Petition for Writ of Certiorari

    IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1972

NO.

SCHOOL DISTRICT OF THE CITY OF BIRMINGHAM, OAK­
LAND COUNTY, MICHIGAN

Petitioner,
v.

THE HONORABLE STEPHEN J. ROTH, DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN 
DIVISION

Respondent.

PETITION FOR WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

KELLER, THOMA, McMANUS, 
TOPPIN & SCHWARZE 

Thomas H. Schwarze 
Charles E. Keller 
1600 Penobscot Building 
Detroit, Michigan 48226





1

INDEX

Page

OPINIONS BELOW . ................................................................  1

JURISDICTION .....................................................................  2

QUESTIONS PRESENTED.................................    2

CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED..................      3

STATEMENT OF THE CASE .....................................    6

REASONS FOR GRANTING WRIT ..............    8

CONCLUSION ........................................................................  11

APPENDIX ..............................................................................  la



11

CITATIONS

Page
Cases:
Atwood v. National Bank o f Lima, 115 F.2d 861, (6th Cir.,

1940) ...........................    7

Bell v. School Board o f Powhatan County, Va., 321 F.2d 
494, (4th Cir. 1 9 6 3 ).............................     7,9

Bradley, et al. v. Milliken, et al, 338 F. Supp. 582, (E.D.
Mich. 1971) ........................................................................... 5,10

Bradley v. School Board o f Richmond, Virginia, 51 F.R.D.
139, (E.D. Va., 1970), 462 F.2d 1058 (4th Cir., 1972). . 9

Covington v. Edwards, 264 F.2d 780, (4th Cir., 1959) . . . . . .  8,9

Hertz v. Record Publishing Company o f Erie, 219 F.2d 397,
(3rd Cir., 1955), cert, denied 349 U.S. 912 , 75 S.Ct. 601 
(1955) ...........................................................        8

Jeffers v. Whitley, 165 F. Supp. 951, (N.D.N.C., 1958)........  8,9

Jet v. Zink, 362 F.2d 723 (5th Cir., 1966) ...........................  8

King v. School District No. 5, 261 M. 604 (1933) . ...............  8

Marathon School District No. 4 v. Gage, 39 M. 484 (1878) . . 8

McKissich v. Durham City Board o f Education, 176 F.Supp. 
3,(M.D.N.C., 1959) ...........................................................    8

Morrow v. District o f  Columbia, 417 F.2d 728, (C.A.D.C.,
1969)........................................ ............................................  10

Niles - Bement - Pond Co., v. Iron Moulders Union, 254 U.S. 
80,41 S.Ct. 39 (1920) ................................................   7

Public Schools o f Battle Creek v. Kennedy, 245 M. 585 
(1929)........................................................................................ 8

Roche v. Evaporated Milk Association, 319 U.S. 21 (1943) . 10



Ill

Shields v. Barrow, 17 How. 129, 15 L.Ed. 158 (1854) . . . . .

Thaxton v. Vaugh, 321 F.2d 474, (4th Cir. 1 9 6 3 )................. 8,9

Waterman v.Canal-Louisiana Bank Co., 215 U.S. 33, 30S.Ct.
10, 54 L.Ed. 80 (1909)........................... .............................  7

Constitutional Provisions:
Art. VIII, Sec. 2, Mich. Const........................... ....................  4
Art. VIE Sec. 3, Mich. Const............................................... .. 8
Art. Ill, Sec. 2, U.S. Const............... .................. ..................  3
Art. V, Sec. 1, U.S. Const. ...................................................  3

United States Statutes:
Title 28 U.S.C.§ 1254 .....................................................• ■ 3
Title 28 U.S.C. § 1292(b)....................................................  6

Statutes of Michigan:
M.C.L.A. 340.1, et seq ......................................................... 4
M.C.L.A. 340.352   4>8

Court Rules:
Rule 19, F.R.C.P....................................................................  3
Rule 54, F.R.C.P....................................................................  6



1

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1972

NO.

SCHOOL DISTRICT OF THE CITY OF BIRMINGHAM, OAK­
LAND COUNTY, MICHIGAN

Petitioner,
v.

THE HONORABLE STEPHEN J. ROTH, DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN 
DIVISION

Respondent.

PETITION FOR WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

The petitioner, School District of the City of Birmingham, 
respectfully prays that a Writ of Certiorari issue, to review an 
Order of the United States Court of Appeals for the Sixth Circuit 
entered in the above-entitled cause denying Petitioner’s Petition 
For Writ of Prohibition and/or Mandamus and from its Order 
Denying the Petition For Rehearing.

OPINIONS BELOW

The opinions rendered in the District Court and in the Court 
of Appeals for the Sixth Circuit below are:

A. Ruling of June 14, 1972 of the Trial Judge, Honorable 
Stephen J. Roth, District Judge for the Eastern District of 
Michigan, Southern Division, a copy of which is attached 
as Appendix A.



2

B. Order of July 20, 1972, of the Trial Judge, Honorable 
Stephen J. Roth, District Judge for the Eastern District of 
Michigan, Southern Division, a copy of which is attached 
as Appendix B.

C. Order of the Court of Appeals for the Sixth Circuit, of 
August 7, 1972, denying Petition For Writ of Prohibition 
and/or Mandamus, a copy of which is attached as 
Appendix D.

D. Order of the Court of Appeals for the Sixth Circuit, of 
September 5, 1972, denying Petition For Rehearing of 
Petition For Writ of Prohibition and/or Mandamus, a copy 
of which is attached as Appendix F.

JURISDICTION

The Order denying the Petition For Writ of Prohibition and/ 
or Mandamus was entered on August 7, 1972. A Petition For Re­
hearing was timely filed. The Order denying Petition For Re­
hearing was entered on September 5, 1972. The jurisdiction of this 
Court to issue the requested Writ of Certiorari is conferred by 28 
U.S.C. Sec. 1254(1) .

QUESTIONS PRESENTED FOR REVIEW

1. Did the District Court err by including the School District of 
the City of Birmingham in its desegregation order where said 
School District has not been served with process, is not a 
party to the litigation, and has not intervened therein?

2. Did the District Court err by including the School District of 
the City of Birmingham within the scope of its desegregation 
order where the Court’s findings of segregation are limited to 
policies and practices solely within the City of Detroit School 
District and where neither the State of Michigan nor the 
School District of the City of Birmingham are parties to, or 
intervenors in, said litigation from which the challenged order 
flows?

3. Did the Court of Appeals err by denying the Petition For A 
Writ of Prohibition and/or Mandamus?



3

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

The provisions of the Constitution of the United States at 
issue herein are as follows:

ARTICLE III

SECTION 2. The Judicial Power shall extend to all 
cases, in Law and Equity, arising under this Constitution, 
the Laws of the United States, and Treaties made, or 
which shall be made, under their Authority; — to all cases 
affecting Ambassadors, other public Ministers and 
Consuls; — to all Cases of admiralty and maritime Juris­
diction; — to Controversies to which the United States 
shall be a Party; — to Controversies between two or more 
States;—between a State and Citizens of another State;— 
between Citizens of different states, — between Citizens of 
the same State claiming Lands under Grants of different 
States, and between a State, or the Citizens thereof, and 
foreign States, Citizens or Subjects.

ARTICLE V

No person shall be held to answer for a capital, or other­
wise infamous crime, unless on a presentment or indict­
ment of a Grand Jury, except in cases arising in the land 
or naval forces, or in the Militia, when in actual service in 
time of War or public danger; nor shall any person be sub­
ject for the same offence to be twice put in jeopardy of 
life or limb; nor shall be compelled in any Criminal Case 
to be a witness against himself, nor be deprived of life, 
liberty, or property, without due process of law; nor shall 
private property be taken for public use, without just 
compensation.

Rule 19 of the Federal Rules of Civil Procedure provides in 
pertinent part as follows:

JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION

(a) Persons to be Joined if Feasible. A person who is 
subject to service of process and whose joinder will not



4

deprive the court of jurisdiction over the subject matter of 
the action shall be joined as a party in the action if (1) in 
his absence complete relief cannot be accorded among 
those already parties, or (2) he claims an interest relating 
to the subject of the action and is so situated that the dis­
position of the action in his absence may (i) as a practical 
matter impair or impede his ability to protect that interest 
or (ii) leave any of the persons already parties subject to a 
substantial risk of incurring double, multiple, or otherwise 
inconsistent obligations by reason of his claimed interest. 
If he has not been so joined, the court shall order that he 
be made a party.***

2. The provisions of the Constitution of the State of 
Michigan at issue are as follows:

ARTICLE VIII

SECTION 2. The legislature shall maintain and support 
a system of free public elementary and secondary schools 
as defined by law. Every school district shall provide for 
the education of its pupils without discrimination as to 
religion, creed, race, color or national origin.

3. The Statute of the State of Michigan at issue is as 
follows:

Act 269 of Public Acts of Michigan of 1955, as amended 
(MCLA 340.1, et seq).

a. Section 352 (MCLA 340.352, MSA 15.3352)

“Every school district shall be a body corporate under 
the name provided in this act, and may sue and be sued in 
its name, may acquire and take property, both real and 
personal, for educational purposes within or without its 
corporate limits, by purchase, gift, grant, devise or be­
quest, and hold and use the same for such purposes, and 
may sell and convey the same as the interests of such dis­
trict may require, subject to the conditions of this act con­
tained. As such body corporate, every school district 
existing within the same territorial limits and shall be



5

vested with all rights of action, with the title of all pro­
perty, real and personal, of the district of which it is the 
successor, and the indebtedness and obligations of the dis­
trict superseded shall become and be the indebtedness and 
obligations of the succeeding district, except as otherwise 
provided in chapters 3, 4 and 5, part 2 of this act. Every 
school district shall in all cases be presumed to have been 
legally organized when it shall have exercised the fran­
chises and privileges of a district for the term of 2 years; 
and such school district and its officers shall be entitled to 
all the rights, privileges and immunities, and be subject to 
all the duties and liabilities conferred upon school districts 
by law.”

