Justice and Associate Justices of the 
Supreme Court of the United States:

Petitioners, West Bloomfield School District and Clarenceville 
School District, respectfully pray that a Writ of Certiorari issue, to 
review an Order of the United States Court of Appeals for the 
S ix th  C ircu it entered in the above entitled cause denying 
Petitioners’ Petition for Writ of Prohibition and Mandamus and 
from its Order Denying the Petition for Rehearing.

OPINIONS BELOW

The opinions rendered in the District Court and in the Court of 
Appeals for the Sixth Circuit below are:

a. Order of June 14, 1972 of the Trial Judge, Honorable 
Stephen J. Roth, District Judge for the Eastern District of 
Michigan, Southern Division, a copy of which is attached as



2

Appendix A.

b. Order of the Court of Appeals for the Sixth Circuit, of 
July 17, 1972, denying Petition for Writ of Prohibition and 
Mandamus, a copy of which is attached as Appendix C.

c. Order of the Court of Appeals for the Sixth Circuit, of 
August 24, 1972, denying Petition for Rehearing of Petition for 
Writ of Prohibition and Mandamus, a copy of which is attached 
as Appendix E.

JURISDICTION

The Order denying the Petition for Writ of Prohibition and 
Mandamus was entered July 17, 1972. Petition for Rehearing was 
tim e ly  filed. The Order denying Petition for Rehearing was 
entered August 24, 1972.

The jurisdiction of this Court to issue the requested Writ of Cer­
tiorari is conferred by 28 U.S.C. Sec. 1254.(1)

QUESTIONS PRESENTED FOR REVIEW

1, Does the dismissal by the Court of Appeals of the Petition 
for Writ of Prohibition and Mandamus by West Bloomfield School 
District and Clarenceville School District directed to the Trial 
Court where said Trial Court has included the Petitioning School 
Districts in a desegregation order where said School Districts have 
not been served with process; are not parties to the principal suit 
in the District Court and have not intervened therein, constitute a 
denial of Petitioners rights under the United States Constitution 
and a denial of due process and equal protection of the laws?

2. Where the Sixth Circuit Court of Appeals, without hearing 
or opinion, dismisses the Petition for Writ of Prohibition and Man­
damus, which Petition challenges the jurisdiction of the Trial 
Court to extend its desegregation remedy to include school dis­
tricts which are not now, nor have been in the past, a part of the 
School District of the City of Detroit, where the Trial Court’s 
findings of segregation are limited to policies and practices solely 
within the City of Detroit School District, is the refusal of the 
appellate court to grant said Petition a denial of due process as to



3

these petitioners?

3. Did the Court of Appeals err in refusing to issue its Writ of 
Prohibition to the Trial Court where the District Court seeks to 
include a school district, an agency of the State of Michigan, with­
in the scope of the orders of the Trial Court where neither the 
State of Michigan nor said School District are parties to, or inter- 
venors in, said litigation from which the challenged order flows?

4. Where the orders of the Trial Court in a desegregation case 
challenges the constitutionality of the Constitution and school 
laws of the State of Michigan; enjoins the operation of state laws 
pertaining to the operation of state school laws within some fifty- 
two (52) school districts in the State was the failure of the Trial 
Court to impanel a three judge court under 28 U.S.C. 2281 juris- 
dictionally fatal requiring the granting of the Writ of Prohibition 
and Mandamus by the Court of Appeals?

STATEMENT OF CASE

Petitioning School Districts are both Michigan Municipal Cor­
porations and School Districts of the Third Class, organized under 
the laws of the State of Michigan. West Bloomfield School District 
is located in northwest Oakland County and serves some 5500 
students. It was created In 1947. Clarenceville School District was 
established as a Fractional School District No. 5 of Farmington 
Township in 1837. The School District has some 3,600 students 
and portions of the District lie in both Wayne and Oakland 
Counties, outside the City of Detroit.

Certain Plaintiffs (Ronald Bradley, et al) brought a suit in 
August 1970 against the Detroit Board of Education and certain 
State officers seeking a judgment that Act 48 of Public Acts of 
1970 of the State of Michigan be declared unconstitutional and 
requesting that Detroit School District be operated as a unitary 
system. Petitioning School Districts were not named as parties in 
such litigation.

In September 1971, the Trial Court found that the Defendant 
Board of Education of the Detroit School District had committed 
acts, countenanced by State officer Defendants, which resulted in 
de jure segregation of Detroit schools. The findings are reported in



4

Bradley et al v. Milliken et al 338 F. Supp. 582.594 (E.D. Mich. 
1971). On June 14,1972, after additional testimony, the Trial Court 
ordered the petitioning School Districts (and some fifty other dis­
tricts) included in a so-called “Metropolitan” desegregation plan. 
No finding of the Trial Court suggests that the failure to maintain 
a unitary system in Detroit was caused by, or attributable to, the 
creation of the petitioning School Districts or any other such 
independent school districts in the so-called Metropolitan area of 
Detroit and located in the Counties of Oakland, Macomb and 
Wayne. On June 14, 1972, the Trial Court, in its Findings justi­
fying the so-called “Metropolitan Plan”, specifically stated that no 
proofs had been taken on the establishment of the boundaries of 
the 86 Districts in Wayne, Oakland and Macomb Counties, and 
further, made no finding that the school districts (other than the 
Detroit School District) had committed acts of de jure segregation.

The Trial Court, however, included West Bloomfield School Dis­
trict and Clarenceville School District (and other School Districts) 
in the so-called “Metropolitan Plan”. All the Districts so included 
are located without the boundaries of the Detroit School District. 
The boundaries of the Detroit School District are coterminous 
with the boundaries of the City of Detroit. The petitioning School 
Districts, West Bloomfield School District and Clarenceville School 
District, are not parties to the litigation; nor, did such districts 
intervene therein. Nonetheless, the petitioning Districts were 
ordered, inter alia, to “cooperate” with the Trial Court appointed 
panel, pay costs of its employees’ assistance to such panel and 
participate in the reassignment of pupils within the “desegregation 
area” (Appendix A, page 4a).

The petitioning School Districts contend, that the inclusion of 
said Districts with the Desegregation plan, without notice; without 
process; without hearing, by the Trial Court, and the failure of the 
Circuit Court of Appeals to issue a Writ of Prohibition and Man­
damus to the Trial Court, constitutes a denial of constitutional 
guarantees to due process and a total abandonment of traditional 
concepts of notice, and right to hearing on the merits.

REASONS FOR GRANTING WRIT

[For purposes of brevity, Question I, II and III presented for



5

review are treated collectively.]

In order that Petitioners’ argument may be viewed in proper 
perspective, some information is necessary to properly portray the 
position of the petitioning School Districts and the litigation 
which caused the Districts to seek the issuance of an extraordinary 
Writ of Prohibition. The indulgence of the Court is solicited to 
permit the Petitioners to recite a brief, but hopefully, informative 
history of the principal litigation.

The principal litigation action was commenced by filing of a 
Complaint by the Plaintiffs, Ronald Bradley et al, on August 18, 
1970. No amended or supplemental Complaint has ever been filed 
in the District Court in the principal litigation. The Defendants 
nam ed in the Complaint are the Governor of the State of 
Michigan, the Attorney General of the State of Michigan, the 
Michigan State Board of Education, the Superintendent of Public 
Instruction for the State of Michigan, the Board of Education of 
the City of Detroit and its individual members and the then Super­
intendent of the Detroit Public Schools. No school district other 
than the City of Detroit school district was named as a defendant. 
The thrust of the Complaint was a judgment that Act 48 of 
Michigan Public Acts of 1970 be declared unconstitutional and to 
require the operation of the public schools in the City of Detroit 
on a unitary basis. The Plaintiffs claimed only that the City of 
Detroit school district was not operated on a unitary basis and the 
relief sought was limited to the City of Detroit school district. The 
Plaintiffs’ Complaint, and the finding of the Trial Court related in 
its Ruling on segregation, dated September 27, 1971 and detailed 
in 338 F. Supp. 582,, (1971) is that the Detroit School District 
has not been operated on a unitary basis.

As indicated above, there has been no Complaint and no finding 
by the Trial Court that any of the fifty-two (52) independent 
school districts, selected by the District Court as a part of its dese­
gregation plan, were established in furtherance of a policy to 
encourage segregation and, as heretofore noted, the Trial Court 
cand id ly  recognized the lack of proofs with respect to the 
establishment of the boundaries of the eighty-six (86) public 
school districts within the Counties of Wayne, Oakland and 
Macomb and the lack of proofs as to whether or not such school



6

districts, other than Detroit School District, had committed any 
acts of de jure segregation. In Bradley v. Milliken et al, 345 F. 
Supp. 914 (E.D. Mich. 1972) the Trial Court stated:

“It should be noted that the Court has taken no proofs with 
respect to the establishment of the boundaries of the 86 public 
school districts in the counties of Wayne, Oakland and Macomb, 
nor on the issue of whether, with the exclusion of the city of 
Detroit school district, such school districts have committed 
acts of de jure segregation.” Bradley, supra, 920.

Notwithstanding the limitations imposed by its own findings, 
the Trial Court included West Bloomfield School District and 
Clarenceville School District within the boundaries of its proposed 
Metropolitan Plan to accomplish desegregation of the Detroit 
School District. Bradley et al v. Milliken et al, June 14, 1972, 
supra.

In response to these findings of fact and the resultant Order, 
including the sweeping provisions therein, the School Districts of 
West Bloomfield and Clarenceville filed a joint Petition for Writ of 
Prohibition in the Court of Appeals for the Sixth Circuit, which 
Petition and a subsequent Petition for Rehearing were ultimately 
denied by that Court on July 17, and August 24,1972 respectively.

School districts of the State of Michigan are municipal corpora­
tions, or, at the very least, quasi municipal corporations. Marathon 
School District No. 4 v. Gage, 39 Mich 484 (1878) and King vs. 
School District No. 5, 261 Mich 605 (1933).

School districts derive their power and authority from the 
Constitution of the State and legislature. Board o f  Education o f  
Detroit v. Superintendent o f  Public Instruction, 319 Mich 436 
(1947). As indicated by the quoted section of the General School 
Code, each school district has the power to “sue and be sued in its 
name”. Section 352 Public Act 269 of Public Acts of 1955; MCL 
1948, §340.352. (Appendix F, page 56a)

It must be noted that the State of Michigan is not a party to 
this litigation. The officers of the State, including the Governor 
and the Attorney General and the Superintendent of Public 
Instruction, have no plenary powers as to the petitioning School



7

Districts under the Michigan Constitution. The State Board of 
Education has “leadership and general supervision over all public 
education” and serves as a “general planning and coordinating 
body for all public education” (Reference, Article VIII, §3 
Michigan Constitution and §582 Act 269 of Public Acts of 1955; 
MCL 1948 §340.582.) The State Defendants have no authority to 
require local districts to admit nonresident pupils to the school 
district. That authority is vested in the legislature of the State of 
Michigan which has provided specific statutory authority and con­
trol of such transfers to be vested in the local school district. The 
Michigan Supreme Court in Jones v. Grand Ledge Public Schools, 
349 Mich 1 (1957), stated as follows:

“We are in accord with the finding of the trial judge that under 
the present school code the defendant school district is not 
charged with the duty of accepting nonresident pupils. The lan­
guage of the statute must be construed as it reads. It is not with­
in the province of this Court to read therein a mandate that the 
legislature has not seen fit to incorporate. Our duty is to apply 
the law as we find it. . . .” (p. 11)

The constitutional character of Michigan school districts has 
been recognized in the Detroit Board o f  Education v. Super­
intendent o f  Public Instruction, 319 Mich 436 (1947). In that 
case, the Supreme Court of the State of Michigan found unconsti­
tutional (under the Michigan Constitution of 1908) an attempt by 
the State legislature to create a statewide school district to share in 
sales tax revenues then provided by provision of the 1908 Con­
stitution. A similar provision reflecting the constitutional nature 
of local school districts is found in Section 11, Article IX of the 
present Michigan Constitution.

Each school district in Michigan is charged with the responsi­
bility of providing education to its pupils without discrimination. 
Section 2 of Article VIII succinctly defines that duty as follows:

“The legislature shall maintain and support a system of free 
public elementary and secondary schools as defined by law. 
Every school district shall provide for the education of its pupils 
without discrimination as to religion, creed, race, color or 
national origin.” (Michigan Constitution Appendix F, page 55a)



8

The Trial Court relied upon Hunter v. City o f  Pittsburgh, 207 
U.S. 161 (1907), as precedent for including districts, other than 
the school district of Detroit, in its Metropolitan plan. Hunter, 
supra, is not precedent for the Trial Court’s interpretation. To the 
contrary, the case clearly stands for the proposition that a state 
legislature may modify its municipal subdivision including the 
boundaries thereof. Nowhere in Hunter, supra, is there the sugges­
tion that this power is somehow conferred upon a United States 
District Court. The Trial Court likewise relied heavily upon the 
District Court decision in Bradley et al v. School Board o f  the City 
o f  Richmond, 338 F. Supp. 67 (1972).

On June 5, 1972, the court was reversed by the Court of 
Appeals for the Fourth Circuit in Bradley et al v. Richmond, 
462 F. 2d 1058 (CA 4th 1972). It is interesting to note, that the 
Fourth Circuit, in reversing the judgment of the lower court, relied 
upon Hunter, supra, as precendent for its reversal.

The Trial Court also relied upon Swann v. Charlotte Mechlenburg 
Board o f Education, 402 U.S. 1, 91 S. Ct. 1267 (1971), but in so 
doing, the T rial Court clearly ignored the explicit judicial 
admonition of Swann.

. . .However, a school desegregation case does not differ fun­
damentally from other cases involving the framing o f equitable 
remedies to repair the denial o f  a constitutional right. The task 
is to correct, by a balancing of the individual and collective 
Interests, the condition that offends the Constitution.

