# Petition for a Writ of Certiorari — Milliken v. Bradley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0342%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 418 U.S. 717 ## Text _-war_— ww COs] INDEX 3 a c ERs AS ek So a eek ee we we Os ee eet 1 and a aaa 2 IRE iy oh seg rae aes AEN ery et 3 ES wD Kh hana GV Asis ds Gab ak oe Opie ’ 3 tion Provisions, Statutes and Rules Involved ..... 4 NS ab Cigrin Matha o wlouce an 4 bam ¥e 5 NE NG WEED i iia 'o diocn. # oie wha bcb We bo 11 Decision Below Presents Issues of Imperative Public lance That Have Never Been Decided By This EE Sana 5b hin'a's o hoo #82 3 boa Nee OS vine 11 he Decision Below Conflicts In Principle With Deci- ms Of This Court And Other Courts of Appeals ..... 15 itioners Have Been And Will Continue To Be Denied ue Process of Law Under The Decision Below ...... 20 Pen ee 6. CAN Aba bie os Ch cha cena oes 22 ‘TABLE OF AUTHORITIES | Li J Federal Cases: Alexander vy. Holmes County Board of Education, 396 US. PE RS eC Rabb See URES be ties On bs Coens 18 Armstrong v. Manzo, 380 U.S. 545 (1965) .............. 20 Bradley et al. ¥. Milliken et al., 338 F. Supp 582 (E.D. PUNE) Sie Ra ow ei UX Opa Ordo osc hoedbeaeeds ss. 2 Bradley et al v. Milliken et al., 345 F. Supp. 914 (E.D. Mich.- DOI alk nik be OS 0 Nie Shc AN 4b WE wees 3.0 ecia'e e 8 2 Bradley et al. v. Milliken et al., 433 F2d 897 (6th Cir., 1970)3,5,6 Bradley et al v. Milliken et al., 438 F2d 945 (6th Cir., 1971) . 3 Bradley et al v. Milliken et al., 468 F2d 902 (6th Cir., 1972), cert denied 409 U.S. 874 (1972) ..............00085, 3 Bradley et al v. Milliken et al., _..F2d—. (6th Cir., June Pek, SNE a a in IG wha Se eae wo KC MRRAE TE GB bes 00 2,7 Bradley v. School Board of the City of Richmond, 338 F. Supp. 67 (1972), rev'd 462 F2d 1058 (4th Cir., 1972), Aff’d by equally divided Court., —U.S.—, 93 S.Ct. 1952 TEPPER AGN SiA ds Can Paced eds ec CAND A Rae aeees 8,18,19 Brown v. Board of Education of Topeka, 347 U.S. 483 SRE Vc ced Ne beak Eee Ree S hk ut bes abbenks 13,19,20 Brown v. Board of Education of Topeka, 349 U.S. 294 SERED eh ke shee ORR MORENO NS We REO es 19,20 Brunson v. Board of Trustees of School District No. 1 of Clarendon County, South Carolina, 429 F2d 820 (4th Cir., FORE Bik Pad oie ak FOE OA Obie RERPERAS Sb kE’ 8 14 Dred Scott v. Sanford, 60 U.S. (19How) 393 (1856) ...... 14 Railroad Commission of California v. Pacific Gas & Electric COE: SE a, IE ok aS Sadun badbcctusaebanir San Antonio Independent School District v. Rodriguez, 411 Se. FREE ac barn ols Gh Ce, Seba cS Eee eS is 17 Spencer v. Kugler, 326 F. Supp 1235 (D.NJ 1971), Aff'd 404 Cn SECC RPUEE, Nees cde becae teas amases che been Page Swann v. Charlotte-Mecklenburg Board of Education, 402 Pe ls cies be aa ues Rava sbaa au eh 15,16,17,18 United States v. Scotland Neck Board of Education, 407 U.S. Nh On i (n'a so cc 00-0 ashes be Ook Sale be 18 Wright v. Council of the City of Emporia, 407 U.S. 451 SESE ere oaks Cee ae wee gen eS 18 State Cases: Ex Rel Workman, 18 Mich. 399 (1869) ................. 12 Constitutional Provisions: Te nn eee ee ae ed & 4,20, laa cre. i, FEW, MOC. 8... 5 ws 0 6s Mach sab 8 4,18, laa Mich. Const. art VIII, Sec.2 ....... iicetbvenla nets 4,12,laa United States Statutes: Judicial Code, 28 U.S.C. $1254(1) .... 2... ee eee ees 3,4,2aa Judicial Code, 28 U.S.C. §1292(b) ........ 0.0... ences 4,9,2aa Michigan Statutes: Act 34, Sec. 28, Mich. Pub. Acts of 1867 ............ 4,11,3aa Act 319, Part II, Ch. 2, Sec. 9, Mich. Public Acts of 1927 4,12,4aa Act 48 Sec. 12, Mich. Pub. Acts of 1970 .............. 4,5,3aa os SD 8? re 4,5,2aa Federal Rules of Civil Procedure: ; ee a aa ph ae ee 4,10,4aa NE OR 8 RESET peng a qe Nee prg Saree nn 4,9,Saa Other: Official Record, Michigan Constitutional Convention; Vol. Il, “ee ee eeeer eee eeeee eee eee eee eee ee ee ee ee ee IN THE SUPREME COURT FOR THE UNITED STATES October Term 1973 No. ALLEN PARK PUBLIC SCHOOLS, et al, Petitioners, RONALD BRADLEY, et al, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Petitioners Allen Park Public Schools, et al, Southfield Public Schools and School District for the City of Royal Oak respectfully pray that a Writ of Certiorari issue to review the decision rendered in this cause on June 12, 1973, by the United States Court of Appeals for the Sixth Circuit. The United States Court of Appeals for the Sixth Circuit decreed that a finding of de jure segregation with respect to the internal operation of a single school district permits a United States District Court to use other geographically and politically separate, identifiable and unrelated school districts, with regard to which there is no claim or finding of segregative actions, for the purpose of fashioning a desegregation remedy designed to effectuate a majority white-minority black a balance. OPINIONS AND ORDERS BELOW The Ruling On Issue of Segregation entered September 27, 1971, appears in the Appendix at 17a* and is reported at 338 F. Supp 582 (E.D. Mich-1971). The Ruling and Order On Petitions for Intervention setting forth conditions on intervention entered March 15, 1972, is unreported but appears in the decision of the United States Court of Appeals for the Sixth Circuit herein appealed from in the Appendix at 232a. The Ruling On Propriety of Considering A Metropolitan Remedy to Accomplish the Desegregation of the Public Schools of the City of Detroit, enteréd March 24, 1972, is unreported and appears in the Appendix at’ 48a. The Findings )of Fact and Conclusions of Law On Detroit-Only Plans.of Desegregation entered March 28, 1972, is unreported and appears in the Appendix at 53a. The Findings of Fact and Conclusions of Law In Support of Ruling On Desegregation Area and Development of Plans and Ruling on Desegregation Area and Order for Development of Plan of Desegregation entered June 14, 1972, appear in the Appendix at 59a and 97a respectively and are reported at 345 F. Supp. 914 (E.D. Mich-1972). The Opinion of the United States Court of Appeals for the Sixth Circuit decided and filed on June 12, 1973, __F2d__(1973), appears in the Appendix at 110a. The Judgment of the United States Court of Appeals for the Sixth Circuit entered June 12, 1973, is unreported and appears in the Appendix at 244a. *Appendix references followed by the letter “a” refer to the separate Appendix filed herewith. Appendix references followed by the letters “aa” refer to the Appendix to this Petition commencing at page |aa hereof. . 