Brief in Support of Answer to Emergency Motion

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al,
Plaintiffs, 

v ,
WILLIAM G. MILLIKEN, et al,

Defendants,
and

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

Defendant-Intervenor,
and

DENISE MAGDOWSKI,
Defendants-Intervenors,

et al.
______________________________________________ /

Civil Action 
No. 35257

BRIEF IN SUPPORT OF ANSWER OF THE GOVERNOR, THE 
ATTORNEY GENERAL, THE STATE TREASURER, THE STATE 
BOARD OF EDUCATION AND THE SUPERINTENDENT OF PUBLIC 
INSTRUCTION TO THE EMERGENCY MOTION OF THE BOARD OF 
EDUCATION OF THE SCHOOL DISTRICT OF THE CITY OF 
DETROIT TO ORDER SAID STATE OFFICERS TO PROVIDE 
FUNDS TO KEEP DETROIT PUBLIC SCHOOLS OPERATION FOR 
A FULL 180 REGULAR DAYS, OF INSTRUCTION.

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

FRANK J. KELLEY 
Attorney General
Eugene Krasicky 
Gerald F. Young 
George L. McCargar 
Assistant Attorneys General
Attorneys for Defendants Governor, 
Attorney General, State Treasurer, 
State Board of Education and 
Superintendent of Public Instruction



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al,
Plaintiffs, v.

WILLIAM G. MILLIKEN, et al, Civil Action
Defendants, No. 35257

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

and Defendant-Intervenor,

DENISE MAGDOWSKI, et al.

et al. Defendants-Intervenors,
/

BRIEF IN SUPPORT OF ANSWER OF THE GOVERNOR, THE 
ATTORNEY GENERAL, THE STATE TREASURER, THE STATE 
BOARD OF EDUCATION AND THE SUPERINTENDENT OF PUBLIC 
INSTRUCTION TO THE EMERGENCY MOTION OF THE BOARD OF 
EDUCATION OF THE SCHOOL DISTRICT OF THE CITY OF 
DETROIT TO ORDER SAID STATE OFFICERS TO PROVIDE FUNDS 
TO KEEP DETROIT PUBLIC SCHOOLS OPERATING FOR A FULL 
180 REGULAR DAYS OF INSTRUCTION.

I.
A. There is no present real emergency.

Defendant Board of Education of the School District of 
the City of Detroit pleads an emergency requiring the immediate 
attention of this Court. Yet a careful reading of its motion 
compels the conclusion that there is in fact no present emergency. 
By its own admission (paragraph 6 of the Motion, the first full 
paragraph on page 6,of the affidavit of Harold Brown and the 
third paragraph of page 1 of the affidavit of Superintendent Wolfe)



*

the Detroit Board of Education has sufficient funds to keep its 
schools open and provide an educational program for its pupils 
until at least March 15, 1973. It has sufficient funds because 
under state law, 1972 PA 258, Chap 13, MCLA 388.1231 et seq;
MSA 15.1919(631) et seq,
it has borrowed from financial institutions and has pledged 
future state aid payments, and under 1972 PA 258, § 136,
MCLA 388.1236; MSA 15.1919(636), an advance of state aid payment 
has been authorized by the State Administrative Board on condition 
that the Detroit Board of Education keep operating its schools 
without closure in January and February, 1973. Obviously there 
would be no need for the State Administrative Board to make such 
an advance of state school aid payment in December of 1972 if the 
schools of the defendant Detroit Board of Education were to be 
closed December 21, 1972, all of January of 1973 and not reopen 
until February 19, 1973. It is noted that the Governor, the 
Attorney General, the State Treasurer, and the Superintendent of 
Public Instruction are voting members of the State Administrative 
Board and acted upon November 21, 1972 to authorize such an advance 
to permit the Detroit public schools to keep in operation. See 
Exhibit A to the Affidavit of Robert McKerr.

Thus these state defendants have been exercising powers 
conferred upon them by Michigan law to assist the defendant 
Detroit Board of Education to operate its schools for the requisite 
180 days as mandated by Michigan law. 1955 PA 269, § 575, MCLA 
340.575; MSA 15.3575.

Indeed this statute requires that a school district failing 
to provide 180 days of student instruction shall forfeit 1/180 of 
its total state aid for each day of such failure from state aid 
payments to be made in the subsequent school year. If defendant

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«* *

Detroit Board of Education is permitted to operate less than 
180 days for the current school year as authorized by its board 
(see page 2 of affidavit of Charles J. Wolfe), such Michigan law 
will mandate the forfeiture of 1/180 of the state aid to be paid 
the school district in the 1973-74 school year for each day under 
180 days. Thus closure of the Detroit schools from December 21,
1972 to February 19, 1973, will contribute to a horrendous financial 
problem for the school year 1973-74.

In large part the financial plight of the Detroit School
District is due to the inability of the defendant Detroit Board of
Education to lead its school electors to vote sufficient taxes, at
least to the state average of 24 mills, so that the school district
could afford to pay the comparable salaries it is paying its teachers
based upon the average salaries paid teachers by the seven highest

1
salary school districts in Wayne,sMacomb and Oakland counties. It 
is undisputed that for 1972-73 Detroit is levying only 15.5 mills 
on each dollar of its assessed valuation as state equalized, while 
most of the seven highest districts in such three county area have 
been levying at least 24 mills or more. Moreover, even though the 
defendant Detroit Board of Education has not provided a general 
increase to its teachers in 1972-73, it nevertheless is paying 
salary increases by way of increments to many of its teachers 
during such fiscal year although it is abundantly clear that it 
was in no financial position to do so. In addition, it has entered 
into contracts with its teachers other than first year teachers 
that gives them contractual rights to collect their salaries for 
January and February of 1973, although such contracts may be

^See Affidavit of Robert McKerr.

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terminated by giving 60 days notice prior to April 15, 1973, with
( /

no contractual obligation to make salary payments after April 15,
1973. Thus it must be concluded that if the Detroit schools close 
during January and the major part of February, 1973, the teachers 
under contract will have contractual rights to be paid, even 
though the children receive no education during such period.
Here, it must be stressed that, as set forth in Appendix A, 
attached hereto, the Detroit Federation of Teachers has served 
notice that, in the event the Detroit schools are closed during 
this period, it will seek a money judgment against defendant,
Detroit Board of Education, based on the contractual rights of 
the teachers to be paid during such period. Therefore, it can 
hardly be claimed that the decision to close on December 21, 1972 
to February 19, 1973 is in the best educational interests of the 
children of the school district and will result in substantial 
savings to the Detroit school district. Such savings are illusory 
in light of the teachers' contracts.

The emergency motion of the defendant Detroit Board of 
Education does not inform this Court of the efforts of these 
state defendants other than to authorize the advance of the state 
aid payment. By their silence, the motion-suggests that the state 
defendants are not concerned about the educational well-being of 
280,000 children being educated in the Detroit school district.
The efforts of the state defendants have been varied and many.
They will be described in the next portion of state defendants' brief.

Based upon the admissions of the defendant Detroit Board of 
Education, it is undisputed that there is no real present emergency 
in the Detroit school district. It is under contract to pay its 
teachers for the months of December, 1972, and January and February 
of 1973, and it has the necessary funds to pay such teachers for 
said period and to operate the schools.

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Moreover, on November 30, 1972, the following joint
statement was issued by House Speaker William A. Ryan, House
Minority Leader Clifford H. Smart, House Appropriations Committee
Chairman William R. Copeland, Senate Republican Leader Robert
VanderLaan, Senate Democratic Leader George S. Fitzgerald, Senate
Appropriations Committee Chairman Charles 0. Zollar and Senate
Democratic Flobr Leader Coleman A. Young:

"Members of the Michigan Legislature are aware of 
and concerned about the financial difficulty facing 
the Detroit Public School Board in attempting to 
fulfill its legal obligation to provide 180 days 
of education for nearly 1/7 of the state's school 
children. In fact, there are strong feelings among 
legislative leaders as well as other members that 
the Legislature must act to prevent a drastic 
reduction of educational services to children in 
Detroit and the many other school districts where 
deficits threaten a shortened school year.
"As leaders in our respective caucuses, we pledge today 
to give top priority to a speedy solution early in the 
next legislative session to the financing of the 
required full 180-day school year for all Michigan 
schools for the 1972-73 school year and express 
considerable confidence that we will meet with 
success in this effort. We further express our 
determination to simultaneously arrive at absolution 
to the long-range financing of schools throughout 
Michigan, without which there would be a disastrous 
continuation of fiscal crises.
"We trust that this commitment to work out a legis­
lative solution to the iiomediate financial crisis 
facing Detroit schools wj.ll encourage the Detroit 
School Board to reconsider its decision to close 
schools for 35 school days beginning December 21 
and resolve to give the Legislature the time needed 
to fashion a reasonable solution."
See Appendix B attached hereto.

