Court Opinion

     [||322ee775-b9d1-4e44-a6dc-036805055859||] HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

Rebecca E. HENRY et al, 

Plaintiffs-Appellants, 

Vv. 

CLARKSDALE MUNICIPAL SEPA- 
RATE SCHOOL DISTRICT et al., 

Defendants-Appellees. 

No. 76-1207. 

United States Court of Appeals, 
Fifth Circuit. 

Sept. 7, 1978. 

In school desegregation case, attor- 
neys for plaintiffs sought award of at- 
torney fees. The United States District 
Court for the Northern District of Mis- 
sissippi, William C. Keady, Chief Judge, 
determined that attorneys were not enti- 
tled to fees for efforts prior to July 1, 
1972, and appeal was taken. The Court 
of Appeals held that: (1) district court’s 
findings that defendants had not acted 
in an unreasonable and obdurately obsti- 
nate manner during course of desegrega- 
tion and that plaintiffs were therefore 
not due fees for litigation before July 1, 
1972 were not clearly erroneous; (2) sup- 
plemental motion filed many months af- 
ter all other issues had been decided and 
no appealable orders remained in case 
did not reopen entire litigation for pur- 
pose of allowing attorney fees under sec- 
tion of Education Amendments Act of 
1972, and (3) even if supplemental mo- 
tion reactivated whole case for purposes 
of such statute, plaintiffs were not enti- 
tled to fees for 1964 through 1969 period 
since assessment of such fees for such 
period would have unjust and unfair. 

Affirmed. 

Tjoflat, Circuit Judge, filed a dis- 
senting opinion. 

6857 

1. Schools and 

e=13(21) 

District court’s findings that defend- 

ants in school desegregation case had not 

acted in an unreasonable and obdurately 

obstinate manner during course of de- 

segregation and that plaintiffs were 

therefore not entitled to attorney fees 

for litigation prior to July 1, 1972 were 

not clearly erroneous. Fed.Rules Civ. 

Proc. rule 52, 28 U.S.C.A. 

School Districts 

2. Schools and 
e=13(20) 

Where, at time section of Education 

Amendments Act of 1972 was enacted, 

all definitive or substantive orders of 

federal courts for desegregating schools 

had been entered and were being com- 

plied with, there were no pending ap- 

peals of any sort, no motion had been 

filed for attorney fees which had not 

been disposed of, and only remaining dis- 

trict court order required that bus trans- 

portation be provided by school district, 

supplemental motion, filed many months 

after all other issues had been decided 

and no appealable orders remained, did 

not reopen entire litigation for purpose 

of allowing attorney fees under section 

of Act. Emergency School Aid Act, 

§ 718, 20 U.S.C.A. § 1617. 

3. Schools and 
e=13(20) 

Even if filing of supplemental mo- 

tion in school desegregation case re- 

opened entire litigation for purpose of 

allowing attorney fees under section of 

Education Amendments Act of 1972, 

plaintiffs were not entitled to fees for 

1964 through 1969 period since awarding 

of fees would have been unjust. Emer- 

gency School Aid Act, § 718, 20 U.S.C.A. 
§ 1617. 

School Districts 

School Districts 

Synopses, Syllabi and Key Number Classification 
COPYRIGHT © 1978, by WEST PUBLISHING CO. 

The Synopses, Syllabi and Key Number Classifi- 
cation constitute no part of the opinion of the court. 



6858 

Appeal from the United States Dis- 
trict Court for the Northern District of 
Mississippi. 

Before COLEMAN, TJOFLAT, 
FAY, Circuit Judges. 

PER CURIAM: 

This is the fifth time this case has 
been before the Court in some form.! In 
1964, the plaintiffs initially filed suit, 
seeking the elimination of racial segrega- 
tion in the Clarksdale Municipal Sepa- 
rate School District, being the first de- 
segregation case filed in the Northern 
District of Mississippi. The School Dis- 
trict proposed to eliminate school segre- 
gation by dividing the district into at- 
tendance zones. At the time, this was a 

unique proposal for a Mississippi school 
district, for most districts were urging 
the acceptance of “freedom of choice” 
plans. The first three appeals were con- 
cerned with substantive issues determin- 
ing the type desegregation plan to be 
implemented. In the fourth appeal we 
addressed the issue of providing bus 
transportation for children. Now, we 
are compelled to decide whether certain 
attorneys fees are due the plaintiffs. 

Throughout the early history of this 
litigation, the plaintiffs made no mention 
of attorneys fees. Further, no time rec- 
ords were kept of attorney hours ex- 
pended. The first request for fees was 
not tendered until the last appeal. We 

then ordered: 

[TThe district court upon the entry 
of a final order in this case, is directed 
to grant appellees’ request for reason- 
able attorneys’ fees incurred since July 

and 

1. Henry v. Clarksdale Municipal Separate 

School District, 5 Cir. 1969, 409 F.2d 682, cert. 

denied, 396 U.S. 940, 90 S.Ct. 375, 24 L.Ed.2d 

242 (Clarksdale 1); Henry v. Clarksdale Mu- 

nicipal Separate School District, 5 Cir. 1970, 

425 F.2d 698 (Clarksdale II); Henry v. Clarks- 

HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

1, 1972. The district court shall also 
grant a hearing to determine whether 
or not the appellants’ actions were 
carried out in an “unreasonable and 
obdurately obstinate” manner in the 
years preceding July 1, 1972, so as to 
entitle appellees to be awarded reason- 
able attorneys’ fees for services before 
that date. 

Henry v. Clarksdale Municipal Separate 
School District, 5 Cir. 1973, 480 F.2d 583, 
585-86 (Clarksdale IV). The District 
Court assessed fees for post-July 1, 1972, 
legal services, and those fees have been 
paid. 

[1] The plaintiffs argued that they 
are also entitled to fees for efforts prior 
to July 1, 1972, because the defendants 
had acted unreasonably and stubbornly 
throughout the entire litigation. The 
District Court [Judge Keady] disagreed. 
Rather, it found as a fact that the de- 
fendants had not acted in an “unreason- 
able and obdurately obstinate” manner 
during the course of desegregation. 
Such a finding of fact may be over- 
turned only if the record reveals that the 
finding was clearly erroneous. Rule 52, 
F.R.Civ.P. Our appraisal of the record 
shows that the District Court had ample 
reasons to support his finding. Thus no 
fees were due the plaintiffs for litigation 
before July 1, 1972, judged by the stan- 
dard established in our order reported at 
480 F.2d 585-86. 

[2] Plaintiffs urge, however, that at- 
torneys fees for services rendered during 
the entire litigation should be awarded 
pursuant to Section 718 of the Education 

dale Municipal Separate School District, 5 Cir. 

