Petition — Milliken v. Bradley

IN THE SUPREME COURT OF THE UNITED

October Term, 1976

no... 96-44% 4

WILLIAM G. MILLIKEN, Governor of the State of Michigan; FRANK J. KELLEY,

sp Sy nz FF ~gelclhaemeee and ALLISON GREEN,

Petitioners,

- VS -

we Ag gd gh ot pg Aah hd

VERDA BRADLEY; JEANNE GOINGS baat ae Mother and Next Friend,

BLANCH GOINGS; BEVERLY LOVE, J atopy Teh,

WILLIAMS; RAY LITT and MRS. BLAKE, parents; all parents having

(Continued on Inside Front Cover)

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

FRANK J. KELLEY

Attorney General

Robert A. Derengoski

Solicitor General

Gerald F. Young

George L. McCargar

Mary Kay Bottecelli

Assistant Attorneys General

Attorneys for Petitioners

Business Address:

750 Law Building

525 West Ottawa Street

Lansing, Michigan 48913

Dated: September 24, 1976.

oe.) ak iete« ae Gt ik ee ide: re Ae Oy Poe eee. et

Bat RR Sue R a ks rites Su Rn MOL ig

*

- a

: 6

INDEX

Opinions and Orders of the Courts Below ..........

RAR ET aT ne ae ee a

Er ee ae me

Constitutional and Statutory Provisions Involved ....

a

Reasons for Granting the Writ:

IN THE ABSENCE OF ANY ADJUDI-

CATED CONSTITUTIONAL VIOLATION

WITH RESPECT TO EDUCATIONAL

PROGRAMS IN THE DETROIT SCHOOL

SYSTEM, THE DECISION OF THE

SIXTH CIRCUIT COURT OF APPEALS

ORDERING THE SYSTEM WIDE EX-

PANSION OF EXISTING EDUCA-

TIONAL PROGRAMS IS BASED UPON

AN ERRONEOUS LEGAL STANDARD

THAT IS IN CONFLICT WITH THE

DECISIONS OF OTHER COURTS OF

APPEALS AND OF THIS COURT.......

IN THE ABSENCE OF ANY FINDING OF

A CONSTITUTIONAL VIOLATION

WITH RESPECT TO MICHIGAN'S SYS-

TEM OF FINANCING PUBLIC EDUCA-

TION, THE LOWER COURT’S UNPRE-

CEDENTED DECISION COMPELLING

DEFENDANTS IN THE EXECU-

4

13

TIVE BRANCH OF STATE GOVERN-

- MENT TO PAY OUT 5.8 MILLION DOL-

LARS OR MORE IN ADDITIONAL, UN-

APPROPRIATED FUNDS FROM THE

STATE TREASURY IS CONTRARY TO

THE CONSTITUTION AND THE DECI-

SIONS OF THIS COURT ............++--

THE QUESTIONS RAISED HEREIN BY

THE UNPRECEDENTED DECISION

BELOW ARE IMPORTANT QUESTIONS

OF FEDERAL LAW WHICH SHOULD BE

SETTLED BY THIS COURT ...........--

0 ee iculen

19

**.

CITATIONS

Page

Bradley v Milliken, 338 F Supp 582 (1971) (Roth, J.),

aff'd, 484 F2d 515 (CA6, 1973) .................. 8

Bradley v Milliken, 411 F Supp 973 (ED Mich, 1975). 6

Bradley v School Board of Richmond, Virginia, 462 F2d

1058 (CA4, 1972), aff'd by equally divided Court, 412

3 fo . rreetire Pee eee eee eee eee 21

Brown v Board of Education, 347 US 483 (1954) ... 16

Brown v Board of Education, | e

ee iss cu aedcescoees 16, 17, 27

Cooper v Aaron, 358 US 1 (1958) ................. 20

Edelman v Jordan, 415 US 651 (1974)......... 22, 23, 27

Griffin v County School Board of Prince Edward

ee MO AO GOED on. ccc ccccccccsececce 22

Hart v Community School District of Brooklyn, New

York School District No 21, 383 F Supp 699 (ED

NY, 1974), aff'd, 512 F2d 37 (CA2, 1975)........ 17

Keyes v School District No 1, Denver, Colorado, 521

F2d 465 (CA10, 1975), cert den, 423 US 1066 (1976) 17

Milliken v Bradley, 418 US 717 (1974), rev’g and

remanding 484 F2d 215 (CA6, 1973) ............. passim

Morgan v Kerrigan, 530 F2d 401 (CAI, 1976), cert den,

—_ ee | eee OF 17

National League of Cities v Usery, _.. US _ ___;

EE veidcecccccesccccecess 20, 21, 22, 27

Page

Pasadena City Board of Education v Spangler, __. US

ee ee Po oer 16, 17

Regents of the University of Michigan v Labor Mediation

Board, 18 Mich App 485; 171 NW2d 477 (1969).... 22

San Antonio Independent School District v Rodriguez,

O60 TD 0 Ges aviv aaa 18, 19, 26, 27

Scheuer v Rhodes, 416 US 232 (1974) ............... 20

Swann v Charlotte-Mecklenburg Board“ of Education,

Bg REP ree re ee ee 16, 17, 28

Wright v Houston Independent School District, 393 F

Se Cee Gee PU ONO. bi davsecesnctusceesdes 20

Wyatt v Aderholt, 503 F2d 1305 (CAS, 1974) ........ 20

US Const, Amendments, art X ................. 4,21,27

US Const, Amendments, art XI .......:...... 4, 22, 24, 27

US Const, Amendments, art XIV, § 1 .............. 4

Vocational Education Act of 1963, 77 Stat 403 et seq, as

Oo PPrrerrrr ry rerrer se 11

BP Wee Ge éiedesue-de ices seediackiseskoeasens am

eee GOS Tes G00 Di OP Oe hc cecscesincccdesevaane 23

Mich Const 1963, art 9, §§ 6 and Il .......... 20.00. 25

— Fe § & FSS Perr Tr errr 22

1972 PA 258, as amended; MCLA 388.1101 et seq;

ee Ce GE OR ond caccccciduccianoe 7, Ba

re ee

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1976

WILLIAM G. MILLIKEN, et al,

Petitioners,

Vv

RONALD BRADLEY, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CiRCUIT

Petitioners William G. Milliken, Governor of the State of

Michigan; Frank J. Kelley, Attorney General of the State of

Michigan; Michigan State Board of Education, a constitu-

tional body corporate; John W. Porter, Superintendent of

Public Instruction of the State of Michigan, and Allison

Green, Treasurer of the State of Michigan, pray that a writ

of certiorari be issued to review the judgment and opinion of

the United States Court of Appeals for the Sixth Circuit

entered in this proceeding on August 4, 1976.