Thus, in light of the foregoing, it is simply the height 
of irresponsibility for defendant Detroit Board of Education to 
consider closing its schools to its pupils during January and 
February of 1973.

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B. State defendants have been assisting 
the Detroit School District and the 
relief requested against them is both 
unnecessary and without authority.

i
It must be observed that a fair reading of the emergency

Imotion of said defendant and the accompanying affidavits of Charles 
J. Wolfe and Harold Brown appears to suggest that the only action 
taken by the state defendants to date to assist the Detroit school 
district was to authorize an advance of state aid and nothing more. 
Nothing could be further from the truth.

State defendants have appended to their response in 
opposition to the emergency motion of the defendant Detroit 
Board of Education the affidavit of Robert McKerr, Associate 
Superintendent for Business and Finance of the Michigan Department 
of Education, describing in minute detail the many and varied 
efforts of the state defendants from January 17, 1972 to date, to 
assist the defendant Detroit Board of Education to resolve its 
financial problems so that it could provide 180 days of instruction 
for its children. Because of the emergency nature of the motion 
filed by the defendant Detroit Board of Education and the urgent 
need to file our response without delay, the actions of the state 
defendants will not be recited here at length. Thus we direct the 
careful attention of the Court to the affidavit of Robert McKerr. 
Suffice it to say that the actions of the state defendants have 
been varied and many.

It would be well to emphasize the meetings of the state 
defendants with representatives of the defendant Detroit Board of 
Education on November 10, 1972, where ways and means were explored 
to continue operations of the Detroit schools through March 15, 1973 
by means of the loan from financial institutions pledging state aid

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payment and the advance of state aid authorized by the State
Administrative Board on November 21, 1972. See Exhibit A/ ■

appended to the Affidavit of Robert McKerr. Of great significance 
also is the meeting called by the Citizens Research Council on 
November 21, 1972, attended by the state defendants or their 
representatives, representatives of the defendant Detroit Board 
of Education, and leaders of the legislature, including, but not 
limited to, the Speaker of the House, the Majority Leader of the 
Senate, the chairmen of the House and Senate Appropriations 
Committees and various members of legislative Education and 
Taxation Committees. This was a very productive meeting not 
only to consider the financial plight of the Detroit School 
District and its ability to provide 180 days of student instruction, 
but more importantly, the meeting considered various approaches 
to provide the legislative means for the Detroit School District 
to operate a 180 day school year.

It is, therefore, abundantly clear that the legislature 
is fully informed of the financial situation of the Detroit School 
District and there is every reason to believe that the legislature 
will provide the means for the Detroit School District to operate 
a 180 day school year during the 1972-73 school year. It should be 
stressed that the legislature needs time to consider and resolve

t
the problems, and that the nature of the means, whether by loan, 
power to tax, grant or otherwise, rests in the discretion of the 
legislature. The joint statement of legislative leaders from 
both parties and both houses issued November 30, 1972,(Appendix B), 
is proof positive that, given sufficient time, the Michigan 
legislature will respond to the financial plight of the Detroit 
School District.

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At all times in furthering the interests of defendant 
Detroit Board of Education in providing 180 days of school for 
its 280,000 pupils, the state defendants have acted within their 
scope of powers as conferred by law. However, the power to tax 
and appropriate funds is vested by the people in the legislature. 
Const 1963, art 9, §§ 1, 11 and 17.

Responding to paragraph 12A of the emergency motion, 
defendant Detroit Board of Education therein suggests an order 
directing the Governor to call the legislature into special session. 
The legislature is in present session. Journal of the House, 1972, 
p 2988; Journal of the Senate, 1972, p 2027.

By concurrent resolution the legislature has voted to 
adjourn sine die on December 29, 1972, at 12:00 noon. House Journal, 
p 2708, September 6, 1972.

The authority of the Governor to convene the legislature 
into special Session is conferred by Const 1963, art 5, § 15.
Clearly, the purpose of art 5, § 15 is to empower the Governor to 
convene a legislature not in session. It, therefore, must follow 
that the Governor does not have the power to convene the legislature 
while it is in session.

Therefore, it must follow that an emergency order of this 
Court directing the Governor to call the legislature into session 
is wholly unnecessary, without lawful authority and should not be 
granted. The legislature has already committed itself to giving 
top priority to a speedy solution to this financial problem in the 
next legislative session commencing in early January, 1973.
See Const 1963, art 4, § 13.

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Turning to paragraph 12B of the emergency motion, as to the 
reviewing and reporting to the Court the possibilities of diverting 
existing state funds, including state aid to schools, state 
defendants would respond to the policy questions in this portion 
of the brief and to their lack of legal authority to divert funds 
in another portion of the brief, infra.

Addressing the possible diversion of state aid funds 
first, the legislature has enacted 1972 PA 258, MCLA 388.1101 
et seq; MSA 15.1919(501) et seq. Under Section 21, the legislature 
has made the basic appropriations for Michigan school districts 
based upon the assessed valuation of school districts so that 
larger state aid grants are made to poorer districts. As provided 
in Section 17, two installments of state aid have been paid and the 
third of six installments is to be paid on December 1, 1972.
Countless school districts, like Detroit School District, have 
borrowed from financial institutions and have pledged state aid 
to be received as provided by the legislature in §§ 131 - 135 of 1972 
PA 258, supra, while some school districts, including Detroit, have 
received advances of state aid as authorized by 1972 PA 258, § 136, 
supra.

School districts have relied upon 1972 PA 258, supra, to 
plan their budgets, contract with teachers and otherwise operate 
their schools as required by state law. To divert funds from 1972 
PA 258, supra, from other Michigan school districts who are levying 
an average of 24 mills for operating purposes to make such funds 
available to the defendant Detroit Board of Education, which is 
levying only 15.5 mills for operating purposes, would not only be 
unjust and inequitable to Michigan school districts, but would 
create financial and legal chaos to Michigan education generally, 
and deprive children in many school districts levying 24 mills

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for operating purposes of 180 days of education as required by 
Michigan law.

It is respectfully submitted that from a policy stand­
point, diversion of state aid funds during the middle of a school 
fiscal year from other Michigan school districts to defendant 
Detroit Board of Education is unwise as destructive of educational 
opportunity for all children in the state of Michigan. Moreover, 
this is a policy decision reposed in the sound discretion of the 
Michigan legislature, not the state defendants.

As to the diversion of other state funds, even if the 
state defendants had the power to do so, which they do not, a 
similar policy argument must be made. The Governor and the legis­
lature have considered the needs of all state agencies and services. 
Budget bills have been enacted into law and moneys appropriated 
thereunder have been expended to feed and house the poor, the ill, 
the aged and the mentally incompetent. In addition, education is 
being provided on the college and university levels and other 
needed state services are being provided the people of this state.
Almost five months of the state fiscal year have elapsed. Contracts 
have been let and obligations incurred. To request the state defendants 
to divert any of these funds is not only an impossible task but not 
in the best interests of all of the people of this state. Where do 
we begin to divert funds? The legislature has weighed the competing 
interests in determining the appropriations. The diversion of other 
state funds at this time would be unwise and destructive of orderly 
provision of vital state services. Moreover, again this is a policy 
decision reposed, under Michigan law, in the sound discretion of the 
Michigan legislature, not the state defendants.