1970, 433 F.2d 387 (Clarksdale III); and Hen- 

ry v. Clarksdale Municipal Separate School 

District, 5 Cir. 1973, 480 F.2d 583 (Clarksdale 

IV). 



HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

Amendments Act of 1972, 20 U.S.C.A. 
§ 1617.2 Plaintiffs say that because the 
case was pending before the District 
Court at the time § 718 was passed, fees 

should be awarded retroactively to the 
beginning of the litigation. Bradley v. 
School Board of City of Richmond, 416 
U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 
(1974). 

At the time § 718 was enacted, all 

definitive or substantive orders of this 
Court and the District Court for desegre- 
gating the Clarksdale public schools as to 
students, faculty, staff, and services had 
been entered and were being complied 
with. There were no pending appeals of 
any sort. Moreover, when § 718 was 
enacted, no motion had been filed for 
attorneys fees which had not been dis- 
posed of, nor had such a claim ever been 
made. The only District Court order af- 
ter the passage of § 718 was to require 
that bus transportation be provided by 
the School District, pursuant to plain- 
tiffs’ motion. No active issues were 
present before the motion for bus trans- 
portation. The question presented to us 
is whether a supplemental motion, filed 
many months after all other issues had 
been decided and no appealable orders 
remained, reopens the entire litigation 
for the purpose of allowing attorneys 
fees under § 718. We believe that it 

does not. 

In Bradley v. School District of City of 
Richmond, supra, the Supreme Court 
held that § 718 was applicable to litiga- 
tion predating, but pending on appeal 

2. That statute provides: 

Upon the entry of a final order by a court 

of the United States against a local educa- 

tional agency, a state (or any agency there- 

of), or the United States (or any agency 

thereof), for failure to comply with any pro- 

vision of this chapter or for discrimination 

on the basis of race, color, or national origin 

in violation of Title VI of the Civil Rights 

6859 

on, the effective date of the statute un- 
less the award would cause “manifest 
injustice”. Thompson v. Madison County 
Board of Education, 5 Cir. 1974, 496 F.2d 
682, 690. The opinion further stated 
that the language of § 718 gives implicit 
support for applying it to all pending 
cases. Bradley v. School District of City 
of Richmond, supra, 416 U.S. at 716, 94 
S.Ct. at 2018. To apply § 718 retroac- 
tively, a case must have an “active” is- 
sue pending on the date of its enact- 
ment, see Rainey v. Jackson State Col- 
lege, 5 Cir. 1971, 551. F.24.672 676. 

Since most school cases involve relief 
of an injunctive nature, district courts 
will maintain jurisdiction long after de- 
termining the issues in controversy. 
“The ultimate approach to finality must 
be an individual and pragmatic one. 
Such a matter should be committed to 
the determination of the trial court.” 
Johnson v. Combs, 5 Cir. 1972, 471 F.2d 
84, 87. 

As we read it, the District Court held 

that the issues of the original desegrega- 
tion suit, filed in 1964, had been finally 
adjudicated before § 718 was passed. In 
other words, no active issue was pending. 

We believe that Bradley, correctly 
read, requires the existence of an issue 
actively pending in the District Court, or 
unsettled on appeal, when § 718 took 

effect if that legislation is to operate 
retroactively. 

The present motion for attorneys fees 
was not filed until January 10, 1975, fol- 

Act of 1964, or the Fourteenth Amendment 

to the Constitution of the United States, as 

they pertain to elementary and secondary 

education, the Court, in its discretion, upon 

a finding that the proceedings were neces- 

sary to bring about compliance, may allow 

the prevailing party, other than the United 

States, a reasonable attorney’s fee as part of 
the cost. 



6860 

lowed by a more formally constructed 
motion in October. This did not, in our 
opinion, reactivate the whole case, from 
the beginning, so as to justify retroac- 
tive application of § 718. 

[3] If, however, we are mistaken in 

this, there is yet another factor to con- 
sider. Judge Keady found that “it 
would be most unjust and inequitable to 
assess the Board with liability for legal 
services from 1964 to the Fifth Circuit’s 
initial ruling in 1969”. 

He further found, “We are not per- 
suaded that at this late date there is a 
reliable factual basis for allowing coun- 
sel fees for services remotely rendered”. 

He went on to say, “[IJt would be 
manifestly unjust to allow any sum for 
legal services asserted by Professor 
Bell”. 

He concluded, “Hence, we feel very 
strongly that in the 1964-69 period it 
would be improper to assess the school 
board with plaintiff’s counsel fees”. 

In and of itself, this disposes, correct- 
ly, we think, of any claim for attorneys’ 

fees prior to 1969. 

This leaves only the matter of fees, 
claimed by Mr. Leventhal, from 1969 to 
July 1, 1972. If such fees were allowa- 
ble, the Court found that they should be 
fixed at the sum of $8,500. He did not 

find that it would be unjust or inequita- 
ble to order the payment of this fee. Its 
denial rests upon the original premise, 
first discussed ante. It necessarily fol- 
lows that in any event the Clarksdale 
Municipal Separate School District 
should not be liable for more than $8,500 
and this sum would be due Mr. Leven- 

thal. 

Judge Keady’s resume of this litiga- 
tion, together with his reasoning that 
the plaintiffs were not entitled to attor- 
neys’ fees prior to 1972, deserve to be 

HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

annexed to this opinion, which will be 
done. 

The judgment of the District Court is 

AFFIRMED. 

TJOFLAT, Circuit Judge, dissenting: 

Because I believe the issue whether 
attorneys’ fees ought to be awarded for 
the years prior to July 1, 1972, to be 
foreclosed by our opinion in Clarksdale 
IV, 1 respectfully dissent. I can well 
understand the school district’s continued 
resistance to being taxed at this late 
date with attorneys’ fees all the way 
back to 1964, when this school case be- 
gan, but such a concern cannot deter us 
from enforcing the mandate of Clarks- 
dale IV. 

As is recounted in the majority opin- 
ion, the attorneys’ fees issue first sur- 
faced during the appellate consideration 
of Clarksdale IV. The Clarksdale IV 
panel, following the teaching of Johnson 
v. Combs, 471 F.2d 84 (5th Cir. 1972), 
cert. denied, 413 U.S. 922, 93 S.Ct. 3063, 
37 L.Ed.2d 1044 (1973), held that section 
718, 20 U.S.C. § 1617 (1976), did not 
sanction the award of fees generated be- 
fore the effective date of the section, 
July 1, 1972. Thus, in remanding the 
issue to the district court, the panel di- 
rected that it “grant appellees’ request 
for reasonable attorneys’ fees incurred 
since July 1, 1972.” Clarksdale IV, 480 
F.2d at 585. With respect to whether 
fees should be awarded for services ren- 
dered prior to that date, the district 
court was directed “to determine wheth- 
er or not the appellants’ actions in this 
lawsuit were carried out in an ‘unreason- 
able and obdurately obstinate’ manner in 
the years preceding July 1, 1972.” Id. at 
585-86. 