OPINIONS AND ORDERS OF THE COURTS BELOW

The Opinion of the Court of Appeals for the Sixth Circuit,

not yet reported, appears in the Appendix to Petition, filed

herewith, at pages 15la-190a. '

I

Hereafter, references to the Appendix to Petition will be indicated by

page numbers enclosed in parentheses.

a oe

|

tv

|

Other Opinions and Orders delivered in the Courts below JURISDICTION

are: : |

United States District Court for the Fastern District of

Michigan, Southern Division:

May 21, 1975, Order for Acquisition of Transportation,

not reported. (la-2a).

August 14, 1976, Memorandum, Opinion and Remedial

Decree (Findings of Fact and Conclusion of Law), 402

F Supp 1096. (7a-88a).

August 15, 1975, Partial Judgment and Order, not

reported. (89a-101a).

November 4, 1975, Memorandum and Order [ Desegre-

gation Plan], 411 F Supp 943. (103a-11 1a).

November 20, 1975, Order [Desegregation Plan], not

reported. (113a).

May I1, 1976, Memorandum, Order, and Judgment

{Educational Components], not reported. (115a-144a).

May !1, 1976, Judgment [Educational Components], not

reported. (145a-149a).

United States Court of Appeals for the Sixth Circuit:

June 19, 1975, Order [Acquisition of Transportation],

519 F2d 679. (3a-6a).

August 4, 1976, Notice of Entry of Judgment, not

reported. (19la).

The judgment of the Court of Appeals for the Sixth Circuit

was entered on August 4, 1976. (19la). This petition for a

writ of certiorari was filed within 90 days of that date. The

Court’s jurisdiction is invoked under 28 USC 1254(1).

QUESTIONS PRESENTED

I.

Whether, in the absence of any finding of a constitutional

violation with respect to educational programs in the Detroit

school system, the lower courts exceeded the limits of their

authority in the remedy proceedings of this school

desegregation case by ordering a system wide expansion of

existing educational programs in the Detroit schools?

Whether, in the absence of any finding of a constitutional

violation with respect to Michigan’s system of financing

public education, the lower courts’ decisions compelling

defendants in the executive branch of state government to

pay out 5.8 million dollars, or more, in additional,

unappropriated funds from the State Treasury to defray the

cost of court ordered educational program expansion in the

Detroit school system are contrary to the Constitution and

the’ decisions of this Court?

— oo

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution:

Amendments, Article X — **The powers not delegated to

. the United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the

people.”

Amendments, Article XI — ‘‘The Judicial power of the

United States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.”

Amendments, Article XIV, Section 1 — ‘All persons

born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of

the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”’

STATEMENT OF THE CASE

The Court has previously had this case in Milliken v.

Bradley, 418 US 717 (1974), reversing and remanding 484

F2d 215 (CA6, 1973). In that case, the Court answered in the

negative the question of ‘‘whether a federal court may

impose a multi district, areawide remedy to a single-district

de jure segregation problem absent any finding that the other

included school districts have failed to operate unitary school

systems within their districts, absent any claim or finding

oe

~~

that the boundary lines of any affected school district were

established with the purpose of fostering racial segregation in

the public school, [and] absent any finding that the included

districts committed acts which effected segregation within

the other districts . . .”” 418 US at 721.

In that opinion the Court defined the constitutional right of

the plaintiffs as follows:

‘The constitutional right of the Negro respondents

residing in Detroit is to attend a unitary school system in

that district."" 418 US at 746

The Court concluded its opinion by saying:

‘*Accordingly, the judgment of the Court of Appeals is

reversed and the case is remanded for further proceed-

ings consistent with this opinion leading to prompt

formulation of a decree directed to eliminating the

segregation found to exist in Detroit city schools. . .”’

(Emphasis supplied) 418 US at 753

The segregation found to exist was the separation of pupils

on the basis of race in the Detroit city schools. See, e.g., 418

US at 725-728.

Upon receipt of the Court’s mandate from the Court of

Appeals, the District Court ? ordered the plaintiffs and the

Detroit Board to submit desegregation plans and ordered the

State Board to submit a critique of the Detroit Board’s

2

Honorable Robert E. DeMascio to whom the case was assigned after

the death of Honorable Stephen J. Roth on July 11, 1974 (15Sa).

— on

plan. * (13a). The plan submitted by the Detroit Board was

characterized by the District Court as follows:

The plan . . . contained many components that were

vague or poorly documented. Costs for these compo-

nents, including transportation, were excessive. The

defendant Detroit Board sought to add 3,416 new

employees, many at salaries well in excess of those paid

to its more experienced and tenured teachers.

Moreover, the plan failed to inform the Court of the

extent to which each of the components might presently

exist in the school system . . .”’ (13a).

The District Court characterized the plaintiffs’

desegregation plan as follows:

‘The plan. . . deals solely with pupil reassignment.

The rationale and the ultimate goal of the plan are that,

as far as possible, every school within the district must

reflect the racial ratio of the school district as a whole

within the limits of 15 percentage points in either

direction . . ."’ (Emphasis supplied) (24a).

Plaintiffs’ plan was consistent, at least, with the theory of

their complaint. * As the Court noted in Milliken v Bradley,

supra, 418 US at 723:

3 .

~ Petitioners Milliken, et al, defendants below, will be called collectively.

“Milliken, et al’, and individually by the title of their offices, i.e.

