Memorandum in Support of Emergency Motion for Stay or Suspension of Proceedings

    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, CIVIL ACTION
LOCAL 231, AMERICAN FEDERATION NO. 35257
OF TEACHERS, AFL-CIO,

Defendant-
Intervenor

and
DENISE MAGDOWSKI, et al.,

Defendants- 
Intervenor

et al.
______________________________________ /

MEMORANDUM IN SUPPORT OF EMERGENCY 
MOTION BY DEFENDANTS-INTERVENORS 
ALLEN PARK PUBLIC SCHOOLS, ET AL, 
GROSSE POINTE PUBLIC SCHOOLS AMD 
SOUTHFIELD PUBLIC SCHOOLS, FOR A 
STAY OR SUSPENSION OF PROCEEDINGS



UNITED STATER 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, CIVIL ACTION
LOCAL 231, AMERICAN FEDERATION NO. 35257
OF TEACHERS, AFL-CIO,

Defendant-
Intervenor

and
DENISE MAGDOWSKI, et al.,

Defendants- 
Intervenor

et al.
/

MEMORANDUM IN SUPPORT OF EMERGENCY 
MOTION BY DEFENDANTS-INTERVENORS 

ALLEN PARK PUBLIC SCHOOLS, ET AL, 
GROSSE POINTE PUBLIC SCHOOLS AND 
SOUTHFIELD PUBLIC SCHOOLS, FOR A 

STAY OR SUSPENSION OF PROCEEDINGS

A
INTRODUCTION

On September 27, 1971, this Court issued a "Ruling On 
Issue of Segregation" holding that illegal segregation exists 
in the public schools of the City of Detroit. Subsequently, 
on June 14, 1972, the Court handed down its "Ruling On De­
segregation Area and Order for Development of Plan of Dese­
gregation, together with Findings of Fact and Conclusions 
of Law in support thereof. The Court has thus determined



that de jure segregation exists in the Detroit public school 
system and that said situation must be remedied by imple­
mentation of a so-called metropolitan plan of desegregation. 
The rulings and orders issued by the Court to date terminate 
litigation on the issue of de_ jure segregation and the matter 
of a metropolitan plan of desegregation. Nothing remains 
to be done except to enforce by execution what has been deter­
mined by the Court.

The Order for Development of Plan of Desegregation com­
mands the Intervening School Districts to assist, at their 
own expense, in the detailed implementation of the Court- 
ordered metropolitan desegregation and in this regard is, 
in effect, a mandatory injunction.

On June 20, 1972 Newly Intervening School Districts 
appealed this order to the United States Court of Appeals 
for the 6th Circuit. Since that time the Board of Education 
for the City of Detroit and the Defendants-Intervenors Kerry 
Green, et al have likewise filed appeals with the 6th Circuit.

Defendants-Intervenors now move this Court for an Order 
staying implementation of its June 14, 1972 order, pending 
appeal, and in support of said motion submit this Memorandum.

B
THERE IS NO CONTROLLING JUDICIAL 
PRECEDENT FOR A METROPOLITAN 
PLAN OF DESEGREGATION UNDER THE 
CIRCUMSTANCES EXTANT IN THIS CASE

In its "Ruling on Propriety of Considering A Metropolitan 
Remedy to Accomplish Desegregation of the Public Schools of 
the City of Detroit", and in the course of hearing on July 
10, 1972, the Court candidly acknowledged that the issue of 
whether a metropolitan plan of desegregation is legally proper 
has not been passed upon by the United States Supreme Court.
In the context of this case, such issue may be stated as 
follows:

2



Where a single school district has been found 
to have committed acts of de_ jure segregation, may 
a court constitutionallv issue ^desegregation order 
extending to fiftv-three (53) other independent school 
districts and requiring massive bussing of children, 
absent (i) any claim or finding that such other inde­
pendent school districts have deliberately operated 
in furtherance of a policy to deny access to or sepa­
rate pupils in schools on the basis of race, or, (ii) 
absent anv claim or finding that the boundary lines 
of such other independent school districts were created 
or have been maintained with the purpose of creating 
or fostering a dual school svstem?

The trial court answered "YES".
The Newlv Intervening School Districts 
contend the answer should be "NO".

The existence of a new or novel question has frequently
been assigned as the basis for granting a stav order by
the United States Supreme Court. Just last Fall in a school
desegregation case Mr. Justice Black reinstated a stay of
a district court order which had been vacated bv the United
States Court of Appeals for the Fifth Circuit because of
the existence of previously undecided questions. The decision
holds:

"It is apparent that this case is in an undesirable 
state of confusion and presents questions not hereto­
fore passed on bv the full Court, but which should 
be. Under these circumstances, which present a very 
anomalous, new and confusing situation, I decline as 
a single Justice to upset the District Court's stav 
and, therefore, I reinstate it . . . Corpus Christi
School District v Cisneros, ____ F Supp _____ (1971)
application for reinstatement of stay granted, 404 
US 1211 (1971).
A new or novel question of law has also been recognized 

as adequate reason for a stay in the following cases: Guey
Heung Lee v Johnson 404 US 1215; American Manufacturers
Mutual Insurance Company v American Broadcasting - Paramount 
Theatres, Inc., 17 L Ed 37 (1966).

Intervening School Districts suggest that to implement 
a plan affecting over 500,000 students, their parents and 
teachers and to require the expenditure of millions of dollars

3



by already financially depressed state and local govern­
mental authorities without granting a stav order pending 
the prosecution of the several appeals taken by the various 
parties would be a gross abuse of this Court's discretion.

C
THERE IS A SUBSTANTIAL PROBABILITY 
THAT THIS COURT'S ORDER WILL BE 
REVERSED BY AN APPELLATE COURT

There is an absolute dearth of controlling judicial 
precedent to support the implementation of a metropolitan 
plan of desegregation. Decisions rendered by appellate courts 
in other school desegregation cases and traditional equity 
principles clearly indicate a strong likelihood that this 
Court's Order for a metropolitan plan of desegregation will 
be reversed.

The case of Keyes v School District No.1, Denver, [1]
445 F2d 990 (CA 10, 1971) is very similar to the instant 
case. In Keyes there was no evidence that the state had 
fostered or maintained a dual education system. As a result 
of population changes certain school attendance areas in 
the older core area of the city, though at one time predomin­
antly white, were by 1970 predominantly populated by Negroes 
' and Hispanos. Other areas within the school district, referred 
to as the Park Hill area, had also experienced a growth 
in black population. .

In 1968 a comprehensive plan for desegregating the 
Denver schools was presented to the Board. Before this 
plan could be implemented, a school board election ensued 
and two candidates who promised to rescind the plan were 
elected and thereafter the Board did rescind the plan. The 
Court found that by means of the manipulation of attendance 
zones, the adoption of transfer policies and the selection

[1] Appeal pending,
U,S. Supreme Court. 4



of sites for the construction of new schools, all in the 
Park Hill area, the Board had deviated from the traditional 
neighborhood school plan and had pursued a policy calculated 
to perpetuate racial isolation in the Park Hill area schools 
in violation of the Fourteenth Amendment.

As to the older core area of the city, both the trial 
court and the Court of Appeals held that the racial imbalance 
was due to population changes and was not fostered or per­
petuated by any action of the school authorities. The school 
authorities had done nothing to change the racial imbalance 
in said area. Both the trial court and the Court of Appeals 
refused to hold that the inaction of the school authorities 
violated the Fourteenth Amendment.

The trial court, however, held that even though the 
existence of a significant racial imbalance in the older 
core area schools did not permit a finding deprivation of 
constitutional rights, the quality of education offered 
in such schools was inferior to that being offered in other 
Denver schools. The trial court then concluded that this 
unequal educational opportunity offended the Fourteenth 
Amendment and justified a desegregation remedy. The Court 
of Appeals reversed the judgment of the trial court with 
respect to the core area on the grounds that a firm founda­
tion for constitutional deprivation cannot be located upon 
the naked existence of racially imbalanced schools, saying:

". . . . It is well recognized that the law in
this Circuit is that a neighborhood school policy is 
constitutionally acceptable, even though it results 
in racially concentrated schools, provided the plan 
is not used as a veil to further perpetuate racial 
discrimination. . . . "  Keyes v School District No.1, 
Denver, 445 F2d 990 at 1004 (CA 10, 1971).

5



This Court placed strong reliance on the case of Bradley 
v School Board of the City of Richmond, 338 F Supp 67 (1972) ,
reversed _____ F2d _____ (June 5, 1972) , in support of its
assumption of authority to order a metropolitan plan of 
desegregation (Findings of Fact and Conclusions of Law On 
Detroit-Only Plans of Desegregation, March 28, 1972). The 
District Court's order in Bradley v Richmond, supra, pairing 
three school districts for the ostensible purpose of effect­
ing desegregation in the Richmond school district was reversed 
by the Courth Circuit Court of Appeals sitting en banc,
Bradley v School Board of the City of Richmond, _____ F2d
_____ (CA 4, June 5, 1972).

This Court has stated that for want of a direct ruling 
on the issue as to the appropriateness of a metropolitan 
plan of desegregation by the United States Supreme Court it 
could' only proceed by "feeling" its way through past decisions 
of the Supreme Court. (Ruling on Propriety of Considering 
A Metropolitan Remedy to Accomplish Desegregation of the 
Public Schools of the City of Detroit.) In so doing, the 
Court has, to all outward appearances, completely ignored 
the very recent affirmance of the decision of the three 
judge court in Spencer v Kugler, 326 F Supp 1235 (1971),
aff'd. Mem. _____ US _____, 92 S Ct 707 (1972) which the
majority of the Fourth Circuit found to be controlling with 
respect to the lack of authority of the District Court 
to order a multi-school district plan of desegregation to 
overcome a preponderance of black students within a single 
school district.