After the panel’s opinion in Clarksdale 
IV, but before the district court’s hear- 
ing on the attorneys’ fees issue, the Su- 



HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

preme Court handed down its decision in 
Bradley v. School Board of Richmond, 
416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 
476 (1974). Bradley explicitly rejected 
the approach this circuit followed in 
Johnson and Clarksdale IV ; section 718 

authorizes a district court to award fees 
incurred prior to July 1, 1972. 

In my judgment, the Clarksdale IV 
opinion clearly mandates the award of 
the attorneys’ fees for pre-July 1, 1972, 
services. Under section 718 the pre- 
sumption is that fees will be awarded to 
a successful plaintiff. See Northcross v. 
Board of Education of Memphis, 412 
U.S. 427, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 
48 (1973). The July 1, 1972, date used 
by the Clarksdale IV panel obviously 
was in reliance upon the then existing 
law of this circuit. 480 F.2d at 585. 
The Supreme Court’s supervening opin- 
ion in Bradley merely eliminates the re- 
quirement that a plaintiff show “unrea- 
sonable and obdurately obstinate” behav- 
ior on the part of the school board be- 
fore attorneys’ fees can be awarded. 
Under the doctrine of “law of the case,” 
we should not depart from the determi- 
nation made in the earlier appeal in this 
case that the plaintiffs ought to be 
awarded attorneys’ fees. See, e. g., Lin- 
coln National Life Insurance Co. v. 
Roosth, 306 F.2d 110 (5th Cir. 1962), cert. 
denied, 372 U.S. 912, 83 S.Ct. 726, 9 
L.Ed.2d 720 (1963). 

Even if we were to ignore the man- 
date of Clarksdale IV and the law of the 
case doctrine, I would disagree with the 
majority’s determination that the Clarks- 
dale case was not “pending” within the 
meaning of Bradley at the time of the 

1. See Bradley v. School Bd. of Richmond, 462 

F.2d 1058, 1061, 1069 (4th Cir. 1972) (en 

banc), aff’d by an equally divided court, 412 

U.S. 92,93 S.Ct. 1952, 36 L.Ed.2d 771 (1973). 

6861 

effective date of section 718. In Bradley 

a finding that the school district was 
unified prior to the effective date of sec- 
tion 7181 did not bar the application of 
the section to the attorneys’ fees award. 
As this court stated in Rainey v. Jackson 
State College, 551 F.2d 672, 676 (5th Cir. 
1977), 

In Bradley, the Court authorized an 
award of attorneys’ fees to plaintiffs 
in a school desegregation case under 
§ 718 of the Education Acts Amend- 

ments of 1972, 20 U.S.C. § 1617, even 

though (a) there were no pending or 
appealable orders in the case except 
for attorneys’ fees, and (b) § 718 had 
not been enacted until after initial 
submission of the case to the Court of 
Appeals. 

In my view, it follows that section 718 
controls the awarding of attorneys’ fees 
in a proceeding where the underlying de- 
segregation action itself has not come to 
a successful completion, that is, when 
the school district has not been adjudged 
unified. In that event, an award can be 
made for the entire course of a pending 
action upon the entry of a final order by 
the court. 

The majority, however, has found that 
the Clarksdale school desegregation liti- 
gation had, in effect, come to a halt pri- 
or to the statute’s enactment and the 
initial request for fees. After a review 
of the complex proceedings of this case, 
I disagree with the characterization 
placed upon them by the majority. I 
think it clear that the entire litigation 
was still active or “pending” when the 
attorneys’ fees were requested? As a 

2. The Supreme Court in Bradley recognized 

that many final orders may issue in the course 

of a particular school case. It thus allowed 

more than one fee award to be granted 

throughout the litigation. 94 S.Ct. at 2021-22. 



6862 

result, section 718 allows an award for 
fees incurred since the Clarksdale school 
litigation began. 

This court has made it abundantly 
clear in the past that a school system is 
not automatically desegregated when a 
constitutionally acceptable plan is adopt- 
ed and implemented. “If the journey 
from Brown to Swann and beyond has 
taught us anything, it is that integration 
does not occur merely when and because 
we say it should. The journey has been 
necessary because we have been con- 
cerned with conduct and action, not 
words.” Thompson v. Madison County 
Board of Education, 496 F.2d 682, 686-87 
(5th Cir. 1974) (citing Sparks v. Griffin, 
460 F.2d 433 (5th Cir. 1972)). To guar- 
antee that systems become unitary under 
acceptable plans, this court has required 
district courts to retain jurisdiction to 
receive periodic progress reports. E. g., 
Youngblood v. Board of Public Instruc- 
tion of Bay County, 448 F.2d 770 (5th 
Cir. 1971); Wright v. Board of Public 
Instruction of Alachua County, 445 F.2d 
1397 (5th Cir. 1971); United States v. 
Hinds County School Board, 433 F.2d 611 
(5th Cir. 1970). 

Such was the case in the Clarksdale 
litigation. An acceptable plan was final- 
ly adopted in 1970. This court expressly 
stated in Clarksdale III that “the district 
court may proceed to consider alterations 

The Court also recognized that in some cases 

it would “be undesirable to delay the imple- 

mentation of a desegregation plan in order to 

resolve the question of fees simultaneously.” 

Id. at 2022. This certainly does not mean, 

however, that attorneys must seek fees in a 

piecemeal fashion. Section 718 certainly al- 

lows them to wait until the conclusion of the 

case. 

3. On January 25, 1971, the district court or- 

dered that periodic reports on the continued 

effectiveness of the desegregation order be 

filed. The report of December 1, 1975, demon- 

strated that the situation is still far from ideal. 

Among the seven Clarksdale elementary 

HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

and amendments to [the plan], to the 
extent that they represent forward, not 
backward steps.” 433 F.2d 387, 392 (5th 
Cir. 1970). Supplemental relief was 
needed, however, for the plan to be ef- 
fective. 