“Governor”. “State Board’, etc; respondents Bradley, et al, plaintiffs

below, will be called *‘plaintiffs’’; respondent Board of Education of the

School District of the City of Detroit, defendant below, will be called

‘*Detroit Board.”

4 . .

hou laintiffs have filed with the District Court amended

Pen 9 dein claims for multi-district relief, see Bradley v myer

411 F Supp 973 (ED Mich, 1975), the original prayer for Detroit-only relie

has never been amended. The Court's comment in Milliken v Bradley,

supra, 418 US at 752 n 24, is particularly appropriate, viz: Apparently,

when the District Court, sua sponte, abruptly altered the theory of the

case . . .. neither the plaintiffs nor the trial judge considered amending the

complaint to embrace the nev theory.”

— oo

*. . . The complaint also alleged that the Detroit Public

School System was and is segregated on the basis of

race as a result of the official policies and actions of the

defendants and their predecessors in office, and called

for the implementation of a plan that would eliminate

‘the racial identity of every school in the [Detroit]

system and . . . maintain now and hereafter a unitary,

nonracial school system.” ”’

Hearings on the desegregation plans commenced on April

29, 1975 and concluded with the final arguments of counsel

on June 26-27, 1975. During the course of the hearings, on

motion of the plaintiffs, the District Court, on May 21, 1975,

entered an order requiring Milliken, et al, at their cost, no

later than May 28, 1975, to acquire 150 school buses ‘‘to be

used in the Detroit Desegregation Plan to be implemented by

order of the Court.’’ (la). On the appeal of Milliken, et al,

the Court of Appeals modified the District Court’s Order by

requiring that the acquisition be made by the Detroit Board

and that Milliken, et al, pay or reimburse the cost of

acquisition to the extent of 75%.‘ (Sa). The Detroit Board’s

petition for a writ of certiorari to review the Court of

Appeal’s Order was denied. 423 US 930 (1975).

On August 15, 1975, the District Court filed its

Memorandum Opinion and Remedial Decree (7a), and its

Partial Judgment and Order (89a). With respect to pupil

-

In that opinion, the Court of Appeals stated that the ‘‘modification is

based upon the representations . . . made by the State defendants and is

consistent with the spirit and purposes of the constitutional and statutory

provisions and the case law of the State of Michigan.”’ (4a). As the Court

recognized in Milliken v Bradley, 418 US at 742 n 20. the plenary power to

acquire transportation and to transport under Michigan law is vested in the

local school district, i.e., the Detroit Board. Under the provisions of the

state school aid act, 1972 PA 258, § 71, as amended by 1975 PA 261:

MCLA 388.1171; MSA 15.191%571), local school districts are reimbursed

from legislative appropriations in an amount not to exceed 75% of the

— cost of transportation, including the acquisition cost of the motor

vehicle.

=

reassignment, the District Court rejected the plans submitted

by plaintiffs and the Detroit Board, and ordered the Detroit

Board and its staff ‘‘in cooperation with the court's

appointed experts’’ to prepare a revised desegregation plan,

‘‘which plan shall incorporate the guidelines contained in

Section V ‘Remedial Guidelines’ of the court's Memoran-

dum Opinion.” (89a).

Although expressly noting that the plan submitted by the

Detroit Board did not distinguish between those components

that were necessary to the successful implementation of a

desegregation plan and those that were not (35a), neverthe-

less, the District Court deemed it essential to mandate

twelve of the thirteen components included in the Detroit

Bocrd’s plan and added one of its own, comprehensive

reading. (36a-37a, 72a-83a).

Notwithstanding the affirmative holding that the Detroit

schools were not de jure segregated with respect to faculty

and staff, Bradley v Milliken, 338 F Supp 582, 589-591 (1971)

(Roth, J.), aff'd 484 F2d 515 (CA 6, 1973), the District Court

in effect reserved its ruling on faculty reassignment, opining

as to “the necessity of having a proper racial mix among

teaching staff of the school district.’’ (43a). By Order dated

August 28, 1975, the District Court directed that ‘‘teachers

in the Detroit School System shali be reassigned insofar as

necessary . . . to achieve a distribution of not more than 70%

of teachers of one race in each school.’’ (180a-18la). The

Court of Appeals vacated the August 28, 1975 Order and

remanded for the hearing of evidence on the issue of faculty

assignment, but it affirmed the authority of the 4istrict

Court ‘‘as an equitable remedy to order the reassignment of

faculty.’ (182a).

4 The District Court's Partial Judgment and Order of

August 15, 1975 (89a), was a parallel to its Memorandum

Opinion and Remedial Decree. Insofar as it relates to this

— a

petition, the Partial Judgment and Order directed the Detroit

Board and the State Board to formulate and devise a

comprehensive testing program in the Detroit school system

(95a), and directed the Detroit Board to institute comprehen-

sive programs for inservice training, counseling and career

guidance, testing, (95a), and a ‘‘comprehensive instructional

program for teaching reading and communication skills’ in

every school in the system. (92a).

Pursuant to the Partial Judgment and Order, the Detroit

Board submitted a revised desegregation plan on September

19, 1975, and a revision thereof on October 21, 1975. (104a).

By a Memorandum and Order dated November 4, 1975, the

District Court ordered the Detroit Board :o implement the

desegregation plan on or before the beginning of the winter

semester, 1976. (109a). By a Judgment entered on November

20, 1975, the District Court. inter alia, confirmed the

November 4, 1975, Memorandum and Order. (1 13a).

In broad outline, the plan adopted by the District Court

required the reassignment of 27,524 students, of whom

21,853 would require bus transportation. The plan changed

the racial balance in 105 schools out of approximately 300

zoned schools in the system (16la). An additional 100 buses

were ordered to be acquired and paid for on the same basis

as the initial 150 buses. (Id). The desegregation plan was

effectuated by the Detroit Board at the beginning of the

second semester, January, 1976, without untoward incident.

(162a).

While the plan for schoo! desegregation was processed the

parties responded in compliance with the Partial Judgment

and Order of August 15, 1975, by filing the requisite

submissions with respect to those educational components

that are the subject matter of this petition for review, to wit:

reading and communication skills, in-service training.

on (han

testing, and counseling and career guidance. * At various

times, the District Court entered orders approving the

submissions and ordering their implementation.

