Memorandum in Support of Emergency Motion to Order Funding of Public Schools for 180 Days

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

Civil Action 
No. 35257

MEMORANDUM IN SUPPORT OF EMERGENCY MOTION 
TO ORDER THE GOVERNOR OF THE STATE OF 
MICHIGAN, THE ATTORNEY GENERAL OF THE STATE 
OF MICHIGAN, THE TREASURER OF THE STATE OF 
MICHIGAN, THE SUPERINTENDENT OF PUBLIC 
INSTRUCTION FOR THE STATE OF MICHIGAN, THE 
MEMBERS OF THE STATE BOARD OF EDUCATION OF 
THE STATE OF MICHIGAN AND OTHER STATE 
OFFICIALS TO PROVIDE FUNDS TO KEEP THE 
DETROIT PUBLIC SCHOOLS OPERATING FOR A FULL 
180 REGULAR DAYS OF INSTRUCTION AND FOR OTHER RELIEF

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, et al,

Defendants-Intervenor.

I. INTRODUCTION

On July 7, 1972, the United States Court of the 
Eastern District of Michigan issued an Order directed against



"the parties 
others havin 
the schools 
,18 0 days of

, their agents, employees, successors, and all 
g actual notice of this Order", requiring that 
or the City of Detroit remain open for the full 

instruction previously scheduled and required by
law, CL 1948, 340.57b; MSA 15.3575.

This Order of the District Court was never appealed; 
no party filed a claim of appeal nor was it included in the 
Certification to the Court of Appeals under either Fed R. Civ 
Proc. 54 (b) or 29 U.S.C.A. 1292(b) under which that Court 
heard the appeals currently pending.

On July 22, 1972, the Court of Appeals issued an Order 
which provided inter alia for the stay of "all other proceedings" 
m  the District Court. On November 22, 1972, Defendant Board 
of Education of the School District of the City of Detroit (here­
inafter referred to as the "Detroit Board") filed an Emergency 
Motion with the Court of Appeals asking that court, pursuant to 
F.R.C.P. 62G, to provide substantially the same relief requested 
nere. That Court responded with an Order entered on November 
27, 1972, dismissing the motion for lack of jurisdiction, and 
indicating that it did not view its July 22 Stay as applying to 
modifications of interim orders entered by the District Court for 
the purpose of preserving the status quo, and which additionally 
had neither been included in the District Court's certification 
to the Court of Appeals nor noticed for appeal by any party. Thus, 
the Detroit Board comes to this Court in the hope that the Court

2



may act tc insure that a full school year may be provided Detroit 
school cnildren without resort to the last minute futility of 
contempt proceedings.

The Detroit Board finds itself at the point of fiscal 
exhaustion. The details of the complete lack of funds of the 
Detroit School Board are spelled out in the Emergency Motion 
plus the attached Affidavit of Harold R. Brown, Business Manager 
of the Detroit Board of Education which we again urge the Court 
to review. As we have pointed out in the pleadings and in Mr. ~ 
Brown's Affidavit, even if the State Administrative Board advances 
an additional $20,000,000.00 in aid that is due in April, 1973 
to the Detroit School Board it will not remedy the existing 
condition.

{
tte fact of the matter is that the Detroit school system 

has exhausted all of its revenue; by March, 1973 it will have 
spent all tax revenue and it already has reached the end of its 
borrowing capacity. By that date this school system will be 
$7,100,000.00 in debt and by June, 1973 will be $80,000,000.00 
in debt.

The Board of Education of the School District of the 
City of Detroit has done everything.it possibly can do including, 
since Judge Roth's Order, placing a renewal millage proposition 
on the ballot twice, in August, 1972 and November, 1972 and did 
so actually three times during the year 1972 only to be rejected 
by the voters. By rejecting the five-mill renewal, the

3



voters have deprived the system of 28.8 million dollars.

Mr. Brown's Affidavit points out all the attempts 
that the Board has made to save money including having its 
teachers agree to no raise during the current year.

At this juncture the Detroit Board has received neither 
revenue nor assurance of revenue from the State Defendants nor 
any other source which would permit it to continue in operation 
one day longer than it would have been capable of operating 
prior to the entry of Judge Roth's July 7 order. It received 
repeated suggestions from the State Board of Education that it hold 
additional millage elections, which it did, without success.

In fairness, it should be pointed out that both prior 
to and after the entry of the July 7 Order, Defendant William G. 
Milliken campaigned for an amendment which would have restructured

f
Michigan's school financing system, but which did not provide any 
particular avenue for implementation of the July 7 Order. How­
ever, on information and belief subsequent to the general election 
of November 8, the Defendant Milliken, and numerous other 
defendants have publicly expressed the opinion that the State of 
Michigan should not be required to "bail out" the Detroit School
system, Detroit voters havincr rejected millage increases and 

1  ' • • 
renewals. Having received nothing from the other defendants
except conversation, Defendant Detroit Board now finds itself
justifiably insecure as to whether any state assistance is
forthcoming.