Several orders were entered by the 
district court in the time between the 
issuance of the mandate in Clarksdale 
IIT and the filing of the motion that 
served as the basis of Clarksdale IV23 
The plaintiffs asserted their right to free 
transportation and prevailed in both the 
district court and on appeal in Clarksdale 
IV. See also Brewer v. School Board of 
Norfolk, 456 F.2d 943 (4th Cir.), cert. 
denied, 406 U.S. 933, 92 S.Ct. 1778, 32 
L.Ed.2d 136 (1972). Clarksdale IV also 
affirmed the district court’s denial of a 
request by the defendants that the de- 
segregation plan be altered to minimize 
the transportation requirements. The 
panel agreed with the district court that 
the defendants’ proposal would cause re- 
segregation. Therefore, it is clear that 
the supplemental relief sought by the 
plaintiffs was not a sham or ruse calcu- 
lated to reopen or “reactivate” the litiga- 
tion for counsel fee purposes. The opin- 
ion in Clarksdale IV demonstrated that 
this was still another step on the journey 
toward a unitary school system.4 

The Fourth Circuit Court of Appeals 
has been presented with a situation al- 

schools, 809% of the black children attended 

four schools in which only 8% of the white 

children are enrolled. On May 27, 1971, the 

plaintiffs obtained an order mandating faculty 

desegregation. On April 3, 1972, they success- 

fully urged the district court to restrain the 

school board from purchasing a certain parcel 

of land. 

4. This case, therefore, is unlike Scott v. Win- 

ston-Salem/Forsyth Cty. Bd. of Educ., 400 

F.Supp. 65 (M.D.N.C.1974), aff'd without opin- 

ion, 530 F.2d 969 (4th Cir. 1975), where the 

motion for attorneys’ fees was not attached to 

any continuing substantive litigation. We 



HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

most identical to that confronting us 
here. In Brewer v. School Board of Nor- 
folk, 456 F.2d 943 (4th Cir.), cert. denied, 
406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 
136 (1972), the plaintiffs attained free 
bus transportation for students needing 
it under a court-ordered desegregation 
plan. The Fourth Circuit utilized an eq- 
uitable theory to affirm an allowance of 
counsel fees generated on the transpor- 
tation issue. After remand the plaintiffs 
appealed from what they alleged to be 
an inadequate award. After the initial 
appellate decision, section 718 was enact- 
ed and Bradley was handed down. In 
the subsequent appeal, Brewer v. School 
Board of Norfolk, 500 F.2d 1129 (4th Cir. 
1974) (en banc), the Fourth Circuit re- 
manded again, stating, “As construed in 
Bradley, it now appears that § 718 pro- 
vides a vehicle for an award of fees for 
the plaintiffs’ attorneys for services ren- 
dered without limitation to what they 
did with respect to the issue of free 
transportation.” 500 F.2d at 1130. 

I further note that this case comes 
within the spirit of Bradley. The plain- 
tiffs here have “rendered substantial ser- 
vice both to the Board itself, by bringing 
it into compliance with its constitutional 
mandate, and to the community at large 
by securing for it the benefits assumed 
to flow from a nondiscriminatory educa- 
tional system.” 94 S.Ct. at 2019-20. 

For the foregoing reasons, I must dis- 
sent. 

APPENDIX 

THE COURT: 

This case is today before the Court on 
remand from the Court of Appeals di- 

have indicated in Davis v. Bd. of School 

Comm'rs, 526 F.2d 865, 869 (5th Cir. 1976), 

that even school cases must eventually end. I 

note that in Davis, although the litigation of 

student and faculty desegregation issues ended 

6863 

recting the district court to grant the 

request of the private plaintiffs’ counsel 

for reasonable attorney fees incurred 
since July 1, 1972, and also to determine 

whether the school board’s actions, in the 
conduct of the lawsuit prior to July 1, 

1972, were unreasonable and obdurately 

obstinate, and, if so, also to make an 

award for legal services rendered during 

that period of time. Affidavits and 

counter-affidavits addressing the issues 

have been submitted. In addition, the 

Court is familiar with its own record and 
files in the case. 

The evidence indicates that from the 

beginning of this school desegregation 

suit, in 1964, private plaintiffs were rep- 

resented by various attorneys associated 

with the NAACP Legal Defense & Edu- 

cational Fund. The same attorneys had 

far-ranging professional responsibilities 

in connection with public school desegre- 
gation suits in many cities and towns, in 

both Mississippi and elsewhere in the 

South. Derrick A. Bell, Jr., now a pro- 
fessor of law at Harvard Law School, 
along with other counsel, assisted in the 

original prosecution of the Clarksdale 
school case; in June 1964 he appeared 

before District Judge Claude F. Clayton 
and obtained a preliminary injunction re- 

quiring the school board’s submission of 

a student assignment plan without re- 
gard to race. In response to that order, 

the board produced a zoning attendance 
plan which, after some alteration, re- 

ceived the Court’s approval, and was or- 
dered to be placed into effect. It is wor- 

thy of note that Clarksdale eschewed a 

plan based upon freedom of choice, 

with the entry of a consent decree in 1971, 

§ 718 was still applied with respect to the 

attorneys’ fees issue. Moreover, the Clarks- 

dale litigation had not ended when the motion 
for attorneys’ fees was filed. 



6864 

though that method was then prevalent 
and judicially countenanced. Instead, 
the board opted for city-wide zoning 
plan applicable to all students in all 
twelve grades. The plaintiffs, dissatis- 
fied with the plan approved by the dis- 
trict court, took an appeal to the Fifth 
Circuit. 

Thereafter, the Court of Appeals held 
the case for about three years before 
rendering a decision in March 1969. 
Henry v. Clarksdale Municipal Separate 
School District, 5 Cir., 409 F.2d 682 
(Clarksdale I). In this decision the 
Court held that a finding by the district 
court that the school board had acted in 
good faith in drawing attendance lines 
on a nonracial basis did not discharge 
the board’s affirmative duty to liquidate 
the dual system of schools. Finding that 
the board’s plan to disestablish one-race 
schools had failed, the Fifth Circuit re- 
manded the case “for a hearing to deter- 
mine the effectiveness of the Clarksdale 
plan in today’s factual setting and in the 
light of Green [v. School Board of New 
Kent County, 391 U.S. 430, 88 S.Ct. 1689, 
20 L.Ed.2d 716 (1968)] and other deci- 
sions of the Supreme Court and of this 
Court.” The Fifth Circuit observed that 
a long time had elapsed since the trial of 
the case in the district court, partly be- 
cause of the Fifth Circuit's delaying its 
decision in order “to obtain further en- 
lightenment from the Supreme Court on 
the subject of attendance zones plans as 
against freedom of choice plans.” To 
comport with Green’s requirements, the 
Fifth Circuit was of the opinion that the 
school board should consider re-drawing 
attendance-zone boundaries, incorporat- 
ing a majority-to-minority transfer pro- 
vision in its plan, closing all-Negro 
schools, consolidating and pairing 
schools, rotating principals and taking 
other measures to overcome the defects 
of the plan. The case was remanded to 

HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

the district court for entry of a judg- 

ment consistent with that opinion. 