On May I1, 1976, while appeals were pending in the Court

of Appeals by plaintiffs, the Detroit Board and the

intervenor Detroit Federation of Teachers from the August

14, 1975, Partial Judgment and Order and other Orders

subsequently entered based on the August 15, 1975

Memorandum Opinion (7a), the District Court filed a

Memorandum, Order, and Judgment (1 15a) and entered *‘‘our

final Judgment in this matter.’* (145Sa). Insofar as it relates to

this petition, the Judgment ordered into effect in the Detroit

school system on or before the September, 1976 school term

expanded ‘‘comprehensive programs for: a) Reading and

Communications Skills, b) In-Service Training, c) Testing,

[and] d) Counseling and Career Guidance’’, and ordered

petitioners Milliken, et al, to defray one-half the additional

cost thereof by the payment to the Detroit Board of

additional, unappropriated funds from the State Treasury. ’

(146a-147a).

6

The reading and communication skills, in-service training and counseling

and career guidance submissions were filed by the Detroit Board. The

testing submission was a joint effort by the Detroit Board and the State

Board. No hearings were held with respect to any of these submissions, or

their implementation, except that the District Court conferred with

counsel and other representatives of the parties on March 12, 1976. No

stenographic record was made of that conference.

~

Although this petition is concerned solely with these four so-called

educational components, a fifth ‘“‘component’’, vocational education

centers, requires some explanation because of the District Court's

reference thereto in the Memorandum, Order and Judgment of May 11,

1976. (117a-119a). The District Court attempted to equate the vocational

education centers with the four components. There is no relationship. For

a number of years, the State Board has urged the Detroit Board to

establish vocational education centers. The federal vocational education

funds that the State Board agreed by its adopted motion and by stipulation

Pursuant to the Judgment (146a-147a), the Detroit Board

submitted to the State Board ‘‘it’s highest budget allocated in

any year for each of the above-enumerated quality education

components’ and computed ‘‘the excess cost in addition

thereto occasioned by the specific implementation of the

[four] court-ordered programs.”’ The highest budget allo-

cated for each of the four components was in the 1975-76

school year and in that year the Detroit Board’s budget

allocations were as follows:

eos oc ee oe ie $63 .427 ,000

In-Service ............ 715,000

MEE sb akGovacedsexe 1 440,000

| eee 10,407 ,000

Total $75,989,000

to allocate to the Detroit Board were the funds available to the State

Board for allocation on a 50% matching basis to school districts under

state and federal law and the state plan for vocational education. See the

Vocational Education Act of 1963; 77 Stat 403 et seq, as amended; 20

USC 1241 et seq. These funds would have been available to the Detroit

Board if it had gone forward with a plan for vocational education centers

and had made application therefor. The Detroit Board had received

substantial amounts of federal vocational education construction funds in

the past when it had made application therefor.

The stipulation, paragraph 3 (140a), expressly recites that state and

federal statutes, rules and regulations will control the implementation of

the Boards’ adopted motions and that title to the centers, paragraph 5

(140a), will be vested in the Detroit Board. In short, the vocational

education centers are the antithesis of the four components. The

establishment of the centers, pursuant to the stipulation is consistent with

state laws, the plenary power of the Detroit Board and the deeply rooted

tradition in public education of local control over the operation of schools.

See Milliken v Bradley, supra, 418 US at 742-743. The cost of the centers

is not being defrayed by additional, unappropriated state funds, but from

federal funds allocable to the Detroit Board pursuant to law. And the

establishment of the centers is an educational odjective which the State

Board, over many years, has urged the Detroit Board to undertake.

The “excess cost in addition thereto’’ was set forth as

follows:

Pere re $ 4,600,000

Sp IVISS «oc cavnennny 2,454,000

VOR a conneccauenes 539,000

COURSSEED ..cccccccks 4,052,000

Total $11,645,000

Thus, the District Court ordered Milliken, et al, to pay to

the Detroit Board unappropriated state funds in the amount

of 5.8 million dollars in addition to the estimated 192.5

million dollars of appropriated funds (an increase of

approximately 28.5 million dollars over 1975-76) that the

Detroit Board will receive in state school aid in the 1976-77

school year. 1972 PA 258, as amended by 1976 PA 258;

MCLA 388.1101 et seq: MSA 15.1919 (501) et seq. The

purpose of the payment is to defray one-half the cost of

expanding system-wide components currently existing

system-wide in the Detroit schools at an admitted expendi-

ture in the amount of 75.9 million dollars. * Further, the four

components were finally ordered to be placed in effect some

nine months after the desegregation plan for pupil reassign-

ment had been implemented ‘‘in an orderly manner and in a

spirit of community cooperation, without substantial disrup-

tion or disorder.”’ (162a). Finally, it should be noted that

although the desegregation plan ‘‘changed the racial balance

in 105 schools out of approximately 300 zoned schools”

(16la), the District Court’s Judgment mandated district-wide

expansion of the four components. (146a-147a).

x

In the 1974-75 school year. the Detroit school district ranked 72nd from

the top in educational expenditures (current operating expenditure per

pupil) among Michigan's 530 K-12 school districts. In terms of local tax

effort, the Detroit Board levied 22.51 mills for school operating purposes

as compared with a state-wide average levy of 27.1 mills. The figures for

1975-76 have not yet been compiled.

—

The Court of Appeals affirmed the District Court's

ordering of the expansion of existing, system-wide compo-

nents (170a-171a), and affirmed ‘‘the judgment relating to the

costs of the plan, but without prejudice to the right of the

District Court to require a larger proportionate payment by

the State of Michigan if found to be required by future

developments.’’ (emphasis supplied) (180a). In effect, the

Court of Appeals drew a sight draft on the treasury of the

State of Michigan and affirmed the ‘‘right’’ of the District

Court to fill in the amount.