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m

It must be concluded, therefore, that the state defendants 
are doing everything within their lawful authority to assist the 
defendant Detroit Board of Education to provide 180 days of 
instruction for their pupils in the current school year. An order 
of this Court to continue doing this is unnecessary. The Governor 
is without lawful authority to convene the legislature in special 
session since the legislature is in session presently and will continue 
in session until at least December 29, 1972, when it intends to adjourn 
sine die. It is manifestly unwise to consider ordering the state 
defendants to divert state funds, including state school aid funds, 
to the defendant Detroit Board of Education. Moreover, only the 
legislature has the power to divert appropriations made by it or 
to make any further appropriations. Further, the questions of 
ascertaining whether there are additional unappropriated funds in 
the state general fund and, if so, whether some of such funds 
should be appropriated to the Detroit School District are reposed, 
under Michigan law, in the discretion of the Michigan legislature.

II.
A. The lawful power to assist the defendant 

Detroit Board of Education in obtaining 
funds to provide 180 days of student 
instruction for the 1972-73 school year 
is reposed in the Michigan legislature, 
not a party defendant herein.__________

At the outset of this portion of the brief, it must be
emphasized that the prayer for relief in the emergency motion here
under consideration contains, inter alia, the following:

"3. Find as Fact and Conclude as Law that the 
named State Defendants in this cause have the 
power, augmented by the equitable power of this 
Court, to provide the additional wherewithal 
necessary to implement the order of July 7, 1972 
without any further action by the Michigan State 
Legislature.

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"4. Order aforesaid State Defendants to present 
within 10 days of the issuance of this Order a plan 
for the exercise of such authority.
?5. Hold hearings forthwith to consider such plan 
and any modifications that may be suggested by 
additional parties.
"6. Order the implementation of said plan, with such 
modifications as the Court may deem appropriate after 
hearings no later than February 1, 1973, provided 
that the Michigan State Legislature has not first 
acted to provide the necessary wherewithal to allow 
the continued operation of the Detroit Public Schools." 
[Emphasis supplied! pp 11-12

Further, in the memorandum filed in support of its emergency
motion, defendant Detroit Board of Education states the following:

"Thirdly, it would be imprudent not to consider 
the impact of this action on the State Legislature.
The Detroit Board readily admits that by far the 
best place for the current problem to be solved is 
in the State Legislature, and sincerely hopes that 
that body does provide a solution, which in its" 
wisdom and expertise is the most workable^ YeT, 
as noted above, the pronouncements of legi'slative 
leaders do not indicate that that body is eager to 
assume the responsibility clearly placed upon it 
by the Constitution of the State of Michigan to 
provide for a free public education. . . . "
[Emphasis supplied] p 9

a fair 
motion

Thus, the following conclusions are patently obvious from 
reading of defendant Detroit Board of Education's emergency 
and memorandum in support thereof:

1. Defendant Detroit Board of Education is asking 
this Court to order the state defendants to 
provide approximately 80 million dollars in additional 
state funds for the Detroit schools. The phrase 
"additional wherewithal" in the prayer is a 
euphemism that serves only to obfuscate the 
issues before this Court.

2. Yet, defendant Detroit Board of Education 
recognizes, as it must, that the Michigan

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legislature is the only body with the 
authority, under Michigan law, to appropriate 
the funds or provide other means whereby the 
schools in Detroit may remain open for 180 
days during the 1972-73 school year.

Further, in light of the Joint Legislative Statement 
issued on November 30, 1972 (Appendix B), it is beyond dispute that 
the Michigan legislature has unequivocally demonstrated its intent 
to come to grips with the fiscal plight of the Detroit schools in 
the next legislative session, on a priority basis, and provide some 
method of legislative relief so that Detroit's school children will 
have 180 days of school.

Turning to Michigan law, it is crystal clear that the 
power to appropriate state funds to school districts, whether from 
the state school aid fund or the general fund, is reposed in the Michigan 
legislature. Further, it is equally clear that funds appropriated by 
the legislature must be paid out by the state defendants herein in 
accordance with the statutes appropriating such funds to school 
districts as prescribed by the legislature.

In Const 1963, art 9, § 17, the people have provided:
"No money shall be paid out of the state treasury
except in pursuance of appropriations made by law."

Further, Const 1963, art 4, § 30 provides:
"The assent of two-thirds of the members elected 
to and serving in each house of the legislature 
shall be required for the appropriation of 
public money or property for local or private 
purposes." 2

^We make no claim that a 2/3 vote is required to appropriate 
funds to Michigan school districts but only cite this provision 
to show that, demonstrably, the power of the purse is in the 
legislature. See also Const 1963, art 3, § 2, setting forth the doctrine of separation of powers for Michigan government.

13-



*

In addition, Const 1963, art 8, § 2 states in
pertinent part, the following:

"The legislature shall maintain and support a 
system of free public elementary and secondary 
schools as defined by law."

The Address to the People accompanying this constitutional
provision contains the following language:

"This is a revision of Sec 9, Article XI, of the 
present [1908] constitution which fixes respon­
sibility on the legislature to provide 'primary' 
education. To conform to present practice and court 
interpretations, 'primary' is changed to 'elementary 
and secondary.' The balance of the section is 
excluded because its restrictions as to finance 
and definitions as to basic qualifications needed 
to be eligible for state aid are better left to 
legislative determination. I I 7" [Emphasis supplied]

Moreover, in Const 1963, art 9, § 11, which establishes
the state school aid fund, the people there provided:

"There shall be established a state school aid 
fund which shall be used exclusively for aid to 
school districts, higher education and school 
employees' retirement systems, as provided by 
law. .One-half of all taxes imposed on retailers 
on taxable sales at retail of tangible personal 
property, and other tax revenues provided by law, 
shall be dedicated to this fund. Payments from 
this fund shall be made in full on a scheduled 
basis, as provided by law.-11 [Emphasis supplied]

The Address to the People accompanying this constitutional
provision contains, inter alia, the following:

"This is a new section which directs the 
legislature to establish a school aid fund to 
which must be dedicated one-half of all state 
sales tax collections and such other revenues 
as the legislature may determine. Moneys in the 
fund must be used for support of education and 
school employees' retirement systems. Payments 
from the fund are to be made in full on a basis 
scheduled by legislative enactment"! I ! T71 
[Emphasis supplied]

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t

A unanimous Michigan Court of Appeals has declared 
the following:

. . A  further indication that the plaintiff 
is a public institution is found in Const 1963, 
art 8, § 4, which provides, 'The legislature 
shall appropriate moneys to maintain the 
University of Michigan,' and we recognize that 
the legislature dees each year appropriate 
moneys to maintain the plaintiff. These 
moneys are tax moneys derived from general 
taxation on all of the people of this state, 
and the legislature is the only body that has 
the power to appropriate the public funds of 
this state. . . ." [Emphasis supplied]
Regents of University of Michigan v Labor 
Mediation Board, 18 Mich App 4~85, 490 (1969).

More recently, in an unreported order attached hereto 
as Appendix Cr (Michigan Education Association, et al v State Board 
of Education, et al, Court of Appeals No. 11900, order issued 
July 8, 1971), in a case involving an attempt to mandamus the 
State Board of Education and the Michigan legislature to appro­
priate additional funds to several Michigan school districts, the 
Court of Appeals, in denying such relief, squarely held:

"IT IS FURTHER ORDERED that the motion for 
order to show cause as to the members of 
the State Board of Education and the Super­
intendent of Public Instruction in their 
official capacities be, and the same is 
hereby DENIED, it appearing to the Court that 
plaintiffs have not demonstrated defendants' 
failure to perform a clear legal duty, and 
further that expenditure of the state 
general funds is solely within the province 
of the Legislature; Welling v Livonia Board 
of Education (ltyogj, 382 Mich 620, Detroit 
Board of Education v Superintendent of 
Public Instruction, supra; Const 1963, 
art 9, § 17." [Emphasis supplied] p 2 of order.

These two unanimous decisions of the Michigan Court of 
Appeals, along with Detroit Board of Education v Superintendent of 
Public Instruction, 319 Mich 436 (1947), are controlling and must, 
it is respectfully submitted, be followed.

>• ' : ..X

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Thus, under Michigan law, only the Michigan legislature 
may lawfully appropriate, allocate and direct the disbursement of
state funds to school districts. The state defendants herein;
possess no authority to do so. Consequently, this Court may not 
compel the state defendants herein to appropriate, allocate or 
disburse state funds to the Detroit School District in contravention 
of the statutes enacted by the Michigan legislature providing for 
state school aid appropriations to school districts.