“In seeking to define even in broad and general terms how far 
this remedial power extends it is important to remember that 
judicial powers may be exercised only on the basis o f  a constitu­
tional violation. Remedial judicial authority does not put judges 
automatically in the shoes o f  school authorities whose powers 
are plenary. Judicial authority enters only when local authority 
defaults.” (Emphasis Supplied) (p. 16)

It must be reiterated that West Bloomfield School District and 
Clarenceville School District are not litigants in the present princi­
pal case. The issuance of a Writ of Prohibition and Mandamus has 
traditionally been the manner in which the appellate courts have 
restricted and precluded the unwarranted exercise of jurisdiction 
by a lower court. “The historic use of writs of prohibition and



9

mandamus directed by an appellate to an inferior court has been 
to exert the revisory of appellate power over the inferior court. 
The writs thus afford an expeditious and effective means of con­
fining the inferior court to a lawful exercise of its prescribed juris­
diction. . . Ex Parte Republic o f  Peru, 318 U.S. 577, 582 
(1942).

The action of the Trial Court in including the petitioning 
School Districts as a part of its desegregation plan in the absence 
of due process or notice, constitutes the improper exercise of juris­
diction by the District Court. The Circuit Court of Appeals, by 
dismissal of the Petition for Writ of Prohibition has, apparently, 
given its approbation to the actions of the Trial Court. It is sub­
mitted that the Supreme Court, in its exercise of its supervisory 
powers over the Federal Judiciary, should grant certiorari and 
settle the basic and critical decision as to the jurisdiction, or lack 
thereof, of the Trial Court over the petitioning School Districts.

* * *

Petitioners allege that the Trial Court erred in failing to impanel 
a three judge court pursuant to 28 U.S.C. 2281, cited above. Not­
withstanding that the Complaint of the Plaintiffs was confined to 
a statute to Act 48 of Public Acts of 1970 of the State of 
Michigan, which affected the Detroit School District only, the 
Trial Court, on its own, without the benefit of amended pleadings, 
increased the scope of the litigation to involve school districts out­
side of the geographical limits of the City of Detroit and the 
Detroit School District. On June 14, 1972, the Court entered its 
Order for the development of the so-called “Metropolitan”desegre- 
gation plan, which include requirements for student reassignment, 
faculty and staff reassignment, restrictions on construction of 
school buildings and provisions for recommendations of alteration 
of local school district boundaries. (Reference, Appendix A, page 
4a-9a)

The referenced Order likewise directs the State Superintendent 
of Public Instruction to make recommendations to the Trial Court 
concerning the foregoing matters and with reference to existing 
laws of the State of Michigan pertaining to the affected school dis­
tricts, including these Petitioners, directs the Superintendent as 
follows:



10

“In his examination and recommendations, the Superintendent, 
consistent with the rulings and orders of this court, may be 
guided, but not limited, by existing state law; where state law 
provides a convenient and adequate framework for interim or 
ultimate relief, it should be followed, where state law either is 
silent or conflicts with what is necessary to achieve the objec­
tives o f  this order, the Superintendent shall independently 
recommend what he deems necessary. In particular, the Super­
intendent shall examine and choose one appropriate interim 
arrangement to oversee the immediate implementation of a plan 
o f  d e se g re g a tio n .5’ (E m phasis supp lied ) (R eference  
Appendix A, page 8a)

The quoted language of the Order is an open invitation to a 
State officer to make recommendations to the Trial Court for 
entry of orders contrary to the laws of the State of Michigan. A 
review of the Order of June 14, 1972 demonstrates that it is in 
fact a mandatory injunction enjoining the Petitioning School Dis­
tr ic ts  from fulfilling the statutory duties and responsibilities 
required under various sections of the General School Code of 
1955 being Public Act 269 of Public Acts of 1955 of the State of 
Michigan, as amended, including the education of resident pupils 
(MCLA 340.356); Employment of staff (MCLA 340.569) etc. 
(Reference Appendix B, page 31a) Such injunction must be predi­
cated upon the purported unconstitutionality of such statutes, vis- 
a-vis the Plaintiffs, in the principal litigation. It is the contention of 
the Petitioners that a three judge court was required to be impanell­
ed by the Trial Court under 28 U.S.C. §2281.

The legislative history of Section 2281, and its historical 
antecedents, is detailed in Swift and Co. v. Wickham, 382 U.S. 
I l l ,  86 S. Ct. 258 (1965). Florida Lime and Avacado Growers v. 
Jacobsen, 362 U.S. 73, 80 S. Ct. 568 (1959), recognized the 
congressional policy inherent in the enactment of the statute to 
require a three judge court whenever a state statute was to be 
enjoined on the grounds of federal unconstitutionality. The 
applicability of Section 2281 in civil rights cases, and more 
specifically in school desegregation cases, is apparent. Brown v. 
Board o f Education, 349 U.S. 294 (1955) and its companion 
Federal cases came to the United States Supreme Court through 
the vehicle of Section 2281. While it may be true that the



11

Plaintiffs in the principal suit initially sought a constitutional 
attack on a statute affecting only one school district, the gravamen 
of the litigation was changed by the Order of June 14, 1972 of the 
Trial Court. The necessity of a three judge panel cannot be waived 
by the parties. Stratton v. St. Louis Southwestern R. Co., 282 U.S. 
10, 75 Law Ed, 135 (1930). The Trial Court should have moved 
on its own to impanel a tri-judgc. court; its failure to do so 
constitu tes a fatal jurisdictional defect. Notwithstanding the 
compelling arguments for impanelling a three judge panel, the 
Court of Appeals for the Sixth Circuit dismissed the Petition of 
the  P e titio n in g  School Districts for issuance of a Writ of 
Prohibition and Mandamus which was predicated, in part, upon 
this ground. (Reference, Appendix C) Since we were not favored 
with an opinion by the Circuit Court of Appeals as to the reason 
for the dismissal of the Petition for Writ of Prohibition and 
Mandamus, the Petitioners are unable to ascertain the basis for 
such denial. It is respectfully suggested, however, that the failure 
of the Court of Appeals for the Sixth Circuit to issue the Writ of 
Prohibition and Mandamus is wholly in error and contrary to the 
req u irem en ts  o f S ection  2281 and , hence, th e re  is a 
jurisdictionally fatal defect in the proceedings in the Trial Court.

CONCLUSION

Petitioners desire to advise the Court that the principal case of 
Bradley et al v. Milliken et al, has been appealed to the United 
States Court of Appeals for the Sixth Circuit and bears Docket 
No. 72-8002. Oral arguments were held in the principal litigation 
on August 24, 1972. At that time, the appellate court announced 
that the matter would be taken under advisement. No decision has 
been reached by the appellate court to the date of this writing.

The Petitioners are not parties litigant to that appeal. They did 
not intervene in the lower court or in the appellate court in the 
principal litigation. However, in order to protect the rights of the



12

Petitioners, as the result of the dismissal of the Petition for Writ of 
Prohibition and Mandamus by the Court of Appeals, it is necessary 
that a Writ of Certiorari should be granted by this Honorable 
Court.

Respectfully submitted,

DELL, SHANTZ, BOOKER AND SCHULTE

By
John F. Shantz

222 Washington Square Building 
Royal Oak, Michigan 48067 
Telephone: (313) 541-2150

Attorneys for West Bloomfield School 
District,
3205 Commerce Road 
Orchard Lake, Michigan; 

and,
Clarenceville School District 

28830 West Eight Mile Road 
Farmington, Michigan 
Petitioners



INDEX TO APPENDIX

A. Ruling on Desegregation Area and Order for De­
velopment of Plan of Desegregation June 14, 1972 la- 9a

B. Petition for Writ of Prohibition and Mandamus . . . 10a-43a

C. Order of United States Court of Appeals for the
Sixth Circuit Denying Application for Writ of 
Mandamus and Prohibition July 17, 1972 . . . . . . .  44a

D. Petition for Rehearing of Petition for Writ of Pro­
hibition and Mandamus and Suggestion of In Banc
Hearing .................................... ......... . . . . ____ . . .  45a-53a

E. Order of United States Court of Appeals for the 
S ix th  C ircu it Denying Petition for Rehearing
August 24, 1972 .................. .. 54a

F. Constitutional and Statutory Provisions Involved

(1) Constitution of the United States, Article III,
Section 2; Article V . . . . . . . . . . . . . . . . . . . .  55a

(2) Constitution of the State of Michigan, Article
VIII, Section 2 ............................................... .. 55a

(3) Statute of the United States, 28 U.S.C. 2281 . 56a

(4) S ta tu te  of the State of Michigan, MCLA
340.352, MSA 15.3352 ......................... .. 56a



la

APPENDIX A

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, AMER­
ICAN FEDERATION OF TEACH­
ERS, AFL-CIO,

Defendant-
liiterveeor

and
DENISE MAGDOWSKI, et al.,

Defendamts-

CIVIL ACTION 
No. 35257

ET AL.
Interveeor

RULING ON DESEGREGATION AREA
AND

ORDER FOR DEVELOPMENT OF PLAN OF DESEGREGATION

On September 27, 1971 the court made its Ruling on Issue of 
Segregation, holding that illegal segregation exists in the public 
schools of the City of Detroit as a result of a course of conduct on 
the part of the State of Michigan and the Detroit Board of 
Education. Having found a constitutional violation as established, 
on October 4, 1971 the court directed the school board 
defendants, City and State, to develop and submit plans of 
desegregation, designed to achieve the greatest possible degree of 
actual desegregation, taking into account the practicalities of the 
situation. The directive called for the submission of both a



2a

“Detroit-only” and a “Metropolitan” plan.

Plans for the desegregation of the Detroit schools were 
submitted by the Detroit Board of Education and by the 
plaintiffs. Following five days of hearings the court found that 
while plaintiffs’ plan would accomplish more desegregation than 
now obtains in the system, or which would be achieved under 
either Plan A or C of the Detroit Board of Education submissions, 
none of the plans would result in the desegregation of the public 
schools of the Detroit school district. The court, in its findings of 
fact and conclusions of law, concluded that “relief of segregation 
in the Detroit public schools cannot be accomplished within the 
corporate geographical limits of the city,” and that it had the 
authority and the duty to look beyond such limits for a solution 
to the illegal segregation in the Detroit public schools. 
Accordingly, the court ruled, it had to consider a metropolitan 
remedy for segregation.

The parties submitted a number of plans for metropolitan 
desegregation. The State Board of Education submitted six - 
without recommendation, and without indicating any preference. 
With the exception of one of these, none could be considered as 
designed to accomplish desegregation. On the other hand the 
proposals of intervening defendant Magdowski, et al., the Detroit 
Board of Education and the plaintiffs were all good faith efforts to 
accomplish desegregation in the Detroit metropolitan area. The 
three plans submitted by these parties have many similarities, and 
all of them propose to incorporate, geographically, most-and in 
one instance, all-of the three-county area of Wayne, Oakland and 
Macomb.

The hearing on the proposals have set the framework, and have 
articulated the criteria and considerations, for developing and 
evaluating an effective plan of metropolitan desegregation. None 
of the submissions represent a complete plan for the effective and 
equitable desegregation of the metropolitan area, capable of 
implementation in its present form. The court will therefore draw 
upon the resources of the parties to devise, pursuant to its 
direction, a constitutional plan of desegregation of the Detroit 
public schools.



3a

Based on the entire record herein, the previous oral and written 
rulings and orders of this court, and the Findings of Fact and 
Conclusions of Law filed herewith, IT IS ORDERED:

I.

A. As a panel charged with the responsibility of preparing and 
submitting an effective desegretation plan in accordance with the 
provisions of this order, the court appoints the following:

1. A designee of the State Superintendent of Public
Instruction;*

2. Harold Wagner, Supervisor of the Transportation Unit in
the Safety and Traffic Education Program of the State
Department of Education;

3. Merle Henrickson, Detroit Board of Education;

4. Aubrey McCutcheon, Detroit Board of Education;

5. Freeman Flynn, Detroit Board of Education;

6. Gordon Foster, expert for plaintiffs;

7. Richard Morshead, representing defendant Magdowski, et 
ah;

8. A designee of the newly intervening defendants;*

9. Rita Scott, of the Michigan Civil Rights Commission.

Should any designated member of this panel be unable to serve, 
the other members of the panel shall elect any necessary 
replacements, upon notice to the court and the parties. In the 
absence of objections within five days of the notice, and pending a 
final ruling, such designated replacement shall act as a member of 
the panel.

*The designees of the State Superintendent of Public Instruction and newly 
intervening defendants shall be com m unicated to  the court w ithin seven days 
of the entry of this order, in  the event the newly intervening defendants 
cannot agree upon a designee, they may each subm it a nominee w ithin seven 
days from the entry of this order, and the court shall select one of the 
nominees as representative of said defendants.



4a

B. As soon as possible, but in no event later than 45 days after 
the issuance of this order, the panel is to develop a plan for the 
assignment of pupils as set forth below in order to provide the 
maximum actual desegregation, and shall develop as well a plan for 
the transportation of pupils, for implementation for all grades, 
schools and clusters in the desegregation area. Insofar as required 
by the circumstances, which are to be detailed in particular, the 
panel may recommend immediate implementation of an interim 
desegregation plan for grades K-6, K-8 or K-9 in all or in as many 
clusters as practicable, with complete and final desegregation to 
proceed in no event later than the fall 1973 term. In its 
transportation plan the panel shall, to meet the needs of the 
proposed pupil assignment plan, make recommendations, includ­
ing the shortest possible time tab le , for acquiring sufficient 
additional transportation facilities for any interim or final plan of 
desegregation. Such recommendations shall be filed forthwith and 
in no event later than 45 days after the entry of this order. Should 
it develop that some additional transportation equipment is 
needed for an interim plan, the panel shall make recommendations 
for such acquisition within 20 days of this order.

C. The parties, their agents, employees, successors and all others 
having actual notice of this order shall cooperate fully with the 
panel in their assigned mission, including, but not limited to, the 
provision of data and reasonable full and part-time staff assistance 
as requested by the panel. The State defendants shall provide 
support, accreditation, funds, and otherwise take all actions 
necessary to insure that local officials and employees cooperate 
fully with the panel. All reasonable costs incurred by the panel 
shall be borne by the State defendants; provided, however, that 
staff assistance or other services provided by any school district, 
its employees or agents, shall be without charge, and the cost 
thereof shall be borne by such school district.

II.

