Emergency Application for Stay

    RONALD C . BRADLEY 

vs.
WILLIAM G. MILLIKEN



IK THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,
Plaintiffs-Appellees, 

v„
WILLIAM G. MILLIKEN, et al,

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

Defendant-Intervenor,and
DENISE MAG DOWS KI, et al, .

Defendants-Intervenor et al. c

U.S. Court 
of Appeals 
No.

U.S. District 
Court No. 35257

On Appeal from the United States District 
Court for the Eastern District of Michigan 

Southern Division

EMERGENCY APPLICATION FOR STAY

FRANK J . KELLEY 
Attorney General

Dated: July 20, 1972 Robert A. Derengoski 
Solicitor General

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

Eugene Krasicky 
Gerald F. Young 
Assistant Attorneys General 
Attorneys for Defendants Governor, 
Attorney General, State Bd. of 
Education & Supt. of Public Instruction



IN THE ■
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,

V.
Plaintiffs-Appallees,

WILLIAM G. MILLIKEN, et al,
U.S. C6urt 
of Appeals 
No.

and
Defendants-Appellants, U.S. District

Court No. 35257
DETROIT FEDERATION OF TEACHERS,
LOCAL 2 31, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

Defendant-Intervenor,
and

DENISE MAGDOWSKI, et al,

et al.
Defendants-Intervenor,

EMERGENCY APPLICATION FOR STAY

Now come defendants, William G. Milliken, Governor 
of the State of Michigan; Frank J. Kelley, Attorney General of 
the State of Michigan; Michigan State Board of Education;
John W. Porter, Superintendent of Public Instruction, and 
Allison Green, Treasurer of the State of Michigan, by their 
attorneys, Frank J. Kelley, Attorney General of the State of 
Michigan, et al, and pursuant to Rules 8 and 27 of the Federal



Rules of Appellate Procedure, move this Court for immediate 
consideration of their Emergency Application for Stay pending 
appeals, including the immediate convening of a panel of this 
Court or, if such procedure is impracticable due to the 
requirements of time, the immediate submission of this 
Emergency Application for Stay to a single Judge of this 
Court, with twenty-four hours' notice of this motion, or 
such other shortened period of time as this Court deems 
reasonable, to all other parties for filing their responses, 
and the entry of an order staying the enforcement of the 
District Court's orders of June 14, 1972 and July 11, 1972, 
pending their appeals from such orders to this Court for the 
reasons hereinafter stated.,

I.
STATEMENT OF PRIOR PROCEEDINGS .

On June 14, 1972, the District Court issued its 
Ruling on Desegregation Area and Order for Development of 
Plan of Desegregation, a copy of which is attached hereto 
as Appendix A. This order created a 53 school district 
desegregation area, involving at least 780,000 or 1/3 of the 
state's public school pupils, and established a 9 member panel 
charged with the responsibility of preparing interim (Fall term, 
1972), and final (Fall term, 1973) plans of desegregation with, 
as an irreducible minimum, K-6 pupil reassignment and trans­
portation in as many clusters as practicable by the Fall of 1972

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together with faculty integration in the Fall of 1972 by 
reassigning teachers within the 53 affected school districts. 
This order compels these defendants or some of them to bear 
all reasonable costs incurred by the 9 member judicially 
created desegregation panel, to disapprove all new construc­
tion plans when housing patterns in an area would result in 
a school largely segregated on racial lines, and to take 
immediate action concerning the establishment of faculty 
and staff in-service training and the employment of black 
counselors. Further, such order compels the Superintendent 
of Public Instruction to make recommendations to the Court 
for appropriate interim and final arrangements for the 
financial, administrative and school governance, and 
contractual arrangements for the desegregation area indepen­
dently of the provisions of Michigan law.

On June 19, 1972, these defendants filed a motion 
with the District Court for a stay of its order of June 14, 
1972. The District Court heard oral argument on the motion 
on June 29, 1972, and took the motion under advisement. On 
July 7, 1972, the District Court entered its order denying 
the motion of these defendants for a stay of the District 
Court's order of June 14, 1972, a copy of which is attached 
hereto as Appendix B .

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*
On July 10, 1972, the District Court, following 

a hearing on the recommendation of the desegregation panel 
to purchase 295 buses with state funds for the purpose of 
implementing an. interim desegregation plan in the Fall term,
1972, ruled from the bench that defendant Detroit Boarc of 
Education purchase 295 buses, that these defender;cs provide 
the funds required for such purchases, and directed that 
Allison Green, Treasurer of the State of Michigan, be added 
as a party defend.ant iir this cause. On the same date in 
open court, counsel for these defendants orally moved for 
a stay of such rulings and the District Court denied such
motion.

The rulings of the District Court set forth in the 
preceding paragraph were reduced to written orders and entered 
on July 11, 1972, copies of which are attached hereto as 
Appendices C, D and E, being respectively, Order Adding 
Defendant Allison Green, Order for Acquisition of Transportation 
and Order Denying Motion for Stay of Order for Acquisition of 
Transportation. The cost of purchasing one school bus meeting 
Michigan standards is approximately $10,500. Thus, the District 
Court's order of July 11, 1972 requires these defendants to 
expend approximately $3,000,000 in state funds for the purpose 
of implementing an interim metropolitan desegregation plan in 
the Fall term, 1972.

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t
On July 12, 1972, these defendants filed their 

Notices of Appeal to this Court from the District Court's 
order of June 14, 1972 and the District Court's order of 
July 11, 1972, entitled Order for Acquisition of Transportation.

Thus, during the pendency of these defendants' appeals 
from the orders of June 14, 1972 and July 11, 1972, and without 
a stay of such orders from this Court, these defendants must 
disburse vast sums of money and perform other functions, all 
contrary to their powers under Michigan law, while substantial 
metropolitan desegregation is implemented in the Fall of 1972 
prior to any appellate review of the major constitutional law 
questions presented herein. These defendants urge that the 
most sweeping remedial decree ever handed down in a school 
desegregation case must not be implemented without full and 
final appellate review.

On July 13, 1972, these defendants secured a temporary 
stay of proceedings from the United States Court of Appeals 
for the Sixth Circuit and at their request a hearing on an 
Emergency Application for Stay was set for July 17, 1972.
Briefs were filed and oral argument was held on July 17, 1972, 
and this Court entered its order on said date to read as 
foilows:

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"The motion to stay the order entered by 
the District Court July 11, 1972, having 
been heard on briefs and oral arguments, 
it is ordered that the stay of this Court 
dated July 13, 1972 remain in effect in 
this case until entry by the District^Judge 
of a final desegregation order or until 
certification by the District Judge of an 
appealable question as provided by 28 USC 
§ 1292 (b) . "

The District Court convened a hearing in this cause 
on July 19, 1972, at 10:00 a.m. to hear oral motions of the 
plaintiffs and these defendants that the District Court make 
certain of its rulings and orders final under FRCP 54 (b) and 
for certification under the provisions of 28 USC 1292(b) that 
the following orders or rulings involved controlling questions 
of law as to which there is substantial ground for difference 
of opinion and that an immediate appeal from this order or 
ruling may materially advance the determination of the liti­
gation. The aforesaid oral motions concerned the following
rulings or motions:

