Motion to Dismiss, Affadavit & Brief in Support, Notice of Hearing and Proof of Service

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,
Plaintiffs,

vs.
MILLIKEN, et al,

Defendants.

Civil Action 
No. 35257

NOTICE OF HEARING

PLEASE TAKE NOTICE that the Defendants, ROMEO 
COMMUNITY SCHOOLS and BARBARA HOWE, only, will make application 
to the United States District Court for the Eastern District of 
Michigan, before the presiding Judge thereof, on Monday, the 
26th day of November, 1973, at 9:00 A.M. or as soon thereafter 
as counsel may be heard, upon a Motion to Dismiss in the above 
entitled cause.

This Application is based upon the Motion to Dismiss
j

on file in said cause, a copy of which is hereto annexed.

MATHER, E & DAOUST

Atto:
5. G. Glime 

leys for the Defendants,
ROMEO COMMUNITY SCHOOLS and 
BARBARA HOWE, Only 
25 North Gratiot Avenue 
Mount Clemens, Michigan 48043
463-0511

Dated: October 23, 1973.





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PAUL R. DIMOND
906 Rose Avenue
Ann Arbor/ Michigan 48104
J. HAROLD.. FLANNERY 
CENTER FOR LAW & EDUCATION 
Larsen Hall 
14 Appian Way 
Cambridge, Mass. 02138
LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
Ratner, Sugarmon & Lucas 
525 Commerce Title Company 
Memphis, Tennessee 38103
GEORGE T. ROUMELL, JR,
7th Floor Ford Building 
Detroit, Michigan 48226
ROBERT J. LORD 
Attorney at Law 
8388 Dixie Highway 
Fairhaven, Michigan
KEN B. MCCONNELL
Attorney at Law
74 W. Longlake Road
Bloomfield Hills, Michigan 48013

JACK GREENBERG 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019
NATHANIEL JONES
1790 Broadway
New York, New York 10019

FRANK J. KELLEY
Attorney General
Law Building
525 W. Ottawa
Lansing, Michigan 48913
THEODORE SACHS 
Attorney at Law 
1000 Farmer Street 
Detroit, Michigan 48226

WILLIAM M. SAXTON
1881 First National Building
Detroit, Michigan 48226
DOUGLAS H. WEST
3700 Penobscot Building
Detroit, Michigan 48226
ELLIOT HALL
950 Guardian Building
Detroit, Michigan 48226
RICHARD P. CONDIT 
Attorney at Law 
860 W. Longlake Road 
Bloomfield Hills, Michigan

48013
ALEXANDER B, RICHIE 
Attorney at Law 
2555 Guardian Building 
Detroit, Michigan 48226
CHARLES F. CLIPPERT 
DICKINSON, WRIGHT, McKEAN & 
CUDLIP
1700 North Woodward Avenue 
Bloomfield Hills, Mich. 48013



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UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,
Plaintiffs,

vs Civil Action
No. 35257

MILLIKEN, et al,
Defendants.

/

MOTION TO DISMISS 
AFFIDAVIT IN SUPPORT OF MOTION 

BRIEF IN SUPPORT OF MOTION TO DISMISS 
NOTICE OF HEARING 
PROOF OF SERVICE

MATHER, GLIME & DAOUST 
Attorneys for Defendants, 
ROMEO COMMUNITY SCHOOLS and 
BARBARA HOWE, Only 
25 North Gratiot Avenue 
Mount Clemens, Michigan 43043 
463-0511



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UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

BRADLEY, et al,
Plaintiffs,

vs.
MILLIKEN, et al,

Defendants.

Civil Action 
No. 35257

____________________________________ /

MOTION TO DISMISS 

COUNT I

NOW COMES the Defendants in the above entitled action, 
ROMEO COMMUNITY SCHOOLS and BARBARA HOWS, trustee of the Romeo 
Community Schools Board of Education and parent of school-age 
children attending the Romeo Schools, only, by their attorneys, 
MATHER, GLIME & DAOUST, and pursuant to Rule 12(b) of the 
Federal Rules of Civil Procedure, 28 U.S.C., move this Honorable 
Court to quash service of process made by the United States 
Marshalls' Office and to dismiss this cause of action against
the ROMEO COMMUNITY SCHOOLS and BARBARA HOWE for lack of 
jurisdiction for the following reason,:

1. Service of process was improperly made pursuant to 

Rule 4 of Federal Rules of Civil Procedure, 28 U.S.C.
WHEREFORE, the Defendants ROMEO COMMUNITY SCHOOLS 

and BARBARA HOWE, only, respectfully request this Honorable 
Court to enter an Order quashing service of process and dismiss­
ing this cause of action for lack of jurisdiction.



