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Brief Collection, LDF Court Filings. Lee v. Southern Home Sites Corporation Brief for Appellant, 1970. cb65c6fe-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cba3b3e3-fa36-49ae-b8da-9cd3e2ae0fd6/lee-v-southern-home-sites-corporation-brief-for-appellant. Accessed August 19, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 30738 JOHNNIE RAY LEE, Appellant, v. SOUTHERN HOME SITES CORP., a corporation, Appellee. On Appeal from the United States District Court For the Southern District of Mississippi BRIEF FOR APPELLANT JACK GREENBERG JEFFRY A. MINTZ 10 Columbus Circle New York, New York 10019 REUBEN V. ANDERSON FRED L. BANKS, JR. 538 1/2 North Farish Street Jackson, Mississippi WILLIAM BENNETT TURNER 1095 Market Street San Francisco, California 94103 Attorneys for Appellant TABLE OF CONTENTS paa£ TABLE OF AUTHORITIES i l l ISSUE PRESENTED STATEMENT OF THE CASE STATEMENT OF FACTS ARGUMENT II. The History and the Purpose of Section 1982 Demonstrate that Attorneys' Fees Should Be Awarded to Plaintiffs Who Successfully Invoke Its Provisions. The Explicit Provision for Attorneys' Fees in the 1968 Fair Housing Act, A Procedural Aspect of the Statute, Should Be Applied to This Case. 22 CONCLUSIONS 28 l i TABLE OF AUTHORITIES CASES Page Bradley v. School Board of the City of Richmond, 345 F.2d 310 (4th Cir. 1965) 17 Dolgow v. Anderson, 43 F.R.D. 472, (E.D. N.Y. 1968) 22 Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968) 22 Gilbert v. Hoisting & Portable Engineers, 237 Or. 139, 390 P.2d 320 (1964) 21 Hamm v. City of Rock Hill, 379 U.S. 306 (1964) 25 Hunter v. Erickson, 393 U.S. 385 (1969) 26 Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968) 16 Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) 4,7,8,9,10,11, 12,13,17,18,23 Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965) 17 Lee v. Southern Home Sites Corp., 429 F .2d 290 (5th Cir. 1970) 2,4,11 Miller v. Amusement Enterprises, Inc. 426 F .2d 534 (5th Cir. 1970) 14,15,22,2$ Mills v. Electric Autolite Co., 396 U.S. 375 (1970) 20,22 Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407; 1 Race Rel. L. Survey 185 (S.D. Ohio, 1968, 1969) 19 iii Page Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) 11,15,16,18, 20,24,25 Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) 16 Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969) 16 Pina v. Homsi, 1 Race Rel. L. Survey 18 (D. Mass. July 10, 1969) 19 Rolax v. Atlantic Coast Line R.R., 186 F.2d 473 (4th Cir. 1951) 21 Sanders v. Russell, 5th Cir. 1968, 401 F.2d 241 11 Smoot v. Fox, 353 F.2d 830 (6th Cir. 1965) 17 Sprague v. Ticonic National Bank, 307 U.S. 161 (1939) 20 Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969) 20,27 Terry v. Elmwood Cemetery, 307 F.Supp. 369 (1969) 18,19 Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268 (1969) 26 United States v. Price, 383 U.S. 787 (1966) 11 United States v. Schooner Peggy, 1 Cranch 103 (1801) 26 Vandenbark v. Owens Illinois Co., 311 U.S. 538 (1941) 26 Page Vaughn v. Atkinson, 369 U.S. 567 (1962) 20 Williams v. Kimbrough, 295 F.Supp. 578, aff'd, 415 F.2d 875 (5th Cir. 1969),' cert, denied, 396 U.S. 1061 (1970) 17 Ziffrin, Inc. v. United States, 318 U.S. 73 (1943) 26 Brown v. City of Meridian, 356 F.2d 602 (5th Cir. 1966) 27 STATUTES, RULES AND REGULATIONS Civil Rights Act of 1866, Act of April 7, 1866, c. 31, Section 1, 14 Stat. 27, re-enacted by Section 18 of the Enforcement Act of 1870, Act of May 31, 1870, c. 114, Section 18, 16 Stat. 140, 144 codified in Sections 1977 and 1978 of the Revised Statutes of 1874. 9,10,11 18 U.S.C. Section 241 11 18 u. s. c. Section 242 11 42 U.S.C. Section 1981 2 42 U.S.C. Section 1982 1,2,7,8,9,11, 12,15,16,20,21,23 42 U.S.C. Section 1988 27 42 U.S.C. Section 2000a-2 25 42 U.S.C. Section 2000a-3(b) 8,14,25 42 U.S.C. Section 2000a-5(a) 15 42 U.S.C. Section 2000b et seq. 18 v Page 42 U.S.C. Section 2000c et seq. 18 42 U.S.C. Section 2000e-5(k) 8,25 42 U.S.C. Sections 3601 et seq. 26 42 U.S.C. Section 3603 23 42 U.S.C. Section 3604 (a) , (b) , (c) & (d) 22 42 U.S.C. Section 3612(b) 8 42 U.S.C. Section 3612(c) 18,24,25 Fed. R. Civ. P. 23 (b) (2) 2 Fed. R. Civ. P. 30(g), 37(a), 37(c) , 54 (d) and 56(g) 25 Fair Housing Act of 1968 Pub. L. 90-284; 82 Stat. 82 18, 23,24 OTHER AUTHORITIES Cong. Globe, 39th Cong., 1st Sess. 474 10 114 Cong. Rec. S2308 24 Davidson & Turner, Fair Housing and Federal Law, 1 ABA Human Rights (1970) 36 15,23 Gulfport-Biloxi Daily Herald, June 18, 1968, p. 1 12 Jackson Clarion-Ledger, June 18, 1968, p. 1 12 Mobile Press, June 18, 1968, p. 3 12 Mobile Press Register, June 23, 1968, p. 1 12 VI IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 30738 JOHNNIE RAY LEE, Appellant, v. SOUTHERN HOME SITES CORP., a corporation, Appellee. On Appeal from the United States District Court For the Southern District of Mississippi BRIEF FOR APPELLANT ISSUE PRESENTED Whether, in a class action under 42 U.S.C. Section 1982 brought by an individual acting as a "private attorney general" to eliminate systematic racial discrimination practiced by a real estate developer, the court should award