Emergency Application for Stay

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

NO.

RONALD BRADLEY, et ai, 

vs.
WILLIAM J. MILLIKEN, et ai,

Appellants 0

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

MOTION FOR INJUNCTION PENDING APPEAL

Of counsel:
J. Harold Flannery 
Paul Dimond
Center for Law and Education 
Harvard University 
Cambridge, Massachusetts

Louis R. Lucas 
William E« Caldwell 
Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee
Nathaniel Jones, General Couns 
N.A.A.C.P.
1790 Broadway 
New York, New York
Bruce Miller and 
Lucille Watts, Attorneys for 
Legal Redress Committee 
N.A.A.C.P., Detroit Branch 
3426 Cadillac Towers 
Detroit, Michigan, and

. j

Attorneys for Appellants



6 #

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

NO.

RONALD BRADLEY, et al,
Appellants,

vs.
WILLIAM J. MILLIKEN, et al?

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

MOTION FOR INJUNCTION PENDING APPEAL

TO THE HONORABLE HARRY PHILLIPS, CHIEF JUDGE OF THE UNITED 
STATES COURT OF APPEALS FOR THE SIXTH CIRCUITs

Come now the plaintiffs in the above-captioned case through 
their undersigned counsel and, pursuant to Rule 8 of the Federal 
Rules of Appellate Procedure„ respectfully move the Court: to 
issue an order preventing the Detroit School Board and the State 
Board of Education from giving any force or effect to the first 
sentence of Section 12 of Act 48, Michigan Public Acts of 1970 
(Mich. Comp. Laws Ann. §§388.171 et seq.? Mich.1Stat. Arm. 1970

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Cum. Sapp, and Cur. Mat. §§15.2298(1) et seq.) and requiring

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. implementation for the 1970-71 school year of the plan of high 
school desegregation adopted by the Board of Education of the 
City of Detroit, Michigan, on April 7, 1970, pending an appeal 
from the decision of the District Court on September 4, 1970 
denying plaintiffs' motion for preliminary relief as to Act 48 
student and faculty desegregation and granting the motion to 
dismiss the Governor and Attorney General of Michigan as parties 
defendant•

On August 18, 1970, plaintiffs filed their Complaint in the 
United States District Court for the Southern District of 
Michigan seeking, inter alia, the desegregation of the Detroit 
public schools and a declaration that Section 12 of Act 48 of 
the Michigan Public Acts of 1970 is unconstitutional on its face 
and/or as applied,, Both in their prayer for relief in the 
Complaint (App. \2) — and in their separate "Application for 
Order to Show Cause Why Preliminary Injunction Should Not Issue", 1 • i ' i i *
(App. 51) plaintiffs sought injunctive relief against enforcementI • :• : < ! i : * * * ■ • ! ' '
of Section 12 of Act 48 (App.. IS) on the grounds that Section 12

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by its terms stayed, at least until January 1971, implementation 
of the Detroit Board's high school attendance boundaries, which 
were drawn on April 7, 1970 (and which have not been rescinded),

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•for the purpose of desegregation of twelve Detroit senior high

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l/"App•" references are to the separate Appendix presented with 
this motion. The page references are to the number appearing on 
the right-hand bottom corner of each page in the Appendix.

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schools.?/ A hearing on plaintiffs’ requests for preliminary 
relief was held on August 27, 28 and September 1 and the District 
Court set aside two weeks beginning on November 2, 1970 for a 
full trial on the merits. The facts relevant to the motion can
be stated with relative brevity.

The plaintiffs are pupils and parents of pupils, Negro and * 
white, who attend the Detroit public schools, and the Detroit 
Branch of the National Association for the Advancement of Colored 
People, an association organized for the purpose of securing equal 
opportunities and equal protection or the laws ror all persons in
the City of Detroit. The defendants are the Governor of Michigan, 
the Attorney General of Michigan, the Acting Superintendent of 
Public Instruction of Michigan, the Michigan State Board of Educa­
tion, the Board of Education of the City of Detroit, three of its 
members,?/ and Dr. Norman Drachler, Superintendent of the Detroit! ' t ' i 1 ■ * '
public schools.