COUNT II

MOW COMES the Defendants, ROMEO COMMUNITY SCHOOLS 

and BARBARA HOWE, Only, by their attorneys, MATHER, GLIME &
DAOUST, and pursuant to Rule 12 (b) of the Federal Rules of
Civil Procedure, move this Honorable Court to dismiss this cause

of action for the following reasons:
1. The Complaint and Amended Complaint fail to state

a claim against the Defendants ROMEO COMMUNITY SCHOOLS and 
BARBARA HOWE upon which relief can be granted:

(a) the establishment, organization and 
administration of the ROMEO COMMUNITY SCHOOLS has 
never been invidiously motivated or intended to 
circumvent any Federally protected right oi any citizen 
and the Plaintiffs have made no allegations to the 

contrary:
(b) the ROMEO COMMUNITY SCHOOLS have taken

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no action whatsoever for the purpose of keeping their 
schools predominantly white, nor excluded any child from 
any school within the District on account of his race 
and the Plaintiffs have made no allegations to the 

contrary;
(c) any allegations made as to any parties other 

than the ROMEO COMMUNITY SCHOOLS, their Board of 
Education, or employees are insufricient to state a 

claim for relief against the ROMEO COMMUNITY 
SCHOOLS, its Board of Education, and the parents and 

children they represent.

2. The addition of the ROMEO COMMUNITY SCHOOLS 

and BARBARA HOWE as party defendants under Rules 19 and 21 of



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the Federal Rules of Civil Procedure, 28 U.S.C. by the Order of 

September 10, 1973, at this state of the proceedings, coming 

over three (3) years after the initiation of this suit and after 
extensive litigation has taken place between the parties, 
including pleadings, motions, orders, direct and cross examina­
tion of witnesses, findings of fact, and a variety of appeals, 
is an abuse of discretion and cannot now be remedied, and is 
extremely prejudicial to the Defendants, violative of due process 
of law as guaranteed by the Fifth Amendment to the Constitution 
of the United States, contrary to the principles of equity and 
good conscience, and contrary to the requirement of Rule 21 of 
the Federal Rules of Civil Procedure, 28 U.S.C., that parties 
be added only "on such terms as are just."

3. This lawsuit was initiated and extensively litigated 
(prior to the addition of suburban school district defendants) 
between the original parties who were in collusive agreement to 
seek relief from this Court and to purposefully acquiesce in 
charges of alleged segregation in the Detroit Public Schools.
Since there was no honest and actual antagonistic assertion of 
rights by these parties, there was no true case and controversy 
before this Court as required by Article III, Section 2 of the 
Constitution of the United States, and this Court was without 
jurisdiction to entertain this proceeding.

4. Any remedy to the alleged wrongs enumerated in the 
Complaint and Amended Complaint which could be imposed upon the 
ROMEO COMMUNITY SCHOOLS, the ROMEO BOARD OF EDUCATION, and the 
parents and children they represent including the reallocation 
of pupils, teachers, resources, and facilities across the 

boundary lines of this School District would:

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(a) be a deprivation of due process of law as 
guaranteed by the Fifth Amendment to the Constitution 
of the United States because the ROMEO COMMUNITY 

SCHOOLS and its BOARD OF EDUCATION have not been 
parties and have not been represented in the extensive 

proceedings which have taken place in this case 
heretofore and have not been guilty of any acts alleged 
in the Plaintiffs' Complaint or Amended Complaint nor 
the violation of any Federal Constitutionally protected 

right,;
(b) be unnecessary under the Fourteenth Amendment 

and contrary to the Tenth Amendment since the
ROMEO COMMUNITY SCHOOLS and the ROMEO BOARD OF 
EDUCATION have taken no action whatsoever for the 
purpose of keeping their schools predominately white, 
nor excluded any child from any school within the 
District on account of race, and are therefore a 

unitary school district;
(c) be unnecessary under the Fourteenth Amendment 

and contrary to the Tenth Amendment to the Constitution 
of the United States since the establishment and 
maintenance of the ROMEO COMMUNITY SCHOOLS by the 
ROMEO BOARD OF EDUCATION has never been invidiously 
motivated or intended to circumvent any Federally 

protected right of any citizen;
(d) impose a particular racial balance and a 

fixed racial quota upon the ROMEO COMMUNITY SCHOOLS 
unnecessary to the requirements of the Fourteenth 
Amendment to the Constitution of the United States
and contrary to the Tenth Amendment to the Constitution

