Motion to Dismiss, Affadavit & Brief in Support, Notice of Hearing and Proof of Service
Public Court Documents
October 18, 1973

28 pages
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Case Files, Milliken Hardbacks. Motion to Dismiss, Affadavit & Brief in Support, Notice of Hearing and Proof of Service, 1973. 71b1b1ef-53e9-ef11-a730-7c1e5247dfc0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ce7e4428-55f0-4987-b4ad-b4d27f12163e/motion-to-dismiss-affadavit-brief-in-support-notice-of-hearing-and-proof-of-service. Accessed July 30, 2025.
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« UNITED STATES DISTRICT COUPI FOR THE EASTERN DISTRICT OF MICHIGAN BRADLEY, et al, Plaintiffs, vs. MILLIKEN, et al, Defendants. / Civil Action No. 35257 HWD 0 < a & u $<J b- < J in > Id Z o a fui < nH< !> tn m o w toD z a ui Uia< h x o y5h < *3 ® tn a a z_ w P 2 K “ o rf z H Z3O MOTION TO DISMISS AFFIDAVIT IN SUPPORT OF MOTION BRIEF IN SUPPORT OF MOTION TO DISMISS NOTICE OF HEARING PROOF OF SERVICE MATHER, GLIME & DAOUST Attorneys for Defendants, CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD, Only 25 North Gratiot Avenue Mount Clemens, Michigan 48043 463-0511 H0) 3 0 D? _l H li! <■> cn ~ > i u70 K 0 -vU. }-.LU < X H < ssi - z 7 d y 5 5 < 2 o H I ,22 a 5 2 < < . 3 £E OT a ° z m t “>. P S h 5 Huz O D Z9 »> zU N Z o s UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN BRADLEY, et al, Plaintiffs, vs. MILLIKEN, et al, Defendants. Civil Action No. 35257 / MOTION TO DISMISS COUNT I NOW COMES the Defendants in the above entitled action, CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD, trustee of the Clintondale Community Schools Board of Education and parent of school-age children attending the Clintondale Schools, only, by their attorneys, MATHER, GLIME & DAOUST, and pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C., move this Honorable Court to quash service of process made by the United States Marshalls' Office and to dismiss this cause of action against the CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD for lack of jurisdiction for the following reason: 1. Service of process was improperly made pursuant to Rule 4 of Federal Rules of Civil Procedure, 28 U.S.C. WHEREFORE, the Defendants CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD, only, respectfully request this Honorable Court to enter an Order quashing service of process and dismiss- incr this cause of action for lack of jurisdiction. i COUNT II h* mn 0 co LU <U H < s w J LUz0 a0 - u£ j-U1 < XH< ?£*> !d§ ̂ 5 2 a tu > <303UI C< 3acn tosfoa■« z<o o X Hcs o z o if) U m K- Xo y i- 2<c e « zUJ *> 5j a Hz 3O 2 NOW COMES the Defendants, CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD, only, by their attorneys, MATHER, GLIME & DAOUST, and pursuant to Rule 12(b) of the Federal Rules of Civil \ Procedure, move this Honorable Court to dismiss this cause of action for the following reasons: 1. The Complaint and Amended Complaint fail to state a claim against the Defendants CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD upon which relief can be granted: (a) the establishment, organization and administration of the CLINTONDALE COMMUNITY SCHOOLS has never been invidiously motivated or intended to circumvent any Federally protected right of any citizen and the Plaintiffs have made no allegations to the contrary; $ (b) the CLINTONDALE COMMUNITY SCHOOLS have taken no action whatsoever for the purpose of keeping their schools predominately white, nor excluded any child from any school within the District on account of his race and the Plaintiffs have made no allegations to the contrary; (c) the CLINTONDALE COMMUNITY SCHOOLS have heretofore achieved a fully integrated, unitary school system, with desirable racial balance fully in accord with the requirements of the Fourteenth Amendment and the Plaintiffs have made no allegations to the contrary; (d) any allegations made as to any other parties besides the CLINTONDALE COMMUNITY SCHOOLS, their Board of Education, or employees is insufficient to state a fr-lZ)D 0 < G csJ LsJ o ku XH•< >■ <a H< tn>-LUza0HH< 02 tilD Z D !JJ _! > < n oCO'f z O1- Xo o 5 5c M 0 X a *i U cm • • claim for relief against the CLINTONDALE COMMUNITY SCHOOLS^ its Board of Education, and the parents and children they represent. 2 o The addition of the CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD as party defendants under Rules 19 and 21 of the Federal Rules of Civil Procedure,, 2 8 U.S.C. by the Order of September 10, 1973, at this state of the proceedings, coming over three (3) years after the initiation of this suit and after extensive litigation has taken place between the parties, including pleadings, motions, orders, direct and cross examina tion of witnesses, findings of fact, and a variety of appeals, is an abuse of discretion and cannot now be remedied, and is extremely prejudicial to the Defendants, violative of due process of law as guaranteed by the Fifth Amendment to the Constitution of the United States, contrary to the principles of equity and good conscience, and contrary