During the 1969-70 school year, some 293,859 pupils attended■ ; • ; I ' i • . I ,

2/Also in their requests for preliminary relief plaintiffs soughts 
Tl) elimination of the1 "stair-step" and "brother^sister" features 
of the Board's April 7 plan? (2) to enjoin all further school con­
struction pending adoption of a complete plan of desegregation?
(3) to require desegregation of faculties in accordance with the 
ratio of Negro and white teachers throughout the system.
3/The Detroit Board normally consists of seven members, but at the 
time the Complaint was filed, four of the members (the four who 
voted for the April 7 plan of desegregation) had been recalled by 
the voters in an election held August 4, 1970 (discussed, infra). 
On August 31, 1970, the Governor appointed four new members to the 
vacancies created by the recall vote. , ,

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the Detroit public schools. Of this number, 180,630 or 61.5 
percent were black, 108,264 or 36.8 percent were white, and 
4,965 or 1.7 percent were members of other ethnic minorities.
(Tr. 185-86)1/ Of the total 253,859 pupils attending Detroit 
public schools, 271,619 attended regular schools serving designated 
attendance areas. (The Detroit Board operates several special, 
"non-attendance area" schools, including one high school, which 
serve pupils on a city-wide basis and are nor limited to designated 
attendance areas.) Of these 271,619 regular pupils, 167,801 or 
61.7 percent are black, 99,117 or 36.4 percent are white, and 
4,701 or 1.9 percent are of other ethnic minorities. (Plf. Ex.
7? App.l30)e of these same 271,619 pupils, 123,015 or 45.3 per­
cent attended schools with pupil enrollments over 90 percent Negro?

i-

47,649 or 17.5 percent attended schools with pupil enrollments 
over 90 percent white. In all, 170,664 or 62.8 percent of the5 - ' ' ■ ' ■! ‘ t -
271,619 regular school pupils attended schools which were composed

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(more than 90 percent) of white or Negro children. (Plf. Ex. 7?
App.130). ■ ■' ' i ’ i . • ■

With respect to faculties during the 1969-70 school year,., i ■ . ■ , .■ • . i i ■ ■ ■,
there were 10,707 faculty members (excluding certain special, in-

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service and reacher corps personnel (Tr. 180-81)), of which some.1 , • I I ! I • • < ! 1 • 1 : I • I I : | i ( I ' I • I
4,112 or 38.4 percent were black. There were 56 regular schools 
with faculties (teachers, counselors and administrators) less

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^/Unless otherwise indicated, transcript references are to the 
testimony bf Dr. Norman'Drachler, the Superintendent of Schools.

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than 10 percent black, of which 47 were schools with more than 
80 percent white student enrollments. Also, there were 61 schools 
whose faculties were more than 60 percent black? all 61 of these 
schools had student bodies which were more than 90 percent; black. 
{These same 61 schools, of course, had student bodies more than 
80 percent black.) (PXf. Ex. 8? App.131).

At the hearing, plaintiffs presented a document entitled, 
"Findings and Recommendations of the Citizens Advisory Committee 
on Equal Educational Opportunities", released in March 1962.
(Plf. Ex. 3? Tr. 129-30). This report contains findings of the 
committee appointed by the defendant Detroit Board with respect
to equal educational opportunities available in the Detroit public

/
schools in 1962, based upon information furnished by the Board.
{Tr. 130-31). Superintendent Drachler was a member of the 
committee {Tr. 129) and personally adopted the conclusions of 
its report. {Tr. 131). The committee report concluded, and Dr.

c  ! ' j I > ; • i i ' t • i • i • i ■ ’ 1 . 1

Drachler agreed, that the Detroit school system had engaged in 
acts and practices which had the purpose and effect of separating 
pupils on the basis of race. The Superintendent testified that 
such acts and practices have included the discriminatory use of 
optional attendance zones which had the effect of maintaining 
racially separate schools, pupil transportation, including busing 
of black children to black schools past white schools with avail­
able space, and "open enrollment" or "free transfer" provisions.