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of the United States.
(e) result in unreasonable hardship, be unduly 

harsh, and contrary to equity and good conscience 

because it would:
(i) create a cumbersome and unwieldy 

school administrative district, hamper sound 
education and curtail decentralized and diversi­
fied locally controlled schools more accessible 
and responsive to both black and white parents 
and to their school-age children (while leaving 
this benefit available to parents and children 
in other areas of the State of . Michigan who 
fortuitously live a greater distance from the City 
of Detroit, than do the parents and children 
residing in the ROMEO COMMUNITY SCHOOL DISTRICT) 

unnecessary to the requirements of the Fourteenth 
Amendment and contrary to the Tenth Amendment
to the Constitution of the United States;

(ii) require some students of the ROMEO 
COMMUNITY SCHOOL DISTRICT to ride on school buses 
in excess of four (4) hours per day; the
ROMEO COMMUNITY SCHOOL DISTRICT encompasses 
approximately ninety (90) square miles and is 
located 30-40 miles from the Detroit Public 
School District; that such judicially imposed 
requirements would be unnecessary to the 
Fourteenth Amendment and contrary to the Tenth 
and Eighth Amendments to the Constitution of 

the United States;
(iii) discriminate against parents and

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children who wish to participate in school 
centered, extracurricular, social or athletic 

activities;
(iv) destroy local programs tailored for 

local needs;
(v) be disruptive of sound education;
(vi) increase the exposure of school children 

to unnecessary injury due to a needless increase in 
the distance traveled to and from schools;
(f) usurp the Legislative power of the State of 

Michigan and the lawful power of the duly elected 
Board of Education of the ROMEO COMMUNITY SCHOOLS 
contrary to the Tenth Amendment to the Constitution 

of the United States;
(g) render useless the right of the electors of 

the ROMEO COMMUNITY SCHOOL DISTRICT to cast ballots 
for members of the ROMEO COMMUNITY SCHOOLS BOARD
OF EDUCATION since local board members would no longer 
control the organization and administration of the 
schools the ROMEO children attend, unnecessary 
under the Fourteenth Amendment to the Constitution 
of the United States and contrary to the Tenth and 
Fifteenth Amendments to the Constitution of the 
United States;

(h) disregard the right of private contract as 
guaranteed by Article I, Section 10 of the 
Constitution of the United States;

(i) be contrary to the right of free association 
as guaranteed by the First Amendment to the 
Constitution of the United States:

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(j) be contrary to the right to travel, to 
settle, and to partake of the benefits of a new place 
as guaranteed by the First and Fifth Amendments to 
the Constitution of the United States;

(k) be the imposition of a penalty upon the 
Defendants without a judicial trial and therefore a 
bill of attainder in violation of Article I, Section 9 
of the Constitution of the United States, and Article 3 
of the Constitution of the United States;

5. That on or about October 23, 1973, the movants
requested the concurrence of Plaintiffs' counsel in the relief

and BARBARA HOWE, only, respectfully move this Honorable Court 
that an Order of Dismissal be entered in this action for the

sought in this Motion as required by Rule IX (a) of the Rules 
for the United States District Court for the Eastern District 

of Michigan, and concurrence was denied.

WHEREFORE, the Defendants, ROMEO COMMUNITY SCHOOLS

X

<2 foregoing reasons.

.̂aŷ fond G. Glime 
Attorneys for the Defendants, 
ROMEO COMMUNITY SCHOOLS and 
BARBARA HOWE, Only 
25 North Gratiot Avenue 
Mount Clemens, Michigan 48043 
463-0511

By :

Dated: October 23, 1973.

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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,
Plaintiffs,

vs.
MILLIKEN, et al,

Defendants.