3 Opinions of the United States Court of Appeals for the Sixth Circuit rendered at prior stages of the present proceedings are reported at 433 F2d 897; 438 F2d 945; 468 F2d 902, cert denied 409 U.S. 874 (1972). JURISDICTION The Judgment of the United States Court of Appeals for the Sixth Circuit was entered on June 12, 1973. This petition for certiorari was filed within ninety (90) days of that date. This Court’s jurisdiction is invoked under 28 USC s 1254(1). STATEMENT OF QUESTIONS PRESENTED I ASSUMING, ARGUENDO, A DE JURE SEGREGATED PUBLIC SCHOOL SYSTEM IN OPERATION IN DETROIT, CAN THE VESTIGES OF SUCH SEGREGATION BE ELIMINATED AND THE DETROIT PUBLIC SCHOOL SYSTEM BE CONVERTED TO A UNITARY SYSTEM UNDER A DESEGREGATION PLAN LIMITED TO SAID SCHOOL DISTRICT? Il. WHERE A DE JURE SEGREGATED PUBLIC SCHOOL SYSTEM IS FOUND IN OPERATION IN THE CITY OF DETROIT SCHOOL DISTRICT, DOES THE UNITED STATES CONSTI- TUTION REQUIRE OR PERMIT A UNITED STATES DISTRICT COURT TO ISSUE A DESEGREGATION ORDER EMBRACING UP TO EIGHTY-FIVE (85) OTHER GEOGRAPHICALLY AND POLITICALLY SEPARATE, IDENTIFIABLE AND UN- RELATED SCHOOL DISTRICTS AND REQUIRING THE FORCED REASSIGNMENT AND CROSS-DISTRICT TRANS- PORTATION OF HUNDREDS OF THOUSANDS OF CHIL- DREN, ABSENT (i) ANY CLAIM OR FINDING THAT SUCH OTHER SCHOOL DISTRICTS HAVE FAILED TO OPERATE UNITARY SCHOOL SYSTEMS, AND (ii) ABSENT ANY CLAIM OR FINDING THAT THE BOUNDARY LINES OF ANY SCHOOL DISTRICTS WERE ESTABLISHED WITH THE PUR- POSE OF CREATING OR FOSTERING RACIAL SEGREGA- TION IN THE PUBLIC SCHOOLS? 4 DOES THE FAILURE TO ACCORD PETITIONERS’ SCHOOL DISTRICTS, AGAINST WHOM RELIEF IS IMPOSED, A MEAN- INGFUL OPPORTUNITY TO PRESENT EVIDENCE AND BE HEARD ON ALL CONTROLLING ISSUES, INCLUDING THE ISSUE OF SEGREGATION, A “DETROIT-ONLY” PLAN OF DESEGREGATION AND THE PROPRIETY OF A SO-CALLED METROPOLITAN REMEDY TO DESEGREGATE THE DETROIT PUBLIC SCHOOL SYSTEM, DENY PETITIONERS DUE PROCESS OF LAW? CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED The constitutional provisions, statutes and rules relevant to the issues in this case are: U.S. Constitution, Amendment V; U.S. Constitution, Amendment XIV, Section 1; Michigan Constitution, Art VII, Sec 2; Judicial Code, 28 U.S.C., Section 1254(1) and Sec- tion 1292(b); Fed. R. Civ. P. 19 and 54(b); Michigan Compiled Laws, Section 340.352; Act 34, Section 28, Michigan Public Acts of 1867; Act 319, Part II, Chapter 2, Section 9, Michigan Public Acts of 1927: Act 48, Section 12, Michigan Public Acts of 1970, which are set forth in relevant part in the Appendix to this Peti- tion For Writ Of Certiorari. 5 STATEMENT OF THE CASE Petitioners are forty-two (42) separate, unrelated and identi- fiable school districts in Wayne, Oakland and Macomb Counties within varying degrees of geographical proximity to the city of Detroit. Each of Petitioners’ school districts is a body corporate organized and existing poe to the Constitution and laws of the State of Michigan. | ] Each of said school districts is governed by its respective duly elected Board of Education. There is no claim or finding that any of the Petitioners has failed to operate a unitary school system or that any of the Petitioners’ school dis- trict boundaries were established for the purpose of fostering ra cial segregation in the public schools. The complaint in this cause asserts no claim respecting Petitioners and makes no claim for re- lief against Petitioners. Petitioners are before this Court because the United States District Court and the United States Court of Appeals for the Sixth Circuit have decreed that simply because Pe- titioners have a predominantly white student population they can be used for the purpose of changing the racial composition of the Detroit public school system from predominantly black to pre- dominantly white. This action was commenced by the filing of a complaint by the plaintiffs on August 18, 1970. The defendants named in the complaint are the Governor of the State of Michigan, the Attorney General of the State of Michigan, the Michigan State Board of Education, the Superintendent of Public Instruction for the State of Michigan, the Board of Education of the City of Detroit, and its then members, and the Superintendent of the Detroit Public Schools. The complaint is directed solely at the Detroit public school system and alleges that as a result of actions and policies of the Detroit Board of Education and a section of Act No. 48 of the Public Acts of Michigan, 1970,(2] said school system is not being {1} Michigan Complied Laws, Section 340.352. Appendix 2aa. [2] Said Act applied only to so-called First Class school districts in the State of Michigan. The City of Detroit School District is the only First Class school district in the State, Bradley et al. v. Milliken et al., 433 F2d 897, 900 (CA6, 1970). The effect of one section of the Act was to delay implementation of a proposed plan to effect a more balanced distribution of black and white students in certain Detroit senior high schools (Appendix, 1 10a-11 1a). — 6 operated on a unitary basis. No claim is made with regard to any other school district, nor is any claim made that the establishment or operation of any other school district has any causal connection with the alleged failure to operate a unitary school system within the Detroit school district. No relief is sought against any school district other than Detroit. As of August 30, 1973, the complaint has never been amended. Before trial on the issues framed by the complaint eves Starr menced plaintiffs appealed from denial of plaintiffs’ request for a preliminary injunction to the United States Court of Appeals for the Sixth Circuit seeking to require implementation of the Detroit Board of Education’s proposed plan to effect a more balanced ratio of black and white students in certain senior high schools. The Court of Appeals sua sponte declared that Section 12 of Act 48 was unconstitutional because it delayed implementation of the Detroit Board of Education plan. Bradley et al. v. Milliken et al, 433 F2d 897 (CA6, 1970). Trial on the merits limited to the issue of segregation in the Detroit public school system{3! commenced on April 6, 1971, and concluded on July 22, 1971. During the course of said trial, Intervenors