Significantly, even the rationale of the lone dissenting 
opinion in Bradley v Richmond, supra, would condemn the 
ordering of a metropolitan desegregation plan .in this case

6



under the principle upheld in Spencer v Kugler, supra,
Circuit Judge Winter distinguished Spencer v Kugler, supra, 
on the grounds that whereas Virginia had a long history of 
a state-required dual system of schools, Spencer v Kugler, 
supra, like the instant case, presented a situation where 
there was no state history of a state-imposed dual system 
of education, and no allegation that the school district 
boundaries had been invidiously drawn.

The Order of this Court for a’metropolitan plan of 
desegregation cannot be reconciled with the holdings of the 
United States Supreme Court in Spencer v Kugler, supra, 
and the Fourth Circuit in Bradley v Richmond, supra.

This Court has clearly predicated its Order for a 
metropolitan plan of desegregation upon its desire to achieve 
a viable racial mix vis-a-vis Detroit and surrounding com­
munities. The intendment of the Court in this regard is 
patently expressed in its "Ruling On Desegregation Area and 
Order for Development of Plan of Desegregation", as follows:

"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 de­
segregation to_ the end that, upon implementation, 
no school, grade, or classroom by [be] substantially 
disproportionate to the overall pupil racial composi­
tion. " [Emphasis added.]

As a rose by any other name is still a rose, so racial mixing 
couched in other terms remains racial mixing.

In Deal v Cincinnati Board of Education, 419 F2d 1387 
(CA 6, 1969) , cert, denied 402 US 962 (1971) , the Sixth 
Circuit Court of Appeals noted that the Constitution imposes 
no duty to effect a racial balance, saying:

"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 residence in order 
that the racial complexion would be balanced in each

7



of the many public schools in Cincinnati. It is sub­
mitted that the Constitution imposes no such duty. 
Appellants are not the only children who have consti­
tutional 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 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." at p. 1390. [Emphasis added.]
This Court has indicated that it perceives the holding 

of the U.S. Supreme Court in Brown v Board of Education 
of Topeka, 346 US 483 (1954) to bestow virtually unlimited 
remedial authority on the Court in the area of school de­
segregation. Statements issued by the Supreme Court in 
Swann v Charlotte-Mecklenburg Board of Education, 402 US 
1 (1971) clearly indicate that such is not the case and 
adumbrate an ultimate reversal of this Court's Order for 
a metropolitan plan of desegregation.

". . . . However, a school desegregation case 
d o e s  not differ fundamentally from other Ccises in­
volving the framing of equitable remedies to repair 
the denial of a constitutional right. . . . "  p. 16. 
[Emphasis added.]

*  *  *

". . . . Remedial judicial authority does not 
put judges automatically in the shoes of school auth­
orities whose powers are plenary. Judicial authority 
enters only when local authority defaults." p. 16.

*  *  *

"If we were to read the holding of the District 
Court to require, as a matter of substantive consti­
tutional right, any particular degree of racial balance 
or mixing, that approach would be disapproved and we 
would be obliged to reverse. The constitutional com­
mand to desegregate schools does not mean that every 
school in every community must always reflect the 
racial composition of the school system as a whole." 
p. 24. [Emphasis added].
The clear purpose of this Court's Findings of Fact 

and Conclusions of Law on Detroit-Only Plans of Desegregation 
and the Ruling on Desegregation Area and Order for Develop­
ment of Plan of Desegregation, and the only purpose of the

8



cluster plans approved therein, is to obtain a racial balance 
or mix in each school which reflects the racial composition 
of the metropolitan area as a whole.

Intervening School Districts suggest that to require 
massive outlays of money for implementation of the Court's 
order and the disruption and transfer of tens of thousands 
of students from one educational environment to another in 
the absence of clear and controlling judicial precedent 
would be a crippling blow to education in Michigan and would 
be an extreme abuse of this Court's discretion.

D

THIS COURT MAY NOT HAVE JURISDICTION 
TO IMPLEMENT A METROPOLITAN REMEDY

As a matter of jurisdiction, 28 USC 2281 provides
that:

"An interlocutory or permanent injunction re­
straining the enforcement, operation or execution 
of any State statute by restraining the action of 
any officer of such State in the enforcement or exe­
cution of such statute or of an order made by an ad­
ministrative 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 there­
for is heard and determined by a district court of 
three judges under section 2284 of this title."
This Court's "Ruling on Desegregation Area and Order 

for Development of Plan of Desegregation," dated June 14, 
1972, will effectively enjoin and restrain Intervening School 
Districts from exercising the powers conferred upon them 
by the Constitution and Statutes of the State of Michigan.
In particular, said Order will enjoin and restrain enforce­
ment and operation of the following statutes:

1. MCLA §340.356, MSA 15.3356, "All persons, resi­
dents of a school district not maintaining a kinder­
garten, and at least 5 years of age on the first day 
of enrollment of the school year, shall have an equal 
right to attend school therein."

9



2. MCLA §340.583, MSA 15.3583, "Every board shall 
establish and carry on such grades, schools and de­
partments as it shall deem necessary or desirable for 
the maintenance and improvement of the schools; deter­
mine the courses of study to be pursued and cause
the pupils attending school in such district to be 
taught in such schools or departments as it may deem 
expedient. . . . "

3. MCLA §340.882, MSA 15.3882, "The board of each 
district shall select and approve the textbooks to 
be used by the pupils of the schools of its district 
on the subjects taught thereon."

4. MCLA 340.589, MSA 15.3589, "Every board is auth­
orized to establish attendance areas within the school 

district."

5. MCLA §340.575, MSA 15.3575, "The Board of every 
district shall determine the length of the school term.

II
•  •  •

In addition, said Order will prevent Intervening School 
Districts from exercising those powers relating to employment 
and assignment of teachers, construction of school buildings, 
determination as to proper and necessary expenditures, 
activities and standards of conduct for students, the training 
and use of faculty and staff, and the conduct of extra­
curricular activities in their respective school districts. [2] 

The rationale behind 28 U.S.C. §2281 and its application 
to this action are set forth in the following quotations 
from Swift £ Co v Wickham, 382 US 111, 118 (1965):

[2] For illustrations of the future problems this Court will 
face in connection with Michigan statutes, see Dr. Porter's 
report to this Court dated June 29, 1972.

10



"The sponsor of the bill establishing the three- 
judge procedure for these cases, Senator Overman of 
North Carolina, noted:

1[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 de­
clare that a state statute is unconstitutional 
the people would rest easy under it.'"
"Section 2281 was designed to provide a more responsible 

forum for the litigation of suits which, if successful, 
would render void state statutes embodying important 
state policies. . . .  It provides for three judges, 
one of whom must be a circuit judge. . . .  to allow . 
a more authoritative determination and less opportunity 
for individual predilection in sensitive and politically 
emotional areas. It authorizes direct review by this 
Court, . . ., as a means of accelerating a final deter­
mination on the merits; an important criticism of the 
, pre-1910 procedure was directed 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." 382 US 111, 119-120.
Intervening School Districts have previously raised 

the question as to whether a three judge court should have 
been impaneled and this Court made no response thereto.
This question must also be determined by an appellate court 
and it is submitted that sound exercise of judicial dis­
cretion mandates that this Court stay its Order of June 
14, 1972, pending determination as to its jurisdiction 
to effectively nullify the operation of State laws of general 
application.

E
THERE IS RECENT PRECEDENT FOR A STAY 

ORDER IN THIS CASE
As recently as June 2, 1972, the United States Court 

of Appeals for the Sixth Circuit, in Northcross v Board

11



of Education of City of Memphis, 312 F Supp 1150 (WD Tenn, 
1970), order Misc. 1576, June 2, 1972, granted a motion 
for a stay of a district court order in a school desegregation 
case of far less impact than the instant case. The Northcross 
case was relied upon by this Court in its "Ruling On Issue 
Of Segregation" and its "Findings of Fact and Conclusions 
of Law in Support of Ruling on Desegregation Area and Develop­
ment of Plans."

Likewise, the case of Davis v School District of the 
City of Pontiac Inc, 309 F Supp 734 (ED Mich, 1970) , aff'd 
443 F2d 573 (CA 6, 1971), relied on by this Court in its 
September 27, 1971 and June 14, 1972 orders, was stayed 
by the Sixth Circuit pending decision by the appellate court.

Bradley v School Board of the City of Richmond, 338
F Supp 67 (ED Va, 1972), reversed ____ F2d ____ (CA 4, June
4, 1972), perhaps the most important, if not the only authority 
for this Court's far reaching remedy, was stayed by the 
Fourth Circuit pending their decision.

Considering the incredible scope of this Court's remedy, 
the admission by this Court that the issue as to the pro­
priety of a metropolitan remedy under the circumstances here 
present has not yet been passed on by the United States 
Supreme Court, the likelihood of reversal by an appellate 
court, and the granting of stays in cases of substantially 
lesser affect, Intervening School Districts submit that 
this Court should stay implementation of its Order.

F
PRACTICAL CONSIDERATIONS

Implementation of the Court's Order of June 14, 1972, 
by the opening of school this September would be so dis­
ruptive and strident that it could well defeat the ultimate

12



objective sought to be attained. We are less than sixty 
(60) days away from the start of school for the 1972-1973 
school year. At the present time there is no intelligible 
plan developed for Fall 1972 implementation and after sub­
mission of such a plan by the Panel the Court contemplates 
further hearings thereon.

Budgeting and other plans for the operation of the 
schools for the coming school year have been finalized. 
Curriculum, norms and cognitive styles have been established 
to accommodate presently enrolled students.

Many school districts employ "continuous progress" 
programs wherein the student progresses at his own rate of 
achievement, sometimes on a non-graded basis, and frequently 
in groups based upon ability and performance. The Court's 

- prohibition (paragraph 82 of Findings and Conclusions of 
Law issued June 14, 1972) against such "tracking" or group­
ing precludes and/or restricts such programs.

The scant time available before the start of school 
this September does not permit intelligent modifications 
or substitution of present learning programs to accommodate 
the varying educational needs of students who would be 
summarily infused into new school systems.

As noted in the course of hearings on a metropolitan 
plan, a substantial majority of elementary schools do not 
have suitable facilities to provide children with at-school 
lunches. From the testimony adduced during the course of 
hearing there is no conceivable way that such facilities 
could be provided prior to the Fall of this year.

