MILLIKEN v. BRADLEY

Transcript: 

Argument of Frank J. Kelley

Chief Justice Warren E. Burger: We will hear arguments next here on 76-447, Milliken v. Bradley.

Mr. Attorney General.

Mr. Kelley: Mr. Chief Justice Burger, may it please the Court.

We are here appearing on behalf of the petitioners in this cause.

The Court might recall that I was here some three years ago on this school desegregation case, regarding the question then of whether the lower court had exceeded their authority in ordering an inter-district remedy in the absence of an inter-district violation.

In reversing this Court at that time held that the constitutional right of the plaintiffs was to attend a unitary school system within the City of Detroit, and remanded the case for formulation of a decree to eliminate the segregation that existed within that city.

Following the remand and pursuant to the order of the District Court, the plaintiffs and the Detroit Board of Education each filed a desegregation plan.

The plaintiffs plan dealt solely with pupil reassignment.

It contained no educational components.

As a matter of fact, during the plaintiffs expert testimony in the remedy stage, their expert testified that the plaintiffs plan would in fact eliminate the segregation plan which is just in Detroit.

On the other hand, the Detroit Board of Educations plan in addition to recommending proposing pupil reassignment for the first time included Cert.

13, so-called Educational Components at a projected cost of $13 million annually to its plan, and that the Detroit Board in addition demanded that the cost of these expanded Educational programs be paid by the petitioners, who are State officials in the State of Michigan, in the Executive Branch of Government and the money come from unappropriated State funds.

Unknown Speaker: The Board of Education, Detroit Board of Education was at that time a defendant in the case, wasn’t it?

Mr. Kelley: That is correct.

Unknown Speaker: Do you think you would have any -- the State officials would have any standing here if the Detroit Board had agreed with the District Court’s order, and the District Court’s order it sort of sought to impose no financial burden on the State officials?

Mr. Kelley: Probably not Mr. Justice, the plaintiffs at the time that the Detroit Board of Education made this recommendation in their plan responded to the Court by pointing out, the plaintiffs himself pointing out, that in the findings there were no violations with respect to educational components.

Now yet in November of 1975 the court, the lower court then entered its order concerning pupils reassignment.

A desegregation plan involving some 27,000 students in 105 schools out of 300 zone schools in Detroit.

This desegregation plan was peacefully implemented in the second semester of January 1976.

We submit for the purpose of the remedy in this cause, based on the last time we were here that the implementation had taken place.

Yet on May 11 of that year 1976, the District Court entered another order and its judgment directed that there be ten educational components to be put into effect system-wide in September of 1976, and each year thereafter for the expanded educational components of reading, guidance counseling, testing and in-service training.

And the Trial Court ordered the State, the petitioners, to pay half of the excess cost of implementing the systematic expansion of existing educational components from unappropriated funds of the State Treasure.

Now pursuant to the Court’s order, the Detroit Board disclosed that for the previous years 1975, 1976 it had spent $75 million on these four components.

It also pointed out that the expanded order of the Court as to these four components would cost the excess of $11.6 for the 1976, 1977 school year.

Then on August 4, 1976, the Court of Appeals in Cincinnati affirmed the lower court, compelling the system-wide expansion of existing educational programs to be financed with additional unappropriated funds from the State Treasury.

After on successfully seeking a stay, on October 18, 1976 the State Treasure of Michigan, issued a warrant to -- in the amount of $5.8 million of unappropriated State funds in the State Treasury and paid the same to Detroit Board of Education.

Now, in affirming the District Court, the Court of Appeals did so and I quote, “Without prejudice to the right of the District Court to require a larger proportion of payment by the State of Michigan, if found to be required by future developments”.

And it is this judicially decreed blank check to be filled in each year and presented for payment of unauthorized funds upon the treasury of the State of Michigan that we are asking this Court to reverse.

Chief Justice Warren E. Burger: Is it your view that you must challenge all of it now, the open and the blank check as you call it, or if you did not prevail now do you consider that you would be free to challenge the next order allocating --

Mr. Kelley: Mr. Chief Justice, I believe that because of the factor that there was no adjudication in this case of any violation, any constitutional violation, with regard to educational programs in the Detroit School system that as soon as the lower court in its remedy got into educational components it was beyond its jurisdiction and in violation of the principles of this Court as laid down in Swann in every succeeding case thereafter, including the last time I was here when the Court at there exceeded its remedy.

The Detroit Board does not need a Federal Court order to expand education, nor the only reason for this Court --

Unknown Speaker: Is it your position that in the absence of that finding is critical, that the findings that were made would justify transportation remedy and no other is bussing the only permissible remedy in your view?

Mr. Kelley: We found that any reasonable type of pupil reassignment would be available, because the violation found in the lower court Mr. Justice, had to do with pupil reassignment and that is all that was found, there was no violation regarding education components or financing --

Unknown Speaker: Is it your response to my question that that is the only permissible remedy?

Mr. Kelley: Any reasonable remedy having to pupil reassignment would not necessarily be confined to bussing in my judgment.

Unknown Speaker: It would have to be pupil reassignment.

Mr. Kelley: That is correct.

Unknown Speaker: Mr. Attorney General, in that connection I want to be sure.

I take it you are arguing basic lack of power in the Court or are you arguing the existence of power but in abuse of it here.

Mr. Kelley: I believe that following Swann when there was no finding by the Court of the violation having anything to do with educational components but in these desegregation cases it would be beyond the power of the Court in this case.

I also feel that in this, that the act of the Court here is also doing violence to the principle of federalism as laid down in the Arvizu case.

I also feel that it is doing -- it is in-volitive of the decisions with regard to the Tenth and Eleventh Amendment also in this matter.

Chief Justice Warren E. Burger: Suppose Mr. Attorney General, that the District Court may be finding, an explicit finding that ‘x’ number of children in the schools, all of this based on expert testimony on surveys the usual way.

That X percentage of students that were suffering under a handicap -- a language speech handicap; that is problems of gathered life and gathered speech.

And that to bring them into the main stream with their peers in school after the reassignment, special speech, remedial speech programs where necessary.

There is no such finding here.

Mr. Kelley: That is correct.

Chief Justice Warren E. Burger: This is really somewhat like Justice Blackmun’s question, are you now challenging the power of the Court to do that, or are you challenging here that no such -- no findings were made that support these specific educational components as they are described.