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(Tr. 139-44). The committee also concluded, and again Dr. Drachler
• »  |  *  i  ' ♦  ' • * * i i  J  . ‘ - *' *

agreed, char, as late as the year 1961, tne Detroit system was3 i , . , , ' • I * > | > I “ f 1 > i I *•!' ' ' I •
I * '1 I

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guilty of a racially discriminatory policy and practice of 
faculty assignments, so that all-white or nearly all-white 
faculties were assigned to schools with all-white or nearly all- 
white student enrollments and most black teachers were assigned 
to schools with racially mixed or all-black student enrollments. 
(Tr. 133-35).5/

Further evidence of the unequal educational opportunities 
available to black children in the Detroit school system is 
demonstrated by Plaintiffs' Exhibit No. 9 (App.132) which graphi­
cally depicts eighth grade achievement test scores in schools 
which have student enrollments which are over 90 percent black
{and which have eighth grades) as compared to the eighth grade
scores in schools over 90 percent white. The exhibit revealsi I1 • 1. ■ i
that in the nineteen {19) schools with eighth grades which are* i
over 90 percent white, the mean score in every such school was 
higher than the city (Detroit) mean of 6.8 (with five of the 
nineteen schools having means higher _than the national mean or 
8.1), while in the eighteen (18) over 90 percent black schoolsi
not a single school had a mean score as high as the city mean of
- - - - - - - - - - - - - - - - - - - - - - = ! - - - - - - - - - - - - - - - - - - - - - -  |  I  : ■ I

5/Plaintiffs also introduced proof, by way of the Detroit Board's 
Title I application' (Plf. Ex. 4? Tr. 145)', that the Detroit area 
reflects "the general characteristics of communities which are 
segregated on the basis of race" and that in Detroit "Negro 
residents are forced to live under the physical and psychological 
evidence that they are considered to be inferior and that they 
are looked down on. They are forced to endure indignities in 
public and private interactions from the classroom Situation to 
the most casual kind of interracial encounter." (Tr. 148-49).

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111 11>  I  t I. I : f . lilt! I i ; i i ■ n ■ i i  I  i  < i i

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6 . 8 , (Plf. Ex. 9? App.132) .!§/
With this background of unequal educational opportunity, 

the Detroit Board of Education, on April 7, 1970, adopted a plan 
which provided, among other things!/ for changes in twelve high 
school attendance zones which would result in greater pupil 
desegregation at the high school level. (Tr. 11-14). The Detroit 
system has twenty-one regular high schools that serve designated 
attendance areas„ (Tr. 220). The twelve schools involved in the 
April 7 attendance area changes serve thirty to thirty-five 
thousand pupils (over 50 percent of the total high school enroll­
ment) . (Tr. 14,232). The April 7 plan was to take effect over 
a three-year period, affecting only those entering the tenth grade 
this coming, 1970-71, school year. By applying the changes at 
the affected schools in successive stages, the eleventh grade

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would be affected at the start of the 1971-72 school year, and 
the twelfth grade at the beginning of the 1972-73 school year.

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(Tr. 14, 231-32). Ultimately, the plan would result in the transfer 
of only ten to twelve thousand students (3 to 4 percent of the total

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6/For the correct remedy for this achievement disparity see Monroe y 0 
Board of Commissioners of the City of Jackson, Tenh., No. 19720 (6th 
Cir. June 19, 1970), holding that "greater, not less, student and 
faculty desegregation is the proper manner in which to alleviate the 
problem." (Slip Opinion at 5)„
7/Contemporaneously with the April 7 plan of high school desegrega­
tion, the Board adopted a seven-region plan of decentralization 
pursuant to Act No. 244 of the Michigan Public Acts of 1969 (Exhibit 
B to Complaint; App. 21) which Act provided the mandate and means 
for the administrative decentralization of the Detroit school 
system, and the extent thereof. This was not a question'for don- 
sideration at the hearing below and is not here presented.