to the requirement of Rule 21 of j the Federal Rules of Civil Procedure, 28 U.S.C., that parties be added only "on such terms as are just." 3. This lawsuit was initiated and extensively litigated (prior to the addition of suburban school district defendants) between the original parties who were in collusive agreement to seek relief from this Court and to purposefully acquiesce in charges of alleged segregation in the Detroit Public Schools. Since there was no honest and actual antagonistic assertion of rights by these parties, there was no true case and controversy before this Court as required by Article III, Section 2 of the Constitution of the United, and this Court was without jurisdiction to entertain this proceeding. -3- t t H(i)D 0 < Q eg UJ s <a !-< 5 1 Q W 0) > U3 70 K _ 0 a !:ti < tJUiH o u a >< *? z< oH X o aH S <a m 3 2 n mU pj 2 U1 2 K W n -1 u u < •5 4. Any remedy to the alleged wrongs enumerated in the Complaint and Amended Complaint which could be imposed upon the CLINTONDALE COMMUNITY SCHOOLS, the CLINTONDALE BOARD OF EDUCATION, and the parents and children they represent including the reallocation of pupils, teachers, resources, and facilities across the boundary lines of this School District would: (a) be a deprivation of due process of law as guaranteed by the Fifth Amendment to the Constitution of the United States because the CLINTONDALE COMMUNITY SCHOOLS and its BOARD OF EDUCATION have not been a party and have not been represented in the extensive proceedings which have taken place in this case hereto fore and have not been guilty of any acts alleged in the Plaintiffs' Complaint or Amended Complaint or the violation of any Federal Constitutionally protected right (b) be unnecessary under the Fourteenth Amendment and contrary to the Tenth Amendment since the CLINTONDALE COMMUNITY SCHOOLS and the CLINTONDALE BOARD OF EDUCATION have taken no action whatsoever for the purpose of keeping their schools predominately white, nor excluded any child from any school within the District on account of race, and are therefore a unitary school district; (c) be unnecessary under the Fourteenth Amendment and contrary to the Tenth Amendment to the Constitution of the United States since the establishment and maintenance of the CLINTONDALE COMMUNITY SCHOOLS by the CLINTONDALE BOARD OF EDUCATION has never been invidiously motivated or intended to circumvent any Federally protected right of any citizen; % -4- ** * ■ 0) D 0 < Q <8 hi 2 ***J o <cj H < 0) >- LU Z K t 0 e h Li < X H <*> n■?0 CO z<21u H <£2 cn 0 Zui 2uijo I- Z D o5 (d) impose a particular racial balance and a fixed racial quota upon the CLINTONDALE COMMUNITY SCHOOLS unnecessary to the requirements of the Fourteenth Amend ment to the Constitution of the United States and contrary to the Tenth Amendment to the Constitution of the United States since the CLINTONDALE COMMUNITY SCHOOLS have already fully integrated and an appropriate racial balance has already been achieved; (e) result in unreasonable hardship, be unduly harsh, and contrary to equity and good conscience because it would: (i) create a cumbersome and unwieldy school administrative district, hamper sound education and curtail decentralized and diversified locally controlled schools more accessible and responsive to both black and white parents and to their school-age children (while leaving this benefit available to parents and children in other areas of the State of A Michigan who fortuitously live a greater distance from the City of Detroit, than do the parents and children residing in the CLINTONDALE COMMUNITY SCHOOL DISTRICT) unnecessary to the requirements of the Fourteenth Amendment and contrary to the Tenth Amendment to the Constitution of the United States; (ii) discriminate against parents and children who wish to participate in school centered, extracurricular, social or athletic activities; (iii) destroy local programs tailored for. local needs; (iv) be disruptive of sound education (v) increase the exposure of school children 5- > h (? ) D 0 < Q so UJ 5: < a !“ < O') >- J u«-.v» 0 tto *" I—jy :U, ’flu < «■>?oW mD Z 0 WJ5ca u a <Da to>•H Z u D Z O 10 u M z<05u1i-<K m o z v u p 2 K “JO H ZDO 2 < 2 to unnecessary injury due to a needless increase in the distance traveled to and from schools; (f) usurp the Legislative power of the State of Michigan and the lawful power of the duly elected Board of Education of the CLINTONDALE COMMUNITY SCHOOLS contrary to the Tenth Amendment to the Constitution of the United States; (g) render useless the right of the electors of the CLINTONDALE COMMUNITY SCHOOL DISTRICT to cast ballots for members of the CLINTONDALE COMMUNITY SCHOOLS BOARD OF EDUCATION since local board members would no longer control the organization and administration of the schools the Clintondale children attend, unnecessary under the Fourteenth Amendment to the Constitution of the United States and contrary to the Tenth and Fifteenth Amendments to the Constitution of the United States; (h) disregard the right of private contract as & guaranteed by Article I, Section 