Civil Action 
No. 35257

/

AFFIDAVIT IN SUPPORT OF MOTION

STATE OF MICHIGAN)
) ss.

COUNTY OF MACOMB )

RAYMOND G. GLIME, having first been duly sworn, deposes 
and says that he has read the foregoing Motion to Dismiss by 
him signed, and that the same is true to his knowledge, except 
as to those matters therein stated to be upon information and

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belief and as to those matters he believes them to be true.

Subscribed and sworn to before 
me this 23rd day of October, 1973

DIANE J. BAMBi
Notary Public(yf'Iacomb County, Michigan 
My commission expires: January 18, 1976



UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,
Plaintiffs,

vs Civil Action
No. 35257

MILLIKEN, et al,
Defendants.

/

BRIEF IN SUPPORT OF MOTION TO DISMISS

1. Proper service of process not having been made 
upon the Defendants, ROMEO COMMUNITY SCHOOLS and BARBARA HOWE, 
Trustee of the Romeo Board of Education, in accordance with 

Rules 4(d) (1) and 4(d) (6) of the Federal Rules of Civil 
Procedure, 28 U.S.C., this Court is entirely without jurisdiction 
over these Defendants and this action must be dismissed. As to 
the Defendant, ROMEO COMMUNITY SCHOOLS, service of process was 
attempted (as demonstrated by the Affidavit attached hereto) 
but was improper because it was not in accordance with Rule 4 (d)(6) 
of the Federal Rules of Civil Procedure, 28 U.S.C. which reads:

"Service shall be made as follows: . . . (6)
upon a State or municipal corporation or other^ 
governmental corporation thereof subject to suit, 
by delivering a copy of the summons and complaint 
to the chief executive officer thereof or by 
serving the summons and complaint in the manner 
prescribed by the law of that state for the service 
of summons or other like process on any such 
defendant." Rule 4(d)(6 ) , Federal Rules of Civil 
Procedure, 28 U.S.C.

The applicable Michigan law referred to is M.C.L. 600.1925(5):
"Service of process upon public, municipal, 

quasi municipal, or governmental corporations, 
unincorporated boards, or public bodies may be 
made by leaving a summons and copy of the 
complaint with . . .  (5) the president, secretary,
or treasurer in the case of school districts."



Service of process in this case not having been made upon the 
chief executive official of ROMEO COMMUNITY SCHOOLS (being 
the president of the Romeo Community Schools Board of Education) 
or in accordance with M.C.L. 600.1925(5), any alleged service 
of process was improperly made and should be quashed by this 
Court and this case dismissed for lack of jurisdiction.

As to the Defendant, BARBARA HOWE, no proper service 
of process has been made by the United States Marshall (as 
demonstrated by the Affidavit attached hereto) and therefore 
this case must be dismissed against the Defendant, BARBARA 
HOWE, for lack of jurisdiction. Rule 4(d)(1), Federal Rules 
of Civil Procedure, 28 U.S.C.

2. The Plaintiffs have failed to state a claim against 
the Defendants, ROMEO COMMUNITY SCHOOLS and BARBARA HOWE, upon 
which relief can be granted.

This is a desegregation case with the Plaintiffs, 
alleging that they have been denied a Federal Constitutional 
right to integrated schools. No allegation whatsoever has been 
made that the establishment, organization or administration of 
the ROMEO COMMUNITY SCHOOLS has been in any way invidiously 
motivated. There is no allegation whatsoever that the ROMEO 
COMMUNITY SCHOOLS are anything but an integrated, unitary school 

system fully in accord with the requirements of the Fourteenth 
Amendment. Intentional discriminatory actions by the Defendants 
must be alleged before there can be any claim to relief. Absent 
such allegations, the Plaintiffs have failed to state a proper 
claim against the Defendants, ROMEO COMMUNITY SCHOOLS and 
BARBARA HOWE. Since judicial authority may only be exercised 
when there is a constitutional violation, this case must be

2-



dismissed. Green v. School Board of New Kent County, 391 U.S.
430 (1963); Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971); Alexander v. Holmes County Board of Education, 

396 U.S. 19 (1969).

3. The addition of the ROMEO COMMUNITY SCHOOLS and 

BARBARA HOWE as party Defendants at this late stage in these 
proceedings has clearly abused the discretion granted to the 
Court under Rules 19 and 21 of the Federal Rules of Civil 
Procedure. Rule 21 specifically permits a change of parties 
"at any stage in the action," Rule 21, Federal Rules of Civil 
Procedure, 28 U.S.C.; but the Court should deny the request to 
add additional parties if it comes so late in the litigation 
that it would cause prejudice. Petit v. George A. Rheman Co.,
1 F.R.D. 271 (N. D. Ga. 1940). While normally the decision to 
add or drop a party is in the sound discretion of the Court 
(Barr Rubber Products v. Sun Rubber Co. 425 F .2d 1114 [2nd Cir.

ft.

