Brief of William G. Milliken and Defendants-Appellees

    United States Court of Appeals 
for the Sixth Circnit

------ + ----RONALD BRADLEY, et al,
Plaintiffs-Appellants,

vs.
WILLIAM G. MILLIKEN, et al, 

Defendants-Appellees,
and

DETROIT FEDERATION OF TEACHERS, 
LOCAL 231, AMERICAN FEDERATION OF 
TEACHERS, AFL-CIO,

Intervening Defendant.
------ # ------

CIVIL ACTION
Appeal from the District Court of the United States 

for the Eastern District of Michigan, 
Southern Division

Honorable Stephen J. Roth, District Judge
BRIEF OF WILLIAM G. MILLIKEN, GOVERNOR OF THE STATE 
OF MICHIGAN, FRANK J. KELLEY, ATTORNEY GENERAL OF 
THE STATE OF MICHIGAN, MICHIGAN STATE BOARD OF 
EDUCATION, AND JOHN W. PORTER, SUPERINTENDENT OF 
PUBLIC INSTRUCTION, DEFENDANTS-APPELLEES.' ■' r :

FRANK J. KELLEY 
Attorney General
Robert A. Derengoski 
Solicitor General

The Seven Story Office Eugene Krasicky
Building Assistant Attorney General525 West Ottawa Street

Lansing, Michigan 48926 Attorneys for Defendants-Appellees



TABLE OP CONTENTS

Table of Cases ------------------------------

Counterstatement of Questions Involved -----
Counterstatement of Facts -------------------
Argument

I. The Named Plaintiffs in this Cause of 
Action Lack Standing to Request 
Implementation of the April 7 Plan 
as they are not Members of the Class 
Who Would be Affected by the April 7 
P l a n --------------------------------

II. This Court May Not Reverse the Inter­
locutory Order Decreeing Implementation 
of the McDonald Plan Unless the District 
Court’s Findings of Fact are Clearly 
Erroneous and the Order of Implementa­
tion Constitutes an Abuse of
Discretion--------------------------  13

III. The Federal District Court Did Not 
Abuse Its Discretion by Continuing 
the Trial on the Merits Until Early 
Spring of 1971----------------------  19

Prayer for Relief---------------------------  22

Page
i

iii
1



INDEX TO AUTHORITIES
Page

Alderman, et al v. United States (1969),
394 U.S. 1 6 5 -------------------------------  5

Alexander v. Holmes County Board of Education
(1969), 396 U.S. 19, 2 0 -------------------- 17

Bailey v. Patterson (1962), 369 U.S. 31, 33 —  5
Baker v. Carr (1962), 369 U.S. 186, 204 -----  6
Bradley, et al v. Milliken, et al,

District Court Slip Opinion, Sept. 3, 1970 - 3, 14, 19, 20
Bradley, et al v. Milliken, et al,

U. S. Court of Appeals, No. 20,794,
October 13, 1970 ---------------------------  1, 2, 14, 18

Bradley, et al v. Milliken, et al,
District Court Slip Opinion, Dec. 3, 1970 —  4, 15, 16, 17,

1 8 , 21, 22

Brewer v. Hoxie School District No. 46,
(1956, 8th Cir.), 238 F 2d 9 1 -------------- 12

Carter v. West Feliciana Parish School Board
(1969), 396 U.S. 226 ----------------------- 17

Craggett v. Board of Education of the Cleveland 
City School District, Cuyahoga County, Ohio 
(6th Cir. 1964), 338 F 2d 9 4 1 -------------- 13, 17

Flast v. Cohen (1968), 392 U.S. 83, 99 ------  6
Jenkins v. Georges (1969), 312 F Supp 289 ---  10
Merritt-Chapman & Scott Corporation v. Kent 

(1962, 6th Cir.), 309 F 2d 891; Cert. den.
(1963), 372 U.S. 982 ----------------------- 22

NAACP v. Alabama (1958), 357 U.S. 449 -------  9, 11
NAACP v. Button (1963), 371 U.S. 4 1 5 --------  9, 11

i



Nashville 1-40 Steering Committee v. Ellington 
(6th Cir. 1967), 387 F 2d 179, 182, 1 8 3 ,
Cert. Den. (1968), 390 U.S. 9 2 1 ------------ 14, 18

Norwalk Core v. Norwalk Redevelopment Agency
(1968, 2d Cir.), 395 P 2d 920, 937 --------- 9, 10, 11,