A. Pupil reassignment to accomplish desegretation of the 
Detroit public schools is required within the geographical area 
which may be described as encompassing the following school 
districts (see Exhibit P.M. 12), and hereinafter referred to as the 
“desegregation area” :



5a

Lakeshore 
Lakeview 
Roseville 
South Lake 
East Detroit 
Grosse Pointe 
Centerline 
Fitzgerald 
Van Dyke 
Fraser
Harper Woods 
Warren
Waneit Woods
Clawson
Hamtramck
Lamphere
Madison Heights
Troy

Birmingham 
Hazel Park 
Highland Park 
Royal Oak 
Berkley 
Ferndale 
Southfield 
Bloomfield Hills 
Oak Park 
Redford Union 
West Bloomfield 
Clarenceville 
Farmington 
Livonia 
South Redford 
Crestwood 
Dearborn 
Dearborn Heights

Fair lane
Garden City
North Dearborn Heights
Cherry Hill
Inkster
Wayne
Westwood
Ecorse
Romulus
Taylor
River Rouge
Riverview
Wyandotte
Allen Park
Lincoln Park
Melvindale
Southgate
Detroit

Provided, however, that if in the actual assignment of pupils it 
appears necessary and feasible to achieve effective and complete 
racial desegregation to reassign pupils of another district or other 
districts, the desegregation panel may, upon notice to the parties, 
apply to the Court for an appropriate modification of this order.

B. Within the limitations of reasonable travel time and distance 
factors, pupil reassignments shall be effected within the clusters 
described in Exhibit P.M. 12 so as to achieve the greatest degree of 
actual desegregation to the end that, upon implementation, no 
school, grade or classroom be substantially disproportionate to the 
overall pupil racial composition. The panel may, upon notice to 
the parties, recommend reorganization of clusters within the 
desegregation area in order to minimize administrative inconven­
ience, or time and/or numbers of pupils requiring transportation.

C. Appropriate and safe transportation arrangements shall be 
made available without cost to all pupils assigned to schools 
deemed by the panel to be other than “walk-in” schools.

D. Consistent with the requirements of maximum actual 
desegregation, every effort should be made to minimize the 
numbers of pupils to be reassigned and requiring transportation, 
the time pupils spend in transit, and the number and cost of new 
transportation facilities to be acquired by utilizing such techniques 
as clustering, the “skip” technique, island zoning, reasonable



6a

staggering of school hours, and maximization of use of existing 
transportation facilities, including buses owned or leased by school 
districts and buses operated by public transit authorities and 
private charter companies. The panel shall develop appropriate 
recommendations for limiting transfers which affect the 
desegregation of particular schools.

E. Transportation and pupil assignment shall, to the extent 
consistent with maximum feasible desegregation, be a two-way 
process with both black and white pupils sharing the responsibility 
for transportation requirements at all grade levels. In the 
determination of the utilization of existing, and the construction 
of new, facilities, care shall be taken to randomize the location of 
particular grade levels.

F. Faculty and staff shall be reassigned, in keeping with pupil 
desegregation, so as to prevent the creation or continuation of the 
identification of schools by reference to past racial composition, 
or the continuation of substantially disproportionate racial 
composition of the faculty and staffs, of the schools in the 
desegregation area. The faculty and staffs assigned to the schools 
within the desegregation area shall be substantially desegregated, 
bearing in mind, however, that the desideratum is the balance of 
faculty and staff by qualifications for subject and grade level, and 
then by race, experience and sex. In the context of the evidence in 
this case, it is appropriate to require assignment of no less than 
10% black faculty and staff at each school, and where there is 
more than one building administrator, every effort should be made 
to assign a bi-racial administrative team.

G. In the hiring, assignment, promotion, demotion, and 
dismissal of faculty and staff, racially non-discriminatory criteria 
must be developed and used; provided, however, there shall be no 
reduction in efforts to increase minority group representation 
among faculty and staff in the desegregation area. Affirmative 
action shall be taken to increase minority employment in all levels 
of teaching and administration.

H. The restructuring of school facility utilization necessitated 
by pupil reassignments should produce schools of substantially 
like quality, facilties, extra-curricular activities and staffs; and the



7a

utilization of existing school capacity through the desegregation 
area shall be made on the basis of uniform criteria.

I. The State Board of Education and the State Superintendent 
of Education shall with respect to all school construction and 
expansion, “consider the factor of racial balance along with other 
educational considerations in making decisions about new school 
sites, expansion of present facilties * * and shall, within the 
desegregation area disapprove all proposals for new construction 
or expansion of existing facilities when “housing patterns in an 
area would result in a school largely segregated on racial * * * 
lines,” all in accordance with the 1966 directive issued by the 

State Board of Education to local school boards and the State 
Board’s “School Plant Planning Handbook” (see Ruling on Issue 
of segregation, p. 13.).

J. Pending further orders of the court, existing school district 
and regional boundaries and school governance arrangements will 
be maintained and continued, except to the extent necessary to 
effect pupil and faculty desegregation as set forth herein; 
provided, however, that existing administrative, financial, 
contractual, property and governance arrangements shall be 
examined, and recommendations for their temporary and 
permanent retention or modification shall be made, in light of the 
need to operate an effectively desegregated system of schools.

K. At each school within the desegregated area provision shall 
be made to insure that the cirriculum, activities, and conduct 
standards respect the diversity of students from differing ethnic 
backgrounds and the dignity and safety of each individual, 
students, faculty, staff and parents.

L. The defendants shall, to insure the effective desegregation 
of the schools in the desegregation area, take immediate action 
including, but not limited to, the establishment or expansion of 
in-service training of faculty and staff, create bi-racial committees, 
employ black counselors, and require bi-racial and non-discrimin- 
atory extra-curricular activities.

III.

The State Superintendent of Public Instruction, with the



8a

assistance of the other state defendants, shall examine, and make 
recommendations, consistent with the principles established 
above, for appropriate interim and final arrangements for the (1) 
financial, (2) administrative and school governance, and (3) 
contractual arrangements for the operation of the schools within 
the desegregation area, including steps for unifying, or otherwise 
making uniform the personnel policies, procedures, contracts, and 
property arrangements of the various school districts.

Within 15 days of the entry of this order, the Superintendent 
shall advise the court and the parties of his progress in preparing 
such recommendations by filing a written report with the court 
and serving it on the parties. In not later than 45 days after the 
entry of this order, the Superintendent shall file with the court his 
recommendations for appropriate interim and final relief in these 
respects.

In his examination and recommendations, the Superintendent, 
consistent with the rulings and orders of this court, may be 
guided, but not limited, by existing state law; where state law 
provides a convenient and adequate framework for interim or 
ultimate relief, it should be followed, where state law either is 
silent or conflicts with what is necessary to achieve the objectives 
of this order, the Superintendent shall independently recommend 
what he deems necessary. In particular, the Superintendent shall 
examine and choose one appropriate interim arrangement to 
oversee the immediate implementation of a plan of desegregation.

IV.

Each party may file appropriate plans or proposals for inclusion 
in any final order which may issue in this cause. The intent of this 
order is to permit all the parties to proceed apace with the task 
before us: fashioning an effective plan for the desegregation of the 
Detroit public schools.

Fifteen days after the filing of the reports required herein, 
hearings will begin on any proposal to modify any interim plan 
prepared by the panel and all other matters which may be incident 
to the adoption and implementation of any interim plan of 
desegregation submitted. The parties are placed on notice that 
they are to be prepared at that time to present their objections,



9a

alternatives and modifications. At such hearing the court will not 
consider objections to desegregation or proposals offered 
“instead” of desegregation.

Hearings on a final plan of desegregation will be set as 
circumstances require.

DATE: JUNE 14, 1972.

/s/ Stephen J. Roth 
United States District Judge



10a

APPENDIX B
IN THE UNITED STATES COURT OF APPEALS 

FOR THE 6th CIRCUIT

WEST BLOOMFIELD SCHOOL DIS­
TRICT OF OAKLAND COUNTY, 
M ICH IG A N  and CLARENCE- 
VILLE SCHOOL DISTRICT OF 
OAKLAND AND WAYNE COUN­
TIES, MICHIGAN,

Petitioners, Docket No.
-vs-

THE HONORABLE STEPHEN J. 
ROTH, District Judge for the East­
ern District of Michigan, Southern 
Division,

Respondent.

PETITION FOR WRIT OF 
PROHIBITION AND MANDAMUS

TO: THE HONORABLE JUDGES OF THE UNITED STATES 
COURT OF APPEALS FOR THE 6th CIRCUIT

NOW COMES WEST BLOOMFIELD SCHOOL DISTRICT of 
Oakland County, Michigan, and CLARENCEVILLE SCHOOL 
DISTRICT of Oakland and Wayne Counties, Michigan, by their 
attorneys, Dell, Shantz, Booker and Schulte, and in this their Peti­
tion for issuance of a Writ of Prohibition and Mandamus, do re­
spectfully show unto this Honorable Court as follows:

I JURISDICTIONAL STATEMENT

1. The Petitioner, WEST BLOOMFIELD SCHOOL DISTRICT, 
is a School District of the Third Class, organized under the laws of 
the State of Michigan, more particularly, Act 269 of Public Acts 
of 1955, as amended, MSA 15.3001, et seq. Geographically, WEST 
BLOOMFIELD SCHOOL DISTRICT is located North and West 
of the City of Detroit, Michigan.



11a

2. The Petitioner CLARENCEVILLE SCHOOL DISTRICT is a 
School District of the Third Class organized under the laws of the 
State of Michigan, more particularly, Act 269 of Public Acts of 
1955 as amended, MCLA 340.1, et seq, and MSA 15.3001, et seq. 
Geographically, CLARENCEVILLE SCHOOL DISTRICT is locat­
ed to the West of the City of Detroit, and is located in part in 
Oakland County and in part in Wayne County.

3. Jurisdiction of the Court of Appeals is invoked under Sec­
tion 1651 of Title 28 of the United States Code and Rule 21 of 
the Federal Rules of Appellate Procedure. The relief sought is not 
available in any other manner in that the Petitioners are not a par­
ty to the litigation hereinafter more completely identified in Ex­
hibit A annexed hereto, and for brevity, generally referred to as 
Ronald Bradley, et al -vs- William Milliken, et al, being civil action 
No. 35257 in the United States District Court for the Eastern Dis­
trict of Michigan, Southern Division.

The alternative available to the Petitioners to contest the pro­
priety of the rulings and judgment of the Trial Court is refusal to 
obey the Orders of the Court, which refusal would carry with it 
the threat of punishment by contempt. It Is respectfully submitted 
th a t th is provides no real alternative to conscientious and 
thoughtful members of the Board of Education and staff of the 
respective Petitioning School Districts and that there is in reality, 
only one remedy available, and that this Petition for Writ of 
Prohibition and Mandamus is such remedy.

II RULINGS AND ORDERS OF TRIAL COURT 
BELOW AND OTHER EXHIBITS

Attached hereto and by reference incorporated herein are the 
Rulings and Orders of the Honorable Stephen J. Roth, District 
Judge in the case of Ronald Bradley, et al -vs- William Milliken, et 
al, Civil Action No. 35257, United States District Court, Eastern 
District of Michigan, Southern Division, and other pertinent Ex­
hibits all of which are more specifically identified as follows:

Exhibit A - Full entitlement of said cause.

Exhibit B - Ruling on issue of segregation by Trial Court, Sep­
tember 27, 1971.



12a

Exhibit C - Findings and conclusions of law on Detroit. Only 
plans of de-segregation of Trial Court, March 28, 
1972.

Exhibit D - Findings of fact and conclusions of law in support 
of ruling on de-segregation area and development of 
plan by Trial Court June 14, 1972.

Exhibit E - Ruling on de-segregation area and Order for devel­
opment of plan of de-segregation of Trial Court, 
June 14, 1972.

Exhibit F - Copy of Plaintiffs5 Complaint.

Exhibit G - A ffidav it o f Assistant Superintendent of West 
Bloomfield School District.

Exhibit H - Affidavit of Superintendent of Clarenceville School 
District.

Exhibit I - Excerpts from Transcript of proceedings on April 
13, 1972 before Trial Court (uncertified).

Exhibit J - Plaintiffs’ Exhibit PM-12 (identifying school district 
“clusters”).

Exhibit K - Map of area including identification of petitioning 
school districts.

Ill QUESTIONS OF LAW PRESENTED

A brief review of Exhibits A through F, inclusive, will demon­
strate that the Petitioners were neither a party-Plaintiff nor Defen­
dant to the litigation in the Trial Court below, and did not seek to 
intervene therein. Neither Petitioning School District was served 
with process nor was either School District joined as a party to 
said proceedings in any manner. Notwithstanding these basic juris­
dictional defects, both petitioning School Districts were included 
as one of the fifty-two (52) School Districts included in the de­
segregation area described in the Order of June 14,19721  ̂1 .These

[1] Although 53 districts are included in the Ruling and Order, Exhibit E, 
two of the Districts, Dearborn and Fairlane merged.



13a

circumstances, and the statement of facts and law hereinafter set 
forth, give rise to four legal questions which may be briefly stated 
as follows:

A. DOES A FEDERAL DISTRICT COURT HAVE JURIS­
DICTION TO INCLUDE A SCHOOL DISTRICT OF THE 
STATE OF MICHIGAN IN A DE-SEGREGATION ORDER OF 
SAID COURT WHERE SAID SCHOOL DISTRICT HAS NOT 
BEEN SERVED WITH PROCESS FROM SAID COURT; IS 
NOT A PARTY TO SAID SUIT; AND HAS NOT INTER­
VENED THEREIN?

B. WHERE A FEDERAL DISTRICT COURT'S FINDING 
OF DE JURE SEGREGATION IS LIMITED TO POLICIES 
AND PRACTICES SOLELY WITHIN THE CITY OF DETROIT 
SCHOOL DISTRICT, DOES SAID COURT HAVE JURISDIC­
TION TO EXTEND THE REMEDY FOR SUCH FINDING TO 
INCLUDE A SCHOOL DISTRICT WHICH IS NOT NOW, NOR 
HAS IT BEEN IN THE PAST, A PART OF SAID CITY OF 
DETROIT SCHOOL DISTRICT, WHERE SAID PETITIONING 
SCHOOL DISTRICT IS NOT A PARTY TO, NOR INTERVEN- 
OR IN, THE LITIGATION BEFORE THE TRIAL COURT BE­
LOW?

It should be noted that the State of Michigan is not a party to 
the litigation in the Trial Court. The absence of the State of Mich­
igan as a party, it not having consented to be sued, suggests yet 
another jurisdictional question:

C. DOES THE FEDERAL DISTRICT COURT HAVE THE 
JURISDICTION TO ORDER AN AGENCY OF THE STATE 
OF MICHIGAN TO COMPLY WITH THE ORDERS OF SAID 
COURT, WHERE NEITHER THE STATE OF MICHIGAN, 
NOR SAID AGENCY OF THE STATE, ARE PARTIES TO, 
NOR INTERVENORS IN, THE LITIGATION FROM WHICH 
SAID ORDER FLOWS?