RULING OR ORDER
Ruling on Issue of Segregation
Ruling on Propriety of Considering a 
Metropolitan Remedy to Accomplish 
Desegregation of the Public Schools 
of the City of Detroit
Findings of Fact and Conclusions of 
Law on Detroit-Only Plans of Deseg­
regation

DATE
September 27, 1971

March 24, 1972

March 28, 1972

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Ruling on Desegregation Area and .
Order for Development of Plan of 
Desegregation and Findings of Fact 
and Conclusions of Law in Support 
of Desegregation Area and Develop­ment of Plan June 14, 1972
Order for Acquisition of Trans­
portation July 11/ 1972

The District Court granted such motions and directed the 
attorneys for the respective parties to agree upon the form 
of an order. Thereafter these defendants requested a stay 
of proceedings pending appellate review by this Court of 
the aforesaid five orders. The District Court denied the 
motion for a stay. Thereafter these defendants requested 
a temporary stay pending emergency application for stay to 
be filed with this Court. The District Court denied said 
motion and relied on the same reasons for denial that it 
gave for denial of the motion of these defendants for a tem­
porary stay of the July 11, 1972, order pending the emergency 
application for stay filed with the Court of Appeals on July 
13, 1972. . ?

Although the plaintiffs submitted a proposed order 
and the defendants and intervening-defendant submitted a 
proposed order, the District Court indicated that it would 
not enter an order until the morning of July 20, 1972.

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These defendants will file simultaneously with this 
emergency application for stay a petition for permission to 
appeal with the clerk of the Court of Appeals an appeal from 
an interlocutory order dated July 20, 1972, containing the 
statement prescribed by 23 USC 1292(b).

These defendants request this Court in its discre­
tion to permit an appeal to be taken from such order and to 
enter an order to stay proceedings in the District Court with 
the exception that the panel authorized by the June 14, 1972, 
order be permitted to complete its work by July 29, 1972, as 
ordered by the District Court and that such other planning 
ordered by the District Court in the June 14, 1972, order be 
/completed by July 29, 1972. These defendants request that 
proceedings before the District Court be stayed in all other 
respects pending a review by this Court of the entire case 
under the order of the District Court of July 20, 1972.

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INTRODUCTION

In its Ruling on Issue of Segregation dated September 
27, 1971, the Court concluded that both the State of Michigan 
and the Detroit Board of Education had committed acts which 
were causal factors in the segregated condition of the public 
schools of the City of Detroit. The Court then qualified its 
finding by saying that "The principal causes [of school segre­
gation] undeniably have been population movement and housing 
patterns." The Court then requalified this conclusion by 
adding, "but state and local governmental actions, including 
school board actions, have played a substantial role in pro­
moting segregation."

In the Ruling there is no finding that either the 
Governor or the Attorney General had committed any act that 
was a contributing factor in the alleged segregated condition 
of the Detroit public schools. Although in its Ruling the 
Court cited Const 1963, Art I, §2 and Art VIII, §2, neither 
of these constitutional provisions imposes any duties upon 
the Governor or the Attorney General with regard to either 
housing or education.

Neither the Superintendent of Public Instruction 
nor the State Board of Education have any duties under the

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constitution or laws of the State of Michigan with regard 
to housing. The Court's Ruling on Desegregation Area and 
Order for Development of Plan of Desegregation and Order 
for Acquisition of Transportation are predicated upon its 
Ruling 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." The findings of the Court, which state defend­
ants are presently challenging, are the sole basis for the 
Court's combining of 53 school districts established under 
the laws of the State of Michigan and for changing the 
schools, the teachers, the programs and, in fact, the entire 
educational system for 1/3 of the public pupils in the State 
of Michigan.

Moreover, the Court's rulings upon de_ jure segre­
gation because of actions of the Detroit school district are 
not only inconsistent but equally unsound. The high praise 
that the District Court heaped upon the defendant Detroit for 
integrating its faculty and administrators has been swept 
away by the Order of June 14, 1972, requiring racial balance 
of at least 10% of black faculty in every school within the 
53 school districts, in direct disregard of Swann v Charlotte- 
Meek lenburg Board of Education, 402 US 1 (1971). Assuming 
arguendo that the lower court is correct in its rulings as

10-



to actions of the Detroit school district a remedy requiring 
correction within the school district is all that is presently 
judicially mandated at best under Keyes v School District No. 
1, Denver, Colorado, 445 F2d 990 (CA 10, 1971), cert granted 
404 US 1036 (Jan. 17, 1972). This is especially true in 
light of the recent reversal of Bradley v School Board of
City of Richmond, Virginia, ___ F2d ___ (CA4, June 5, 1972),
Case No. 72-1058 to 72-1060 and 72-1150, so heavily relied 
upon by this Court, in its Ruling on Propriety of Considering 
a Metropolitan Remedy to Accomplish Desegregation of the 
Public Schools of the City of Detroit of March 24, 1972, but 
conspicuously absent from the Court's Ruling and Order of 
June 14, 1972.

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• •

II.
A • STRONG PROBABILITY OF REVERSAL ON APPEAL

These defendants respectfully submit thâ t there is 
a substantial likelihood that the District Court will be 
reversed on appeal. This strong probability of reversal on 
appeal exists both as to the lower court's finding of de jure 
segregation in the Detroit public schools, as a result of the 
conduct of these defendants, and as to the lower court s 
remedial decrees establishing a metropolitan rerneay presently 
consisting of 53 legally separate and independent Michigan 
school districts.

On September 27, 1971, the District Court issued 
its Ruling on Issue of Segregation, attached hereto as 
Appendix F, in which the court stated at page 21 that:

"In conclusion, however, we find that both 
the State of Michigan and the Detroit Board 
of Education have committed acts which have 
been causal factors in the segregated condi­
tion of the public schools of the City of 
Detroit...."

It is submitted that this finding is manifestly 
unsupported by the record. Moreover, such finding is patently 
erroneous as a matter of law.

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i

In the first place, the suit was not one brought 
against the State of Michigan. Such a suit, to which the 

' . State of Michigan has never consented, would clearly violate
the Eleventh Amendment to the United States Constitution and 

' ‘ the decided cases of the United States Supreme Court. In_re
State of New York, 256 US 490, 497 (1921).

Obviously, this firmly established principle does 
not prevent suits against named state officials as defendants 
who have allegedly invaded plaintiffs' constitutional rights.
Griffin v County School Board of Prince Ed_wa_rd_Countv, 377[ » - ——- '
US 218, 228 (1964).

However, it is equally clear that a suit against 
specific state officials must focus on their conduct. These 

" defendants are not aware of any recognized principle in our
jurisprudence under which a suit against certain named state 
officer defendants may be used as a launching pad for find­
ings against the state itself. Thus, the lower court's 
ultimate holding of de jure segregation in Detroit, as a 
result of the conduct of the State of Michigan, is immediately 
suspect as representing an erroneous application of established
constitutional law principles.

