Defendant's Reply Brief

    No. 72-8002
IN THE

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,
Plaintiffs-Appellees,

v
WILLIAM G. MILLIKEN, et al,

Defendants-Appellants,
and

DETROIT FEDERATION OF TEACHERS, 
LOCAL 231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

De fendant-Inte rvenor,
and

DENISE MAGDOWSKI, et al,
De fendants-Inte rvenors,

et al
—

/
Appeal from the United States District Court for the 

Eastern District of Michigan, Southern Division

STATE DEFENDANTS-APPELLANTS' RESPONSE IN OPPOSITION 
TO PLAINTIFFS-APPELLEES' MOTION FOR 

CLARIFICATION AND/OR MODIFICATION OF STAY ORDER

Business Address:
720 Law Building 
525 West Ottawa Lansing, Michigan 48913

FRANK J. KELLEY 
Attorney General
Robert A. Derengoski 
Solicitor General
Eugene Krasicky 
Gerald F. YoungAssistant Attorneys General



No. 72-8002
IN THE

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,
Plaintiffs-Appellees,

v
WILLIAM G. MILLIKEN, et al,

Defendants-Appellants,
and

DETROIT FEDERATION OF TEACHERS, 
LOCAL 231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

Defendant-Intervenor,
and

DENISE MAGDOWSKI, et al,
Defendants-Intervenors,

et al. /

ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT OF 

MICHIGAN SOUTHERN DIVISION

STATE DEFENDANTS-APPELLANTS' RESPONSE IN 
OPPOSITION TO PLAINTIFFS-APPELLEES' 
MOTION FOR CLARIFICATION AND/OR 
MODIFICATION OF STAY ORDER



Now come defendants-appellants Governor, Attorney 
General, State Board of Education, Superintendent of Public 
Instruction and State Treasurer of the State of Michigan, by 
their attorneys, Frank J. Kelley, Attorney General of the State 
of Michigan, et al, and make their Response in Opposition to 
Plaintiffs-Appellees' Motion for Clarification and/or Modification 
of Stay Order, respectfully representing to this Honorable Court 
as follows:

1. On July 20, 1972 this Court entered its order
decreeing, in pertinent part, the following:

"This court concludes that among the substantial 
questions presented there is at least one difficult 
issue of first impression which never has been 
decided by this court or the Supreme Court. . .

"The motion for stay pending appeal having been 
considered, it is further ORDERED that the Order 
for Acquisition of Transportation, entered by the 
District Court on July 11, 1972, and all orders 
the District Court concerned with pupil and faculty 
reassignment within the Metropolitan Area beyond 
the geographical jurisdiction of the Detroit Board 
of Education, and all other proceedings in the 
District Court other than planning proceedings, be 
stayed pending the hearing of this appeal on its 
merits and the disposition 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 disposition ot this appeal, 
to tne end tnat there will be no unnecessary delay

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in the implementation of the ultimate steps 
contemplated in the orders of the District 
Court in event the decision of the District 
Court is affirmed on appeal. Pending dispo­
sition of the appeal, the defendants and the 
School Districts involved shall supply admini­
strative and staff assistance to the aforesaid 
panel upon its request. Until further order 
of this court, the reasonable costs incurred 
by the panel shall be paid as provided by the 
District Court's order of June 14, 19 72.

2. Both the desegregation panel and the Superinten­
dent of Public Instruction have filed their reports with the 
lower court. Most of the parties hereto have filed their 
objections to same with the District Court and, pursuant to such 
Court's order of September 7, 1972, granted at plaintiffs' 
request, the time for filing objections, alternatives or 
modifications to such reports has been extended until September 
15, 1972, for all parties.

3. At the oral argument of this cause on August 24, 
1972, plaintiffs moved to vacate the stay order entered by this 
Court on July 20, 1972 to the end that proceedings could continue 
in the lower court in order that a metropolitan desegregation 
plan be readied for implementation in the second semester of the 
1972-73 school year. This Court, in the exercise of its sound 
discretion, denied such motion from the bench.