The Petitioners believe that the answer to each question posed 
above must be in the negative.

Separate from, but nonetheless interwoven with the questions 
above, is yet another basic question of jurisprudence suggested by



14a

the direct constitutional challenge to the Constitution and Statues 
of the State of Michigan expressed and inherent in the Court’s rul­
ings. This challenge causes the Petitioners to propose an additional 
question which is likewise jurisdictional in nature:

D. WHERE A FEDERAL DISTRICT JUDGE SEEKS TO 
IMPOSE EQUITABLE RELIEF IN A DE-SEGREGATION 
SUIT, WHICH BY THE TERMS OF SUCH RELIEF, CHAL­
LENGES THE CONSTITUTIONALITY OF THE CONSTITU­
TION AND STATUTES OF THE STATE OF MICHIGAN AND 
ENJOINS THE OPERATION OF SUCH STATUTES IN SOME 
FIFTY-TWO (52) SCHOOL DISTRICTS, DOES THE FAIL­
URE OF THE TRIAL COURT TO CONVENE A THREE (3) 
JUDGE PANEL UNDER 28 U.S.C. 2281 DEPRIVE THE 
TRIAL COURT OF JURISDICTION AND VOID ITS ORDERS 
WITH RESPECT THERETO?

The Petitioners believe that this question must be answered in 
the affirmative.

It would appear that the Trial Court conceives the answer to all 
such jurisdictional questions to be otherwise than as indicated by 
the Petitioners. Your Petitioners respectfully suggest, however, 
that the Trial Court’s references to these crucial and basic juris­
dictional questions is both cursory and erroneously]

IV CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED

1. The provisions of the Constitution of the United States at 
issue herein are as follows:

ARTICLE III
SECTION 2. The Judicial Power shall extend to all Cases, in 

Law and Equity, arising under this Constitution, the Laws of 
the United States, and Treaties made, or which shall be made, 
under their Authority; -  to all Cases affecting Ambassadors, 
other public Ministers and Consuls; -  to all Cases of admiralty 
and maritime Jurisdiction; -- to Controversies to which the 
United States shall be a Party; -- to Controversies between two 
or more States; -  between a State and Citizens of another State; 
-- between Citizens of different States, -  between Citizens of 

[2] Reference Exhibit D, n i l ,  page 36.



15a

the same State claiming Lands under Grants of different States, 
and between a State, or the Citizens thereof, and foreign States, 
Citizens or Subjects.

ARTICLE X

The powers not delegated to the United States by the Cons­
titution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people.

ARTICLE XI

The Judicial power of the United States shall not be con­
strued 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.

ARTICLE XIV

SECTION 1. All persons bom or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of the 
United States and of the State wherein they reside. No State 
shall make or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States; nor shall any 
State deprive any person of life, liberty, or property, without 
due process of law; nor deny to any person within its jurisdic­
tion the equal protection of the laws.

2. The provisions of the Constitution of the State of Michigan 
at issue are as follows:

ARTICLE VIII

SECTION 2. The legislature shall maintain and support a 
system of free public elementary and secondary schools as de­
fined by law. Every school district shall provide for the educa­
tion of its pupils without discrimination as to religion, creed, 
race, color or national origin.

3. The Statutes of the United States in issue are:

28 United States Code 1343

The district courts shall have original jurisdiction of any civil



16a

action authorized by law to be commenced by any person:

(3) To redress the deprivation, under color of any State law, 
statute, ordinance, regulation, custom or usage, of any right, 
privilege or immunity secured by the Constitution of the United 
States or by any Act of Congress providing for equal rights of 
citizens or of all persons within the jurisdiction of the United 
States;

(4) To recover damages or to secure equitable or other relief 
under any Act of Congress providing for the protection of civil 
rights, including the right to vote.

28 United States Code 2281

An interlocutory or permanent injunction restraining the en­
forcement, operation or execution of any State statute by re­
straining the action of any officer of such State in the enforce­
ment or execution of such statute or of an order made by an 
administrative board or commission acting under State statutes, 
shall not be granted by any district court or judge thereof upon 
the ground of the unconstitutionality of such statute unless the 
application therefor is heard and determined by a district court 
of three judges under section 2284 of this title.

4. The Statutes of the State of Michigan at issue are as follows:

Act 269 o f Public Acts o f  Michigan o f 1955, as amended 
(MCLA 340.1, et seq) specifically including the following 
sec tions:

a. Preamble:

“AN ACT to provide a system of public instruction and pri­
mary schools; to provide for the classification, organization, 
regulation and maintenance of schools and school districts; to 
prescribe their rights, powers, duties and privileges; to pro­
vide for registration of school districts, and to prescribe 
powers and duties with respect thereto; to provide for and 
prescribe the powers and duties of certain boards and 
officials; to prescribe penalties; and to repeal certain acts and



17a

parts of acts.”

b. Chapter 1, Section 2, MCLA 340.2:

“Hereafter, except as otherwise provided in this act, each and 
every school district shall be organized and conducted as:

1. A primary school district; or

2. A school district of the fourth class; or

3. A school district of the third class; or

4. A school district of the second class; or

5. A school district of the first class.”

c. Section 352 (MCLA 340.352, MSA 15.3352)

“Every school district shall be a body corporate under the 
name provided in this act, and may sue and be sued in its name, 
may acquire and take property, both real and personal, for 
educational purposes within or without its corporate limits, by 
purchase, gift, grant, devise or bequest, and hold and use the 
same for such purposes, and may sell and convey the same as 
the  interests of such district may require, subject to the 
conditions of this act contained. As such body corporate, every 
school district shall be the successor of any school district 
previously existing within the same territorial limits and shall be 
vested with all rights of action, with the title of all property, 
real and personal, of the district of which it is the successor, 
and the indebtedness and obligations of the district of which it 
is the successor, and the indebtedness and obligations of the dis­
trict superseded shall become and be the indebtedness and obli­
gations of the succeeding district, except as otherwise provided 
in chapters 3, 4 and 5, part 2 of this act. Every school district 
shall in all cases be presumed to have been legally organized 
when it shall have exercised the franchises and privileges of a 
district for the term of 2 years; and such school district and its 
officers shall be entitled to all the rights, privileges and immu­
nities, and be subject to all the duties and liabilities conferred 
upon school districts by law.”



18a

V. STATEMENT OF CASE

On August 18, 1970, Plaintiffs brought suit alleging violation of 
Constitutional rights and seeking a declaration that Act 48 of Pub­
lic Acts of 1970 be declared unconstitutional and requesting 
additional injunctive relief, t^l

The Trial Court, in its “Ruling on Issue of Segregation” dated 
September 27, 1971, found that the Defendant-City of Detroit 
School District had committed acts, countenanced by the State 
Defendants, which resulted in de jure segregation of the Detroit 
Schools. No finding of the Court, attached hereto as Exhibit B and 
C suggests that the failure to maintain a unitary system in the 
Detroit Public Schools was caused by, or attributable to, the cre­
ation of the petitioning school districts or any other such indepen­
dent school district in the so-called metropolitan area including 
other school districts located in the County of Wayne, County of 
Oakland and County of Macomb, excepting the Detroit district. 
Such acts upon which the Trial Court purports to predicate his 
findings, relates solely to policies or practices confined to the 
Detroit School District. Notwithstanding these limitations of its 
own findings, the Trial Court on March 28, 1972 announced that a 
“Metropolitan Plan” would be required to accomplish de-segre- 
gation of the Detroit School District, relying in the main upon the 
recently reversed District Court decision in Bradley -vs- School 
Board o f  the City o f Richmond, 338 F Supp 67 (E.D. VA. 1972) 
reversed by the 4th Circuit Court of Appeals in F 2d ,
June 5, 1972, 40 LW 2813. Thereafter, on June 14, 1972, the 
Trial Court, after further testimony and evidence, entered its 
Order identifying the “de-segregation area” to be encompassed by 
the Metropolital Plan. The petitioning school districts were includ­
ed in the “de-segregation area” along with some fifty-two (52) 
other school districts all outside the limits of the Detroit School 
District which district boundaries are coterminus with the bound­
aries of the City of Detroit, 15] The Petitioning School Districts 
were not parties to the litigation and did not intervene therein, t^l 
Nonetheless, the petitioning School Districts were included in the
13] Reference n l of Plaintiff’s Com plaint, Exhibit F.
14] Reference Plaintiff’s C om plaint, page 12, etc., Exhibit F.

[5] Reference Exhibit E, n il ,  A, page 5.
16] Reference Exhibit A.



19a

de-segregation area and ordered to “cooperate fully” with the 
panel of persons selected by the Court and charged with the re­
sponsibility of developing the details of the de-segregation plan 
within the framework delineated by the Trial Court in its Order of 
June 14, 1972, which Order includes the following provision:

“C. The parties, their agents, employees, successors, and all 
others having actual notice of this order shall cooperate fully 
with the panel in their assigned mission, including, but not 
limited to, the provision of data and reasonable full and part- 
time staff assistance as requested by the panel. The State defen­
dants shall provide support, accreditation, funds, and otherwise 
take all actions necessary to insure that local officials and em­
ployees cooperate fully with the panel. All reasonable costs in­
curred by the panel shall be borne by the State defendants; pro­
vided, however, that staff assistance or other services provided 
by any school district, its employees or agents, shall be without 
charge, and the cost thereof shall be borne by such school dis­
trict.” f^l
It is contended by the Petitioners that the inclusion of these 

school districts in said “desegregation order” without trial on the 
merits of the alleged constitutional violations is wholly erroneous 
and that it constitutes the reckless attempt by the District Court 
to extend the power of the judiciary and represents an unpre­
cedented, direct challenge to the sovereign power of the State of 
Michigan. It likewise represents the total abandonment of all con­
cepts of jurisdiction, notice, due process, and the right to an 
adjudication on the merits.

VI ARGUMENT

There can be no question that School Districts of the State of 
Michigan are municipal corporations. Marathon School District 
No. 4 -vs- Gage, 39 Mich. 484 (1878); or at the very least a quasi­
municipal corporation. King -vs- School District No. 5, 261 Mich. 
605 (1933). School Districts are State agencies deriving their 
power and authority from the Constitution of the State and 
legislature. Public Schools o f Battle Creek -vs- Kennedy, 245 Mich 
585 (1929) and Board o f Education o f Detroit -vs- Superintendent 
o f Public Instruction, 319 Mich 436 (1947). Each school district

171 Reference Exhibit E, ill, C.



20a

has the power to “sue and be sued in its name” ,

The State of Michigan is not a party to this litigation. The so- 
called State defendants, i.e. the Governor and Attorney General, 
and Superintendent of Public Instruction, have no plenary powers 
as to this Respondent under the Michigan Constitution, The 
State Board of Education has “leadership and general supervision 
over all public education” HO] ? an(j serves as a “general planning 
and coordinating body for all public education” HO],

None of the State Defendants has the power to create or alter 
the boundaries of school districts. School District o f the City o f  
Lansing -vs- Michigan State Board o f Education, 367 Mich 591 
(1962). Nor do the State Defendants have the authority to require 
local districts to admit non-resident pupils to the District. That 
authority is vested in the legislature which has provfded specific 
statutory authority and control of such transfers to be vested in 
the local school district. H I] This provision was confirmed in Jones 
vs- Grand Ledge Public Schools, 349 Mich 1 (195 7).

“We are in accord with the finding of the trial judge that under 
the present school code the defendant school district is not 
charged with the duty of accepting nonresident pupils. The 
language of the statute must be construed as it reads. It is not 
within the province of this Court to read therein a mandate that 
the legislature has not seen fit to incorporate. Our duty is to 
apply the law as we find it....”

Jones, supra, page 11

The constitutional character of school districts has been rec­
ognized in Detroit Board o f Education -vs- Superintendent o f  
Public Instruction, 319 Mich 436 (1947). There the Supreme 
Court of Michigan found unconstitutional (under the Michigan 
Constitution of 1908) an attempt by the State legislature to create 
a statewide school district to share in sales tax revenues then 
provided by provision of the 1908 Constitution. The Court held:
[8] §352, Public Act 269 of Public Acts of 1955, MCL 1948, §340.352

MSA 15.3352.
Reference Article V, Michigan C onstitution, § 1-29.

[10] Reference Article VIII, Michigan C onstitution, § 3.
[ I N  Reference §582, Act 269 of Public Acts of 1955; MCL 1948, §340.582, 

MSA 15.3582.



21a

“We hold that the State school district sought to be created by 
this Act is not a ‘school district’ within the meaning of the term 
as used in Article X, Section 23 of the Constitution.”

Detroit Board o f Ed., supra, page 451
The petitioner suggests that Section 2 of Article VIII of the pre­

sent Michigan Constitution reinforces the constitutional character 
of local school districts in Michigan. That Section provides as 
follows:

“The legislature shall maintain and support a system of free 
public elementary and secondary schools as defined by law. 
Every school district shall provide for the education of its pupils 
without discrimination as to religion, creed, race, color or 
national origin.”
Having thus identified the constitutional nature of Michigan 

school districts, and having demonstrated that these constitutional 
entities are entitled to due process, let us turn to the treatment of 
these school districts by the Trial Court as witnessed in its findings 
of fact and ruling on de-segregation area and order for develop­
ment of plan of de-segregation H 21

The Trial Court apparently conceives that Hunter -vs- City o f  
Pittsburgh, 207 U.S. 161 (1907), cited by the Trial Court in para­
graph 11 of Exhibit E and in footnote 22 to that Exhibit, clothes 
the Trial Court with judicial precedent for sweeping jurisdictional 
and due process requirements under some convenient judicial rag. 
Since the Trial Court relied upon it so heavily (having referred to 
Hunter, supra, in open Court) H3] ? We deem it appropriate to 
direct the Court of Appeal’s attention to the decision.