It is assumed that the requirements delineated by the 
Court in connection with its Order for a metropolitan plan 
of desegregation are deemed necessary to the satisfactory

13



effectuation of such a plan. To expect the following to 
be accomplished within less than 60 days among fifty-three 
(53) school districts is incredible:

(1) Reassignment of faculty and staff by quali­
fications for subject and grade level, race, experience 
and sex.

(2) Assignment of bi-racial administrative teams.
(3) Restructuring of school facility utilization 

necessitated by pupil reassignments so as to produce 
schools of substantially like quality, facilities, 
extra-curricular activities and staffs.

(4) Establishment of curriculum, activities and 
conduct standards which respect the diversity of students 
from differing ethnic backgrounds and the dignity and 
safety of each individual, students, faculty, staff
and parents.

(5) Expansion of in-service training programs 
to insure effective desegregation of the schools.
Teachers unfamiliar with the learning programs at

various school districts cannot be expected to effectively 
implement them. Super-charged and last minute in-service 
training to prepare a teacher for a new and different edu­
cational environment is clearly inadequate and will pre­
dictably result in deterioration of educational programs 
and confusion to students and teachers alike.

The Order of the Court requires that student codes 
must be re-evaluated and reflect the diversity of ethnic 
and cultural backgrounds of the children now in the schools 
(Findings and Conclusions issued June 14, 1972, paragraph 
82 b). Time simply does not permit a meaningful study of 
black community customs and the establishment of an effective

14



dialect to assure implementation of bi-racial codes of 
conduct. Misguided or ineffectual efforts in these areas 
could exacerbate what may now remain of racial bias and 
prejudice.

The Court's statement that the burden is upon the State 
Defendants to show affirmatively that a metropolitan plan 
of desegregation cannot be implemented within less than 
sixty (60) days is incredulous. There is no experience 
upon which the feasibility of such an undertaking can be 
measured. In short, the Court is saying that the State 
Defendants must show they cannot do something which has 
never been done before. This is like telling a 75 year 
old man who has never run a mile in three (3) minutes that 
he must prove he cannot accomplish such feat. The only 
proof lies in attempt and failure. An attempt to implement 
an educationally effective plan of metropolitan desegregation 
which fails will prove its unworkability but will also do 
serious harm to thousands of children and the educational 
system as a whole.

In Alexander v Holmes County Board of Education, 396 
US 19 (1969) the U.S. Supreme Court stated that the obliga­
tion to terminate dual school systems at once and to operate 
only unitary schools requires lower courts not to suspend 
efforts to disestablish dual school systems pending appeals. 
The Supreme Court decreed that such mandate requires the 
operation of "unitary school systems within which no person 
is to be effectively excluded from any school because of 
race or color" (Alexander v Holmes, supra, at p. 20). This 
case is not an Alexander case, however, and is not controlled 
by the principle therein enunciated. Here there is no claim, 
no evidence and no finding that any of the school districts 
except Detroit have failed to operate a unitary school system.

15



To undertake the implementation of a metropolitan 
plan of desegregation, even on a limited and interim basis, 
in the admitted absence of controlling judicial precedent 
and with the likelihood of reversal poses a genuine poss­
ibility of having to "undo" the many changes necessary 
to such undertaking. Prudence dictates that thousands of 
children should not be uprooted from a new stable and familiar 
educational environment until this Court's Order of June 14, 
1972, has passed appellate review. To attempt hurried and 
hastily conceived implementation within a span of a few 
weeks would be folly and will serve only to impede the 
mission of all school districts —  to provide children 

with a quality education.
G

A STAY OF PROCEEDINGS SHOULD BE 
ORDERED ON THE BASIS OF SECTION 
803 OF THE "EDUCATION AMEND­
________MENTS OF 19 72"_________

I
INTRODUCTION

On June 23, 1972, the President of the United States 
signed into law the "Education Amendments of 1972". This 
comprehensive legislation became effective on July 1, 1972.
One provision, Section 803, was added during debates in 
the House of Representatives as a non-germane Amendment, 
and relates to the question of a stay or suspension of pro­
ceedings by this Court at this time. Section 803 provides 

as follows:
"Sec. 803. Notwithstanding any other law or provision 
of law, in the case of any order on the part of any 
United States district court which requires the transfer 
or transportation of any student or students from any 
school attendance area prescribed by competent State

16



or local authority for the purposes of achieving a bal­
ance among students with respect to race, sex, religion, 
or socioeconomic status, the effectiveness of such 
order shall be postponed until all appeals in connection 
with such order have been exhausted or, in the event 
no appeals are taken, until the time for such appeals 
has expired. This section shall expire at midnight 
on January 1, 1974."
As a result of this legislation, it is submitted that 

the Ruling on Desegregation Area and Order for Development 
of Plan of Desegregation, entered by this Court on June 
14, 1972, and particularly those provisions relating to 
the transfer and transportation of students within the desegrega- - 
tion area, is ineffective until all appeals from that ruling 
have been exhausted.

Section I B. of the Court's Order of June 14, 1972
provides, in part, as follows:

" . . .  the panel is to develop a plan for the assignment 
of pupils . . . and shall develop as well a plan for
the transportation of pupils, for implementation for 
all grades, schools and clusters in the desegregation 
area......... the panel may recommend immediate imple­
mentation of an interim desegregation plan for grades 
K-6, K-8 or K-9 in all or in as many clusters as prac­
ticable, with complete and final desegregation to proceed 
no later than the fall 1973 term."
Section II A. of the Court's Order of June 14, 1972, 

in part, provides:
"Pupil reassignment to accomplish desegregation of 
the Detroit public schools is required within the geo­
graphical area . . . referred to as the 'desegrega­
tion area'."
Section II B. of the Court's Order of June 14, 1972, 

in part, provides:
" . . .  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."

17



Section II E. of said Order provides, in part, as follows:
"Transportation and pupil assignment shall . . .  be 
a two way process with both black and white pupils 
sharing the responsibility for transportation require­
ments at all grade levels." .
Finally, Section II I. of the Court's Order provides,

in part:
"The State Board of Education and the State Superintendent 
of Education shall with respect to all school construction ,
and expansion, ' consider tĥ s factor of racial balance 
along with other educational considerations in making 
decisions about new school sites, expansion of present 
facilities * * *',"
The particular students to be transferred and trans­

ported from one attendance area, prescribed by their local
school district, to another attendance area, prescribed

■
by this Court, have not been identified and the exact date 
when such transfer and transportation shall occur has like­
wise not been determined by the June 14 Order of this Court.
It is perfectly clear, however, as indicated by the above 
referred to provisions of said Order, that:

1. Transfer of students has been ordered (Sec­
tion IB., II A. and II E.).

2. The transfers have been ordered for the pur­
pose of achieving a balance with respect to race. (Section 
II B. and II I.).

That the Order of the Court dated June 14, 1972 constitutes 
an order "which require[s] the transfer or transportation" 
of students within the meaning of Section 803 is unquestion­
able in view of the above quoted provisions and the clear

18



language and legislative history of Section 803. The Order 
of this Court from the bench on July 10, 1972, directing 
the purchase of 295 buses, makes this all the more clear. 
Congress has mandated postponement of the effectiveness 
of this type of order during the pendency of appeals and 
it is submitted that this Court should therefore suspend 
the effectiveness of its Order until appeals are resolved 
in this cause.

In the event it should be determined that the Order 
of June 14, 1972 does not, by its own terms, actually require 
the transfer or transportation of students and is therefore 
not at this moment subject to the provisions of Section 
803 declaring such an Order to be ineffective, it is submitted 
that the practical effect of Section 803 is to make it incumbent 
upon this Court to grant an equitable stay of proceedings 
at this time. If it is ruled that as a prerequisite to the 
application of Section 803, the Court enter a further Order 
in pursuance of the Desegregation Panel's recommendations 
particularizing the students and schools involved in the pupil 
assignments and pupil transportation, they will themselves 
be ineffective thus rendering, for all intents and purposes, 
the Orders of June 14 and July 10 ineffective. Accordingly, 
this Court should enter an Order staying proceedings now, 
at least insofar as the Court's prior Orders may contemplate 
the entry of further Orders assigning and transporting stu­
dents prior to the exhaustion of appeals in order to carry

19



out the manifest intent of Congress that massive expense 
and hardship not occur until the legal rights of the parties 
have been finally determined.

Both prior and subsequent to the signing of the "Educa­
tion Amendments of 1972" by the President of the United 
States, there was and continues to be considerable speculation 
as to the effectiveness of Section 803 and the applicability 
thereof to the instant case. Such speculation, often poli­
tically motivated, should have no affect on the construction 
to be afforded Section 803; such question being subject 
only to judicial determination. Accordingly, the following 
is a discussion of several of the principal issues which 
might be raised with respect to this unique action by the 
Congress of the United States. Intervening School Districts 
contend that the significant pre-enactment material, and 
cases, discussed below, compel the conclusion that Section 
803 must ultimately suspend the effectiveness of any order 
transferring students issued by this Court, and therefore 
dictates that a Stay of Proceedings be instituted now, so 
that all appeals may be exhausted before the implementation 
of relief in this cause is further continued.

. II
CONSTITUTIONAL VALIDITY OF SECTION 803

The Intervening School Districts anticipate that argu­
ment will be made that Section 803 is an unconstitutional 
attempt by the United States Congress to limit the jurisdiction

20



of the United States district courts to implement their
orders while appellate procedures are being exhausted. The
simple answer to this anticipated argument is found in Section
1 of Article III of the United States Constitution, which
sets forth the power of Congress to govern the jurisdiction
of the lower federal courts. This Section provides as follows

"Sec. 1. The judicial Power of the United States, shall 
be vested in one supreme Court, and in such inferior 
Courts as the Congress may from time to time ordain 
and establish."
The breadth of authority of Congress over the juris­

diction of the federal courts of the United States was dra­
matically illustrated in the 1868 case of Ex parte McCardle,
7 Wall. 506, 19 L Ed 264 (1868). There, a civilian held 
for trial by a military commission was denied a Writ of 
Habeas Corpus by the circuit court. While an appeal from 
this denial was pending before the Supreme Court of the 
United States, Congress passed a statute taking away the 
appellate jurisdiction of the Supreme Court in habeas corpus 
cases. The Supreme Court held that this was a legitimate 
exercise of congressional power and that the legislation 
deprived the United States Supreme Court of jurisdiction 
even though the Act was passed after the Supreme Court had 
already taken jurisdiction of the case. This was so even 
though the cause before the Court involved an alleged viola­
tion of the plaintiff's constitutional rights.