10 of the Constitution of the United States; (i) be contrary to the right of free association as guaranteed by the First Amendment to the Constitution of the United States; (j) be contrary to the right to travel, to settle, and to partake of the benefits of .a new place as guaranteed by the First and Fifth Amendments to the Constitution of the United States; (k) be the imposition of a penalty upon the Defendants without a judicial trial and therefore a bill of attainder in violation of Article I, Section 9 of the Constitution of the United States, and Article 3 of the Constitution of the United States; < J H < h U) D 0 < Q $ LU S £ 3 ; O B o a h LU < x H < (*) o 2 3 ^ 5 S z -1 > <5 < 2£Q f- X0 uUI - -K H 2 « £ -D “ « a » z W X sv h 2h a g Z O rjD 2 U 9 in z u N 5 o £ (1) present no case or controversy over which this Court has jurisdiction under Article III, Section 2 of the Constitution of the United States since the Defendant CLINTOC;DALE COMMUNITY SCHOOLS has already achieved an appropriate racial balance. 5. That on or about October 17, 1973, the movants requested the concurrence of Plaintiffs' counsel in the relief sought in this Motion as required by Rule IX (a) of the Rules for the United States District Court for the Eastern District of Michigan, and concurrence was denied. WHEREFORE, the Defendants, CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD, only, respectfully move this Honorable Court that an Order of Dismissal be entered in this action for the foregoing reasons. MATHER, (SLIME & DAOUST mond G. Glime .>? .-7 / ' I . •’",: Dated: October 17, 1973 By:_____._____ Denis R . Lebuc' y ■Attorneys for the Defendants, CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD, Only 25 North Gratiot Avenue Mount Clemens, Michigan 48043 463-0511 7- UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN BRADLEY, et al, Plaintiffs, vs. Civil Action No. 35257 MILLIKEN, et al, Defendants. / AFFIDAVIT IN SUPPORT OF MOTION H01 D 0 < Q $ bj a H < tn>* Ji “u 0 1 , 0 it H U < X os5jD fljU K <3 CT tfl >- >- Zo o o tv (0 oW e>□ Sf IU 2 > < < 2 F- X 0 2 P 5 < e tn 0 z X Ha o z 10 U1sujuH Z3O2H< 2 STATE OF MICHIGAN) ) ss. COUNTY OF MACOMB ) RAYMOND G. GLIME and DENIS R. LeDUC, having first been duly sworn, depose and say that they have read the foregoing Motion to Dismiss by them signed, and that the same is true to their knowledge, except as to those matters therein stated to be upon information and belief and as to those matters therein stated to be upon information and belief and as to those matters they believe them to be true. Subscribed and sworn me this 18th day of to before October, 1973 DIANA K. WHEATLEY Notary Public, Macomb My commission expires: County July Mich. 11, 1975 UNITED STATES DISTRICT COURT < _! H < b- U) D 0 < Q & Ui 5 : w - > O 1 0{J i-12 h W < X H < 2 n ow ra 3 sf Q W •J > D D Ul c<Daw VH2 3 0 z < 0 1 0 1 O CM w z1U (~ s a un J 2 u h 2 D 0 S g) FOR THE EASTERN DISTRICT OF MICHIGAN BRADLEY, et al, Plaintiffs, v s . Civil Action No. 35257 MILLIKEN, et al, Defendants / AFFIDAVIT STATE OF MICHIGAN) ) COUNTY OF MACOMB ) s s . I, LILLIAN RICHMOND, of the Township of Clinton, County of Macomb and State of Michigan and being duly sworn depose and say that: (a) I am a secretary in the central office of the Clintondale Community Schools; (b) On September 28, 1973 I was served with a copy of the Summons, Complaint, and Amended Complaint in the case of Bradley, et al vs. Milliken et al., Civil Action No. 35257; (c) I am not an agent appointed to receive service of process for the Clintondale Community Schools, the Clintondale Superintendent, the Clintondale Board of Education or any member thereof; Further deponent sayeth not. ‘LILLIAN'RICHMOND Subscribed and sworn to before me this 16th day of October, A.D., 1973 ( . A —''•( -A 72. 10— — ' L . . . - c . . t - 7f(iDIANA K. WHEATLEY Notary Public, Macomb County, Michigan My commission expires: July 11, 1975 UNITED STATES DISTRICT COURT H m D O < Q c5 hi £ <J h < y U) >»«* r 0 s .0 a LU < T (O UI m ZW “<oIuH O P <es too u ei Zw S LUju b2 DO2 < 2 FOR THE EASTERN DISTRICT OF MICHIGAN BRADLEY, et al, Plaintiffs, Vq Civil Action No. 35257 MILLIKEN, et al, Defendants. / AFFIDAVIT STATE OF MICHIGAN) ) ss. COUNTY OF MACOMB ) I, GERALD STAFFORD, of the Township of Clinton, County of Macomb and State of Michigan and being duly sworn depose and say that: (a) I am a trustee of the Clintondale Community Schools Board of Education; (b) At no time have I been served with a copy of the Summons, Complaint, or Amended Complaint in the case of Bradley, et al vs. Milliken, et al., Civil Action No. 35257. Further deponent sayeth not. GERALD STAFFORD Subscribed and sworn to before me this 16th day of October, A.D., 1973. v. A _VN- -1A—' 7 s/< lOH DIANA K. WHEATLEY Notary Public, Macomb C My commission expires uounty, Michigan July 11, 1975 M O U N T C L E M E N S , M IC H IG A N 4 S Q 4 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN BRADLEY, et al, Plaintiffs, vs. Civil Action No. 35257 MILLIKEN, et al, Defendants. BRIEF IN SUPPORT OF MOTION TO DISMISS 1. Proper service of process not having been made upon the Defendants, CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD, Trustee of the Clintondale Board of Education, in accordance with Rules 4 (d)(1) and 4 (d)(6) of the Federal Rules of Civil Procedure, 28 U.S.C., this Court is entirely without jurisdiction over these Defendants and this action must be dismissed. As to the Defendant, CLINTONDALE COMMUNITY SCHOOLS , service of process was attempted (as demonstrated by the Affidavit attached hereto) but was improper because it was not in accordance with Rule 4(d)(5) of the Federal Rules of Civil Procedure, 28 U.S.C. which reads: "Service shall be made as follows: . . .