STATEMENT OF CASE

Petitioner is a Michigan Municipal Corporation and School 
District of the Third Class, organized and existing under the Con­
stitution and laws of the State of Michigan. The Petitioner is 
vested by the laws of Michigan with independent, legal status, and 
maintains an educational program for approximately 16,600 stu­
dents. The School District is located in Oakland County, outside 
of the City of Detroit.

In August of 1970, certain Plaintiffs (Ronald Bradley, et al.) 
commenced a suit against the Detroit Board of Education and cer­
tain State officers seeking a judgment that Act 48 of Public Acts 
of 1970 of the State of Michigan be declared unconstitutional and 
requesting that Detroit School District be operated as a unitary 
system. Petitioner was not named as a party in such litigation, was 
not served with process, and was not a participant in the pro­
ceedings.

On September 27, 1971, the Honorable Stephen J. Roth, 
U.S. District Judge, issued a Ruling on Issue of Segregation in 
Bradley, et al. v. Milliken, et al, (338 F. Supp. 582, 594, [E.D. 
Mich., 1971]) finding a “<i<? jure segregated school system in 
operation in the City of Detroit” . The ruling was limited to the 
finding that illegal segregation exists in the public schools of the 
City of Detroit.

On June 14, 1972, the District Court entered an Order in



6

Bradley denominated Ruling on Desegregation Area and Order for 
Development of Plan of Desegregation (345 F.Supp. 914 [E.D. 
Mich., 1972]) which, inter alia, mandates pupil reassignment to 
accomplish desegregation of the Detroit public schools within a 
geographical area encompassing Detroit and some 53 additional 
school districts (including Petitioner) which are all outside the 
limits of the Detroit School District.

The Petitioner was included in the “Metropolitan” desegre­
gation area notwithstanding the fact that: (1) Petitioner is not and 
never has been a party to the above proceedings; (2) no claim has 
been made and no finding of the District Court suggests that Peti­
tioner has committed any act of de jure segregation or that the 
failure to maintain a unitary system in Detroit was caused by or is 
attributable to the Petitioner.

The Petitioner is not a party to the litigation; nor did the 
Petitioner intervene therein.

Nonetheless, Petitioner was included in the “desegregation 
area” and ordered to “cooperate fully” with a Court-selected 
panel of individuals who were charged by the District Court with 
the responsibility of developing details of the desegregation plan 
for the area delineated by the District Court in its June 14, 1972 
Order (Appendix A, Page 4a). Petitioner was ordered to pay the 
costs of its employees’ assistance to such panel and participate in 
the reassignment of pupils within the “desegregation area”.

On July 20, 1972, the District Court ordered the entry of 
judgments in accordance with the provisions of Federal Rules of 
Civil Procedure 54(b) and for certification under the provisions of 
28 U.S.C. 1292(b) of certain of its rulings and orders, one of 
which was its order of June 14, 1972 (Appendix B). The deter­
mination of finality as to certain orders entered therein, enabled 
the parties to that cause to take an appeal. Petitioner, a non- 
party, had no right to appeal in Bradley.

There is an irreconciable conflict between the Birmingham 
School District’s statutory authority and the terms of the District 
Court’s Order of June 14, 1972 (Appendix C, pages 16a-18a)The 
June 14, 1972 Order, as a final judgment, is a final ruling inter alia



7

that the Birmingham School District may be validly ordered to 
relinquish its specific statutory powers and validly ordered to 
participate in a cross-district bussing plan regardless of the fact 
that it has at no time been a party to the proceedings.

The Petitioner respectfully submits that its inclusion in the 
desegregation area and its ordered participation in the desegre­
gation plan abrogates powers conferred and duties imposed upon 
it by the Constitution and laws of the State of Michigan. Such a 
modification of the Petitioner’s rights and interests without 
notice, without service of process, and without a hearing on the 
merits constitutes a denial of constitutional guarantees to due pro­
cess.

REASONS FOR GRANTING THE WRIT

[For purposes of brevity, Questions I and II presented 
for review are treated collectively.]

The Petitioner, School District of the City of Birmingham, 
has been included in the “Metropolitan” desegregation area and 
made subject to the June 14, 1972 Ruling and Order in Bradley 
even though the School District was never a party to those pro­
ceedings. It is submitted that the District Court erred by including 
the Petitioner within its remedial order.

It is submitted that it has long been settled that a Federal 
District Court must have jurisdiction over those parties whose 
interests are to be affected by the relief to be granted in the final 
decree. Such parties are indispensable, or at least necessary, to the 
proceedings. Shields v. Barrow, 17 How. 129, 139, 15 L.Ed, 158 
(1854), cited with approval in Waterman v. Canal-Louisiana Bank 
Co., 215 U.S. 33, 48, 30 S.Ct. 10, 54 L.Ed. 80 (1909), and Niles- 
Bement-Pond Co. v. Iron Moulders Union, 254 U.S. 80, 41 S.Ct. 
39 (1920). Atwood v. National Bank o f Lima, 1 15 F.2d 861 (6th 
Cir., 1940). Bell v. School Board o f Powhatan County, Va., 321 
F.2d 494, (4th Cir., 1963). Rule 19, Federal Rules of Civil Proce­
dure, Title 28, U.S.C. Such rule is reflective of the party’s right to 
notice and due process and the limitations upon the jurisdiction of 
the District Court.

In determining whether a party is indispensable, the Court



8

must initially determine the nature and extent of the party’s 
interests. The rights and interests of parties are to be determined 
under the state’s substantive law. Hertz v. Record Publishing Com­
pany o f Erie, 219 F.2d 397,400, (3rd Cir., 1955), cert, denied 349 
U.S. 912, 75 S.Ct. 601, 99 L.Ed. 1247, (1955). Thaxton v. 
Vaughn, 321 F.2d 474 (4th Cir., 1963). Covington v. Edwards, 
264 F.2d 780 (4th Cir., 1959). Jet v. Zink, 362 F.2d 723, (5th 
Cir., 1966). McKissich v. Durham City Board o f Education, 176 
F.Supp. 3, (M.D.N.C., 1959). Jeffers v. Whitley, 165 F.Supp. 951, 
955 (N.D.N.C., 1958).

It is thus submitted that the laws of the State of Michigan are 
determinative of whether the Petitioner is vested with such rights 
and interests that it was an indispensable party to the proceedings 
which resulted in the June 14, 1972 Ruling and Order.

The laws of the State of Michigan clearly provide that School 
Districts are public corporate bodies empowered to sue and be 
sued, acquire, hold, and convey real and personal property and 
exercise general plenary power over the educational system within 
its boundaries. M.C.L.A. §340.352; M.S.A. § 15.3352; Marathon 
School District No. 4 v. Gage, 39 M. 484 ( ISIS)', Public Schools of 
Battle Creek v. Kennedy, 245 M. 585 (1929); King v. School Dis­
trict No. 5, 261 M. 604 (1933). Illustrations of such plenary 
powers are set forth in Appendix C, Pages 21a-22a).

It is specifically noted at this juncture that the State Board of 
Education is charged by the Michigan Constitution with the:

“leadership and general supervision over all public education 
. . . [and is to serve as] the general planning and coordinating

body of all public education . . .” Michigan Constitution,
Article VII, §3,(1963)

But there is a clear dichotomy between the general supervisory 
authority vested in the State Board of Education and the Super­
intendent of Public Instruction, and the specific and detailed 
authority vested exclusively in the school districts. (Appendix C, 
pages 21a-22a).

The distinctions drawn, and the limitations imposed, by state 
law in this regard must be observed by the District Court.



9

Covington v. Edwards, 264 F.2d 780, 783 (4th Cir., 1959). Bell v. 
School Board o f Powhatan County, Va., 321 F.2d 494, 499 (4th 
Cir., 1963). Jeffers v. Whitley, 165 F.Supp. 951, 955 (N.D.N.C., 
1958). Bradley v. School Board o f Richmond, Virginia, 51 F.R.D. 
139, 143 (E.D. Va., 1970) rev’d. on other grounds 462 F.2d 1058 
(4th Cir., 1972). c.f. Thaxton v. Vaughan, 321 F.2d 474 (4th Cir., 
1963).

The state law determines the repository of the specific 
powers and interests at issue, and in analogous situations it has 
been held that the indispensable party is the state agency or sub­
division which has the specific authority to make pupil assign­
ments and exercise other specific powers necessary to effectuate 
the dictates of a remedial order. The Petitioner is vested with such 
authority with respect to the students being educated within its 
geographical borders. There is an irreconciliable conflict between 
the District Court’s June 14, 1972 Ruling and Order and Peti­
tioner’s rights and powers established by the laws of Michigan. 
Illustrations of such conflicts are set forth in Appendix C, 
pages 16a-18a.

It is respectfully submitted that only the Birmingham School 
District has the specific statutory authority to make pupil assign­
ments and exercise the other specific powers necessary to effec­
tuate the District Court’s Order of June 14, 1972. It is further sub­
mitted that the broad powers and interests vested by state law in 
the Birmingham School District were affected by the District 
Court’s June 14, 1972 Order in such a severe and substantial man­
ner that it was an indispensable party to the proceedings.

It is undisputed that the Birmingham School District is not, 
and never has been, a party to Bradley. Nor is the State of 
Michigan a party to this litigation. The Officers of the State, in­
cluding the Governor, Attorney General, Treasurer, and Super­
intendent of Public Instruction are not vested with any plenary 
powers with regard to Petitioner and, as noted above, while the 
State Board of Education is given the responsibility of general 
supervision and leadership, the school districts alone are given the 
plenary power to operate the school system.



1 0

It is therefore submitted that the State Board of Education 
and the Acting Superintendent of Public Instruction are not the 
alter ego of the Fifty-Three (53) school districts sought to be 
bound by the Court’s June 14, 1972 Order and, under state law, 
jurisdiction over the current State Defendants does not confer, nor 
may it stand in the place of, jurisdiction over the Birmingham 
School District. The Petitioner’s rights to notice and hearing on 
the merits are independent from those of the current State 
Defendants.