The Trial Court’s interpretation of Hunter, supra, is untenable. 
Hunter, supra, involves the consolidation of the City of Allegheny 
and the City of Pittsburgh, Pennsylvania. Plaintiff-residents of the 
City of Allegheny objected to the consolidation and to the entry 
of a decree confirming the consolidation which had been taken in 
conformity with a Statute of the General Assembly of Penn­
sylvania. The Plaintiffs claimed the action deprived them of feder­
ally guaranteed rights. In denying this argument, the Supreme
[12] Reference Exhibits D and E.

[13] Reference Exhibit I, Excerpt from proceedings, April 13, 1972.



22a

Court held:

“ ....Municipal corporations are political subdivisions of the 
state, created as convenient agencies for exercising such of the 
governmental powers of the state as may be intrusted to them. 
F or the  purpose of executing these powers properly and 
efficiently they usually are given the power to acquire, hold, 
and manage personal and real property. The number, nature, 
and duration of the powers conferred upon these corporations 
and the territory over which they shall be exercised rests in the 
absolute discretion of the state. Neither their charters, nor any 
law conferring governmental powers, or vesting in them prop­
erty to be used for governmental purposes, or authorizing them 
to hold or manage such property, or exempting them from tax­
ation upon it, constitutes a contract with the state within the 
meaning of the Federal Constitution. The state, therefore, at its 
pleasure, may modify or withdraw all such powers, may take 
without compensation such property, hold it itself, or vest in it 
other agencies, expand or contract the territorial area, unite the 
whole or a part of it with another municipality, repeal the char­
ter and destroy the corporation. All this may be done, con­
ditionally or unconditionally, with or without the consent of 
the citizens, or even against their protest. In all these respects 
the state is supreme, and its legislative body, conforming its 
action to the state Constitution, may do as It will, unrestrained 
by any provision of the Constitution of the United States. 
Although the inhabitants and property owners may, by such 
changes, suffer inconvenience, and their property may be 
lessened in value by the burden of increased taxation, or for any 
other reason, they have no right, by contract or otherwise, in 
the unaltered or continued existence of the corporation or its 
powers, and there is nothing in the Federal Constitution which 
protects them from these injurious consequences. The power is 
in the state, and those who legislate for the state are alone 
responsible for any unjust or oppressive exercise of it.”

Hunter, supra, 1 78, 1 79 
Emphasis added

The case clearly stands for the proposition that the State legis­
la tu re  may modify its municipal subdivisions including the 
boundaries thereof. There is no suggestion in Hunter that the



23a

power is likewise conferred on the United States District Court. 
The Supreme Court’s decision in Hunter is diametrically opposed 
to the contorted interpretation which the Trial Court has imposed 
upon the language of that decision in order to utilize it to ignore 
the jurisdictional requirements as to this and other school districts. 
It is interesting to note that in Bradley, et al -vs- School Board o f  
the City o f  Richmond,_F  2d_(CA 4, June 5, 1972) 40 LW 2813, 
the 4th Circuit, applied Hunter in reversing the decision of the Dis­
trict Court.

A further key to the Trial Court’s total disregard for the juris­
dictional and due process requirements to be afforded to the 
petitioning school districts is found in the opening paragraph of 
the Findings of Fact and Conclusions of Law filed on June 14, 
1972 [ ]4].

“ ....It should be noted that the court has taken no proofs with 
respect to the establishment of the boundaries of the 86 public 
school districts in the counties of Wayne, Oakland and Macomb, 
nor on the issue of whether, with the exclusion of the city of 
Detroit school district, such school districts have committed 
acts of de jure segregation.”

This candid statement as to the total lack of proofs in these 
areas by the Trial Court did not, however, impede the Court from 
proceeding to include some 52 of 86 tri-county school districts 
within its Order. The petitioners urge that it is noteworthy, that if 
the Trial Court had joined the local districts and afforded a hear­
ing on the merits, this evidence would have been before the Court 
for determination.

Notwithstanding the failure of the Trial Court to take proofs on 
the boundaries of the 86 school districts, the Trial Court decided 
that the boundaries of the districts were “artificial” t 14 151. It is re­
spectfully suggested that the obvious contradiction of the Court’s 
finding and candid admission of the total lack of proofs on the 
subjects of the boundaries of the suburban school districts, should 
not go unheeded by this Appellate Court.

[14] Reference Exhibit D, page 1.
[15] Reference Exhibit D, Footnote 7, p. ii.



24a

The Trial Court then proceeds to findings that the 86 school 
districts are a “relevent school community which can serve as an 
initial benchmark” H6] for de-segregating the Detroit District. 
This finding by the Court, is, however, totally unsupported by 
the evidence before the Court with respect to the de jure segrega­
tion which the Court found applicable in the Detroit System Only. 
Nor does this finding by the Court serve as an excuse for denial of 
traditional concepts of due process and jurisdiction.

The Trial Court seeks to dismiss the basic requirements for juris­
diction and due process by concluding that the remedial powers 
available to it are as broad as may be required to effect the social 
reform which the Trial Court deems desirable H 7]

In its ruling, the Trial Court cites some 12 cases which purport­
edly sustain the position that “all steps necessary and essential” to 
protect the constitutional rights of the Plaintiffs may be utilized 
to tramel the constitutional rights of due process and jurisdiction 
of the petitioners. I *7] None of the cases cited by the Trial Court, 
including Hunter, supra, already discussed in detail, suggest the 
precedent which the Trial Court would wrench from the citations. 
The Trial Court cites Swann -vs- Charlotte-Mechlenburg Board o f  
Education, 402 U.S. 1,91 S.Ct. 1267 (1971). But in so citing the 
Sw ann  decision, the Trial Court clearly ignores the judicial 
admonition of Swann.

. . However, a school desegregation case does not differ 
fundamentally from other cases involving the framing o f equit­
able remedies to repair the denial o f  a constitutional right. The 
task is to correct, by a balancing of the individual and collective 
interests, the condition that offends the Constitution.

“In seeking to define even in broad and general terms how far 
this remedial power extends it is important to remember that 
judicial powers may be exercised only on the basis o f a constitu­
tional violation. Remedial judicial authority does not put judges 
automatically in the shoes o f  school authorities whose powers 
are plenary. Judicial authority enters only when local authority 
defaults.

D 6] Reference Exhibit D, f 17, p. 8.
[1^] Reference Exhibit D, f 11, p. 36.



25a

“ [4] School authorities are traditionally charged with broad 
power to formulate and implement educational policy and 
might well conclude, for example, that in order to prepare stu­
dents to live in a pluralistic society each school should have a 
prescribed ratio of Negro to white students reflecting the 
proportion for the district as a whole. To do this as an educa­
tional policy is within the broad discretionary powers of school 
authorities; absent a finding o f a constitutional violation, how­
ever, that would not be within the authority o f  a federal court. 
As with any equity case, the nature of the violation determines 
the scope of the remedy.”

Swann, supra, page 16, Emphasis added

The Trial Court likewise chose to ignore the precedents of the 
6th Circuit in this same case. In Bradley -vs- Milliken, 438 F. 2d, 
945, 946-947, this Court held:

“The issue in this case is not what might be a desirable Detroit 
school plan, but whether or not there are constitutional viola­
tions in the school system as presently operated, and, if so, 
what relief is necessary to avoid further impairment of constitu­
tional rights. There must be a trial on the merits as to the 
alleged constitutional violations as a predicate to relief in the 
federal courts. On the present appeal a second effort is made to 
persuade this court to grant summary relief. The trouble with 
this procedure is that there has never been an evidentiary hear­
ing on the charges set forth in the complaint nor any findings of 
fact with respect to these charges.”

Bradley, supra, Emphasis added

The Trial Court could well have had before it the proofs of the 
establishment of the school districts had it chosen to do so. Having 
elected not to afford the petitioning school districts their day in 
Court, the Trial Court cannot now fashion a remedy as if the peti­
tioners did not exist. Nor may it treat the petitioners as if they 
had been a party to this litigation any more than the Trial Court 
could have reached out to a school district in the City of Toledo, 
Ohio, in order to fashion a “remedy” .

The Affidavits on behalf of the petitioning school districts,



26a

attached hereto as Exhibits G and H, respectively, demonstrate 
that these petitioning school districts came into existence long be­
fore Brown -vs- Board o f Education, 349 U.S. 294 (1955). The 
Trial Court could have well considered the language of Spencer -vs- 
Kugler, 326 F. Supp. 1235, 1242 (NJ, 1971), affirmed in 92 S. Ct. 
707 (1972), wherein it was stated:

“ . . . The creation of these school districts by approval of the 
legislature on September 18, 1953, preceded the historic de­
cision of Brown I, decided on May 17, 1954. The obvious intent 
of the legislature was to maintain a unitary school system as 
Brown I  later required. While the result of such legislation some 
18 years later may be racial imbalance, within certain school 
districts, it does not amount to segregation.”

Spencer, supra, pages 1242 and 1243

Sufiice it to say, the Trial Court’s findings are limited to the 
School District of the City of Detroit and there is no basis for 
spreading the remedy beyond that School District.

The right to be heard is basic to our system of jurisprudence. 
The right to notice, the due process, and to proper hearing and to 
an appropriate hearing before a fair and impartial judiciary should 
require no citation. Nonetheless, the total absence of these qual­
ities in the Trial Court leads one to conclude that from time to 
time, it is necessary to remind all of us who practice before the 
Courts and render the judgments of the Court, that these funda­
mentals cannot be ignored no matter how appealing the claim of 
the plaintiffs nor compelling the necessity for bringing litigation to 
a close.

“A sentence of a court pronounced against a party without 
hearing him, or giving him an opportunity to be heard, is not a 
judicial determination of his rights, and is not entitled to re­
spect in any other tribunal. That there must be notice to a party 
of some kind, actual or constructive, to a valid judgment affect­
ing his rights is admitted. Until notice is given, the court has no 
jurisdiction in any case to proceed to judgment, whatever its 
authority may be, by the law of its organization, over the sub­
ject-matter.”

Hovey -vs-Elliott 167 U.S. 409, 17 S. Ct. 841 (1897)



27a

It likewise is of interest to note that the Trial Court, by refer­
ence to the case of Workman -vs- Board o f Education o f Detroit, 
18 Mich. 399, 412 (1869), would have known that the boundaries 
of the School District of the City of Detroit have been coter­
minous with the city limits of Detroit since 1867. The Statute, 
cited in that case, provided that the “City of Detroit shall be con­
sidered one school district” . That same case, decided unequivocal­
ly, that the right to attend schools “shall be possessed equally and 
impartially by all residents” . The judicial precedent of the State of 
Michigan precedes Brown I  by almost 100 years. Workman, supra, 
clearly identified the right of any resident of the City of Detroit, 
black, white, or otherwise, to attend schools within that district. 
The Constitution of Michigan, in Article VIII, Section 2, referred 
to above, unequivocally reinforces that judicial precedent.

It cannot be overemphasized that there is not an iota of evi­
dence before the Trial Court that the School District boundaries 
to which the Trial Court pays so little heed, were drawn for any 
invidious purpose or that any student of any district outside of the 
City of Detroit, was denied admission to such schools within his 
district of residence because of race, color or creed. As this Circuit 
held in Deal -vs- Cincinnati Board o f Education, 419 F. 2d, 1387, 
1390-1391 (1969):

“On the other hand, our case involves the operation of a 
long-established unitary non-racial school system—just schools 
where Negro as well as white children may attend in the district 
of their residence. There is not an iota of evidence in this record 
where any of the plaintiffs or any of the class which they repre­
sent, was denied admission to a school in the district of his resi­
dence.

“ [2] It is the contention of appellants that the Board owed 
them a duty to bus white and Negro children away from the 
districts of their residences in order that the racial complexion 
would be balanced in each of the many public schools in Cin­
cinnati. It is submitted that the Constitution imposes no such 
duty. Appellants are not the only children who have constitu­
tional rights. There are Negro, as well as white, children who 
may not want to be bussed away from the school districts of 
their residences, and they have just as much right to attend



28a

school in the area where they live. They ought not to be forced 
against their will to travel out of their neighborhoods in order 
to mix the races.”

and further;

“Appellants contend that housing patterns in Cincinnati are 
segregated as a result of actions of both public and private 
agencies and that the School Board ‘may not close its eyes to 
this reality’ but should remedy it. We are not told how or by 
what lawful authority the School Board can remedy the housing 
patterns of a neighborhood. Perhaps what appellants want is for 
the Court to order the Board to provide buses to transport 
children to other districts where they do not reside, construct 
additional schools in such other districts where necessary to 
accomplish this purpose, and abandon the existing neighbor­
hood schools. We find no basis to enter any such order.”

Deal, supra, page 1391

The Trial Court has greviously exceeded its statutory authority 
in imposing a remedy which involves school districts which were 
not parties to the litigation; did not intervene, as to which dis­
tricts, the Trial Court admits, there is not a scintilla of evidence of 
the commission of any act of de jure segregation. H 8]

The only basis for the Court’s ruling to include other school 
districts, including the petitioners, is spelled out in pages 1485, 
1486, 1487 and 1488 of Exhibit I. Bereft of citations, the Court 
equates voluntary and statutory collective action by municipalities 
as a predicate for relief to be judicially imposed in this case with­
out jurisdiction, without notice and without due process as to 
these petitioners.

Pure and simple, the Court’s relief is based upon a subjective 
determination that additional racial mix is needed to de-segregate 
the Detroit School District. This attitude, expressed by the Court 
in its orders and rulings is a judicial attempt to create racial balance 
within the Detroit District, and regardless of the name by which it 
may be identified by the Trial Court, this procedure is scored in

[18] Reference Exhibit D, p. 1.



29a

Swann, supra, in which the Supreme Court stated:

“ . . .  If we were to read the holding of the District Court to 
require, as a matter of constitutional right, any particular degree 
of racial balance or mixing, that approach would be disapproved 
and we would be obliged to reverse.” (at page 24)

A fair reading of the Trial Court’s rulings demonstrate that it 
had decided that there is not sufficient “mix” within the City of 
Detroit to provide “relief of segregation” H9] Therefore, the Court 
reasons that the remedy is as broad as may be necessary to satisfy 
its self-created standard of racial balance within the Detroit Dis­
trict. The Trial Court then proceeds to ignore the niceties and 
necessities of jurisdiction, notice and due process and with judicial 
grease pencil in hand draws a “de-segregation area” . That “area” is 
drawn to provide the magical, judicial balance required to satisfy 
the erroneous premise that de-segregation equals racial balance. 
The Trial Court conceives itself limited only by “time of travel” in 
determining this areaJ^O] ]q js respectfully suggested that this is not 
the law.