Although the invoking of the appellate procedures from 
the decision of a lower federal court does not, as a general 
rule, operate to effect an automatic stay of proceedings 
this has not always been the case. As discussed in the 
case of Brockett v Brockett, 2 How 238, 11 L Ed 251 (1844) 
and the SlaughterHouse cases, 10 Wall 273, 19 L Ed 915 (1869),

21



the Judiciary Act of 1789 provided that the filing of a Writ 
of Error within ten days from the date of entry of the 
order of the court below operated as an automatic supersedeas 
and stay of execution under Section 23 of the Judiciary 
Act. No case could be found challenging the validity of 
this automatic stay provision of the Judiciary Act of 1789.

In more recent times, the question of congressionally 
imposed limitations on the jurisdiction of the lower federal 
courts has been discussed in a number of cases arising 
in several different contexts:

A. LABOR
Although the Congress of the United States may not 

circumscribe the original jurisdiction of the Supreme Court, 
it may limit or even remove the general jurisdiction of 
the lower federal courts. This power is illustrated in 
the case of Lauf v E.G. Shinner _& Co, 303 US 323, 82 L Ed 
872 (1938) , involving the construction of certain provisions 
of the Norris-LaGuardia Act. That Act provided that "no 
court of the United States shall have jurisdiction to issue 
a temporary or permanent injunction in any case involving 
or growing out of a labor dispute" unless certain very specific 
findings were made by the court, involving substantial and 
irreparable injury in balancing the interests of the parties.
In the Lauf case, the United States Supreme Court in uphold­
ing this provision, stated simply, at page 330,

"There can be no question of the power of Congress
thus to define and limit the jurisdiction of the in­
ferior courts of the United States."
B. VOTING RIGHTS
The question of Congress' power over the lower federal 

courts arose in another context, involving the elimination 
of the jurisdiction of the district court to entertain

22



certain matters arising under the Voting Rights Act of 1965.
In referring to that provision of the Act which requires
states to seek certain relief only in one district court
in the United States, the Supreme Court of the United States,
in South Carolina v Katzenbach, 383 US 301, 15 L Ed 2d 769
(1966) stated, at page 331:

"Despite South Carolina's argument to the contrary, 
Congress might appropriately limit litigation under 
this provision to a single court in the District of 
Columbia, pursuant to its constitutional power under 
Art. Ill, §1, to 'ordain and establish' inferior federal 
tribunals."
C. SELECTIVE SERVICE
The limited nature of the jurisdiction of the inferior 

federal courts, as determined by the Congress, is further 
illustrated in the selective service cases. In Falbo v 
United States, 320 US 549, 88 L Ed 305 (1944), the Supreme 
Court held that a selective service registrant could not 
defend a prosecution on the ground that he was wrongfully 
classified, where the offense was a failure to report for 
induction. The court held that until the registrant had 
exhausted all administrative appeals, the courts of the 
United States had no jurisdiction to entertain his claim 
that he had been improperly inducted. Following the Falbo 
case, the United States Supreme Court ruled in Estep v United 
States, 327 US 114, 90 L Ed 567 (1946), that in a case 
where the registrant had exhausted all administrative appeals 
before refusing to submit to induction, Congress had properly 
limited the scope of the court's review to determining whether 
or not the local draft board had acted beyond its jurisdic­
tion. In speaking for three of the justices, Justice Douglas 
stated at pages 122 and 123:

"The provision making the decisions of the local boards 
'final' means to us that Congress chose not to give 
administrative action under this Act the customary

23



scope of judicial review which obtains under other 
statutes. It means that the courts are not to weigh 
the evidence to determine whether the classification 
made by the local boards was justified. The decisions 
of the local boards made in conformity with the regu­
lations are final even though they may be erroneous.
The question of jurisdiction of the local board is 
reached only if there is no basis in fact for the 
classification which it gave the registrant."
In a concurring opinion, Mr. Justice Rutledge stated

at page 132:
"I have no doubt that Congress could make administra­
tive or executive actions final in such matters as 
these in the sense of excluding all judicial review, 
excepting only what may be required by the Constitution 
in the absence of suspension of the writ of habeas 
corpus."
In the case of Edwards v Selective Service Local Board,

111. 432 F 2d 287 (5th Cir. 1970), the subject of judicial
review of local draft board classifications again came up
for review. In that case, involving a registrant who sought
to enjoin his induction into the armed forces, the court
held that judicial review of registrant's classification
was barred by Congressional mandate. In its opinion, the
5th Circuit Court of Appeals stated at page 290:

"This Court and the court whose order we review are 
each and both inferior courts of limited jurisdiction. 
The route of our reasoning properly starts with the 
presumption that we lack subject matter jurisdiction 
until it has been demonstrated to exist. This has 
long been the basic tenent of federal jurisprudence, 
(citations omitted). The power to ordain and establish 
these courts is vested in the Congress; and, with ex­
ceptions not pertinent here, Congress has the power 
to give, withhold and restrict our jurisdiction." 
(emphasis added)

See also Carlson v United States, 364 F 2d 914 (10th Cir
1966) .

D. PRICE CONTROL
The Emergency Price Control Act of 1942 gave rise to 

several cases discussing the power of the Congress to limit 
judicial review in the area of wartime price controls.

24



The Emergency Price Control Act of 1942 provided that a 
person subject to an order or regulation of the Administrator 
under the Act could first file a protest of the Administrat­
or's action and could thereafter appeal such action only 
to the Emergency Court of Appeals created under the Act 
and thereafter to the United States Supreme Court. The 
Emergency Price Control Act also provided that the Emergency 
Court of Appeals and the Supreme Court had exclusive jurisdic­
tion over the subject matter involved and no other court, 
federal, state or territorial, could have jurisdiction or 
power to consider the validity of any regulation or order 
of the Administrator. Finally, the Emergency Price Control 
Act provided that the Emergency Court of Appeals and the 
United States Supreme Court were denied the jurisdiction 
to issue a temporary stay or injunction to prohibit the 
enforcement of the Administrator's regulations or orders 
during the pendency of an appeal from the denial of a protest, 
taken to the Emergency Court of Appeals or the United States 
Supreme Court. [3]

In Lockerty v Phillips, 319 US 182, 87 L Ed 1339 (1943) , 
the United States Supreme Court upheld the validity of that 
portion of the statute removing jurisdiction of the subject 
matter from all other courts. In its opinion, the court 
stated at page 187:

^3] Of interest also is the Economic Stabilization Act of 
1970, as amended Dec. 22, 1971, which provides in Sec. 211, 
as follows:

"(e)(1) . . . [N]o interlocutory or permanent injunction
restraining the enforcement, operation, or execution of this 
title, or any regulation or order issued thereunder, shall be 
granted by any district court of the United States or judge thereof.

"(f) The effectiveness of a final judgment of the Temporary 
Emergency Court of Appeals enjoining or setting aside in whole 
or in part any provision of this title, or any regulation or order 
issued thereunder, shall be postponed until the expiration of 
thirty days from the entry thereof, except that if a petition for 
a writ of certiorari is filed with the Supreme Court under sub­
section (g) within such thirty days, the effectiveness of such
judgment shall be postponed until an order^bf the Supreme CQurt denying such petition becomes final, or until other final position of the action by the Supreme Court.

25 rr-



"There is nothing in the Constitution which requires 
Congress to confer equity jurisdiction on any particular 
inferior federal court. All federal courts, other 
than the Supreme Court, derive their jurisdiction wholly 
from the exercise of the authority to "ordain and 
establish" inferior courts, conferred on Congress 
by Article 3, §1, of the Constitution. ... The con­
gressional power to ordain and establish inferior courts 
includes the power "of investing them with jurisdiction 
either limited, concurrent, or exclusive, and of with­
holding jurisdiction from them in the exact degrees 
and character which to Congress may seem proper for 
the public good." (emphasis added)

And at page 188, the Court stated:
"In light of the explicit language of the Constitution 
and our decisions, it is plain that Congress has the 
power to provide that the equity jurisdiction to restrain 
enforcement of the Act, or of regulations promulgated 
under it, be restricted to the Emergency Court, and, 
upon review of its decisions, to this Court."
In a subsequent opinion, Yakus v United States, 321 

US 414, 88 L Ed 834 (1944), the Court considered the question 
not raised in Lockerty, as to whether Congress could withhold 
from the courts actually vested with subject matter juris­
diction of price control appeals, (the Emergency Court 
of Appeals and the United States Supreme Court) the power 
to stay an order or regulation of the Price Control Admini­
strator or the power to issue an injunction prohibiting 
the enforcement of such order or regulation. In upholding 
this provision of the Emergency Price Control Act, the 
Supreme Court stated, at page 437:

"In the circumstances of this case we find no denial 
of due process in the statutory prohibition of a tem­
porary stay or injunction."

And at page 441:
"Here, in the exercise of the power to protect the 
national economy from the disruptive influences of 
inflation in time of war Congress has seen fit to post­
pone injunctions restraining the operations of price 
regulations until their lawfulness could be ascertained 
by an appropriate and expeditious procedure. In so 
doing it has done only what a court of equity could 
have done, in the exercise of its discretion to protect 
the public interest. What the courts could do Congress

26



can do as the guardian of the public interest of the 
nation in time of war." (emphasis added)

Finally, at page-444, the court stated:
"There is no constitutional requirement that test 
be made in one tribunal rather than in another, as 
long as there is an opportunity to be heard and for 
judicial review which satisfies the demands of due 
process, as is the case here."
E. DUE PROCESS AND GENERAL APPLICATION
1. Section 803 meets all requirements of one process.
The applicability of the above precedents, and particu­

larly the Yakus line of reasoning, to Section 803 is clear.
In the exercise of its constitutional grant of power and 
control over the federal judiciary, Congress has seen fit 
to speak to the procedures by which the courts, at all levels, 
shall determine the ultimate substantive rights and remedies 
of all the parties in a particular category of litigation.