Rock Drilling, Blasting, etc. v. Mason &
Hanger Co. (1954, 2d Cir.), 217 F 2d 687, 693 - 8

Smith v. Board of Education of Morrilton 
School District No. 32 (1966, 8th Cir.),
365 F 2d 770, 777 ----------------------- --- 12

The Farmers Co-Op Co. v. Socony-Vacuum Oil Co.
(1942, 8th Cir.), 133 F 2d 101, 103 -- ----- 8

Tileston v. Ullman (1943), 318 U.S. 44, 46 --  5



COUNTERSTATEMENT OF QUESTIONS INVOLVED

I
DO THE NAMED PLAINTIFFS HEREIN HAVE STANDING 
TO REQUEST AS A MATTER OF CONSTITUTIONAL RIGHT 
THE IMPLEMENTATION OF THE APRIL 7 PLAN?

The District Court did not answer this question.
Defendants-appellees say the answer is "No."

n ,

ARE THE DISTRICT COURT’S FINDINGS OF FACT 
CONTAINED IN ITS "RULING ON SCHOOL PLANS SUBMITTED" 

CLEARLY ERRONEOUS?

Defendants-appellees say the answer is "No."

Ill
DOES THE ORDER OF THE DISTRICT COURT COMPELLING 
IMPLEMENTATION OF THE MCDONALD PLAN CONSTITUTE 

AN ABUSE OF DISCRETION?

Defendants-appellees say the answer is "No."

iii



IV
DOES THE OKDER OP THE DISTRICT COURT GRANTING 
THE MOTION FOR CONTINUANCE OF THE TRIAL ON THE 
MERITS CONSTITUTE AN ABUSE OF DISCRETION?

Defendants-appellees say the answer is "No.”

iv



No. 21,036

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,
Plaintiffs-Appellants,

v s .

WILLIAM G. MILLIKEN, et al,
Defendants-Appellees,

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

Intervening Defendant.

BRIEF OF WILLIAM G. MILLIKEN, GOVERNOR 
OF THE STATE OF MICHIGAN, FRANK J. KELLEY, 
ATTORNEY GENERAL OF THE STATE OF MICHIGAN, 
MICHIGAN STATE BOARD OF EDUCATION, AND 
JOHN W. PORTER, SUPERINTENDENT OF PUBLIC 
INSTRUCTION, DEFENDANTS-APPELLEES.

COUNTERSTATEMENT OF FACTS

On October 13, 1970 this Honorable Court in this 
same cause, Bradley, et al v. Milliken, et al (6th Cir., 
October 13, 1970), No. 20,79^, rendered its opinion in



regards to plaintiffs' request for a reversal of the

Federal District Court's order denying a preliminary
injunction to, inter alia, compel implementation of
the April 7 plan in the Detroit Public Schools. Therein

this Court held in its opinion that:
“We hold §12 of Act 48 to be unconstitutional 
and of no effect as violative of the Fourteenth 
Amendment. By this ruling on the invalidity of 
§12, we express no opinion at the present stage 
of the case as to the merits of the plan adopted 
by the School Board on April 7» 1970, or as to 
whether it was the constitutional obligation of 
the School Board to adopt all or any part of 
that plan." Slip opinion at p.13*

The thrust of this ruling is that this Court
found that Section 12 of Act 48, PA 1970 violated the plaintiffs’
Fourteenth Amendment rights. However, this Court was quick
to point out that they were not determining whether the
Detroit Board of Education had a constitutional duty to
adopt any plan of integration. In fact, this Court further
held that Judge Roth had not abused his discretion when he
refused to implement the April 7 plan or when he refused
to implement any other preliminary relief. Bradley, supra,
slip opinion at p. 13. Specifically, this Court held:

"Although holding that §12 of Act 48 is 
unconstitutional, we cannot say that the 
District Judge abused his discretion in̂  
refusing to grant a preliminary injunction 
upon the basis of the evidence introduced 
during the three days of hearings."

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In short, this Court sustained the District Court's 
ruling of September 3, 1970, wherein the District Judge 

ruled:
" . . .  Here, the proofs are not convincing 
that there has been a course of action which 
can be characterized as directed toward the 
maintenance of a dual system of schools, 
either de jure or de facto. To the contrary, 
the evidence before the Court indicates that 
there has been a conscious, deliberate, 
progressive, and continuous attempt to promote 
and advance the integration of both pupils and 
faculty. This has occurred without the sanction 
of an injunction." [Emphasis supplied]
Bradley, supra, District Court ruling of 
September 3, 1970, slip opinion at p. 3.