1970]), it is clearly an abuse of discretion under the 
particular circumstances of this case.

The order of September 10, 1973, by which the ROMEO 
COMMUNITY SCHOOLS and BARBARA HOWE were added as party defendants 
has come over three (3) years after the initiation of this suit. 
In that interim period there have been pleadings, motions, 
orders, voluminous testimony, a trial, findings of fact, and 
several appeals. Since the ROMEO COMMUNITY SCHOOLS is an 
independent municipal body with the power to sue and to be sued, 
organized and administered by the ROMEO BOARD OF EDUCATION 
(elected by and responsible to the electors of the ROMEO 
COMMUNITY SCHOOL DISTRICT), they have a fundamental right to be 
informed of anv complaint against them, to cross-examine



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witnesses and to call witnesses on their own behalf. These 

rights are secured to them by the Fifth Amendment to our 
Constitution and cannot be denied. Addition as party Defendants 
at this late stage in these proceedings has effectively prejudiced 

ROMEO COMMUNITY SCHOOLS and BARBARA HOWE by denying them this 
fundamental right. Almost all of the essential issues in this 
case have already been determined and addition of new party 

Defendants at this stage must necessarily constitute an abuse 
of discretion by the Court.

The restricted hearing granted to these new Defendants 

would not remedy the severe prejudicial violations of their 
civil rights. Though it may appear harsh, this case should be 
dismissed and reinitiated by the Plaintiffs from the very 
beginning. The Plaintiffs themselves have caused this dilemma 
by failing to join all necessary parties (or to inform the 
court of all necessary parties not so joined as required by 
Rule 19(c) of the Federal Rules in Civil Procedure, 28 U.S.C.).
In balancing the'potential inconvenience to the Plaintiffs, 
caused by their own inactions, against the immense injury to 
the civil liberties of the Defendants, it is clear that the 
convenience of the Plaintiffs must yield. If the Court allows 
these proceedings to continue, the rights of the Defendants 
will have been trampled, and the discretion of the Court to 
add new party Defendants so severely abused as to necessitate 
reversal. Hargrove v. Louisville and Nashville Railroad Company 
153 F. Supp. 681 (W. D. Ky. 1957).

4. The exercise of judicial power is limited by the
express terms of the Constitution to cases and controversies.
Article III, Section 2, United States Constitution. This is a

*clear recognition by the authors that the judicial function

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requires intelligent and vigorous advocacy on both sides of an 
issue to be confident in a decision. Otherwise, a Court is 
placed in the position of giving judgment on crucial, Con­
stitutional issues without the benefit of all relevant facts.
There must be an honest and actual antagonistic assertion of 
rights by the parties. Muskrat v. United States, 219 U.S. 346 
(1911). The Court should not hear collusive cases. Lord v. 
Veazie, 8 How. 251 (1850); Chicago and G. T. Ry, Co. v. Wellman, 
143 U.S. 339 (1892); United States v. Johnson, 319 U.S. 302 (1943) 
It is the sincere belief of this Defendant, ROMEO COMMUNITY 
SCHOOLS, that this necessary requirement of a true case 
and controversy has been lacking at critical stages of these 
proceedings. There has been collusion between the original 

parties in this case and an unwillingness by the original party 
Defendants to intelligently and vigorously argue their position. 
The Detroit Board of Education at various times has viewed these 
proceedings as a solution to the mismanagement of its schools.
That Board clandestinely solicited this suit against them and 
entered into a pact for a "friendly” lawsuit with the Plaintiffs. 
Indeed now, with the prospect of the unjustified altering or 
ignoring of School District lines to bus students to Detroit 
from neighboring districts which have not engaged in racial 
segregation, there has been created an actual incentive for 
Detroit to commit invidiously discriminatory acts and to 
deliberately mismanage its school system. Thus, the ROMEO 
COMMUNITY SCHOOLS now face the dismal prospect of being forced 
into a suit where all the major issues have been given away by the 
previous Defendants in a non-adversary proceeding. The ROMEO 
COMMUNITY SCHOOLS, which have complied with the requirements of 
the Fourteenth Amendment, are to become a mere pool of resources— -