Denise Magdowski, et al, moved to join eighty-four, (84) school districts in Wayne, Oakland and Macomb Counties, in- cluding Petitioners herein, as parties. The District Court never granted or denied such motion. On September 27, 1971, the District Court issued a “Ruling On Issue of Segregation” (Appendix, 17a) finding “a de jure segre- gated school system in operation in the City of Detroit” (4) (Ap- pendix, 38a). The District Court stated that the principal causes for the seg- regation found to exist in Detroit were population movement and housing patterns — “ _.A current condition of segregation exists .. The principal causes undeniably have been population movement and housing patterns, but state and local governmental ac- (3) “Ruling On Issue of Segregation” (Appendix, 18a) (4) Emphasis added. tions, including school board actions, have played a substan. tial role in promoting segregation. . .” (Appendix, 33a). On November 5, 1971, the District Court issued an order which foreshadowed a dramatic change in the nature of the pro ceedings. Despite having conducted a trial limited to the issue of unlawful segregation in the Detroit school system and having made findings limited to such issue, the District Court ordered the State Defendants to submit a _ so-called metropolitan plan of desegregation. By judicial fiat eighty-five (85) geographically and politically independent school districts, located in three (3) counties and encompassing an area of approximately 1,000 square miles, were suddenly faced with the prospect of being subjected to a judicial order without any claim or finding that they had engaged in any unconstitutional acts, or that their establishment or existence was the product of unconstitutional acts, and without any opportunity for hearing. Pursuant to the aforementioned order, on or about February 4, 1972, a so-called metropolitan plan of desegregation was filed with the District Court. On February 9, 16 and 17, 1972, respectively, Petitioner filed motions to intervene for the purpose of representing their in- terests and those of the parents and children situate in said school districts. Hearing on said motions to intervene was held on Feb ruary 22, 1972. On March 15, 1972, after hearing on a Detroit- only plan of desegregation had commenced, the District Court granted Petitioners’ motions to intervene as a matter of right but imposed conditions thereon which denied Petitioners any mear- ingful opportunity to be heard on the controlling issues. [5] No such conditions had been imposed on prior intervenors. Petitioners filed written objections to the imposition of such conditions which have not been ruled upon by either the District Court or the Court of Appeals. Upon being granted right to intervene on March 15, 1972, the District Court advised Petitioners that they had one week, ut til March 22, 1972, to file briefs with respect to the legal propriety of a metropolitan plan for desegregation of the Detroit public [5] Bradley et al v. Milliken et al,___F2d__(CA6, June 12, 1973) Appendix at 208a-209a and 232a-233a. os school system. On March 24, 1972, two days after the submission of briefs, the District Court issued a “Ruling On Propriety of Con- sidering A Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit” (Appendix, 48a). The District Court commenced taking testimony on a metro- politan plan to desegregate the Detroit school system at 10:10 a.m. on March 28, 1972. Two (2) hours after Petitioners had first appeared in the District Court and before completion of testimony of a single witness, the District Court announced that .all counsel could stop by the Court’s chambers and pick up its “Findings of Fact and Conclusions of Law On Detroit-Only Plans of Desegre- gation” (Appendix, 53a). The District Court—relying principally on Bradley v. Richmond, 338 F. Supp. 67 (1972), reversed 462 F2d 1058 (4th Cir., 1972), aff'd. by equally divided Court —U.S. —(May 21, 1973)—declared that without regard to their status as independent and unitary school systems, Petitioners and other school districts could be used to counterbalance the racial mix ex- tant within the Detroit school district. On June 14, 1972, the District Court issued “Findings of Fact And Conclusions of Law In Support of Ruling On Desegre- gation Area and Development of Plans” (Appendix, 59a) and “Ruling On Desegregation Area and Order for Development of Plan of Desegregation” (Appendix, 97a). The District Court fashioned a desegregation remedy embrac- ing the City of Detroit school district and fifty-three (53) other separate, unrelated and identifiable school districts within a 700 square mile area, without regard to its finding that — “It should be noted that the court has taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation.” (Appendix, 59a-60a). The scope of the remedy was not predicated upon the nature of the violation found but had as its central purpose the restructuring of the student population among the various school districts in or- der to achieve a racial balance substantially proportionate to the 9 black-white ratio of students within the geographical area selected by the District Court. Such purpose is patently expressed by the District Court, as follows: “Within the limitations of reasonable travel time and distance factors, pupil reassignments shall be effected within the clusters described in Exhibit P.M. 12 so as to achieve the greatest degree of actual desegregation fo the end that, upon implementation, no school, grade or classroom ble] substan- tially disproportionate to the overall composition.”’ (Appen- dix, 101a-102a). Emphasis added. On July 11, 1972, the District Court ordered the Detroit Board of Education to enter into a contract for the purchase of at least 295 school buses within two (2) days with the financial obli- gation for said purchase to be borne by the State Defendants (Ap- pendix, 106a-107a).