Thereafter, the plaintiffs in this cause, by 
motion in this Court, requested the return of the record 
and exhibits of this cause to the District Court prior to 
the issuance of this Court's mandate so that the trial on 
the merits could proceed on November 4, 1970 in District 

Court without delay.

Subsequently, the plaintiffs in this cause, by 
motion in District Court, sought a preliminary order to 
compel the Detroit Board of Education to immediately 
implement the April 7 plan. On November 6, 1970, Judge 
Roth entered an order which ruled that he was taking 
plaintiffs’ motion under advisement and further ordered 
the Detroit Board of Education to submit the April 7 plan 
or other plans achieving similar results in terms of pupil

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integration.

On November 16, 1970 the Detroit Board of 
Education filed with the District Court three plans, each 
proposing different methods of determining the attendance 
areas of the Detroit high schools. The April 7 plan was 
one of the plans submitted.

Evidentiary hearings were held on November 18,
19 and 2 5, 1970, as to which plan should be adopted by 
the District Court. On December 3, 1970, Judge Roth released 
his opinions in which he granted a motion for continuance 
of the trial on the merits and ruled that the McDonald plan 
was superior

". . .in advancing the cause of integration, 
and that preparations should be started 
immediately for its institution at the 
beginning of the next full school year in 
September 1971. . .”

Subsequently, plaintiffs appealed to this Court, thus 
making this their second appeal prior to a trial on the 
merits.

ARGUMENT

I.
THE NAMED PLAINTIFFS IN THIS CAUSE OF 
ACTION LACK STANDING TO REQUEST IMPLE­
MENTATION OF THE APRIL 7 PLAN AS THEY ARE 
NOT MEMBERS OF THE CLASS WHO WOULD BE 
AFFECTED BY THE APRIL 7 PLAN.____________

-4-



In general, constitutional rights are personal 

rights and may not be vicariously asserted by a third 

party. Tileston v. Uliman (1943), 318 U.S. 44, 46; 
Alderman, et al v, United States (1969), 394 U.S. 165,
174. Furthermore, in order to bring a class action in 
Federal Court, the plaintiffs cannot vicariously assert 
the constitutional rights of a class of which they are 
not members. Bailey v. Patterson (1962), 369 U.S. 31,
33. In addition, F.R.C.P. 17a requires that:

"Every action shall be prosecuted in the
name of the real party in interest. . ."

A. The individual plaintiffs other than 
the NAACP lack standing to request as 
a matter of constitutional right the 
implementation of the April 7 plan.

At the outset, it should be stated for the 
purpose of clarity that plaintiffs* standing in this 
cause, the propriety of plaintiffs’ class action in this 
cause and the definition of said class, if any, have not 
been determined by the District Court. In fact, the 
District Court has just recently set February 8, 1971 
as the date for a hearing to make the above determinations. 
As a result, this Court must determine without benefit of 
a trial court ruling whether the plaintiffs in this cause 
have standing to request implementation of the April 7 
plan as a matter of constitutional right.

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In short, the issue before this Court is whether 
the plaintiffs have a ". . . personal stake in the outcome 
. . ." i.e., in the implementation of the April 7 plan.
Baker v. Carr (1962), 369 U.S. 186, 204. The importance 
of determining standing was stressed in Flast v. Cohen 
(1968), 392 U.S. 8 3, 99, wherein the Supreme Court of the 
United States said:

". . .In other words, when standing is placed 
in issue in a case, the question is whether the 
person whose standing is challenged is a proper 
party to request an adjudication of a particular 
issue and not whether the issue itself is 
justiciable. Thus, a party may have standing 
in a particular case, but the federal court may 
nevertheless decline to pass on the merits of 
the case because, for example, it presents a 
political question. A proper party is demanded 
so that federal courts will not be asked to 
decide ’ill-defined controversies over con­
stitutional issues,’ United Public Workers v. 
Mitchell, 330 U.S. 75, 90 (1947), or a case 
which is of 'a hypothetical or abstract character,' 
Aetna Life Insurance Co. v. Howorth, 300 U.S. 227, 
240 (1937)."

When plaintiffs’ alleged constitutional claim to 
the April 7 plan is viewed in this perspective, attention is 
inevitably directed to the named plaintiffs and whether any 
of them or their children would be personally affected by 
the April 7 plan altering the attendance areas for some but 
not all of the high schools in the Detroit school system for 

tenth graders only in 1970-71.

