Brief in Support of Answer in Opposition to Emergency Motion

    No. 72-8002

IN THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BOARD OF EDUCATION OF THE SCHOOL 
DISTRICT OF THE CITY OF DETROIT, 
a school district of the first 
class,

Appellant,

vs.

RONALD BRADLEY, et al., ' .

Appellees.

______________________________________________ /  ■

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

Southern Division

BRIEF IN SUPPORT OF ANSWER OF DETROIT FEDERATION 
OF TEACHERS, LOCAL 231,DEFENDANT-INTERVENOR, IN 
OPPOSITION, FOR PREMATURITY, TO EMERGENCY MOTION 
OF DETROIT BOARD OF EDUCATION TO COMPEL STATE 
DEFENDANTS TO FUND 180 DAY SCHOOL YEAR

ROTHE,MARSTON,MAZEY,SACHS,
O'CONNELL,NUNN & FREID
Attorneys for Detroit Federation of Teachers 
1000 Farmer
Detroit, Michigan 48226

November 24, 1972



•  •
. '

NO. 7 2 -8 0 0 2

IN THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BOARD OF EDUCATION OF THE SCHOOL 
DISTRICT OF THE CITY OF DETROIT, 
a school district of the first 
class,

Appellant,

VS.

RONALD BRADLEY, et al.,

Appellees.

-------------- ---------------------- /

BRIEF IN SUPPORT OF ANSWER OF DETROIT 
FEDERATION OF TEACHERS, LOCAL 231, DEFENDANT- 
INTERVENOR, IN OPPOSITION, FOR PREMATURITY, TO 
EMERGENCY MOTION OF DETROIT BOARD OF EDUCATION
TO COM Pi STATE DEFENDANTRTtfTS TD ign nsy SCHOOL YEAR

INTRODUCTION

It is with great reluctance, as the prevailing party below 

on the motion for the injunction to require a 180-day school year in 

the Detroit school system, that we now must oppose the Detroit Board's 

emergency motion to require the State defendants to provide the funds

to sustain that year. We oppose such motion on the grounds that it is

premature and unnecessary at this time.

We fully credit the Detroit Board's assertion that forseeably 

it is without funds to operate a full 180-day school year. We further 

assume that the Detroit Board has projected its modified and abbreviated

I 1.



calendar in bona fide response to its financial limitations as it per­

ceives them. And we further agree that the State has not adequately- 

funded the Detroit school system under applicable federal and state law, 

and that this Court has authority to compel it to do so. MCLA 340.574,

MSA 15.3575 (mandatory 180-day school year statute); Const 1963, art 

8, §1 ( "Religion, morality and knowledge being necessary to good 

government and the happiness of mankind, schools and the means of edu­

cation shall forever be encouraged"); Const 1963, art 8, §2 ("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. "); Rodriguez v San 

Antonio Independent School District (DC WD, Tex), 337 F Supp 280 

(1971) (Appeal pending, USSC, Docket No. 71-1332); Hansen v Hobson,

408 F2d 175 (DC Cir 1969); Pennsylvania Association for Retarded 

Children v Commonwealth of Pennsylvania, 343 F Supp 279 (ED Pa,1972);

Mills v Board of Education of the District of Columbia, Civil Action
- Van

No. 1939-71 (DDC,1972) ;/Dusartz v Hatfield, 334 F Supp 870 (DC Minn,1971).

But--

1. Both the State and Detroit governmental defendants are 

already, in effect, under the injunctive constraints which the Detroit- 

Board here prays.

2. The immediate school scheduling crisis is of the Detroit 

Board's owr. choosing, since there appear to be funds adequate to sustain 

the system until approximately March, 1973.

3. If at that time the Detroit Board of Education or the

.

2.



State defendants fail to fulfill their respective responsibilities 

under the July 7, 1972 Order and under law generally, we and perhaps 

others will then move to cite all of such defendants for contempt 

of eourt.

Accordingly, while we do not underestimate the gravity of the 

financial crisis portrayed by the Detroit Board, we submit that it is 

prematufe to require judicial action at this moment to alleviate that

crisis. ■ •

We now explicate the foregoing.

I.