The school board sought certiorari 

from the Supreme Court of the United 

States, which was denied on November 

24, 1969. 396 U.S. 940, 90 S.Ct. 375, 24 
L.Ed.2d 242. The district court then di- 

rected the school board to confer with 
Department of HEW regarding the 

adoption of a new desegregation plan. 

In December 1969 HEW representatives 

came to Clarksdale, made a survey of 

the schools and conferred with local 
school officials. The local school officials 
sought, without success, to interest HEW 

in a desegregation plan based upon geo- 

graphic zoning designed to promote 
greater desegregation. These confer- 

ences between HEW and the local school 
officials proved to be abortive. There- 
after HEW filed a report with the Court 

recommending the consolidation of the 
two senior high schools into one senior 

high school, the consolidation of the 
three junior high schools into one junior 

high school, the pairing of five elementa- 

ry grades on varying grade levels and 
leaving unaffected one six-grade elemen- 
tary school, Booker T. Washington. The 

school board objected to the HEW plan 

in its entirety, while plaintiffs objected 

on the ground that Booker T. Wash- 
ington was allowed to remain as an all- 
black school. The school board main- 
tained the position that its zoning plan 

had been based upon genuine geographic 

zoning without right of transfer and le- 
gally resulted in a unitary school system, 

and that the ensuing segregation was de 
facto, and not de jure, segregation 

caused by refusal of white people to at- 
tend the schools to which they were as- 
signed, a result the board insisted was 

wholly beyond its control and which 
should not affect the validity of its plan. 



HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

On January 9, 1970, the district court 
conducted an evidentiary hearing on the 
adequacy of the school board’s zoning 
plan, the HEW plan and objections 
thereto. Disapproving both the board’s 
plan and the HEW plan, the Court or- 
dered consolidation of the upper five 
grades, effective for the next semester 
commencing in February 1970. While 
accepting HEW’s concept as a single sen- 
ior high school and a single junior high 
school, the Court rejected the HEW pro- 
posals for making a four-grade senior 
high school out of the formerly all-black 
Higgins Junior-Senior High School and 
the nearby Oliver Elementary School. 
Instead, the Court structured a three- 
grade high school to utilize the buildings 
occupied by the formerly all-white 
Clarksdale junior and senior high schools. 
Contrary to HEW’s recommendations, 
the Court, provisionally, structured a 
two-grade junior high school (eight and 
nine) to occupy the formerly black Hig- 
gins Junior and Senior High School, in- 
cluding the Oliver Elementary building. 
HEW recommendations for pairing the 
elementary schools were rejected; and 
the Court, while withholding an immedi- 
ate order with respect to altering the 
elementary schools, appointed a special 
master to confer with a biracial commit- 
tee and make a report of a new desegre- 
gation plan, to become effective in Sep- 
tember 1970. The order of reference, 
entered January 10, 1970, directed the 
filing of a report by the special master 
not later than March 10, 1970. 

Both the private plaintiffs and the 
school board took separate appeals from 
the district court’s order of January 10. 
On April 15, the Fifth Circuit, in Henry 
v. Clarksdale Municipal Separate School 
District, 425 F.2d 698 (Clarksdale II) en- 
tered an order deferring disposition of 
plaintiffs’ motion for summary reversal 
and of the appeal and cross-appeal by 

6865 

the school board and directed the district 
court, within thirty days to (1) conduct a 
hearing upon the special master’s report 
and exceptions; (2) make and file find- 
ings of fact and conclusions of law; and 
(3) file supplemental record in the Court 
of Appeals. During the limited remand, 
jurisdiction of the appeal and cross-ap- 
peal was expressly retained by the Fifth 
Circuit. 

The master’s report, when filed, called 
for a city-wide three-grade high school, 
utilizing the above mentioned buildings, 
a city-wide two-grade high school as- 
signed to the Higgins campus, a city- 
wide seventh-grade school assigned to 
the Riverton Intermediate School and 
seven elementary schools retained to 
serve the first six grades, with pupils to 
attend schools nearest their residence re- 
gardless of zoning, present or previous 
racial enrollment of the school. The 
master’s report was objected to by the 
plaintiffs, as well as the school board. 
Plaintiffs objected on the ground that 
the master’s plan failed to desegregate 
the elementary schools and departed 
from the secondary school organization 
which HEW had recommended. The 
school board objected because the mas- 
ter’s plan ignored existing geographical 
zones providing for two senior high 
school districts, three junior high school 
districts and four elementary school dis- 
tricts with sub-districts. By order dated 
May 8, 1970, the district court approved 
the special master’s plan. At every 
stage all points were strenuously con- 
tested by the parties, both in this court 
and on appeal. The Fifth Circuit, by a 
divided panel, in Henry v. Clarksdale 
Municipal Separate School District, 433 
F.2d 387 (1970) (Clarksdale III), reversed 
the district court’s order with respect to 
the elementary schools as clearly errone- 
ous and mandated that HEW’s elementa- 



6866 

ry school plan be placed into effect as of 
September 1970. The appellate court 
emphasized that “with this plan in oper- 
ation, the district court may proceed to 
consider alternatives and amendments to 
it, to the extent that they represent for- 
ward, not backward steps.” The district 
court’s order respecting the upper six 
grades was affirmed. The cross-appeal 
of the school board from the Court’s 
January 10, 1970, order was rejected. 
The HEW elementary school plan was 
immediately placed into effect by order 

of the district court. 

In subsequent hearings, the district 
court ordered that the final plan of pupil 
assignment, beginning for the years 
1971-72, and thereafter, would be as 
contained in its order of May 27, 1971, 
an order which was entered upon the 
plaintiffs’ request for supplemental re- 
lief, which included specific rations for 
biracial facilities at each school. The de- 
fendant school board, having lost all of 
its previous legal positions, did not object 
and acceded to the order. Thereafter, 
save for minor modifications not perti- 
nent to the overall school operation, the 
Clarksdale school case did not remain ac- 
tive. Save in one particular, all of the 
district court’s orders were carried out 
without further appeal by either side. 

The sole exception to the entire litiga- 
tion ending prior to July 1, 1972, arose in 
the context of a motion filed by the pri- 
vate plaintiffs to require the district to 
provide bus transportation for certain el- 
ementary students. This motion, which 
was filed on August 1, 1972, sought an 
order requiring the school board to 
transport all elementary students as- 
signed to schools more than one mile 
from their residence. Defendants resist- 
ed the motion, arguing that bus trans- 
portation was not required under the cir- 
cumstances. On August 25, the district 

HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

court entered an order upholding the 
right of the plaintiffs to obtain bus 
transportation. The defendant board 
thereafter sought to re-assign its stu- 
dents in such manner as to minimize, if 
not eliminate, the necessity for busing, 
and this motion was rejected by the 
Court on October 3. 