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enrollment) in the twelve affected high schools. (Tr. 14, 232). 
For this coming, 1970-71, school year, however, the plan would 
involve the transfer of only three to four thousand students or 
only one percent of the total enrollment. (Tr. 231-32). The 
Board's April 7 plan (Exhibit D to Complaint? App. 24) and its 
effect on the twelve high schools involved is demonstrated by the 
following table (taken from the plan, App. 33-35 5 :

Percentage of Black Students With and Without the April ,7 Plan
1970-71 1971-72 1972--73

Affected 
High School

Without
Change

With
Change

Without
Change

With
Change

Without
Change

With
Change

L  Western 39.2 44.6 51.0
2. Southwestern i 71.3

, • i ' ,
60.8 i . -i ; ,

53.0i .■

3. Cody 3.3 ! ' ’ M 9.7! • 1 4.41 l 20.9 5.7i- i i ,
31.3• ! :

4. Mackenzie 90.7 83.8 90.6 78.9; • i
89.3 69.9

5„ Redfora 3.6 11.4i '
3.6

I I ;  i
20.5\ i i' * 4.5

• l f \
29.2

6. Cooley ' 61.5 53.0 63.6 49.7 62.6
. , l » 42.6

* * i 1

7 o Ford 13.5
t I

16.3 15.5 26.5
»

14.7
. i (

31.3
8. Mumford 95.8l ' i i . 1 94.9

i , , , . <  v
94.9

. i • •
94.4 ■ •

94.6
. t •

93.8
9 .  Pershing 58.3 50.9 59.5 46.5 58.0 41.8

10 .  Osborn 17.5 22.8 21.7. i j32.7i ■ 1 • • • '
27.3

f , . ; i
45.8

11. Kettering 91.4
i  * • •

81.3
i

91.0
1 i ’ * :

73.9 90.8 65.1
12 .  Denby 2.4 19.3

* i

1.7
. . . . . . . . . i

36.2 0.9
v i  . . . .

53.9
i

The figures in the foregoing table are based on the Board's 19
racial count and the prediction^ under

< • ) \\ ' •  • •

the April 7 plan
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"are
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* based on the concept that the populations as of then were frozen, 
so to speak." (Tr. 231). As the table demonstrates, of the 
twelve schools affected by the April 7 plan, three (Mackenzie, 
Mumford, Kettering) are over 90 percent black and three (Cody, 
Redford, Denby) are over 90 percent white.?./ Under the April 7 
plan only one of these schools (Mumford) will remain over 90 per­
cent of either race by the start of the 1972-73 school year. 
Furthermore, as Superintendent Drachler testified, the April 7. 
plan involved little or no increase in the number of students 
requiring transportation by public transit. (Tr. 20)?/

The Board’s April 7 plan of desegregation was widely acclaimed 
as a significant step toward providing equal educational opportunity 
in Detroit's high schools. Superintendent Drachler strongly

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supported the plan because, on the basis of the credible "researchi t i , i . j
and scholarship", it was his "view that integration, racial,

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religious, and economic, has a positive effect on the learning of
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all children in a pluralistic society." (Plf. Ex„ 1; Tr. 49-50).
•  i  • • i  _  :

8/0f the nine regular high schools not affected by the April 7 plan, 
seven (Central, King, Murray-Wright, Northeastern, Northern, North­
western and Southeastern) are over 90 percent black. (Plf. Ex. 7A).
These schools remain unaffected by the April 7 plan. ' 1 ' ’ ' '
9/40-47 percent of Detroit’s public school children1 travel to and 
from school via public transport. (Tr. 18). In addition, the 
system itself transports some 2,500 children to relieve overcrowding, 
for safety reasons, etc. (Tr. 160-162). The Board also provides 
public transportation (Detroit Street Railway) via prepaid tickets 
to a number of indigent students. (Tr. 24). Non-indigent students 
who ride public transit pay a student fare of 15 cents With tickets 
sold by the Board as compared to the regular fare of 35 cents.
(Tr. 25). In all, the Board spends roughly one milli6n dollars a 
year for pupil transportation. (Tr. 26).* ' ' I ‘ * * I | m ' « * » I i ■ * i ■ ! i , ( t i 'ill | i * » • .* . I i

I it { ■ » !«’»', t I • f < I ! I I ' * } l 1 • i • t * H { t H » , t » 1 4 I .