Mr. Kelley: Well, I think first of all, let me answer your question, the first part is that, yes, there was no finding, and therefore, it is beyond the remedy part of the court.

The second part, I do not believe that this is an exception under Section 5 of the Fourteenth Amendment, where the court could come in and compel payment of money from a State Treasury for some inequity found.

I have never known of any statute or any congressional act that lets us do this in the school desegregation case.

I have not thought ahead to the principal part of your question however, because I have been concentrating on the fact that there was no violation here and the trust of my argument --

Unknown Speaker: Is the similar remedy would have been forbidden in Brown v. Board of Education?

Mr. Kelley: I believe on the findings of Brown case strictly pupil reassignment, I think it would not --

Unknown Speaker: Even though the Court observed that segregated education was unequal?

Mr. Kelley: If the Court observed, then I think that there is a possibility that something could have been done, but it is not true in this case.

Unknown Speaker: Well, otherwise how do you go about finding a constitutional violation in this case?

Mr. Kelley: Any.

Proofs were taken in this matter, in the Detroit case, Your Honor, with regard to this matter of educational components and finance.

The Court did not become convinced by that evidence and there were no findings.

Unknown Speaker: What is the basis for any remedy at all for any constitutional violation at all?

Mr. Kelley: The violation in this case was that the Detroit Board was found guilty of unconstitutional pupil assignment.

Unknown Speaker: Segregated?

Mr. Kelley: Segregated assignment.

Unknown Speaker: What is wrong with that in the constitution?

Mr. Kelley: It violates Brown.

Unknown Speaker: Well, what does brown say to violation?

Mr. Kelley: The Brown said, in repudiating Plessy v. Ferguson and that line of cases that --

Unknown Speaker: Well, does it include a ruling that segregated education is unequal or not?

Mr. Kelley: It is inherently unequal under the Fourteenth Amendment.

Unknown Speaker: And that goes for this case to?

Mr. Kelley: I believe so.

Unknown Speaker: Well then, what about a remedy?

The remedy, inherently unequal education.

Mr. Kelley: I believe that if you follow the rule as laid down in Brown one or two and it had been in Swann and then in this case that the scope for the remedy is determined by the nature of the violation.

Unknown Speaker: The violation is furnishing inherently unequal education.

Unknown Speaker: By segregating school children on the basis of the color of their skins, and the remedy is to desegregate.

Mr. Kelley: That is correct, and I believe that is what this Court said the last time in finding a violation in Detroit only in ordering in a remand, that the plaintiff’s rights in this case were to a unitary school system within the confines of the City Detroit there having been no showing on the record of any finding of an inter-district violation or violation of any district outside of Detroit, and now we are back here again on a remedy where there has been no showing that there was a violation of the financing of the Detroit School system or any violation with regard to educational components or the quality of education within the school system.

Unknown Speaker: Wait a minute Mr. Attorney General, Judge Roth in 1972 did find uncontroverted evidence of the need for remedial measures, didn’t he?

Mr. Kelley: It is not in the orders --

Unknown Speaker: “Uncontroverted evidence in the plan filed by everybody, that certain educational components including in-service training, testing evaluation would be essential to any plan.”

Mr. Kelley: Well, I can only say to you, Your Honor, at this point the Detroit has in fact unitary school system.

That in the last year 1975, 1976 we spent $75 million on those four components that the Judge DeMascio now wants expanded in a remedy phase, so that we are committed to this program, it is part of a unitary school system.

But if in fact the record as we see it did not show that there had been any constitutional violation of plaintiff’s rights with regard to accusation and finding of inequity in the educational components, or in the quality of the education, or in the financing of the school system, then I believe it is beyond the power of the Court now in the remedy stage to order educational components.

Unknown Speaker: Well, isn’t your case and behalf of State officials somewhat different than would be a case that could be made on behalf of the Detroit Board of Education, if they objected to this sort, which I take that they do not?

But if they did object, would they could make the same arguments that you have been residing that it goes beyond the scope of the violation that intrudes too deeply into the authority of the local officials that type of argument.

But I have thought one of your additional arguments on behalf of your State officials was that conceding that all of those things would be ruled in favor of the Court of Appeals.

Nonetheless, the Eleventh Amendment prevented the Court from requiring the State officials as opposed to the Detroit officials to pay for it?

Mr. Kelley: We feel that Edelman v. Jordan, a case in this Court would apply.

Where the Court reiterated the rule that a suit by private parties to impose a liability be paid from a State Treasury is barred by the Eleventh Amendment.

Now our Constitution in Michigan provides that no money shall be paid out of the State Treasury except in pursuant of appropriations made by law.

The people of Michigan have reposed the appropriation power and they elected -- alleged representatives, they have not waived the Eleventh Amendment in any way and as a result I believe we do have the protection, I think we also have the protection of the language of Arvizu, where the Court reaffirmed the principle of federalism and that limits the injunctive power of federal courts over officials in the executive branch of State level of governments.

This was a matter of administering educational system without finding.

Unknown Speaker: In Arvizu you were talking about a City Police Official.

Mr. Kelley: That is right.

Unknown Speaker: The Chief of Police of the City of Philadelphia who does not have Eleventh Amendment.

Mr. Kelley: That is correct, that is actually true but --

Unknown Speaker: Mr. Attorney General, if you are correct, as I remember the findings, there was a finding of violation by the State.

The State was the guilty of some constitutional violation.

Is there any remedy at all that could be ordered against the State?

Mr. Kelley: Well, the State has already paid --

Unknown Speaker: Any remedy that could be ordered by a Federal Court.

Mr. Kelley: Only having to do with a correction of the remedy with pupil reassignment, and any part of the State could play.

Now the State has not asked to submit a plan or the State --

Unknown Speaker: Could the State be ordered to pay a portion of the cost of buying the new buses in the transportation?

Mr. Kelley: The State Board did pay the cost of 200.

Unknown Speaker: Could it be ordered to do so?

Mr. Kelley: It did so, but it did so within the State Law.

Unknown Speaker: Could it be ordered to do so is my question?

Mr. Kelley: Yes, it was ordered to do so, Your Honor.

Unknown Speaker: Could it be ordered to do so consistently with your theory of the case?

Mr. Kelley: Well, as it turned out, the payment of the buses in this case was done within the State Constitution.

Unknown Speaker: What I am trying to find out is it under your view of the law there is any remedy which a Federal Court could order against the State?