1. The perniciousness of this position is difficult to overstate. 
The rights of Detroit school children to education under the 
Fourteenth Amendment are personal to them. It is axiomatic 
that the Constitutional rights of citizens cannot be conditioned 
on whether the majority of citizens wants them to have them. 
There were very few Detroit school children who voted against 
the millage proposals, and the votes of others are a very poor 
excuse for depriving them of their right to education.

4



II THE RIGHTNESS OF PROVIDING A FULL SCHOOL YEAR TO DETROIT 
CHILDREN IS BEYOND SERIOUS DISPUTE

There is perhaps no need to belabor the correctness
of the action taken by Judge Roth. However, in view of his most 
*

unfortunate inability to hear this motion, perhaps some indication 
of how well grounded in the law that decision was is appropriate.

In announcing his intention to enter the aforementioned 
Order of July 7, 1972, the Trial Judge on June 30, 1972 said 
in part as follows: '

"I think in connection with the issuance of 
the preliminary injunction in this case per­
haps it should be pointed out that what I 
propose to order and what I have ordered is 
in the Court's opinion required of the Defen­
dants under the Equal Protection clause of 
the Fourteenth Amendment of the United States 
Constitution and the Constitution of the 
State of Michigan. Quite aside from the 
issues of the legal propriety of the finding 
of desegregation of the propriety of the order 
of metropolitan desegregation, I would think 
that no one, certainly no one involved in 
this case nor the officials involved in the 
litigation, would take the position that the 
pupils in the public schools of the City of 
Detroit are entitled to anything less than a 
full year of schooling in the 1972-73 school 
year. They certainly rate more than two- 
thirds equality." Transcript of Proceeding 
of June 30, 1972, at 1.

It is indisputable that the School District of the 
City of Detroit is faced with imminent closure of its facilities 
to the school children of the district. While those school doors 
are locked, the Detroit school children will be unable to attend 
school, although in virtually every other district within the 
state, children will be attending school at that time. Yet in 
juxtaposition to their total exclusion from the educational 
process are the historic words of the Supreme Court in Brown vs.

5 -



Board of Education. 347 U.S. 483 at 493 (1954)

''Today, education is perhaps the most 
important function of State and local govern­
ments Conpulsory school attendance laws 
ana the great expenditures for education 
dotn demonstrate a recognition of the
importance of education to our democratic society...
—  thes-e days, it is doubtful that any child may re^or^bly__b_e__expected' to succeed ITTlTfe

— Elfilî rj:_yig__gP£ortuni ty of an edition. Sucn an opportunity, where the State has under­
taken to provide it, is a right which must be 
made available to all on equal terms "Emphasis added.

However, the imminent closing of the Detroit School will deprive 
tne Detroit school children of their right to the opportunity 
of an education. This right to access to education is a right 
which has been clearly and repeatedly established and recognized 
by the Federal Judiciary, not only in the context of racial 
segregation, but in the field of school taxation, Van Dusartz 
— ..-Hat£ield,, 334 F. Supp. 870 (DC Minn. 1971); Rodriquez v. 
SarL_Antonio, civil Action 68-175 SA (W.B. Tex. 1971), in the 
area of equal educational opportunity, Hansen v. Hobson. 408 F.
2d 175 (D.C. Cir. 1969), and in requiring education for the 
handicapped, Pennsylvania Association for Retarded Children v. 
Commonwealth of Pennsylvania, 343 F.Suop. 279 (E D PA. 1972),
Mills^_Board of Education of the District of Columbia, Civil 
Action No. 1939 - 71 (DDC 1972).

Moreover, the Federal Judiciary has been cognizant of 
the inherent deprivation of equal protection of the laws to 
school children of one district who face the closing of their 
schools, m  the face of open schools in other school districts 
adjacent thereto. Thus, in Hall v. St. Helena Parish School Board

6



197 F.Supp. 649 (E D La. 1961), aff'd 368 U.S. 515 (1962) , a

three-judge district court found it not only to be a violation 
of equal protection of Negro students for a State to permit schools 
within one district to be closed, with schools in another remain­
ing open, but found:

"[I]nevitably, another effect of the statute 
is to discriminate geographically against 
all students, white and clored, in St. Helena 
or any other community where the schools are 
closed..."

197 F.Supp. at 656.

In prohibiting the closing of the St. Helena schools, 
the St. Helena Court held:

"Applying familiar principles to the admitted 
facts, that conclusion seems inescapable. Thus, 
it is clear enough that, absent a reasonable 
basis for so classifying, a state cannot close 
the public schools'in one area while, at the 
same time it maintains schools elsewhere with 
public funds." Ibid.