In short, only the Michigan legislature may provide 
financial assistance to the Detroit Board of Education to operate 
for 180 days during this school year. In modern times, the Michigan 
legislature has always responded positively to the financial crises 
of school districts and other educational institutions in a manner 
that has enabled them to avoid closure during the school year. It 
has done so in different ways.

As to school districts incurring deficits and facing 
closure, the legislature has provided for emergency assistance 
through the provision of 1968 PA 32, MCLA 388.201 et seq; MSA 
15.1916(101) et seq. Upon a certified audit of the State Treasury 
Department that the school district is insolvent (Sec 4) the board 
of education of such a school district is eligible to receive an 
emergency loan from the state of Michigan and it shall issue bonds 
in the amount of the emergency loan made payable to the state of 
Michigan to be repaid in not more than 10 years plus interest.
This statute also created an emergency loan fund in the sum of 
$1,500,000.00 (Sec 19). Under Sec 20 of 1968 PA 32, supra, this 
act expired on June 30, 1970,

More recently the legislature has enacted 1972 PA 225,
MCLA 388.221 et seq; MSA 15.1919(251) et seq, to provide for

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emergency assistance for insolvent districts. Under Sec 3 the 
board of education of a school district that incurs a deficit 
which is attributable at least in part to annual tax collections 
on tax settlement day of less than 85% of ad valorem taxes levied 
by the district, upon a certified audit of the State Treasury 
Department that the district is insolvent, is eligible to receive an 
emergency loan. The school district shall issue bonds in the amount 
of the emergency loan made payable to the State in equal installments 
in not more than 10 years, plus interest at the rate of 6% per annum. 
The legislature has appropriated from the general fund to the school 
emergency loan revolving fund the sum of $300,000.00 (Sec 19) and 
has provided that the act shall expire June 30, 1973 (Sec 20). It 
is noted that, aside from the modest appropriation of $300,000.00 
made to the school emergency loan revolving fund under 1972 PA 225, 
supra, the statute is limited to school districts in an emergency 
condition attributable at least in part to an unusually low tax 
collection. It is demonstrable that the school district of the 
City of Detroit has a tax collection rate in excess of 95% so that 
it is presently ineligible for an emergency loan under 1972 PA 225, 
supra.

Under both legislative approaches to school deficits and 
closures, the legislature has in the past made emergency loans to 
insolvent school districts by 1968 PA 32, supra, and 1972 PA 225, 
supra, and has required the school district to issue bonds made 
payable to the State of Michigan and has specified that such "bonds 
shall also be the full faith and credit obligations of the school 
district and all taxable property within the school district shall 
be subject to the levy of ad valorem taxes to repay the principle 
and interest obtained under the bonds without limitation as to rate 
or amount." 1968 PA 32, § 6, supra, and 1972 PA 225, § 6, supra.

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As another legislative approach to a deficit of a 
public educational institution and threatened closure, the 
attention of the Court is directed to the plight of Wayne County 
Community College, which was confronted with closure in the 
fiscal year 1970-71 because of a deficit in excess of 2 million 
dollars. It is noted that the Wayne County Community College 
district was established by the legislature pursuant to 1966 
PA 331, §§ 81-84, MCLA 389.81-84; MSA 15.615(181)-(184), but 
its board of trustees is without statutory power to levy any 
taxes because its electors have not approved a tax rate. Thus, 
the community college district is entirely dependent upon tuition, 
fees and appropriations from the legislature. The legislature, 
pursuant to its constitutional power, first enacted 1971 PA 39, 
to make a supplemental appropriation of $400,000 for Wayne County 
Community College and thereafter enacted 1971 PA 115 to appropriate 
the sum of $1,873,434.91. These supplemental appropriations 
permitted that educational institution to continue its operation 
without closure. Such sums were in addition to the general appro­
priations for operation of the community college made pursuant 
to 1970 PA 83 in the amount of $2,712,225.00.

No representation is made, indeed can be made, that the 
legislature will make a grant of any additional moneys to the 
Detroit School District, since only the legislature can determine 
what grants, if any, can be made to the school district. However, 
based upon meetings held with legislative leaders, state defendants 
and the Detroit school officers, together with the joint statement 
issued by legislative leaders on November 30, 1972, there is every 
reason to believe that the legislature will respond with some means 
for Detroit to provide 180 days of schooling for its children for 
the school year 1972-73. Whether the legislature will provide

- 18-



emergency

- J

/

assistance for the Detroit school district by way of 
authorizing a loan, either from private financial institutions 
or the state of Michigan, and the issuance of bonds and the 
statutory authority to levy taxes to pay off such financial 
indebtedness, or by way of a grant, or by a combination of methods, 
is solely within the discretion of the legislature. In any event, 
it is clear that the legislature must have sufficient time to deal 
with the problem.

B. None of the state defendants possess any authority to divert already appropriated 
state school aid funds from other school 
districts to the Detroit School District.

In 1972 PA 258, MCLA 388.1101 et seq; MSA 15.1919(501) 
et seq, hereinafter referred to as the state school aid act of 
1972, the legislature has made appropriations of state school aid 
funds to school districts.

Sections 11, 21(1) and (2) and 0-7) of the state school 
aid act of 1972, supra, provide the following:

"Sec. 11. There is appropriated from the school 
aid fund established by section 11 of article 9 
of the constitution of the state for each fiscal 
year, the sum necessary to fulfill the requirements 
of tliis act, with any deficiency to be appropriated 
from the general fund by the legislature. The appro­
priation shall be allocated as provided in this act."
"Sec. 21. (1) Except as otherwise provided in this
act, from the amount appropriated in section 11 there 
is allocated to every district a sum determined as 
provided in subsection (2) plus the amounts allocated 
for transportation in chapter 7 and tuition in 
chapter 11.
"(2) The sum allocated to each school district 
shall be computed from the following table:

- 19-



State equalized
valuation behind Gross Deductible
each child Allowance Millage

(a) $17,750.00 $644.00 16
or more

(b) Less than $715.00 20
$17,750.00

"Sec. 17. On or before August 1, October 1, 
December 1, February 1, April 1 and June 1, the 
department [of Education] shall prepare a 
statement of the amount to be distributed in 
the installment to the districts and deliver 
the statement to the state treasurer, who shall 
draw his warrant in favor of the treasurer of 
each district for the amount payable to the 
district according to the statement and deliver 
the warrants to the treasurer of each district."

Thus, it is beyond dispute that payments to school 
districts under the state school aid act of 1972, supra, must be 
made in accordance with the statutory formula contained therein. 
Further, the law is settled in Michigan that mandamus will issue 
to compel the State Board of Education to disburse state school 
aid funds to school districts in the amounts called for by the 
provisions of the statute appropriating funds to school districts'.. 
Manistique Area Schools v State Board of Education, 18 Mich App 519 
(1969), Leave to Appeal denied 383 Mich 775 (1970).

In Manistique, supra, in granting the writ of mandamus,
the Court squarely held as follows:

"Thus, it is defendant who has the clear legal 
duty of making the apportionment and distributing 
school aid according to the statute. The question 
that must be determined is whether the defendant has 
complied with the legal mandate which the statute 
has imposed upon it. . . . "  p 522.

Therefore, it is abundantly clear that the duty to allocate 
and disburse funds to school districts under the state school aid 
act of 1972, supra, is a ministerial duty that must be done in 
accordance with the statutory formula for allocating funds to each 
school district set forth therein. In short, none of the state

- 20-



%

defendants possess any lawful authority to divert funds from 
other school districts to the Detroit school district under the 
state school aid act of 1972, supra.

It is equally clear that there is no authority for the 
state defendant to direct any other state funds to the defendant 
Board of Education except as authorized by the legislature. See 
authorities cited in part II A of the brief.