The lower court's ruling of September 27, 1971, 
relies, in substantial measure, upon findings of racial

i ' ' ' • ' *

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discrimination in housing on the basis of evidence intro­
duced over the repeated and continuing objections of these 
defendants. Such evidence in no way related to the actions 
of these defendants or their predecessors in office. This 
course of conduct by the trial judge constitutes a manifest 
disregard for the controlling precedents of this Court that, 
in a school desegregation case, evidence of racial discrimina­
tion in housing is inadmissible. Deal v Cincinnati Board of 
Education, 369 F2d 55, 60-61 (CA 6, 1966), cert den 389 US 
847 (1967); Deal v Cincinnati Board of Education, 419 F2d 
1387, 1392 (CA 6, 1969), cert den 402 US 962 (1971); Davis 
v School District of City of Pontiac, Inc, 443 F2d 573 (CA 6, 
1971), cert den 404 US 913 (1971).

Moreover, this Court's ruling in these three deci­
sions cited above is consistent with the opinion of the United 
States Supreme Court on this question in Swann v Charlotte- 
Mecklenburg Board of Education, 402 US 1, 22-23 (1971). The 
conclusion is compelled that the District Court committed 
reversible error in admitting and relying upon evidence con­
cerning racial discrimination in housing in finding de_ pure 
segregation in the Detroit public schools.

Further, it is instructive to note that the lower 
court's ruling on segregation, at pp. 8-10, contains no expres



references to any of these defendants in connection with the 
findings of racial discrimination in housing. Rather, at p.
9, the lower court refers to "....what other governmental 
officers or agencies have done...." Moreover, after erro­
neously relying upon evidence of alleged racial discrimina­
tion in housing by governmental agencies other than these 
defendants the lower court concluded, at p. 22, that:

"....The principle causes [of racial 
segregation in the Detroit public schools] 
undeniably have been population movement 
and housing patterns,..."

This conclusion vividly illustrates the foundation of sand 
upon which the District Court found de_ jure segregation in 
the Detroit public schools as a result of the conduct of the 
defendants herein.

The conclusions of the trial court with respect 
to defendant State Board of Education in the area of site 
location for school construction are both patently inconsis­
tent and erroneous as a matter of lav/. At p. 25 of the Ruling 
on Issue of Segregation, the lower court correctly concluded 
that, after 1962, defendants State Board of Education and the 
Superintendent of Public Instruction ceased to have any authority 
under state law to approve school sites. Yet, at p. 13, relying 
upon a 1966 Joint Policy Statement and a 1970 School Plant

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Planning Handbook, in which these defendants admonished local 
school boards to consider racial balance as one factor among 
many in school site selections, the court found that the state 
defendants failed to take affirmative action to implement such 
admonition in connection with certain Detroit schools that 
opened for use in 1970-71.

Thus, in essence, the lower court ruled that the 
failure to exercise a power they did not possess under state 
law constituted an act of de jure segregation by the state 
defendants, particularly the State Board of Education and the 
Superintendent of Public Instruction. Surely such a mani­
festly inconsistent and illogical ruling will not withstand 
appellate scrutiny on appeal.

The basic Michigan statute dealing with the con­
struction of school buildings is 1937 PA 306, as amended,
MCLA 388.851 et seq; MSA 15.1961 et seq. In 1962, by virtue 
of 1962 PA 175, the legislature amended section 1 of this 
statute, thereby removing any power to approve school con­
struction sites on the part of either the State Board of 
Education or the Superintendent of Public Instruction. The 
statute, as presently constituted, deals only with approval 
of construction plans in terms of fire, health and safety.

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The Joint Policy Statement and the School Plant 
Planning Handbook represent an admonition to local school 
boards by the State Board of Education, in the exercise of 
its leadership function under Const 1963, Art VIII, §3, to 
consider racial balance as one of the factors in selecting 
new school sites and reorganizing attendance areas. It is 
beyond dispute that some Michigan school boards in large city 
school districts have considered racial balance in selecting 
school sites and reorganizing school attendance areas. See 
Mason v Board of Education of the School District of the 
City of Flint, 6 Mich App 364 (1967), and Jipping v Lansing 
Board of Education, 15 Mich App 441 (1968), leave to appeal 
denied 382 Mich 760 (1969). These cases negative any sug­
gestion that Michigan is a de jure state with a dual school 
system.

The Joint Policy Statement and School Plant Planning 
Handbook admonitions on site selection were never reduced to 
legally enforceable rules in the State Administrative Code 
for the reason, as correctly concluded by the trial court, 
that, after 1962, neither the State Board of Education nor 
the Superintendent of Public Instruction possessed any power 
of approval over school site selections made by local boards 
of education. It is manifestly unjust and illogical to base 
a finding of de jure segregation on the failure to exercise

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a non-existent power under state law. Further, the finding 
that the state defendants failed to affirmatively effectuate 
their admonition on considering racial balance is contrary 
to the decided cases of both this Court and the United States 
Supreme Court that there is no affirmative constitutional duty 
to achieve racial balance in the public schools. Deal v 
Cincinnati Board of Education, supra; Davis v School District 
of City of Pontiac, Inc, supra, p. 575; Swann v Charlotte- 
Mecklenburg Board of Education, supra, pp. 16-18; Spencer v 
Kugler, 326 F Supp 1235, 1242-1243 (DC NJ, 1971), affirmed 
on appeal 404 US 1027 (1972). ■

Thus, as a matter of law, the conclusion of de jure 
segregation by these defendants as to site selection for school 
construction is in error and should be reversed on appeal.

The findings of the District Court evidently used as 
evidence of de jure segregation against these defendants deal 
with state statutes rather than the conduct of defendants.
Yet, even looking at the statutory enactments, the transportation 
statute, MCLA 388.621; MSA 15.1919(61), contains the very type 
of urban-rural distinction which was held constitutional by a 
three judge federal court in Sparrow v Gill, 304 F Supp 86,
90-91 (MD NC 1969). The lower court's position regarding the 
bonding statute, Sections 77a, 115, 158, 220a of 1955 PA 269,

18-



as amended, MCLA 340.1 et seq; MSA 15.3001 et seq, is 
inconsistent with the decision of the United States Supreme 
Court in Goraan v Lance, 403 US 1 (1971), sustaining a 
West Virginia limitation on bonded indebtedness for all 
purposes. Nor was any evidence related to alleged racial 
discrimination found in the state school aid act, 1957 
PA 312, as amended, MCLA 388.61 et seq; MSA 15.1919(51) et 
seq. These finance statutes are manifestly racially neutral 
both on their face and as applied. These statutes, none of 
which involve either the Governor or the Attorney General in 
their implementation, have not been declared invalid by the 
District Court. Clearly, these purported findings are in 
error as a matter of law.

To summarize, the District Court’s ultimate con­
clusion on the merits, that the Detroit public schools are 
de jure segregated as a result of the conduct of these defen­
dants is, we submit, patently in error. These defendants would 
emphasize that, at a minimum, the foregoing analysis reveals 
a strong probability of reversal on appeal that manifestly 
warrants the granting of a stay on appeal.