{6] Said purchase was to be made for the pur- pose of providing transportation under an interim plan not yet in esse (Appendix, 106a). On July 19, 1972, the District Court certified that the orders listed below involve controlling questions of law, as provided by 28 U.S.C. 1292 (b), and made a determination of finality under Rule 54 (b), Fed. R. Civ. P.: (1) Ruling on Issue of Segregation, dated September 27, 1971 (Appendix, 17a). (2) Findings of Fact and Conclusions of Law On Detroit- Only Plans of Desegregation (Appendix, 53a). (3) Ruling On Propriety of Considering A Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit (Appendix, 48a). (4) Ruling On Desegregation Area and Development of Plans and Findings and Conclusions of Law In Support There- of (Appendix 59a and 97a). [6] This order was stayed by the Court of Appeals for the Sixth Circuit on July 20, 1972 (Appendix 1 12a; 113a-114a). : 10 (5) Order directing purchase of at least 295 school buses (Appendix, 106a). Appeal was taken from the aforementioned orders and: on December 8, 1972, the United States Court of Appeals for the Sixth Circuit rendered an opinion, by a panel of three judges, af- firming the Ruling On Issue of Segregation (Appendix, 17a) and Findings of Fact and Conclusions of Law On “Detroit-Only” Plans of Desegregation (Appendix, 53a). The decision of the panel vacat- ed the remaining orders appealed from, but affirmed in principle the ruling of the District Court that Petitioners and other school districts could be used to alter the racial balance in the Detroit school district (Appendix, 11 1a-112a). On January 16, 1973, the Court of Appeals for the Sixth Cir- cuit granted rehearing in banc which had the effect of vacating the previous opinion and judgment of the court (Appendix, 112a). Oral arguments before the court in banc were heard on February 8, 1973. and the decision of the court issued on June 12, 1973, Petitioners seek a Writ of Certiorari to review said decision. By majority decision the Court of Appeals for the Sixth Cir- cuit affirmed the Ruling On Issue of Segregation, dated September 27, 1971, (Appendix, 17a) and the Findings of Fact and Con- clusions of Law On “Detroit-Only” Plans of Desegregation (Ap- pendix, 53a). The Court of Appeals further affirmed in principle the ruling of the District Court that Petitioners and other school districts may be included in a remedy for the desegregation of the Detroit public school system. A substantial number of the fifty-three (53) school districts covered under the District Court’s order (Appendix, 101a) have never been parties to these proceedings. The Court of Appeals de- clared that any school district to be affected by the decree of the District Court is a necessary party under Rule 19, Fed. R. Civ. P. (Appendix, 177a) and as a pre-requisite to implementation of a multi-school district remedy, school districts to be affected must be made a party to the litigation and afforded an opportunity to be heard (Appendix, 177a). 11 The Court of Appeals, while stating that affected school districts!7] must be afforded an opportunity to be heard, so circumscribes such right as to render it meaningless. The Court of Appeals states that — . the District Court will not be required to receive any additional evidence as to the matters contained in its Ruling on the Issue of Segregation, dated September 27, 1971, and reported at 338 F. Supp. 582, or its Findings of Fact and Conclusions of Law on the ‘Detroit-only’ plans of desegregation, dated March 28, 1972.” (Appendix, 178a). The net result is that Petitioners and other school districts are foreclosed from any hearing whatever with respect to the control ling issues. The final remedy is, in fact, already ordained by the Court of Appeals. REASONS FOR GRANTING THE WRIT Thé Decision Below Presents Issues of Imperative Public Importance That Have Never Been Decided By This Court This case is without precedent in terms of the scope of the judicial remedy involved, the failure to accord Petitioners funda mental due process, the imposition of a judicial remedy against unitary school districts absent a finding of constitutional violation and its impact upon the public school systems in the United States. There are upwards of 600 geographically and politically unre- lated, separate and identifiable school districts in the State of Michigan. Over 100 years ago the Michigan legislature in Public Act No. 34 of 1867, provided that — “All residents of any district shall have an equal right to attend any school therein.” The Michigan Supreme Court construed this statute to mean that {7] A motion which would make eighty-four (84) school districts in Wayne, Oakland and Macomb Counties parties to the litigation is now pending me the District Court. — 12 under Michigan law black children were placed on the same footing with white children and were admissible on the same terms to the public schools. Ex Rel Workman, 18 Mich. 399 (1869). In 1927 the Michigan legislature enacted Act No. 319, Part ll, Chapter 2, Section 9 of which provided as follows: “All persons residents of any school district and five years of age, shall have an equal right to attend any school therein; and no separate school or department shall be kept for any person or persons on account of race or color.” This long established policy against racial segregation in the public schools is re-affirmed in the Michigan Constitution, as follows: “... Every school district shall provide for the educa- tion of its pupils without discrimination as to religion, creed, race, color or national origin.” Mich. Const. 1963, art VIII, sec 2.18] The complaint filed in this case alleges that one of the 600 Michigan school districts, the City of Detroit, has failed to operate a unitary school system. The trial on the merits was confined to the issue of de jure segregation with respect to the operation of the Detroit public school system. The gravamen of the findings and conclusions of the District Court, and the decision of the Court of Appeals, is that the Detroit Board of Education, by the use of various techniques such as the manipulation of student at- tendance zones within the Detroit school district, school site selec- tion and creation of optional attendance areas, deliberately fostered and maintained racially segregated schools within the Detroit school district, aided or abetted by the action or inaction of the State Defendants. Neither the District Court nor the Court of Appeals made any findings that any of the Petitioners, or any other school dis- trict save Detroit, have defaulted in their constitutional obligation to maintain a unitary school system. The District Court stated ex- plicitly that — [8] “The anti-discrimination clause is placed in this section as a declaration which leaves no doubt