On motion of Milliken, et al, the Court of Appeals granted

a Stay of its mandate ‘‘to the extent of 15 days from date in

order to allow movant to seek a stay from the Supreme

Court or a Justice thereof.’’ (Order filed August 20, 1976) On

September 1, 1976, Mr. Justice Stewart denied the

application of Milliken, et al, for a stay pending the filing of a

petition for writ of certiorari.

REASONS FOR GRANTING THE WRIT

I.

IN THE ABSENCE OF ANY ADJUDICATED CON-

STITUTIONAL VIOLATION WITH RESPECT TO

EDUCATIONAL PROGRAMS IN THE DETROIT

SCHOOL SYSTEM, THE DECISION OF THE SIXTH

CIRCUIT COURT OF APPEALS ORDERING THE

SYSTEM WIDE EXPANSION OF EXISTING EDUCA-

TIONAL PROGRAMS IS BASED UPON AN ERRONE-

OUS LEGAL STANDARD THAT IS IN CONFLICT

WITH THE DECISIONS OF OTHER COURTS OF

APPEALS AND OF THIS COURT.

This Court enunciated the following legal standard in

Milliken v Bradley, supra, 418 US, at 744:

im tie

“The controlling principle consistently expounded in

our holdings is that the scope of the remedy is

determined by the nature and extent of the constitutional

violation. Swann, 402 U.S., at 16...”

In the instant cause, there has not been any adjudicated

constitutional violation with respect to educational programs

in the Detroit school system. Milliken v Bradley, supra, 418

US, at 724-736.

Indeed, during oral argument in the remedial phase of this

cause, plaintiffs’ counsel stated the following:

The first thing we should say about the

components is that under those circumstances do we,

nor may this Court accept those components as a

substitute for achieving the constitutional remedies

required by the constitutional violations. The violations

were not with respect to the absence of guidance

counsellors, they were not with respect to the absence

of certain testing components, they were not with

respect in-service training, they were not with respect to

the absence of career education, or student rights,. or

school community relations . . ."° (June 26, 1975,

Transcript, p 131)

The reply brief filed in the Sixth Circuit by defendant,

Detroit Board of Education, the moving party behind the

so-called ‘‘educational components,"’ states, at p 6, that ‘‘it

does not necessarily follow that since there has been no

specific finding of a constitutional violation in the areas

included in the educational components, therefore, these

components are automatically excluded from a remedy

designed to cure the constitutional violation of segregated

schools... Thus, such Board makes no claim of any

adjudicated constitutional violation as to the scope or

—= —_

content of the reading, in-service training, testing or

guidance and counseling programs conducted by it in the

Detroit school system.

In the brief filed by plaintiffs Bradley, et al, in the Sixth

Circuit, at p 5 n 6, the following appears:

‘*‘The district court has attached undue significance to

ruling on matters wholly unrelated to desegregation of

students and faculty in schools. See e.g. Memorandum

and Order, July 3, 1975 (student code of conduct);

Memorandum Opinion and Remedial Decree, August

16, 1975, at 99-119 (‘educational components’ of

desegregation)."’ (emphasis added)

Thus, it is beyond dispute that there are no constitutional

violations with regard to educational programs in the Detroit

school system. Further, as accurately stated by plaintiffs,

Bradley, et al, on whose behalf the case was brought, the

‘‘educational components’’ are ‘“‘wholly unrelated’’ to

desegregation of pupils in Detroit's schools.

Nevertheless, the Sixth Circuit sustained the inclusion of

the four components here at issue by affirming the trial

court’s purported finding of fact that the components are

needed to remedy past segregation, to successfully desegre-

gate and to help avoid resegregation. (170a). This is the same

approach previously used by the lower courts in purporting

to make factual findings that the Detroit school system could

not be desegregated within Detroit. This Court properly

reversed the lower courts on that issue, holding that they had

employed an erroneous legal standard in seeking to achieve

the racial balance they deemed desirable. Milliken v Bradley,

supra, 418 US, at 739-747, 752-753. So here, the lower courts

used an erroneous legal standard in compelling educational

program expansions in the absence of any underlying

constitutional violation with respect to such educational

programs in the Detroit school system.

The Sixth Circuit cites only one case, Brown v Board of

Education, 347 US 483 (1954), in support of its inclusion of

expanded educational programs in the desegregation remedy

herein. (1l68a-172a). However, in Brown v Board of

Education, 349 US 294, 300-301 (1955), dealing with remedy,

there is no suggestion that system wide expansion of

educational programs is to be a _ part of a_ school

desegregation remedy.

Moreover, in the 22 years since Brown, supra, there have

been hundreds of school desegregation remedies that have

satisfied the requirements of the Constitution without the

inclusion of so-called *‘educational components.”’ In fact,

the trial court in this cause ruled that *‘[t}here no longer is a

denial of their right to equal protection when there are no

schools from which they are excluded.” (62a).

As this Court noted in Brown, supra, 349 US, at 300, *‘faJt

stake is the personal interest of the plaintiffs in admission to

public schools as soon as practicable on a nondiscriminatory

basis."” More recently, in Swann v Charlotte-Mecklenburg

Board of Education, 402 US 1, 23 (1971), this Court

observed that ‘‘[oJur objective in dealing with the issues

presented by these cases is to see that school authorities

exclude no pupil of a racial minority from any school,

directly or indirectly, on account of race.*’ With regard to

the operation of schools, other than pupil reassignment, this

Court stated that “normal administrative practice’’ should

suffice. Swann, supra, 402 US, at 18-19.

Most recently, in Pasadena City Board of Education v

Spangler, __. US ___:; 96 § Ct 2697, 2705 (1976), this

Court ruled as follows:

... For having once implemented a racially neutral

attendance pattern in order to remedy the perceived

=

constitutional violations on the part of the defendants,

the District Court had fully performed its function of

providing the appropriate remedy for previous racially

discriminatory attendance patterns.”

‘Manifestly, the appropriate remedy for unlawful pupil

assignment practices is pupil reassignment rather than court

ordered expansion of existing educational programs.