* ❖  *

The Birmingham School District submits that District Court 
has exceeded the lawful existence of its prescribed jurisdiction and 
seeks the Writs traditionally used to confine an inferior court to a 
lawful exercise of its prescribed jurisdiction. Roche v. Evaporated 
Milk Association, 319 U. S. 21 (1943) at 26. The totally unknown 
effects which massive tri-county bussing may have upon the educa­
tion and safety of the school children involved in the June 14, 
1972 Order, as well as the indeterminable cost in time and dollars 
of the Order’s implementation, make this matter of “public 
importance” and thus a “case appropriate for the extraordinary 
writs” . Morrow v. District o f Columbia, 417 F.2d 728 (C.A.D.C., 
1969), at 736,737.

The extraordinary writs are the only viable remedy open to 
Petitioner. Attempted intervention in the proceedings at this time, 
even if successful, would provide no relief, since the District Court 
has already proceeded to a final judgment that the Birmingham 
School District is to be included in the “desegregation area”. The 
principal case of Bradley, et al. v. Milliken, et ah, has been 
appealed to the United States Court of Appeals for the Sixth Cir­
cuit and bears Docket No. 72-8002. Oral arguments were held in 
the principal litigation on August 24, 1972. Because it is not a 
party, Petitioner may not appeal Respondent’s June 14, 1972 
Ruling and Order and was not a participant in that appeal. The 
Birmingham School District should not be deprived of its rights, 
under the rules of procedural due process, to a fair hearing in this 
matter.



i l

Conclusion

For the reasons set forth above, Petitioner prays for the 
issuance of Writ of Certiorari to the Court of Appeals for the Sixth 
Circuit.

Respectfully submitted,

THOMAS H. SCHWARZE and 
CHARLES E. KELLER 
Attorneys for Petitioner,
School District of the City of 

Birmingham, Michigan



INDEX TO APPENDIX

A. Ruling on Desegregation Area and Order For Develop­
ment of Plan of Desegregation, June 14, 1972 . . . . . . . .  la

B. Order of United States District Court, Eastern District
of Michigan, Southern Division, July 20, 1972 ........... .. 10a

C. Petition For Writ of Prohibition and Mandamus . . . . . .  12a

D. Order of United States Court of Appeals for the Sixth
Circuit Denying Application For Writ of Prohibition 
and/or Mandamus, August 7, 1972 ................... .. 31a

E. Petition For Rehearing of Petition For Writ of Pro­
hibition and/or Mandamus  .......... .. 32a

F. Order of United States Court of Appeals for the Sixth 
Circuit Denying Petition For Rehearing, September 5,
1972  .......... .................................................. ............35a



la

APPENDIX A

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, AMER­
ICAN FEDERATION OF TEACH­
ERS, AFL-CIO,

CIVIL ACTION 
No. 35257

and

Defendant-
Intervenor

DENISE MAGDOWSKI, et al.,
Defendants-

et al.
Intervenor

RULING ON DESEGREGATION AREA
AND

ORDER FOR DEVELOPMENT OF PLAN OF DESEGREGATION

On September 27, 1971 the court made its Ruling on Issue of 
Segregation, holding that illegal segregation exists in the public 
schools of the City of Detroit as a result of a course of conduct on 
the part of the State of Michigan and the Detroit Board of 
Education. Having found a constitutional violation as established, 
on October 4, 1971 the court directed the school board 
defendants, City and State, to develop and submit plans of 
desegregation, designed to achieve the greatest possible degree of 
actual desegregation, taking into account the practicalities of the 
situation. The directive called for the submission of both a



2a

“Detroit-only” and a “Metropolitan” plan.

Plans for the desegregation of the Detroit schools were 
submitted by the Detroit Board of Education and by the 
plaintiffs. Following five days of hearings the court found that 
while plaintiffs’ plan would accomplish more desegregation than 
now obtains in the system, or which would be achieved under 
either Plan A or C of the Detroit Board of Education submissions, 
none of the plans would result in the desegregation of the public 
schools of the Detroit school district. The court, in its findings of 
fact and conclusions of law, concluded that ‘ relief of segregation 
in the Detroit public schools cannot be accomplished within the 
corporate geographical limits of the city,” and that it had the 
authority and the duty to look beyond such limits for a solution 
to the illegal segregation in the Detroit public schools. 
Accordingly, the court ruled, it had to consider a metropolitan 
remedy for segregation.

The parties submitted a number of plans for metropolitan 
desegregation. The State Board of Education submitted six - 
without recommendation, and without indication any preference. 
With the exception of one of these, none could be considered as 
designed to accomplish desegregation. On the other hand the 
proposals of intervening defendant Magdowski, et ah, the Detroit 
Board of Education and the plaintiffs were all good faith efforts to 
accomplish desegregation in the Detroit metropolitan area. The 
three plans submitted by these parties have many similarities, and 
all of them propose to incorporate, geographically, most-and in 
one instance, all—of the three-county area of Wayne, Oakland and 
Macomb.

The hearing on the proposals have set the framework, and have 
articulated the criteria and considerations, for developing and 
evaluating an effective plan of metropolitan desegregation. None 
of the submissions represent a complete plan for the effective and 
equitable desegregation of the metropolitan area, capable of 
implementation in its present form. The court will therefore draw 
upon the resources of the parties to devise, pursuant to its 
direction, a constitutional plan of desegregation of the Detroit 
public schools.



3a

Based on the entire record herein, the previous oral and written 
rulings and orders of this court, and the Findings of Fact and 
Conclusions of Law filed herewith, IT IS ORDERED:

I.

A. As a panel charged with the responsibility of preparing and 
submitting an effective desegretation plan in accordance with the 
provisions of this order, the court appoints the following:

1. A designee of the State Superintendent of Public
Instruction;*

2. Harold Wagner, Supervisor of the Transportation Unit in
the Safety and Traffic Education Program of the State
Department of Education;

3. Merle Henrickson, Detroit Board of Education;

4. Aubrey McCutcheon, Detroit Board of Education;

5. Freeman Flynn, Detroit Board of Education;

6. Gordon Foster, expert for plaintiffs;

7. Richard Morshead, representing defendant Magdowski, et 
ah;

8. A designee of the newly intervening defendants;*

9. Rita Scott, of the Michigan Civil Rights Commission.

Should any designated member of this panel be unable to serve, 
the other members of the panel shall elect any necessary 
replacements, upon notice to the court and the parties. In the 
absence of objections within five days of the notice, and pending a 
final ruling, such designated replacement shall act as a member of 
the panel.

*The designees of the State Superintendent of Public Instruction and newly 
intervening defendants shall be com m unicated to  the court w ithin seven days 
of the entry of this order. In the  event the newly intervening defendants 
cannot agree upon a designee, they may eacii subm it a nom inee w ithin seven 
days from the entry of this order, and the  court shall select one of the 
nominees as representative of said defendants.



4a

B. As soon as possible, but in no event later than 45 days after 
the issuance of this order, the panel is to develop a plan for the 
assignment of pupils as set forth below in order to provide the 
maximum actual desegregation, and shall develop as well a plan for 
the transportation of pupils, for implementation for all grades, 
schools and clusters in the desegregation area. Insofar as required 
by the circumstances, which are to be detailed in particular, the 
panel may recommend immediate implementation of an interim 
desegregation plan for grades K-6, K-8 or K-9 in all or in as many 
clusters as practicable, with complete and final desegregation to 
proceed in no event later than the fall 1973 term. In its 
transportation plan the panel shall, to meet the needs of the 
proposed pupil assignment plan, make recommendations, includ­
ing the shortest possible timetable, for acquiring sufficient 
additional transportation facilities for any interim or final plan of 
desegregation. Such recommendations shall be filed forthwith and 
in no event later than 45 days after the entry of this order. Should 
it develop that some additional transportation equipment is 
needed for an interim plan, the panel shall make recommendations 
for such acquisition within 20 days of this order.

C. The parties, their agents, employees, successors and all others 
having actual notice of this order shall cooperate fully with the 
panel in their assigned mission, including, but not limited to, the 
provision of data and reasonable full and part-time staff assistance 
as requested by the panel. The State defendants shall provide 
support, accreditation, funds, and otherwise take all actions 
necessary to insure that local officials and employees cooperate 
fully with the panel. All reasonable costs incurred by the panel 
shall be borne by the State defendants; provided, however, that 
staff assistance or other services provided by any school district, 
its employees or agents, shall be without charge, and the cost 
thereof shall be borne by such school district.

II.

A. Pupil reassignment to accomplish desegregation of the 
Detroit public schools is required within the geographical area 
which may be described as encompassing the following school 
districts (see Exhibit P.M. 12), and hereinafter referred to as the 
“desegregation area” :



5a

Lakeshore Birmingham Fair lane
Lakeview Hazel Park Garden City
Roseville Highland Park North Dearborn Heights
South Lake Royal Oak Cherry Hill
East Detroit Berkley Inkster
Grosse Pointe Ferndale Wayne
Centerline Southfield Westwood
Fitzgerald Bloomfield Hills E corse
Van Dyke Oak Park Romulus
Fraser Redford Union Taylor
Harper Woods West Bloomfield River Rouge
Warren Clarenceville Riverview
Warren Woods Farmington Wyandotte
Clawson Livonia Allen Park
Hamtramck South Redford Lincoln Park
Lamphere Crestwood Melvindale
Madison Heights Dearborn Southgate
Troy Dearborn Heights Detroit

Provided, however, that if in the actual assignment of pupils it 
appears necessary and feasible to achieve effective and complete 
racial desegregation to reassign pupils of another district or other 
districts, the desegregation panel may, upon notice to the parties, 
apply to the Court for an appropriate modification of this order.