I do not seem to find any in your answer, you say you have done some things voluntarily, but you seem to dispute the power of the Federal Court to grant any effective remedy against the State, is that correct?

Mr. Kelley: I believe that in pupil reassignment, they could issue any order that was reasonable to correct the federal violation.

Unknown Speaker: It including compelling the State to contribute to the cost of purchasing new buses?

Mr. Kelley: That is correct.

Unknown Speaker: You would agree to that?

Mr. Kelley: I would agree to that.

But I would also point out that as far as the Tenth Amendment is concerned, it would also apply here.

Unknown Speaker: Mr. Attorney General, I do not understand?

You do concede that the State could have been ordered to pay the buses?

Mr. Kelley: It can be ordered because in this particular situation, there is a law that provides for the State to participate in the payment of buses, it would not be in violation of the State Constitution or the State Law.

Unknown Speaker: Do you mean the states waive the Eleventh Amendment in that respect?

Mr. Kelley: It did not waive it, but --

Unknown Speaker: But what if you have a --

Mr. Kelley: The practical effect we paid for 25% of these buses, Mr. Justice.

Unknown Speaker: What about the Eleventh Amendment?

What happens to your Eleventh Amendment argument if you are going to concede, the State could have been ordered to pay for buses?

Mr. Kelley: I do not concede that the State has waived the Eleventh Amendment in the abstract, in the hypothetical questions posed to me by Justice.

Unknown Speaker: No, no, it is my question.

How do you reconcile your Eleventh Amendment argument, with your concession that you could be ordered to pay for busing?

Mr. Kelley: We could pay for busing, only into the --

Unknown Speaker: No, how can you be ordered in face of your Eleventh Amendment argument?

Mr. Kelley: I believe that the Eleventh Amendment would have to be argued in that case, and that the State would have to be defended on the Eleventh Amendment, because in any thing that we have done in this case, the State has not waived its Eleventh Amendment.

So what is misleading about this case is that we were able to buy the buses within State Law and under the State Constitution by future appropriation methods, and so the issue has never been drawn.

Chief Justice Warren E. Burger: Which plan is it that includes these educational components?

Mr. Kelley: It was the Detroit Board of Education, Mr. Chief Justice.

It was not in the plaintiffs plan.

Chief Justice Warren E. Burger: Accepted by the District Court?

Unknown Speaker: Accepted ten, I believe, of the thirteenth -- accepted nine, and put one plan of its own into the situation.

And in effect, in a remedy we are asking for a -- it’s a situation where there is a remedy being directed against us without a violation.

And I believe that it follows the dictate of this Court in Swann.

I believe the federalism argument will apply and I also believe the Tenth and Eleventh Amendment would also apply.

Because of our State Constitution in effect that we have not waived nor is there any exception, under Section 5 of the Fourteenth Amendment involved here, where you could order the compulsion of payment of State moneys as you did in the case of -- I believe it was not Griffin but --

Unknown Speaker: (Inaudible).

Mr. Kelley: The Congress’ law, and then of course the --

Unknown Speaker: That you bypassed.

Mr. Kelley: Well, the Court reaffirmed the principle in Arvizu with regard to courts, even though that was local officials.

Unknown Speaker: Congress --

Mr. Kelley: The Fitzpatrick case, I am sorry, Your Honor.

Unknown Speaker: By appropriate legislation, it is Congress that is aiming with us?

Mr. Kelley: Well, there is no statute here that would enable the lower court to use that power.

Unknown Speaker: I thought you said that we could use Section 5?

Mr. Kelley: No, I am sorry, there was no congressional act would enable the lower judge to make an exception.

And the case I have referred to earlier was, where there was a Section 5 exception in Fitzpatrick v. Bitzer, where having to do with employment discrimination and there was authority for the payment of State funds and ordered by the federal courts.

But we do not have that present in this case, and I just believe that despite the noble purpose the lower court has once again gone into a remedy situation without a violation having been found in the record.

And it is beyond the power of the court to do so, and I think it not only fails to follow the principle of a remedy being within the scope of the violation, but it also violates the Eleventh Amendment and the Tenth Amendment.

Chief Justice Warren E. Burger: When the court approved substantially with the greater part of the proposed plan, nine of the 13 parts.

As to those nine parts, isn’t that not a finding of the District Court of the need of those components in the total educational process?

Mr. Kelley: I felt that we would be bound by the record, there was no opportunity at that to point to properly put forth.

I do not believe that at that stage the Court was authorized to make a finding, because I do not believe that the records support it and I think the last time we were here, we included this matter.

The judgment had been entered and in that judgment there was no showing in the record of a violation.

Chief Justice Warren E. Burger: Well, if the State have not -- did you have an opportunity to challenge the court’s acceptance approval of the plan to the extent it approved it?

Mr. Kelley: Yes, but not, only to the extent and advisory capacity at that point of the proceedings Your Honor.

I do not think that we had the same standing at that point as we hindering a trial of the matter.

Unknown Speaker: You are a party to the litigation.

Mr. Kelley: That is correct.

Unknown Speaker: Not just in the amicus or in --

Mr. Kelley: No, no, that is correct we are a party.

Unknown Speaker: So you have got notice, I assume hearing and an opportunity to say what you want to say didn’t you?

Mr. Kelley: But, I honestly believe that at that point in the proceedings after the trial, and we must remember that the Late Judge Roth was the original Trial Judge in this matter.

We are faced with a situation where a succeeding judge came into the matter after the case was tried and the record was developed.

Chief Justice Warren E. Burger: Did it go to Judge DeMascio as soon as it came back on the remand after Judge Roth’s death?

Mr. Kelley: That is correct.

Chief Justice Warren E. Burger: He has had it ever since.

Mr. Kelley: That is he has had the case ever since Mr. Chief Justice and that is true.

We feel that this case, as far as the Eleventh Amendment is concerned it does follow the doctrines laid down in Edelman where the court reiterated the rule is suit by private parties to impose liability is barred and even though the State has not named to party in this case.

Edelman held that where the fact is they compelling your money from the State Treasury, which has what happened here, that the State does by that act become a party and what we have here is a direct compulsion of money from the State Treasury, it is not some ancillary effect or some perspective injuncted relief.

In addition to that, I think the language of the Court of Appeals is important when it said that this could be done annually, that we could come back here annually and take unappropriated funds from the State and I believe that we would have a repetition on Eleventh Amendment violations.

Unknown Speaker: On the remedy question, would the case be different if the decree instead of saying, you pay 50% of the cost?