, The plan was supported on similar grounds by numerous nationalj
and local leaders and organizations, including the United States 
Office of Education. (Tr. 33-34). The defendant Michigan State 
Board of Education and the Michigan Civil Rights Commission 
endorsed the plan because its tendency "to reduce the harmful 

s educational effects of racial isolation [is] consistent wren the
equal educational opportunity position of the State Board of 
Education." (Tr. 34-35). The Michigan Association for Supervision 
and Curriculum Development also whole-heartedly endorsed the plan 
on the premise that desegregation is "vital" to quality education« 
(Tr. 44)*

Following the Detroit Board’s adoption of its plan of April 
7, 1970, the Michigan legislature enacted, and on July 7, 1970,? • i ,i i i i. ■ i i ■ ■ 1
Governor William J. Milliken signed into law, Act No. 48, Public

; [ , : . : I : ; . I ! 5 ' l • ' < ! ‘ » f ' j i  '

Acts of 1970. Also following adoption of the April 7 plan, a■■ ' ' -i ■ \ . i ‘ ' ' . ■ .1
movement was initiated to recall by popular election the four

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board members who voted in favor of the plan. The recall movement 
culminated in removal from office of the said four board members., i , • 1 : i ■ i i i i r i •' i . i i * • • > > 1 ' 11 ' 1 l ■ 1

Act 48 (Exhibit A to Complaint? App. 16) was an amendatory
act to Act No. 244, Public Acts of 1969 (Exhibit B to Complaint?■ ; ” * ' j ' • ! . • ' i 1 1 i i i > ■ ' . 1 ' ; • .; *
App. 21), and, like the recall election, was a direcu reaction 
to the Board’s April 7 plan.M/ The first sentence of Section 12

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10/Some quotes from the legislative journal show the motive and 
effect of Act 48 as a response to the Board’s April 7, 1970 • 
desegregation plan.Rep. Vaughn: "First, the HOuse today, and 1 think this is perhaps
the saddest day - April 9 will go down in history - in Michigan
(continued on next page)1

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r .  '  !  1  ;  i t  ,  , ' ( ! , . •  .  , I  )  ,

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* of Act 48 is the major subject to this motion and reads as followss
The implementation of any attendance provisions for 
the 1970-71 school year determined by any first 
class school district board shall be delayed pend­
ing the date of commencement of functions by the 
first class school district boards established under 
the provisions of this amendatory act but such pro­
vision shall not impair the right of any such board 
to determine and implement prior to such date such 
changes in attendance provisions as are mandated by 
practical necessity.

10/(continuation)
history. It is the day the House of Representatives, at the State 
Capitol, Michigan, voted officially to nullify the bill of rights 
and the constitution and violate the basic laws of the United 
States Supreme Court. ... And what did the State House today 
say? We must segregate. Nullification. This is what southern 
senators do - plot on how to circumvent a basic rule, a basic rule 
that would bring the schools together." House Journal No. 49, p. 
1120 (April 9, 1970).
Rep. Mrs. Elliott: The passage of this bill is a step backwards
because of the crippling amendments that will continue to perpetuate 
segregation. House Journal No. 49, p. 1122 (April 9, 1970).
Rep. Mrs. Saunders, June 5, 1970, No. 88, p. 2160: I voted no on 
the Senate substitute for House Bill No. 3913 because I believe it 
can only have the result of furthering and intensifying segregation 
in education, a segregation which has been contrary to the law of 
the land since 1954. Many of you sat smugly in Michigan while the 
southern states protested the Brown v. Topeka Board of Education 
landmark decision. You thought you were so much more virtuous i~n 
this basic humanitarian tenet of considering all men as equal arid~ 
realizing that separate is not, never was, and never can be equaT.
... I am disappointed - I'm deeply disappointed - I'm ashamed of 
your action and response to racist fears. You have helped to both 
divide and move our society in a backward direction. (Emphasis 
supplied)