-5-



racial,, educational, and financial-— to cure inadequacies of 
the Detroit Public Schools over which they have no influence or 

control.
Because of the collusive nature of this case at critical 

points in the proceedings, a true case and controversy as required 
by Article III, Section 2 of the Constitution was lacking, and 
therefore, this Court was without proper jurisdiction and this 
case against the ROMEO COMMUNITY SCHOOLS should be dismissed.

5. Any remedy to the alleged wrongs enumerated in
/ . . ' •

the Complaint and the Amended Complaint which could be imposed 
upon the ROMEO COMMUNITY SCHOOLS, the Romeo Board of Education, 
and the parents and children they represent, such as the 
reallocation of pupils, teachers, resources, and facilities 
across the boundary lines of the School District, would:

(a) Be a denial of liberty and property without 
due process of law as guaranteed by the Fifth Amendment 
to the Constitution of the United States since the

A

Defendants have never had a trial, a judicial hearing, or 
any opportunity to be heard in this case. They have 
not been present to examine and cross-examine witnesses 
or to enter any objections to these proceedings. 
Therefore, any possible remedy imposed in this case 
would not only be a denial of due process of law but 
a complete denial of any process of law whatsoever—  
blatantly in violation of the requirements of the 
Fifth Amendment. Armstrong v. Manzo, 380 U.S. 545 
(1965); Jenkins v. McKeithen, 395 U.S. 411 (1969).

(b) Be unnecessary under the Fourteenth Amendment 
and contrary to the Tenth Amendment to the Constitution

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of the United States since the ROMEO COMMUNITY SCHOOLS 
have not been established nor maintained by the Romeo 
Board of Education with invidious motives or with the 
intention to circumvent or deny any Federally protected 
right of any citizen, nor has any such allegation been 
made against the ROMEO COMMUNITY SCHOOLS. The ROMEO 
COMMUNITY SCHOOLS and the Romeo Board of Education have 
taken no action whatsoever for the purpose of keeping 
their schools predominantly white nor excluded any child 
from any school within the District on account of the 
child's race. The ROMEO COMMUNITY SCHOOLS are a unitary 
School District fully in compliance with the requirements 
of the Fourteenth Amendment. Green v. School Board 
of New Kent County, 391 U.S. 430 (1968); Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971). That there are some predominantly white districts 
existing in outlying metropolitan areas does not in and 
of itself show any deprivation of constitutional rights to 
any citizen so long as the racial makeup of the District 
is the product of neutral and non-discriminatory forces. 
Without any finding of invidious discriminatory acts by 
the ROMEO COMMUNITY SCHOOLS and the Romeo Board of 
Education, there is no violation of the Fourteenth 
Amendment and hence this Court is without power to usurp 
the administrative power of the Romeo Board of Education 
or the ROMEO COMMUNITY SCHOOLS granted them by the 
residents of the ROMEO COMMUNITY SCHOOLS. Such blatant 
intervention into the affairs of the State and of the 
people without constitutionally sanctioned cause is 
clearly banned by the Tenth Amendment to the Constitution

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of the United States. Bradley v. School Board of the 

City of Richmond, 462 F.2d 1058 (4th Cir. 1972), 
affirmed per curiam, 93 S.Ct. 1952 (1973); United States 
v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972) 
Keyes v. School District No. 1, 445 F.2d 990 (10th Cir. 
1971); Spencer v. Kugler, 326 F. Supp. 1235 (D. N.J. 1971) 
affirmed, 404 U.S. 1027 (1972); Deal v. Cincinnati Board 
of Education, 419 F.2d 1387 (6th Cir. 1969); Goss v.
Board of Education of the City of Knoxville, C.A. 6, 

72-1766-1767 (July 18, 1973).
(c) Impose a particular racial balance and a fixed 

racial quota upon the ROMEO COMMUNITY SCHOOLS— in effect 
saying that the number of Negro children presently 
attending the ROMEO COMMUNITY SCHOOLS are necessarily 
inadequate to integrate this district and that a certain 
fixed quota of Negro children must be transferred to 
Romeo and a fixed quota of Romeo children sent to other 
districts in order to comply with requirements of the 
Fourteenth Amendment. This imposition of a particular 
racial balance and a fixed racial quota has specifically 
been ruled unnecessary for desegregation. Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971); Bradley v. School Board of the City of Richmond, 
462 F .2d 1058 (4th Cir. 1972).