STATE DEFENDANTS ARE„ IN EFFECT, ALREADY UNDER THE 
INJUNCTIVE CONSTRAINTS PRAYED BY DETROIT BOARD IN 
THE PRESENT MOTION_______________________________

The thrust of the Detroit Board's present emergency motion is 

that further injunctive relief is necessary to insure the full 180 days 

of instruction which were ordered by the District Court in the July 7, 

1972 injunctive Order. Such prayed relief includes, inter alia, a 

request that the State defendants be required to "take all action 

possible to insure 180 days of instruction" in the 1972-73 school year, 

including the Governor's convening a special session of the Michigan • 

legislature, and the State defendants' reporting to the Court as to 

potential diversion of existing State funds, etc. .

But it is clear from a review of the July 7 Order, which 

this Intervening Defendant Detroit Federation of ±eachers, obtained, 

that all of the governmental defendants are already subject to its terms 

and are already under enforceable order to insure the 180-day school 

year for Detroit.



Specifically, the preliminary injunction dated July 7, 1972, 

granted orally at hearing of June 30, 1972 (reprinted at I a 571-573 

of the Joint Appendix (Volume I B), and copy of which, for convenience, 

is appended hereto) orders that, "the parties, their agents, employees, 

successors and all others having actual notice of this Order...be 

enjoined, pending further order of the court: 5(1) From reducing, or 

causing, or requiring the reduction of the number of school days for 

students in the school system of the city of Detroit to less than 180 

days for the fiscal and academic year 1972-73, such days to be of not 

less than the daily number of hours provided during the 1971-72 fiscal 

and academic year."
Such order was granted for the reasons in part cited in the 

Detroit Board's present motion and brief; and for the further reasons 

recited in the Order itself, namely, that the District Court s basic 

desegregation Order of June 14, 1972, which required substantially 

uniform and equal conditions in the metropolitan desegregation area, 

was plainly incapable of implementation so long as the City of Detroit 

school system was on a school year of 117 days while other school 

districts in the desegregation area enjoyed a school year of 63 days 

more, or 180, as required by Michigan law. See recitals in attached , 

Order.
Contrary to the surprising and inaccurate assertion at page 

2 of Detroit Board's memorandum in support of its present motion that 

the 180-day Order was not "seriously opposed at the time of its issuance, 

the Order was fully contested by the Attorney General, who fully briefed 

and argued in opposition to its entry. The Order was entered, 

however, after full hearing by the District Court, because of its 

obvious indispensability if the Court's basic desegregation order were

4.



not to be rendered a nullity. Simply put, an integrated metropolitan 

plan could not exist if its central district were out of operation 

for one-third of the school year.

But the Detroit Board counsel is entirely correct in pointing 

out that after the Order was entered, it was never appealed by any 

defendant. Nor was it included in the Certification to this Court 

under either FRCP 54(b) or 29 USCA 1292(b), under which provisions 

this Court accepted the accelerated appeals currently pending, nor 

stayed under this Court’s subsequent stay Order. All parties have 

evidently correctly assumed that the Order has remained of full force 

and effect. The Detroit Board's own present motion, of course, asserts 

that as an operative premise.

Moreover, review of the original motion by the Federation to 

the District Judge (I a 544-560) and the transcribed oral arguments 

thereon (VIII a 153-174) leaves no doub>t that the motion below and the 

favorable July 7, 1972 Order in response thereto imposed upon all of 

the governmental defendants, including all of the State defendants, 

the duty to do all that was necessary to insure that the Detroit system 

did operate for the full 180 days. ,

That being so, we do not perceive the need for another order

at this time which would appear to be merely declaratory of the first,

and where the appropriate relief, if it becomes necessary, may well

be in the nature of contempt, as discussed infra.

, II.

THE PRESENT CRISIS IS OF THE DEFENDANT 
BOARD'S OWN TIMING_____________________

Not only do we now perceive the present proposed relief 

to be redundant at this time to the fully viable and effective Order



of July 7, 1972, but we submit reluctantly that the immediate crisis

portrayed by the Detroit Board is of its own timing.