The school board then appealed to the 
Fifth Circuit, contending that late court 
decision had altered school busing re- 
quirements which had been established 
in the litigation affecting the Greenwood 
Municipal Separate School District. It 
was on that appeal, Henry v. Clarksdale 
Municipal Separate School District, 480 
F.2d 583 (6 Cir. 1972) (Clarksdale IV), 
where the district court’s order requiring 
bus transportation was affirmed, that 
the issue of attorney fees arose for the 
first time. Counsel for private plaintiffs 
sought an award of fees in the appellate 
court, although no request had ever been 
lodged with the district court. Whether 
a claim for attorney fees would have 
been made had the school board not seen 
fit to prosecute its unsuccessful appeal 
to the Fifth Circuit is, of course, a mat- 
ter of speculation. 

From the foregoing statement of the 
history of the Clarksdale school case, it 
may be readily observed that this litiga- 
tion has been not only protracted but 
hard fought by both sides. Plaintiffs 
now seek to recover attorney fees in the 
sum of $30,260 as the reasonable value 

of legal services rendered to private 
plaintiffs from the inception of the liti- 
gation. Derrick A. Bell, Jr., who served 

as plaintiffs’ counsel until April 1966, 
has submitted an affidavit estimating 
that during the period of his employ- 
ment he devoted to the case at least 442 
hours of service, for which a claim is 
made in the amount of $17,680 based on 

From May a charge of $40 per hour. 



HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

1969 to the present date, Melvyn R. Lev- 
enthal has been counsel for plaintiff. 
This attorney has submitted an itemized 
statement of $12,580 for his services, cal- 
culated at 252 hours of legal work billed 
at $40 per hour and 100 additional hours 

spent in conference and correspondence 
at $25 per hour. The Leventhal affida- 
vit establishes that no more than 33 
hours legal work have been expended on 
behalf of plaintiffs since the filing of the 
August 1, 1972, motion for student bus 
transportation. 

Since the issue before the Court today 
is the determination of a counsel fee al- 
lowable to private plaintiffs, the primary 
question is to what extent the claims for 
attorney fees are authorized by, and 
come within the terms of, Section 718 of 
the Education Amendment Act of 1972, 
which was adopted June 23, 1972. That 
statute which now appears as 20 U.S.C,, 
Section 1617, provides: 

“Upon the entry of a final order by a 
court of the United States against a 
local educational agency, a state (or any 
agency thereof), or the United States (or 
any agency thereof), for failure to com- 
ply with any provision of this chapter or 
for discrimination on the basis of race, 
color, or national origin in violation of 
Title VI of the Civil Rights Act of 1964, 
or the Fourteenth Amendment to the 

Constitution of the United States, as 
they pertain to elementary and second- 
ary education, the Court, in its discre- 
tion, upon a finding that the proceedings 
were necessary to bring about compli- 
ance, may allow the prevailing party, 
other than the United States, a reasona- 
ble attorney’s fee as part of the cost.” 

Although not emphasized, it is sug- 
gested by defense counsel that the Elev- 
enth Amendment may bar an award of 
attorney fees against the Board of Trus- 
tees of Clarksdale Municipal School Dis- 

6867 

trict, since it is an arm of the State of 

Mississippi. We summarily reject the 
Eleventh Amendment argument as here 
applicable. In our view, this municipal 
school district is not part of the state, 
for Eleventh Amendment purposes; it is 
no more than a local educational agency. 
The district’s trustees are appointed by 
the governing authorities of the City of 
Clarksdale; the district has local taxing 

power, it may enter into contracts, sue 
and be sued, issue bonds and incur in- 
debtedness to buy land, erect school 
buildings and make other capital im- 
provements. True enough, the board re- 
ceives from the state a substantial por- 
tion of its operating expenses to pay 
teachers’ salaries and administrative 
costs, but it has lawful power to, and 
very probably does, supplement state 
funds by local taxation levied upon prop- 
erty situated within the separate school 
district. Under Mississippi law, a munic- 
ipal separate school district cannot claim 
Eleventh Amendment immunity, or as- 
sert that any money judgment rendered 
against it is, in effect, a charge upon the 
state’s treasury. That preliminary argu- 
ment is therefore rejected. 

The serious legal issue in the case is 
whether plaintiffs’ claim for attorney 
fees from the beginning of the Clarks- 
dale school litigation through the last ap- 
peal to the Fifth Circuit in June 1973, a 
period of nine years, does, in its entirety, 
come within the provisions of this Con- 
gressional Act. The statute states that 
an award of counsel fees is to be made 
by the Court, in its discretion, where the 

judicial proceedings were necessary to 
bring about compliance with the Four- 
teenth Amendment because of discrimi- 
nation on the basis of race or color. 
Certainly, plaintiffs are to be regarded 
as the prevailing party, and the suit was 
necessary to bring about compliance 



6868 

with the Fourteenth Amendment in pub- 
lic school education. As mandated by 
the Fifth Circuit, all legal services ren- 
dered from and after June 23, 1972, are 
certainly compensable under Section 
1617. There are no circumstances which 
make such an allowance inequitable or 
improper. The difficulty with this stat- 
ute is whether it should be construed to 
authorize payment of fees for services 
rendered long prior to its passage, in 
view of the particular circumstances 

here present. 

At the time Section 1617 was enacted, 
all definitive or substantive orders of 
this Court and of the Fifth Circuit for 
desegregating the Clarksdale public 
schools as to students, faculty, staff and 

services had been entered, were being 
complied with, and there were pending 
no appeals of any sort. Moreover, at 
that time there had been filed no motion 
for attorney fees which was undisposed 
of, nor had a claim been made. The only 
development after June 23, 1972, was the 

filing by plaintiffs of the motion to ob- 
tain bus transportation rights which 
were ordered over the board’s objections. 
Does the filing of a motion of that char- 
acter, where all other aspects of the 
school litigation have been previously de- 
termined by final, unappealed orders, 
have the effect of re-activating the en- 
tire litigation for purposes of allowance 
of counsel fees under Section 16177 
Counsel for plaintiffs argue that it does, 
relying upon the holding of the Supreme 
Court in Bradley v. Richmond School 
Board, 416 U.S. 696, 94 S.Ct. 2006, 40 
L.Ed.2d 476. Plaintiffs point out that in 
the Bradley case, the Fifth Circuit's in- 
terpretation that Section 1617 was not, 
in any case, retroactive was expressly 

rejected. 