reasonable attorneys' fees to the prevailing plaintiff. STATEMENT OF THE CASE This is the second appeal to this Court in the instant case. On the prior appeal (No. 28167), this Court remanded for findings of fact to justify the District Court's denial of attorneys' fees. Lee v. Southern Home Sites Corp., 429 F .2d 290 (5th Cir. 1970). This case was brought pursuant to 42 U.S.C. Sections 1981 and 1982 and the Thirteenth Amendment to challenge systematic racial discrimination practiced by appellee Southern Home Sites Corp., a real estate developer. The action was brought by appellant Johnnie Ray Lee on his own behalf and, pursuant to Fed. R. Civ. P. 23(b)(2), as a class action on behalf of similarly situated black citizens who were discriminated against by Southern Home Sites. The complaint 1/(1.4-9) alleged that appellant had been excluded from buying a lot in the Southern Home Sites resort development because of his race, and that appellee's refusal to deal with appellant was pursuant to a widespread policy and practice of discrimination against black citizens. Plaintiff-appellant 1/ Numbered references preceded by "I" are to pages of the printed Appendix on the prior appeal, No. 28,167. References preceded by "II" are to pages of the printed Appendix on the present appeal, No. 30,738. On Nov. 4, 1970, this Court granted appellant's motion to limit the reproduction of the record on this appeal to documents filed since the printing of the Appendix on the prior appeal. Additional copies of the prior Appendix have been filed with the Court together with copies of the present Appendix. -2- sought injunctive relief, a declaratory judgment, compensatory and punitive damages and counsel fees. The case was tried without a jury on March 18, 1969. On April 7, 1969, the court below (Nixon, J.) rendered an opinion (1.42-45) finding that Southern Home Sites had engaged in racially discriminatory conduct in violation of 42 U.S.C. Section 1982. On May 14, 1969, the District Court entered judgment (1.54-56) generally enjoining appellee from discriminating against black people seeking to purchase lots in appellee's development, directing Southern Home Sites to offer appellant Lee a lot and defining the class on whose behalf the action was maintained. The judgment denied appellant's claims for money damages and counsel fees. The court below retained jurisdiction until the judgment would be fully complied with. Appellant then sought an order requiring Southern Home Sites to notify members of the class of their rights under the court's judgment and to offer lots to members of the class on the same terms as lots were to be offered to appellant and as lots had been conveyed to white persons (1.60-64). On August 6, 1969, the court below denied this relief. Appellant then appealed to this Court from the judgment of May 14, 1969, and the order of August 6, 1969. -3- On July 13, 1970, this Court (Coleman, Goldberg and Morgan, JJ.) upheld the District Court's denial of money damages but remanded with instructions to require Southern Home Sites to notify class members of their rights under the judgment, including their right to purchase lots on the same terms as appellant. This Court also directed the District Court to make findings of fact "sufficient to enable this court to review the denial of attorneys' fees." Lee v. Southern Home Sites Corp., 429 F.2d 296 (5th Cir. 1970). On July 20, 1970, the court below ordered the clerk of the court to publish notices in two Mississippi newspapers informing class members of their rights under the judgment (11.5-6). On August 11, 1970, the court below made findings of fact regarding its denial of attorneys' fees (II.6-9). The court found that appellant had failed to prove that Southern Home Sites had knowledge or notice of the Supreme Court's decision in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) and that, therefore, appellee's discriminatory conduct was not "malicious, oppressive or so 'unreasonable and obdurately obstinate' as to warrant an award for attorneys' fees" (II.8). The District Court thereupon entered a supplemental decree (August 13, 1970) denying an award of attorneys' fees (II.9). This appeal followed. -4- STATEMENT OF FACTS Appellant Johnnie Ray Lee is a black citizen who resides in Columbia, Mississippi. Appellee Southern Home Sites Corp. is a Mississippi corporation which is in the business of developing resort areas and selling lots or interests in real estate (1.6,17). It owns and operates a development called Ocean Beach Estates, located near Ocean Springs and Pascagoula, Mississippi (Id.). The development at Ocean Beach Estates contains a total of 1,653 lots (1.27,33,43). As of the time of trial, 1,206 of the lots had been sold (Id.). Thus, more than 400 lots remained available (1.96-97). At that time, appellee was holding lots off the market, because developments on adjacent property were causing Southern Home Sites lots to increase in value (1.114,43). On July 30, 1968, appellee sent a form letter to appellant offering him a lot stated to be worth $600 for $49.50 in cash (1.6,17,42). In 1968 alone, Southern Home Sites