The Yakus case is especially relevant because it dealt 
with a congressional mandate of a stay of proceedings. The 
Emergency Price Control Act provisions allowed the Price 
Control Administrator to impose substantial controls over 
individuals and then required that such controls, which were 
administratively ordered changes from the status quo, be 
maintained during the process of appeals. So long as ade­
quate appellate procedures were available, there was no 
denial of due process by limiting the interlocutory juris­
diction of the courts during the pendency of such appeals 
even though, as was admitted by the court in discussing 
the Lockerty and Yakus cases, irreparable harm could occur.
In the instant case, a similar restriction on the jurisdic­
tion of the courts during the pendency of appeals has been 
imposed by the Congress with one significant difference:
The stay mandated by Section 803 maintains the status quo, 
while the Emergency Price Control Act mandates the con­
tinuance of a questionable order or regulation.

27



I

As stated in Yakus, page 444, supra, the demands of
due process must be met in cases where congressional restraints
on the general jurisdiction of the federal courts are imposed,
once such general jurisdiction is granted. This was discussed
in the case of Battaglia v General Motors Corp, 169 F 2d
254 (2d Cir 1948) , a case involving the Portal-to-Portal
Act. The United States Supreme Court, in several cases
preceding the Portal-to-Portal Act, had interpreted the
Fair Labor Standards Act of 1938 as granting certain claims
for time spent by employees before and after the performance
of their main activities. Congress responded by enacting
the Portal-to-Portal Act, which deprived both state and
federal courts of jurisdiction to entertain the claims under
the Fair Labor Standards Act and outlawed the substantive
liability for the claims themselves. The Second Circuit
held that while Congress might not have the power to simply
remove the jurisdiction of all courts to entertain actions
to enforce such claims, the denial of jurisdiction was proper
where the effect of the withholding of jurisdiction itself
was not the cause of extinguishing the substantive liabilities
involved. At page 257, the Court stated:

"We think, however, that the exercise by Congress
of its control over jurisdiction is subject to compliance
with at least the requirements of the Fifth Amendment.
That is to say, while Congress has the undoubted power 
to give, withhold, and restrict the jurisdiction of 
courts other than the Supreme Court, it must not so 
exercise that power as to deprive any person of life, 
liberty, or property without due process of law or 
to take private property without just compensation."
In the instant cause it is clear that Section 803 does

not deny due process since it simply requires the maintenance
of the status quo during the pendency of appeals. The issue
is resolved by the language and holdings of Yakus, at page
442, supra:

28



" . . .  legislative formulation of what would otherwise 
be a rule of judicial discretion is not a denial of 
due process or a usurpation of judicial functions".
The case at bar indeed involves allegations and findings

regarding substantive constitutional rights under the 14th
Amendment of the Constitution of the United States and these
rights may not be extinguished by action of Congress. The
manner in which these substantive constitutional rights
are to be safeguarded and the establishment of procedures
to remedy denials of these rights by the courts of the
United States is reserved, however, by Article III, Section
1 of the United States Constitution,to the Congress. Within
the teachings of Yakus and Battaglia, so long as minimum
due process requirements of the Fifth Amendment are met,
Congress may exercise its wide discretion in mandating the
procedural jurisdiction of the lower federal courts in this
area which is of such national concern today.

2. Section 803 does not violate any constitutional
requirement of immediate relief.

Intervening School Districts are aware that the argument
has been made that Section 803 is unconstitutional for
the reason that it abrogates a constitutional interest
in immediate relief. This argument has been based upon
the teachings of the United States Supreme Court in Alexander
v Holmes County Board of Education, 396 US 19, 24 L Ed 19
(1969) and Carter v West Feliciana Parish School Board,
396 US 290, 24 L Ed 2d 477 (1970). These cases are further
amplifications of the principle stated in Green v County
School Board of New Kent County, 391 US 430, 20 L Ed 2d
716 (1968). In that case the United States Supreme Court
reiterated that the "deliberate speed" standard established

29



in the second Brown decision in 1955,- 349 US 294 , was no 
longer applicable, c.f. Griffin v County School Board, 377 
US 218, 12 L Ed 2d 256 (1964), and that the burden on a 
school board today is to come forward with a plan that promises 
to work and "promises realistically to work now". 391 US 
439, 20 L Ed 2d 724. Reasoning from the conclusions of 
these cases, opponents of the validity of Section 803 have 
made the argument that there is now a constitutional interest 
in immediate implementation of a plan upon a prima facie 
showing of continued segregation.

It is submitted that the principle of the above cases 
does not extend to the facts of the case at bar, which are 
totally distinguishable. In each of the above cited cases, 
the existence of a dual school system, constituting de 
jure segregation, was at issue. Each one of the school 
systems in the above cited cases had operated dual systems 
prior to 1954, and thereafter, by operation of state law.
This simple fact was either admitted or previously adjudicated 
in all of those cases. Thus the issue of "liability" had 
been completely resolved and the only question before the 
United States Supreme Court and the lower appellate courts 
was that of the timing and efficacy of implementing a plan 
of desegregation. The comment of Justices Harlan and White 
in a concurring opinion in Carter v West Feliciana Parish 
School Board, supra, to the effect that the burden, in actions 
similar to the Alexander case, should be shifted from Plain­
tiffs, seeking redress for a denial of constitutional rights, 
to Defendant school boards, and to the further effect that:



What this means is that upon a prima facie showing 
of non compliance with this Court's holding in Green 

* v County School Board of New Kent County, 391 US 430,
20 L Ed~2d 716, 8lT~S~Ct 1689 (1968), sufficient to 
demonstrate a likelihood of success at trial, plain­
tiffs may apply for immediate relief that will at once 
extirpate any lingering vestiges of a constitution­
ally prohibited dual school system.,

must be read as applicable only to a case where the issue 
of the existence of a "constitutionally prohibited dual 
school system" has been resolved unfavorably to the defendant 
school board. Intervening School Districts contend that 
the teachings of the United States Supreme Court in the 
above cited line of cases accordingly apply only after full 
resolution of the issue of de_ jure segregation. In the 
case at bar, this issue has not been fully resolved through 
appellate process. As outlined in this Brief, and as this 
Court knows, there are serious questions of lav/, both as 
to the issue of the existence of de_ jure segregation with 
the school district of the City of Detroit and as to the 
appropriateness of metropolitan relief in this cause. There 
has been no allegation or adjudication of the existence 
of a dual school system within the Defendant Intervenors' 
school districts. Accordingly, it should be readily apparent 
that the United States Supreme Court has not ruled that 
the right to implementation of a plan of desegregation under 
the Constitution is immediate, except in instances where 
the existence of a dual school system in violation of the 
Constitution has been finally adjudicated or admitted.

Thus, it is clear that Section 803 cannot be held uncon­
stitutional in the context of the case at bar where there 
has been no exhaustion of appellate remedies on the issues 
of liability in the first instance.

Even in a case involving the application of Section 
803 to an order transferring students, where there has been

31



full adjudication and exhaustion of appeals on the issue 
of liability, there is no reason why the Section cannot 
be reasonably accommodated to the teachings of the United 
States Supreme Court in the above cited line of cases.
Indeed, the Supreme Court has clearly indicated an immediacy 
requirement, once the existence of a dual system has been 
finally adjudicated (and Defendants contend that such finality 
must include the complete exhaustion of appeals on such 
issue). If at that point, a separate order transferring 
students or further implementing a plan of desegregation 
previously adopted is entered, it is clear that Section 
803 would compel the postponement of effectiveness of that 
order until any appeals from that order have been exhausted. 
However, under the teachings of Green, Alexander, and Carter, 
supra, any appellant would have extreme difficulty defending 
a motion to dismiss an appeal, in view of the immediacy 
requirements. Accordingly, any delay extended by Section 
803 would, under those circumstances, be of an extremely 
brief nature and would undoubtedly still meet the requirements 
of those cases, notwithstanding the application of Section 

803.
In summary, the question simply resolves itself into 

one of whether or not Section 803 is an attempt by the 
Congress to circumscribe the constitutional rights of the 
Plaintiffs guaranteed to them by the Fourteenth Amendment, 
or a direction by the Congress as to the procedures by which 
these substantive rights will be enforced by the courts 
of the United States. It is respectfully submitted that 
Section 803 could not be more clearly procedural in nature.
The ultimate declaration of the substantive rights of the

32



parties to this case will not be affected by the application 
of Section 803 any more than the ultimate determination 
of the substantive rights of the parties was affected in 
those desegregation cases where the courts, in the exercise 
of their discretion, granted a stay of proceedings to main­
tain the interests of all of the parties in status quo. 
Considering the serious and substantial questions relative 
to the issues of "liability" and "remedy" and their potential 
affect on parties Plaintiff and Defendant it cannot be said 
that the delay during appeal will per se constitute a denial 
of substantive constitutional rights. As stated so well 
in Yakus, Congress "has done only what a court of equity 
could have done, in the exercise of its discretion to protect 
the public interest."