It said that you provide the books, and you provide the teachers, and you provide the testing materials, one thing that asked you to provide a lot of services and facilities rather than just plain dollars.

Would that present a different issue?

Mr. Kelley: I do not think so.

I should also point out that you know, this is not, this School District is among the highest 20% in the State in per capita expenditures.

This year, the State of Michigan will appropriate under proper appropriations from its State Treasury to the City of Detroit, $192.5 million, in addition to any local taxation or federal health that they get.

They are among -- they hire per capita School Districts in the State.

We have not been parsimonious with them.

What the petitioners on the State object to is the ordering of unappropriated funds in violation of our Constitution from the State Treasury in the absence of any constitutional violation, that is what we are here for.

Unknown Speaker: Well there is a -- there was a finding by Judge Roth that the State had not participated in the situation that existed the violations.

That was not challenged in the original Milliken v. Bradley, and I think the opinion said that that finding was left undisturbed, if I recall correctly.

Mr. Kelley: I do not believe there has ever been a finding that the State of Michigan or any of the defendants for that matter have been involved in a constitutional violation with regard to educational quality or with regard to financing.

Unknown Speaker: But there was a finding by both lower courts that I gather is not challenged here.

Mr. Kelley: With regard to pupil reassignment.

Unknown Speaker: Well, that the State had participated in racial discrimination in the operation of the schools, that is what the finding was.

Mr. Kelley: That is correct.

Unknown Speaker: And that is what is not challenged.

Mr. Kelley: That is correct.

Unknown Speaker: And you do not challenge that, you cannot challenge that?

Mr. Kelley: No, We cannot challenge that, Your Honor.

We are only challenging the remedy that is being used here beyond of the nature of the violation and in violation of the Eleventh Amendment.

We now have a unitary system in Detroit that I do not believe anybody can question, and the desegregation and the implementation for the elimination that the desegregation has been accomplished, it was accomplished in January, 1976 and there was no complaint from anybody on that score?

Chief Justice Warren E. Burger: Very well, Mr. Attorney General.

Mr. Roumell.

Argument of George T. Roumell, Jr.

Mr. George T. Roumell, Jr.: Mr. Chief Justice, may it please the Court.

This case is about our remedy for a State imposed condition of the segregation in the Detroit School District that was caused by two separate and distinct defendants.

The Detroit Board and the State of Michigan, Footnote 16, Milliken I verifies this, and again in the Gautreaux case at Footnote 13, this Court reaffirmed that finding, two separate and distinct defendants.

The State defendants here are attempting to quest this Court’s statements in Swann and Milliken that the nature of the violation determines the scope of the remedy.

The violation here is segregation.

This is more than unlawful pupil assignment that scope of the remedy had more than just to do with pupil reassignment.

In Brown I --

Unknown Speaker: It wasn’t that the violation, segregation of pupils based upon their race or ethnic background?

There was no claim was there of inequality other than that of inequality among the various schools, was there?

Mr. George T. Roumell, Jr.: Yes, Your Honor, in this respect.

Unknown Speaker: This was a separate but equal system and that was the violation, wasn’t it?

Mr. George T. Roumell, Jr.: Your Honor, the record evidence in this case shows, that as the schools in Detroit evolved one black school, two black schools, three black schools, and so forth.

And the black children came into the Detroit system with the same capabilities and with the same potentiality to learn, that by the time they reach the eighth grade in the Detroit schools, on an average the record reveals that the black children were reading that sixth grade level --

Unknown Speaker: Was that ever alleged as a constitutional violation?

Mr. George T. Roumell, Jr.: That is the effect of segregation in Detroit.

Unknown Speaker: Why is it have that effect on black children or not on white children, if it is the effect of segregation.

Mr. George T. Roumell, Jr.: Because Your Honor, one of the major reasons for this reading disability is unfortunately teacher perceptions, toward the ability of their student to learn and the record evidence in this case shows that there were low teacher expectations in the developing black schools in Detroit.

It was an unfortunate result proven in the record and we referred the Court to our supplemental record at pages 1 to 23 where we lay that out in the violation states.

Furthermore, the record also shows Your Honor, that in testing -- our testing proved in many cases to be culturally bias and in many cases unfortunately, resulted in the tracking of black students.

Again I referred to the record 1 to 23 of our supplemental record.

Unknown Speaker: To get back to my original question, my mistaken and my understanding that the only constitutional violation found in this litigation was segregation of students based upon their color.

Mr. George T. Roumell, Jr.: That is correct but the effect.

Unknown Speaker: Or assignment of students based upon their color.

Mr. George T. Roumell, Jr.: It was an evolving process and the effect of this --

Unknown Speaker: Evolving or not that was of constitutional violation.

Mr. George T. Roumell, Jr.: That was a constitutional violation.

Unknown Speaker: And the only constitutional violation.

Mr. George T. Roumell, Jr.: And the State constitutional violation.

Unknown Speaker: Well, we are concerned here with only the federal constitutional violation.

Mr. George T. Roumell, Jr.: Well, I mean the State defendants.

Unknown Speaker: They were also found to be violators.

Mr. George T. Roumell, Jr.: Yes, Your Honor, and what we are saying that this was an effect of that violation and it also had an effect as violation record established in the counseling.

It institutionalized the concept of bias.

For example, in a majority of black schools, for some reason in our aero-mechanic school where we were training children to go into the aircraft industry we had an 80% white enrollment.

Black children were not being counseled into that educational opportunity.

So one of the purposes of equity is to restore the children where they would have been, but for this vidious (ph) segregation in Detroit.

Now in addition, when we get to the remedial stage of the hearings, not only do the records without the exception confirm what I have just said.

But in addition, the State defendants through their own witnesses and unless call the Court’s attention to the fact that after the Detroit Board presented their plan, the State was asked to present a critique.

And the State in their critique said, yes, we agree to overcome the obstacles to desegregation in Detroit.

You must have a counseling program designed to eliminate the effects of segregation.

You must have an unbiased testing program and by all means you must have an in-service training program.

Unknown Speaker: Where do you find that in?

Mr. George T. Roumell, Jr.: Pages 18 to 24 of the brief of the Detroit Board of Education, where we cite their references to the Appendix and actually quote from the testimony of the State defendant’s own witness, plus our witnesses, plus the witnesses of the plaintiff?

Unknown Speaker: May I ask you some questions about these programs?