B. Within the limitations of reasonable travel time and distance 
factors, pupil reassignments shall be effected within the clusters 
described in Exhibit P.M. 12 so as to achieve the greatest degree of 
actual desegregation to the end that, upon implementation, no 
school, grade or classroom be substantially disproportionate to the 
overall pupil racial composition. The panel may, upon notice to 
the parties, recommend reorganization of clusters within the 
desegregation area in order to minimize administrative inconven­
ience, or time and/or numbers of pupils requiring transportation.

C. Appropriate and safe transportation arrangements shall be 
made available without cost to all pupils assigned to schools 
deemed by the panel to be other than “walk-in” schools.

D. Consistent with the requirements of maximum actual 
desegregation, every effort should be made to minimize the 
numbers of pupils to be reassigned and requiring transportation, 
the time pupils spend in transit, and the number and cost of new 
transportation facilities to be acquired by utilizing such techniques 
as clustering, the “skip” technique, island zoning, reasonable



6a

staggering of school hours, and maximization of use of existing 
transportation facilities, including buses owned or leased by school 
districts and buses operated by public transit authorities and 
private charter companies. The panel shall develop appropriate 
recommendations for limiting transfers which affect the 
desegregation of particular schools.

E. Transportation and pupil assignment shall, to the extent 
consistent with maximum feasible desegregation, be a two-way 
process with both black and white pupils sharing the responsibility 
for transportation requirements at all grade levels. In the 
determination of the utilization of existing, and the construction 
of new, facilities, care shall be taken to randomize the location of 
particular grade levels.

F. Faculty and staff shall be reassigned, in keeping with pupil 
desegregation, so as to prevent the creation or continuation of the 
identification of schools by reference to past racial composition, 
or the continuation ot substantially disproportionate racial 
composition of the faculty and staffs, of the schools in the 
desegregation area. The faculty and staffs assigned to the schools 
within the desegregation area shall be substantially desegregated, 
bearing in mind, however, that the desideratum is the balance of 
faculty and staff by qualifications for subject and grade level, and 
then by race, experience and sex. In the context of the evidence in 
this case, it is appropriate to require assignment of no less than 
10% black faculty and staff at each school, and where there is 
more than one building administrator, every effort should be made 
to assign a bi-racial administrative team.

G. In the hiring, assignment, promotion, demotion, and 
dismissal of faculty and staff, racially non-discriminatory criteria 
must be developed and used; provided, however, there shall be no 
reduction in efforts to increase minority group representation 
among faculty and staff in the desegregation area. Affirmative 
action shall be taken to increase minority employment in all levels 
of teaching and administration.

H. The restructuring of school facility utilization necessitated 
by pupil reassignments should produce schools of substantially 
like quality, facilties, extra-curricular activities and staffs; and the



7a

utilization of existing school capacity through the desegregation 
area shall be made on the basis of uniform criteria.

I. The State Board of Education and the State Superintendent 
of Education shall with respect to all school construction and 
expansion, “consider the factor of racial balance along with other 
educational considerations in making decisions about, new school 
sites, expansion of present facilties * * and shall, within the 
desegregation area disapprove all proposals for new construction 
or expansion of existing facilties when “housing patterns in an 
area would result in a school largely segregated on racial * * * 
lines,” all in accordance with the 1966 directive issued by the 
State Board of Education to local school boards and the State 
Board’s “School Plant Planning Handbook” (see Ruling on Issue 
of segregation, p. 13.).

J. Pending further orders of the court, existing school district 
and regional boundaries and school governance arrangements will 
be maintained and continued, except to the extent necessary to 
effect pupil and faculty desegregation as set forth herein; 
provided, however, that existing administrative, financial, 
contractual, property and governance arrangements shall be 
examined, and recommendations for their temporary and 
permanent retention or modification shall be made, in light of the 
need to operate an effectively desegregated system of schools.

K. At each school within the desegregated area provision shall 
be made to insure that the curriculum, activities, and conduct 
standards respect the diversity of students from differing ethnic 
backgrounds and the dignity and safety of each individual, 
students, faculty, staff and parents.

L. The defendants shall, to insure the effective desegregation 
of the schools in the desegregation area, take immediate action 
including, but not limited to, the establishment or expansion of 
in-service training of faculty and staff, create bi-racial committees, 
employ black counselors, and require bi-racial and non-discrimin- 
atory extra-curricular activities.

III.

The State Superintendent of Public Instruction, with the



8a

assistance of the other state defendants, shall examine, and make 
recommendations, consistent with the principles established 
above, for appropriate interim and final arrangements for the (1) 
financial, (2) administrative and school governance, and (3) 
contractual arrangements for the operation of the schools within 
the desegregation area, including steps for unifying, or otherwise 
making uniform the personnel policies, procedures, contracts, and 
property arrangements of the various school districts.

Within 15 days of the entry of this order, the Superintendent 
shall advise the court and the parties of his progress in preparing 
such recommendations by filing a written report with the court 
and serving it on the parties. In not later than 45 days after the 
entry of this order, the Superintendent shall file with the court his 
recommendations for appropriate interim and final relief in these 
respects.

In his examination and recommendations, the Superintendent, 
consistent with the rulings and orders of this court, may be 
guided, but not limited, by existing state law; where state law 
provides a convenient and adequate framework for interim or 
ultimate relief, it should be followed, where state law either is 
silent or conflicts with what is necessary to achieve the objectives 
of this order, the Superintendent shall independently recommend 
what he deems necessary. In particular, the Superintendent shall 
examine and choose one appropriate interim arrangement to 
oversee the immediate implementation of a plan of desegregation.

IV.

Each party may file appropriate plans or proposals for inclusion 
in any final order which may issue in this cause. The intent of this 
order is to permit all the parties to proceed apace with the task 
before us: fashioning an effective plan lor the desegregation of the 
Detroit public schools.

Fifteen days after the filing of the reports required herein, 
hearings will begin on any proposal to modify any interim plan 
prepared by the panel and all other matters which may be incident 
to the adoption and implementation of any interim plan of 
desegregation submitted. The parties are placed on notice that 
they are to be prepared at that time to present their objections,



9a

alternatives and modifications. At such hearing the court will not 
consider objections to desegregation or proposals offered 
“instead” of desegregation.

Hearings on a final plan of desegregation will be set as 
circumstances require.

DATE: JUNE 14, 1972.

/s/ Stephen J. Roth 
United States District Judge



10a

APPENDIX B

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs

v.
WILLIAM G. MILLIKEN, et al.,

Defendants
DETROIT FEDERATION OF TEACH­

ERS LOCAL NO. 231, AMERICAN 
FEDERATION OF TEACHERS, 
AFL-CIO,

Defendant-
Intervenor

and
DENISE MAGDOWSKI, et al.,

Defendants-
Intervenor

CIVIL ACTION 
NO. 35257

et al.

ORDER

At a session of said court held in the Federal Building, City of 
Flint, County of Genesee, on this 19th day of JULY, A.D. 
1972.

PRESENT: HONORABLE STEPHEN J. ROTH, United
States District Judge.

This court having heard oral motions on July 19, 1972, for 
entry of judgments in accordance with the provisions of Fed. R. 
Civ. P. 54(b) and for certification under the provisions of 28 
U.S.C. 1292(b) in connection with certain orders and rulings of 
the court heretofore entered; the court determines for the pur­



11a

pose of appeal, and subject to this court’s statements at the hear­
ing on July 19, 1972, that there is no just reason for delay and 
that each of the following orders:

1. Ruling on Issue of Segregation, September 27, 1971;
2. Ruling on Propriety of Considering a Metropolitan Reme­

dy to Accomplish Desegregation of the Public Schools of 
the City of Detroit, March 24, 1972;

3. Findings of Fact and Conclusions of Law on Detroit-only 
Plans of Desegregation, March 28, 1972;

4. Ruling on Desegregation Area and Development of Plan, 
and Findings of Fact and Conclusions of Law in Support 
thereof, June 14, 1972; and

5. Order for Acquisition of Transportation, July 11, 1972

shall be deemed final orders under Rule 54(b) of the Fede­
ral Rules of Civil Procedure and the court certifies the is­
sues presented therein under the provisions of 28 U.S.C. 
1292(b).

/s/ Stephen J. Roth 
United States District Judge

DATE: July 20, 1972 
TIME: 8:30 a.m.



12a

APPENDIX C

UNITED STATES OF AMERICA 
IN THE COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

SCHOOL DISTRICT OF THE CITY OF 
BIRMINGHAM, OAKLAND COUN­
TY, MICHIGAN,

Petitioner,
-vs-

THE HONORABLE STEPHEN J. 
ROTH, DISTRICT JUDGE FOR THE 
EASTERN DISTRICT OF MICHI­
GAN, SOUTHERN DIVISION ,

Respondent.

PETITION FOR WRIT OF PROHIBITION 
AND/OR MANDAMUS

KELLER, THOMA, McMANUS, 
TOPPIN & SCHWARZE 

A ttorneys for Petitioner 
1600 Penobscot Building 
Detroit, Michigan 48226 
(313) 965-7610



13a

UNITED STATES OF AMERICA 
IN THE COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

SCHOOL DISTRICT OF THE CITY OF 
BIRMINGHAM, OAKLAND COUN­
TY, MICHIGAN,

Petitioner,
-vs- No.

THE HONORABLE STEPHEN J. 
ROTH, DISTRICT JUDGE FOR THE 
EASTERN DISTRICT OF MICHI­
GAN, SOUTHERN DIVISION,

Respondent.