C. The federal courts will not order state officials 
to perform acts that are beyond their lawful 
power to perform under state law._______________

The relief sought by defendant Detroit Board of Education
is an order of this Court compelling the state defendants to provide
approximately 80 million dollars in additional state funds to the
Detroit schools. As demonstrated above, this is beyond the lawful
authority of the state defendants to do under Michigan law. Further,
the cases cited by defendant Detroit Board of Education in supportl
of such relief are not authority for the type of coercive mandatory 
injunctive relief to provide state funds from the state treasury 
sought herein. To the contrary, the law is settled that the federal 
courts will not order state officials to perform acts that are beyond 
their authority to perform under state law.

m  Griffin v County School Board of Prince Edward County, 
377 US 218 (1964), involving the closure of public schools in one 
county, to avoid school desegregation, while in the other counties 
the public schools remained opened, the Supreme Court held the 
following:

" . . .  The Board of Supervisors has the special 
responsibility to levy local taxes to operate 
public schools. . . . For the same reasons 
the District Court may, if necessary to prevent 
further racial discrimination, require the Super­
visors to exercise the power that is theirs to 
levy taxes to raise funds adequate to reopen, 
operate and maintain without racial discrimination

- 21-



i

m  #

t
a public school system in Prince Edward County
like that operated in other counties in Virginia."
[Emphasis supplied] pp 232-233

The rulings of the District Court in United States v 
School District 151 of Cook County, Illinois, 301 F Supp 201 
(ND 111, 1969), aff'd as modified 432 F2d 1147 (CA 7, 1970), 
cert den 402 US 943 (1971), and the Fifth Circuit Court of 
Appeals in Plaquemines Parish School Board v United States,
415 F2d 817, 833 (CA 5, 1969), merely reiterate the holding in 
Griffin, supra, that federal courts may compel those state and 
local governmental officials over whom they have jurisdiction to 
exercise their powers under state law to prevent the violation 
of Fourteenth Amendment rights.

In Thaxton v Vaughn, 321 F2d 474 (CA 4, 1963), in a suit 
to desegregate a municipal nursing home and armory, a unanimous 
court held:

". . . As he has no authority to act alone, a 
decree entered solely against the City Mayor 
would not have the effect of granting complete 
or even effective relief to the plaintiffs.
The relief requested by the plaintiffs could 
not possibly be granted effectively in the 
absence of either the City or the Council, or 
other appropriate defendants, and a court, 
particularly in an equity action, ought not 
grant relief against a public official unless 
its order will be effective. [Citations omitted]
. . . "  pp 477-478

State defendants strongly urge that federal courts may 
only order state officials, over whom they have jurisdiction, to 
exercise such powers as they possess under state law. Bradley v 
School Board of the City of Richmond, Virginia, 51 FRD 139 
(ED Va, 1970) .

"To be sure, state officials may only be 
directed, in fulfillment of this duty [to 
desegregate schools], to use those powers 
granted to them by state law. For this 
reason the relief which may be demanded of 
state, as opposed to local officials is

- 22-



< i

restricted. Smith v North Carolina State 
Board of Education, Misc. No. 674 (4th Cir., 
July 31, 1970) . . .  In each case, however,
the obligation is commensurate with the scope 
of the power conferred by state law." p 142.

Moreover, an analysis of the arguments put forth by 
defendant Detroit Board of Education will demonstrate that it 
agrees with the proposition that the federal courts may only 
compel state and local governmental officers and agencies to 
perform those acts they have the authority to perform under 
state law.

Pursuant to Section 196 of 1955 PA 269, as amended,
MCLA 340.1 et seq; MSA 15.3001 et seq; defendant Detroit Board of
Education determines the amount of taxes to be levied for school
operating purposes. Further, in Hertzog v City of Detroit, 378
Mich 1 (1966), the Michigan Supreme Court declared:

"The board of education alone determines the 
annual tax needs of the school district. CLS 
1961, § 340.196 (Stat Ann 1959 Rev § 15.3196).
The city of Detroit performs the ministeral 
task of collection. The board of education is 
limited in the amount thclt may be collected for 
it. Article 9, § 6, of the Michigan Constitution 
of 1963 establishes a 15-mill maximum tax rate 
which, together with millage authorized by the 
city charter, is the limit past which no property 
can be taxed without a vote of the property owners.
(See, generally, CL 1948 and CLS 1961, § 211.201 
et seq. [Stat Ann 1960 Rev and Stat Ann 1965 
Cum Supp § 7.61 et sec[. ]) . Where the maximum millage is reached, each 'local unit' (CLS 1961,
§211.202 [Stat Ann 1965 Cum Supp §7.62]) receives a 
given number of mills with the surplus left over 
being allocated among 'local units' according to 
their needs. (CLS 1961, §211.211 [Stat Ann 1965 
Cum Supp §7.71]). Whenever this amount proves 
insufficient as it has in Detroit, unless the 
property owners authorize a millage increase, 
the local unit, i.e., in this case the board of 
education , must do without. . . . "  p 19

In paragraph 5A of its motion, defendant Detroit Board of 
Education states that it has unsuccessfully submitted four millage

- 23-



i

proposals to the electorate in 1972 to both renew expiring millage 
and obtain authority to levy additional millage. These millage 
elections were required under the 15-mill limitation on general 
ad valorem property taxes contained in Const 1963, art 9, § 6 
in order to obtain lawful authority, under state law, to increase 
the property tax limitation for school operating purposes. Thus, 
in the face of the preliminary injunctive order of July 7, 1972, 
entered herein and an impending inability to provide its pupils 
with 180 days of instruction due to lack of funds, the Detroit 
Board of Education has considered itself bound by Michigan law and 
it has not sought to levy general ad valorem property taxes above 
the 15.5 mills it has the lawful authority to levy under Michigan law.

Rather, defendant Detroit Board of Education is now attempting 
to have this Court compel the state defendants, contrary to their 
lawful powers under state law, to reach into the state treasury and 
provide approximately 80 million dollars in unappropriated additional 
state funds so that there may be 180 days of school in Detroit in the 
1972-73 school year. Here, it must be reiterated that the Detroit 
School District is levying only 15.5 mills for operating purposes 
while the statewide average school district millage levy for operating 
purposes is 24 mills. Numerous school districts are levying above 
24 mills for operating purposes with a substantial number of school 
districts levying above 30 mills. Thus, it would be manifestly 
unfair to order the state defendants to divert state school aid 
funds away from such school districts, where the electors have 
voted in favor of tax rate limitation increases for school operating 
purposes, to the Detroit School District, where the electors have 
voted against such tax rate limitation increases.

It is the position of the state defendants that this Court 
should not order any coercive relief against any party with respect to



providing the additional funds required for 180 days of school 
in the Detroit public schools. There is every reason to believe 
that the Michigan legislature will provide the means to enable 
defendant Detroit Board of Education to have 180 days of student 
instruction in the 1972-73 school year. However, in the event 
this Court determines it is going to grant such coercive relief 
herein, it is significant that in Griffin, supra, cited by 
defendant Detroit Board of Education, such coercive relief was 
directed against the local governing body with the power to levy 
taxes for school operating purposes.

D. The relief sought herein by defendant Detroit 
Board of Education constitutes a suit against 
the state of Michigan in federal court without 
its consent contrary to the Eleventh Amendment 
and the controlling precedents of federal 
appellate courts.____________________________

In the emergency motion, at paragraphs 3 through 6 of 
the prayer for relief, it is crystal clear that, in essence, the 
relief sought is to have this Court compel the state defendants, 
including the Treasurer of the State of Michigan, to provide 
approximately an additional 80 million dollars in state funds 
from the state treasury so that the Detroit public schools may be 
open for 180 days during the 1972-73 school year. Under the 
Eleventh Amendment and the controlling precedents of the federal 
appellate courts, this constitutes a forbidden suit against the 
state of Michigan in federal court without its consent. Thus, this 
Court may not grant the relief sought herein by defendant Detroit 
Board of Education.

In the instant cause, the state of Michigan has not been 
named as a party defendant. However, the question of whether a suit is 
against the state is determined, not by the parties named in the

- 23-



pleadings, but by the essential nature and effect of the 
proceedings as appears from the entire record. In re State of 
New York, 256 US 490, 497-500 (1921). The state of Michigan, it 
must be stressed, has never consented to being sued in this proceeding.