Again, we grant, as contended by the Detroit Board, that 

foreseeably it lacks the financial resources to fund a school year of 

180 days. According to the Detroit Board, foreseeably it will not 

have the resources to assure more than approximately a 117 day year 

which precisely was its projection, under pressure of State budget 

constraints in June, 1972, that impelled us in the first place to seek

what became the July 7, 1972 injunction.
However, the Detroit Board's present crisis is predicated on

the judgment of its School Superintendent Charles J. Wolfe accepted 

by the Board itself, that if_ the Detroit schools can operate for only 

117 days, it is educationally preferable that, rather than terminate 

the school year in the midst of the second semester in approximately 

March, 1973 when its funds are expected to fully run out, it instead 

accelerate the closing date of the first semester (from January 26,

1973 to December 21, 1972) and delay the starting date of the second 

(from January 29, 1973 to February 19, 1973), thereby assertedly to have 

two certain and approximately equal school semesters.

But review of the Affidavits of Dr. Wolre and of Harold ,

Brown, the Board's Secretary and Business Manager, appended to the 

Board's present emergency motion, and of the Board's own motion and 

memorandum, confirms only that if the Detroit Board does not direct the 

projected eight week mid-semester shutdown, it will be able to continue 

to operate at least until approximately March, 1973, as originally 

planned. This evidently is particularly true in that "the Superintendent

6.



of Public Instruction has offered to advance 22 million dollars of 

State Aid... on the condition that the Detroit Board operate the 

schools in December, January and February, 1973" (Motion, paragraph 

7, page 5). Thus, the Detroit Board evidently will have the resources 

to operate on the original timetable, at least until March. While 

the posited (and we trust, good faith) educational reason advanced by 

Dr. Wolfe -for the adjustment in scheduling is to avoid the uncertainties 

of the second semester, it can also be argued that a school year un­

interrupted by an abnormal eight-week shutdown presents still greater 

certainty and perhaps comparable educational value. And, moreover, 

if the school year is not permissibly to be aborted in March, a failure 

to continue on the regular schedule until then would be indefensible, 

even from an educational point of view, let alone from the point of 

view of compliance with the July 7th Order and federal and state law.

III. .

JUDICIAL REMEDIES WILL LIE IF THE STATE AND DETROIT 
DEFENDANTS DO NOT HEREAFTER COMPLY WITH THE JULY 7,1972 
ORDER _______________________  _______________ ___—

We submit that there is particularly no justification for 

presently anticipating an approximate-March, 1973 shutdown when it is 

recognized that if the State defendants, or any of them, permit that 

to occur, they will be in violation of the District Court s July 

7, 1972 Order, as well as in violation of applicable federal and state 

law requiring equal and adequate educational opportunities for all chil­

dren in Michigan, including those in the Detroit school system, black 

and white. Moreover, such a shutdown would thwart any metropolitan 

desegregation orders which this Court may otherwise affirm, an unthinkabl



interference with the judicial process.

Obviously, all concerned hope that public officials at State 

and local levels in Michigan will recognize their legal and moral 

responsibilities to the school children of Detroit. In the event they 

do not do so, we trust that the resources of the federal judicial 

system will not be wanting, and that the contempt powers will be 

brought into play, as necessary. But we do not think it should be 

anticipated at this time that public officials will do less than their 

sworn responsibility to uphold the law of the land, including the 

orders of this Court and of the District Court. Should that unhappy 

day occur, however, we will not be found wanting in pressing for 

vigorous relief.

CONCLUSION

Not because we do not believe that the State defendants 

as well as the Detroit Board should be expected to fully and adequately 

further educational opportunities for a full school year in Detroit, 

but precisely because we do; and because we think that all defendants 

are already under such constraints, we are impelled, with reluctance, 

to oppose the pending motion of the Detroit Board.

We pray, accordingly, for the foregoing reasons, that said 

motion either be denied or that it be held in abeyance until and unless 

clear and obvious violation of the July 7, 1972 Order appears imminent- 

and other than at a time of the Detroit Board's own choosing.

Respectfully submitted,

ROTHE,MARSTON,MAZEY,SACHS ,
O'CONNELL,NUNN & FREID

by______________________ ____
Theodore Sachs

Attorneys for DFT
1000 Farmer,Dfetroit,Michigan 48226
965-3464

DATED: November 24, 1972



. . awgfegai

I a 571

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al., )
Plaintiffs )

v. )
VSlLLIAM G. MILLIKEN, et al., )

Defendants )
and )

DETROIT FEDERATION OF TEACH- ) CIVIL ACTION 
ERS, LOCAL 231, AMERICAN FEDERA- ) NO: 35257 
TION OF TEACHERS, AFL-CIO, )

Defendant- )
* Intervenor )

and )
DENISE MAGDOWSKI, et al., )

Defendants- )
et al. Intervenor )

PRELIMINARY INJUNCTION

At a session of said Court held in the Federal Building, City of 
Detroit, County of Wayne, on the 30th day of JUNE, A.D. 
1972. .

