Memorandum of Law in Support of Motions

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al., )
)

Plaintiffs, )
)

-vs- )
)

WILLIAM Go MILLIKEN, et al., )
)

Defendants, )
)

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

)
- Defendant- )

Intervenor, )
)and )
)

DENISE MAGDOWSKI, et al., )
)

Defendants- )
Intervenor, )

)et al. )
_____________________________________ )

CIVIL ACTION 
NO. 35257

MEMORANDUM OF LAW IN SUPPORT OF MOTIONS

In relevant part, Rule 62(d) provides that when an appeal is taken the 

appellant may obtain a stay of proceedings to enforce a judgment.

Briefly stated, parties seeking a stay pending appeal must show (1) 

that they will likely prevail on the merits of the appeal, (2) that they will 

suffer irreparable injury if the stay is denied, (3) that other parties will 

not be substantially harmed by the stay, and (4) that the public interest will 

be served by granting the stay. Long v. Robinson, 432 F2d at 979.

Is Brown II, as the Court decided in the March 24, 1972 ’’Ruling on 

Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of

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the Public Schools of the City of Detroit”, dispositive of the unprecedented, 

threshold and landmark question number 3 for briefing in the Court's March 6, 

1972 "Notice to Counsel"?

The Court of Appeals and the Supreme Court, as the case may be, are 

likely to say "no” not only for the reasons set forth in the "Objections by 

Defendants-Intervenor Kerry Green et al. to Testimony and Exhibits Concerning 

Metropolitan Remedy”, filed on May 4, 1972, but also for the reason that the 

alternative metropolitan desegregation area and plan remedy as now granted is 

inconsistent with and contrary to the admonitions in Swann at 22-23:

The constant theme and thrust of every holding from 
Brown I to date is that state-enforced separation of 
races in public schools is discrimination that violates 
the Equal Protection Clause. The remedy commanded was 
to dismantle dual school systems.
We are concerned in these cases with the elimination 

of the discrimination inherent in the dual school sys­
tems, not with myriad factors of human existence which 
can cause discrimination in a multitude of ways on rac­
ial, religious, or ethnic grounds. The target of the 
cases from Brown I to the present was the dual school 
system. The elimination of racial discrimination in 
public schools is a large task and one that should not 
be retarded by efforts to achieve broader purposes 
lying beyond the jurisdiction of school authorities.
One vehicle can carry only a limited amount of baggage.
It would not serve the important objective of Brown I 
to seek to use school desegregation cases for purposes 
beyond their scope, although desegregation of schools 
ultimately will have impact on other forms of discrim­
ination. . . .

Our objective in dealing with the issues presented by 
these cases is to see that school authorities exclude no 
pupil of a racial minority from any school, directly or 
indirectly, on account of race; it does not and cannot 
embrace all the problems of racial prejudice, even when 
those problems contribute to disproportionate racial 
concentrations in some schools.

and at 24:

. . .The constitutional command to desegregate schools 
does not mean that every school in every community must 
always reflect the racial composition of the school sys­
tem as a whole. . . .

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Litigant prudence and judicial prudence, at the very least, together 

caution an appropriate stay of proceedings to enforce the possible fall 1972 

term metropolitan desegregation plan as ordered pending a timely and secure 

appellate review of the unprecedented, threshold and landmark questions of 

law and fact upon which the ultimate fall 1973 term plan as ordered in this 
action is predicated.

The national significance of the action at bar is no less than this:

If Brown II is dispositive of the question of propriety of the metropolitan 

remedy as ordered, then Brown I will at once thereby have been rewritten. If 

this Court is affirmed on appeal, then every district court, relying upon the 

Brown II instrument of equity alone, may consider and enforce an enlargement 

of the desegregation area beyond which a Brown I constitutional violation is 
claimed, shown and found.

All key issues are formulated and decided.

Do the unprecedented, threshold and landmark questions of law and fact 

at bar sound in "remedy” or in "right and violation"?

The Court says "remedy"; we say "right and violation".

The Court's rationale is explicit.

So too is the litigant challenge.

Equity follows the law.

Equity does not create new rights. In Re Bowman, 24 F. Supp. at 384.

Where there is no legal liability, equity can create none; and equity 

cannot apply a remedy where there is no right. Pewitt v. Pewitt, 240 SW2d
at 528.

Thus far the Court alone has shouldered all the burden of the momentous 

question of metropolitan remedy propriety. Who is there to gainsay that the 

time is now for the Court, without slightest offense to any Supreme Court 

mandate, to share that lonely burden with appellate courts?

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Nor can a moderate fall 1972 term stay be casually or cynically equated 

with inequitable and insensitive delay in the vindication of the plaintiffs' 

constitutional rights. Nothing militates against a stay order so fashioned 

so as to permit both the unhurried continuity of committee preparation of the 

fall 1973 term metropolitan plan as well as implementation of the plaintiffs' 

Detroit-only plan on an interim basis pending appeal.

Appeals will surely move on apace.

A problem of responsible advocacy at bar is selecting, with the Court's 

assistance, a route of timely law and fact appeal secure from another round 
of appeal challenge and possible dismissal.

Citizen to citizen, in good faith, we call upon the plaintiffs and 

their able counsel, in the light of the totality of public interest in this 

action, to consider realistically what if any substantial harm can result if 

a stay is granted as moderately suggested. Realities being what they are, is 

there not as much danger of substantial harm to the cause itself of vindicat­

ing constitutional rights if a prudent stay is not granted merely for lack of 

the plaintiffs' consent?

Respectfully submitted,

ROBERT J. LORD
Attorney for Defendants-Intervenor 
Kerry Green, et al.
8388 Dixie Highway
Fair Haven, Michigan 48023
Telephone: 725-4231

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