Turning to the District Court's remedial opinions 
and orders, that have culminated in the establishment of a 
desegregation area joining together 53 legally independent

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I

Michigan school districts, we start with the court's Ruling 
on Propriety of Considering a Metropolitan Remedy to Accom­
plish Desegregation of the Public Schools of the City of 
Detroit, issued March 24, 1972. In that opinion, at p. 3, the 
District Court stated:

"The main thrust of the objections to 
the consideration of a metropolitan 
remedy advanced by intervening school 
districts is that, absent a finding of 
acts of segregation on their part, 
individually, they may not be considered 
in fashioning a remedy for relief of the 
plaintiffs. It must be conceded that the 
Supreme Court has not yet ruled directly 
on this issue; accordingly, we can only 
proceed by feeling our way through its 
past decisions with respect to the goal 
to be achieved in school desegregation 
cases. . . . "

Thus, from the beginning, the lower court has 
proceeded to fashion the most sweeping remedial decree ever 
handed down in a school desegregation case while recognizing 
the lack of federal appellate precedent for such relief.

The District Court's Findings of Fact and Conclusions 
of Law on Detroit-Only Plans of Desegregation, issued March 
28, 1972, contains considerable language concerning a racially 
identifiable school system and predominately black schools. 
However, this ruling by the court makes no findings or 
conclusions concerning a unitary school system for the Detroit 
public schools. As stated in Swann v Charlotte-Meeklenburg

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Board of Education, supra, pp. 15, 16, 24 and 26, the
constitutional objective is not racial balance but 
conversion to a unitary system which permits, in some 
circumstances, some one-race schools. Further, in 1970 the 
black student population of the. Detroit school system was 
63.8%. Very recently, in Wright v Council of the City of 
Emporia, 40 LW 4806, June 20, 1972, and Cotton v Scotland 
Neck City Board of Education, 40 LW 4817, June 20, 1972, 
we find two cases before the Supreme Court in which remedial 
decrees have been entered and not overturned on appeal in 
school districts having, respectively 66% and 72% black 
student populstions. Thus, it cannot be said that there is 
any federal appellate prohibition against converting to a 
unitary school system within a majority black school district.

These defendants respectfully submit that the 
remedial decree entered on June 14, 1972, herein, establishing 
a 53 school district desegregation area, is not a constitution­
ally required desegregation decree designed to establish a 
unitary school system. Rather, it is more in the nature of 
an experiment to achieve a judicially perceived desirable racial 
balance in which all schools will be majority white. For 
example, the school districts of Hamtramck, River Rouge,
Ecorce, Highland Park and Inkster, having, respectively, 29.9%, 
43.6%, 56.7%, 85.7% and 88.2% racial-ethnic minority students,

21 -



are included in the judicially decreed desegregation order. 
Local District Results Michigan Educational Assessment 
Program, Michigan Department of Education, December, 1971, 
pp 26, 50, 54, 60. The lower court has made no finding that 
any of these racially heterogeneous school districts is 
guilty of de jure segregation. In fact, of these five school 
districts only River Rouge is a party to this litigation.
This sweeping remedial decree, unsupported by precedent, 
must not be implemented prior to appellate review.

In Bradley v School Board of City of Richmond,
• Vi.rginia, F2d ___  (Case Nos. 72-1058 to 72-1060 and
72-1150, June 5, 1972), the Court of Appeals for the Fourth 
Circuit reversed a decision of the trial court granting a 
remedy substantially similar to that contained in the District 
Court's order of June 14, 1972. In that case, the court 
directed a metropolitan remedy only after a trial involving 
the adjoining school districts which resulted in a finding 
of de jure segregation as to such school districts. That 
case will, in all probability, be reviewed by the United 
States Supreme Court, thus resolving some of the issues 
involved herein.

Here, as stated by the District Court in its 
Findings of Fact and Conclusions of Law in Support of Ruling

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on Desegregation Area and 
1972:

Development of Plan, issued June 14,

"....It should be noted that the court has 
taken no proofs with respect to the estab­
lishment of the boundaries of the 86 public 
school districts in the counties of Wayne,
Oakland and Macomb, nor on the issue of 
whether, with the exclusion of the city of 
Detroit school district, sxxch school dis­
tricts have committed acts of de jure seg­regation." p. 1

Thus, this case is directly contrary to the holding 
of a three judge federal panel, affirmed on appeal by the 
United States Supreme Court, in Spencer v Kugler, supra, that 
there is no constitutional duty to alter school district bound­
ary lines and attendance patterns to overcome racial imbalance.

In addition, the District Court, after expressly 
finding no de jure segregation as to faculty and staff in 
the Detroit public schools in its Ruling on Issue of Segrega­
tion, has ordered, in its remedial decree of June 14, 1972, 
that 10% of the faculty and staff in each school be black.
Thus, contrary to the explicit language of Swann v Charlotte- 
Mecklenburg Board of Education, supra, pp. 16 and 24, the lower 
court has, in the absence of any finding of a constitutional 
violation as to faculty and staff, decreed an impermissible 
fixed racial balance quota for each school within the 53 
school districts.

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Furthermore, the order of June 14, 1972, includes 
18 school districts within the desegregation area that are 
not parties to this cause. This novel approach to judicial 
power has already resulted in at least two petitions to this 
Court by some of these 18 school districts for a writ of 
prohibition or mandamus directed to the District Court.

In view of the foregoing, it is urged that the lower 
Court's remedial order of June 14, 1972, extends beyond any 
existing federal appellate precedent in school desegregation 
cases. Thus, clearly there exists a strong likelihood of re­
versal on appeal warranting the granting of a stay.

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B. IRREPARABLE INJURY IN THE ABSENCE 
OF A STAY________

Stated in the simpliest terms possible, with the 
stroke of a pen (order of June 14, 1972) the District Court 
wrought asunder 53 legally separate school districts, each, 
previously, governed by a board of education elected by the 
residents thereof, each having contractual rights and obliga­
tions with its teachers, employees, suppliers of goods and 
services, and bondholders, and each having the duty and the 
power under the constitution and laws of the State of Michigan 
to educate the children residing within their respective bound­
aries.

The District Court's Ruling on Desegregation Area 
and Order for Development of Plan of Desegregation, June 14, 
1972, (hereinafter June 14 order) is not prospective in its 
effect. It is a present order to integrate faculty and staff 
upon the commencement of school in September, 1972. Further, 
the order contemplates the implementation of an interim 
desegregation plan for at least grades K-6 in as many clusters 
as practicable in September of 1972. Since the schools are 
on vacation now, this implementation is immediate, at the 
soonest possible time.

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Neither is the June 14 order prospective insofar 
as requiring the Superintendent of Public Instruction to make 
appropriate interim and final arrangements for the financial, 
administrative and school governance, and contractual arrange­
ments for the operation of the- schools within the desegregation 
area. This imposes an immediate duty upon the Superintendent 
of Public Instruction and clearly contemplates implementation 
before the schools open in September, 1972.