PRESENT: HONORABLE STEPHEN J. ROTH 
United States District Judge

This matter having come on to be heard on the Motion by 
Detroit Federation of Teachers, dated June 22, 1972, for Injunc­
tion and/or for Supplement to Order for Development of Plan of 
Desegregation, Re Financing and Terminations; and the briets and 
arguments of the parties having been considered for an in oppo­
sition to such motion; and the court being fu lly informed in the 
premises; and

The court finding that defendant Detroit Board of Education 
has heretofore adopted a resolution lor its 1972-73 budget which



threatens to reduce the number of school days for students to 117 
from the minimum of 180 per academic year prescribed by 
Michigan statute (M.C.L.A. 388.641 ;M.S.A. 15.1919(81)); and

The court further finding that the defendant Detroit Board of 
Education on or about April 12, 1972 served notices of termina­
tion of employment effective the end of the 1971-72 school year 
on approximately 1,548 teachers employed by said Board; and 
that the threatened effect thereof will be to terminate the employ­
ment of said teachers and to interfere with or abrogate their 
accrual of credit toward tenure under applicable Michigan law; and 
that the racial census of said teachers notified of such proposed 
termination includes 720 black teachers, 744 white teachers and 
79 “other” ; and

This court having heretofore issued its Ruling on Desegre­
gation Area and Order for Development of Plan of Desegregation, 
dated June 14, 1972, and having issued Findings of Fact and Con­
clusions of Law in support thereof, to which Ruling, Order, 
Findings and Conclusions reference is made; and said Ruling and 
Order having contemplated “ schools of subst antially like quality, 
facilities, extra-curricular activities and staffs; and [that] utili­
zation of existing school capacity through the desegregation area 
shall be made on the basis of uniform criteria” , and said Ruling 
and Order having required the defendant State Superintendent of 
Public Instruction to make recommendations for appropriate 
financial and other arrangements, “ including steps for unifying, or 
otherwise making uniform the personnel policies, procedures, con­
tracts, and property arrangements of the various school districts 
and the court finding that a metropolitan plan of desegregation 
complying with such criteria cannot be implemented in the event 
the city of Detroit school system is on a school year of 117 days, 
or 63 days less than the minimum statutory requirement, while 
other school districts in the desegregation area comply with such 
statutory requirement; and the court further finding that such cri­
teria and other provisions of the Ruling on Desegregation Area and 
Order for Development of Plan of Desegregation cannot be com­
plied with in the event such approximately 1,548 teachers are 
terminated, as threatened, as aforesaid; and the court further 
finding that the threatened implementation of said shortened

I a 572 .



> •

I a 573

school year and of said reduction in faculty will adversely affect 
this court’s ability to implement an effective metropolitan plan of 
desegregation; and the court further finding that in order to pre­
serve the status quo, to enable the effective implementation of 
such a plan, it is necessary that preliminary injunctive relief issue 
as hereinafter provided, thereby to avert irreparable injury in the 
particulars set forth above; now, therefore,

IT IS ORDERED that the parties, their agents, employees, 
successors and all others having actual notice of this Order shall be 
enjoined, pending further order of the court:

(1) From reducing, or causing or requiring the reduction of 
the number of school days for students in the school system of the 
city of Detroit to less than 180 days for the fiscal and academic 
year 1972-73, such days to be of not less than the daily number of 
hours provided du ring the 1971-72 fiscal and academic year.

(2) From terminating, or causing or requiring the termination 
of the employment of approximately 1,548 teachers employed by 
defendant Detroit Board of Education who were, on or about 
April 12, 1972, given notices of such terminations to have been 
effective the end of the 1971-72 school y ear; and from giving 
force and effect to such notices; PROVIDED, HOWEVER, said 
restraint shall be without limitation to terminations, pursuant to 
such notices or otherwise, of individual teachers for independent 
personal cause, subject to the rights and obligations of the said 
Board and of the teachers, inter se.

IT IS FURTHER ORDERED, in the discretion of the court, 
that no security shall be required.

/sj  Stephen J. Roth

UNITED STATES DISTRICT JUDGE

DATED: JULY 7, 1972.