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There is one facet of the case on which all parties are in 
agreement: the first sentence of Section 12 stays, at least until 
January 1, 1971, the attendance area changes of the Board's April 7 
plan® The answer of the state defendants in opposition to the 
order to show cause (App. 71), states:

1. In answer to paragraph 1 of the order to show 
cause, defendants assert that the implementation of 
the senior high school attendance area changes 
adopted by defendant, Detroit Board of Education, 
on April 7, 1970, has been delayed by Section 12 of 
Act 244, PA 1969, as added by Act 48, PA 1970, 
pending the commencement of functions by the first 
class school district board in January, 1971.
2. In answer to paragraph 2 of the order to show 
cause, defendants assert that Section 12 of Act 
244, PA 1969, as added by Act 48, PA 1970, delays 
the implementation of any attendance area changes 
not mandated by practical necessity pending the 
commencement of functions by the first class school 
district board in January, 1971.

The following responses by the Board's attbrney to questions pro-1
pounded by the District Court clearly demonstrate the purpose and
effect Of the first sentence of Section 12 (Tr. 306-08) ?

THE COURT: Number 1, I take it you take the position
that Act 48 was in effect a response to the April 7, 
plan of the Board and at least as to Section 12, its 
purpose was to, well, you might call that portion Of 
the act an act of nullification so far as the April 7 
plan was concerned, wouldn't you?
MR. BUSHNELLi Is your Honor asking me a question as 
to this proceeding or on the basis of my opinion to 
the Board? 11 1 ’
THE COURT: I am asking you for your opinion based
on the language of the Section 12, the first sentence 
of it, taking into account the chronological order of 
events. In other words, the Board adopted the plan 
on April 7, and on July 7, the act took immediate 
effect. Now I take it that the first sentence dould 
be read to mean that the April 7 plan was not to take 
effect.

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12



MR. BUSHNELL: That is how I understand it to be,
until a new Board has had a chance to consider it 
on January 1.
THE COURT: Is it your position in keeping with
that sequence of thought that the new Board could 
in the face of Act 48 adopt the April 7 plan or 
one like it?
MR. BUSHNELL: Absolutely.
THE COURT: When?
MR. BUSHNELL: January 1 or 2, 1971. Now in response
to the Court's original question because I apparently 
ducked it and I don't want to. I haven't taken any 
position in this proceeding as to the effect of Act 
48. I have got to say that I believe that no other 
fair inference can be derived from the fact that 
following the Board's action of April 7, the legis- 
lature amended Act 244, by Act 48, and this language 
appeared. Therefore, I concluded personally that 
it was in response to the action of the Board taken 
on April 7.
THE COURT: Is the Detroit System the only system
affected by Act 48? 1 !
MR. BUSHNELL: As Act 48 is drafted if applies to
all first class systems. The fact is that there is 
only one first class system currently in the state and that is Detroit. " ' < ■ ■ « -

Thus, the first sentence of Act 48 vacates or stays the then
status quo (the Board's April 7 plan) at least until January 1971.ii/
The unprecedented purpose and effect of Section 12 of Act 48 was. • . i ■ ■ | > •
and is, in' Superintendent Drachier®s words, that for the first.time

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"the legislature began drawing boundary line& for us [the Detroit
‘ : I ! ■ i I t ■ ! ' ! ■ ■ ■  i

Board]." (Tr. 173).— /

11/The second sentence of Section 12, though1 not in issue at-this 
juncture in these proceedings, is significant in demonstrating the 
intent and purpose of Act 48, namely, to limit the purpose of the (continued on next1 page) i i , ,