In its Findings of Fact and Conclusions of Law on 
Detroit-Only Plans of Desegregation, March 28, 1972, pp. 3-4, 
the court, in rejecting the plaintiffs' desegregation plan, 
found that:

"3. The plan would require the development 
of transportation on a vast scale which, 
according to the evidence, could not be 
furnished, ready for operation, by the open­
ing of the 1972-73 school year. The plan 
contemplates the transportation of 82,000 
pupils and would require the acquisition of 
some 900 vehicles, the hiring and training 
of a great number of drivers, the procure­
ment of space for storage and maintenance, 
the recruitment of maintenance and the not 
negligible task of designing a transporta­
tion system to service the schools.
"4. The plan would entail the recasting 
of the Detroit school system, when there 
is little assurance that it would not have 
to undergo another reorganization if a 
metropolitan plan is adopted.
"5. It would involve the expenditure of 
vast sums of money and effort which would 
be wasted or lost.

- 26 -



I

it

"9. It would subject the students and 
parents, faculty and administration, to 
the trauma of re assignments, with litt'le 
TikeXTEood' that such reassIgnments would 
continue for any appreciable time."
(Emphasis supplied.)

One is compelled to ask, if this is the effect of 
the plaintiffs' plan for the desegregation of the Detroit 
schools alone, what must be the effect of the order of June 
14, 1972, which involves not one school district, but 53; 
not the teachers and administrators in one school district, 
but in 53; not 290,000 children but 780,000; the transporta­

' tion of not 82,000 children, but, ultimately, 310,000.

The June 14 order establishes a panel of 9 persons, 
subsequently expanded to 11 persons by the addition of 2 
teacher representatives, charged with the responsibility of 
preparing and submitting an effective desegregation plan in 
accordance with the provisions of the order. The June 14 
order requires the "state defendants" not only to provide 
funds but to pay all reasonable costs incurred by the panel. 
In addition, the order requires not only the parties, their 
agents, employees, successors, but all others having actual 
notice of this order to cooperate fully with the panel in its 
assigned mission, including, but not limited to, the provi­
sion of data and reasonable full and part-time staff assist­
ance. Further, the assistance provided by any school

- 27-



district through its employees or agents shall be at the 
cost of the school district.

First, the "state defendants" have neither the 
power to levy taxes nor to appropriate public funds for this 
purpose. Const 1963, Art IX, §17.

Second, the preparation of a desegregation plan 
"in accordance with the provisions of this order" not later 
than 45 days after June 14, 1972, will require, in addition 
to the expenses of the panel itself, the utilization of 
enormous resources normally devoted to other purposes. It 
is not only that these resources will be wasted upon a re­
versal of the decision, it is also that the purposes for which 
these resources were allocated will be cast aside and irre­
trievably lost.

Third, it is a well known fact that school dis­
tricts operate on. a limited basis with a limited staff doing, 
principally, housekeeping chores and planning during the 
summer months. Who is going to provide the data and assist­
ance required by the panel and how?

This order will also throw into a state of chaos 
collective bargaining contracts negotiated with the 53 school

- 28 -



districts, hiring ana assignment practices, grievance proce­
dures under contract, and tenure.

The June 14 order requires that "restructuring of 
school facility utilization necessitated by pupil reassign­
ments should produce schools of substantially like quality, 
facilities, extracurricular activities and staff." Each of 
the boards of education of the 53 school districts is em­
powered by state law to determine the courses of study to 
be pursued within its school district, the textbooks to be 
used, etc. The June 14 order necessarily requires each of 
the 53 districts not only to offer substantially identical 
courses of study and identical textbooks, but also the same 
courses of study and textbooks in the same grades. Therefore, 
the entire curriculum of 53 school districts will have to be 
revamped and new textbooks purchased, and someone will have 
to determine what the curriculum will be and what textbooks 
will be used. This disruption of the educational system for 
1/3 of the children of the State of Michigan with no assurance 
that the changes, if made, will be more than temporary, is 
intolerable and will irreparably harm such children.

Other problems that will be created by such an order 
relate to procedures for the suspension or expialsion of stu­
dents and uniformity of taxation. We must ask, uniformity at

- 29 -



what level and by what means? The order sets the stage for 
financial chaos and at least temporary destruction of the fi­
nancial responsibility and the credit of the school districts 
wherein 1/3 of the pupils in this state are educated.

School systems have but one purpose— the education 
of children. It is the children who will be the ultimate 
innocent victims of this judicially created desegregation 
remedy. It is they who will suffer the emotional trauma of 
an unprecedented change and will resuffer it upon a reversal 
of these orders. It is their education that will be inter­
fered with, probably irremediably. It is stressed that this 
impact will fall upon 1/3 of the public school children, over 
780,000 in the state are involved.

In view of the effect upon the education system and, 
primarily, upon hundreds of thousands of children, is it any 
wonder that this Court has held as a matter of law that irrepa­
rable harm could result to defendants from a denial of a stay 
order in fact situations far less compelling than those in the 
case at bar? See, order filed June 30, 1970, in Davis v School 
District of the City of Pontiac, Inc. #20,477, and stay order 
entered June 2, 1972, in Northcross v Board of Education of 
City of Memphis, No. Misc. 1576.

- 30-



The July 11, 1972 order of the lo w e r court, com­
pelling these defendants to pay for the purchase of 295 
buses, at an approximate cost of $3,000,000, for purposes of 
implementing an interim desegregation plan in the Fall term, 
1972, constitutes a grave crisis for these defendants. These 
defendants have no authority, under Michigan lav;, to appropri­
ate state funds, and by the mandate of Const 1963, Art IX,
§ 17, no money is to be paid out of the state treasury except 
pursuant to appropriations made by lav;. The Michigan legisla­
ture has not appropriated any funds to any of these defendants 
for the purpose of purchasing school buses. Thus, absent a 
stay, these defendants are placed in the untenable position 
of being required to act beyond their authority, under state 
law, prior to appellate review herein.

It has been suggested that these defendants will 
suffer no injury if they are forced to pay for the acquisition 
of transportation since any buses which may be purchased must 
be used for a Detroit-only plan of desegregation. This argu­
ment ignores that fact that if this or another court should 
determine that the Detroit School System is not segregated de 
jure, these defendants will be saddled with possible 295 school 
buses. Since the Detroit School System has no experience in 
the operation and maintenance of a fleet of school buses, it

- 3 1 -



is likely that the used buses will be in less than ideal con­
dition. Used school buses have no value for these defendants 
since they have never in their history allocated or sold 
buses to school districts and are not in the business of sell­
ing or allocating used school buses. Any suggestion that no 
irreparable harm will result to these defendants if they are 
required to purchase transportation ignores the fact that the 
Detroit Board is to acquire buses "by purchase, lease or other 
contractual arrangement." Order for Acquisition of Transporta­
tion. If as has been suggested the Detroit Board of Education 
should decide to lease a large number of vehicles, these defen- 

■ dants, depending on the contractual arrangements which are made 
by the Detroit Board, may end up with a huge bill and absolutely 
nothing to show for it.

It must also be remembered that this appeal seeks to 
reverse the very finding upon which a Detroit-only plan would 
be predicated--namely that there has been de jure segregation 
within the Detroit School System. This fact argues even more 
forcibly for the granting of a stay of proceedings.