(d) Result in an unreasonable hardship, be unduly 
harsh and contrary to equity and good conscience. The 
Defendants have done nothing wrong. No allegations or 
findings have been made that the ROMEO COMMUNITY SCHOOLS 
or BARBARA HOWE have operated other than a completely 
desegregated, unitary school system with an appropriate

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racial balance in full compliance with the Fourteenth 
Amendment. That is all that can be asked of them.
Bradley v. School Board of the City of Richmond, 462 F.2d 
1058 (4th Cir. 1972), affirmed per curiam, 93 S.Ct. 1952 
(1973); United States v. Texas Education Agency, 467 
F.2d 848 (5th Cir. 1972); Keyes v. School District No. 17 
445 F.2d 990 (10th Cir. 1971). Reallocation of pupils, 
teachers, resources, and facilities across the boundary 
lines of the school district would be a harsh and 

unconscionable remedy— time and money consuming and 
disruptive of good education, contrary to the obvious 
advantages of local schools locally controlled in close 
working cooperation with parents. The ROMEO COMMUNITY 
SCHOOLS and the Romeo Board of Education do not control 
housing patterns. They stand ready to welcome Negro 
children into any school in the district so long as the 
child is a resident of the district. Under these 
circumstances, any remedy which could be rendered in this 
case, being unduly harsh and unconscionable, is beyond 
the equitable powers of this Court.

(e) Create a cumbersome and unwieldy school district, 
hamper sound education, and curtail decentralized, 
diversified and locally controlled schools which are 
more accessible and responsive to both black and white 
parents and their school aged children. Such a remedy 
would leave the valuable benefit of local schools 
available to parents and children in other areas of the 
State of Michigan who fortuitously live a greater distance 
from the City of Detroit than do parents and children 
residing in the ROMEO COMMUNITY SCHOOL DISTRICT. This

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remedy would necessarily discriminate against any 

parents and children who wish to participate in school 
centered, extra-curricular, social and athletic 
activities, and render school administrators unable to 
tailor local programs to fit local needs. Such 
destruction to sound education is unnecessary to the 
requirements of the Fourteenth Amendment and contrary 
to the Tenth Amendment to the Constitution of the 
United States.

(f) Require some students of the ROMEO COMMUNITY 
SCHOOLS to ride on school buses in excess of four (4) 
hours per day because of the size of the district and
its great distance from the Detroit Public School District. 
To impose such a physical burden upon school age children 
amounts to the infliction of cruel and unusual punishment 
contrary to the Eighth Amendment, unnecessary to the 
requirements of the Fourteenth Amendment, and contrary 

to the'Tenth Amendment of the United States Constitution.
(g) Usurp the Legislative and Administrative power 

of the State of Michigan and the duly elected Board
of Education of the ROMEO COMMUNITY SCHOOLS. "The 
powers not delegated to the United States by the 
Constitution nor prohibited to it by the States are 
reserved to the States respectively or to the people.1' 
(Tenth Amendment to the Constitution of the United 
States). This is a fundamental element of our entire 
form of Federal government. If invidious discrimination 
in the establishment or maintenance of the ROMEO 
COMMUNITY SCHOOLS was shown, then this principle must 
yield; but absent such a showing, it is constitutionally