Ill
QUESTIONS AS TO THE INTENDED APPLICATION 
OF SECTION 803 ARE CONTROLLED BY ITS 
_________LEGISLATIVE HISTORY____________

The legislative history of an Act of Congress is composed 
of the debates, amendments, committee reports, and explanations 
by its sponsors and managers attending a bill which subsequently 
becomes law. The legislative history of a law may be resorted 
to as an aid in determining the proper construction of a 
statute which is ambiguous or of doubtful meaning. Annot.
70 A.L.R. 5, 6, (1931); Blake v National City Bank, 23 Wall.
307, 23 L Ed 119 (1875); Railroad Commission v Chicago B.
& Q. R. Co, 257 US 563, 66 L Ed 371 (1922); Duplex Printing 
Press Co v Peering, 254 US 443, 65 L Ed 349 (1921); United 
States v Great Northern R. Co, 287 US 144, 77 L Ed 223 (1932) ; 
Wright v Mountain Trust Bank, 300 US 440, 81 L Ed 736,
(1937); Mitchell v Kentucky Finance Co, 359 US 290, 3 L Ed

33



2d 815 (1959); Swann v Charlotte-Mecklenberg, 402 US 1,
16, 17, 28 L Ed 2d 554, 567 (1971) and numerous other cases 
cited in 70 A.L.R. 5, 6, 7, 8.

It is anticipated by the Intervening School Districts 
that issue will be taken as to the meaning and application 
of several aspects of Section 803. Because it is certainly 
possible that Section 803 is capable of several interpreta­
tions as to its affect on Orders antedating the effective 
date of the statute, its affect on suits pending as of the 
effective date, and whether it applies to all Orders requiring 
the transfer and transportation of students, even if in 
pursuance of a finding of unlawful segregation, the correct 
interpretation must be determined by examination of the 
legislative history.

The rule as to the applicability of legislative history 
in construing the intent of a statute has been summarized 
as follows:

In construing legislative intent by reference to the 
legislative history, the Court must differentiate between 
statements made by individual legislators and those made 
by the sponsors of the Bill, the chairmen of the committees 
which consider the Bill, and the conference committee reports. 
Annot., 70 A.L.R. 5, 26-39.

In considering the legislative history of a statute,
Mr. Justice Frankfurter, joined by Black and Burton, JJ. , 
dissenting, in agreement with the majority on this point 
stated the following:

It has never been questioned in this Court that 
committee reports as well as statements by those 
in charge of a bill or of a report, are authorita­
tive elucidations of the scope of a measure.
Schwegmann Bros v Calvert Distillers Corp, 341 US 
384, 399, 400, 95 L Ed 1035, 1050, 1051 (1951).

34



See also Duplex Printing v Peering, 254 US 443, 474, 65 
L Ed 349 (1921); and Railroad Commission v Chicago, B. & 
Qjl Jk. £2' 257 563, 66 L Ed 371 (1922) .

In considering weight to be given to statements made 
by the sponsors of a bill the Supreme Court has stated:

We have often cautioned against the danger, when in­
terpreting a statute, of reliance upon the views of 
its_legislative opponents. in their zeal to defeat

they understandably tend to overstate its reach.
The fears and doubts of the opposition are no auth­

oritative guide to the construction of legislation.
It is the sponsors that we look to when the meaning 
o ^the statutory words is in doubt." Schwegmann Bros
v Calvert Distillers Corp, 341 US 384 ,“"394-395, 95---
L Ed 1035, 1048 (1951); see also Mastro Plastics Coro 
v 350 US 270, 2 88, 100 L~ETT0 97~32T7l956T;
NLRB v Fruit &_ Vegetable Packers, 377 US 58 , 66 , 12 ‘
L Ed 2d 129, 135 (1964); Woodwork Mfg Assoc v NLRB.
386 US 612, 639, 640, 18 L Ed 2d 357, 375 (1967)T“
In United States v United Mine Workers, 330 US 258, 

91 L Ed 884 (1947), statements were made regarding the 
proper construction of a statute by the sponsor of the
bill m  the House of Representatives and by the ranking 
minority member of the committee which reported the bill.
These statements were not challenged by any representative 
voting for the bill and because the Senate did not express 
a contrary understanding, the Court felt that such legislative 
history was "determinative guidance" in establishing the 
proper statutory construction. The massive number of cases 
which have been decided on the basis of legislative history 
is illustrated by Appendix A to Mr. Justice Frankfurter's 
dissenting opinion in Commissioner of Internal Revenue 
v Uhuuuh, using three pages to list "Decisions During the 
Past Decade in which Legislative History was Decisive of
Construction of a Particular Statutory Provision". 335 
US 632, 687, 688, 689, 93 L Ed 288, 321, 322, 323 (1949).

35



One of the most recent examples of the use by the 
United States Supreme Court of legislative history of Con­
gressional Legislation is Swann v eharlotte-Mecklenberg,
402 US 1, 16, 17, 28 L Ed 2d 554, 567 (1971).

IV
THE LEGISLATIVE HISTORY OF SECTION 803 

As indicated in the foregoing portion of this Brief, 
it is proper and necessary for the courts to look to the 
legislative history of laws when their interpretation is 
subject to question. In such cases, the intent of Congress 
as expressed in its debates and committee reports will 
be determinative of the interpretation to be placed on the 
law in question.

With respect to Section 803, there is ample legislative 
history to support the position urged by the Newly Inter­
vening School Districts.

The first phase in the history of Section 803 was when
it was introduced by Congressman Broomfield in the U.S.
House of Representatives on November 4, 1971 as a non-germane
amendment to the "Education Amendments of 1972". On that
evening, Mr. Broomfield stated:

Mr. Chairman, my amendment would postpone the effective­
ness of any U.S. district court order requiring the 
forced busing of children to achieve racial balance 
until all appeals to that order have been exhausted.

*  * *

. . . [S]ome U.S. federal courts have ordered busing
in recent months. In many instances, I feel that these 
orders are breaking new constitutional ground - that 
these orders have created a new and unprecedented 
extension of existing law.

*  * *

We can expect that many of these decisions ordering 
busing will be appealed and that on appeal they may 
be overturned. However, the appeals process is a long

36



and difficult one. It may take two or three years.
Thus, before the courts can completely decide this 
question, before the law is crystalized once and for 
all, busing will have become an accomplished fact.
Mr. Chairman, forced busing may prove to be an expen­
sive, time consuming and disruptive mistake.
My amendment would only delay a lower court's busing 
order until all those parties have had a chance to 
plead their case at their court of last resort.

* * * *

Congressional Record - House H10407, H10408, November 
4, 1971. .
Although too extensive to be repeated herein at length, 

the discussion by one of the Co-Sponsors, Congressman Nedzi, 
as reported in the Congressional Record, constitutes des­
cription of the entire history of the instant case and events 
leading to the submission of Section 803, and demonstrates 
beyond doubt that it was the specific intention of the 
Co-Sponsors that Section 803 be applicable to Bradley v 
Milliken. Congressional Record - House H10416, H10417,
November 4, 1971.

Following passage of the "Education Amendments of 1972"
in the House, with Section 803 as an amendment, and passage
of the "Education Amendments of 1972" in the Senate, but
containing different "anti busing" amendments, the Act again
came up for debate in the House on a motion to send it to
Conference Committee. In addressing Section 803, the following
debate in the House was had on March 8, 1972:

MR. BROOMFIELD. Mr. Speaker, I rise to stress the 
importance of retaining the House language of the 
amendment to stay busing orders until all appeals have 
been exhausted.

* * *

Mr. Speaker, the other body would have us discriminate 
against some busing orders. Some orders would be stayed 
pending appeal and others would not. We should write 
the law so that it applies uniformly to all cases which 
involve busing, otherwise, this law will be by definition, 
unfair.

37



* * *

MR. GERALD R. FORD. I would like to ask the gentle­
man several questions. First, is the Broomfield amend­
ment retroactive?
MR. BROOMFIELD. Yes; it is.
MR. GERALD R. FORD. It is retroactive in its entirety? 
MR. BROOMFIELD. In its entirety.
MR. GERALD R. FORD. The second question is this: Your
amendment states that the effectiveness of "any order" 
to achieve a racial balance of students "shall be post­
poned . "
Now, does that mean that it would affect orders which 
have already been put into effect or put into partial 
effect? In other words, all would be suspended pending 
final appeal?
MR. BROOMFIELD. That is correct.

* * *

MR. GERALD R. FORD. Mr. Speaker, if the gentleman 
will yield further, is it the intent of the author 
of the amendment that this stay during an appeal of 
any order shall be equally applicable not only to orders 
’involving forced busing but to desegregation cases 
generally?
MR. BROOMFIELD. Yes; it would be, in both cases.

*  *  *

Congressional Record - House - H1852, H1853, March 
8, 1972.
The Conference Committee Report was ordered to be

printed on May 23, 1972, and stated, in part, as follows:
The conference agreement contains the precise lan­
guage of the House amendment and provides that this 
section shall expire midnight, January 1, 1974. This 
section does not authorize the reopening of final orders, 
however, appealable orders are considered to be within 
the scope of this amendment. The conferees are hopeful
that the judiciary will take such action as may be 
necessary to expedite the resolution of the issues 
subject to this section. (Emphasis supplied).
U.S. House of Representatives, 92d Congress, 2d Session, 
Report No. 92-1085, Education Amendments of 1972, May 
23, 1972, p. 220.

38



The Conference Committee Report was brought before
the Senate in May of 1972. Senator Pell was the manager
in the Senate for the Conference Committee Report containing
Section 803. During the ensuing debates on the Senate floor
on May 23, 1972, the following occurred:

Senator Pell......... The conferees struggled long
and hard over the so-called busing amendments. The 
Conference Report adopts verbatim the Broomfield Amend­
ment, except that the duration of the Amendment is 
limited to January 1, 1974. During conference discussion, 
there was disagreement as to the meaning of the Broom­
field language. Here I would say that a literal reading 
of the language by a non-lawyer would indicate that 
if a local educational agency is under an appealable 
order to transport students to achieve racial balance, 
that local educational agency can receive a stay of 
that order whether it has been implemented or not.
I expect that today's debate will bring disagreement 
from those who have more of a legal background on the 
subject than I. However, I would say that the Senate 
is not in the habit of enacting frivolous language, 
and those who interpret our work as a sham and a fraud 
do injustice to both the Senate and the House. Page 
S8282.