Further, the expenditure of this vast sum of money 
will necessarily involve the reallocation of funds already 
appropriated for other functions of state government to the 
detriment of persons relying upon such appropriations. This

- 3 2 -



large outlay of funds for buses will be irretrievably lost 
to the people of the state of Michigan in the event that the 
District Court's metropolitan remedy is reversed upon appeal. 
Thus, this cause presents an even more compelling case for 
the granting of a stay than either Davis v School District of 
the City of Pontiac, Inc., supra, or Northcross v Board of 
Education of City of Memphis, supra, wherein this Court has 
previously granted stays pending appeal in school desegrega­
tion cases.



C. THE PLAINTIFFS WILL SUFFER NO
SUBSTANTIAL OR IRREPARABLE HARM 
IF A STAY IS GRANTED BY THIS COURT.

In addition to the manifest harm which will be 
accomplished on hundreds of thousands of Michigan school 
children, their parents, members of the public and these 
defendants if a stay is not granted, it cannot be reason­
ably said that irreparable harm will result to the plain­
tiffs if the stay is granted. The District Court has 
already recognized that a full integration plan will not 
be fully effectuated this fall. Ruling on Desegregation 
Area and Order for Development of Plan of Desegregation, 
(June 14, 1972) p. 4. It is therefore obvious that there 
will be many school cnildren (all 10-12 grade pupils as a 
minimum) who will not be included in the proposed remedy 
until at least the fall of 1973. If the implementation of 
the remedy as to these latter pupils can be postponed until 
1973, it cannot be honestly said that substantial or 
irreparable harm will result to the remainder of the 
children if the remedy is stayed as to them as well.

Nor is this a case in which protracted litigation 
may have the cumulative effect of denying to a group of 
children their substantive constitutional rights. This 
action was filed less than two years ago. Though the issues

- 3 4 -



have been hard fought and complicated they have been 
handled with expedition by these defendants. A substantial 
portion of the two year period was occupied by plaintiffs' 
attempts to secure preliminary injunctive relief both from 
the District Court and from this Court. These defendants 
have not attempted to protract the proceedings and, in fact, 
have in light of the serious constitutional questions 
presented, made every effort to assure the earliest possible 
review of the important issues framed by the suit. Thus, it 
cannot be said that there has been any undue delay in the 
effectuation of plaintiffs' constitutional rights in this 
cause.

The lower court has also, in this cause, built a
hedge into its order that will assure that even if a stay is
granted now, the plaintiffs' interests are adequately
protected if they prevail upon appeal. The District Court
has indicated that 53 separate school districts are to be
included in the desegregation area:

"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 
tire parties, apply to the Court for an 
appropriate modification of this order."
Ruling on Desegregation Area and Order 
for Development of Plan of Desegregation 
(June 14, 1972), p. 6 .

- 3 5 -



Such a ruling assures that any stay which may be granted 
in this cause will not adversely affect the racial balance 
which the Court is seeking to establish, since it assures 
that regardless of demographies! changes in the Detroit 
metropolitan area, the necessary alterations in district 
boundaries will be made to maintain the proper racial 
balance.

The practical considerations noted above, as well 
as the legal precedents which are presented later in this 
brief, all indicate that the plaintiffs will not be harmed 
by issuance of a stay and that its granting at this time 
would be proper.

- 3 6 -



D. THE PUBLIC INTEREST
The granting of a stay would be in the public 

interest because it would save the state educational system 
ana hundreds of thousands of school children and their parents 
from being forced to endure irreparable injury. There is one 
interest that will be served in jeopardizing the educational 
well-being of 1/3 of the public school children in the State 
of Michigan during the time required for appellate review of 
of this Couz't's unprecedented and sweeping remedy.

In its findings of fact and conclusions of lav; on 
Detroit-Only Plans for Desegregation, March 28, 1972, the 
District Court specifically found that the plaintiffs' Detroit- 
Only Plan for Desegregation should not be approved by the Court 
because, inter alia, "[i]t would subject the students and parents, 
faculty and administration, to the trauma of reassignments with 
little likelihood that such reassignments would continue for an 
appreciable time." (Emphasis supplied) The trauma that would 
have been experienced by students and parents, faculty and 
administration, by the implementation of a Detroit-Only Plan 
pales when compared with the trauma to be experienced in the 
53 school districts involving 4 times the number of children, 
teachers and parents. In light of the strong probability for 
the reversal of the unprecedented order of June 14, 1972, the 
teachers, the parents and especially the children should not be 
subjected to such trauma.

- 3 7 -



III.

STRONG PRECEDENT EXISTS IN LIGHT OF THE 
MAGNITUDE OF THIS CASE FOR THE GRANTING 
OF A STAY ORDER._____  ______ .

These defendants request a stay order that has been 
heretofore granted by this Court in cases of substantially 
less moment than this case. In Davis v School District of 
the City of Pontiac, Inc, 309 F Supp 734 (ED Mich, 1S70), aff'd 
443 F2d 573 (CA 6 , 1971), and Northcross v Board of Education 
of City of Memphis, 312 F Supp 1150 (WD Tenn, 1970), the Court 
of Appeals for the Sixth Circuit stayed District Court orders 
pending appeal. These orders are numbered and dated 20,477, 
June 3, 1970, and Misc. 1576, June 2, 1972, respectively.
As expressly noted in Davis, supra, the stay was granted 
because of the probability of irreparable harm occurring 
to the defendants-appellants, the lack of such injury to 
the plaintiffs-appellees if such stay were granted, and because 
such stay was in the public interest.

Neither of these cases involved anywhere near the 
vast number of affected students, parents and teachers as this 
case. In neither of these cases were the legitimately and 
constitutionally established units of local government 
threatened or razed by the order of a district court without 
notice, hearing or finding of de_ jure segregation as to those

- 3 8 -



local government units. Nor did the possibility of reversal 
on appeal, either because of the lack of federal appellate 
precedent for the order, or the admission of improper evidence 
of housing discrimination, appear as strong as it does here.
Yet in both of these cases stay orders were granted. Surely, 
if there was any justification for staying these cases, that 
justification many times over exists here.

Defendants are here ordered to spend funds not autho­
rized by the legislature for the costs of the panel, hiring 
black counsellors and to provide inservice training for some 
33,000 teachers and administrators and assume various other 
costs in support of the District Court's order of June 14, 1972. 
The cost, estimated by these defendants, of an interim program 
of inservice training prior to the opening of the 1972-73 school 
year is over $3,000,000. This orders these defendants to perform 
actions not authorized by Michigan law and to expend state funds 
contrary to state laws not found unconstitutional by the District 
Court.

Under Michigan law the power of the purse is reposed 
in the legislature. Const 19G3, Art IV, §30:

"The assent of two-thirds of the members elected 
to and serving in each house of the legislature 
shall be required for the appropriation of public 
money or property for local or private purposes."
Const 1963, Art IX, §17:

- 3 9 -



"No money shall be paid out of the state 
treasury except in pursuance of appro­
priations made by law."

