Bradley v. Milliken

• Citation: 772 F.2d 266
• Decision Date: 16 September 1985
• Docket Number: 84-1365,Nos. 84-1364,s. 84-1364
• Parties: 27 Ed. Law Rep. 497 Ronald BRADLEY, et al., Plaintiffs (84-1364), Plaintiffs-Appellants (84-1365), v. William J. MILLIKEN, et al., Defendants-Appellees, Detroit Federation of Teachers, Intervening Defendant-Appellant (84-1364), Intervening Defendant (84-1365).
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 266

772 F.2d 266

27 Ed. Law Rep. 497

Ronald BRADLEY, et al., Plaintiffs (84-1364) Plaintiffs-Appellants (84-1365), v. William J. MILLIKEN, et al., Defendants-Appellees Detroit Federation of Teachers, Intervening Defendant-Appellant (84-1364), Intervening Defendant (84-1365).

Nos. 84-1364, 84-1365.

United States Court of Appeals Sixth Circuit.

Argued June 13, 1985.

Decided Sept. 16, 1985.

Theodore Sachs (argued), Sachs, Nunn, Kates, Kadushin, O'Hara, Heveston, Waldman, John Runyan, Jr., Detroit, Mich., for appellants.

Paul J. Zimmer, Jr., Lead Counsel, Asst. Atty. Gen., Lansing, for Milliken et al.

George T. Roumell, Jr. (argued), Riley & Roumell, Detroit, for School Dist. of City of Detroit.

Dr. Kenneth Harris, Dr. Philip E. Runkel, William Waterman, Pontiac, Mich., for LULAC.

Before MERRITT and CONTIE, Circuit Judges, and EDWARDS, Senior Circuit Judge.

CONTIE, Circuit Judge.

This appeal questions the propriety of an order of the district court terminating portions of the remedy imposed in this school desegregation case. The appellants are the plaintiff class ¹ and the Detroit Federation of Teachers, a defendant in intervention. The district court's order provided for the termination of its jurisdiction over the Detroit school system's code of student conduct and community relations program. It also disbanded the court-created monitoring commission. Due to procedural deficiencies in the district court's actions, we find it necessary to remand for further proceedings.

I.

This litigation began on August 18, 1970, when the plaintiff class filed a complaint alleging that public officials had intentionally segregated the Detroit school system. State and local authorities have been found liable for intentional segregation. See Bradley v. Milliken, 338 F.Supp. 582 (E.D.Mich.1971), aff'd, 484 F.2d 215 (6th Cir.1973) (en banc). In considering the proper remedy, the late District Judge Roth concluded that suburban school districts, against whom there had been no finding of liability, would have to be included in any successful desegregation plan. See Bradley v. Milliken, 345 F.Supp. 914, 916 (E.D.Mich.1972). This court affirmed the inclusion of non-city school districts in a court-ordered desegregation plan. See 484 F.2d at 249. The Supreme Court disagreed, holding that the remedy must be limited to the Detroit school system. See Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974).

On remand, this case was reassigned to District Judge DeMascio in light of Judge Roth's death. The desegregation plan eventually adopted by Judge DeMascio not only ordered pupil reassignment but also incorporated proposals for what have come to be known as "educational components." These elements of the plan were designed to eliminate current effects of past discrimination. They included items such as remedial reading programs, guidance and counseling programs and vocational training, as well as the community relations and uniform code of student conduct programs which are at issue in this appeal. The state defendants appealed the propriety of four of these "educational components." We affirmed the remedy, see Bradley v. Milliken, 540 F.2d 229 (6th Cir.1976), as did the Supreme Court, see Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). The three portions of the remedy at issue in this appeal were not the subject of any appeals. ²

The community relations program, the uniform code of student conduct and the monitoring commission came into existence as follows. On May 21, 1975, the district court ordered the Detroit Board of Education to submit a proposed code of student conduct. In the district court's view, a uniform code of student conduct was necessary to "protect the students against arbitrary and discriminatory exclusions, suspensions or explusions and to assure that disruptions in the school or classroom will be dealt with in every instance." See Bradley v. Milliken, 402 F.Supp. 1096, 1142-43 (E.D.Mich.1975). On July 3, 1975, the district court rejected the Board's first draft of the code and provided guidelines for redrafting. On October 29, 1975 the district court reviewed the second draft and again found defects in the Board's efforts. Instead of again sending the draft back to the Board, the district court itself amended the draft. The court then ordered the use of this code.