as to where Michigan stands on this question.” State of — Constitutional Convention, 1961, Official Record, Volume Il, page 13 “It should be noted that the court has taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation.” (Appendix, 59a-60a), The Court of Appeals for the Sixth Circuit has decreed that, contrary to controlling decisions of this Court, the scope of judi- cial remedy in a school desegregation case is not dependent upon any constitutional violation, but can be predicated on the exist- ence of racial imbalance between separate, unrelated and identi- fiable school districts. Admittedly, the City of Detroit school district is predomi- nantly black and Petitioners and some other school districts are predominantly white. However, there is no claim or finding that the de jure segregated operation of the Detroit school system is in any way causally connected with the establishment or operation of any other school district. There is likewise no claim or finding that the creation or establishment of any other school district is causally connected with the de jure segregated operation of the Detroit school district. An obvious and simple fact ignored by the District Court and the Court of Appeals is that there is absolutely no evidence that the racial make-up of the Detroit school district vis-a-vis other school districts would be any different had none of the acts of de jure segregation here found occurred. In other words, had Detroit been operated as a unitary school system its total school popula tion would still be predominantly black due to population move ments and housing patterns. Only the racial mix in schools within the City of Detroit might be different but for the manipulative actions found by the District Court. The evil intended to be eradicated by the decision of the Court in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), and its descendants, was the label of inferiority which ac companied the segregation of black children in the schools by “sanction of law”. It is not the mere presence of too many or too few black children in a school that gives rise to a constitutional es — 14 violation, but the use of governmental action to deny black children ‘entrance to a school or classroom solely because of their race. Such evil is given rebirth by a decision such as the Court of Ap- peals herein that black children must not be permitted to predomi- nate in any school system. In Brunson v. Board of Trustees of School District No. 1 of Clarendon County, South Carolina, 429 F2d' 820, 826 (CA4, 1970), Judge Sobeloff appropriately de- scribed the actual effect of such a holding, as follows: “This idea, then, is no more than a resurrection of the axiom of black inferiority as justification for separation of the races, and no less than a retum to the spirit of Dred Scott. "19 Both the District Court and the Court of Appeals acknowl- edge the lack of controlling decision by this Court with respect to the remedy decreed herein. “The main thrust of the objections to the consideration of a metropolitan remedy advanced by intervening school dis- tricts is that, absent a finding of acts of segregation on their part, individually, they may not be considered in fashioning a remedy for relief to the plaintiffs. It must be conceded that the Supreme Court has not yet ruled directly on this is- sue...” United States District Court, Eastern District of Michigan, Southern Division (Appendix, 50a). Emphasis added. se “[A] mong the substantial questions presented there is at least one difficult issue of first impression that has never been decided by this court or the Supreme Court.” United States Court of Appeals for the Sixth Circuit (Appendix, 113a). : ; The decision of the Court of Appeals portends the cross- school district assignment and transportation of hundreds of thousands of children in the Detroit metropolitan area. The initial desegregation plan contemplated by the District Court embraces 19} Dred Scott v. Sanford, 60 U.S. (19 How) 393 (1856). 1S fifty-three (53) separate school districts and the reassignment and trafisportation of over 300,000 children (Appendix, 72a; 101a), The imperative public importance of this case is readily apparent when one conceives the possibility of millions of school children in school districts throughout the United States being reassigned and transported in order to effect majority white-minority black racial balance. The disruptive consequences of such occurrences are so obvious as to warrant no comment. The Court of Appeals has remanded this case to the District Court for the purpose of implementing 4 plan of desegregation which could potentially involve in excess of eighty (80) school dis- tricts and approximately 1,000,000 children. At this juncture the scope of the remedy and the desegregation area is limited only by the dictates of the District Court (Appendix, 177a). Plaintiffs have already filed a motion which, if granted, would make eighty-four (84) school districts parties to these proceedings. Obedience to the rule of law is the keystone of our republic. But what is the rule of law in cases such as the instant case? Only a decision by this Court can resolve the confusion and conflict en- gendered by divergent judicial commands emanating from lower - courts. The issues posed in this case have substantial impact upon the lives of nearly one million children in the Detroit metropolitan area and millions of children and parents throughout the United States. This Court has stated that delay in effecting the desegregs- tion of public school systems found to be in violation of the Con- stitution will not be countenanced. It is submitted that this Court should likewise not countenance delay in providing definitive and controlling guidance in connection with the immensely important public issues here presented. The Decision Below Conflicts In Principle With Decisions Of This Court and Other Courts Of Appeals In Swann v. Charlotte-Mecklenburg Board of Education, < U.S. 1, 15-16, (1970), this Court stated: .a school desegregation case does not differ funda — ade from other cases involving the framing of equitat Sas - ee 16 remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collec- tive interests, the condition that offends the Constitution. “In seeking to define even in broad and general terms how far this remedial