The conclusion is inescapable: Allowing the schools of
the City of Detroit to be closed, while permitting school districts 
elsewhere in the State to remain open, is a violation of equal 
protection which the State of Michigan is not free to pursue. 
Whatever, financial difficulty the State might face in.-keeping 
the Detroit School System open is insufficient to permit the 
closing of the Detroit schools, for when the State of Michigan 
undertakes to provide educational benefits, it must do so even 
handedly throughout the State. Hall v. St. Helena Parish School 
Board, 197 F.Supp. at 659. Thus, financial discrimination or 
discrimination on the basis of wealth or its lack is constitutionally 
impermissible and Judge Roth's Order is eminently correct.

7



Rodriquez y. San Antonio, supra.; Van Dusartz
, 277 F.Supp. 65, aff'd. sub 

Thompson, 394 U.S. 613 (1969).

v. Hatfield, supra. 
nom. Shapiro v.

111. THE LATEST TIME AT WHICH THIS COURT MAY ACT TO INSURE
TH* IMPLEMENTATION OF THE JULY SEVENTH ORDER IS AT HAND.

It has been suggested by other parties that the action 
of Defendant Detroit Board in bringing this motion at this time 
is premature. After all, the argument goes, the July 7 Order 
is entered, and should the money run out in March, contempt 
proceedings would be available. The Detroit Board would submit 
that the incarceration of high state officials is hardly a 
satisfactory substitute for the education of Detroit school 
children. This is a case in which waiting for the actual fact 
of contempt would be far too late a time to provide effective 
relief for the rights which would be violated by that contempt.

■j

We would suggest that, rather than proceeding in a 
punitive fashion after the fact, it would be a far better 
exercise of this Court's discretion to proceed now in such a 
fashion as to insure that the Order is obeyed. Such a procedure 
is suggested in Defendant Detroit Board’s prayer for relief. By 
providing for a plan from State Defendants at this point in time 
as to how they will come forward with the necessary funds, this
Court can insure that those funds are present when they are 
needed.

Secondly, action now will provide assurance to the 
Detroit Board that in continuing to operate its schools on a 
plan for a full 180-day program it is not courting an educational

- 8 -



disaster for the children it serves. It in no way indicates
any uncertainty in the rightness of its position for the
Detroit Board to desire the present full implementation of the
July 7 Order, when the consequence should it not prevail, but 
*

continues to act on the assumption that it will prevail, would 
be the virtual destruction of the effectiveness of an entire 
semester of school for 280,000 children. If there is any 
possibility that Detroit children will not be able to receive a 
full 180 days of school, the Board should know now so that they 
can make the best of that very bad situation.

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

f
and expertise is the most workable. Yet, as noted above, the 
pronouncements of legislative 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. The Detroit Board would respectfully 
suggest that it would be both an entirely approriate and extremely 
productive exercise of the Court's discretion to order relief which 
need not be implemented if the legislature acts within a 
reasonable time, thereby sending the message loud and clear that 
should the legislature fail to meet its responsibilities to 
protect the Constitutional rights of Detroit school children, 
this Court will not allow those rights to be violated. See e.g. Van 
Dusartz v. Hatfield, 334 F.Supp 870 (D Minn 1970) (school finance 
case in which Court retained jurisdiction pending future legislative 
action, which in fact occurred).

I .

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IV. THE RESPONSIBILITY FOR FORMULATING A PLAN TO RESPOND TO 
THE ORDER OF THE COURT SHOULD REST WITH THE STATE 
DEFENDANTS

It has consistently been the position of the State 
Defendants, and may fairly be anticipated to be their position 
here that they do not have the power to obey this order of the 
Court. That argument was rejected by Judge Roth on July 7 with 
particular regard to this issue, and was generally rejected in 
his findings of fact and conclusions of law of June 14, 1972, in 
which he characterized the State Defendants view of their power 

- c-- in this matter as-"self serving and therefore self limiting".
It is the law of the case and the law of the land that they do 
have the power. June 14, 1972 Findings, slip op. p 5.