Mr. George T. Roumell, Jr.: Yes, Your Honor.

Unknown Speaker: As I understand that there are four of them before us.

The in-service teacher training, counseling, testing and remedial reading.

How long has Detroit had all four of those components in its school system?

Mr. George T. Roumell, Jr.: Your Honor, we have had those components in our school system for sometime but we have not have --

Unknown Speaker: Wait just a minute.

Do you know any major school system in the United States that does not have them or any school system that has not had them for quarter of a century?

Mr. George T. Roumell, Jr.: I do not, but the components we are speaking --

Unknown Speaker: Let me ask you another question.

You see any finding in this record that anyone of those systems was enforced in a discriminatory way?

Mr. George T. Roumell, Jr.: Your Honor, two things, if I may answer the question in two parts.

The components we are speaking about here are not the routine educational programs in any school system.

These are restoration overcoming obstacle programs.

They are designed to teach counselor for example, to be prepared in preventing crises.

They are designed to open up to rare opportunity to the black children that have been deprived of them in Detroit.

The reading program is designed for the first time we have not had remedial reading at the high school level.

We are finding children who went through our system, and that segregated school system, not being able to read at the high school level.

Unknown Speaker: I understand that, and I am in favor of all of them.

But my question is what constitutional violation was found with respect to anyone of these components?

Mr. George T. Roumell, Jr.: The constitutional violation was a violation of segregation and --

Unknown Speaker: Well, you could give me that answer if I ask you what are the teaching of Mathematics, or History, or Civics, or any other subject in the schools.

You could say it is being taught inadequately, the segregation was the cause, could you not?

Mr. George T. Roumell, Jr.: No, I could not, Your Honor, for this reason.

Unknown Speaker: Tell me why?

Mr. George T. Roumell, Jr.: Because the second prong, not only the question of restoring, but overcoming the obstacle.

When you bring children into the Detroit system, into a desegregated system, Dr. Foster pointed out and we pointed on our brief in the testimony, and you bring children into a classroom that have all different levels of reading, you incur difficult teaching problems.

And eventually the children who have been discriminated against, who have been the victims of low teacher expectations began to daydream and eventually we have the horrible-horrible situation in Detroit of black dropout.

Unknown Speaker: My understanding is that 75% of the pupils are black, is that correct?

Mr. George T. Roumell, Jr.: 79, Your Honor.

Unknown Speaker: 79, has discrimination occurred with respect to all 79% of the pupils of the Detroit school system.

Mr. George T. Roumell, Jr.: It was system-wide.

Unknown Speaker: System-wide.

Mr. George T. Roumell, Jr.: That was the finding of Judge Roth.

Unknown Speaker: What is the composition of the Detroit School Board?

You have five members of system-wide, don’t you?

Mr. George T. Roumell, Jr.: No sir, we have 13 members, sir.

Unknown Speaker: Well, what is the composition of that Board?

Mr. George T. Roumell, Jr.: At the present time?

Unknown Speaker: Yes.

Mr. George T. Roumell, Jr.: In terms of race?

Unknown Speaker: Yes.

Mr. George T. Roumell, Jr.: Nine black, four white.

Unknown Speaker: You have regional boards, don’t you, Eight of them.

Mr. George T. Roumell, Jr.: Yes, Your Honor.

Unknown Speaker: What is the composition of eight regional boards?

Mr. George T. Roumell, Jr.: It varies from region-to-region.

Some regions are virtually all black, others --

Unknown Speaker: How many are eventually all white?

Mr. George T. Roumell, Jr.: It is a mixture, Your Honor.

Unknown Speaker: But how many have a majority of white members?

Mr. George T. Roumell, Jr.: Two, I believe, Your Honor.

Unknown Speaker: Two out of the eight?

Mr. George T. Roumell, Jr.: Two or three.

Unknown Speaker: And they are discriminating against themselves, aren’t they?

Mr. George T. Roumell, Jr.: Your Honor, they are not discriminating at the present time.

They are trying to correct the remedy.

Unknown Speaker: When was this discrimination in these four component programs?

Mr. George T. Roumell, Jr.: In these four components, Your Honor --

Unknown Speaker: Does the record show when there was any discrimination?

Mr. George T. Roumell, Jr.: The record shows that at the time this lawsuit would begun and doing the course of the law school there was desegregation, this evolving process.

And the effect -- the effect of this was the reading, the counseling, the problem that I have outlined above produced by the evidence on this record, the hard evidence.

And then when we get to the remedial stages, the educators with all the exception including the State’s own witness says, that in order to make desegregation work in Detroit.

In order to make it work in Detroit, we have federal programs, and these programs are not spending $75 million for existing programs, these are new programs.

Unknown Speaker: May I ask you this.

What is the ratio between your counselors and pupils?

How many pupils per counselor in the Detroit school system?

Mr. George T. Roumell, Jr.: Practically 400.

Unknown Speaker: How does that compare with national averages?

Mr. George T. Roumell, Jr.: The North Central Association proposed 350.

Unknown Speaker: 300-350 is considered the best relationship, Detroit is better than average.

Mr. George T. Roumell, Jr.: Your Honor, we have problems in Detroit, we are a large system.

We have large dropouts of students.

We have tension problem caused by the desegregation and that we are trying to work out.

We cannot explain why many of our student, we have the counselors into these system-wide schools, so they could participate in desegregated education.

Part of our tools, our entire tools in the educational components are just one tool.

Part of the whole tool, there is a whole system of growing children of both races into the various schools, and we have the counselor so their parents know about the availability of these opportunities.

Unknown Speaker: May I say this, I am very sympathetic to the problem.

Many school systems in the United States are inadequately staffed.

I know people in this business who think they ought to be a counselor for every 200 students.

Suppose the District Judge had decided that that ought to have been the ratio, and instead of ordering $11 million, he had order 22.

You will be here supporting that, wouldn’t you?

Mr. George T. Roumell, Jr.: Well, Your Honor, two questions if I may.

Number one, he did not decide that and number two, the State of Michigan had every opportunity to say he wasn’t correct in what he was ordering.

As a matter of fact, one of the privilege the joint submission to the court, the testing program.

They had every opportunity, and nowhere in their record, nowhere in this record had they challenge that these programs are needed to restore, to overcome the obstacles.

We are putting counselors in other areas in the Detroit system so that particularly in our middle school, so that our children can gravitate toward these city-wide schools and the magnet schools in order to make desegregation plan work.