The record before the District Court clearly

-6-



indicates that none of the named plaintiffs would be 
affected by the April 7 plan because none of the named 
plaintiffs are tenth graders or have any children currently 
in the tenth grade in the included schools. (11/25 Tr. 
at 316, 361.)

Consequently, the conclusion is compelled that 
due to the lack of plaintiffs’ "personal stake" in the 
April 7 plan, this Court has been asked to decide a possible 
"ill-defined . . . constitutional issue" which is, as to the 
named plaintiffs, of "a hypothetical or abstract character."

In summary, the constitutional right, if any, to 
the April 7 plan is possessed by third persons who are not 
parties to this cause. Since the class of persons, if any, 
who arguably have a constitutional right to the April 7 plan, 
are not before this Court, then the constitutional rights of 
such third persons may not be asserted vicariously by the 
party-plaintiffs in this cause. The named plaintiffs herein, 
not being affected by the April 7 plan, have suffered no injury 
and, thus, lack standing to challenge the implementation of 
an integration plan other than the April 7 plan.

B. The NAACP lacks standing to request as 
a matter of constitutional right 
implementation of the April 7 plan.

-7-



The NAACP in the cause now before this Court 

seeks to vicariously raise the alleged constitutional 
rights of a limited number of tenth grade high school 
students who allegedly would have been affected by the 

April 7 plan. As illustrated earlier, the record before 
the trial court is clear in establishing that none of the 
parents or their children now before this Court would be 

affected by the April 7 plan. (11/25 Tr. at 316, 361.)
As a result the NAACP seeks to represent a class of 
plaintiffs composed of minor children which are affected 
by the April 7 plan when such minor children and/or their 
legal guardians have not sought legal redress for alleged 
violations of their constitutional rights and no showing 
has been made that it would have been difficult, for any 

reason, for them to do so.

In Farmers Co-Op Co. v. Socony-Vacuum Oil Co. 

(1942, 8th Cir.), 133 F 2d 101, 103, the Court held that 
a farmers co-op, like the NAACP in this cause, could not 
represent its members as a party plaintiff in a class 
action in Federal Court pursuant to Rule 23 (a)(3)- 
Further, the Second Circuit Court of Appeals in Rock 
Drilling, Blasting, etc, v. Mason & Hanger Co. (1954,
2nd Cir.), 217 F 2d 687, 693, held that a labor union 
could not sue on behalf of their members for tort or

-8-



contract claims which arise out of the employer-employee 
relationship. It can, therefore, be concluded that as a 
general rule an association, like the NAACP, may not bring 
an action in Federal Court on behalf of its members.

It is true that an association, namely the 
NAACP, has been allowed in the past to raise the consti­
tutional rights of its membership. NAACP v. Alabama 
(1958), 357 US 449; NAACP v. Button (1963), 371 US 415. 
However, the test for allowing an association to raise 
the constitutional rights of a class was expressed in 
Norwalk Core v. Norwalk Redevelopment Agency (1968,
2d Cir), 395 F 2d 920, 937. In that cause the Court said:

"The association plaintiffs were denied standing 
below because they are 'not themselves members 
of the classes whose rights they claim to be 
asserting.' 42 F.R.D. at 622. We think that 
the reasons for requiring an individual plain­
tiff in a class action to be a member of the 
class do not necessarily preclude an association 
from representing a class where its raison 
d'etre is to represent the interests of that 
class." We do not decide, however, whether the 
association plaintiffs have standing. The 
answer to that question depends on whether there 
is a compelling need to grant them standing in 
order that the constitutional rights of persons 
not immediately before the court might be 
vindicated. See NAACP v. State of Alabama, 
ex rel. Patterson, 357 U.S. 449, 458-460, 78 
S. Ct. II6 3, 2 ITEd. 2d 1488 (1958). It appears 
to us that the Individual plaintiffs can adequately 
represent the interests of all members of the 
relevant class, but we will not preclude the 
plaintiffs from trying to show to the District 
Court's satisfaction that it is only the asso­
ciation plaintiffs which can perform this function.