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The foregoing facts can be briefly summarized as follows:
On April 7, 1970, the Detroit Board of Education recognized the 
damaging educational effects of racial isolation in its public 
schools and adopted, for the purpose of providing equality of 
educational opportunity to those so affected, a partial pi&n ot 
high school desegregation. The effect of Act 48 was best described 
in a question by the District Court and the response of Dr.
Drachler (Tr. 202}s

THE COURT: Was it an attempt then to turn the door
back or the pages back, Act 48?
A. In my opinion, yes, sir.

11/(continuation)April 7 plan from ever being implemented. This portion of Section 
12 mandates that after January 1971, any attendance provisions 
adopted by the Detroit Board must contain an open enrollment 
("freedom of choice") provision limited only by giving priority 
acceptance to those in closest proximity to a particular school. 
Not only is this provision of Section 12 clearly in Conflict with 
the April 7 plan (which does not permit transfers), it also 
abrogates the established enrollment policy of the Detroit Board 
which permits a transfer only if it will enhance integration at 
the receiving school. (Tr. 52-53, 125-27). Compare footnote ±0,

12/Board President Stewart, on July 1, 1970, expressed his disappoint­
ment with the legislature's action, as follows (Tr. 327-28):
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(e,I do rdgret that the legislature has found it nec­
essary to intervene in our carefully outlined plans 
and hopes as indicated in our presentment to the 
public on April 7. As an individual with a 
conscience, as you gentlemen are, I am convinced 
it was morally right. As a layman I can only say 
it seemed to me to be legally right.
"Members of the United States Commission on Civil - 
Rights stated in their position paper that the 
Government has a moral as well as a legal responsi­
bility to undo the segregation it helped to create 
and maintain. This Board in past years helped to 
perpetuate segregation and must now undo the wrongs 
of the past." ,

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With respect to implementing the April 7 plan, Superintendent
Drachler testified that the Board could reschedule students in
accordance with the April 7 plan in only four to six days. (Tr.
224) . The relative ease with which implementation of the April 7
plan could be effectuated appears in the record from responses by
the Board's attorney to the District Court’s questions (Tr. 310-12);

Well, back to you, Mr. Bushnell. As I understood 
the superintendent in his answers to one or two of 
my questions he said he didn’t think there would be 
any great chore to resume the April 7 plan, is that 
the way you heard his testimony?
MR. BUSHNELL: That’s correct. I addressed my
remarks only to the relief sought by way of modifi­
cation of the April 7 plan and that is where I say 

v we would suffer irreparable harm. The superintendent
testified the April 7 plan can be reinstituted within 
one week, as I recall his testimony.
THE COURT; Am I to understand then, and your position 
is, that you have no objection to the granting of the 
temporary relief so far as proceeding on the April 7 
plan is concerned?
* •  < 1 I ! i ( ■

MR. BUSHNELL: 1 have not addressed myself to that
question, your Honor. ... X have got to take the 
superintendent's testimony at this point that there 
would be no administrative difficulty that could not 
be surmounted within a week. ... We can do it, no 
question about that, and we will do it if the Court 
orders it.

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THE COURT; Let me reason with you a little further.
The plan was essentially that of your superinteiident 
and was prepared and presented to the Board and the 
Board, to achieve— as X understand his figures— to 
achieve the two objectives, that is decentralization 
and to enhance integration, adopted the planc
MR. BUSHNELL: Yes, sir. i ! • • 1 ■ ’ ' 1
THE COURT: Then the legislature came alohg arid Said
you get on a siding with this and hold it.i

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MR. BUSHNELL: Yes, sir.
THE COURT? What reason is there to hold it there?
MR. BUSHNELL: None.
THE COURT: Other than the act.
MR. BUSHNELL: Other than the act, none.