The judicial task is to correct the condition that offends

the Constitution. Swann, supra, 402 US, at 16. Here, there

is no condition that offends the Constitution with respect to

the scope and content of educational programs in the Detroit

school system. Thus, that portion of the unprecedented

remedy ordered below dealing with expanded educational

programs for in-service training, testing, reading and

guidance and counseling is contrary to the decisions of this

Court in Brown, supra, Swann, supra, Milliken, supra, and

Spangler, supra.

The Sixth Circuit's inclusion of expanded educational

programs in the remedy here is in conflict with the decision

of the Tenth Circuit Court of Appeals in Keyes v School

District No 1, Denver, Colorado, 521 F2d 465, 480-483

(CA10, 1975), cert den, 423 US 1066 (1976). In that case, the

Court vacated that portion of the tnal court’s order

compelling the establishment of educational programs

tailored to the needs of minority children, noting the lack of

relationship between the constitutional violation, dis-

criminatory pupil assignment, and the court ordered relief,

establishment of educational programs.

The cases of Hart v Community School District of

Brook!yn, New York School District No 21, 383 F Supp 699

(ED NY, 1974). aff'd, 512 F2d 37 (CA2, 1975), and Morgan

v Kerrigan, 530 F2d 401 (CAI, 1976), cert den, US

____ ; 96 S Ct 2648, 2649 (1976), dealt with magnet schools

—

having special programs to attract students as a part of pupil

reassignment. In contrast, here we have the court ordered

expansion of existing educational programs on a system wide

basis that far exceeds in scope the number of schools

involved in pupil reassignment, without any prior finding of a

violation in the scope and content of educational programs in

the Detroit school system.

The question of whether to expand existing educational

programs in the Detroit school system is reposed in the

sound discretion of the Detroit Board of Education,

consistent with its available financial resources. Milliken v

Bradley, supra 418 US, at 742 n 20. Moreover, this Court

has held that there is no constitutional right to any particular

level of educational programming and funding of same in the

public schools, noting that there is no consensus in this area

that more is always better. San Antonio Independent School

District v Rodriguez, 411 US 1, 43 (1973). Proposed changes

in public education are important matters to be debated and

acted upon by concerned citizens, parents, school official

and elected representatives in the democratic political

processes rather than by the federal courts.

In summary, the unprecedented inclusion of expanded

system wide educational programs in the remedial orders

below, unsupported by any constitutional violation as to

existing educational programs, is contrary to the decisions of

this Court and other courts of appeals. Thus, this Court

should grant the petition for a writ of certiorari to review the

decision below.

—

Il.

IN THE ABSENCE OF ANY FINDING OF A CON-

STITUTIONAL VIOLATION WITH RESPECT TO

MICHIGAN’S SYSTEM OF FINANCING PUBLIC

EDUCATION, THE LOWER COURT’S UNPRE-

CEDENTED DECISION COMPELLING DEFENDANTS

IN THE EXECUTIVE BRANCH OF STATE GOVERN-

MENT TO PAY OUT 5.8 MILLION DOLLARS OR

MORE IN ADDITIONAL, UNAPPROPRIATED FUNDS

FROM THE STATE TREASURY IS CONTRARY TO

THE CONSTITUTION AND THE DECISIONS OF THIS

COURT.

Assuming, arguendo, that the lower courts did not exceed

their remedial authority in ordering the expansion of existing

educational programs, the question still remains whether the

lower courts may, consistent with the Constitution and the

decisions of this Court, compel defendants in the executive

branch of state government to pay out 5.8 million dollars or

more in additional, unappropriated funds from the State

Treasury to defray the cost of such court ordered program

expansion. It is one thing for the courts to become the

arbiters of curriculum in school desegregation cases within

the limits of appropriated local and state funds. It is another

matter for the courts to also usurp the powers of state

legislatures over appropriating state funds in school desegre-

gation cases.

Again, at the threshold we are confronted with the reality

that there has been no adjudication herein that the Michigan

system of financing public education violates the Constitu-

tion under this Court's controlling decision in Rodriguez,

supra. Milliken v Bradley, supra, 418 US, at 751-752. ° Thus,

9

During the remedy hearings below, plaintiffs’ counsel stated **. . . This,

I repeat, is a desegregation case. It is not a school finance case. . ..” (June

26, 1975, Transcript, p 8).

aw Sita

there is no adjudicated violation in this case in the areas of

educational programs or school finance that might justify the

unprecedented financial relief ordered below against the

State of Michigan and its treasury. (180a).

The Sixth Circuit decision below cites no case law in

which the federal courts have ordered officials in the

executive branch of state government to pay out additional,

unappropriated funds from the State Treasury for the cost of

court ordered educational program expansion. '° (172a-180a).

This unprecedented expansion of the power of the federal

courts over the states, their treasuries and the right of the

people in each state to have their state tax dollars

appropriated by their elected representatives should not

come to pass without prior review by this Court.

Recently, this Court held, in National League of Cities v

Usery, US . 96 S Ct 2465 (1976), that the power of

the Congress under the Commerce Clause did not, because

of the Tenth Amendment, extend to imposing minimum

10

By way of illustrative example, the Court of Appeals cites Scheuer v

nodes, 416 US 232, 238 (1974), a case in which this Court held that the

Eleventh Amendment was not a bar to a civil action against state officers

for money damages to be paid by the individual defendants rather than

from the State Treasury. The Sixth Circuit also referred to Cooper v

Aaron, 358 US 1 (1958). which involved the blatant disregard by state

officers of a Supreme Court decision, a situation which has no relevance to

the position of Milliken, et al. No court order has been, or will be.

disobeyed. Moreover, Cooper, supra, did not in any way consider the

power of a federal court to order payment of state funds in light of the

Eleventh Amendment. The Court of Appeals relied heavily on Wyatt v

Aderholt, 503 F2d 1305, 1318-1319 (CAS, 1974). However, a reading of

that case reveals that no coercive relief was granted compelling the

payment of funds from the State Treasury. In Wright v Houston

Independent School District, 393 F Supp 1149, 1155 (SD Tex, 1975), the

basic question was whether the local school district could be considered a

state agency for Eleventh Amendment purposes.