power extends it is important to re- -member that judicial powers may be exercised only on the basis of a constitutional violation. . . . “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional vio- lation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. . .”” Emphasis added. Assuming, arguendo, the validity of the findings of the Dis- trict Court on the issue of segregation and the Court of Appeals affirmance thereof, the only constitutional violation in this case is the operation of the Detroit public school system on a de jure segregated basis which denies black children access to certain schools within the Detroit School system on account of their race. There is ho claim or finding that black children have been denied such access in any other school district because of their race. The condition that offends the constitution is the internal operation of the Detroit public school system. The nature of the constitutional violation is the manipulative techniques used in con- nection with the assignment of children to schools within the Detroit school system. The scope of the remedy should thus be limited to prohibiting the denial of access to schools within the Detroit school system on account of race and elimination of the vestiges of segregation by reassigning Detroit school children to schools on a basis which is reflective of the condition which would prevail had the Detroit system been operated as a unitary school 17 There is no claim or finding that the racial composition of the Detroit public school system vis-a-vis other school districts throughout the Detroit metropolitan area is causally connected with the actions found to constitute de jure segregation. With or without the acts of commission and omission by the Detroit Board of Education and the State defendants found to constitute de jure segregation, the Detroit school system would be predominantly black and other school districts in the Detroit metropolitan area would be predominantly white. Applying the teachings of Swann, supra, there is no basis upon which Petitioners and other unitary school districts can be subjected to a judicial remedy for the purpose of changing the racial mix in the Detroit public school system. Judge Kent in his dissenting opinion put it succinctly, as follows: “I know of no authority which would permit a Court to announce a conclusion, based upon a violation of the Consti- tution, absent the taking of proofs to establish such constitu- tional violation, which proofs the District Judge stated he did not take in this case.” (Appendix, 225a). The Court of Appeals for the Sixth Circuit has, in reality, de- creed that the existence of a big city school system which is predo- minantly black due to residential patterns, surrounded by school districts which are predominantly white due to residential patterns, constitutes a denial of equal protection of the law. This holding is in direct and irreconcilable conflict with the pronounce- ments in Spencer v. Kugler, 326 F. Supp. 1235 (1971), aff'd 404 U.S. 1027 (1972), as follows: “*... Racially balanced municipalities are beyond the pale of either judicial or legislative intervention.” 326 F. Supp. 1235 at 1240. oa * * “A continuing trend toward racial imbalance caused by housing patterns within the various school districts is not sus- ceptible to judicial intervention. ..” 326 F. Supp 1235 at 1242. Moreover, this Court recently stated in San Antonio Independent School District v. Rodriquez, 411 U.S. 1,54 (1973) that — “This Court has never doubted the propriety of maim taining political subdivisions within the States and has Hie —— 18 found in the Equal Protection Clause any per se rule of territorial uniformity [citations omitted] .” The holding of the Sixth Circuit Court of Appeals that relief from segregation in the Detroit public school system cannot be ac- complished within said school district is patently erroneous. Con- trary to the majority opinion of the Sixth Circuit, a unitary school system is not a minority-black system but is a school system with- in which no person is effectively excluded from any school or classroom because of race or color. Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). Relief of segregation can be accomplished by converting Detroit to a unitary school system. As stated by the Fourth Circuit Court of Appeals in Bradley v. School Board of the City of Richmond, 462 F2d 1058, 1069 (CA4, 1972), aff'd by an equally divided Court, 93 S. Ct. 1952 (1973). “... there is no right to a racial balance within even a single school district, Swann v. Charlotte-Mecklenburg Board of Education, supra at 24, but only a right to attend a uni- tary school system.” The objective of the so-called metropolitan remedy required by the holdings of the courts below is racial balancing, pure and simple. This Court in Swann, supra, unequivocally rejected the no- tion that desegregation requires racial balancing, saying: “ __..If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance, or mixing, that approach would be disapproved and we would be obliged to reverse.”” Swann, supra, at page 24. The conclusion of the Sixth Circuit Court of Appeals that desegre- gation requires reducing the black student population of the of- fending school district to a minority ratio is further negated by United States v. Scotland Neck Board of Education, 407 U.S. 484 (1972), where the enrollment under the desegregation plan was 78% black and by Wright v. Council of the City of Emporia, 407 U.S. 451 (1972) where the enrollment under the desegregation plan was 66% black. In Bradley v. School Board of the City of Richmond, supra, the Court of Appeals for the Fourth Circuit rejected adoption of a alled metropolitan remedy aimed at using predominantly 19 white school districts to effect a more desirable racial balance vis- a-vis a predominantly black school district. The Court of Appeals for the Fourth Circuit noted as follows: **... the forces influencing demographic patterns in New York, Chicago, Detroit, Los Angeles, Atlanta and other metropolitan areas have operated in the same way in the Richmond area to produce the same result. Typical of all these cities is a growing black population in the central city and a growing white population in the surrounding suburban and rural areas. Whatever the basic causes, it has not been school assignments, and school assignments cannot reverse the trend. That there has been housing discrimination in all three units is deplorable, but a school case, like a vehicle, can carry only a limited amount of baggage. Swann v. Char- lotte-Mecklenburg Board of Education, supra at 24.” 