PETITION FOR WRIT OF PROHIBITION 
AND/OR MANDAMUS

TO: THE HONORABLE JUDGES OF THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

NOW COMES the School District of the City of Birmingham, 
Oakland County, Michigan, (hereinafter referred to as the Birming­
ham School District), by its attorneys, Keller, Thoma, McManus, 
Toppin & Schwarze, and petitions this Court, pursuant to Section 
1651 of Title 28 of the United States Code and Rule 21 of the 
Federal Rules of Appellate Procedure, to issue a Writ of Prohibi­
tion and/or Mandamus directed to Respondent, Stephen J. Roth, 
Judge of the United States District Court for the Eastern District 
of Michigan, and does respectfully show unto this Honorable 
Court as follows:

I. STATEMENTS OF FACTS

Petitioner is a School District organized under the laws of the 
State of Michigan, more specifically Act 269 of Public Acts of 
1955 as amended, M.C.L.A. 340.1, et seq., and M.S.A. 15.3001, et 
seq., and is classified as a third class district. Petitioner owns and 
maintains Two (2) Senior High Schools, Five (5) Junior High 
Schools, and Eighteen (18) Elementary Schools. During the



14a

1971-72 school year, Petitioner had an enrollment of Sixteen 
Thousand Six Hundred Thirty-Six (16,636) students, Seven 
Thousand Eight Hundred Ninety-Two (7,892) of whom were in 
grades K-6.

Litigation, hereinafter more completely identified in Exhibit 
“A” attached hereto, and for brevity referred to herein as Bradley, 
et al. v. Milliken, et al., being Civil Action No. 35257 in the United 
States District Court for the Eastern District of Michigan, South­
ern Division, was commenced on August 18, 1970, by filing of a 
Complaint which alleged the unconstitutionality of a Michigan Stat­
ute which was applicable only to the City of Detroit School District 
and further claimed that Plaintiffs’ constitutional rights were vio - 
lated because of the segregated pattern of pupil assignments and 
racial identifiability of schools within the City of Detroit School 
System. The Complaint has never been amended and at no time 
have the pleadings alleged that any school system other than the 
Detroit system has failed to maintain a unitary system of schools. 
A trial on the question of de jure segregation in the Detroit 
schools was held in Respondent’s Court and concluded on July 22, 
1971. On September 27, 1971, Respondent entered his “Ruling 
on Issue of Segregation” which was limited to the finding that ille­
gal segregation exists in the public schools of the City of Detroit. 
Notwithstanding these limitations on its own findings, the District 
Court on March 28, 1972, announced that a “Metropolitan Plan” 
would be required to accomplish desegregation of the Detroit 
School District. Thereafter, on June 14, 1972, the District Court 
entered its Order identifying the “de-segregation area” along with 
some Fifty-Three (53) other school districts all outside the limits 
of the Detroit School District.

On July 20, 1972, the District Court ordered the entry of 
judgments in accordance with the provisions of Federal Rules of 
Civil Procedure 54(b) and for certification under the provisions of 
28 U.S.C. 1292(b) of certain of its rulings and orders, one of 
which was its order of June 14, 1972 (see Exhibit “C”, 114).

Petitioner is not, and has not been, a party to the above pro­
ceedings, nor has any claim ever been made that Petitioner has 
committed any act of de jure segregation. Nonetheless, Petitioner 
was included in the “desegregation area” and ordered to “cooper­



15a

ate fully” ̂  with a Court-selected panel of individuals who were 
charged by the District Court with the responsibility of developing 
details of the de-segregation plan for the area delineated by the 
District Court in its June 14, 1972, Order. The District Court em­
powered the panel to

“recommend immediate implementation of an interim de-seg­
regation plan for grades K-6, K-8, or K-9 in all or in as many 
clusters as practicable, with complete and final desegregation 
to proceed in no event later than the fall 1973 term.”2

II. STATEMENT OF ISSUES PRESENTED
A. WAS, AND IS, THE PETITIONER AN INDISPENSABLE 

PARTY TO THE PROCEEDINGS IN THE DISTRICT 
COURT?
Petitioner submits that the answer should be in the 
affirmative.

B. DID THE DISTRICT COURT HAVE JURISDICTION 
OVER THE PETITIONER?
Petitioner submits that the answer should be in the nega­
tive.

C. DID THE RESPONDENT’S JUNE 14, 1972 ORDER, 
AND WOULD ENFORCEMENT OF THE ORDER, DE­
PRIVE THE PETITIONER OF DUE PROCESS OF LAW 
AND CONTRAVENE THE FEDERAL RULES OF 
CIVIL PROCEDURE, TITLE 28 U.S.C.?
Petitioner submits that the answer should be in the 
affirmative.

I ll. STATEMENT OF THE CASE
It is submitted that the District Court’s Order of June 14, 

1972 is void as applied to the Birmingham School District because 
it deprives the Birmingham School District of its authority, rights, 
and interests, vested by state law, in disregard of the Federal Rules 
of Civil Procedure and the rules of procedural due process.

* Reference, Exhibit “ B” : fll.C.

2 Reference, Exhibit “ B” , n I.B.



16a

Specifically, the June 14, 1972, Order calls for the exercise of 
powers by the Court-appointed panel which, under the laws of the 
State of Michigan, are clearly and specifically reserved to the re­
spective school districts. The implementation of the June 14, 
1972, Order is in direct conflict with the laws of Michigan. In par­
ticular, the District Court ordered the following:

1. “Pupil reassignment to accomplish desegregation of the 
Detroit Public Schools is required within . . . the ‘desegre­
gation area’ . . .  ”3

Yet, under the laws of Michigan, the assignment of pupils is reserv­
ed to each school district. State law provides:

“In districts where provision is made for kindergarten work, 
all children, residents of the district, shall be entitled to enroll 
in the kindergarten . . .” (CL ’48, §340.357; M.S.A. 
§ 15.3357)

“All persons, residents of a school district not maintaining a 
kindergarten, and at least 5 years of age on the first day of 
enrollment of the school year, shall have an equal right to 
a ttend  school th e re in .” (CL ’48, §340.356; M.S.A.
§ 15.3356)

“Every board shall establish and carry on such grades, schools 
and departments as it shall deem necessary or desirable for 
the maintenance and improvement of the schools; determine 
the courses of study to be pursued and cause the pupils at­
tending school in such district to be taught in such schools or 
departments as it may deem expedient: Provided, That a pri­
mary district shall not operate any grades above the eighth.” 
(CL’48, §340.583; M.S.A. § 15.3583.)

2. “Appropriate and safe transportation arrangements shall 
be made available without cost to all pupils . . .”4

3 Reference, Exhibit “ B” : n II. A., Page 5.

4 Reference, Exhibit “ B” , f II. C., Page 6.



17a

The transportation of resident and non-resident pupils is reserved 
to the school districts. State law provides:

“Every board shall have authority to make reasonable rules 
and regulations relative to anything whatever necessary for 
the proper establishment, maintenance, management and 
carrying on of the public schools of such district, including 
regulations relative to the conduct of pupils concerning their 
safety while in attendance at school or enroute' to and from 
school.” (CL ’48, §340.614; M.S.A. §15.3615)
“The board of any school district may enter into a contract 
with any other district or with private individuals to furnish 
transportation for nonresident pupils attending public [and 
state approved nonpublic] schools located within such dis­
trict or in other districts. . . .” (CL ’48, §340.591; M.S.A. 
§ 15.3591)
“When nonresident pupils, their parents or guardians, pay 
school taxes in said district and such pupils are admitted to 
schools in the district, the amount of such total current 
school taxes shall be credited on their tuition and transporta­
tion in a sum not to exceed the amount of such tuition and 
transportation for only the difference therein.” (CL ’48, 
§340.359; M.S.A. § 15.3359)
3. “At each school within the desegregated area provision 

shall be made to insure that the curriculum, activities, and 
conduct standards respect the diversity of students from 
differing ethnic backgrounds and the dignity and safety of 
each individual, students, faculty, staff and parents.”5

Control of the educational program is a power reserved to the 
school districts. State law provides:

“The board of any school district of the third class hereunder 
shall have the powers and duties:

(a) To establish and carry on such grades, schools and de­
partments or courses of study as it shall deem necessary or 
desirable for the maintenance and improvement of public ed­
ucation;” (CL ’48, § 340.114; M.S.A. §15.3114)

5 Reference, Exhibit “ B” , n II. K., Page 9.



18a

4. “Pending further orders of the Court, existing school dis­
trict and regional boundaries and school governance ar­
rangements will be maintained and confirmed, except to 
the extent necessary to effect pupil and faculty desegrega­
tion as set forth herein . . .”6

The implementation of the consolidation and annexation of 
school districts is reserved to the school districts and its residents. 
State law provides:

“Any school district shall become annexed to another school 
district whenever the board of the annexing district shall have 
by resolution so determined and a majority of the qualified 
school electors of the district becoming annexed, voting on 
the question at an annual or special election, shall have 
approved such annexation...” (CL ’48, § 340.431; M.S.A. 
§ 15.3431.)
“The question of establishing a consolidated school district 
shall be submitted to the school electors at a special election 
held for such pu rpose ...” (CL ’48, §340.407; M.S.A. 
15.3407.)
5. “Faculty and staff shall be reassigned, in keeping with 

pupil desegregation . . .”7
The authority to hire and contract with teachers and staff em­
ployees is reserved to each school district. State law provides:

“The board of every district shall hire and contract with such 
duly qualified teachers as may be required. All contracts with 
teachers shall be in writing and signed by a majority of the 
board in behalf of the district, or by the president and secre­
tary, or by the superintendent of schools [or his designee] 
when so directed at a meeting of the board . . .” (CL ’48, 
§340.569; M.S.A. § 15.3569)

IV. REASONS WHY WRIT SHOULD ISSUE
A. THE DISTRICT COURT’S ORDER OF JUNE 14, 1972, 

IS IN CONTRAVENTION OF THE FEDERAL RULES

6 Reference, Exhibit “ B” , n IE J., Page 8. 
^ Reference, Exhibit “ B” , n II. F., Page 7.



19a

OF CIVIL PROCEDURE, TITLE 28, U.S.C. AND PRO­
CEDURAL DUE PROCESS.

1. The Birmingham School District Was (And Is) An Indis­
pensable Party To The Proceedings In The District Court.

a. The laws o f the State o f Michigan determine which 
parties are to be deemed indispensable.