In remedying state imposed segregation in the public 
schools, the federal courts may only order state officials 
to exercise such powers as they possess under state law. This 
rule was succinctly stated in Bradley, et__al_ v School Board 
of the City of Richmond, Virginia, et al, 51 FED 139 (1970),
as follows:

"To be sure, state officials may only be 
directed, in fulfillment of this duty, to 
use those powers granted to them by state 
law. For this reason the relief which 
may be demanded of state, as opposed to 
local, officials is restricted. Smith v. 
North Carolina State Board of Education, 
Misc. No. 674 (4th Cir., July 31, 1970).
By the same token there will be certain 
relief which local officials are incapable 
of affording. Cf. Thaxton v. Vaughan,
321 F.2d 474 (4th Cir. 1963). In each 
case, however, the obligation is commen­
surate with the scope of the power con­
ferred by state law."

The same principle was applied in United States v 
School District 151 of Cook County, Illinois^ 301 F Supp 201 
(ND 111, 1969), where the District Court for the Northern 
District of Illinois declared that a person's constitutional 
rights could not be denied merely because the implementation 
of those rights would require the expenditure of funds though

-40-



the court did not reject the concept that financial resources 
were relevant to the type of plan enacted. It did say that 
funds must be raised by the schools to the extent that they 
were authorized.

"...Ultimately, however,public officials
must '* * *** exercise the power that is theirs
***to raise funds adequate to***maintain 
without racial discrimination a public 
school system.***' Griffin v County 
School Board, 377 U.S. 218, 233, 84 S.Ct.
1226, 1234, 12 L.Ed. 2d 256 (1964)." 
p. 232

The Griffin case cited in the prior quotation 
clearly stands for the proposition that a local taxing 
authority will be required to levy taxes only if it has 
the statutory power to do so, but not otherwise.

In Bradley v School Board of the City of Richmond,
Virginia, __  F2d ___ (Case Nos. 72-1058 to 72-1060 and
72-1150)(CA 4, June 5, 1972), the Court of Appeals for 
the Fourth Circuit reversed the metropolitan remedy ordered 
by tire District Court. A stay had been there issued, pending 
appeal, so that the three separate school districts involved 
would not be forced to raze their boundaries and many children 
subjected to the trauma of such an order when the possibility 
of reversal on appeal, subjecting these children to the trauma 
a second time, appeared so strong. The magnitude of this case

- 4 ! -



is far greater than Bradley v Richmond, supra, and a stay, 
therefore, even more necessary, especially since some of the 
suburban school districts involved in the desegregation plan 
have not participated as parties in this litigation in any way.

In Corpus Christi Independent School District v
Cisneros, 92 S Ct 9 (.1971) , Mr. Justice Black sitting as
Circuit Justice reinstated the stay order of the district
court which had been vacated by the Court of Appeals. He
specifically held that where a case was in an undesirable
state of confusion, presenting questions not heretofore passed
on by the full court, but which should be passed upon, and where
the case presented a very anomalous, new and confusing situation,
it was proper that a stay order be issued pending decision on
the merits by the full Court of Appeals. Those questions Justice
Black referred to were spelled out in Cisneros v Corpus Christi
Independent School District, 448 F2d 1392 (CA 5, 1971). The
dissenting opinion there phrased the questions as: one, "[W]hat
is to be the test in determining the question of discrimination
vel non in a non-dual school system, i.e., one which has never
been segregated by law?" and two, "Should the remedy be commensurate
with the particular determination found to the end of eliminating
that discrimination, or should the entire school system be recon­

*stituted notwithstanding the degree of discrimination?"
(Emphasis added) These are the very questions defendants 
wish to argue on appeal.

4 2 -



• •

Defendants respectfully assert that the requirements 
to grant a stay have been met. The scope of this remedy 
coupled with its probability of reversal constitutes irre­
parable injury to the defendants. The lower court itself has 
recognized that a full desegregation plan this Fall is not 
necessary and cannot therefore assert that the granting of 
a stay will work irreparable harm on the plaintiffs. This 
ois expressly what Davis, supra, recognized.

Moreover, the granting of such a stay to preserve 
the staus quo on appeal, Pettway v American Cast Iron Pipe 
Co, 411 F2d 998 (CA 5, 1969), reh den 415 F2d 1376 (CA 5, 
1969), or until the Supreme Court can decide a pending case 
which will settle many of the questions in the instant case, 
Blue Gem Dresses v Fashion Originators Guild of America, 116
F2d 142 (CA 2, 1940), is the only way these defendants and 
thousands of school children, their parents and teachers can 
be insured the protection of their rights pending full and 
final appellate review. Presently pending before the United 
States Supreme Court is Keyes v School District No. 1, Denver, 
Colorado, 445 F2d 990 (CA 10, 1971), cert granted 404 US 
1036 (Jan. 17, 1972), a case which these defendants feel will 
resolve many of the issues in the instant, case.

- 4 3 -



IV.

ALTERNATIVELY, THIS COURT MUST GRANT 
THE MOTION FOR STAY PURSUANT TO RECENT 
LEGISLATION ENACTED BY THE CONGRESS.

On May 24, 1972, the United States Senate, by vote 
of 63-15, agreed to the conference report on S.659, Cong. 
Rec. Vol. 118, No. 84, S8403. On June 8, 1972 , the United 
States House of Representatives, by vote of 218-180, agreed 
to the conference report on S.659. Cong. Rec. Vol. 118,
No. 93, H5446-5447. This legislation, S.659, has been signed 
into lav; by the President and has become PL 92-318.

In S.659, Title VIII, Section 803 thereof provides 
as follows:

"Notwithstanding any other law or provision 
of law, in the case of any order on the part 
of any-United States district court which 
requires the transfer or transportation of 
any student or students from any school 
attendance area prescribed by competent 
State or local authority for the purposes 
of achieving a balance among students with 
respect to race, sex, religion, or socio­
economic status, the effectiveness of such 
order shall be postponed until all appeals 
in connection with such order have been 
exhausted or, in the event no appeals are 
taken, until the time for such appeals has 
expired. This section shall expire at 
midnight on January 1, 1974." Cong. Rec. 
Vol. 118, No. 93, II5406-5407

-44-



These defendants submit that the above quoted section 
compels the granting of a stay of the District Court's order 
of June 14, 1972.

Page 4 of such order clearly requires the development 
and implementation of a transportation plan involving grades 
K-6 , as an irreducible minimum, by the Fall, 1972 term. ihus, 
Title VIII, Section 803 of S.659 is clearly applicable to the 
order of June 14 , 1972.

Any potential doubts on this point are quickly resolved 
by reference to the legislative history of this statutory sec­
tion as follows:

"Mr. O'HARA. Mr. Speaker, I am particularly 
interested in the provisions of section 803 
of the conference report.
"First, I would like to ask Mr. Broomfield 
about his meaning when his amendment spoke of 
an order of a district court requiring the 
transfer or transportation of students 'for 
the purpose of achieving a balance among  ̂
students with respect to race, sex, religion, 
or socioeconomic status.! In all ox uhe 
court orders with which I am familiar, cue 
court has stated that its purpose is to pre­
vent unconstitutional segregation or students. 
May I inquire of the gentleman from Michigan 
if it was his intention that section 803 
apply to orders that have the practical effect 
of achieving some sort of racial balance, 
although the court may have stated that its 
order was entered for the purpose of correct 
ing unconstitutional segregation?