*  * *

Senator Javits, speaking against the Broomfield Amendment, 
stated:

Then, Mr. President, we come to the Broomfield Amend­
ment, which was finally compromised as between the 
two bodies, and here again we have an absolutely flat, 
automatic stay of any order until appeals have been 
exhausted. At least, if you take the language for 
what the House sponsors say it means - and I will dis­
cuss that in a moment - you have an automatic stay 
for 19 (sic) months of any lower court order which 
would seek either to transfer or to transport students 
in respect of what again I say the Amendments House 
sponsors claim is an effort to desegregate in order 
to comply with the Constitution. Page S8286.
Senator Dominick, who is the ranking minority member

of the Education Subcommittee of the Senate and a member
of the Conference Committee which reported on Section 803,
stated as follows:

MR. DOMINICK. Mr. President, as the ranking minority 
member of the Education Subcommittee, I rise in support 
of the Conference Report of the Education Amendments 
of 1972.

39



* * *

To those colleagues who oppose the Conference Report 
because effect of the Broomfield language is ambiguous 
or not strong enough I point out that this was the 
best we could get. May I quote to you some legis­
lative history from the House side describing exactly 
what is intended by the language. On March 8, 1972, 
the distinguished minority leader (Mr. Gerald R. Ford) 
asked the author of the Amendment several highly per­
tinent questions. The colloquy went like this:

"MR. GERALD R. FORD. I would like to ask the 
gentleman several questions. First, is the Broom­
field amendment retroactive?
MR. BROOMFIELD. Yes; it. is.
MR. GERALD R. FORD. Is it retroactive in its 
entirety?
MR. BROOMFIELD. In its entirety.
MR. GERALD R. FORD. The second question is this: 
Your amendment states that the effectiveness 
of 'any order' to achieve a racial balance of 
students 'shall be postoned.'
Now, does that mean that it would affect orders 
which have already been put into effect or put 
into partial effect? In other words, all would 
be suspended pending final appeal?
MR. BROOMFIELD. That is correct."

The only limitations that the conference placed on 
the express and clearly intended language of the Broom­
field Amendment are the termination date of January 
1, 1974, and the statement of the conference's quali­
fication that it affects only appealable orders. I 
understand this qualification to add nothing other 
than to substantiate the finality of the order language 
already contained in the Amendment. In view of the 
language and the legislative intent, I believe that 
the effect of Broomfield is clear, and my colleagues 
should vote accordingly with full knowledge of the 
consequences.

Congressional Record - Senate, S8396, S8397, May 24, 
1972.
The Conference Committee Report was brought before 

the House in June of 1972, and Congressman Quie, the ranking 
minority member of the House Committee on Education and 
Labor and a member of the Conference Committee, co-managed



the Report with Congressman Perkins. On June 8, 1972, Con­
gressman Quie stated: .

. . . [t]he Broomfield amendment, . . . was aimed solely
at staying Federal court desegregation orders involving 
the transfer or transportation of students until all 
appeals are exhausted or until the time for taking 
such appeals has expired without one being taken.
This is an extremely important and necessary action 
designed to obtain equity and uniformity in these 
cases, and perhaps to give the Federal judiciary some 
time to assess the mood of Congress and the country 
with respect to wholesale busing of schoolchildren.

* * *

Accordingly, the conference report contains without 
substantive change the most significant and effective 
of the amendments covered by the instructions of the 
House. For the first time in the field of school desegre­
gation the Congress will be exercising its authority, 
which is limited under the Constitution, to regulate 
the actions of Federal courts.
Congressional Record - House, H5404, June 8, 1972.
Further on in the debate on accepting the Conference

Committee Report the following colloquy occurred between
Congressman Broomfield and Congressman O'Hara, co-sponsors
of Section 803, and Congressman Perkins, the Chairman of
the Conference Committee and the Chairman of the House
Committee on Education and Labor: • '

MR. O'HARA. Mr. Speaker, I am particularly interested 
in the provisions of section 803 of the conference 
report.
First, I would like to ask MR. BROOMFIELD about his 
meaning when his amendment spoke of an order of a district 
court requiring the transfer or transportation of students 
"for the purpose of achieving a balance among students 
with respect to race, sex, religion, or socioeconomic 
status." In all of the court orders with which I am 
familiar, the court has stated that its purpose is 
to prevent unconstitutional segregation of students.
May I inquire of the gentleman from Michigan if it 
was his intention that section 803 apply to orders 
that have the practical effect of achieving some sort 
of racial balance, although the court may have stated 
that its order was entered for the purpose of correcting 
unconstitutional segregation?
MR. BROOMFIELD. Yes; it was my intention to cover 
such cases and specifically, it was my intention to 
cover cases like those now being litigated in Richmond 
and Detroit.

41



MR. O'HARA. May I ask the chairman of the conference 
committee, the gentleman from Kentucky, if his under­
standing is the same as that of the gentleman from 
Michigan (MR. BROOMFIELD)?
MR. PERKINS. Yes, it is. It is my understanding that 
section 803 covers district court orders which require 
the transfer or transportation of students for racial 
purposes whether the court order is framed in terms 
of correcting unconstitutional segregation or whether 
it is framed in terms of "achieving a balance among 
students with respect to race."
MR. O'HARA. If I could continue to have the attention 
of the gentleman from Kentucky, the effective date 
of section 803 is July 1 of this year.
The joint explanatory statement of the committee of 
conference says:

"This section does not authorize the reopening 
of final orders, however, appealable orders are 
considered to be within the scope of this amend­
ment. "

Does this mean that if an order requiring the transfer 
or transportation of students has been entered prior 
to July 1, 1972, the effectiveness of such order shall 
be postponed until all appeals in connection with 
,such order have been exhausted, or, in the event that 
no appeals are taken, until the time for such appeal 
has expired?
MR. PERKINS. The gentleman from Michigan is correct. 
Section 803 will apply to such orders whether entered 
before or after July 1, 1972, as long as appeals of 
such orders have not been exhausted or, in the event 
no appeal of such order was taken, until the time for 
such appeal has expired.
MR. O'HARA. I thank the gentleman from Michigan and 
the gentleman from Kentucky for their explanations 
and I urge adoption of the conference report with the 
very important provisions contained in section 803.
Congressional Record - House, H5416, June 8, 1972.

Later in the same debate, Congressman Broomfield made
the following statement:

Mr. Speaker, I would like to address one final point. 
There has been some confusion, some misunderstanding 
about the operation of my antibusing amendment. I 
have read with a great deal of surprise that my amend- 
nent only applies to busing for purposes of arriving 
at a racial balance.
I have seen my amendment quoted out of context so as 
to imply that it will not be effective in preventing 
the vast majority of busing which is or will be ordered.

42



I suggest that a complete reading of the language reads, 
"for the purpose of achieving a balance among students 
with respect to race, sex, religion or socioeconomic 
status."
I repeat it halts busing ordered on the basis of socio­
economic status. That phrase was purposely added to 
my bill and retained only after a great deal of thought. 
Our feeling was that the phrase is wide enough and 
open enough to include any rationale or basis which 
a court might conceive of in order to justify busing.
I realized that by limiting the language only to cases 
involving racial balance, there would be those who 
would try to skirt and evade the obvious and clear 
intent of my bill. My bill delays all busing orders 
pending appeal and socioeconomic covers enough ground 
to make sure that happens.
Congressional Record - House, H5419, June 8, 1972.
Another aspect of Section 803 which should be emphasized, 

is that its legislative history clearly indicates that it 
cannot be construed in pari materia with the other provisions 
of the Education Amendments as contained in S659. The Edu­
cation Amendments of 1972 are very comprehensive and were 
carefully developed over a period of time by committees of 
Congress dealing with problems of higher education. Section 
803 (sometimes called the "Broomfield Amendment") was attached 
originally as a rider to S659 on November 4, 1971. The 
amendment had never been referred to a committee of Congress 
for consideration and the Congressional Record clearly 
indicates that the amendment was considered by members of 
Congress to be not germane to the original legislation before 
the House of Representatives. Congressional Record - House, 
H10407 - 10409 contains the original offering of the Broom­
field Amendment and the attempts by members of Congress 
to prevent consideration of the amendment because of its 
lack of germane.

Counsel for the Intervening School Districts are 
'informed that it is a custom and precedent of the House

43



of Representatives that when an amendment to a bill is 
offered, and read by the clerk of the House of Representa­
tives, objection must immediately be made as to the "ger­
maneness" of the amendment to the original legislation, 
or such objection is lost. On November 4, 1971 while the 
House of Representatives was sitting as a committee of the 
whole, question as to germaneness was raised and ruled 
"too late" by the Chairman.

The entire legislative history of Section 803 indicates 
that it was intended to operate as a separate piece of 
legislation, having no direct bearing on other provisions 
of the Higher Education Amendments, and accordingly, it 
should not be considered to be conditioned by, or modified 
by, any other provisions of the Higher Education Act.

Although the foregoing quotations from the Congressional 
Record and the Conference Committee Report may appear rather 
lengthy, they represent only a portion of the very extensive 
record on Section 803 above. The intended thrust of Section 
803, as indicated by the above quoted portions, is amply 
apparent and is virtually uncontradicted by reported debates 
engaged in on statements made by the author of the Section, 
the co-sponsors of the section, the floor managers of the 
section nor the chairman and members of the Conference Com­
mittee. Opposition debate as to the application of the 
section brought out clear explanation of the intended effect 
so as to make the legislative intent crystal clear. This 
legislative intent may be summarized as follows:

1. That it apply "retroactively" - that is to 
all suits in progress where the Court's Order trans­
ferring students has not been entered, or if entered, 
is still subject to appeal.

44



2. That its purpose is to give the appellate 
federal courts opportunity to review before implementa­
tion the Orders affected by the section.

3. That the Orders affected by the section are 
all orders requiring the transfer or transportation 
of students in a desegregation case, whether or not
the intent of the order is to correct illegal segregation. 
If the effect of the Order is to achieve a balance 
with respect to race, the effectiveness of the Order 
is postponed during appeals.

4. That the section was specifically intended 
to be applicable to the instant case.

V
SECTION 803 HAS RETROSPECTIVE 
________APPLICATION__________

As indicated by the foregoing discussion of the legis­
lative history of Section 803, it is clear that Congress 
intended that it's automatic stay provision apply not only 
to suits already pending as of its effective date, but also 
to orders which may previously have been entered but subject 
to appellate procedures as of the effective date of the 
Act. Because it is anticipated that some question may be 
raised as to the validity of this retrospective application, 
this subject is discussed below.