In Smith v Reeves, 178 US 436 (1900) , the Court affirmed a 
dismissal of the action, brought against the Treasurer of the State 
of California, as the named defendant, on the ground that the 
federal courts lacked jurisdiction over such suit in the absence 
of consent by the state of California. In doing so, the Court held 
the following:

"Is this suit to be regarded as one against the 
State of California? The adjudged cases permit 
only one answer to this question. Although the 
State, as such, is not made a party defendant, 
the suit is against one of its officers as Treasurer; 
the relief sought is a judgment against TKat officer 
in his official capacity; and that judgment would 
compel him to pay out of the public funds in the 
treasury of the State a certain sum of money.
Such a judgment would have the same effect as if 
it were rendered directly against the State for 
the amount specified in the complaint. . . . "  
pp 438-439

In Ford Motor Co. v Indiana Department of Treasury, 323
US 459 (1945) , a unanimous Court, in dismissing the suit for lack
of jurisdiction in the absence of consent to the suit by the State
of Indiana, held as follows:

"We are of the opinion that petitioner's suit in 
the instant case against the department and the 
individuals as the board.constitutes an action 
against the State of Indiana. A state statute 
prescribed the procedure for obtaining refund of 
taxes illegally exacted, providing that a taxpayer 
first file a timely application for a refund with 
the state department of treasury. [Footnote omitted]
Upon denial of such claim, the taxpayer is authorized 
to recover the illegal exaction in an action against 
the 'department.' Judgment obtained in such action 
is to be satisfied by payment 'out of any funds in 
the state treasury.' [Footnote omitted] This section 
clearly provides for an action against the state, as 
opposed to one against the collecting official 
individually. No state court decision has been

-26



called to our attention which would indicate that 
a different interpretation of this statute has been 
adopted by state courts.
"Petitioner's suit in the federal District Court 
is based on § 64-2614 (a) of the Indiana statutes 
and therefore constitutes an action against the 
state, not against the collecting official as an 
individual. Petitioner brought its action in 
strict accord with § 64-2614 (a). The action is 
against the state's department of treasury. The 
complaint carefully details compliance with the 
provisions of §64-2614 (a) which require a timely 
application for refund to the department as a 
prerequisite to a court action authorized in the 
section. It is true the petitioner in the present 
proceeding joined the Governor, Treasurer and 
Auditor of the state as defendants, who 'together 
constitute the Board of Department of Treasury of 
the State of Indiana.' But, they were joined as 
the collective representatives of the state, not 
as individuals against whom a personal judgment 
is sought. The petitioner did not assert any claim 
to a personal judgment against these individuals for 
the contested tax payments. The petitioner's claim 
is for a 'refund,' not for the imposition of personal 
liability on individual defendants for sums illegally 
exacted. We have previously held that the nature of 
a suit as one against the state is to be determined 
by the essential nature and effect of the proceeding.
Ex parte Ayers, 12 3 U.S. 443, 490-99;E*.parte New York, 
256 U.S. 490, 500; Worcester County Trust Co. v. Riley, 
302 U.S. 292, 296-98. And when the action is in 
essence one for recovery of money from the state, 
the state is the real, substantial party in interest 
and is entitled to invoke its sovereign immunity 
from suit even though individual officials are nominal 
defendants. Smith v. Reeves, supra; Great Northern 
Insurance Co. v Read, supra. We are of the opinion, 
therefore, that the present proceeding was brought in 
reliance on § 64-2614 (a) and is a suit against the 
state." p 463-464

Finally, in Copper S S Co v State of Michigan, 194 F2d 465, 466 
(CA 6, 1952), a unanimous Sixth Circuit Court of Appeals affirmed the 
dismissal of an action for money damages, on the ground of lack of 
jurisdiction, for the reason that the state of Michigan had not 
consented to such suit being brought against it in the federal courts. 
This decision, together with the two United States Supreme Court 
precedents cited above, compel the conclusion that where the state 
is the real party against whom relief is sought, particularly where

-  27-



the judgment or decree will operate to compel the payment of state 
funds from the state treasury, the action is a forbidden suit 
against the state regardless of who are the named parties.

In summary, the relief sought herein is to compel the 
state officer defendants to provide approximately an additional 
80 million dollars in state funds for continued operation of the Detroit 
public schools beyond mid-March, 1973. Thus, under the controlling 
precedents, this Court lacks jurisdiction to grant such relief for 
the reason that the state of Michigan has never consented to this 
suit in federal court.

E. The Defendant Detroit Board of Education is 
not entitled to the relief sought herein.

It must be emphasized at the outset of this section of 
the brief that the defendant Detroit Board of Education is manifestly 
premature in seeking relief from this Court at this time. By its 
own admission, sufficient funds are available to operate the schools 
through mid-March. Thus the only present emergency is a self­
generated one by the defendant Detroit Board of Education in 
wanting to close the schoolhouse doors when funds are available, 
through the actions of the state defendants, to keep them open, at 
least until the middle of March of 1973, with an express legislative 
commitment to give top priority to this financial problem in the next 
legislative session commencing in early January, 1973.

The moving party, defendant Detroit Board of Education, 
has no standing to seek relief under the Fourteenth Amendment for 
the reason that, under settled law, it has no rights which it may 
invoke under the Equal Protection Clause against its creator, the 
state legislature. Williams v Mayor and City Council of Baltimore,
289 US 36 (1933).

- 26-



Any claim by defendant Detroit Board of Education that 
it is seeking this relief on behalf of its students is patently 
inappropriate in light of the expressed intention of such school 
board to close the schools on December 21, 1972, when sufficient 
funds are available to keep them open through at least mid-March,
1973.

It should be stressed that the Equal Protection Clause 
does not require that school districts be financed on the basis of 
the relative educational needs of the students attending therein.
Twice the United States Supreme Court has affirmed the decisions 
of three-judge federal district courts holding that educational 
finance need not be based on the varying educational needs of 
students attending in the various school districts of the state.
Mclnnis v Shapiro, 293 F Supp 327 (ND 111 1968), aff'd sub nom.
Mclnnis v Ogilvie, 394 US 322 (1969). Burruss v Wilkerson, 310 F 
Supp 572 (WD Va 1969), aff'd 397 US 44 (1970).

The wealth discrimination cases relied upon by the defendant 
Detroit Board of Education (Van Dusartz v Hatfield, 334 F Supp 870l
(D Minn, 1971) and Rodrigues v San Antonio Independent School District, 
337 F Supp 280 (WD Tex, 1971), appeal docketed 40 USLW 3513 (US April 
25, 1972) No. 71-1332) are premised upon a holding that a school 
district's per pupil expenditures may not be a function of wealth, 
i.e., the property tax base or state equalized valuation of taxable 
property per pupil. These precedents are sound. However, they are 
inapplicable herein for the reason that the state equalized valuation 
per pupil of the Detroit school district is slightly above the state­
wide average for Michigan's school districts. Moreover, the Detroit 
school district's millage levy is almost 10 mills below the statewide 
average for Michigan school districts. If the Detroit School District

- 29-



were levying an additional 10 mills for operating purposes, such 
levy would guarantee approximately 60 million dollars in additional 
revenue and the remaining financial problems would not have given 
rise to any emergency motion before this Court. Detroit's voters, 
like every other Michigan school district, were by statute afforded 
the opportunity to approve tax rate limitation increases for school 
operating purposes without any discrimination, racial or otherwise, 
to provide sufficient funds for 180 days of school in the 1972-73 
school year.

Here, it cannot be emphasized too strongly that the instant 
cause is a school desegregation case, not an educational finance case. 
Defendant Detroit Board of Education should not be permitted to turn 
this school desegregation case into an educational finance case.
In terms of Michigan's system of financing public elementary and 
secondary education, there is presently pending before the Michigan 
Supreme Court a case in which that Court is asked to declare the 
present Michigan system of financing such public education uncon-

9

stitutional. Milliken and Kelley, et al v Allison Green, et al, 
Supreme Court No. 53,809. That case has been briefed and argued 
on June 6, 1972 and is awaiting decision.

Other cases relied upon by defendant Detroit Board of 
Education, [Hansen v Hobson, 408 F2d 175 (DC Cir, 1969) and Hall 
v St. Helena Parish School Board, 197 F Supp 649 (ED La, 1961), 
aff'd 368 US 515 (1962)], dealt with racial discrimination and thus 
are not applicable herein in terms of this emergency motion to 
relieve the financial plight of the Detroit School District. In 
Hansen v Hobson, supra, the Court was concerned with intra-district 
disparities in the allocation of resources among predominantly white 
and black schools. In the St. Helena case, supra, under the Louisiana

= 3 0-



statute in question, some school districts closed their schools, 
while other public school districts supported with public funds 
kept their public schools open, in an attempt to avoid school 
desegregation in the closed public schools.