(6) upon a State or municipal corporation or other governmental corporation thereof subject to suit, by delivering a copy of the summons and complaint to the chief executive officer thereof or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process on any such, defendant." Rule 4(d) (6), Federal Rules of Civil Procedure, 28 U.S.C. The applicable Michigan law referred to is M.C.L. 600.1925(5): "Service of process upon public, municipal, quasi municipal, or governmental corporations, unincorporated boards, or public bodies may be made by leaving a summons and copy of the complaint with . . . (5) the president, secretary, or treasurer in the case of school districts." I- ffl D 0 ^ >Q 5 LxJ '* 0) >■ UJ ZO 5 oH F <a UJ xH< <0■tfo W CO !- Xo oi- i<K rn o N Service of process in this case not having been made upon the chief executive official of CLINTONDALE COMMUNITY SCHOOLS (being the president of the Clintondale Community Schools Board of Education) or in accordance with M.C.L. 600.1925(5), any alleged service of process was improperly made and should be quashed by this Court and this case dismissed for lack of jurisdiction. As to the Defendant, GERALD STAFFORD, no attempt whatsoever to achieve proper service of process has been made by the United States Marshall (as demonstrated by the Affidavit attached hereto) and therefore this case must be dismissed against the Defendant, GERALD STAFFORD, for lack of jurisdiction. Rule 4(d)(1), Federal Rules of Civil Procedure, 28 U.S.C. 2. The Plainitffs have failed to state a claim against the Defendants, CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD, upon which relief can be granted. This is a desegregation case with the Plaintiffs alleging that they have been denied a Federal Constitutional right to integrated schools. No allegation whatsoever has been made that the establishment, organization or administration of the CLINTONDALE COMMUNITY SCHOOLS has been in any way invidiously motivated. There is no allegation whatsoever that the CLINTONDALE COMMUNITY SCHOOLS are anything but an integrated, unitary school system fully in accord with the requirements of the Fourteenth Amendment. Intentional discriminatory actions by the Defendants must be alleged before there can be any claim to relief. Absent such allegations, the Plaintiffs have failed to state a proper claim against the Defendants, CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD. Since judicial authority may only be exercised when there is a constitutional violation, this case must *be dismissed. Green v» School Board oi New Kea>- "2- County, 391 U.S. 430 (1968); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). Swann v. Charlotte- Mecklenburg , supra at 22-26 is particularly clear that the requirements of the Fourteenth Amendment do not extend to achieving any particular racial balance within a school system. Since the CLINTONDALE COMMUNITY SCHOOLS already have an appropriate racial balance, this action must, of necessity, be an attempt by the Plaintiffs to impose another, different racial balance upon CLINTONDALE COMMUNITY SCHOOLS. Being beyond the requirements of the Fourteenth Amendment, for this Court to act on this request would be contrary to the Tenth Amendment, and, therefore, this case should be dismissed for failure to state a claim upon which relief can be granted. 3. The addition of the CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD as party Defendants at this late stage in these proceedings has clearly abused the discretion granted to the Court under Rules 19 and 21 of the Federal Rules of Civil Procedure. Rule 21 specifically permits a change of parties "at any stage in the action," Rule 21, Federal Rules of Civil Procedure, 28 U.S.C.; but the Court should deny the request to add additional parties if it comes so late in the litigation that it would cause prejudice. Petit v. George A. Rheman Co., 1 F.R.D. 271 (N. D. Ga. 1940). While normally the decision to add or drop a party is in the sound discretion of the Court (Barr Rubber Products v. Sun Rubber Co. 425 F.2nd 1114 [2nd Cir. 1970]), it is clearly an abuse of discretion under the particular circumstances of this case. The order of September 10, 1973, by which the CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD were added as party -3- b~ 0) D 0 < Q c8 w J ti) >- 0 I 0 H H < a1x3 x H o z 5 _j 5 o u a ■<c o o w X p) Vo u ®D sf >• 1- z D U cj 2 < 0 X o s t- o p < K 171 z u H 2 a w oz < defendants has come over three (3) years after the initiation of this suit. In that interim period there have been pleadings, motions, orders, voluminous testimony, a trial, findings of fact, and several appeals. Since the CLINTONDALE COMMUNITY SCHOOLS is an independent municipal body with the power to sue and to be sued, organized and administered by the Clintondale Board of Education (elected by and responsible to the electors of the CLINTONDALE COMMUNITY SCHOOL DISTRICT), they have a fundamental right to be informed of any complaint against them, to cross- examine witnesses and to call witnesses on their own behalf. These rights are secured to them by the Fifth Amendment to our Constitution and cannot be denied. Addition as party Defendants at this late stage in these proceedings has effectively prejudiced CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD by denying them this fundamental right. Almost all of the essential issues in this case have already been determined and addition of new party Defendants at this stage must necessarily constitute an abuse of discretion by the Court. The restricted hearing granted to these ne\tf Defendants would not remedy the severe prejudicial violations of their civil rights. Though it may appear harsh, this case should be dismissed and reinitiated by the Plaintiffs from the very beginning. The Plaintiffs themselves have caused this dilemma by failing to join all necessary parties (or to inform the court of all necessary parties not so joined as required by Rule 19(c) of the Federal Rules in Civil Procedure, 28 U.S.C.). In balancing the potential inconvenience to the Plaintiffs, caused by their own inactions, against the immense injury to the civil liberties of the Defendants, it is clear that the convenience of the Plaintiffs must yield. If the Court allows these proceedings to continue, the rights of the Defendants will have been trampled, and the discretion of the Court to add new party Defendants so severely abused as to necessitate reversal. Hargrove v» Louisville and Nashville Railroad Company 153 F. Supp. 681 (W. D. Ky. 1957). 4. The exercise of judicial power is limited by the express terms of the Constitution to cases and controversies. Article III, Section 2, United States Constitution. This is a clear recognition by the authors that the judicial function requires intelligent and vigorous advocacy on both sides of an issue to be confident in a decision. Otherwise, a Court is placed in the position of giving judgment on crucial, Constitutional issues without the benefit of all relevant facts. There must be an honest and actual antagonistic assertion of rights by the parties. Muskrat v. United States, 219 U.S. 346 (1911). The Court should not hear collusive cases. Lord v. Veazie, 8 How. 251 (1850); Chicago and G. T. Ry. Co. v, Wellman, 143 U.S. 339 (1892); United States v. Johnson, 319 U.S. 302 (1943). It is the sincere belief of this Defendant, CLINTONDALE COMMUNITY SCHOOLS, that this necessary requirement of a true case and controversy has been lacking at critical stages of these proceedings. There has been collusion between the original parties in this case and an unwillingness by the original party Defendants to intelligently and vigorously argue their position. The Detroit Board of Education at various times has viewed these proceedings as a solution to the mismanagement of its schools. That Board clandestinely solicited this suit against them and entered into a pact for a "friendly" lawsuit with the Plaintiffs. Indeed now, with the prospect of the unjustified altering or ignoring of School District lines to bus students to Detroit from neighboring districts which have not engaged in racial % segregation, there has been created an actual incentive for - 5- U) D 0< Q a U1■S hi X!“< 5< h< to>•U)2aoHH< n oui a*. 3f: Z Q W > < >J- Z 3 O ioo M Z<to5uHg P 2 < . K cn Z ui 2 m joH Z3O2 Detroit to commit invidiously discriminatory acts and to deliberately mismanage its school system* Thus, the CLINTONDALE COMMUNITY SCHOOLS now face the dismal prospect of being forced into a suit where all the major issues have been given away by the previous Defendants in a non-adversary proceeding, The CLINTONDALE COMMUNITY SCHOOLS, which are fully integrated, which have an appropriate racial balance, and which have complied with the requirements of the Fourteenth Amendment are to become a mere pool of resources— racial, educational, and financial— to cure inadequacies of the Detroit Public Schools over which they have no influence or control. Because of the collusive nature of this case at critical points in the proceedings, a true case and controversy as required by Article III, Section 2 of the Constitution was lacking, and therefore, this Court was without proper jurisdiction and this case against the CLINTONDALE COMMUNITY SCHOOLS should be dismissed 5. Any remedy to the alleged wrongs enumerated in the Complaint and the Amended Complaint which could be imposed upon the CLINTONDALE COMMUNITY SCHOOLS, the