On July 18, 1975, the district court requested the Detroit Board to submit a proposed community relations program. See 402 F.Supp. at 1143. On May 11, 1976, the district court issued very specific guidelines for the structure of the program and ordered the Detroit Board to institute a community relations program consistent with the court's instructions. This court-ordered program was subsequently adopted.

An August 15, 1975 memorandum opinion stated that the "court's order will provide for a court-created monitoring system to audit efforts made to implement the court's desegregation orders." See 402 F.Supp. at 1145. The purpose of the monitoring commission was to aid the court in its "obligation to audit efforts to implement its orders." Id. The monitoring commission came into formal existence on October 16, 1975, when the court accepted and adopted a plan for the monitoring commission submitted by the State Superintendent of Public Instruction.

Since August of 1980, this case has been assigned to a triumvirate of district judges. ³ This panel now consists of Chief District Judge Feikens, District Judge Churchill and District Judge Cohn. ⁴ At the time the panel assumed control of the case, there were pending motions from the plaintiff class for enforcement of the various educational remedies and from the Detroit Federation of Teachers for enforcement of the order to implement the uniform code of student conduct. The panel encouraged the parties to negotiate and settle these and other issues. The product of the negotiations was a June 1981 stipulation between the parties. The parties agreed on the amount which the state defendants would contribute to the cost of providing for the educational remedies. To aid in assuring compliance, the stipulation placed reporting requirements on the Detroit Board and the state defendants. It also provided a date for termination of these remedies:

At the conclusion of the 1987-1988 school year, except as otherwise provided by law, the reading, counseling and career guidance, uniform code of student conduct, school-community relations, vocational education, and bilingual-bicultural components shall be deemed completed, upon the filing by the Detroit Board of Education of the final component report by March 1, 1988, and defendant Detroit Board of Education shall then be relieved of any further obligation to implement said components pursuant to the Court's judgment and orders

....

In consideration of the various concessions made by the parties, the pending motions for compliance were withdrawn. The question of the continued existence of a monitoring commission ⁵ was left unresolved:

This Agreement does not modify the prior orders of the Court concerning the authority and function of the Monitoring Commission, without prejudice to the right of any party to petition the Court concerning changes regarding same.

The district court conducted public hearings on the propriety of the stipulation and on August 28, 1981, it adopted the stipulation as an order of the court.

On April 24, 1984, the district court, 585 F.Supp. 348 (D.C.Mich.1984), entered the order which is the subject of this appeal. It held that the court-ordered code of student conduct would be terminated upon the promulgation by the Detroit Board of its own code of student conduct. The order similarly provided that the court-created community relations program would be terminated upon the adoption by the Detroit Board of its own community relations program. Both of these actions were predicated upon the existence of state laws which either allowed or required the Board to institute the programs it had formerly been under court order to implement. ⁶ Finally, the court held that the monitoring commission would be disbanded upon Detroit Board's compliance with the order to create its own code of student conduct and community relations program. The court based this action on a concern for the friction that had developed between the Detroit Board and the monitoring commission and because "with termination of the student code of conduct and the school-community relations components, there is no longer any reason for us to maintain a Monitoring Commission as an arm of the Court."

II.

The Detroit Board of Education filed a motion to dismiss this appeal, arguing that this court lacks jurisdiction because of the absence of a "final judgment" or an appealable interlocutory order. See 28 U.S.C. Secs. 1291, 1292(a)(1). We need not decide whether this order could be characterized as "final" within the meaning of 28 U.S.C. Sec. 1291 or whether it might be within the "collateral order" exception to the rule requiring final judgments ⁷ because we conclude we have jurisdiction under Sec. 1292(a)(1). That statute gives this court jurisdiction over orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court." 28 U.S.C. Sec. 1292(a)(1). In deciding whether an order modifies an injunction and is thus appealable under Sec. 1292(a)(1), courts have examined both whether there was an underlying order which was injunctive in character and whether the order being appealed can be said to have modified that initial order. See Hoots v. Commonwealth of Pennsylvania, 587 F.2d 1340, 1348 (3d Cir.1978). A third factor to be considered is the practical consequences of the order challenged on appeal. The Supreme Court has stated:

Because Sec. 1292(a)(1) was intended to carve out only a limited exception to...