- 9-



It can be concluded, that absent a "compelling
need" to grant the NAACP standing to sue, the NAACP cannot 
maintain its standing as a plaintiff. It is important to note 
that in Norwalk, supra, there were individual plaintiffs who 
were representative of the class and that the only question 
raised was whether these individual plaintiffs could 
adequately represent this class. And if they could not 
adequately represent the class, then there was a compelling 
need to allow the association to come in as a party plain­
tiff in order to assure the court that the constitutional 
rights of persons not immediately before the court might 
be vindicated. Therefore, in the cause now before this 
Court the argument that NAACP cannot vicariously raise the 
constitutional rights of others becomes even more persuasive 
because there are no individual plaintiffs before the Court 
who would be affected by the April 7 plan. The class of 
persons affected by the April 7 plan is not seeking legal 
redress for alleged violations of constitutional rights 
because of the failure to implement the April 7 plan. Since 
that class of persons is not before this Court, there is no 
need to ascertain whether they are adequately represented.
As a result there is not a "compelling need" to allow the 
NAACP to raise the constitutional rights of those persons 
who would be affected by the April 7 plan. See Jenkins v. 
Georges (1969), 312 F Supp 289, as an example of a case

- 10-



which follows the Norwalk rationale.

Moreover, the rationale of Norwalk, supra, is 
implicit in NAACP v . Alabama, supra, and NAACP v. Button, 
supra. In both of these United States Supreme Court cases 
the constitutional rights of the members of the NAACP were 
threatened. These rights were the freedom of association 
and the freedom to act collectively and as such were in 
immediate danger of extinction in the respective states of 
Alabama and Virginia. Unless the court permitted the NAACP 
to vicariously raise these constitutional rights, the con- 
constitutional rights of the individual members of the NAACP 
would be threatened and for all practical purposes extinguished. 
No such compelling need exists in the cause now before this 
Court. Nor has the NAACP averred that any of the students 
or their parents who would be affected by the April 7 plan 
are members of the NAACP. Indeed, it is entirely appropriate 
to assume, from the total absence of any individual child in 
the tenth grade in one of the 12 high schools affected by the 
April 7, 1970 plan as a plaintiff in this case, that there 
does not exist one stduent or parent who would be interested 
in prosecuting this suit because he feels his constitutional 
rights have been violated due to the failure to implement 
the April 7 plan.

Assuming arguendo that the students and/or parents'

- 11-



who would be affected by the April 7 plan were also 
members of the NAACP, then the presence of the NAACP 
as a party plaintiff might be justified on the grounds 
that its dismissal from the lawsuit might " . . .  adversely 
affect it as an entity through diminution in membership 
and financial support. . . ” Smith v. Board of Education 
of Morrilton School District No. 32 (1966, 8th Cir.)
365 F 2d 770, 777* But it must be emphasized that there 
has been no showing on the record to date that the students 
and/or parents affected by the April 7 plan are members of 
the NAACP._

Moreover, no one would seriously doubt the standing 
of the NAACP if it was charged under law to enforce the 
constitutional rights of the students and/or parents 
affected by the April 7 plan. Brewer v.Hoxie School District 
No. 46 (1956, 8th Cir.), 238 F 2d 91. But it is equally 
clear that the NAACP, unlike Brewer, supra, is not charged 
with any such legal responsibility either by constitutional 
or statutory law.

In summary, the NAACP has not shown how its 
personal rights have been violated by the failure to implement 
the April 7 plan. Nor has the NAACP shown that it is a real 
party in interest in this lawsuit or a member of the class of 
persons affected by the April 7 plan. Finally, the NAACP

-12-



has not demonstrated a compelling need to vicariously 
assert the constitutional rights of third parties who are 
members in its organization and this point is made 
notwithstanding the NAACP’s failure to prove that some 
of its members are persons within the class affected by 
the April 7 plan. In short, the NAACP is not a proper 
party to this litigation as to the April 7 plan and 
cannot vicariously raise the constitutional rights of 
third persons not before this Court as to the April 7 plan.

II.
THIS COURT MAY NOT REVERSE THE INTER­
LOCUTORY ORDER DECREEING IMPLEMENTATION 
OF THE MCDONALD PLAN UNLESS THE DISTRICT 
COURT’S FINDINGS OF FACT ARE CLEARLY 
ERRONEOUS AND THE ORDER OF IMPLEMENTATION 
CONSTITUTES AN ABUSE OF DISCRETION._______

It is clear and beyond question that the District 
Court’s finding of fact, that the McDonald plan is a 
superior integration plan to that of April 7, cannot be 
set aside unless clearly erroneous. F.R.C.P. 52(a);
Craggett v. Board of Education of the Cleveland City School 
District, Cuyahoga County, Ohio (6th Cir. 196*0 , 338 F 2d 941, 
942. Moreover, it is equally clear that the District Court s 
interlocutory order to implement the McDonald plan cannot be 
reversed or modified unless this Court finds that the District 
Court abused its discretion by entering such an order.