Clintondale Board of Education, and the parents and children they represent, such as the reallocation of pupils, teachers, resources, and facilities across the boundary lines of the School District, would: (a) Be a denial of liberty and property without due process of law as guaranteed by the Fifth Amendment to the Constitution of the United States since the Defendants have never had a trial, a judicial hearing, or any opportunity to be heard in this case. They have not been present to examine and cross-examine witnesses or to enter any objections to these proceedings. Therefore, any possible remedy imposed in this case would not only'be a denial of due process of law but a complete denial of any process of law whatsoever— blatantly in violation of the requirements of the Fifth Amendment. Armstrong v. Manzo, 380 U.S. 545 (1965); Jenkins v. McKeithen, 395 U.S. 411 (1969). (b) Be unnecessary under the Fourteenth Amendment and contrary to the Tenth Amendment to the Constitution of the United States since the CLINTONDALE COMMUNITY SCHOOLS have never been established or maintained by the Clintondale Board of Education with invidious motives or with the intention to circumvent or deny any Federally protected right of any citizen. The CLINTONDALE COMMUNITY SCHOOLS and the Clintondale Board of Education have taken no action whatsoever for the purpose of keeping their schools predominatly white nor excluded any child from any school within the District on account of the child's race. The CLINTONDALE COMMUNITY SCHOOLS are a unitary School District fully in compliance with the requirements of the Fourteenth Amendment. Green v. School. Board of New Kent County, 391 U.S, 430 (1968); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). That there are some predominatly white districts existing in outlying metropolitan areas does not in and of itself show any deprivation of constitutional rights to any citizen so long as the racial makeup of the District is the product of neutral and non-discriminatory forces. Without any finding of invidious discriminatory acts by the CLINTONDALE COMMUNITY SCHOOLS and the Clintondale Board of Education, there is no violation! of the Fourteenth Amendment and hence this Court is without power to usurp the administrative power of the 01 D 0 < Q w 2 n H < U) >- e l 0 *"K h U < zc H < r^. iS. toSto w £3 a u j > h Xo y E S < . a tn o >■H 2 D O O « O 2 IdH S K “ }«10 y-5 o s # II[ Clintondale Board of Education or the CLINTONDALE COMMUNITY SCHOOLS granted them by the people of Clintondale„ Such blatant intervention into the affairs of the state and of the people without constitutionally sanctioned cause is clearly banned by the Tenth Amendment to the Constitution of the United States. Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (4th Cir. 1972), affirmed per curiam, 93 S.Ct. 1952 (1973); United States v» Texas Education Agency, 467 F .2d 848 (5th Cir. 1972); Keyes v. School District No - 1, 44 5 F.2d 990 (10 th Cir. 1971); Spencer v. Kugler, 326 F. Supp. 1235 (D. N.J. 1971), affirmed, 404 U.S. 1027 (1972); Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th Cir. 1969); Goss v. Board of Education of the City of Knoxville, C.A. 6, 72-1765-1767 (July 18, 1973). (c) Impose a particular racial balance and a fixed racial quota upon the CLINTONDALE COMMUNITY SCHOOLS 'in effect saying that though the CLINTONDALE COMMUNITY SCHOOLS have already achieved an appropriate racial balance, the number of Negro children presently attending the CLINTONDALE COMMUNITY SCHOOLS are necessarily inadequate to integrate this district and that a certain fixed quota of Negro children must be transferred to Clintondale and a fixed quota of Clintondale children sent to other districts in order to comply with requirements of the Fourteenth Amendment. This imposition of a particular racial balance and a fixed -8- M a t h e r , C l im e & D a o u s t i * • ♦ > o < 2 _J Q Jh< tn>-uz(TohH< to oo Z<o XoH 2 K » Z u £ a w? oH Z30£ racial quota has specifically been ruled unnecessary for desegregation. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (4th Cir. 1972). (d) Result in an unreasonable hardship, be unduly harsh and contrary to equity and good conscience. The Defendants have done nothing wrong. No allegations or findings have been made that the CLINTONDALE COMMUNITY SCHOOLS or GERALD STAFFORD have operated other than a completely desegregated, unitary school system with an appropriate racial balance in full compliance with the Fourteenth Amendment. That is all that can be asked of them. Bradley y. School Board of the City of Richmond, 462 F .2d 1058 (4th Cir. 1972), affirmed per curiam, 93 S.Ct. 1952 (1973); United States v» Texas Education Agency, 467 F.2d 848 (5th Cir. 1972); Keyes v. School District No. 1, 445 F.2d 990 (10th Cir. 1971). Realloca tion of'pupils, teachers, resources, and facilities across the boundary lines of the school district would be a harsh and unconscionable remedy— time and. money consuming and disruptive of good education, contrary to the obvious advantages of local schools locally