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prohibited to the United States to interfere with the 
internal affairs of the State and its people, and 

there has been no such showing (indeed not even such an 

allegation) that the Romeo Board of Education has in 
any way established or maintained its District as an 
instrument of invidious discrimination. There must 
be such a finding of purposeful discrimination by the 
Defendant before the United States, through its Courts, 
has the power to order any restructuring or in any way to 
interfere with the internal affairs of the ROMEO 
COMMUNITY SCHOOLS. They must show intentional dis­
criminatory acts by the ROMEO COMMUNITY SCHOOLS or the 
Romeo Board of Education causally connected to segregation 
within the District. There has been no finding of this; 
there has been no allegation of this; and, therefore, 
there may be no remedy. To do otherwise would be to 
effectively dispense with representative democracy as 
the basic form of government within the State of Michigan 
and the ROMEO SCHOOL DISTRICT— a result hardly intended 
by the authors, the adopters, and the ratifiers of 
the Fourteenth Amendment to our Constitution. Bradley v. 
School Board of the City of Richmond, 462 F.2d 1058 
(4th Cir. 1972), affirmed per curiam, 93 S.Ct. 1952 (1973) 1 
United States v. Texas Education Agency, 467 F.2d 848 
(5th Cir. 1973); Keyes v. School District No. 1, 445 F.2d 
990 (10th Cir. 1971); Spencer v. Kugler, 326 F. Supp.
1235 (D. N.J. 1971), affirmed, 404 U.S. 1027 (1972);
Deal v. Cincinnati Board of Education, 419 F.2d 1387 
(6th Cir. 1969); Goss v. Board of Education of the City 
of Knoxville, C.A. 6, 72-1766-1767 (July 18, 1973).

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(h) Render useless the right of the electors of 
the ROMEO COMMUNITY SCHOOL DISTRICT to cast ballots for 
members of the ROMEO COMMUNITY SCHOOLS * Board of 

Education since local school board members would no longer 
control the organization and administration of the 
schools the Romeo children attend. As a member of
the Republic, each citizen has an inherent right to vote 
which is equal to that of every other citizen. Just as 
the right to vote may be diluted by disproportionate 
representation (Reynolds v. Sims, 337 U.S. 533 [1964]), 
so also it may be diluted by eliminating the effectiveness 
of each vote. It is obvious that allowing one Senator 
to cast a full vote, but another to cast only half a vote, 
would prejudicially dilute the right to vote belonging 
to the latter Senator’s constituents. So too, the ability 
to vote for local school board members is diluted and 
perhaps rendered useless when the elected school board 
members no longer are responsible for the organization 
and administration of the schools where the children of 
their electors attend. Such action is unnecessary under 
the Fourteenth Amendment and contrary to the Tenth 
Amendment and Fifteenth Amendment to the Constitution of 
the United States.

(i) Endanger resources of the school districts 
pledged by contract as security for the indebtedness of 
that district and thereby disregard the right of private 
contract as guaranteed by Article I, Section 10, of the 
Constitution of the United States. Such a remedy would 
also disrupt the contractual rights of teachers and other 
personnel employed by the district in the same manner.

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4 4

(j) Be contrary to the fundamental right of free 

association as guaranteed by the First Amendment to 

the Constitution of the United States. Aptheker v. 
Secretary of State, 378 U. S. 500 (1964).

(k) Be contrary to the right to travel, to settle 
and to partake in the benefits of a new place as 
guaranteed by the First and Fifth Amendments to the 
Constitution of the United States. Citizens have a clear 
and fundamental right to move wherever they wish within 
or without a state. Aptheker v. Secretary of State^
378 U. S. 500 (1964). An important aspect of this 
right is necessarily the ability to settle in any 
community a citizen chooses. That right should not be 
denied or diluted as to any citizen black or white; 
but any residence so chosen is much more than a mere 
address. It is a home and a community. It consists of 
neighbors, churches, shops, and most importantly a 
local school system, and that free choice of a community 
is useless if such an important aspect as its local 
schools can be deprived to its residents without cause. 
Such action is a clear denial of the fundamental freedom 
to travel, inherent to citizenship in the United States.

(l) Be the imposition of a penalty upon the ROMEO 
COMMUNITY SCHOOLS and the Romeo Board of Education 
and the people they represent without benefit of a 
judicial trial and therefore either beyond the powers 
of the Court as granted under Article III of the 
Constitution and the laws of the United States, or if

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such power is granted to the Courts, clearly a bill of 
attainder in violation of Article I, Section 9, of the 

Constitution of the United States.

Dated: October 23, 1973 Respectfully submitted,
MATHER, GLIME & DAOUST

ROMEO COMMUNITY SCHOOLS and 
BARBARA HOWE, Only 
25 North Gratiot Avenue 
Mount Clemens, Michigan 48043 
463-0511

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