* * *

Let us now turn to the requirement of the impaneling of 
a three-judge Court pursuant to 28 U.S.C. 2881, cited above.

In the Complaint of the Plaintiff, by which this litigation was 
initiated, the relief sought included a prayer that Act 48 of the 
Public Acts of Michigan of 1970 be declared unconstitutional. In­
sofar as petitioners know, these pleadings have not been speci­
fically amended. Coupled with this challenge to the constitu­
tionality of the Act, was a request for relief seeking an injunction 
against the Defendants--State Defendants and the Detroit School 
District-from operating the schools within that District in a 
manner which resulted in students attending “racially identifiable” 
public schools. Other extensive equity relief was requested 121 ]. Act 
48, referred to above, applied only to School Districts of the First 
Class. Only Detroit is such a school district in Michigan. Act 48 19 20 21

[19] Reference Exhibit C, p. 5, f  5.
[20] Reference Exhibit D, p. 19, n5.
[21] Reference, Exhibit F, Plaintiff’s Complaint.



30a

was declared unconstitutional by this Court in Bradley -vs- 
Milliken, 433 F 2d 897 (1970). A three-judge panel was not con­
vened because the Statute was deemed not to be a Statute of state­
wide application 122]

Notwithstanding that the initial litigation was confined to the 
School District of the City of Detroit, the tenor and thrust of the 
litigation changed markedly on March 28, 1972. On that date, the 
Trial Court announced that de-segregation could not be accomp­
lished “within the geographical limits of Detroit” . Previously, it 
had directed State Defendants and the Detroit School District'to 
propose a metropolital de-segregation plan. On June 14, 1972, the 
Court entered its Order for development of a de-segregation plan 
including, inter alia, requirements for student reassignment, fac­
u lty  and staff reassignment, restrictions on construction and 
provisions for recommendations on changes in school district 
boundaries. Recommendations were required to be made on fi­
nancing, contractual arrangements, and governances. 123]

The Order directs the State Superintendent of Public Instruc­
tion to make recommendations to the Court concerning the fore­
going matters and with reference to existing State laws pertaining 
to the affected school district and directs the Superintendent as 
follows:

“In his examination and recommendations, the Superinten­
dent,consistent with the rulings and orders of this court, may be 
guided, but not limited, by existing state law; where state law 
provides a convenient and adequate framework for interim or 
ultimate relief, it should be followed, where state law either is 
silen t or conflicts with what is necessary to achieve the 
objectives o f  this order, the Superintendent shall independently 
recommend what he deems necessary. In particular, the Super­
intendent shall examine and choose one appropriate interim 
arrangement to oversee the immediate implementation of a plan 
of desegregation.” (Emphasis supplied)

This language of the Order constitutes an open invitation to a 
state officer to  make recommendations to the Trial Court for the

m !  Footnote 2> P- 900> B radley -vs-M illiken , supra.
LZJJ Reference Exhibit E, p. 9, nIII.



31a

entry of Orders contrary to State laws. This Order constitutes a 
flagrant abuse of judicial power and more importantly, an un­
precedented Federal asault upon the Statutes of the State of 
Michigan.

While the Court’s Order speaks in general terms of financial, 
school district boundaries, contractual obligations and governance, 
there can be no question that the following Statutes inter alia, are 
directly challenged by the Court’s Order:

1. Michigan School Code of 1955, being Act 269 of the 
Public Acts of 1955 as amended, (MCLA 340.1, et seq; MSA 
15.3001, et seq), (particularly provisions relating to

a. a tten d an c e  in school district of residence (MCLA 
340.356, MSA 15.3356)

b. h iring  o f teachers and staff (MCLA 340.569, MSA 
15.3569)

c. acquisition of transportation (MCLA 340.594, MSA 
15.3594)

d. control of attendance of non-resident students (MCLA
340.582, MSA 15.3582)

e. d e te rm in a tio n  o f ap p ro p ria te  curriculum (MCLA
340.583, MSA 15.3583)

f. levy of authorized millage (MCLA 340.643 (a), MSA 
15.3643 (1), MCLA 340.615, MSA 15.3615)

2. Tenure for Teachers’ Act, Act 4 of the Public Acts of 
1937 (Ex Sess) MCLA 38.71, MSA 15.1971.

3. Public Employees’ Collective Bargaining Statue: Act 336, 
Public Acts of 1947, as amended, MCLA 423.201, et seq, MSA 
17.455 (1), et seq.

These statutes are only a partial list of the Statutes of the State 
of Michigan the constitutionality of which, is directly challenged 
by the scope of the Order of June 14, 1972. It is the contention 
of the petitioners that the Trial Court had no authority to enter



32a

such an Order. It is likewise the contention of the petitioners that 
a three-judge Court was required to be impaneled by the Trial 
Court under Section 2281, for a hearing on the merits because the 
Trial Court, by expanding the scope of the proceedings beyond 
that framed by the Plaintiffs’ Complaint, has brought into the 
judicial arena a challenge to the constitutionality of the several 
Statutes cited, and indeed, a challenge to the entire framework of 
education within the State of Michigan.

The position of the petitioners is sustained by the language of 
the Statute and the judicial decisions interpreting the provisions. 
The history of Section 2281 is undoubtedly well known to this 
Court. Nonetheless, in view of the impact which the case at bar 
has had upon the community and indeed the nation as a whole, 
the recitation of that history as noted by the Supreme Court in 
Swift and Co. -vs- Wickham, 382 U.S. 111, 86 S. Ct. 258 (1965) is 
helpful. That opinion details to a considerable degree the legisla­
tive history of Section 2281 and its predecessor Statutes.

“The three-judge district court is a unique feature of our juris­
prudence, created to alleviate a specific discontent within the 
federal system. The antecedent of §2281 was a 1910 Act 
passed to assuage growing popular displeasure with the frequent 
grants of injunctions by federal courts against the operation of 
state legislation regulating railroads and utilities in particular. 
The federal courts of the early nineteenth century had oc­
casionally issued injunctions at the behest of private litigants 
against state officials to prevent the enforcement of state 
statutes, but such cases were rare and generally of a character 
that did not offend important state policies. The advent of the 
Granger and labor movements in the late nineteenth century, 
and the acceleration of state social legislation especially through 
the creation of regulatory bodies met with opposition in the 
federal judiciary. In Chicago, M.& St. P. R. Co. v Minnesota, 
134 US 418, 33 L ed 970, 10 S Ct 462, this Court held that the 
setting of rates not permitting a fair return violated the Due 
Process Clause of the Fourteenth Amendment. Ex parte Young, 
209 US 123, 52 L ed 714, 28 S Ct 441, 13 LRA NS 932, estab­
lished firmly the corollary that inferior federal courts could 
enjoin state officials from enforcing such unconstitutional state 
laws.



33a

“This confrontation between the uncertain contours of the 
Due Process Clause and developing state regulatory legislation, 
arising in district courts that were generally considered un­
sympathetic to the policies of the States, had severe repercus­
sions. Efforts were made in Congress to limit in various ways 
the jurisdiction of federal courts in these sensitive areas. State 
officials spoke out against the obstruction and delay occasioned 
by these federal injunction suits. The sponsor of the bill estab­
lishing the  three-judge procedure for the cases, Senator 
Overman of North Carolina, noted:

“ ‘[T] here are 150 cases of this kind now where one federal 
judge has tied the hands of the state officers, the governor, and 
the attorney-general . . .

“ ‘Whenever one judge stands up in a State and enjoins the 
governor and the attorney-general, the people resent it, and 
public sentiment is stirred, as it was in my State, when there 
was almost a rebellion, whereas if three judges declare that a 
state statute is unconstitutional the people would rest easy 
under it.’ 45 Cong Rec 7256.

“In such an atmosphere was this three-judge court procedure 
put on the statute books, and although subsequent Congresses 
have amended the statute its basic structure remains intact.

II

“ [6,7] Section 2281 was designed to provide a more respon­
sible forum for the litigation of suits which, if successful, would 
render void state statutes embodying important state policies. 
The statute provides for notification to the State of a pending 
suit, 28 USC §2284 (2) (1964 ed), thus preventing ex parte 
injunctions common previously. It provides for three judges, 
one of whom must be a circuit judge, 28 USC §2284 (1) (1964 
ed), to allow a more authoritative determination and less oppor­
tunity for individual predilection in sensitive and politically 
emotional areas. It authorizes direct review by this Court, 28 
USC § 1253, as a means of accelerating a final determination on



34a

the merits; an important criticism of the pre-1910 procedure 
was directed at the length of time required to appeal through 
the circuit courts to the Supreme Court, and the consequent 
disruption of state tax and regulatory programs caused by the 
outstanding injunction.

“ [8,9] That this procedure must be used in any suit for an 
injunction against state officials on the ground that a state en­
ac tm en t is u n c o n s ti tu tio n a l has been clear from the 
start.

Swift & Co. -vs- Wickham, pages 199,200,201

Admittedly, the Courts have struggled with the problem of 
balancing the requirements of the Statute with the drain caused by 
the assigning of three judges to one case. Phillips -vs- United 
States, 312 U.S. 246, 61 S. Ct. 480(1941).

However, when the constitutionality of a series of state statutes 
or the constitution of a state are directly challenged in the Federal 
Court and where, as here, such challenge is coupled with a request 
(and Order for) injunctive relief, the necessity of impaneling a 
th ree-judge court is not discretionary. It is mandatory. In 
Schneider -vs- Rusk, 372 U.S. 224, 83 S. Ct. 621 (1963), the Su­
preme Court held:

......... the constitutional questions involving the depri­
vation of nationality which were presented to the district judge 
were plainly not insubstantial. The single-judge District Court 
was therefore powerless to dismiss the action on the merits and 
should have convened a three-judge court.”

Schneider, supra, 225 (Emphasis supplied)

In Bynum  -vs- Connecticut Commission, 410 F 2d, 173 (1969), 
the Second Circuit, decided that the Plaintiff’s constitutional 
challenge to the requirement of a payment of a Five Dollar 
($5.00) fee as a requisite to restoration of felony conviction sus­
pended voting rights was “not insubstantial” . Bynum, supra, 176.

Can it be said that the constitutional rights of some 780,000 
students (both black and white) and their parents and 52 school 
districts and the State of Michigan are insubstantial in the light of



35a

the direct constitutional challenge created by the Trial Court’s 
Order? The petitioners insist that the answer must be in the nega­
tive and that the three-judge panel was required under Section 
2281.

The language of the Trial Court’s Order obfuscates the challenge 
to the State Constitution and Statutes. But, a careful examination 
of the Order and Ruling of June 14 ,1972l24^, contrived semantics 
aside, reveals the Order for what it is; a direct, judicial assault 
upon the constitutional and statutory structure of the State of 
Michigan by a single Federal District Judge. If there ever was a 
case, which meets the “atmosphere” referred to in Swift, supra, 
the present litigation demonstrates the reason for the Statutory 
requirement.

While initially, it may be true that the Plaintiffs’ constitutional 
attack was limited to Act 48 of Public Acts of 1970, previously 
referred to, it is equally evident that the Court, on its own, has 
expanded the relief requested to encompass some 52 school dis­
tricts and to restructure, by constitutional challenge the educa­
tional framework of the State of Michigan.

The necessity for a tri-judge panel cannot be waived by the 
parties. Stratton -vs- St. Louis Southwestern R Co., 282 US 10, 
75 Law Ed. 135 (1930). The Court should have moved on its own 
to impanel a tri-judge court.

We believe that the case of Florida Lime and Avacado Growers 
-vs- Jacobsen, 362 U.S. 73, 80 S. Ct. 568 (1959) provides the pre­
cedent by which the Trial Court should have acted on its own.

“Cases in this Court since Louisville & N. R. Co. v Garrett, 
231 US 298, 58 L ed 229, 34 S Ct 48 (1913), have consistently 
adhered to the view that, in an injunction action challenging a 
state statute on substantial federal constitutional grounds, a 
three-judge court is required to be convened and has -  just as 
we have on a direct appeal from its action -- jurisdiction over all 
claims raised against the statute. These cases represent an un­
mistakable recognition of the congressional policy to provide

[24] Reference Exhibits D and E.



36a

for a three-judge court whenever a state statute is sought to be 
enjoined on grounds of federal unconstitutionality, and this 
consideration must be controlling.”

Florida Lime and Avacado Growers, supra 
Pages 80, 81; Emphasis supplied

The critical language here is the word “whenever” a state 
statute is sought to be enjoined on the basis of Federal unconsti­
tutionality. "‘Whenever” occurred in the case below, when the 
Trial Court, on its own, exceeded the scope of the original litiga­
tion and brought a direct challenge to the several state statutes 
referred to above. By its Ruling of March 28th and its Order of 
June 14th, the Trial Court laid first the predicate, and then 
created the vehicle for implementation of a plan, which can only 
be construed as enjoining the operation of the several state 
statutes on the basis that they conflict with the constitutionality 
of federal rights purportedly guaranteed to the Plaintiffs. Seman­
tics aside, the import and effect of this single-judge pronounce­
ment is unmistakable and should not be ignored even though the 
Trial Court has, to the date hereof, chosen to ignore the use of the 
traditional language in framing what can only be described as a 
mandatory injunction.

At the time and point where the Trial Court on its own, passed 
beyond the boundaries of the relief requested by the plaintiffs, it 
had the duty to impanel a three-judge court to proceed with the 
trial and its jurisdiction -- its power to act -- ceased from and after 
that point. Whether this Appellate Court fixes such time as 
September 27, 1971, March 28, 1972, or June 14, 1972, is not 
material. By virtue of its terms, the Order of June 14, 1972 is a 
nullity and should be quashed. The Statutory requirements for a 
three-judge court jurisdiction are requirements of substance, not 
form. Jehovah’s Witnesses -vs- King County Hospital, 278 F Supp, 
488(1967).