The Rule is well settled that a Federal District Court must 
have in personam jurisdiction over all indispensable parties to the 
litigation and that no District Court should proceed to a final de­
cision without them. Shields v. Barrow, 17 How. 129, 15 L.Ed. 
158 (1854); Atwood v. National Bank o f Lima, 115 F.2d 861 (6th 
Cir., 1940); Baker v. Dale, 123 F. Supp. 364, (W.D.Mo., 1954); 
Rule 19, Federal Rules of Civil Procedure, Title 28, U.S.C.

Indispensable parties are:
“Persons who not only have an interest in the controversy, 
but an interest of such nature that a final decree cannot be 
made without either affecting that interest, or leaving the 
controversy in such a condition that its final termination may 
be wholly inconsistent with equity and good conscience.” 
(emphasis added)

Shields v. Barrow, 17 How. 129, 139, 15 L.Ed. 158 (1854), cited 
with approval in Waterman v. Canal-Louisiana Bank Co., 215 U.S. 
33, 48, 30 S.Ct. 10, 54 L.Ed. 80 (1909), and Niles-Bement-Pond 
Co. v. Iron Moulders Union, 254 U.S. 80, 41 S.Ct. 39 (1920). See 
also Trans-Pacific Corp. v. South Seas Enterprises, Ltd., 291 F.2d 
43 5 (9 th  Cir., 1961), Grace v. Carroll, 219 F. Supp. 270, 
(S.D.N.Y., 1963), 3 Moore, Federal Practice, 2150 (2d ed., 1948).

In determining whether a party is indispensable, the Court 
must initially determine the nature and extent of the party’s inter­
ests. Here again, the rule is well-settled: The rights and interests of 
parties are to be determined under the state’s substantive law.

“After those rights and interests have been ascertained by 
state law, a federal court will determine indispensability of a 
party according to its own rules, taking into consideration 
whether justice can be done and complete relief afforded. 
This will depend, o f course, on the substantive rights created



20a

by the state. ” (emphasis added)
Hertz v. Record Publishing Company o f Erie, 219 F.2d 

397,400, (3rd Cir., 1955), cert, denied 349 U.S. 912, 75 S.Ct. 
601, 99 L.Ed. 1247 (1955). Jet v. Zink, 362 F.2d 723, (5th Cir., 
1966); Baker v. Dale, 123 F. Supp. 364, (W.D. Mo., 1954), (apply­
ing Rule 19 of Federal Rules of Civil Procedure, Title 28, U.S.C.). 
See also 3 Moore, Federal Practice, § 19.07; Grace v. Carroll, 219 
F. Supp. 270, 272 (S.D.N.Y., 1963); Richmond Lace Works, Inc. 
v. Epstein, 31 F.R.D . 150 (S.D.N.Y., 1962); Dunham v. 
Robertson, 198 F.2d 316 (10th Cir., 1952);Cf. Koresev. General 
Steel Castings Corp., 179 F.2d 760 n.l, 15 ALR2d 1117 (3rd Cir., 
1950); Brainiff Airways v. Falkinham, 20 F.R.D. 141 (D. Minn., 
1957).

The above rules have been consistently applied in the particu­
lar context of those civil rights actions commenced under federal 
law. In Jeffers v. Whitley, 165 F.Supp. 951 (N.D.N.C., 1958), 
Plaintiffs alleged, inter alia, that the schools operated within a 
county-wide school district:

. . are being operated on a segregated basis, pursuant to the 
direction and authority of the State Constitution, State 
Statutes, and State administrative orders and legislative poli­
cy.” 165 F.Supp. at 952

Plaintiffs sued the County Superintendent of Public Schools and 
the County School Board as well as the State Superintendent of 
Instruction and the individual members of the State Board of Edu­
cation. The Court dismissed the action as to the state officials:

“In passing on the question of whether or not the State 
Board of Education and the State Superintendent of Public 
Instruction (hereinafter referred to as the ‘State Officials’) are 
indispensable and necessary parties to this action, we must 
look to the allegations of the original complaint and the pro­
posed supplemental complaint, including the nature of relief 
sought, and the public school laws o f the State o f North Car­
olina, o f which we must take judicial notice, to determine if 
any decree granting the relief sought will require the state 
officials to take action by exercising any power lodged in 
them, . . .” (emphasis added) (165 F.Supp. at 955)



21a

Also see McKissich v. Durham City Board o f Education, 176 
F.Supp. 3, (M.D.N.C., 1959); Covington v. Edwards, 264 F.2d 780 
(4th Cir., 1959); Thaxton v. Vaughn, 321 F.2d 474 (4th Cir., 
1963).

In the very specific context of those civil rights actions com­
menced under federal law, which involve the possibility of the 
transfer of students from one school district to another, the same 
rule has been applied: State law determines the indispensability of 
the school districts. Bradley v. School Board o f Richmond, Vir­
ginia, 51 F.R.D. 139, 143 (E.D.Va., 1970).

It is thus submitted that state law must be consulted in deter­
mining whether the Birmingham School District was (and is) an 
indispensable party to Bradley, et al. v. Midi ken, et al.

b. Under the laws o f the State o f Michigan, the Birming­
ham School District is vested with such rights, authori­
ties, and interests that it is an indispensable party to 
the proceedings in the District Court.

The Birmingham School District is vested, by state law with, 
inter alia, the following exclusive rights, powers, and interests: ̂

A. Hiring of teachers and staff. (M.C.L.A. 340.569; M.S.A.
§ 15.3569)

B. Acquisition of transportation. (M.C.L.A. 340.594; M.S.A.
§ 15.3594)

C. Control of attendance of non-resident students. (M.C.L.A.
340.582, M.S.A. § 15.3582)

D. D eterm ination of appropriate curriculum. (M.C.L.A.
340 .583 , M.S.A. §3583; M.C.L.A. 340.114, M.S.A.
§15.3114)

E. Levy of authorized millage. (M.C.L.A. 340.643(a), M.S.A.
§ 15.3643(1); M.C.L.A. 340.614, M.S.A. § 15.3615)

F. T ransportation  of non-resident students. (M.C.L.A.

8 There is an irreconciable conflict betw een the  Birmingham School 
District’s sta tu to ry  au thority  and the  term s of the  District C ourt’s Order of 
June 14, 1972. See pp. 5-9 , supra.



22a

340.591, M.S.A. § 15.3591; M.C.L.A. 340.359, M.S.A. 
§ 15.3359)

G. C onsolidation and annexation of school districts. 
(M.C.L.A. 340.431, M.S.A. § 15.3431; M.C.L.A. 340.407,
M.S.A. § 15.3407)

In addition, the laws of the State of Michigan clearly provide 
that School Districts are public corporate bodies empowered to 
sue and be sued, acquire, hold, and convey real and personal prop­
erty and exercise general plenary power over the educational sys­
tem within its boundaries. M.C.L.A. § 340.352; M.S.A. § 15.3352; 
Marathon School District No. 4 v. Gage, 39 M. 484 (1878 );King v. 
School District No. 5, 261 M. 604 (1933); Public Schools o f Battle 
Creek v. Kennedy, 245 M. 585.

It is specifically noted at this juncture that the State Board of 
Education is charged by the Michigan Constitution with the:

“leadership and general supervision over all public education 
. . . [and is to serve as] the general planning and coordinating 

body for all public education . . Michigan Constitution, Ar­
ticle VII, §3,(1963)

But as the foregoing recitation of the Birmingham School Dis­
trict’s specific statutory powers demonstrates, there is a clear 
dichotomy between the general supervisory authority vested in the 
State Board of Education and the Acting Superintendent of Public 
Instruction, and the specific and detailed authority vested in the 
school districts. Michigan Statutes clearly vest exclusive authority 
in these specific and detailed administrative matters in the school 
districts. It is also clear that the State Board of Education and its 
agents, the Acting Superintendent of Public Instruction, have no 
right or authority under state law to divest the Birmingham School 
District of its clear and specific statutory powers.

The distinctions drawn, and the limitations imposed, by state 
law in this regard must be observed by the District Court, which, it 
is submitted, was (and is) not free to disregard or re-interpret state 
law in a manner which ascribes greater or lesser interests to the 
various potential parties in this litigation.

It is thus well-settled that state law determines the repository 
of the specific powers and interests at issue, and in analogous situ­



23a

ations it has been uniformly held that the indispensable party is 
the state agency or subdivision which has the specific authority to 
make pupil assignments and exercise other specific powers neces­
sary to effectuate the dictates of a remedial order.

In Jeffers v. Whitley, 165 F. Supp. 951, (M.D.N.C., 1958), 
(discussed at pp. 11-12, supra.) for example, the Court dismissed 
the action as to the State Superintendent of Instruction and the 
members of the State Board of Education and observed:

“While the state officials are given broad general powers over 
the public school system, specific authority for the assign­
ment and enrollment of pupils in all city and county adminis­
trative units throughout the state is vested solely in county 
and city boards of education.” 165 F.Supp. at 955
In Covington v. Edwards, 264 F.2d 780, (4th Cir., 1959), the 

Plaintiffs sued the local Superintendent of Schools and the County 
Board of Education to secure an Injunction directing Defendants 
to develop a plan of desegregation and to cease pupil assignment 
on the basis of race. On an Appeal involving, inter alia, a claim 
that the District Court erroneously denied Plaintiffs Motion to 
join the State Board of Education and the State Superintendent of 
Public Instruction as parties defendant, the Court of Appeals 
ruled:

“It is pointed out that the State Board has general control of 
the supervision and administration of the fiscal affairs of the 
public schools and other important powers conferred by the 
General Statutes, sec. 115-4, 115-11 and 115-283. The provi­
sions of sec. 115-178 of the Pupil Placement Act, however, 
places the authority in the County Boards of Education to 
make the assignments and enrollment of pupils and contains 
no direction for the participation of the State Board of Edu­
cation in these matters. We therefore think that nothing 
would be gained by joining these officials as additional de­
fendants and that the judge was correct in denying the mo­
tion to amend the complaint.” 264 F.2d at 780
And, in Thaxton v. Vaughan, 312 F.2d 474 (4th Cir., 1963), 

Plaintiffs sought to eliminate the segregation of the races in the 
use of a municipally owned armory. The District Court dismissed



24a

the action because insufficient defendants were before the Court 
to make its order effective. In its affirmance, the Court of Appeals 
noted that the City Manager had the immediate control over the 
use of the armory, subject to the ultimate control by the City 
Council. The only defendant before the Court was the City Mayor, 
who the Court noted:

“is merely the member of the Council chosen by the Council- 
men to chair their meetings . . .  He does not, acting alone, 
have the authority either to make or enforce policy decisions 
of the Council.” 321 F.2d at 477.
Finally, in the specific context of those civil rights actions 

commenced under federal law, which involved the possibility of 
the transfer of students from one school district to another, the 
well-settled rules set forth above have been carefully observed.