As Judge Roth said, "Funds must either be 
raised or reallocated, where necessary to 
remedy the deprivation of Plaintiffs 1 Con­
stitutional . rights... " See generally,
Shapiro v. Thompson, supra. 397 US at 265-266 
(1970);. Boddie v. Connecticut 91 S.Ct. 780, 
788(1971); Griffin v. Illinois, 351 US 12 (1956) ; 
Graham v. Richardson 403 US 365 374-375 (1971); 
Mazer v. .Chicago, 404 US 189,197 (1971);
Griffin v. Prince Edward County, .3 77 US 218 
(1964); Hoosier v. Evans 314 F. Supp 316, 320-321 
(D.StCroix., 1970); United States v. School 
District 151, 301 F.Supp. 201,232 (UD 111. 1969) 
aff'd as modified, 432 F2d 1147 (,7th Cir 1970) 
cert, denied, 402 US 943 (1971); Plaquemines Parish 
School Board v. U.S., 415 F2d 379 (5th Cir 1970)

The Detroit Board would not presume to choose or 
suggest that this Court choose ab initio which power the State 
Defendants should exercise, or what utilization of the equity 
discretion of this Court they should receive to augment that power. 
The choices will be difficult, even harsh, and should be made by 
state policy making officers. But they must be made and made now.

- 10 -

/



«

Should the State Defendants fail to respond to the Order 
of this Court to provide a plan for implementation of the July 7 
Order, time will then exist for this Defendant and the Court to 
make those choices in default of duly constituted authority.
4However, should that default not be discovered or remedy attempted 

until the schools actually close, then a contemptuous violation 
of the July 7 Order would become a fait accompli. There is no 
valid reason why that should be permitted to happen.

CONCLUSION

It is the sincere desire of the Detroit Board that the 
ultimate power of this Court to order a short range financing 
plan never be actually exercised. Yet the preparation for that 
exercise must be made now, or it will not be available in this 
most complex situation when it is actually needed. Therefore,

t
the Detroit Board respectfully requests that this Court order 
the State Defendants to plan for that exercise at this time, 
so that the Detroit Board may proceed to comply -with the Order 
of July 7, and the educational progress of Detroit school 
children may continue.

Respectfully submitted, 
RILEY AND RQUMELL

George T.7£<oumel.
Louis D.^Beer .
Jane Keller Souris 
Russ E,. Boltz

Attorneys for Defendant Board 
of Education of the School 
District of the City of Detroit

November 28, 1972.

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i
CERTIFICATION

This is to certify that a copy of the foregoing 
Memorandum In Support of Emergency Motion to Order the 
Governor of the State of Michigan, the Attorney General 
of the State of Michigan, the Treasurer of the State of 
Michigan, the Superintendent of Public Instruction for 
the State of Michigan, the Members of the State Board of 
Education of the State of Michigan and Other State Officials 
to Provide Funds to Keep the Detroit Public Schools 
Operating for a Full 130 Regular Days of Instruction and 
for Other Relief has been served upon counsel of record by 
United States Mail, postage pre-paid, addressed as follows:

LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
525 Commerce Title Building 
Memphis, Tennessee 38103
NATHANIEL R. JONES 
General Counsel, NAACP . 
1790 Broadway 
New York, New York 10019
E. WINTHER MC CROOM 
3245 Woodburn Avenue 
Cincinnati, Ohio 45207
JACK GREENBERG 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019
J. HAROLD FLANNERY 
PAUL R. DIMOND 
ROBERT PRESSMAN 
Center for Law & Education 
Harvard University 
Cambridge, Massachusetts 

02138
DAVID L. NORMAN • 
Department of Justice 
Washington, D.C. 20530
ROBERT J. LORD
8388 Dixie Highway
Fair Haven, Michigan 48023
RALPH GUY
United States Attorney 
Federal Building 
Detroit, Michigan 48226
DOUGLAS H. WEST 
ROBERT B. WEBSTER 
3700 Penobscot Building 
Detroit, Michigan 43226

WILLIAM M. SAXTON
1881 First National Building
Detroit, Michigan 48226
EUGENE KRASICKY 
Assistant Attorney General
Law Building --
525 West Ottawa Street 
Lansing, Michigan 48913
THEODORE SACHS 
1000 Farmer
Detroit, Michigan 48226
ALEXANDER B. RITCHIE 
1930 Buhl Building 
Detroit, Michigan 48226
BRUCE A. MILLER 
LUCILLE WATTS
2460 First National Building 
Detroit, Michigan 48226
RICHARD P. CONDIT
Long Lake Building
860 West Long Lake Road
Bloomfield Hills, Michigan 48013
KENNETH B. MC CONNELL 
74 West Long Lake Road 
Bloomfield Hills, Michigan 48013
DONALD F. SUGERMAN
2460 First National Building
Detroit,Michigan 48226
THEODORE W. SWIFT
900 American Bank & Trust Bldg.
Lansing, Michigan 48933
FRED W. FREEMAN 
CHARLES F. CLIPPERT 
1700 N. Woodward Avenue 
P‘. O. Box 50 9
Bloomfield Hills, Michigan 48013



JOHN F. SHANTZ
222 Washington Square Building 
Royal Oak, Michigan 48067

November 28, 1972
Repsectfully submitted,
RILEY AND ROUMELL

✓-•Russ E. Boltz
720 Ford Building 
Detroit, Michigan 48226