- 13-



1967), 387 P 2d 179, 182-183, Cert. den. (1968), 390 U.S.
921; Bradley, supra, slip opinion at p. 14. In Bradley,
supra, this Court said:

"The granting or denial of a preliminary 
injunction pending final hearing on the 
merits is within the sound discretion of 
the District Court. On appeal, the action 
of the District Court denying a preliminary 
injunction will not be disturbed unless 
contrary to some rule of equity or result 
of improvident exercise of judicial discretion. 
Nashville 1-40 Steering Committee v. Ellington, 
387 F 2d 179 (6th Cir.), cert, denied, 390 
U.S. 921.” Slip opinion at p. 14.

Nashville 1-40 Steering Committee v . Ellington (6th Cir.

Since this Honorable Court held in its earlier 

opinion (Bradley, supra, slip opinion at p. 1 3 ) that it was 
too early in this lawsuit to express an opinion as to 
whether the Detroit School District was under a constitu­
tional obligation to adopt a plan to integrate, this Court, 
in effect, adopted the District Court’s prior finding of 
fact for the present. The District Court’s finding of fact 
at the conclusion of its first hearing on September 1, 1970 
was that the Detroit School District had not maintained a 
course of action which can be characterized ". . . as
directed toward the maintenance of a dual system of schools, 
either de jure or de facto. . .” Bradley, supra, District 
Court ruling of September 3, 1970, Slip opinion at p . 3. 
Therefore, the state defendants submit to this Court that

-14-



subsequent to this Court’s decision in October of 1970, 
the plaintiffs in this cause have not introduced any evidence 
on November 4, 18, 19 and 25 to support their allegation 
that the defendant school board is maintaining a dual school
system, either de jure, de facto, or otherwise

In fact the District Court, in its opinion of 
December 3, 1970, said the following:

"We turn next to the legal posture of the case. 
Plaintiffs have cited Alexander v. Holmes 
County Board of Education, 396 U.S. 19» 24 
L Ed 2d 19 (1969), and Keyes v. School District 
No. One, Denver, Colorado, 313 F.Supp. 6l 
(D. Colo. 1970). We consider neither to be 
in point so far as our present issue is con­
cerned. We cannot at this point proceed on 
the assumption that plaintiffs will succeed 
in proving their claim, in the hearing on the 
merits, that the Detroit school is a segregated
school system, de ĵure or de facto.**
[Emphasis supplied.] Bradley, supra, slip
opinion at p . 8.

After hearing plaintiffs’ motion for implementation 
of the April 7 plan on November 4, 1970, the District Court, 
on November 6, 1970, ruled that the Detroit Board of Education 
submit the April 7 plan and other plans achieving similar 
results concerning pupil integration by November 16, 1970. 
Assuming arguendo that the District Court was correct in 
finding that the Detroit School District could not implement 
a plan of attendance which would achieve less pupil integration 
than the April 7 plan, the District Court order to submit plans

- 15-



which will achieve no less pupil integration than the 
April 7 plan is only detrimental, if at all, to the 
defendants.

After extensive evidentiary hearings on
November 18, 19 and 25, 1970, as to the merits of each
of the three plans, the District Court based on its view
of the law that integrated schools provide a better
education, found the following:

"Comparing the McDonald and April Plans, it 
appears to us that the April Plan's principal 
aim is to improve integration by the 'numbers,' 
as several witnesses described it. Whether in 
the long run it will do even that is a serious 
question. It is a plan which does not take 
into account the basics which we have hereto­
fore mentioned, and it does not offer incentive 
to or provide motivation for the student him­
self. Instead of offering a change of diet, 
it offers forced-feeding. The McDonald Plan 
on the other hand, we believe, offers the 
student an opportunity to advance in his 
search for identity, provides stimulation 
through choice of direction, and tends to 
establish security. That it will promote 
integration to the extent projected remains 
to be seen, but based on the experience in 
this same school system, i.e., Cass Technical 
High School, it holds out the best promise of 
effective, long-term integration. It appears 
to us the most likely of the three plans to 
provide the children of the City of Detroit 
with quality education as we have defined it.
The McDonald Plan has been characterized by 
the plaintiffs as an experiment. The short 
answer to this is that all plans are experiments, 
just as is life itself. To sum up, in our view 
the McDonald Plan is the best of the plans 
before the Court." Bradley, supra, District 
Court ruling of December 3, 1970, slip opinion 
at p . 5 .