- 4 5 -



"Mr. BROOMFIELD. Yes; it was iny intention 
to cover such cases and specifically, it was 
my intention to cover cases like those now 
being litigated in Richmond and Detroit.
"Mr. O'HARA. May I ask the chairman of the 
conference committee, the gentleman from 
Kentucky, if his understanding is the same 
as that of the gentleman from Michigan (Mr. 
Broomfield)?
"Mr. PERKINS. Yes, it is. It is my under­
standing that section 803 covers district 
court orders which require the transfer or 
transportation of students for racial pur­
poses whether the court order is framed in 
terms of correcting unconstitutional segre­
gation or whether it is framed in terms of 
'achieving a balance among students with 
respect to race.'
"Mr. O'HARA. If I could continue to have the 
attention of the gentleman from Kentucky, the 
effective date of section 803 is July 1 of 
this year.
"The joint explanatory statement of the com­
mittee of conference says:
"This section does not authorize the reopening 
of final orders, however, appealable orders 
are considered to be within the scope of this 
amendment.
"Does this mean that if an order requiring 
the transfer or transportation of students 
has been entered prior to July 1, 1972, the 
effectiveness of such order shall be post­
poned until all appeals in connection with 
such order have been exhausted or, in the 
event that no appeals are taken, until the 
time for such appeal has expired?
"Mr. PERKINS. The gentleman from Michigan 
is correct. Section 803 will apply to such 
orders whether entered before or after July 
1, 1972, as long as appeals of such orders

- 4 6 -



t

have not been exhausted or, in the event no 
appeal of such was taken * until the 
time for such appeal has expired.
"Mr. O'HARA. I thank the gentleman from 
Michigan and the gentleman from Kentucky 
for their explanations and I urge adoption 
of the conference report with the very 
important provisions contained in section 
803." Cong. Rec. Vol. 118, No. 93, H5416

This legislative debate compels the conclusion that 
section 803 applies to the order of June 14, 1972, which at 
p. 6 , provides as follows:

Within the limitations of reasonable travel 
time and distance factors, pupil reassign­
ments shall be effective within the cluster's 
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 overair“pupil racial 
composition...." (Emphasis supplied.)

The practical effect of such order is manifestly 
to achieve some sort of racial balance, thus invoking the 
mandatory stay provisions pending appeal of Title VIII, Sec­
tion 803 of S . 659.

- 4 7 -



Moreover, the District Court's order of 
July 11, 1972 requires the acquisition of at least 295
bUSeS f01‘ “Se in the inters desegregation plan during the ' 
1972-73 school year. Thus, it is manifest that such order, 
itcred aftci. July 1, 1972, involves the acquisition of buses 

lor the purpose of transferring and transporting children 
from the school attendance area otherwise prescribed by 
local boards of education. Consequently, it is beyond 
arspute that Sec. 803 is equally applicable to the District 
Court's order of July 11, 1972. To hold otherwise would be 
to disregard the clear intent of a coordinate branch of 
government, the Congress of the United States.

In summary, the lower court’s order of June 14,
1972 compels pupil reassignment to achieve racial balance 
within the desegregation area. The order of July n, 1972 
compels the acquisrtion of buses for the purpose of trans­
porting pupils from their school attendance areas for the 
purpose of achieving such judicially required racial balance. 
Thus, the conclusion is compelled that Sec. 803 mandates
a stay of lower court’s orders of June 14, 1972 and July 11, 
1972.

48-



CONCLUSION

To conclude, the District Court, relying initially . 
upon the opinion of Judge Merhige, which was subsequently 
reversed by the Court of Appeals for the Fourth Circuit in 
Bradley v School Board of City of Richmond, Virginia, supra, 
and without notice, hearing, proofs or findings as to either 
the establishment of the boundaries of the 53 affected school 
districts comprising the lower court's desegregation area or 
any de jure conduct by the 52 suburban school districts, 18 of 
which are not even parties to this cause, has .decreed implementa 
tion of interim, Fall term 1972 and Final, Fall term, 1973, 
plans of pupil and faculty desegregation. The lower court’s 
orders compel these defendants to disburse vast sums of money 
contrary to state lav; and prior to appellate review, thus 
generating a serious crisis. Further, such orders disrupt 
the educational processes of 53 school districts affecting the 
administrators, teachers, pupils and parents of each school 
district, all in the absence of appellate review of such orders. 
In tiie event these unprecedented school desegregation decrees 
are not stayed, but are ultimately reversed on appeal, 
considerable funds will be irretrievably lost and the affected 
children, parents, teachers and administrators will undergo 
the trauma of further reassignments.

- 4 9 -



In connection with the District Court's denial of a 
stay pending appeal, it must be emphasized that in the lower 
court's Findings of Fact and Conclusions of Lav/ on Detroit- 
Only Plans of Desegregation, issued March 28, 1972, the Court 
found, inter alia, that a Detroit-Only remedy could not be im­
plemented by toe opening of the 1972-73 school year, that such 
a remedy would involve wasting vast sums of money and effort 
in the event a metropolitan remedy was ultimately to be 
implemented and that such a remedy would subject students, 
parents, faculty and administrators to the trauma of reassign­
ments with little likelihood that such reassignment would 
continue for any appreciable time. These defendants submit 
that such findings are compelling reasons for the granting of 
a stay by this Court, pending appellate review of the momentous 
constitutional law questions involved herein, prior to the 
implementation of interim and final metropolitan remedies in 
this cause.

RELIEF :

WHEREFORE, these defendants respectfully request 
that this Court permit an appeal to be taken from the interlocutory 
order of the District Court dated July 20, 1972, and to enter 
an order to stay proceedings in the District Court with the 
exception that the panel authorized by the June 14, 1972,

- 5 0 -



#

order be permitted to complete its work by July 29, 1972, as 
ordered by the District Court and that such other planning 
ordered by the District Court in the June 14, 1972, order be permitted 
to be completed by July 29, 1972. These defendants request that 
proceedings before the District Court be stayed in all other 
respects pending a review by this Court of the entire case 
under the order of the District Court of July 20, 1972.

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

Respectfully submitted,
FRANK J. KELLEY 
Attorney General
Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Gerald F. Young 
Assistant Attorneys General 
Attorneys for State Defendants

5 1 -



APPENDIX

Tne following documents, included as the Appendix 
xn these defendants'Petition for Permission to Appeal Certain 
Orders Involving Controlling Questions of Law as Certified by 
the District Judge Pursuant to 28 USC 1292(b) are herein 
incorporated by reference:

A. Ruling on Issue of Segregation (September 27, 1971)

Findings of Fact and Conclusions of Law on 
Detroit-Only Plans of Desegregation (March 28, 1972)

C. Ruling on Propriety of Considering a 
Metropolitan Remedy to Accomplish 
Desegregation of the Public Schools
of the City of Detroit (March 24, 1972)

D. Ruling on Desegregation Area and Order 
for Development of Plan of Desegregation (June 14, 1972)
Findings of Fact and Conclusions of Lav; 
in Support of Ruling on Desegregation 
Area and Development of a Plan (June 14, 1972)

E* Order for Acquisition of Transportation June 11, 1972