In Bradley v. School Board o f City o f Richmond, Virginia, 51 
F.R.D. 139, (E.D.Va., 1970), the District Court in granting the 
Defendant City School Board’s motion to join the members of the 
School Boards and Boards of Supervisors of adjoining school dis­
tricts, ruled:

“In the possible event that a consolidated school system be 
found an appropriate and required form of relief from state- 
imposed segregation, it is clear that the participation o f the 
school boards and governing units o f the divisions sought to 
be consolidated would be required in order to institute a 
completely unitary system. County school boards have broad 
powers and duties, Va. Code §22-72 (1969 Repl. Vol.), and 
the governing units may be necessary parties for the same rea­
sons that impelled this Court to order the joinder of the 
members of the City Council of the City of Richmond.” 
(emphasis added) 51 F.R.D. at 143
The Petitioner, Birmingham School District, is unaware of 

any case involving possible cross-district bussing in which all 
school districts possibly affected (i.e. by having its rights and lia­
bilities adjudicated or by being made subject to a remedial order) 
were not originally, or upon special motion, made a party to the 
litigation. Yet, neither the Plaintiffs in Bradley, et al. v. Milliken, 
et al., nor the District Court, has ever recited any authority for the



complete disregard of the well-settled jurisdictional rules set forth 
above, which have been uniformly applied in analogous cases.^

It is respectfully submitted that only the Birmingham School 
District has the specific statutory authority to make pupil assign­
ments and exercise the other specific powers necessary to effectu­
ate the District Court’s Order of June 14, 1972. It is further sub­
mitted that the broad powers and interests vested by state law in 
the Birmingham School District were affected by the District 
Court’s June 14, 1972, Order in such a severe and substantial man­
ner (See pp. 5-9, supra.) that it was an indispensable party to the 
proceedings. Finally, it is submitted that the Birmingham School 
District is an indispensable party to any further proceeding in 
which its rights and interests, as defined by state law, might be 
modified.

2. The District Court Does Not Have, And Never Has Had, In 
Personam Jurisdiction Over The Birmingham School Dis­
trict.

It is undisputed that the Birmingham School District is not, 
and never has been, a party to Bradley, et al. v. Milliken, et at.

The District Court has apparently assumed that jurisdiction 
over the present defendants confers jurisdiction over the local 
school districts bound by the June 14, 1972 Order.11 This is 
patently erroneous.

^ Specifically, B rad ley  v. S c h o o l B o a rd  o f  R ic h m o n d , Virginia, 51 F.R .D . 
139 (E.D.Va., 1970); H iggins, e t  al. v. M ichigan  S ta te  B o a rd  o f  E d u c a tio n , e t  
a l ,  (W.D. Mich., Docket No. 6 3 8 6 ) and U n ite d  S ta te s , e t al. v. B o a rd  o f  
S c h o o l C om m issioners  o f  th e  C ity  o f  Ind ia n a p o lis , e t  al., (S.D. Ind., Docket 
No. IP-68-C-225).

1® A m otion was filed by Intervening D efendants, Denise Magdowski, et al., 
on July 12, 1971, to  jo in  all school districts (including P etitioner) in the  
Three (3) county area; Respondent refused to  act upon the  M otion, and on 
June 14, 1972, when Respondent issued his R u lin g  on  D esegrega tion  A rea , 
the m otion was withdrawn.

11 The Complaint recites tha t the  State Board o f Education
“is generally charged w ith the  power and responsibility of adm inistering
the public school system  in the  State of Michigan.”

(See Ex. “ A” , Paragraph IV. 3.) The Order of June 14, 1972 speaks to  the 
Superintendent of Public Instruction (see Ex. “ B” )



26a

The State of Michigan is not a party to this litigation. Of the 
current state defendants 1 only the State Board of Education and 
the Acting Superintendent of Public Instruction have any constitu­
tional or statutory authority in regard to the specific and detailed 
administration of the state educational system. But as has been 
demonstrated, Michigan law 13 clearly indicates: That the State 
Board of Education and the Acting Superintendent of Pubic In­
struction have powers wholly separate and distinct from those 
vested in School Districts; that while the State Board of Education 
is given the responsibility of general supervision and leadership, 
the school district alone is given the plenary power to operate the 
school system; that the State Board of Education and the Acting 
Superintendent of Public Instruction are, under state law, without 
authority to direct the School District to waive or modify its 
rights, duties, and powers under state law. In sum, the State Board 
of Education and the Acting Superintendent of Public Instruction 
are not the alter ego of the Fifty-Three (53) school districts sought 
to be bound by the Court’s June 14, 1972, Order and, under state 
law, jurisdiction over the current state defendants does not confer 
jurisdiction over the Birmingham School District.

It is therefore submitted that jurisdiction over the State 
Board of Education is not the same as, nor may it stand in the 
place of, jurisdiction over the Birmingham School District. While it 
is apparent that the District Court’s June 14, 1972 Order envisions 
a massive alteration of the Detroit Metropolitan Area’s educational 
system and that it would be judically convenient to disregard the 
well-settled jurisdictional rules set forth above, neither the Plain­
tiffs, nor the District Court, has ever recited any authority for 
such a judicial shortcut.

The State Board of Education and the Acting Superintendent 
of Public Instruction simply do not possess the constitutional or 
statutory authority to implement the June 14, 1972, Order, nor 
do they possess the authority to revise the statutory distribution

12 The current state-defendants are: The Governor, the A ttorney General, 
the Treasurer, the State Board of Education, and the Acting Superintendent 
of Public Instruction. See Exhibit “ A” . The State Treasurer was joined by 
M otion at the July 10, 1972 Tearing.

13 See pp. 5-9, 12-1 4, supra.



27a

of powers or to require the Birmingham School District to disre­
gard its enabling legislation.

In point of fact, in regard to the June 14, 1972, Order, the 
District Court simply does not have the correct parties before it.

3. The District Court’s Order Of June 14, 1972 Directed To 
The Birmingham School District, Was In Contravention Of 
The Federal Rules o f Civil Procedure, Title 28, U.S.C. and 
Procedural Due Process.

As demonstrated supra, the Birmingham School District is an 
indispensable party to any proceeding in which its interests, vested 
by state law, might be modified. As also demonstrated supra, the 
Birmingham School District was (and is) not a party to the pro­
ceedings which culminated in the Order of June 14, 1972.

The Birmingham School District submits therefore that the 
June 14, 1972 Order was issued in contravention of the Federal 
Rules of Civil Procedure 4(b) (b) and 19(b), 28 U.S.C.A. and of 
the Birmingham School District’s right to procedural due process.

It is further submitted that the continued application of the 
Order is in contravention of Federal Rules of Civil Procedure 
65(d) because the Order binds a party over which the Court does 
not have jurisdiction. The rule is well-settled that Rule 65(d) fixes 
the scope of valid orders; terms in a decree exceeding the rule are 
of no effect. Swetland v. Curry, 188 F.2 841 (6th Cir., 1951); 
Alemite Mfg. Co. v. Staff, 42 F.2 834 (2d Cir., 1930);Baltz v. The 
Fair, 178 F. Supp. 691 (N.D. 111., 1959); Chisolm v. Caines, 147 
F.Supp. 188 (E.D.S.C., 1954).

In Bell v. School Board o f Powhatan County, Va., 321 F.2d 
494, (4th Cir., 1963), the District Court’s Order enjoining the 
School Board from closing the district’s schools was challenged on 
appeal. The School Board argued that under state law, it did not 
have the power to appropriate funds for the operation of the 
schools (this authority being vested by state law in the Board of 
County Supervisors), and therefore could not assure that the 
schools would remain open. The Court ruled:

“The answer is that in respect to the Board of County Super­
visors we agree: Since it is not a party its duty should not be



28a

adjudicated here and we do not find it necessary to deal with 
the Board of Supervisors in this appeal.” (footnote omitted) 
321 F.2d at 489

And in Thaxton v. Vaughn, 321 F.2d 474 (4th Cir., 1963), (dis­
cussed supra, at pp. 16-17), the Court affirmed the dismissal of the 
action against the City Mayor because:

“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, partic­
ularly in an equity action, ought not grant relief against a 
public official unless its order will be effective. Cf. Gnerich v. 
Rutter, 265 U.S. 388, 44 S.Ct. 532, 68 L.Ed., 1068 (1924); 
Webster v. Fall, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411 
(1925); Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188,92 
L.Ed. 95 (1947); Ceballos v. Shaughnessy, 352 U.S. 599, 
603-604, 77 S.Ct. 545, 1 L.Ed.2d 583 (1957); Cf.2 8  Am. 
Jur., Injunctions, Sec. 37,362.” 321 F.2d at 478
B. IN THE PRESENT CIRCUMSTANCES, THE ISSUANCE 

OF THE WRIT OF MANDAMUS AND/OR PROHIBI­
TION IS APPROPRIA TE.