It is a Detroit situation, it is a way segregation evolved in Detroit, it is the way -- the only way we can remedy this situation.

Because if we do not, if we do not utilize these tools the children in Detroit will continue that have the lingering badges of segregation on them.

Chief Justice Warren E. Burger: Mr. Roumell, are you saying in effect that in a school system, which as in Detroit is 79% Negro or Washington, D.C. which is somewhat similar.

The need for the counselors is higher than in a school system in some city where you have a much more traditional situation, either all white.

Is there a greater need for these programs when you have 79% in the population?

Mr. George T. Roumell, Jr.: Mr. Chief Justice, I may say this.

I am only familiar with the record in the Detroit situation, and I believe that segregation is a case-by-case litigation.

And I believe this is a way it developed in Detroit.

I would say Your Honor, that we had 10% black, and if the record showed that because of desegregation of those children, that it would necessary to give them remedial program, restoration programs, so that they can participate in the desegregated aspect of the program, then we would have to have it in that system.

Justice Lewis F. Powell: May I just ask you one more question.

Unknown Speaker: May I interrupt just a second, Justice Powell.

We have taken a lot of your time, so we will extend your time five minutes and the same on the other side, and give Justice Powell chance to pursue his question.

Justice Lewis F. Powell: I will just ask you one more, I am afraid I have interrupted you more than my share.

Does it concerned at all that Federal District Judge elected for life and not responsible for the people is engaging here in undertaking to run a school system, which another constitution of Michigan and every other State is vested in the School Board and the State Board of Education?

Mr. George T. Roumell, Jr.: Your Honor that is not what happened here.

Here is what happened here.

This Federal Judge, like any other judge in any other type of case heard the evidence and you had the Board of Education coming in and saying, we as trained educators are telling you that we cannot desegregate Detroit in this situation unless we have these components.

We have the State defendants coming in and saying, we agree on three of them.

We have the State defendants coming in and saying, we are submitting a joint report untested.

We agree.

Everybody said to the poor little judge.

Here it is, and then we have the experts from the plaintiffs.

Two men, who have spent their lives, their professional life desegregating, said, yes, Your Honor in order to overcome the obstacle the desegregation.

You must have these educational components.

Now, Mr. Justice Powell, this is what happened.

This did not come from the minds of Judge DeMascio.

He did not thought of us, it came from the minds of every person that was in that courtroom, every report.

He had no contrary evidence.

It had no difference on psychiatrist in an accident case saying, yes, that person says, a trauma as a result of this accident, and there must be a remedy.

It is the same principle that happened here in the Detroit case.

Justice Lewis F. Powell: May I go back on my own way and ask you one more question?

Do these same witnesses present the same testimony before the Board of Education in the City of Detroit, and if so, what was the Board response, what did it?

What did it say in its role as the elected representatives of the people to provide a quality education for the City of Detroit?

Mr. George T. Roumell, Jr.: Your Honor, I take the issue with the question of quality education.

I called it Restoration.

Your Honor, we are not teaching French cooking, Home Economics or a Bible as a literature, we are restoring children and we are trying to overcome the obstacles to segregation.

Here is what happened.

One of these case was remanded.

The Detroit Board utilizing a number of people including expert from the University of Michigan, expert from Michigan State, expert from Wayne State University developed a plan.

And it was the unanimous view of the Detroit Board that they should present to the District Court as part of the plan of desegregation as another tool just as much as zoning and busing as another tool to desegregate Detroit, then make it work now.

And that is what we are talking about here, Your Honor, and that is what the Detroit Board did.

And it was voted on, and the vote was unanimous.

Chief Justice Warren E. Burger: Let me go back to the question I put to the Attorney General.

I have put to him the question, if there were a finding by the District Court that the language difficulties of these negro students was way below far, it is both in speech and in reading and the finding was made to that effect specifically.

And a further finding that it was necessary to engage in these remedial components in order to balance that out, I thought he said, yes, if there had been such a finding that would be s different case from the one here and then I put to him the question, is not the approval by the district courts of the plan submitted by the Board of Education, not conceived by the District Judge but by the Board of Education, is not his approval the equivalent of a finding on that score.

And I think he took issue there and said, no, he did not think that was specific enough.

What would you have to say about the --

Mr. George T. Roumell, Jr.: Five words, Your Honor.

It was the finding, and may I respectfully say to the Chief Justice, and the Court, Pages 18 to 34 of our brief set forth those specific findingsaAnd may I point out to the Court that after we made our presentation the District Judge said, go back.

Work with this sake and whittle it down and this thing has been refined, it gone through a very refined position with the State participating at all levels.

They did not like it, they could have filed motions.

They could have brought it to the attention to the Court.

Unknown Speaker: Well, Mr. Roumell, isn’t the real dispute here not between the School Board and the District Court, you are really allying with the District Court.

It is between the School Board of a District Court on the one hand and the State on the other not over the nature of the remedy so much as to the fact that the District Court has ordered the State to pay unappropriated funds that it might not have chosen to pay to Detroit for it.

Mr. George T. Roumell, Jr.: Well, the District Court did not order the State to pay unappropriate fund.

What they ordered the State as one of the two joint wrongdoers.

They were wrongdoers.

To put in these programs into effect and they did not give a blank check.

The only order that is before this Court is the order to do that and the representation by the Detroit Board undisputed by the State defendants that it would cost $11.6 million and the State was asked to pay less than $25 a child.

Now, frankly if the State wanted to do the evaluation of the test, if they wanted to send in the remedial teachers, if they wanted to send in the counseling help that we needed, and put on the in-service training, they would have been welcomed to do it?

But they did not choose to that.

They were only ordered just like this Court as ordered State to prepare a transcript for indigents and criminal matters that is all they were ordered to do?

This is not a money judgment, and there are wrongdoers.

Unknown Speaker: You say it is not the equivalent of a money --

Mr. George T. Roumell, Jr.: Absolutely not.

Nobody would order to pay every child $200 because of these violations?

Unknown Speaker: Well, how about an order to pay the Detroit School Board a certain amount of money in order to assist it in implementing this program?

Mr. George T. Roumell, Jr.: Well, he had another choice they could have just put the program in, if they wanted to, but I do not call that as a money judgment.

There is no difference in ordering a State to provide an indigent defendant, a transcript or a legal consult, it’s no different.