462 F2d 1058, 1066 (CA4, 1972). The decisions of the District Court and the Court of Appeals in this case are founded upon the erroneous premise that the judi- cial remedy in a school desegregation case need not be confined to the scope of constitutional violations but may be used as a vehicle of unlimited capacity for the purpose of effecting social goals. The District Court stated as much, saying: “We need not recite the many serious problems such a plan entails, suffice it to say that a plan of such dimensions can hardly be conceived in a day, to say nothing of the time it will require for implementation. A large metropolitan area such as we have in our case can not be made the subject of instant integration. We must bear in mind that the task we are called upon to perform is a social one, which society has been unable to.accomplish. /n reality, our courts are called upon, in these school cases, to attain a social goal, through the educational system, by using the law as a lever.” (Ap pendix, 40a-41a). Emphasis added. The mandate of Brown I, supra, and Brown II, 349 U.S. 294 (1955), is to dismantle dual school systems and eliminate the ves tiges of segregation where the actions of school authorities have — denied children access to public schools solely on account of their _ eS 20 race or color. Brown and its progeny have all addressed themselves to this objective. The Sixth Circuit Court of Appeals has mis- apprehended the controlling principles enunciated by this Court and has gone far beyond correcting the condition that offends the Constitution! !9] in decreeing that children attending the public schools may be reassigned and transported for purposes of racial balancing to counteract residential patterns. The irreconcilable conflict between the decision of the Sixth Circuit Court of Ap- peals and prior decisions of this Court not only warrants but calls for immediate review of this case by Writ of Certiorari. — Petitioners Have Been And Will Continue To Be Denied Due Process of Law Under The Decision Below It is impossible to equate the proceed & below with the minimal requirements of due process of law.{11] This Court has set forth such requirements, as follows: “A fundamental requirement of due process is ‘the opportunity to be heard’. . . It is an opportunity which must be granted at a meaningful time and in a meaningful man- ner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). * * * “The right to a fair and open hearing is one of the rudiments of fair play assured to every litigant by the Federal Constitution as a minimal requirement.” Railroad Com- mission of California v. Pacific Gas & Electric Co., 302 U.S. 388, 393 (1938). The decision of the Sixth Circuit holds that Petitioners and other school districts to be affected by judicial decree are “‘neces- sary parties”, yet denies to such necessary parties any opportunity for hearing with respect to the controlling issues here involved. As noted hereinabove in the Statement of the Case, decisions of the courts below foreclose Petitioners from an opportunity to [10] See dissenting opinion of Judge Kent, Appendix, 223a. ° (11) United States Constitution, Amendment V. 21 be heard on the issue of segregation and the issue of a “Detroit- Only” plan of desegregation and subject Petitioners to judicial sanction without any finding that they have committed, or are causally connected with, any constitutional violation. The Sixth Circuit decision commands the District Court to fashion a so-called metropolitan remedy to alter the racial balance vis-a-vis the Detroit school district and geographically and politi- cally independent school districts in the geographical area proxi- ~ mate to the Detroit school district. Thus the ultimate remedy has been determined and the hearing to be accorded Petitioners is il- lusory. As stated by Judge Miller, in dissenting from the majority opinion of the Sixth Circuit— **Parties to be affected and against whom relief is — sought should be accorded, in compliance with basic prin- ciples of due process, an opportunity to be heard at a mean- ingful time and in a meaningful manner not only with respect to the ultimate scope of the remedy to be fashioned, but also with respect to important, significant and perhaps even con- trolling issues, including the issue of segregation, a ‘Detroit only’ school plan and the propriety of a metropolitan remedy. If any one of these issues is resolved in favor of parties outside the Detroit School District, the nature and scope of a remedy embracing outlying districts would not be reached. Hence the outlying districts have a vital interest in each issue separately and should be heard on each in a true adversary sense. Until this is done our expression of view on the merits of the several questions is uncalled for and il advised. To permit these additional parties to be heard only in the restricted sense set forth in the majority opinion is to deny them basic rights guaranteed not only by Rule 19, Federal Rules of Civil Procedure, but by the Constitution itself.”’(Appendix, 239a-240a). Emphasis added. The unprecedented decision of the Sixth Circuit warrants immediate review by this Court in order to determine and protect — fundamental constitutional rights to due process of law. 22 CONCLUSION The unprecedented decision of the Sixth Circuit Court of Appeals and its tremendous public impact on parents and children in Michigan and throughout the United States make this case one of imperative public importance warranting the issuance of a Writ of Certiorari. Respectfully submitted, BUTZEL, LONG, GUST, KLEIN WILLIAM M. SAXTON & VAN ZILE, JOHN B. WEAVER ROBERT M. VERCRUYSSE Of Counsel. XHAFER ORHAN 1881 First National Building Detroit, Michigan 48226 Counsel for Petitioners Allen Park Public Schools, et al, Southfield Public Schools and School District of the City of Royal Oak CONDIT AND MC GARRY, P.C. Richard P. Condit, Of Counsel HARTMAN, BEIER, HOWLETT, MC CONNELL & GOOGASIAN, Kenneth B. McConnell, Of Counsel Dated: September 6, 1973. APPENDIX CONSTITUTIONAL PROVISIONS