controlled in close working cooperation.with parents. The CLINTONDALE COMMUNITY SCHOOLS and the Clintondale Board of Education do not control housing patterns. They stand ready to welcome Negro children into any school in the district so long as the child is a resident of the district. Under these circumstances, any remedy which could be rendered in this case, being unduly harsh and unconscionable, is beyond the equitable powers of this Court. _9_ 1 iI i H U) D 0 < o 111 3? $- < j H < ►J to >" bl (3 ir 0 H H < e hi i < w o D ZUI “- D Z e ^U Csi <5 12 Xu C£ “ O jj f“z D o (e) Create a cumbersome and unwieldy school district, hamper sound education, and curtail decentralized, diversified and locally controlled schools which are more accessible and responsive to both black and white parents and their school aged children. Such a remedy would leave the valuable benefit of local schools available to parents and children in other areas of the State of Michigan who fortuitously live a greater distance from the City of Detroit than do parents and children residing.in the CLINTONDALE COMMUNITY SCHOOL DISTRICT. This remedy would necessarily discriminate against any parents and children who wish to participate in school centered, extra curricular, social and athletic activities, and render school administrators unable to tailor local programs to fit local needs. Such destruction to sound education is unnecessary to the requirements of the Fourteenth Amendment and contrary to the Tenth Amendment to the Constitution of the United States. (f) Usurp the Legislative and Administrative power of the State of Michigan and the duly elected Board of Education of the CLINTONDALE COMMUNITY SCHOOLS. "The powers not deligated to the United States by the Constitution nor prohibited to it by the States are reserved to the States respectively or to the people." Tenth Amendment to the Constitution of the United States. This is a fundamental element of our entire form of Federal government. If invidious discrimination in the establishment or maintainence fo the CLINTONDALE COMMUNITY SCHOOLS was shown, then this principle must yield; but absent such a showing, it is constitutionally prohibited to the United States to interfere with the internal 10 H Ui D 0 CO < Ul 3 Z o Q < 0z (0 5 Ul z 65 > < 0h 3 SiJ < m LU h-0 Io £ »•«« U) >- a<3 1"<a 5 toLU Z O Ul o X zu 0 K >H h~E LU J K U I H < z o D Z O 10 U CM I-z 3 0 2 affairs of the State and its people, and there has been no such showing (indeed not even such an allegation) that the Clintondale Board of Education has in any way 'established or maintained its District as an instrument of invidious discrimination. There must be such a finding of purposeful discrimination by the Defendant before the United States, through its Courts, has the power to order any restructuring or in any way to interfer with the internal affairs of the CLINTONDALE COMMUNITY SCHOOLS. They must show intentional discriminatory acts by the CLINTONDALE COMMUNITY SCHOOLS or the Clintondale Board of Education causally connected to segregation within the District. There has been no finding of this; there has been no allegation of this; and, therefore, ther may be no remedy. To do otherwise would be to effectively dispense with representative democracy as the basic form of government within the State of Michigan and the CLINTONDALE SCHOOL DISTRICT— a result hardly intended by the authors, the adopters, and the ratifiers of the Fourteenth Amendment to our Constitution. Bradley v. School Board of the City of Richmond, 462 F„2d 1058 (4th Cir. 1972), affirmed per curiam, 93 S.Ct. 1952 (1973) United States v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1973); Keyes v. School District No. 1, 445 F.2d 990 (10th Cir. 1971); Spencer v. Kugler, 326 F. Supp. 1235 (D. N.J. 1971), affirmed, 404 U.S. 1027 (1972); Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th Cir. 1969); Goss v. Board of Education of the City of Knoxville, C.A. 6, 72-1766-1767 (July 18, 1973). (g) Render useless the right of the electors of the « CLINTONDALE COMMUNITY SCHOOL DISTRICT to cast ballots for 11 members of the CLINTONDALE COMMUNITY SCHOOL’S Board of Education since local school board members would no longer control the organization and administration of the schools the Clintondale children attend. As a member of the Republic, each citizen has an inherent right to vote which is equal to that of every other citizen. Just as the right to vote may be diluted by disproportionate representation (Reynolds v, Sims, 377 U.S. 533 [1964]), so also it may be diluted by eliminating the effectiveness of each vote. It is obvious that allowing one Senator to cast a full vote, but another to cast only half a vote, would prejudicially dilute the right to vote belonging to the latter Senator's constituents. So too, the ability to vote for local school board members is diluted and perhaps rendered useless when the elected school board members no longer are responsible for the organization and administration of the schools where the children of their electors