4. These defendants respectfully submit that plaintiffs' 
instant motion is, in substance and effect, the same motion 
previously denied by this Court on August 24, 1972. The decision

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of this Court, denying such oral motion from the bench, was 
sound and should not be departed from in ruling on plaintiffs' 
most recent motion.

5. In addition, these defendants would stress that, 
based on the plain language of this Court's order of July 20,
1972 quoted above, it is crystal clear that such order, while 
expressly authorizing the continuation of planning proceedings
by the desegregation panel, does not contemplate adversary hearings 
below on the planning reports and objections thereto during the 
pendency of this appeal.

6. The instant cause is readily distinguishable from 
Kelley v Metropolitan County Board of Education, 436 F2d 856,
(CA 6, 1970). That was a case hoary with age in which a whole 
generation of pupils had passed through the entire school system 
during the pendency of such cause under conditions already 
determined to have violated their constitutional rights. Further, 
in Kelley, supra, the lower court had stayed all proceedings, 
including both planning and adversary hearings, pending the dispo­
sition of certain other cases by the United States Supreme Court. 
Here, in contrast, pursuant to this Court's order of July 20, 1972, 
planning has gone forward pending the disposition of the appeal
on the merits in this cause by this Court.

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7. The instant motion before this Court speaks in 
terms of allowing further hearings below so that all steps 
precedent to a final order may be taken by the District Court 
pending the disposition of this appeal in this Court. Here,
it must be observed that it was plaintiffs, not the defendants, 
that opposed finality and appealability during most of the conduct 
of this litigation. The present concern for a final order of 
metropolitan desegregation on plaintiffs' part is clearly incon­
sistent with their prior positions in this cause.

8. As noted in this Court's order of July 20, 1972,
this case involves at least one difficult issue of first impression. 
Based on the briefs and oral argument in this cause before this 
Court, it is manifest that the metropolitan remedy sought by 
plaintiffs is without federal appellate precedent where, as here, 
there have been no pleaded allegations, proofs or judicial findings 
of a metropolitan constitutional violation by school authorities. 
Yet, already the desegregation panel and the Superintendent of 
Public Instruction have done considerable planning, involving 
substantial amounts of time and expense, and filed their respective 
reports with the lower court. Further, most of the parties 
hereto have filed or are in the process of preparing to file their 
objections thereto. Further, pursuant to the trial court's 
order of June 14, 1972 and this Court's order of July 20, 1972,

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the costs of the desegregation panel submitted to date for 
payment by these defendants is $25,585.06. Of this amount, 
$18,021.98 is currently being processed for payment out of 
public funds with the remaining amount being, in part, in 
dispute as to reasonableness.

9. Hearings on the reports of both the desegregation 
panel and the Superintendent of Public Instruction and the 
objections thereto, relating to metropolitan desegregation, will 
undoubtedly require substantial additional trial time in this cause. 
These hearings would require the expenditure of additional 
sums of public money by the affected school districts for the 
time and effort required of their respective counsel in preparing 
for and participating in such hearings. Further, such hearings 
will require the time and effort of a substantial number of 
educational personnel employed by both the affected local school 
districts and the Michigan Department of Education in terms of 
consultation and preparation for such hearings, plus the time 
required for testimony from some of these public employees.

11. In summary, these defendants must emphasize that 
it would be patently unfair to Michigan's residents and tax­
payers to allow further metropolitan remedial hearings below, 
involving considerable time, effort and additional expenditures 
of public funds, pending the disposition of this appeal on the

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on the merits by this Court.

WHEREFORE, these defendants-appellants respectfully 
request this Honorable Court to enter an order denying plaintiffs- 
appellees' motion for clarification and/or modification of stay 
order, thereby continuing in effect this Court's order of July 20, 
1972 which clearly precludes hearings below on the reports of 
both the desegregation panel and the Superintendent of Public 
Instruction and the objections filed thereto relating to a 
metropolitan remedy in this cause.

Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Gerald F. Young
Assistant Attorneys General
Attorneys for Governor, 
Attorney General, State Board of Education, Supt. 
of Public Instruction and 
State Treasurer of the 
State of Michigan.

Dated: September 18, 1972