United States Constitution, Amendment V provides: AMENDMENT V — CAPITAL CRIMES; DOUBLE JEOP- ARDY; SELF - INCRIMINATION; DUE PROCESS; JUST COMPENSATION FOR PROPERTY No person shall be held to answer for a capital, or other- wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against him- self, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. United States Constitution, Amendment XIV, Section 1, provides: 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. Michigan Constitution of 1963, Art. 8, §2 provides: Free public elementary and secondary schools; discrimina tion. SEC. 2. The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, aR. color or national origin. Ee Sa 2aa UNITED STATES STATUTES Judicial Code, 28 U.S.C. s 1254(1) provides: , 1254. Courts of appeals; certiorari; appeal, certified ques- tions Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods; (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; Judicial Code, 28 U.S.C. § 1292(b) provides: $1292. Interlocutory decisions (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of | law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may : materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Ap- | peals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten : days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceed- ings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. : MICHIGAN STATUTES Michigan Compiled Laws Annotated, 5 340.352 provides: _ 340.352 Body corporate; powers, rights, liabilities; pre- sumptions , SEC. 352. Every school district shall be a body corporate under the name provided in this act, and may sue and be sued in its name, may acquire and take property, both real and __. Personal, for educational purposes within or without its cor- 3aa porate limits, by purchase, gifts, grant, devide or bequest, and hold and use the same for such purposes, and may sell and convey the same as the interests of such district may require, subject to the conditions of this act contained. As such body corporate, every school district shall be the successor of any school district previously existing within the same territorial limits and shall be vested with all rights of action, with the title of all property, real and personal, of the district of which it is the successor, and the indebtedness and obliga tions of the district superseded shall become and be the indebtedness and obligations of the succeeding district, ex- cept as otherwise provided in chapters 3, 4 and 5, part 2 of this act. Every school district shall in all cases be presumed to have been legally organized when it shall have exercised the franchises and privileges of a district for the term of 2 years; and such school district and its officers shall be entitled to all the rights, privileges and immunities, and be subject to all the duties and liabilities conferred upon school districts by law. Act 34, Sec. 28, Mich. Pub. Acts of 1867 provides: (2271) Sec. 28. All residents of any district shall have an equal right to attend any school therein: Provided, That this shall not prevent the grading of schools according to the in- tellectual progress of the pupils, to be taught in separate places when deemed expedient. Act 48, Sec. 12, Mich. Pub. Act of 1970 provides: 388.182 Attendance provisions, implementation; condi- tions. [M.S.A. 15.2298(12)] Sec. 12. The implementation of any attendance provi- sions for the 1970-71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school dis trict boards established under the provisions of this amends tory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. In reviewing, confirming, establishing oF modifying attendance provisions the first class school distriet 4aa boards established under the provisions of this amendatory act shall have a policy of open enrollment and shall enable students to attend a school of preference but providing prior- ity acceptance, insofar as practicable, in cases of insufficient school capacity, to those students residing nearest the school and to those students desiring to attend the school for parti- cipation in vocationally oriented courses or other specialized curriculum. Act 319, Part Il, Ch. 2, Sec. 9, Mich. Pub. Acts of 1927, provides: Fed. SEC. 9. All persons residents of any school district, and five years of age, shall have an equal right to attend any school therein; and no separate school or department shall be kept for any person or persons on account of race or color: Provided, That this shall not be construed to prevent the grading of schools according to the intellectual progress of the pupil, to tegtaught in separate places as may be deemed expedient. FEDERAL RULES OF CIVIL PROCEDURE R. Civ. P. 19 provides: Rule 19. Joinder of Persons Needed for Just Adjudication (a) Persons to be Joined if Feasible. A person Who is sub- ‘ject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already par- ties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring _ double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, - the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If Fed. Saa - the joined party objects to venue and his joinder would ren- der the venue of the action improper, he shall be dismissed from the action. (b) Determination by Court Whenever Joinder not Feas ible. If a person as described in subdivision (a) (1) 2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent per- son being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judg- ment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of te- lief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non- joinder. (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the plead- er, of any persons as described in subdivision (a) (1) 2) here- of who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23. R. Civ. P. 54(b) provides: Rule 54. Judgments; Costs (b) Judgment upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, of third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an - express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order 6aa or other form of decision, however designated, which adjudi- cates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment @djudicating all the claims and the rights and liabili- ties of all the parties. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0342%3A08. Public record. Not legal advice.