&

ao f=

=

wage requirements on the states and their political

subdivisions. In reaching that result, this Court noted the

financial impact of such requirement on state governments

and concluded its opinion with the following:

‘*But we have reaffirmed today that the States as States

stand on a quite different footing than an individual or a

corporation when challenging the exercise of Congress’

power to regulate commerce. We think the dicta from

United States v. California, simply wrong. Congress

may not exercise that power so as to force directly upon

the States its choices as to how essential decisions

regarding the conduct of integral governmental functions

are to be made. We agree that such assertions of power

if unchecked, would indeed, as Mr. Justice Douglas

cautioned in his dissent in Wirtz, allow ‘the National

Government [to] devour the essentials of state

sovereignty,” 392 U.S., at 205, 88 S. Ct., at 2028, and

would therefore transgress the bounds of the authority

granted Congress under the Commerce Clause. While

there are obvious differences between the schools and

hospitals involved in Wirtz, and the fire and police

departments affected here, each provides an integral

portion of those governmental services which the States

and their political subdivisions have traditionally af-

forded their citizens. We are therefore persuaded that

Wirtz must be overruled.”

US ___; 96 S Ct, at 2475-2476

So here, the Tenth Amendment is also a limitation on the

power of the federal courts to force their choices upon the

states as to the conduct of integral governmental functions,

including the appropriation of finite state tax dollars among

competing demands from all levels of public education and

the myriad of other governmental programs and services

financed with state legislative appropriations. Bradley v

School Board of Richmond, Virginia, 462 F2d 1058, 1068

(CA 4, 1972) aff'd by equally divided court, 412 US 92

(1973). National League of Cities v Usery, supra.

In Griffin v County School Board of Prince Edward

County, 377 US 218, 233 (1964), this Court ruled that ‘‘the

District Court may. if necéssary to prevent further racial

discrimination, require the Supervisors to exercise the power

that is theirs to levy taxes to raise funds adequate to reopen,

operate, and maintain without racial discrimination a public

school system in Prince Edward County like that operated in

other counties in Virginia." Thus, there. this Court directed

local officials to exercise their lawful powers under state law

to levy local taxes to reopen the public schools free from

racial discrimination.

Here, in contrast, the lower courts have ordered

petitioners Milliken, et al, to pay out additional, unappro-

priated funds from the State Treasury for court ordered

program expansions in contravention of their lawful powers

under state law. Under Michigan law, only the legislature

may appropriate state funds. Mich Const 1963, art 9, § 17; ''

Regents of University of Michigan v Labor Mediation

Board, 18 Mich App 485, 490; 171 NW2d 477, 479 (1969).

In Edelman v Jordan, 415 US 651 (1974), this Court held

that the Eleventh Amendment precluded the federal courts

from ordering the payment of welfare benefits from the State

Treasury even though such benefits had been wrongfully

withheld. In reaching that result, the Court noted, at p 667 n

12, that Griffin, supra, involved an order directed to county

Officials that did not fall within the ambit of the Eleventh

Amendment's jurisdictional bar.

‘No money shall be paid out of the state tre

Lael asur

of appropriations made by law.” y except in pursuance

— 23 —

In this case, the decree sought to be reviewed does not

direct state officials to alter their previous course of conduct,

in compliance with a substantive federal-question determina-

tion concerning pupil assignment in the Detroit schools, with

an ancillary effect on the State Treasury. Rather, the decree

sought to be reviewed directly commands ‘the State of

Michigan’’ to pay out millions of dollars in additional,

unappropriated state funds for court ordered program

expansion, to remedy the claimed effects of its alleged prior

wrongdoing with regard to pupil assignment. (180a). It is, in

practical effect, indistinguishable from an award of money

damages against the state based upon the asserted prior

misconduct of state officials. Therefore, such decree is

precluded under this Court's holding in Edelman v Jordan,

supra, 415 US, at 668.

The order below has a most detrimental effect on the fiscal

integrity of the State of Michigan. At the close of the

1974-1975 fiscal year, June 30, 1975, the balance in the State

of Michigan’s general fund was only 1.6 million dollars. The

1975-1976 state fiscal year has been extended to September

30, 1976, in an attempt to balance the state's budget for the

fiscal period as required by Mich Const 1963, art 5, § 20. se

The most recent estimate provided the Michigan legislature

by the Michigan Budget Director is that, as of September 30,

1976, the state’s general fund will have a deficit of 1.9 million

dollars. The decision below will superimpose upon this

12

‘‘No appropriation shall be a mandate to spend. The governor, with the

approval of the appropriating committees of the house and senate, shall

reduce expenditures authorized by appropriations whenever it appears that

actual revenues for a fiscal period will fall below the revenue estimates on

which appropriations for that period were based. Reductions in

expenditures shall be made in accordance with procedures prescribed by

law. The governor may not reduce expenditures of the legislative and

judicial branches or from funds constitutionally dedicated for specific

purposes.”

.

am Shan

strained fiscal situation the added obligation to pay out an

additional 5.8 million dollars or more, thereby increasing the

likelihood that the State of Michigan will have a substantial

deficit for the extended 1975-1976 fiscal year. This result, we

submit, is what the Eleventh Amendment was intended to

preclude.

In the 1974-75 fiscal year, the Detroit school system, with

a current operating expenditure per pupil of $1,271.40,

ranked 72nd from the top among Michigan's 530 K-12 school

districts. Recent data submitted to the Michigan Department

of Education by the Detroit Board of Education on August

20, 1976, reveals that, at the close of the 1975-1976 school

fiscal year, the Detroit Board of Education had a general

fund equity surplus of 5 million dollars to carry forward into

the 1976-1977 school fiscal year with projected total

resources of approximately 393 million dollars for such

school fiscal year. Thus, it is readily apparent that, contrary

to the self-serving portrayal of economic deprivation

submitted below by the Detroit Board of Education and

adopted by the Sixth Circuit, the Detroit school system has

been financially sound in recent years even though it has not

made even an average local tax effort for school operating

purposes.

Although the Detroit school system finished the 1975-1976

school fiscal year on June 30, 1976, with a general fund

surplus of approximately 5 million dollars, the Detroit Board

of Education has estimated that it will not be able to maintain

existing program levels for the 1976-1977 school fiscal year.