Defendants argue that the Bradley 

case should be limited by its facts, that 

HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

in Bradley the question of allowing a fee 
was on appeal at the time of the passage 
of Section 1617, so that it was in direct 
review, and not adding to or making an 
attack upon a final judgment theretofore 
entered. Defendants urge that because 
nothing was pending in this case when 
Section 1617 was adopted, Bradley 
should not apply. 

The parties present us with an inter- 
esting question of statutory construction. 
The Court is unwilling to subscribe to 
the proposition that Congress intended 
that so long as a school desegregation 
case remained pending on the docket of 
a federal district court plaintiffs could, 
almost at will, secure an allowance of all 

previously-incurred attorney fees, by 
merely filing a motion in the cause. Un- 
der such an interpretation, there would 
be no bar to school districts which have 
been successfully sued, in Mississippi or 
elsewhere in the nation, in public school 
desegregation cases, from being held lia- 
ble for counsel fees incurred by plain- 
tiffs, irrespective of when the case was 
substantially concluded. 

In Bradley, we do not believe that the 
Supreme Court favored a broad interpre- 
tation of this statute so as to render 
public educational institutions liable for 
attorney fees for litigation long since 
concluded. If the opinion should not be 
entirely clear on this point, it is certain 
the court was merely considering rights 
of the parties in the setting of a direct 
appeal and where, in the process of ap- 
peal, a law change occurred which was 
immediately applicable to the appeal. 
Though unwilling to conclude that Brad- 
ley is limited to its particular facts, we 
do believe that Bradley, properly read, 
does require the existence of an action 
unresolved in the district court or unset- 
tled on appeal when Section 1617 took 
effect, in order for it to operate retroac- 
tively. 



HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

Accepting that construction of the 
statute, this Court rules that no right 
was conferred by Section 1617 upon 
which to base an award for attorney fees 
incurred prior to its passage under the 
facts of this case, since all substantive 
school orders had been previously en- 
tered, were being complied with, and no 
appeals remained. 

The post-July 1, 1972, motion for stu- 
dent transportation does not have such 
significance, in our opinion, as to re-acti- 
vate the whole case for the purpose of 
attorney fee determination. If that mo- 
tion were accorded such effect, it would 
be a very simple matter for plaintiffs to 
re-activate  post-school desegregation 
cases on the filing of motions relating to 
the unlawful discharge of a single teach- 
er, or a bus driver, or racially-motivated 
discharge of students in disciplinary ac- 
tions. Such incidents have allegedly 
happened at one time or another in the 
Clarksdale school operation, but it would 
be incredulous to hold that should a 
school board impermissibly discharge a 
single teacher or expel or otherwise dis- 
cipline a student, who successfully 
sought relief in the school desegregation 
case, such proceedings impose upon the 
board liability for attorney fees under 
Section 1617 extending back many years 
to the commencement of the public 
school desegregation case. It should be 
noted that district courts are not allowed 
to remove school desegregation cases 
from the docket upon the entry of final 
orders but they must remain thereon un- 
til unitary schools are achieved. 

I have considered how the Fifth Cir- 
cuit construed Bradley, in Thompson v. 
Madison County Board of Education, 496 
F.2d 682, a case decided June 20, 1974. 
This was a black schoolteacher-firing 
case that had been twice appealed to the 
Fifth Circuit. The district judge disal- 

6869 

lowed attorney fees at every stage, and 
the schoolteacher’s counsel contended 
that Section 1617 authorized the award 
of counsel fees, retroactively to the com- 
mencement of the teacher litigation. 
That position was upheld. The Fifth 
Circuit made this comment about the 
Bradley case: 

“The Supreme Court on May 15, 1974, 
expressly rejected this holding [Johnson 
v. Combs, 5 Cir., 471 F.2d 84] by conclud- 
ing that the statute is applicable to liti- 
gation predating, but pending on appeal 
on, the effective date of the statute un- 
less the award would cause ‘manifest in- 
justice.” (Emphasis added) 

In Thompson, the Fifth Circuit went 
on to say: 

“Since the school board has failed to 
cite any special circumstances, and since 
it is undisputed that these proceedings 
were necessary to bring about compli- 
ance with the law, the district court, 
upon the entry of a final order in this 
case, is directed to grant appellants’ re- 
quest for reasonable attorney’s fees for 
services rendered from the first district 
court hearing through this appeal.” 

At first glance, Thompson would ap- 
pear to afford some comfort to plain- 
tiffs’ position. Yet, it is plain that 
Thompson was, like Bradley, continuing 
litigation and before the Court of Ap- 
peals twice for resolution, and thus was 
a case pending at the time of the pas- 
sage of Section 1617. It is this aspect of 
the case which was dispositive of the 
issue. 

Moving on, the Court next addresses 
the issue of whether there should be an 
allowance of attorney fees under a judi- 
cial standard wholly apart from the Act 
of Congress. We were mandated by the 
Fifth Circuit, in Clarksdale IV, to deter- 
mine if the school board did act in an 
unreasonable and obdurately obstinate 



6870 

manner in the years preceding July 1, 
1972, so as to entitle plaintiffs to an 
award of counsel fees. Of course, this 
standard continues as an exception to 
the general rule, as recently canvassed 
by the Supreme Court in the Alyeska 
Pipeline case, that litigants are not re- 
quired to pay attorney fees incurred by 
adversary parties. 

For services rendered prior to 1969, 
the Court has no difficulty whatever in 
concluding no allowance should be made. 
During that period the actions of the 
school board were free of any possible 
taint of obstinate non-compliance, and it 
would be most unjust and inequitable to 
assess the board with liability for legal 
services from 1964 to the Fifth Circuits 
initial ruling in 1969. The Clarksdale 
case was the first desegregation suit 
filed in the Northern District of Missis- 
sippi; the board saw fit to adopt a 
unique attendance zone plan. According 
to the way defense counsel and many 
courts then understood the law to be, a 
zoning plan based upon compact, contig- 
uous boundaries, irrespective of race, 
was not objectionable. Certainly, 
Clarksdale’s plan was unusual, since 
most districts were resorting to freedom 
of choice in efforts to comply with 
Brown’s mandate. The board’s zoning 
plan was approved by District Judge 
Clayton after a full hearing. The case 
was admittedly one of legal difficulty, 
because it remained almost three years 
before the Court of Appeals, and the 
Court of Appeals frankly conceded that 
it had been waiting for guidance before 
acting. Although the Supreme Court 
had no occasion to address the issue, 
many lower court decisions were to the 
effect that a benign attendance zone 
plan was constitutionally acceptable if 
devised without racial overtones or moti- 
vation. When the specific guidance 
from the Supreme Court was not forth- 

HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

coming, the Fifth Circuit, influenced by 
Green’s affirmative requirements for de- 

segregation, decided to act in March 
1969. As has been pointed out, the Fifth 

Circuit did not directly repudiate the 
Clarksdale plan, but sent the case back 
to the district court for re-examination 

in the light of changed law and the fact 
that the plan was not producing substan- 

tial student desegregation. Until that 
date, the school board had readily com- 

plied with all court orders, and its ac- 
tions had been upheld, and its legal posi- 

tions had been upheld. 