In the instant cause, there is simply no element of racial 
discrimination in the current financial plight of the Detroit 
school district. The voters in Detroit, white and black alike, 
were afforded the same opportunity as the voters in all other 
Michigan school districts to approve tax rate limitation increases 
for operating purposes. They just failed to vote "yes" in sufficient 
numbers, unlike the voters in countless other Michigan school districts. 
Further, the fact that Detroit is a majority black school district, 
in terms of student body composition, neither adds to nor detracts 
from the financial problems of the Detroit school district. Would 
anyone seriously contend that the current financial circumstances 
of the Detroit school district would somehow be less serious if 
all of its pupils were white.

Additional authorities cited by defendant Detroit Board of 
Education at page 10 of its memorandum and not heretofore discussed 
in this brief are all generally distinguishable on at least two 
major grounds. First, such cases were not school cases involving 
public education. Second, in none of such cases did the courts 
order coercive mandatory injunctive relief of the type sought herein 
by defendant Detroit Board of Education.

To summarize this portion of the brief, defendant Detroit 
Board of Education lacks standing to seek the relief prayed for 
herein. Further, it is the Detroit Board of Education, not the 
state defendants, th&t intends to slam the schoolhouse door shut

- 31-



4

and keep its pupils outside when, through the efforts of the 
state defendants, there are sufficient funds available to keep 
operating the schools through mid-March, 1973, while the legislature 
considers various means for assisting the defendant Detroit Board of 
Education in providing 180 days of student instruction for the 1972­
73 school year, pursuant to its publicly announced intention to do 
so on November 30, 1972 (See Appendix B) at the next legislative 
session commencing in early January, 1973. Further, during the 
month of December legislative staff personnel will be reviewing 
various means for providing legislative relief to the Detroit 
public schools.

F. The rationale for the July 7, 1972 injunctive 
order of the District Court to provide 180 days 
of school, that such relief was necessary to 
effectuate a metropolitan plan of desegregation, 
has been rendered void by the order of the Court 
of Appeals entered herein on July 20, 1972, staying 
the implementaiton of any metropolitan remedy 
pending appeal._______________________________ -

The District Court's injunctive order of July 7,1972,
provides, in pertinent part, as follows:

" . . .  [T]he court finding that a metropolitan 
plan of desegregation complying with such criteria 
cannot be implemented in the event the city of 
Detroit school system is on a school year of 117 
days, or 63 days less than the minimum statutory 
requirement, while other school districts in the 
desegregation area comply with such statutory 
requirement; and the court further finding that 
such criteria and other provisions of the Ruling 
on Desegregation Area and Order for Development 
of Plan of Desegregation cannot be complied with in the 
event such approximately 1,548 teachers are terminated, 
as threatened, as aforesaid; and the court further 
finding that the threatened implementation of said 
shortened school year and of said reduction in 
faculty will adversely affect this court's ability 
to implement an effective metropolitan plan of 
desegregation; and the court further finding that 
in order to preserve the status quo, to enable the 
effective implementation of such a planT it is 
necessary that preliminary injunctive relief issue 
as hereinafter provided, . . ." [Emphasis supplied]
pp 2 and 3.

- 3 2 -



Thus, it is manifest that the preliminary injunctive order is 
expressly and directly tied to the effective implementation pf 
a plan of metropolitan desegregation during the 1972-73 school year.

However, on July 20, 1972 the Court of Appeals for the 
Sixth Circuit entered its stay order providing, inter alia, the 
following:

"The motion for stay pending appeal having been 
considered, it is further ORDERED that the Ordfer 
for Acquisition of Transportation, entered by the 
District Court on July 11, 1972, and all orders 
of the District Court concerned with pupil and 
faculty reassignment within the Metropolitan~~Area 
beyond the geographical jurisdiction of the 
Detroit Board of Education,and all other proceedings 
in the District Court other than planning proceedings, 
be stayed pending the hearing of this appeal on its 
merits and the disposition of the appeal by this 
court, or until further order of this court. . . . "  
[Emphasis supplied] p 2

It is patently obvious that the rationale for the 180 
school day injunctive order is the finding that such order was 
necessary to enable the court to effectively implement a metro­
politan plan of desegregation. The July 20, 1972 order of the 
Court of Appeals has stayed the implementation of any metroplitan 
desegregation plan pending appeal on the merits. Consequently, 
the rationale underlying the District Court's preliminary injunctive 
order has been removed. Therefore, there is no sound basis remaining 
for enforcement of the preliminary injunctive order of July 7, 1972. 
However, there is e/ery sound basis for permitting the Michigan legis­
lature sufficient time to consider and evaluate various proposals 
for assisting the defendant Detroit Board of Education in providing 
180 days of student instruction in this school year as it has 
expressly and publicly stated it intends to do.

- 3 3 -



Conclusion

It is undisputed that the defendant Detroit Board of 
Education has been operating at a deficit for the last four 
fiscal school years including the current fiscal school year.
See the affidavit of Robert McKerr. It persisted, however, in 
paying salaries to its teachers that equal the average salaries 
paid to teachers by the seven highest salary school districts in 
the counties of Wayne, Macomb and Oakland, even though, at the 
same time, it has been unable to lead its electors in voting the 
average millage of 24 mills to pay for such salaries. Thus it 
has been living beyond its means and the present financial plight 
is of its own making.

This is not to say, however, that all efforts should not 
be made by the state defendants and, indeed, all parties to this 
litigation to persuade the Michigan legislature to provide, by law, 
the means so that the defendant Detroit Board of Education can 
furnish 180 days of student instruction to its pupils as required 
by state law. The state defendants have demonstrated that they 
are making every effort, within their lawful authority, to assist 
the defendant Detroit Board of Education to provide their pupils 
with the education they need and Michigan law requires. They have 
every reason to believe that, as in the recent past, the Michigan 
legislature will respond favorably to the problem but it must be 
stressed that the nature of the means rests in the sound discretion 
of the legislature.

It is abundantly clear that there is no real present 
emergency in the Detroit school district that would require action 
by this Court. It is unnecessary for this Court to order the state 
defendants to use the authority they have under state law to assist 
the Detroit school district since they already are doing so to the

- 3 4 -



extent of their powers under Michigan law. Diversion of state 
funds, including state aid, to the Detroit school district, is not 
only unwarranted but not in accordance with law. Defendant Detroit 
Board of Education has not made out its case for such extraordinary 
relief.

The Michigan legislature is aware of the financial plight 
of the Detroit school district and there is every reason to believe 
that it will, given sufficient time to study and react to the 
problem, provide the means determined by it so that the pupils of 
Detroit will receive 180 days of instruction as required by Michigan 
law. The Joint Legislative Statement of November 30, 1972,
(Appendix B) is proof positive that this is so.

The foregoing material was prepared prior to the action of 
the defendant Detroit Board of Education, on December 5, 1972, 
rescinding its decision to close schools on December 19, 1972 for 
a period of 8 weeks. The defendant Detroit Board of Education is 
to be commended for taking this action on the strength of the Joint 
Legislative Statement of November 30, 1972. Thus, the instant 
emergency motion is both clearly premature and unfounded. Now is 
the time for all parties to cooperate in the democratic legislative 
process to resolve this problem rather than to litigate in the federal 
judicial process.

Relief
WHEREFORE, state defendants respectfully request this 

Honorable Court to deny and dismiss the emergency motion of the 
defendant Detroit Board of Education or, alternatively, to dismiss 
said motion without prejudice to renewing same at a later date based 
upon a showing of changed factual circumstances.