This financial problem, to the extent it exists, is directly

attributable to the unwillingness of the voters to approve an

increase in the property tax rate limitation for school

operating purposes in the Detroit school system.

—_—

Michigan's system of financing public education includes

both local property tax revenues and legislative appropria-

tions of state school aid funds to school districts. Mich Const

1963, art 9, §§ 6 and 11. Michigan has adopted a modified

district power equalizing system of school finance which

encourages and rewards local tax effort by guaranteeing a

fixed leve' of funding per pupil in combined state and local

funds for each mill of school operating property taxes levied

at the local level.

Pursuant to recent statutory amendments to the state

school aid act, the Detroit school system will receive

approximately 192.5 million dollars in legislatively appro-

priated funds for the 1976-1977 schoo! fiscal year, an increase

of approximately 28.5 million dollars over its 1975-1976 state

school aid funding. 1972 PA 258, as last amended by 1976

PA 258; MCLA 388.1101 et seg; MSA 15.1919(SO1) et seq.

Thus, this is not a case in which appropriations have been

reduced to interfere with desegregation. '’

The current property tax rate for school operating

purposes in the Detroit school system is below the state wide

average for Michigan’s school districts. On August 3, 1976,

the voters in t! > Detroit school system failed to approve a

tax rate increase for school operating purposes. The Detroit

Board of Education will hold another millage election in

November, 1976, and, in the event the millage increase is

approved, may levy the increase and receive the additional

revenue for the 1976-1977 school fiscal year.

13

The reference below to “‘the normal share of State school aid funds -

provided to Detroit’’ (178a) is misplaced. There is no normal share of state

aid funds provided Detroit, but only the amount each year which the

Detroit school system is entitled to receive based upon the statutory

appropriation and allocation formulas enacted by the legislature in 1972

PA 258, as amended, supra. Further, at what point, if ever, will the

Michigan legislature have appropriated sufficient funds to the Detroit

school system to satisfy the lower courts so that additional, unappro-

priated funds will not have to be disbursed to such school system?

= =

The 5 mill increase in school operating property taxes in

the Detroit school system, if approved, would generate an

additional 37 million dollars in combined local property tax

revenues and state school aid funds, including an additional

!2 million dollars in state school aid funds by operation of

law under the statutory allocation formulas enacted by the

legislature to encourage and reward local tax effort. This 12

million would be in addition to the 192.5 million in state

school aid funds referred to above for the 1976-1977 school

fiscal year.

In Rodriguez, supra, 411 US, at 40-44, 49-55, this Court

sustained the validity of the Texas system of financing public

education, ruling that matters of state fiscal and educational

policy are best determined at the state or local level under

our federal system. There, this Court held that reliance on

variable local school district property taxes for financing

public education furthered the legitimate purpose of local

control of education consistent with the Equal Protection

Clause.

Here, as in Rodriguez, supra, we have a system of

financing public education based upon a combination of local

property tax revenues and legislative appropriations of state

school aid. In Michigan the state school aid statute is

designed to encourage and reward local tax effort for public

education. As long as the prospect of increased state funding

for Detroit by federal court order looms large, the voters in

Detroit will lack incentive to approve property tax increases

for school operating purposes. Further, Michigan's statewide

system of financing public education will be disrupted,

contrary to the decision of this Court in Rodriguez, supra.

In summary, the lower courts have assumed the role of the

Michigan legislature in ordering Milliken, et al, to disburse

millions of dollars in additional, unappropriated funds from

=

the State Treasury to pay the cost of court ordered

educational program expansion in the Detroit school system.

This, we submit, is contrary to the decisions of this Court in

National League of Cities v Usery, supra; Edelman v

Jordan, supra, and Rodriguez, supra.

THE QUESTIONS RAISED HEREIN BY THE

UNPRECEDENTED DECISION BELOW ARE IMPOR-

TANT QUESTIONS OF FEDERAL LAW WHICH

SHOULD BE SETTLED BY THIS COURT.

The unprecedented decision below raises fundamental

questions concerning the scope of the remedial powers of the

federal courts in school desegregation cases in the areas of

expanded educational programming and the financing of

same. The decision calls into question the violation-remedy

relationship that has been the foundation of this Court's

holdings in this area of the law.

In addition, the lower court decision on financing raises

important questions under the Tenth and Eleventh Amend-

ments concerning the extent to which the federal courts may

take over the legislative “ole of appropriating and allocating

state tax revenues in our federal system. Also, the decision

below raises questions with regard to state systems of

financing public education and this Court’s decision in

Rodriguez, supra.

From Brown, supra, until recently, the federal courts have

not assumed the functions of controlling curriculum and

regulating educational finance in school desegregation cases.

If the federal courts may assume these functions, it should

only be after this Court has carefully reviewed the matter

=

and settled the questions with some definitive guidelines, as

was done in Swann, supra, with regard to pupil reassign-

ment.

As this Court is aware, school desegregation cases are

being litigated all across the United States. Only this Court

can establish the uniform national remedial standards that

are required for adjudication of these cases in a consistent

manner throughout this country.

Previously in this case, the lower courts approved an

unprecedented multi-district remedy to ‘‘produce the racial

balance which they perceived as desirable,’ thereby

compelling reversal by this Court. Milliken v Bradley, supra,

418 US, at 740. Under the judgment of the Court of Appeals,

to produce the educational results which they perceive as

desirable, the lower courts have become the educational and

financial arbiters of curriculum and school finance for the

Detroit school system and the State of Michigan. As in

Milliken v Bradley, supra, this Court should grant appellate

review of the unprecedented decision below.

— Aa

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue

to review the decision of the Sixth Circuit rendered herein on

August 4, 1976.

Respectfully submitted,

FRANK J. KELLEY

A ‘orney General

Robert A. Derengoski

Solicitor General

Gerald F. Young

George L. McCargar

Mary Kay Bottecelli

Assistant Attorneys General

Attorneys for Petitioners

Milliken, et al

Business Address:

750 Law Building

525 West Ottawa Street

Lansing, Michigan 48913

Dated: September 24, 1976.