attend. Such action is unnecessary under the Fourteenth Amendment and contrary to the Tenth Amendment and Fifteenth Amendment to the Constitution of the United States. (h) Endanger resources of the school districts pledged by contract as security for the indebtedness of that district and thereby disregard the right of private contract as guaranteed by Article I, Section 10, of the Constitution of the United States. Such a remedy would also disrupt the contractual rights of teachers and other personnel employed by the district in the same manner. (i) Be contrary to the fundamental right of free association as guaranteed by the First Amendment to the Constitution of the United States. Aptheker v. Secretary 12 J of State, 378 U.S. 500 (1964). (j) Be contrary to the right to travel, to settle and to partake the benefits of a new place as. guaranteed by \ the First and Fifth Amendments to the Constitution of the United States. Citizens have a clear and fundamental right to move wherever they wish within or without a state. Aptheker v. Secretary of State, 378 U.S. 500 (1364). An important aspect of this right is necessarily the ability to settle in any community a citizen chooses. That right should not be denied or diluted as to any citizen black or white; but any residence so chosen is much more than a mere address. It is a home and a community. It consists, of neighbors, churches, shops, and most importantly a local school system, and that free choice of a community is useless if such an important aspect as its local schools can be deprived to its residents without cause. Such action is a clear denial of the fundamental freedom to travel, inherent to citizenship in the United States. j (k) Be the imposition of a penalty upon the CLINTONDALE COMMUNITY SCHOOLS and the Clintondale Board of Education and the people they .represent without benefit of a judicial trial and therefore either beyond the powers of the Court as granted under Article III of the Constitution and the laws of the United States or, if such power is granted to the Courts, clearly a bill of attainder in violation of Article I, Section 9, of the Constitution of the United States. (l) Present no case or controversy over which this Court would have jurisdiction under Article III, Section 2, of the Constitution of the United States. -13- j - f tlis Plaintiffs srs merely requesting that the CLINTONDALE COMMUNITY SCHOOLS achieve an appropriate racial balance then such a balance has already been achieved within the CLINTONDALE COMMUNITY SCHOOLS and no dispute is presented to this Court. H ul . D 0 < D <8 o US *2 <vJ h<f co•4OLJ o D Dated: October 18, 1973 Respectfully submitted, MATHER, GLIMS & DAOUST Q W J > J O <0 >~a z E . 0 a hLU < xH< 4O H X o y K (/>O o3 z o W O C4 X Ha “ b v = Debis R. LeDuc~~ Attorneys for Defendants, CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD, Only 25 North Gratiot Avenue Mount Clemens, Michigan 48043 463-0511 H U) D 0 < > Q < u LU < 5 : 0) f > J “ z e) K 0 ' u & H LU < n 'f O “ ? - 2Q W 2 -1 > < 5 « 2 m H j.O U u - -K H 2 < 5 '3 a tno u Z0) -p W >• t z 0 a « u H < o Z 8 10 2O rj § o 2 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN BRADLEY, et al, Plaintiffs, v s . Civil Action No, 35257 MILLIKEN, et al, Defendants / PROOF OF SERVICE STATE OF MICHIGAN) ) s s . COUNTY OF MACOMB ) CAROL STRACK, being *first duly sworn, deposes and says that she is employed in a secretarial capacity by the firm of 1 MATHER, GLIME & DAOUST, attorneys for the Defendants, CLINTONDALE COMMUNITY SCHOOLS and GERALD STAFFORD, only, and that she served a copy of the Motion to Dismiss, Affidavits in Support of Motion, Brief in Support,of Motion to Dismiss and Notice of Hearing upon the attorneys on the attached list by placing the same in an envelope with sufficient postage addressed to each of them and by depositing the same in a regular United States Mail receptacle located in Mount Clemens, Michigan, on October 18, 1973. Further, deponent sayeth not- // CAROL STRACK Subscribed and sworn to before me this 18th day of October, A.D., 1973. C „ A . DIANA K. WHEATLEY // Notary Public, Macomb County, Michigan My Commission Expires: July 11, 1975 ! PAUL R. DIMONO | 906 Rose Avenue ; Ann Arbor, Michigan 4 810 4 J . HAROLD FLANNERY CENTER FOR LAW & EDUCATION Larsen Hall 14 Appian Way Cambridge, Mass, 02138 « LUCA°LOUIS R. LU'̂ ho WILLIAM E. CALDWELL Ratner, Sugarmon & Lucas 525 Commerce Title Building Memphis, Tennessee 38103 NATHAN I] JONES 1790 Broadway New Yo: New York 10019 JACK GREENBERG NORMAN J. CKACHKIN 10 Columbus Circle New7 York, New York 10019 WILLIAM M, SAXTON 1881 First National Building Detroit, Michigan 48226 U) D 0;4 n > — < oA Hi< (0voI’J aa n Dm ui tu> f- Xo u <> D »v A > Ui o o z (3 I■ 1 ■J > !- C£ 0 V O H 5 0 Z in hJ < u w nzu Jo hZ DO .-s' DOUGLAS H. WEST 3700 Penobscot Building Detroit, Michigan 48226 ELLIOTT HALL 950 Guardian Building Detroit, Michigan 48226 GEORGE T. ROUMELL, JR. 7th Floor Ford Building Detroit, Michigan 48226 FRANK J, KELLEY Attorney General Law Building 525 W. Ottawa Lansing, Michigan 1 T> -L O