You have to meet the constitutional remedy, nobody, nobody as you serve the authority of the State or the Detroit Board in running an educational system.

All the District Court said, if you are going to run an educational system run at constitution and the $75 million the alleged expansion of programs, that is not true.

We are not expanding the existing programs.

We are establishing new program to restore, to overcome the obstacle, the desegregation in Detroit.

This is a Detroit case.

What may happen in other cities, unfortunately, I do not know the record in those cities, thank you very much.

Chief Justice Warren E. Burger: We will hear from your colleague now Mr. Jones.

Argument of Nathaniel R. Jones

Mr. Jones: Thank you Mr. Chief Justice, and may it please the Court.

The respondents, Ronald Bradley urge that the judgment of the Court of Appeals be affirmed.

Before sending forth the reasons for urging that affirmants, I should like to dispose off two assertions that have been repeated in the briefs and in argument here by the State petitioners.

First, that the Detroit school system is now unitary and second, that the respondents have been in our oppose to educational adjuncts as part of a desegregation plan.

Let me first observe that the Detroit school system is not unitary.

The sixth circuit reversed in part and remanded the pupil reassignment portion of the opinion, in so far as it left untouched three regions in the Detroit school system that were contained over 100 schools that were all black.

Sixth Circuit said that this situation is intolerable, they recognize it is a difficult problem, but the District Court would have to deal with this problem, it could not leave those schools with these 100 black schools with their students located in the heart of the section of Detroit, which represented the very essence of the violation to go untouched.

Secondly, it totally misrepresents the respondent’s position to assert, that respondent’s have been opposed to these educational adjuncts.

It is necessary to I think understand the dynamics of the remand proceedings to have a correct understanding as to what took place.

The District Court had a pre-occupation with the cart rather than the horse.

There was undo attention we felt at that time being placed upon the educational adjuncts and ignoring of the primary element of a remedy which was the desegregation.

These are adjuncts, not the primary element of relief and we had to continue to refocus the Court’s attention and the attention of all the parties on the fact that this was a Brown violation and the essential remedy had to be pupil reassignment, elimination of the discrimination of the segregation.

And secondly, as an ancillary matter we had to deal with curing the effects, the lingering effects of that primary discrimination in the primary of segregation.

The State petitioners take one line out of the cross examination response of one of our experts, Dr. Foster, and escalate that to our primary position.

I think it is necessary for us to set that record straight.

It will be preposterous, be ludicrous, absurd, hypocritical, and a reflection of the continued concern we have had for the evils of segregation that was addressed in Brown for the respondents to be challenging the inclusion of educational components in a desegregation plan.

Our concern was in saying that the cart followed the horse.

Justice Potter Stewart: Mr. Jones, have other courts in devising a remedy for an unconstitutionally segregated public school system, have other courts included in the remedy these educational adjuncts or is this case unique?

Mr. Jones: This is not unique Mr. Justice Stewart, this is not unique.

This is now the time, in fact the HEW as a part of its desegregation thrust authorizes and puts in place educational components.

Congress through its legislative enactments has recognized its notional policy.

The importance of including educational adjuncts as a part of a desegregation plan for the purpose of overcoming the intangible and the enormous effects of the evils of segregation.

So there is nothing unique about this.

Unknown Speaker: Has HEW not furnished some expert assistance and equipment in the remedial speech area and remedial reading both, in some of these cases not necessary.

Mr. Jones: Not necessary but when call upon, they have done it when applications are made, HEW has the respondent.

There are a number of --

Unknown Speaker: As a remedy for unconstitutional segregation?

Mr. Jones: Not as a primary remedy.

Unknown Speaker: That’s what I am talking about.

Mr. Jones: No, no.

Unknown Speaker: Of course I know about all these programs of remedial reading --

Mr. Jones: Merely as ancillary assistance to --

Unknown Speaker: Well, how about as a remedy for unconstitutional segregation.

Mr. Jones: No, not as a basic remedy.

Unknown Speaker: And how about Court decrees as a remedy for unconstitutional segregation?

Have there been many in which it required educational components?

Mr. Jones: Well, educational components are generally found to be necessary.

Unknown Speaker: Well, can you cite me some cases, because I have not been familiar with this until this case?

Mr. Jones: Yes, I think in the -- in fact in the State of Michigan, in the Kalamazoo case, educational components were made apart Swann. Included educational components as a part of the remedy, and this Court expressly approved it.

Unknown Speaker: Are we want to reaffirm here?

Mr. Jones: That is correct.

Unknown Speaker: I have these very components that were involved here?

Mr. Jones: That is correct.

Unknown Speaker: Reaffirmed in Swann.

Mr. Jones: That is correct and I think Your Honor, I like to call your attention to the brief filed by the Justice Department by the Solicitor General at page -- both at page 18 in the bottom paragraph in which the government recognizes that racial discrimination and the operation of schools often has a pervasive effect on the educational process, and on the hearts and minds of students.

And it goes on in note that the remedial decree should seek to alleviate these intangible effects, no less than to alleviate the assignment of students to race the identifiable schools.

Now on page 20 of the government brief, first paragraph.

The Solicitor General puts his finger on the number of problems here, the problem that the State of Michigan has and that is the confusion, which it has between goals and tools.

And certainly as the government contends, that an approach, the approach they suggest would unduly constrict the flexibility of a court charged with creating a decree that will eliminate all of the effects of the racial discrimination.

It goes on to note that Congress has provided in 20 U.S.C. 1703 that no state may deny equal educational opportunity by failing to take affirmative steps to remove the vestiges of discrimination.

And petitioners would deny district courts the tools needed to achieve that goal.

Unknown Speaker: What if the District Court here had ordered the precised educational components that it did, but declined to require the State to pay any money towards them?

Would the School Board and the individual plaintiffs have still supported the decree?

Mr. Jones: I cannot speak for the School Board and the State, Your Honor.

Unknown Speaker: How about the plaintiffs?

Mr. Jones: The plaintiffs would have, as we did, insist upon first instance the desegregation of the school.

Unknown Speaker: Say that the adjuncts were not enough in effect?

The plaintiffs would have continued to insist as you earlier mentioned, that the adjunct programs were not the essential of the decree, if the pupil that were reassigned by itself was not carried out.

Mr. Jones: Well, the plaintiffs will continue to insist that somebody, some agency of the State address these secondary problems that are part of the bringing about the creation of unitary systems.