Not until July 20, 1972, when the District Court ordered the 
entry of judgments in accordance with the provisions of Federal 
Rules of Civil Procedure 56(b), 28 U.S.C.A. (see Exhibit “C”, 114), 
was your Petitioner, the Birmingham School District, made subject 
to a final judgment and order. The June 14, 1972, Order, as a final 
judgment, is a final ruling inter alia that the Birmingham School 
District may be validly ordered to relinquish its specific statutory 
powers and validly ordered to participate in a cross-district bussing 
plan regardless of the fact that it has at no time been a party to 
the proceedings. It is submitted that the District Court has thus 
made a final ruling that well-settled jurisdictional principles may, 
and will, be disregarded in Bradley, et al. v. Milliken, et al.

The Birmingham School District submits that District Court 
has exceeded the lawful exercise of its prescribed jurisdiction and 
seeks the Writs traditionally used to confine an inferior court to a 
lawful exercise of its prescribed jurisdiction. Roche v. Evaporated 
Milk Association, 319 U.S. 21 (1943) at 26. The totally unknown



29a

effects which massive tri-county bussing may have upon the educa­
tion and safety of the school children involved in the June 14, 
1972, Order, as well as the indeterminable cost in time and dollars 
of the Order’s implementation, make this a matter of “public 
importance” and thus a “case appropriate for the extraordinary 
writs.” Morrow v. District o f Columbia, 417 F.2d 728 (C.A.D.C., 
1969), at 736, 737.

The extraordinary writs are the only viable remedy open to 
Petitioner. Because it is not a party, Petitioner may not appeal Re­
spondent’s June 14, 1972 Ruling and Order. 14. Attempted inter­
vention in the proceedings at this time, even if successful, would 
provide no relief, since the District Court has already proceeded to 
a final judgment that the Birmingham School District is to be in­
cluded in the “desegregation area.” The Birmingham School Dis­
trict should not be deprived of its rights, under the rules of pro­
cedural due process, to a fair hearing in this matter.

The only other alternative by which the Birmingham School 
District could test the validity of the June 14, 1972, Order, would 
be a refusal to obey the Orders of the Court, which refusal would 
engender the possibility of contempt of court proceedings.

In view of the fact: (1) That the District Court has disregard­
ed the well-settled rules of jurisdiction, the Federal Rules of Civil 
Procedure, and the rules of procedural due process; (2) That the 
District Court has not relied upon, and does not in fact have, any 
surpporting authority for the application of the June 14, 1972, 
Order to a non-party; (3) That the application of the June 14, 
1972, Order to the Birmingham School District has and will con­
tinue to cause irreparable injury to its rights and interests; (4) That 
the Birmingham School District does not have any other viable 
remedy; the issuance of the Writ of Mandamus and/or Prohibition 
is appropriate.

V. RELIEF REQUESTED
Your Petitioner respectfully prays that a Writ of Prohibition 

and/or Mandamus issue out of this Court directed to a the Honora-

14  A lthough a M otion was before R espondent from July , 1971, to June, 
1972, to  join Petitioner and Eighty-Five (85) o ther school districts as party 
defendants, Respondent refused to  act upon it.



30a

ble Stephen J. Roth, District Judge, for the Eastern District of 
Michigan, Southern Division, as follows:

A. That said Writ require and direct the entry of an Order 
by said District Judge that said Order of June 14, 1972, identified 
in Sub-Paragraph B, be quashed as to this Petitioner, and,

B. That said Writ prohibit the Honorable Stephen J. Roth, 
or any persons acting for or on behalf of said District Judge, from 
enforcing or implementing or in any manner proceeding under the 
ruling and Order for establishment of desegregation area dated 
June 14, 1972, in the case of Bradley, et al. v. Milliken, et al, 
Civil Action Number 35257 in the United States District Court for 
the Eastern District of Michigan, Southern Division, as to this Peti­
tioner, and,

C. That said Writ prohibit the Honorable Stephen J. Roth 
from in any manner entering any ruling or Order which affects the 
rights and interests, as defined by State Law, of the Petitioner un­
til the District Court has acquired jurisdiction over the Petitioner 
and has accorded the Petitioner a full Hearing in this matter; and

D. That said Writ or Prohibition or alternately Writ of Man­
damus prayed for herein be issued as an emergency Writ and be 
directed to said District Judge forthwith for compliance with the 
terms hereof; and,

E. That for the reasons and grounds stated herein, this mat­
ter be set for immediate Hearing before the Honorable Court; and,

F. That your petitioner have such further and different re­
lief as may be required and be deemed just and equitable under 
the circumstances set forth herein.

Respectfully submitted,
KELLER, THOMA, McMANUS, 

TOPPIN & SCHWARZE

By: /s/ Charles E. Keller 
Attorneys for Petitioner
1600 Penobscot Building 
Detroit, Michigan 48226 
(313) 965-7610

Dated: July 27, 1972
Detroit, Michigan



31a

APPENDIX D

NO. 72-1771
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

SCHOOL DISTRICT OF THE CITY OF 
BIRMINGHAM, OAKLAND COUN­
TY, MICHIGAN

v.
Petitioner

O R D E R

THE HONORABLE STEPEHN J. 
ROTH, DISTRICT JUDGE FOR THE 
EASTERN DISTRICT OF MICHI­
GAN, SOUTHERN DIVISION

Respondent

Before: PHILLIPS, Chief Judge, and EDWARDS and PECK 
Circuit Judges.

Upon consideration, IT IS ORDERED that the application 
for writ of mandamus and prohibition is denied and the petition is 
dismissed.

This order is entered without prejudice to the right of the 
petitioner School District to file application to intervene in the 
case of Bradley v. Milliken now pending in the Eastern District of 
Michigan.

ENTERED BY ORDER OF THE COURT

/s/ James A. Higgins 
Clerk



32a

APPENDIX E

UNITED STATES OF AMERICA 
IN THE COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

SCHOOL DISTRICT OF THE CITY OF 
BIRMINGHAM, OAKLAND COUN­
TY, MICHIGAN,

Petitioner,
vs,

THE HONORABLE STEPHEN J. 
ROTH, DISTRICT JUDGE FOR THE 
EASTERN DISTRICT OF MICHI­
GAN, SOUTHERN DIVISION,

Respondent.

Case No. 72-1771

PETITION FOR REHEARING OF PETITION 
FOR WRIT OF PROHIBITION AND/OR MANDAMUS

KELLER, THOMA, McMANUS, 
TOPPIN & SCHWARZE 

Attorneys For Petitioner
1600 Penobscot Building 
Detroit, Michigan 48226 
(313) 965-7610



33a

UNITED STATES OF AMERICA 
IN THE COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

SCHOOL DISTRICT OF THE CITY 
OF BIRMINGHAM, OAKLAND 
COUNTY, MICHIGAN,

Petitioner,
-vs- Case No. T2-1771

THE HONORABLE STEPHEN J. 
ROTH, DISTRICT JUDGE FOR THE 
EASTERN DISTRICT OF MICHI­
GAN, SOUTHERN DIVISION

Respondent.

PETITION FOR REHEARING OF PETITION
FOR WRIT OF PROHIBITION AND/OR MANDAMUS

TO: THE HONORABLE JUDGES OF THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

NOW COMES the School District of the City of Birmingham, 
Oakland County, Michigan, (hereinafter referred to as the Birming­
ham School District), by its attorneys, Keller, Thoma, McManus, 
Toppin & Schwarze, and in this Petition For A Rehearing Of The 
Petition For Writ Of Prohibition And/Or Mandamus does say:

1. On August 4, 1972, by Certified Mail, the Petitioning 
School District filed a Petition For Writ of Prohibition in the 
above-entitled matter, and Proof of Service with respect thereto in 
this cause.

2. On August 7, 1972, this Court entered its Order denying 
said Petition without prejudice to the right to intervene in the case 
of Ronald Bradley, et al. v. William Milliken, et al., being Civil Ac­
tion No. 35257 in the United States District Court for the Eastern 
District of Michigan, Southern Division.

3. That Petitioner, Birmingham School District, has raised 
questions in the original Petition For Writ Of Prohibition And/Or 
Mandamus which are related to, but district from, those raised by



34a

suburban school districts which intervened in said litigation. Peti­
tioner should have the opportunity for a Hearing before this Court 
with respect to the serious and basic jurisdictional issues raised in 
said Petition.

4. That Petitioner shows that for all practical purposes the 
litigation in the Trial Court has been concluded. Intervention in 
said cause in its present posture and in view of the restrictions im­
posed upon the intervening suburban school districts by the Trial 
Court by its Order of March 15, 1972, would therefore be a mean­
ingless gesture.

WHEREFORE, Petitioner prays:
A. That a rehearing of the Petition For Writ Of Prohibition 

A nd/O r Mandamus heretofore filed by Birmingham 
School District be granted; and,

B. That said Petition be set for Hearing on such date as may 
be convenient to the Court, if deemed appropriate by this 
Honorable Court; and,

C. That the Writ issue as prayed for in said Petition for Writ 
of Prohibition and/or Mandamus heretofore filed in this 
case.

Respectfully submitted,

KELLER, THOMA, McMANUS, 
TOPP1N & SCHWARZE

By: / s/ Charles E. Keller 
A ttorneys for Petitioner
1600 Penobscot Building 
Detroit, Michigan 48226 
(313) 965-7610

Dated: August 21, 1972 
Detroit, Michigan



35a

APPENDIX F

No. 72-1771
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

SCHOOL DISTRICT OF THE CITY OF 
BIRMINGHAM, OAKLAND COUN­
TY, MICHIGAN,

Petitioner,
V. ORDER

THE HONORABLE STEPHEN J. 
ROTH, DISTRICT JUDGE FOR THE 
EASTERN DISTRICT OF MICHI­
GAN, SOUTHERN DIVISION,

Respondent.

Before PHILLIPS, Chief Judge and EDWARDS and PECK, 
Circuit Judges.

Upon consideration, it is ORDERED that the petition for re­
hearing be and hereby is denied.

Entered by order of the court.

/s/ James A. Higgins, 
Clerk







; >;- ;

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