Lastly, we would direct the Court’s attention to Brown I  and 
the companion cases of Briggs -vs- Elliott and Davis -vs- County 
Board, which cases were all direct appeals from three-judge panels 
(See footnote 1, to Brown I, supra, page 347). The history of de­
segregation cases has been replete with the recognition of the



37a

imperative nature of Section 2881, where state statutes of general 
application are involved. North Carolina Board -vs- Swann, 402 
U.S. 43 (1971), is one, but not the last of such cases requiring the 
impaneling of three judges. If, as the Trial Court contends, the 
case at bar is merely the progeny of Brown I, the jurisdictional 
requirements applicable to the statutes of Kansas, have no less 
vitality in the case at bar. Where, as here, the Trial Court on its 
own motion, thrusts itself into a direct challenge to the State 
statutes and seeks to enjoin the operation of those statutes within 
the affected school districts, it must heed the requirements 2281.

This case provides an almost classical example of the “raison 
d’etat” for Section 2281. One judge, of one district court seeks to 
dismantle -- in the opinion of many -- the educational system of 
the State of Michigan. It is asked “How does one judge get this 
authority?” The answer to the rhetorical question is that one 
judge does not have the authority purported to be exercised in the 
Order of June 14, 1972. A tri-judge panel was required to be con­
vened. Petitioners contend that the Trial Court’s failure to invoke 
Section 2281 is fatal to the Orders of the Trial Court and that the 
same must be quashed.

VII STATEMENT OF REASONS WRIT OF 
PROHIBITION AND MANDAMUS SHOULD ISSUE

As previously stated, the petitioners have no right of appeal as 
they are not parties litigant to this cause. Petitioners trust that 
they have identified the challenge to the Trial Court’s asserted 
jurisdiction over these petitioners. Issuance of a Writ of Prohibi­
tion and Mandamus to direct the Trial Court to vacate said Orders 
as to these petitioners is the only effective legal remedy available.

The petitioners acknowledge that the issuance of said Writ is an 
extraordinary remedy. The litigation now before this Court like­
wise is extraordinary. It involves more students than any prior de­
segregation yet heard in this country. Its impact will be nation­
wide; the basic constitutional and jurisdiction questions presented 
by the petitioners are fundamental to the whole judicial process of 
this country. The Trial Court had before it a Motion to join all 86



38a

school districts of the tri-county area.I25] it did not do so. There­
fore, the school districts have been denied a hearing on both the 
merits and remedy.

Nor is it dispositive of the rights of these petitioners to say that 
they could likewise have intervened in this litigation. The circum­
scribed rights provided to those school districts which did inter­
vene are so limited as to have made intervention a nullity. More 
importantly, on March 28, 1972, the Trial Court took the first 
testimony on the metropolitan plan for de-segregation. On that 
same day, approximately two hours after the intervening school 
districts had been permitted to appear for the first time in these 
proceedings, the district judge announced that all counsel could 
stop by his office and avail themselves of his findings of fact and 
conclusions of law in the Detroit-only plans of segregation. 126] 
Such procedures, which will undoubtedly be the subject of appeal 
by the intervening school districts, demonstrates that intervention 
in the present litigation would have been, and indeed was in fact, a 
nullity in view of the actions of the Trial Court.

Traditionally, the Writ of Prohibition and Mandamus have been 
used in the Federal Courts where a lower Court has refused, or 
improperly sought, to exercise jurisdiction. While perhaps the Writ 
has been more commonly utilized in admiralty and criminal cases, 
its applicability to the present case is unmistakeable. The language 
of the holding in Ex Parte, Republic o f  Peru, 318 U.S. 577, 
582-586, is particularly helpful.

“Under the statutory provisions, the jurisdiction of this Court 
to issue common-law writs in aid of its appellate jurisdiction has 
been consistently sustained. The historic use o f  writs o f  prohibi­
tion and mandamus directed by an appellate to an inferior court 
has been to exert the revisory appellate power over the inferior

[25] ironically, since July, 1971, the Trial Court has had before it a Motion 
to  add 86 school districts as parties. For unknow n reasons, it wass not decid­
ed. It is referred to  in Exhibit B, page 28. It was w ithdraw n by the moving 
party, Intervenor Magdowski, on June 14, 1972, in open Court. (No tran ­
script attached.)
[26] Reference Exhibit C.



39a

court. The writs thus afford an expeditious and effective means 
o f confining the inferior court to a lawful exercise o f  its pre­
scribed jurisdiction, or of compelling it to exercise its authority 
when it is its duty to do so. Such has been the office of the 
writs when directed by this Court to district courts, both before 
the Judiciary Act of [February 13] 1925, 43 Stat 936, c 229, 
11 USCA § 47, 3 FCA title 11, § 47 and since. In all these 
cases (cited in notes 1 and 2), the appellate, not the original, 
jurisdiction of this Court was invoked and exercised.

“The common law writs, like equitable remedies, may be 
granted or withheld in the sound discretion of the Court, Re 
Skinner & E. Corp. 265 US 86, 95, 96, 68 Led 912, 915, 44 S 
Ct 446; Ex parte Monterey, 269 US 527, 70 L ed 395, 46 S Ct 
16; Maryland v. Soper, 270 US 9,29, 70 L ed 449, 456, 46 S Ct 
185; United States ex rel. Greathouse v. Dern, 289 US 352, 
359, 77 L ed 1250, 1254, 53 S Ct 614; and are usually denied 
where other adequate remedy is available. Ex parte Baldwin, 
291 US 610, 78 L ed 1020, 54 S Ct 551, 24 Am Bankr Rep 
(NS) 487. And ever since the statute vested in the circuit courts 
of appeals appellate jurisdiction on district appeal from the dis­
trict courts, this Court, in the exercise of its discretion, has in 
appropriate circumstances declined to issue the writ to a district 
court, but without prejudice to an application to the circuit 
court of appeals (Ex parte Apex Electric Mfg. Co. 274 US 725, 
71 L ed 1342, 47 S Ct 766; Ex parte Daugherty, 282 US 809, 
75 L ed 726, 51 S Ct 180; Ex parte Krentler-Arnold Hinge Last 
Co. 286 US 533, 76 L ed 1273, 52 S Ct 621), which likewise 
has power under §262 of the Judicial Code, 28 USCA §377, 8 
FCA title 28, §377 to issue the writ. McClellan v. Garland, 217 
US 268, 54 Led 762, 30 S Ct 501; Adams v. United States, 317 
US 269, ante, 268, 63 S Ct 236, 143 ALR 435.

“After a full review of the traditional use of the common-law 
writs by this Court, and in issuing a writ of mandamus, in aid oi 
its appellate jurisdiction, to compel a district judge to issue a 
bench warrant in conformity to statutory requirements, this 
Court declared in Ex parte United States, 287 US 241, 248, 
249, 77 L ed 283, 286, 287, 53 S Ct 129: ‘The rule deducible 
from the later decisions, and which we now affirm, is, that this 
court has full power in its discretion to issue the writ of man-



40a

damus to a federal district court, although the case be one in 
respect of which direct appellate jurisdiction is vested in the 
circuit court of appeals -- this court having ultimate discretion­
ary jurisdiction by certiorari -  but that such power will be 
exercised only where a question o f  public importance is in­
volved, or where the question is of such a nature that it is 
peculiarly appropriate that such action by this court should be 
taken. In other words, application for the writ ordinarily must 
be made to the intermediate appellate court, and made to this 
court as the court of ultimate review only in such exceptional 
cases.’

“We conclude that we have jurisdiction to issue the writ as 
prayed.”

Ex Parte, Republic o f  Peru, supra Emphasis added

While Peru, supra, was an original application to the Supreme 
Court, the criteria set forth in the opinion for issuance of the writ 
is applicable to the instant case before this Appellate Court. 
Indeed, the circumstances of the present litigation are even more 
compelling.

CONCLUSION

In Brown I, supra, the Supreme Court declared that a School 
District which is deliberately operated to foster segregated schools 
offends federally guaranteed rights under the Fourteenth Amend­
ment.

The Trial Court below decided, rightly or wrongly, that only 
the City of Detroit School District had failed to maintain the 
required unitary system and that the State-Defendants, so-called, 
had abetted or acquiesced in the deprivation of those rights.

Unlike other cases which have come before the Appellate 
Courts of this country, such as Alexander -vs- Holmes County 
Board o f  Education, 396 US 19 (1969), there is no finding that 
the petitioning school districts have ever operated their schools in 
violation of those rights which Brown I  sought to protect.

The Trial Court, as previously noted, has decried any findings 
that the petitioning school districts contributed to its decision



41a

with respect to the Detroit School District. As noted, by the 4th 
Circuit in Bradley -vs- Richmond, supra, -F2d-, geographically and 
politically independent school districts which have not been estab­
lished or maintained with intent of denying of circumventing any 
federally protected right, the State’s right to control its own inter­
nal government is absolute. The Trial Court has conceded that 
there is no evidence that the petitioning school districts were 
established to circumvent any such federally guaranteed right. It is 
submitted that notwithstanding those findings, 52 school districts 
of the State of Michigan including the petitioners have been in­
cluded in an Order without parallel in judicial precedent, without 
notice and without a hearing.

It is reiterated; what is here involved is a calculated overreaching 
by the Trial Court of the jurisdictional and due process require­
ments to which all litigants are entitled. No right of appeal is 
afforded to non-parties. The Order of June 14 is sweeping and all- 
encompassing, as to Districts within the de-segregation area. The 
extraordinary circumstances of this case require the extraordinary 
remedy of a Writ of Prohibition to set aside and quash the Orders 
of the Trial Court as to these petitioners.

RELIEF REQUESTED

Petitioners respectfully request that the Appellate Court treat 
this matter as an emergency Petition for Writ of Prohibition and 
Mandamus. The Order of the District Court directs the reassign­
ment of pupils between the Detroit School District and the 52 
affected school districts for the fall term of 1972. The commence­
ment of that term is something less than seventy-five (75) days 
away as this Petition is written. Notwithstanding that said litiga­
tion was commenced in August of 1970, has been appealed to the 
Circuit Court of Appeals not less than twice, and is now pending 
on a request for certiorari to the United States Supreme Court, the 
Trial Court has directed the immediate implementation of the de­
segregation plan for fall of 1972 as to certain grades within the 
affected school districts.[27]

As previously noted, the petitioners are directed to expend 
funds and cooperate with said de-segregation panel in preparation

[27] Reference Exhibit E, p. 4, n4B; See also Exhibit D, p. 28, tlH 84, et 
seq.



42a

of a plan of de-segregation and in effect, to be part and parcel of 
the judicial plan for eventual dismemberment of the affected 
school districts.

Notwithstanding the pendency of this cause for well on to two 
(2) years, the Court now would have all proceed at a rapid pace to 
insure that de-segregation will commence in grades kindergarten 
through six, eight or nine, in as many clusters as possible, f 28] 
Petitioners show that there can be no justification for this judicial 
rush to the busses in view of the substantial legal questions pre­
sented to this Court and more importantly, to the need for careful 
examination of all questions involved before one judge compels 
the imposition of an Order which cannot help but disrupt the 
orderly operation of some 52 school districts and disrupt some 
800,000 children and their parents. Certainly, a case of this magni­
tude deserves the preferred and immediate attention of this Court.

* *

WHEREFORE, your petitioners, being without other approp­
riate relief in the premises, respectfully pray that an emergency 
Writ of Prohibition or alternately a Writ of Mandamus issue out of 
this Court directed to the Honorable Stephen J. Roth, District 
Judge, for the Eastern District of Michigan, Southern Division, as 
follows:

a. That said Writ prohibit the Honorable Stephen J. Roth, or 
any persons acting for or on behalf of said District Judge, from 
enforcing or implementing or in any manner proceeding under 
the ruling and Order for establishment of de-segregation area 
dated June 14, 1972 in the cause of Bradley -vs- Milliken, et al, 
civil action No. 35257 in the United States District Court for 
the Eastern District of Michigan, Southern Division, as to these 
petitioners; and,

b. That said Writ require and direct the entry of an Order by 
said District Judge, that said Order of June 14, 1972, identified 
in subparagraph a, be quashed as to these petitioners; and,

c. That said Writ of Prohibition or alternately Writ of Manda­
mus prayed for herein be issued as an emergency Writ and be

[28] Reference Exhibit E, p. 3, Hi.



43a

directed to said District Judge forthwith for compliance with 
the terms hereof; and,

d. That for the reasons and grounds stated herein, this matter 
be set for immediate hearing before the Honorable Court; and,

e. That your petitioners have such further and different relief 
as may be required in the premises and be deemed just and 
equitable under the circumstances set forth herein.

DELL, SHANTZ, BOOKER AND SCHULTE 
By: /s/ John F. Shantz 
By: /s/ Harry N. Dell
222 Washington Square Building 
Royal Oak, Michigan 48067; LI 1-2150
Attorneys for West Bloomfield School 
District, 3250 Commerce Road,
Orchard Lake, Michigan; and
Clarenceville School District 
28830 West Eight Mile Road,
Farmington, Michigan 48024 
Petitioners

Dated: June 30, 1972



44a

Appendix C
#724670

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

WEST BLOOMFIELD SCHOOL DIS­
TRICT OF OAKLAND COUNTY, 
MICHIGAN, and CLARENCE- 
VILLE SCHOOL DISTRICT OF 

' OAKLAND AND WAYNE COUNT­
IES, MICHIGAN,

Petitioners
ORDER

V.

THE HONORABLE STEPHEN J. 
ROTH, District Judge for the East­
ern District of Michigan, Southern 
Division,

Respondent

Before: PHILLIPS, Chief Judge, EDWARDS and PECK, Circuit 
Judges

Upon consideration, IT IS ORDERED that the application for 
writ of mandamus and prohibition is denied and the petition is 
dismissed.

This order is entered without prejudice to the right of the peti­
tioner School Districts to file application to intervene in the case 
of Bradley v. Milliken now pending in the Eastern District of Mich­
igan.

Entered by order of the Court.
/s/ JAMES A. HIGGINS

Clerk



45a

Appendix D
IN THE UNITED STATES COURT OF APPEALS 

FOR THE 6th CIRCUIT

WEST BLOOMFIELD SCHOOL DIS­
TRICT OF OAKLAND COUNTY, 
MICHIGAN and CLARENCEVILLE 
SCHOOL DISTRICT OF OAK­
LAND AND WAYNE COUNTIES, 
MICHIGAN,

Petitioners,
-vs-

Docket No.72-1670

THE HONORABLE STEPHEN J. 
ROTH, District Judge for the East­
ern District of Michigan, Southern 
Division,

Respondent.