-16-



It must be remembered that it was the District 
Court’s finding that on the state of the record there was 
no constitutional duty to integrate. However, the District 
Court did rule that

" . . .  where a school district has taken steps 
enhancing integration in its schools it may 
not reverse direction. . .”
Id. slip opinion at p. 9.

Therefore, it is implicit in the District Court’s ruling 
of December 3, 1970 that as a matter of fact the McDonald 
plan will enhance pupil integration at least equal to that 
of the April 7 plan. Such findings of fact cannot be 
reversed unless shown to be clearly erroneous. F.R.C.P. 
52(a); Craggett, supra. Further, since it was not clearly 
erroneous for the District Court to find that the McDonald 
plan, unquestionably broader in scope than the April 7 
plan, would enhance integration at least equal to that of 
the April 7 plan, the District Court did not abuse its 
discretion by implementing the McDonald plan rather than 
the April 7 plan.

Absent a finding of a dual or de jure school 
system, there is no constitutional duty to "at once" 
provide a unitary school system as required by Alexander 
v.Holmes County Board of Education (1969), 396 U.S. 19, 20; 
Carter v. West Feliciana Parish School Board (1969), 396 
U.S. 226. In the cause now before this Honorable Court

-17-



there has been no finding by any court that the Detroit 
Board of Education operates a de jure, dual school system 
which contravenes plaintiffs’ Fourteenth Amendment rights. 
Without such a finding it was within the sound discretion 
of the District Court to reasonably fix the time, September 
of 1971, for implementation of the McDonald plan. Nashville 
Steering, supra; Bradley, supra.

Therefore, the District Court could, within the 
realm of its judicial discretion, provide the school district 
with ”. . .  lead time in which to program and prepare for its 
(McDonald plan) establishment.” For in the Court's own words, 
the "lead time: is necessary in order to ”. . . give the 
administrative staff both direction and time for an orderly 
transition, and allow students an opportunity to anticipate 
the changes in educational offerings so that they may exercise 
the choices which will open to them. . .” Id. slip opinion 

at p. 10, December 3, 1970.

In summary, it was neither clearly erroneous nor 
am abuse of discretion by the District Court to order 
implementation of the McDonald plan in September of 1971.

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III.
THE FEDERAL DISTRICT COURT DID NOT 
ABUSE ITS DISCRETION BY CONTINUING 
THE TRIAL ON THE MERITS UNTIL EARLY 
SPRING OF 1971.____________________

Every effort has been made by this Court and 
the Federal District Court to provide, accommodate and 
facilitate a time fbr a trial on the merits for plaintiff's 
cause of action. This fact is evidenced by the following 
sequence of events which have transpired in this cause.
Upon receipt of plaintiffs' complaint the District Court 
advanced this cause on its docket and scheduled a hearing 
on August 27, 28 and September 1, 1970, pursuant to 
plaintiffs' request for a preliminary injunction; thereafter, 
the District Court " . . .  because of the need for a prompt 
decision . . . and quick notice to the parties, . . . 
stated that it would announce its decision on the applica­
tion for preliminary relief as soon as (it) made its decision, 
and that its memorandum opinion would follow as soon as it 
could be prepared".(Bradley, supra, September 3, 1970,
District Court slip opinion at p. 2); contemporaneously, the 
District Court scheduled " . . .  the hearing on the merits 
. . .  for November 2, 1970 when, by rearrangement of the 
other commitments of the Court, two five-day work weeks 
would be set aside for this case (Id. slip opinion at p . 2),