Because of the vast number of cases which could be 
cited for the general proposition that a procedural statute 
is presumed to have retrospective application a detailed 
analysis of the cases in this area is unnecessary. Perhaps 
the best summary of this general rule is expressed in the 
legal encyclopedias as follows:

45



"Unless an intent to the contrary is expressed, a statute
providing, or merely affecting, the remedy may apply
to, and operate on, causes of action which had accrued
and were existing at the time of the enactment of the
statute, as well as causes of action thereafter to
accrue, and to all actions whether commenced before
or after its enactment, and also, unless an intent
to the contrary is expressed, such enactments as do
not affect the nature of the remedy, but relate solely
to incidents of procedure, are applicable to all proceedings
taken in pending actions from the time they take effect."
82 C.J.S. Sec. 422 Statutes.
"A retrospective law, in a legal sense, is one which 
takes away or impairs vested rights acquired under 
existing laws, or creates a new obligation and imposes 
a new duty, or attaches a new disability, in respect 
of transactions or considerations already past. Hence, 
remedial statutes, or statutes relating to remedies 
or modes of procedure, which do not create new or take 
away vested rights, but only operate in furtherance 
of the remedy or confirmation of rights already existing, 
do not come within the legal conception of a retro­
spective law, or the general rule against the retro­
spective operation of statutes. To the contrary, 
statutes or amendments pertaining to procedure are 
generally held to operate retrospectively, where the 
statute or amendment does not contain language clearly 
showing a contrary intention." 50 Am. Jur. Sec. 482, 
Statutes.
One recent decision of the United States Court of Appeals 

for the Second Circuit appears to be particularly apposite 
to the instant case, Banco Nacional de Cuba v Farr, 383 
F2d 166 (2d Cir 1967), cert denied,’390 US 956, ren denied,
390 US 1037 (1968) and well illustrates application of the 
rule of retrospective application. This case involved 
the expropriation of property by the Cuban Government and 
the application of the Hickenlooper Amendment on the power 
of federal courts to deal with such expropriations.

The District Court had held that it had jurisdiction 
over the subject matter of the case and granted summary 
judgment for the defendants, holding that the expropriation 
of sugar by the Cuban Government violated international 
law. This decision was affirmed by the Court of Appeals 
but reversed by the Supreme Court of the United States,

46



which held that the "act of state doctrine" prevented the 
United States courts from examining the validity of the 
acts of the Cuban Government under international law. The 
case was remanded to the District Court and while proceed­
ings relative to the entry of an order were pending, the 
Hickenlooper Amendment was enacted, and provided, with respect 
to expropriation cases:

". . .no court of the United States shall decline
(jurisdiction) on the ground of the Federal act of 
state doctrine. . . . "

In holding that the Hickenlooper Amendment was fully applic­
able to the case already pending, the Second Circuit Court 
of Appeals stated at page 173:

"Moreover, it is well established that when a statute 
specifically applies to past transactions . . .  it 
applies to pending cases too because a case must be 
decided according to the law as it exists at the time 
of final judgment."
The Court further stated, at page 173, "legislative 

history of a statute is useful when the meaning of the 
statute is not apparent from the language." The Court then 
concluded that because of the language of the statute itself, 
as well as the legislative history of the Amendment and 
significant statements by the proponent of the Amendment, 
the statute had retrospective application and the Court 
had jurisdiction over the subject matter of the case, not­
withstanding the prior mandate of the United States Supreme 
Court disclaiming jurisdiction.

Section 803 is itself clearly procedural in nature.
The ultimate substantive constitutional rights of the parties 
will not be determined in any respect by the application 
of Section 803, for such rights will be determined only upon 
consideration thereof by the appellate courts. No substantive

47



rights are created or taken away by Section 803, which merely 
provides for the manner in which the rights of all of the 
parties are to be enforced and protected during the continu­
ing process of litigation.

There is nothing in Section 803 which indicates an 
intention that it should have prospective application only.
To the contrary, Section 803 applies to "any order" by "any 
United States District Court", until "all appeals in con­
nection with such order have been exhaused.", and it is 
clear from its own terms that its application is not limited 
only to certain orders entered after a certain date. In 
addition, the legislative history of Section 803 which has 
been described above, can leave no doubt whatsoever as to 
the intention of Congress as to its intended retrospective 
application, not only to cases in general but specifically 
with respect to the case at bar.

VI
SUMMARY RE: SECTION 803

To be sure, Section 803 is a unique and almost unpre­
cedented exercise by the Congress of its powers under Section 
1 of Article III of the United States Constitution. The 
mere fact that Congress has taken such action is indicative 
of the enormous public concern surrounding the student trans­
fer and transportation cases, such as the one at bar. Al­
though such concern of Congress and the people of the United 
States may not, under our system of laws, be cause for a 
denial or suppression of the Constitutional rights of people, 
it i£ within the power and discretion of Congress to deter­
mine the status of competing rights during the process of

48



appeals. It is submitted that on the basis of the above 
analysis, it is abundantly clear that this legislation is 
a Constitutionally valid exercise of Congressional power, 
intended to postpone the effectiveness of the student transfer 

orders entered by this Court.

H
CONCLUSION

This Court is vested with authority to grant a stay 
of its mandatory injunctive Order of June 14, 1972, pending 
appeal, pursuant to Federal Rules of Civil Procedure 62(c).

As noted hereinbefore, the Order of this Court is without 
the support of controlling judicial precedent, and recent 
decisions of appellate courts in Keyes v School District 
No.1, Denver, Colorado, 445 F2d 990 (CA 10, 1971) and Bradley
v School Board of City of Richmond, _____ F2d _____ (CA 4,
June 1972), as well as affirmance of the decision of a three 
judge court in Spencer v Kugler, 326 F Supp 1235 (1971) ,
aff'd. mem. _____ US _____, 92 S Ct .707 (1972) give a strong
likelihood that the Court's order for a metropolitan plan 
of desegregation will be reversed. The following holdings 
■ in Spencer v Kugler, supra, patently require reversal of 
this Court's reaching out and using fifty-two (52) independent 
school districts, against which there are no findings of de 
jure segregation, for the avowed purpose of repairing the 
denial of Constitutional rights to Negro children attending 

the Detroit public school system.
", . . . Brown never required anything more than

a unitary school system. . . .  If the drawing of [school] 
district lines is reasonable and not intended to foster 
segregation then that action satisfies the mandate of 
Brown. It cannot be said that school district lines 
based on municipal boundaries are unreasonable."
Spencer v Kugler, supra, at 1241.

49



+
The denial of a stay will clearly result in irreparable 

harm to the Intervening School Districts. This Court's 
Order has already resulted in the loss of revenues to many 
of the Intervening School Districts by virtue of the refusal 
of electors to approve millage levies to support a school 
system wherein they reside but which their children may not 
be permitted to attend. The restructuring of curriculum, 
faculty, staff, transportation facilities, pupil assignments, 
school facility utilization and in-service training programs 
which would be required in order to comply with the Order 
of this Court will result in serious disruptive consequences 
to said Intervening School Districts without any prospect 
of a recompense in the event this Court is found to be error.

The Plaintiffs and other interested parties will, on 
the other hand, not be substantially harmed by the granting 
of a'stay. Plaintiffs never sought a metropolitan plan of 
desegregation and obviously did not, and cannot now, claim 
that they will suffer irreparable harm by staying a remedy 
they did not seek in the first instance. Moreover, the Order 
of this Court does not contemplate complete effectuation 
of a metropolitan plan of desegregation prior to September 
of 1973. It cannot realistically be asserted that substantial 
harm will befall other parties by staying the implementation 
of the Court's Order and preserving the status quo pending 
review and determination by the Sixth Circuit Court if Appeals.

The public interest will be served by the granting of 
the stay herein requested. In light of this Court's acknow­
ledgement that the United States Supreme Court has never 
had a school case such as this, where an order for metropolitan

50



desegregation is the issue, the public interest would be 
best served by staying the Order of this Court at least 
until the Court of Appeals has had an opportunity to consider 
the issue. Should the Court be reversed on the issue of a 
metropolitan remedy, thousands of children and their parents 
will be subjected to a double dose of disruptive consequences 
for the sake of an unprecedented judicial experiment. Plain­
tiffs are not the only people who have constitutional rights, 
Deal v Cincinnati Board of Education, 419 F2d 1387 , 1391 
(1969, CA 6). There are Negro, as well as white, children 
and children within the Detroit school system, as well as 
in other school systems, who may not want to be bussed 
away from the school districts of their residences and the 
public interest as a whole will be best served by staying 
this Court's Order pending review by the Court of Appeals 
on the unprecedented and drastic remedy fashioned by this 
Court.

For the reasons hereinbefore stated, it is respectfully 
submitted that in the exercise of sound and proper judicial 
discretion, and in pursuance of the legislative mandate of 
the United States Congress, it is incumbent upon this Court 
to enter an Order staying and suspending its Order of June 
14, 1972, pending hearing on the appeal presently docketed 
in the Court of Appeals for the Sixth Circuit by Intervening 
School Districts.

Respectfully submitted,
BUTZEL, LONG, GUST, KLEIN & VAN ZILE

John B. Weaver
Robert M. Vercruysse
1881 First National Building
Detroit, Michigan 48226
963-8142
Attorneys for Defendant Allen Park 
Schools, et al

51



HILL, LEWIS, ADAMS, GOODRICH & TAIT

Douglas H. West 
Robert B^/webster 
3700 Perlobscot Building 
Detroit, Michigan 48226 
962-6485
Attorneys for Defendant Gcosse 
Pointe Public Schools

CONDIT AND MeGARRY, P.C.

860 W. Long Lake Road 
Bloomfield Hills, Michigan 48013 
645-5205
Attorneys for Defendant Southfield 
Public Schools

By. r O ’ -

//, / ? 7 jL

52