PETITION FOR REHEARING OF 
PETITION FOR WRIT OF PROHIBITION 

AND MANDAMUS AND SUGGESTION OF IN BANC HEARING

DELL, SHANTZ, BOOKER & SCHULTE 
222 Washington Square Building 
Royal Oak, Michigan 48067 
Telephone: (313)541-2150



46a

IN THE UNITED STATES COURT OF APPEALS 
FOR THE 6th CIRCUIT

WEST BLOOMFIELD SCHOOL DIS­
TRICT OF OAKLAND COUNTY, 
M ICH IG A N  and CLARENCE- 
VILLE SCHOOL DISTRICT OF 
OAKLAND AND WAYNE COUNT­
IES, MICHIGAN, Docket No. 72-1670

Petitioners,
-vs-

THE HONORABLE STEPHEN J. 
ROTH, District Judge for the East­
ern District of Michigan, Southern 
Division,

Respondent.

PETITION FOR REHEARING OF 
PETITION FOR WRIT OF PROHIBITION 

AND MANDAMUS AND SUGGESTION OF IN BANC HEARING

NOW COMES WEST BLOOMFIELD SCHOOL DISTRICT and 
CLARENCEVILLE SCHOOL DISTRICT by their attorneys, Dell, 
Shantz, Booker and Schulte, and in this Petition for Rehearing of 
Petition for Writ of Prohibition and Mandamus do say:

1. On July 1, by certified mail, the Petitioning School Districts 
have heretofore filed a Petition for Writ of Prohibition in the 
above entitled matter, and Proof of Service with respect thereto 
has been filed in this cause.

2. On July 17, 1972, this Court entered its order denying said 
Petition without prejudice to the right to intervene in the case of 
Ronald Bradley, et al -vs- William Milliken, et al, being civil action 
No. 35257 in the United States District Court for the Eastern Dist­
rict of Michigan, Southern Division.

3. In its pronouncement from the Bench on July 17, 1972, the 
Circuit Court of Appeals, speaking through the Honorable Judge



47a

Phillips, denied the Petition for Writ of Prohibition without pre­
judice to intervention in the lower court for “purposes of appeal”. 
No such limitation on the Petitioners’ intervention appears in the 
Order of July 17, 1972.

4. On July 20, 1972, the Trial Court certified as final orders 
certain rulings and orders of the Trial Court as more specifically 
identified in the copy of said Order attached hereto as Exhibit A. 
Appeals have been filed from the Orders of the Trial Court.

5. On July 20, 1972, this Honorable Court issued its Order 
granting a stay of proceedings and ordering briefs on appeal and 
hearing on appeal for August 24, 1972, a copy of said Order is 
attached hereto as Exhibit B. Petitioners respectfully suggest that 
the posture of the case below, Bradley, et al -vs- Milliken, et al, 
supra, has changed markedly by virtue of said Order of July 20th 
of the Trial Court (Exhibit A) and the Order of this Court of like 
date (Exhibit B).

6. Petitioners show that for all practical purposes the litigation 
in the Trial Court has been concluded. Intervention in said cause 
in its present posture and in view of the circumscribed rights im­
posed upon the intervening suburban school districts (Allen Park, 
et al) by the Trial Court by its Order of March 15, 1972, would be 
a meaningless gesture and a monument to futility.

7. Petitioners show that this Court will on August 24, 1972, 
have before it all parties to the cause below, Plaintiffs, Defendants 
and Interveners. The Petitioners, West Bloomfield School District 
and Clarenceville School District, which have not intervened here­
to, have raised questions in the original Petition for Writ of Pro­
hibition and Mandamus, filed July 1, 1972, which are related to 
but distinct from, those raised by suburban school districts which 
intervened in said litigation. Your Petitioners should have the op­
portunity for a hearing before this Court with respect to the seri­
ous and basic jurisdictional issues raised in said Petitions. Petition­
ers should not be required, in view of the present posture of this 
case, to apply to the Trial Court for leave to intervene.

8. In addition to the foregoing, Petitioners show that the time 
schedule on the appeals of Bradley -vs- Milliken, et al, Sixth Cir­
cuit Court of Appeals Docket No. 72-8002, as established by this



48a

Court requiring briefs by August 21 and argument on August 24, 
is such as to make application to intervene in the Trial Court im­
practical, if not impossible. Mechanically, intervention at this date 
would not permit sufficient time for the filing of the necessary 
Motion to Intervene, hearing and preparation of appeal, assuming 
arguendo, that the Trial Court granted such intervention. In the 
event the Trial Court denied the Motion to Intervene, Petitioners 
would not have sufficient time in which to appeal such decision to 
the Court before arguments in the case of Bradley -vs- Milliken, 
supra, Docket No. 72-8002, in this Court. Petitioners show that 
given the present posture of the case and the time schedule for 
appeals established by this Court, intervention in the Trial Court 
below is an illusory and wholly inadequate procedure. The scope 
of the litigation, and the critical and basic questions of jurispru­
dence raised herein requires that the Petition for Writ of Prohibi­
tion and Mandamus be entertained by this Court. Petitioners re­
spectfully submit that this Petition may be heard contempor­
aneously with the appeals now docketed in Bradley -vs- Milliken, 
etal, Sixth Circuit Court of Appeals Docket No. 72-8002.

9. Petitioners show that Plaintiffs apparently claim that Peti­
tioning School Districts, West Bloomfield School District and Clar- 
enceville School District, raise no issues not raised by other Defen­
dants. Petitioners reject such contention. Petitions specifically 
show that said Petition and Affidavits attached thereto demon­
strate that said Petitioning School Districts were not created from 
the Detroit School District; were not created to preserve or foster 
segregation or other invidious purpose as evidenced by the date of 
creation of said Districts as shown by said Petition. Circumstance 
such as these demonstrates the need for this Court to take jurisdic­
tion of and favorably act upon the Petition for Writ of Prohibition 
heretofore filed by said School Districts.

10. Petitioners respectfully suggest the appropriateness of in 
banc hearing with respect to this Petition for Rehearing, and/or 
the Petition for Writ of Prohibition and Mandamus.

11. This Petition for Rehearing is filed in accordance with Fed­
eral Rules App Proc 40 and 35, respectively.

WHEREFORE, Petitioners pray:



49a

a. That a rehearing of the Petition for Writ of Prohibition and 
Mandamus heretofore filed by West Bloomfield School District 
and Clarenceville School District, be granted; and,

b. That said Petition be set for hearing on August 24, 1972, or 
such other date as may be convenient to the Court, if deemed 
appropriate by this Honorable Court; and,

c. That the Writ issue as prayed for in said Petition for Writ of 
Prohibition and Mandamus heretofore filed in this case.

DELL, SHANTZ, BOOKER AND SCHULTE

Dated: July 26, 1972:
By: JOHN F. SHANTZ 
222 Washington Square Building 
Royal Oak, Michigan 48067 
Telephone: 541-2150



50a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

Appendix D

RONALD BRADLEY, et a l,
Plaintiffs

v.

WILLIAM G. MILLIKEN, et al.,
Defendants

D E T R O I T  F E D E R A T I O N  OF 
TEACHERS LOCAL #231, AMER­
ICAN FEDERATION OF TEACH­
ERS, AFL-CIO,

Defendant-
CIVIL ACTION 

No. 35257
Intervenor

and
DENISE MAGDOWSKI, et al.,

Oefendants-
Intervenor

et al.

ORDER
At a session of said court held in the Federal Building, City of
Flint, County of Genesee, on this 19th day of JULY, A.D.
1972.

PRESENT: HONORABLE STEPHEN J. ROTH
United States District Judge

This court having heard oral motions on July 19, 1972, for 
entry of judgments in accordance with the provisions of Fed. R. 
Civ. P. 54(b) and for certification under the provisions of 28 
U.S.C. 1292(b) in connection with certain orders and rulings of 
the court heretofore entered; the court determines for the purpose 
of appeal, and subject to this court’s statements at the hearing on 
July 19, 1972, that there is no just reason for delay and that each 
of the following orders:

EXHIBIT A



51a

1. Ruling on Issue of Segregation, September 27, 1971;

2. Ruling on Propriety of Considering a Metropolitan Rem­
edy to Accomplish Desegregation of the Public Schools of the 
City of Detroit, March 24, 1972;

3. Findings of Fact and Conclusions of Law on Detroit-only 
Plans of Desegregation, March 28, 1972;

4. Ruling on Desegregation Area and Development of Plan, 
and Findings of Fact and Conclusions of Law in Support there­
of, June 14 ,1972 ;and

5. Order for Acquisition of Transportation, July 11, 1972 
shall be deemed final orders under Rule 54(b) of the Federal 
Rules of Civil Procedure and the court certifies the issues pre­
sented therein under the provisions of 28 U.S.C. 1292(b).

UNITED STATES DISTRICT JUDGE

DATE: July 20, 1972 
TIME: 8:30 a.m.



52a

#72-8002
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Appendix D

RONALD BRADLEY, et al,
Plain tiffs-Appellants

V.

WILLIAM G. MILLIKEN, et al,
Defendants-Appellants

and
D E T R O I T  F E D E R A T I O N  OF 

TEACHERS LOCAL 231, AMERI-

ORDER

CAN FEDERATION OF TEACH­
ERS, AFL-CIO,

Defendant-Intervenor
and

DENISE MAGDOWSKI, et al,
Defendants-Intervenors

Before: PHILLIPS, Chief Judge, EDWARDS and PECK, Circuit 
Judges.

The District Court has certified that certain orders entered 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.

This court concludes that among the substantial questions pre­
sented there is at least one difficult issue of first impression 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 immediate appeal may materially ad­
vance the ultimate termination of the litigation. Accordingly, it is

ORDERED that the motion for leave to appeal be and hereby is 
granted.

It is further ORDERED that the appeal in this case be advanced

EXHIBIT B



53a

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 similar 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 considered, it 
is further ORDERED that the Order for Acquisition of Transpor­
tation, entered by the District Court on July 11, 1972, and all 
orders of the District Court concerned with pupil and faculty re­
assignment within the Metropolitan Area beyond the geographical 
jurisdiction of the Detroit Board of Education, and all other pro­
ceedings in the District Court other than planning proceedings, be 
stayed pending the hearing of this appeal on its merits and the dis­
position 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 District 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 its studies and planning during the dis­
position of this appeal, to the end that there will be no unneces­
sary delay in the implementation of the ultimate steps contemplat­
ed 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 involved 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 Dist­
rict Court’s order of June 14, 1972.

Entered by order of the Court.

/s/ JAMES A. HIGGINS
Clerk



Appendix E

No. 72-1670
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

WEST BLOOMFIELD SCHOOL DIS­
TRICT OF OAKLAND COUNTY, 
MICHIGAN,  AND CLARENCE- 
YILLE SCHOOL DISTRICT OF 
OAKLAND AND WAYNE COUNT­
IES, MICHIGAN, ORDER DENYING

Petitioners, PETITION FOR
V. REHEARING

THE HONORABLE STEPHEN J. 
ROTH, District Judge for the East­
ern District of Michigan, Southern 
Division,

Respondent.

Before PHILLIPS, Chief Judge, EDWARDS and PECK, Circuit 
Judges.

No judge of this court having suggested rehearing in banc, the 
petition for rehearing has been considered by the original hearing 
panel.

It is ORDERED that the petition for rehearing be and hereby is 
denied.

Entered by order of the court.

/s/ JAMES A. HIGGINS
Clerk



55a

APPENDIX F.
CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED

1. The provisions of the Constitution of the United States at 
issue herein are as follows:

ARTICLE III

SECTION 2. The Judicial Power shall extend to all cases, in 
Law and Equity, arising under this Constitution, the Laws of the 
United States, and Treaties made, or which shall be made, under 
their Authority; -  to all cases affecting Ambassadors, other public 
Ministers and Consuls; -  to all Cases of admiralty and maritime 
Jurisdiction; -- to Controversies to which the United States shall 
be a Party; -- to Controversies between two or more States; -  
between a State and Citizens of another State; —between Citizens 
of different states, -  between Citizens of the same State claiming 
Lands under Grants of different States, and between a State, or 
the Citizens thereof, and foreign States, Citizens or Subjects.

ARTICLE V

No person shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a 
Grand Jury, except in cases arising in the land or naval forces, 
or in the Militia, when in actual service in time of War or public 
danger; nor shall any person be subject for the same offence to 
be twice put in jeopardy of life or limb; nor shall be compelled 
in any Criminal Case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process of 
law; nor shall private property be taken for public use, without 
just compensation.
2. The provisions of the Constitution of the State of Michigan 

at issue are as follows:

ARTICLE VIII

SECTION 2. The legislature shall maintain and support a 
system of free public elementary and secondary schools as de­
fined by law. Every school district shall provide for the education 
of its pupils without discrimination as to religion, creed, rac 
color or national origin.



56a

3. The Statute of the United States in issue is:

28 United States Code 2281

An interlocutory or permanent injunction restraining the enforce- 
ment, operation or execution of any State statute by restraining the 
action of any officer of such State in the enforcement or execution 
of such statute or of an order made by an administrative board or 
commission acting under State statutes, shall not be granted by any 
district court or judge thereof upon the ground of the unconstitu­
tionality of such statute unless the application therefor is heard and 
determined by a district court of three judges under section 2284 of 
this title.

4. The Statute of the State of Michigan at issue is as follows:

Act 269 of Public Acts of Michigan of 1955, as amended (MCLA 
340.1, et seq).

a. Section 352 (MCLA 340.352, MSA 15.3352)

“Every school district shall be a body corporate under the name 
provided in this act, and may sue and be sued in its name, may 
acquire and take property, both real and personal, for educational 
purposes within or without its corporate limits, by purchase, gift, 
grant, devise or bequest, and hold and use the same for such pur­
poses, and may sell and convey the same as the interests of such 
district may require, subject to the conditions of this act con­
tained. As such body corporate, every school district existing 
within the same territorial limits and shall be vested with all rights 
of action, with the title of all property, real and personal, of the 
district of which it is the successor, and the indebtedness and obli­
gations of the district superseded shall become and be the indebt­
edness and obligations of the succeeding district, except as other­
wise provided in chapters 3, 4 and 5, part 2 of this act. Every 
school district shall in all cases be presumed to have been legally 
organized when it shall have exercised the franchises and privi­
leges of a district for the term of 2 years; and such school district 
and its officers shall be entitled to all the rights, privileges and im­
munities, and be subject to all the duties and liabilities conferred 
upon school districts by law.”