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further, the District Court required " . . .  that trial briefs 
be submitted not later than October 27* 1970, and that 
proposed exhibits be cleared between counsel by the same 
day." This effort was made ". . .so that the hearing on 
the merits may proceed with dispatch. . ." (Id. slip 
opinion at p. *0; subsequently, on September 8, 1970 
Chief Judge Harry Phillips of the Sixth Circuit Court of 
Appeals agreed to hear in chambers plaintiffs’ Motion for 
Injunction Pending Appeal and on September 11, 1970 issued 
an order denying plaintiffs’ motion (this Court's order on 
September 11, 1970); again contemporaneously the Chief Judge 
of the Sixth Circuit Court of Appeals expedited and advanced 
the cause on its docket for a hearing on the merits on 
October 2, 1970 and the briefs by the parties were to be 
filed in the interim (this Court's order on September 11, 
1970); on October 13, 1970 this Court released its opinion 
in this matter; subsequently the plaintiffs filed a motion 
with this Court requesting the return of the record and 
exhibits prior to the issuance of this Court's mandate so 
that a trial on the merits would not be delayed, and the 
motion was granted; on October 30, 1970 after remand by 
this Court, plaintiffs filed a motion in District Court 
for the immediate implementation of the April 7 plan; on 
November 1970 the District Court heard argument on 
plaintiffs’ motion and with plaintiffs' acquiesance

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(plaintiffs’ brief, p. 6) moved the trial on the merits 
to December 8, 1970; concurrently, the District Court 
scheduled November 18, 19 and 25 for hearing argument on the 
propriety of the three plans submitted; and finally, the 
District Court released its opinion on the school plans 
submitted and on the motion for continuance on December 3> 
1970. (Bradley, supra, December 3> 1970 District Court).

The above sequence of events clearly establishes 
the fact that it is the plaintiffs and not the defendants 
who seek to try this case in piecemeal. Furthermore, it has 
been the plaintiffs and not the defendants who have determined 
what issues will be tried at the various hearings before the 
District Judge. In short, on at least two occasions the 
plaintiffs were given special arrangements by the District 
Court for a prompt hearing, i.e., August 27 and November 4, 
1970, and in both cases plaintiffs moved for preliminary 
orders which precluded the court from hearing the case on 
its merits.

Therefore, it was in this context that while 
pressed with other business the District Court granted 
the defendant Detroit School District's motion for a 
continuance until after the first of the year.

Review of the five sound reasons given by the

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District Court for granting the motion for continuance 
demonstrates that the District Court has not abused its 
discretion by granting the motion. Bradley, supra,
District Court’s slip opinion of December 3, 1970.

Moreover, the soundness of the defendant 
Detroit School District’s motion for continuance is 
witnessed by the fact that the defendants cannot prepare 
for a trial on the merits and at the same time defend the 
District Court’s rulings which are repeatedly appealed on 
an "emergency” basis to this Court by plaintiffs.

In Merritt-Chapman & Scott Corporation v. Kent 
(1962, 6th Cir.), 309 P 2d 891; Cert. den. (1963), 372 U.S. 
982, the Court of Appeals held that ”. . .  the continuance 
of a case is a matter which rests within the sound dis­
cretion of the trial court. . .”

In summary, based on this Court’s rule that a 
grant of a continuance will be reversed only when a trial 
court has abused its discretion, it is respectfully submitted 
to this Court that the District Court did not abuse its 
discretion in granting the continuance for the trial on 
the merits until the spring of 1971.

WHEREFORE, the state defendants In this cause

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pray that this Court affirm the District Court’s order
to adopt the McDonald plan of attendance and to implement
said plan in September of 1971. Further, the state defendants
pray that this Court affirm the District Court’s order to
continue the trial on the merits until the Spring of 1971.

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

Eugene Krasicky 
Assistant Attorney General
William G. Jackson 
Assistant Attorney General
Attorneys for Defendants-Appellees
Business Address:

Seven Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913

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CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Brief 
of Defendants-Appellees has been served on counsel for Appellants 
Louis R. Lucas, William E. Caldwell, 525 Commerce Title Building, 
Memphis, Tennessee 38103; E. Winther McCroom, 3245 Woodburn 
Avenue, Cincinnati, Ohio 45207; Nathaniel Jones, 1790 Broadway,
New York, N. Y.; Jack Greenberg, James M. Nabrit III, Norman J. 
Chachkin, 10 Columbus Circle, New York, N. Y. 10019; Bruce Miller, 
Lucille Watts, 3426 Cadillac Tower, Detroit, Michigan 48226;
J. Harold Flannery, Paul Dimond, 38 Kirland Street, Cambridge, 
Mass; Counsel for Defendants-Appellees,George E. Bushnell, Jr., 
2500 Detroit Bank & Trust Building, Detroit, Michigan 48226, 
and Counsel for Intervening Defendant, Theodore Sachs, 3610 
Cadillac Tower, Detroit, Michigan 48226, by United States Mail, 
postage prepaid, this 29th day of January, 1971.

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