The hearing on plaintiffs9 request for preliminary relief 
was concluded on September 1, 1970. On September 3, 1970, uhe 
District Court notified plaintiffs9 counsel by telephone that 
their request for preliminary relief was denied. On September 4, 
1970, the District Court filed its memorandum opinion (App. 134 /
setting forth the reasons why preliminary relief was not granted. 
On the same day, September 4, 1970, plaintiffs, through their 
attorneys, filed their notice of appeal (App.133) by United States■ i
mail, postage prepaid. On September 5, 1970, plaintiffs requested

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the District Court Clerk to transmit the record to this Court.
The District Court's memorandum opinion sets forth no valid 

reason why the legislative stay of the Board's April 7 plan should
' j • i 1 • • ! J i ■ » . : ■ ' ■ (  ' , ( *. •

not be set aside. In fact, the District Court makes no findings
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with respect to Section 12 of Act 48 or its effect on the Board's• i ■ ’ i ■ ■ • • .■ • • ( ■ * ii.
April 7 plan. The District Court failed to even discuss the ease

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with which the April 7 plan could be implemented, or the fact that
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the Detroit Board did not oppose implementation of its April 71 ‘ 1 • ' ! 1 . 1 ' !  < '■}.-< > * I : 1 • I | ( i . • I I I
plan, opposing only the modifications.

I .  ‘  • ) . I  ; ; • I  I ,  • k  1  *' i  ' r

If the legislative stay of the Board's April 7 plan is not
■

set aside, the rights plaintiffs seek will be gone forever, i.e.,
l i t  i ' • i . i . ' ' ' : ' 1 »

the rights plaintiffs would enjoy under the April 7 plan, which
■ i  >  •  •  .  . . . i  •  . .  i  •  . >  , . i  . . . . . .  .  t ,I • •

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was to take effect for the 1970-71 school year, will be irretriev­
ably lost. The continued deprivations of educational opportunity 
will injure them "in a way unlikely ever to be undone." Brown jy. 
Board of Education, 347 U.S. 483 (1954) .

For the foregoing reasons and those cited in the accompanying 
supporting memorandum, plaintiffs respectfully submit that there 
is no reason, in law or in fact, why the legislative stay should 
not be vacated by injunction of this Court prohibiting the Detroit

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Board and the State Board of Education’! from giving any force or 
effect to the provisions of Section 12 of Act 48 insofar as it 
prevents or impedes the implementation for the start of the j.,970 —71 
school term of the Board’s April 7 plan. Plaintiffs8 appeal will 
present the remaining issues for the consideration of a panel of 
this Court. Plaintiffs seek the order of this Court requiring

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the Detroit School Board to implement its April 7, 1970 plan, in, 1 • i I
reality the status quo with respect to plaintiffs5 rights priorm ; r . ' < 1 ' : , .
to the enactment of the legislative stay.

i . , | I I  : I ,  . ! t l i  ' • ' < ■ >  1 ' "  ' "  >

In the event this Court should elect to have the motion, i - i ■ ■1 t i ■ i ..... . " * 1
determined by a panel of this Court, plaintiffs respectfully request, . , , , I ■ ' • > >■ ‘ • 1 ' ' '• ! I : ' ' ' ' ‘
that an emergency panel be convened forthwith to hear arguments 
and render decision on the motion. Delay results in continued

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irreparable injury to plaintiffs and their class and prompt resolu­
tion will make the required changes easier to accomplish.I > | j ! ‘ ; ! 1 I '

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Respectfully submitted,

Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee
Nathaniel Jones, General Counsel 
N.A.A.C.P.
1790 Broadway 
New York, New York

Of counsel:
J. Harold Flannery 
Paul Dimond
Center for Law and Education 
Harvard University 
Cambridge, Massachusetts

Bruce Miller and 
Lucille Watts, Attorneys for 
Legal Redress Committee 
N.A.A.C.P., Detroit Branch 
3426 Cadillac Towers 
Detroit, Michigan, and
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Motion for 
Injunction Pending Appeal has been served by hand this 8th ^av Ox 
September, 1970 on all counsel of record.

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