In fact, we learn as we grow, and one of the lessons that has been learned through 23 years of litigation and efforts to desegregate school systems is that there are certain problems in connection with creating unitary system that have to be faced, and --

Unknown Speaker: Mr. Jones, may I interrupt just for a minute.

The question Mr. Justice Rehnquist was asking, I am looking at the Appendix that is filed to the opinion of the Court of Appeals, page 889(a).

This Appendix states that the financial impact of these orders, they are the orders of the District Court could easily destroy the educational program of the Detroit school system.

The financing of these components by the Detroit school system, would only mean a concomitant elimination of existing programs.

As I understand that that came from a brief filed by the Board of Detroit Education, that suggest to me that the city board had to have State assistance.

If you hadn’t had State assistance, this suggests that your program would have been destroyed.

What is your comment about that?

Mr. Jones: Your Honor, the concern of the plaintiffs.

Unknown Speaker: Is it plaintiff, the School Board or --

Mr. Jones: No, the School Board is the defendant.

Unknown Speaker: Yes, but this is the quotation as I understand it from the School Board brief before the Court of Appeals.

Mr. Jones: Well, I am, I am probably the one to comment on the brief of my adversary.

Unknown Speaker: Right, oh, yes.

Well, I will ask you this.

We are talking about it.

If your adversary was correct in saying that the Court order that added all of these ingredients into the educational program in Detroit would destroy the school system unless the State came to the relief.

Do you think the District Court has that power?

Mr. Jones: Well, I cannot accept the premise.

Unknown Speaker: Oh, you do not think the system would have been destroyed?

Mr. Jones: No, I do not.

That (Inaudible) us quite often, and I would not accept that premise.

But I think the Court clearly have the power.

Unknown Speaker: The power to destroy the school system.

Mr. Jones: No, not the power to destroy the school system.

The Court clearly have the power under Ex parte Young to issue an injunction to require agents, an agency of the State -- the State officials, to conform their future behavior and future conduct, to conform and comply with the commands of the Fourteenth Amendment.

Unknown Speaker: Now, does that require funds that were totally beyond the means of either the City or State to provide?

Mr. Jones: Well, I cannot accept that assumption.

I think Griffin v. Prince Georgia’s County speaks that question.

Unknown Speaker: I am not talking about desegregation, I am talking about the determining the content of educational program of a school system that is supported by money raised from taxpayers.

Mr. Jones: Your Honor, the Court was not determining the program of the Detroit school system.

The Court was faced with the problem of how do I bring about a conversion of an unconstitutional school system and the one that is constitutional.

He invited the parties to submit plans.

Plans were submitted by both the State, by the Detroit Board and the plaintiffs.

The State participated in that process and they reached the conclusion, and the Court adopted, and included in to an overall plan prepared by the Court, what in his judgment based upon record evidence would necessary to accomplish the legitimizing of that unconstitutional school system.

And that is what we are concerned with, what power did the Court have and I criticized him that the Court have that power.

Chief Justice Warren E. Burger: Mr. Jones, referring to that Appendix that Justice Powell had just read from.

That is attached to the opinion of the Sixth Circuit.

The authorship of the Appendix at least does not appear, is that something written by the Court by the Sixth Circuit or --

Mr. Jones: Detroit Board informed us Mr. Chief Justice about that.

Chief Justice Warren E. Burger: That was submitted by the Detroit Board through the Sixth Circuit?

Mr. Jones: That is correct.

Chief Justice Warren E. Burger: And the Sixth Circuit at least adopted it to the extent of attaching it as an appendix to it -- is it the text is an appendix to the opinion or is it --

Mr. Jones: I cannot explain the Sixth Circuit, Your Honor, I do not know.

Chief Justice Warren E. Burger: Was it there when the opinion came down, since you were in the case?

Mr. Jones: Yes it was.

Unknown Speaker: Top of Page 180(a) that Mr. Chief Justice is referring.

Chief Justice Warren E. Burger: Oh yes, they make a reference to it.

I just wanted to be sure of the authorship of it, because it seemed to be hanging in somewhat in midair in this form.

That does explain at the top of 180(a).

Thank you, Mr. Jones.

Mr. Jones: Very well, thank you Mr. Justice.

Chief Justice Warren E. Burger: Mr. Attorney General.

Rebuttal of Frank J. Kelley

Mr. Kelley: Mr. Chief Justice, I believe we will waive any rebuttal and thank the justices.

Chief Justice Warren E. Burger: Do you have questions?

Unknown Speaker: The only thing I would like to ask to Mr. Attorney General, I noticed that the government, page 21 of its brief, takes issue with a statement of yours at least they suggest in their Footnote 8, that you err in asserting that the Charlotte-Mecklenburg decree was limited to student assignments.

And they cite 318 F. Supp. 802 for the sentence in Swann that tells the District Court’s order included a requirement of in-service training of teachers, and the creation of Bi-Racial Advisory Committee to help the school system begin the process of desegregation.

Are you with the government right?

I have got the Federal Supp. 802 before me.

Mr. Kelley: Well, you are having me the slightest advantage.

We believe that the purpose of this case will rely on our brief.

Unknown Speaker: You do.

Unknown Speaker: Mr. Fischer, let me ask you a question related to my brother Brennan and that is, in the Swann v. Charlotte case, was the State of North Carolina ordered to pay any money to pay for those facilities so far as you know?

Mr. Kelley: I know, as a matter of fact they were not ordered to pay any money.

Unknown Speaker: And was the propriety of the remedy beyond the student reassignment an issue here in Swann v. Mecklenburg?

There is no mention -- there was no mention of anything --

Rebuttal of Nathaniel R. Jones

Mr. Jones: As I recall reading and memorizing that matter beyond pupil reassignment.

Unknown Speaker: Or any of that, Mr. Attorney General.

Unknown Speaker: This sort of thing is not noble, isn’t that?

The sorts of tools that we are talking about, these four things apparently are not noble in desegregation.

Mr. Jones: Well, certainly not, Michigan has pioneered many of them and we do though -- do them and we would like to do them, but we would like to do them within our constitution and within the framework of legislature and not have the lower court sitting in a position of a super school board when it is beyond the violation.

Thank you.

Chief Justice Warren E. Burger: It is too late to help you with the answer to that question that was put to you but once I was asked by Justice Black this similar question, I said sometimes Assistant Attorney Generals argued cases but they do not always prepare all of the papers themselves.

Mr. Jones: Well, you can always learn them I thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.