Additionally, the Court finds there 

was no expectation by plaintiffs of com- 
pensation for legal services rendered in 
this early period of time by Professor 
Bell and his associates, that the Clarks- 
dale case was merely one of many prob- 
lems that the NAACP agency had in 
furthering a program of eliminating ille- 
gal segregation. There was no object in 
documenting the nature and extent of 
the legal services and no attempt made 
to record elements of time allocable to 
the Clarksdale school case. The esti- 
mates of time furnished to the Court 
have been constructed many years after 
the event, and are necessarily vague. 
We are not persuaded that at this late 
date there is a reliable factual basis for 
allowing counsel fees for services re- 

motely rendered. Laches certainly oper- 
ates to bar the resurrection of stale 
claims where many years have gone by 
and the law’s demands in public school 
desegregation have materially changed. 

With later changes in the law mandat- 
ed by Supreme Court rulings, it would 
be inequitable to fasten upon this dis- 
trict, or any district, attorney fees in- 
curred by the adversary parties for liti- 
gation in accordance with the principles 
as they were then understood by many 



HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

courts and by many lawyers. Because of 
these considerations, it would be mani- 

festly unjust to allow any sum for legal 
services asserted by Professor Bell. 
Should this Court be in error as to its 
interpretation of the Act of Congress 
and it does authorize retroactively an 
award to the beginning of the Clarksdale 
school litigation, then it is nevertheless 
our firm view that on the clear facts and 
the case records it would be improper to 
impose on this district liability for coun- 
sel fees in any amount whatever for the 
work done on behalf of plaintiffs prior 
to the 1969 remand by the Court of Ap- 
peals. Congress has indicated that dis- 
trict courts have a measure of discretion 
in this regard, for the statute says that 
the courts may allow the prevailing par- 
ty reasonable attorney fees. The Act 
certainly does not say the court is re- 
quired to allow fees despite the existence 
of cogent reasons why such should not 
be allowed. Hence, we feel very strong- 
ly that in the 1964-69 period it would be 
improper to assess the school board with 
plaintiffs’ counsel fees. 

That leaves one other aspect—whether 
apart from Section 1617 an allowance 
should be made for the valuable legal 
services rendered by Mr. Leventhal after 
the decision in Clarksdale I until July 1, 
1972. In all candor, I find this to be a 
close factual issue. It should be said 
that this Court was disappointed at the 
board’s failure to affirmatively address 
the issue of a new desegregation plan on 
remand and by endeavoring to adhere to 
a rejected position. That attitude exhib- 
ited by the board did thrust upon the 
Court a heavier burden in trying to re- 
solve the Clarksdale school desegregation 
problems. Even so, several factors are 
present which incline this Court against 
a finding of unreasonable, obdurate ob- 
stinacy by the board. One factor is that, 
in the eyes of this Court, HEW’s plan in 

6871 

material respects was not satisfactory, 

and the Court required the appointment 
of a special master to study the school 
system. The master’s contributions were 

decidedly worthwhile as to the upper six 
grades, notwithstanding the reversal by 

the Fifth Circuit of the elementary 

grade school structure. The master’s 
services cost the school board a fair sum 

of money, yet it was a direct conse- 

quence of the board’s own failure to sub- 
mit further plans. Nevertheless, when 

the master’s plan was approved by the 
district court, the school board defended 

it on appeal, although losing as to the 

elementary grade structure. 

From that point forward, the school 

board bowed to the inevitable, and rec- 

ognized that new desegregation orders 
governed the Clarksdale schools. The 
litigation was vigorously contested, yet 
this does not mean that it was unneces- 
sary or vexatious for the board not to 
yield without a fight. 

Though the board’s attorney appears 
to be unyielding in his personal view of 
what is required by the constitution in 
school cases, this is hardly an adequate 
basis for holding the board itself acted 
unreasonably or in an obdurately obsti- 
nate manner. On the contrary, every- 

thing considered, the evidence more fair- 
ly justifies the opposite conclusion: That 
though the suit was a bitter, hotly-con- 
tested school case, it was not conducted 

vexatiously or unnecessarily or in such 
censorious manner that the board should 

pay for plaintiffs’ attorney fees which 
were incurred prior to July 1, 1972. 
That the case was difficult and perplex- 
ing cannot be denied, but this is no rea- 

son to charge the board with obstinate 
conduct. In answer to this aspect of the 
Fifth Circuit's directive, we find on the 

evidence, as well as on our records and 



6872 

files, that the school board, in the con- 
duct of the litigation, did not act in an 
unreasonable and obdurately obstinate 
manner prior to July 1, 1972, and that it 
should not, for that reason, be required 
to pay for pre-July 1, 1972, legal ex- 
penses incurred by plaintiffs. 

The Court further finds on the record 
that the reasonable attorney fees allowa- 
ble from July 1, 1972, forward would be 
$1,500. This sum is based on the time 
Mr. Leventhal expended in the case in 
court, as well as investment of travel 
and conference time. 

For appeal purposes only, I would fur- 
ther find that if an additional award is 
due for counsel services rendered prior 
to July 1, 1972, the amount would be 
fixed in the sum of $8,500. This finding 
is amply supported by the court hours, 
travel and conference time expended by 
Mr. Leventhal. His professional services 
were valuable to the case and are rea- 

HENRY v. CLARKSDALE MUNICIPAL SEPARATE SCH. DIST. 

sonably worth $8,500. We refrain, how- 

ever, from making findings as to the 
nature, extent or value of any legal serv- 
ices rendered prior to the first decision 
of the Fifth Circuit Court of Appeals in 
Henry v. Clarksdale Municipal Separate 
School District, 409 F.2d 682, since, in 
our view, it would be manifestly inequi- 
table under either Section 1617 or judi- 
cial principles to entertain such an allow- 
ance. 

So, gentlemen, consistent with the 

foregoing, I will issue an order directing 
the school board to pay to plaintiffs’ 
counsel the sum of $1,500 and denying 
further allowances. I have made de- 
tailed findings in the thought that if I 
have erred in the construction of Section 
1617 or on my findings of lack of obdu- 
rate obstinacy on the part of the school 
board, the Court of Appeals will be in 
position to make such adjustment as it 
may deem proper. 

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