- 3 5 -



Respectfully submitted,
FRANK J. KELLEY 
Attorney General
Eugene Krasicky 
Assistant Attorney General

Gerald F. Young*
George L. McCargar 
Assistant Attorneys General

Attorneys for Defendants Governor, 
Attorney General, State Treasurer, 
State Board of Education and 
Superintendent of Public Instruction

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

Dated: December 6, 1972



W- * •*

D . C h a r l e s  M a r s t o n  
W i l l i a m  M a z e y  
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URGENT

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S A G IN A W  O F F IC E  

2 1 0  B e a r i n g e r  B u i l d i n g  
S a g i n a w . M i c h i g a n  

P L e a s a n t  4 - 3 1 1 0

Detroit Board of Education
5057 Woodward
Detroit, Michigan 48202

CERTIFIED MAIL, 
RETURN RECEIPT 
REQUESTED

Attention: James A. Hathaway, President
Gentlemen:

As attorneys for the Detroit Federation of Teachers, and on 
its behalf, we write to advise you formally that we will regard 
any mid-year shutdown of the schools other than as provided in the 
parties' collective bargaining contract, to be:

(1) A violation by you and by the State defendants in -
Bradley v. Milliken of Judge Roth's 180-day school year injunction;

(2) A violation by you and by the State defendants of ap­
plicable state law to the same effect;

(3) An 'unfair labor practice by you;
(4)

contract;
A violation by you of the parties' collective bargaining 
and

(5) A violation by you of individual teacher contracts.
With respect to the latter 
applicable law which holds

two items, we call to your attention 
that your contractual obligations

APPENDIX A



D e t r o i t  B o a r d  o f  E d u c a t i o n —  p a g e  2

to your employees may not be avoided by suspending their services, 
regardless of your motivating financial circumstances. Accord­
ingly, whether or not the schools remain open, in the event any 
regular payroll is not met or appears unlikely to be met we will 
seek a- money judgment against you for breach of contract and there­
after, as necessary, invoke applicable statutory law to spread 
the judgment on the tax rolls for collection.
We add that at is the primary concern of the Federation that Detroit 
school children not be deprived of equal and adequate educational 
opportunities, and so the first focus of our attention will be to 
endeavor to keep the schools open. Failing that, we will unter- 
take all appropriate action to enforce teachers' salary rights 
under their contracts.
We therefore request that you rescind all resolutions respecting 
shutdown for any extended period following December 21, 1972, and 
cease and desist from any other comparable action.

Yours very truly,

Theodore Sachs

TS: ek
cc: George Roumell, Esq.

Aubrey McCutcheon, Esq.
Hon. William Milliken, Governor 
Hon. Frank Kelley, Attorney General 
DFT, Attn: Mrs. Riordan



PRESS RELEASE

FOR IMMEDIATE RELEASE 
November 30, 1972

House and Senate leaders, meeting today, pledged top priority considera­

tion of efforts to solve the short-range and long-range financial problems of 

the public schools of Michigan. .

The following statement was issued jointly by House Speaker William A. Ryan, 

House Minority Leader Clifford H. Smart, House Appropriations Committee Chairman 

William R. Copeland, Senate Republican Leader Robert VanderLaan, Senate Democrati 

Leader George S. Fitzgerald, Senate Appropriations Committee Chairman Charles 0. 

Zollar and Senate Democratic Floor Leader Coleman A. Young.

"Members of the Michigan Legislature are aware of and concerned about the 

financial difficulty facing the-Detroit Public School Board in attempting to 

fulfill its legal obligation to provide 180 days of education for nearly 1/7 

of the state's school children. In fact, there are strong feelings among 

legislative leaders as well as other members that the Legislature must act to 

prevent a drastic reduction of educational services to children in Detroit and 

the many other school districts where deficits threaten a shortened school year.

"As leaders in our respective caucuses, we pledge today to give top priority 

to a speedy solution early in the next legislative session to the.financing of 

the required full 180-day school year for all Michigan schools for the 1972-73 

school year and express considerable confidence that we will meet with success 

in this effort. We further express our determination to simultaneously arrive 

at a solution to the long-range financing of schools throughout Michigan, without 

which there would be a disastrous continuation of fiscal crises,

APPENDIX B



2

"We trust that this commitment to work out a legislative solution to the 

immediate financial crisis facing Detroit schools will encourage the Detroit 

School Board to reconsider its decision to close schools for 35 school days 

beginning December 21 and resolve to give the Legislature the time needed to 

fashion a reasonable solution." '

Governor Mi 11iken commended the legislative leaders for their "bipartisan 

efforts to help assure that all the school children of Michigan receive the 

education to which they are entitled." /

Governor Mi 11 ikon's office and legislative leaders will meet Friday 

afternoon and attempt to formulate reasonable legislative proposals for early 

consideration in the next session. We all hope we can be united in seeking a 

reasonable and equitable solution to the immediate Detroit school financial 

di 1 emma.



AT A SESSION OF THE COURT OF APPEALS OF THIS STATE OF MICHIGAN, Held at the Court

of Appeals in the City of Lansing , on the 8 t h  day of

J u l y  in the year of our Lord one thousand nine hundred and seventy- Qn e .
Present the Honorable

Louis D. McGregor
Presiding Judge

S. Jerome Bronson 
Robert J. Danhof

Michigan Education Association, a
nonprofit Michigan corporation, Judge*
Terry Herndon, Ronald Bell, et al.', 
for themselves and others similarly 
situated,

Plaintiffs
vs No. 11900
State Board of Education, et al.,

Defendants

In this cause a complaint for mandamus and motion 
for order to show cause are filed by plaintiffs, and an answer in 
opposition thereto having been filed by the Attorney General and a 
motion to dismiss having been filed by the school districts, and due 
consideration thereof having been had by the Court,

IT IS ORDERED that the complaint for mandamus and 
motion for order to show cause as to Thomas J. Brennan, Michael J.
Deeb, James F. O'Neil/. Marilyn Jean Kelly, Dr. Charles E. Morton,
Dr. Edwin L. Novak, Dr. Gordon Riethmiller, Annette Miller, and
Dr. John W. Porter, as individuals be, and the same are hereby DISMISSED
for lack of jurisdiction. GCR 1963, 714.1.

IT IS FURTHER ORDERED that the complaint for mandamus 
and motion for order to show cause as to the Legislature of the State of 
Michigan be, and the same are hereby DISMISSED. Const 1963, art 3, §2; 
Detroit Board of Education v. Superintendent of Public Instruction(1947) , 
319 Mich 436.

IT IS FURTHER ORDERED that the complaint for mandamus 
and motion for order to show cause as to Robert Vander Laan and William 
Ryan individually and in behalf of all members of the Senate and House 
of Representatives, be and the same are hereby DISMISSED. Const 1963, 
art 4, §11.

CONTINUED

STATE OF MICHIGAN — ss.
I, Ronald L. Dzierbicki, Clerk of the Court of Appeals of the State of Michigan, do hereby certify that the 

foregoing is a true and correct copy of an order entered in said court in said cause; that I have compared the 
some with the original, and that it is a true transcript therefrom, and the whole of said original order.

IN TESTIMONY WHEREOF, I have hereunto set my hand 
and affixed the seal of said Court of Appeals at Lansing,

APPENDIX C this day of
in the year of our Lord one thousand nine hundred and 
seventy-

Clerk



AT A SESSION OF THE COURT OF APPEALS OF THE STATE OF MICHIGAN, Held at the Court

of Appeals in the City of Lansing , oa the 8th day of

J u l y  in the year of our Lord one thousand nine hundred and seventy* o n e .
Present the Honorable

Presiding Judge

PAGE 2

Judges

IT IS FURTHER ORDERED that the complaint for 
mandamus and motion for order to show cause as to the defendant 
school districts be, and the same are hereby DISMISSED for lack 
of jurisdiction. GCR 1963, 714.2

IT IS FURTHER ORDERED that the motion for order to 
show cause as to the members of the State Board of Education and the 
Superintendent of Public Instruction in their official capacities be, 
and the same is hereby DENIED, it appearing to the Court that 
plaintiffs have not demonstrated defendants' failure to perform a 
clear legal duty, and further that expenditure of the state general 
funds is solely within the province of the Legislature; Welling v. 
Livonia Board of Education (1909), 382 Mich 620, Detroit Board of 
Education v. Superintendent of Public Instruction, supra; Const 1963, 
art 9, §17.

IT IS FURTHER ORDERED that the complaint for 
mandamus as to the members of the State Board of Education and 
Superintendent of Public Instruction in their official capacities 
be, and the same is hereby DISMISSED.

STATE OF MICHIGAN — ss.

I, Ronald L. Dzierbicki, Clerk of the Court of Appeals of the State of Michigan, do hereby certify that the 
foregoing is a true and correct copy of an order entered in said court in said cause; that I have compared the 
same with the original, and that it is a true transcript therefrom, and the whole of said original order.

IN TESTIMONY WHEREOF, I have hereunto set my hand 
and affixed the seal of said Court of Appeals at Lansing,