sent probably more than a thousand such letters to persons throughout the State of Mississippi and outside Mississippi (1.86-87). The letters were sent as a promotional venture, with the idea that persons sold lots at bargain prices would tell their friends and thus increase appellee's -5- sales (1.113,43). At the time of trial, Southern Home Sites had conveyed 119 lots on the $49.50 terms set forth in the letter to appellant (1.93,25,31-32,27,33). Appellee's agents collected names for the promotional mailing list at boat shows, county fairs, etc. (1.87,32). In mailing the letters containing the promotional offers, appellee made no effort whatever to ascertain the race of persons to whom the letters were sent (1.26,32). Thus, thousands of letters were sent indiscriminately to both black and white persons. The letters sent to citizens throughout the area stated baldly that in order for the recipient to take advantage of the offer, "you must be a member of the white race" (1.42, 6,17). Although Southern Home Sites pretended to justify this condition on the ground that "only the white race" would help appellee advertise its development (1.32), white purchasers of lots pursuant to the promotional scheme were never asked to advertise and no such condition was ever demanded by Southern Home Sites (1.104-105,108). Shortly after receiving his letter from appellee, Johnnie Ray Lee traveled to appellee's office at Ocean Springs (1.42-43,6-7,12,13-14,18). He took with him the letter and $50 in cash and was ready, willing and able to purchase a lot -6- on the terms set forth in the letter, except for the racial limitation (1.43,74,76). However, at the Southern Home Sites office he was bluntly told by appellee's agent that the development "wasn't for Negroes," and the agent refused to j o business with him (1.75,82,43). At Ocean Beach Estates, black people were not permitted to buy lots (1.26,33). Not only was Ocean Beach Estates maintained as a lily-white preserve, but appellee planned a separate, all-black development, and kept a waiting list of black applicants for that development (1.75,76,82; Plaintiff's Exhs. 2 and 3). On October 15, 1968, appellant Lee brought this class action in the court below. He obtained a broad injunction prohibiting Southern Home Sites from discriminating against black citizens on the ground of race. The action was based primarily on 42 U.S.C. Section 1982, which was interpreted by the Supreme Court to bar all racial discrimination in the sale of real estate. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). The letter to appellant Lee was sent by Southern Home Sites about six weeks after the Jones decision, and appellant was excluded from the resort development about two months after the decision. At trial, appellant made no attempt to show that Southern Home Sites had actual knowledge of the Jones decision at the time of its discriminatory conduct; nor did the developer seek to show its ignorance of the decision. -7- On August 11, 1970, the District Court found as a fact that because of appellant's failure to prove appellee's knowledge or notice of Jones, appellee's conduct was not "malicious, oppressive or so 'unreasonable and obdurately obstinate' as to warrant an award for attorneys' fees" (II.8). Appellant here maintains that the denial of attorneys' fees was erroneous as a matter of law. ARGUMENT I. The History and the Purpose of Section 1982 Demonstrate That Attorneys' Fees Should Be Awarded to Plaintiffs Who Successfully Invoke Its Provisions. Unlike many of the recent statutes authorizing 2/ private suits to vindicate denials of equal rights, 42 U.S.C. Section 1982 does not expressly authorize the granting of attorneys' fees to successful plaintiffs. An analysis of the history and purpose of Section 1982 readily demonstrates, however, that the allowance of attorneys' fees to successful plaintiffs invoking its provisions is a proper means of 3/ "fashioning an effective equitable remedy" for its enforcement 2/ See 42 U.S.C. Section 2000a-3(b) (public accommodations); 42 U.S.C. Section 2000e-5(k) (equal employment); 42 U.S.C. Section 3612(b) (fair housing). 3/ Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414, n.13 (1968) -8- Section 1982 is derived from Section 1 of the Civil 4/ Rights Act of 1866. The history and meaning of the statute are discussed at length in the opinion of the Supreme Court in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420-444 (1968). There, the Court held that (1) the statute was intended to bar all racial discrimination, private as well as public, in the sale or rental of property, and (2) as thus construed, it was a valid exercise of the power of Congress to enforce the 5/ Thirteenth Amendment. £/As originally enacted, the Civil Rights Act of 1866 was to be enforced primarily through criminal prosecutions brought by federal district attorneys against persons who violated its provisions. The sponsors of the bill feared that permitting only a private right of action would be insufficient to eradicate either the racial wrongs being perpetrated or the 4/ Act of April 7, 1866, c. 31, Section 1, 14 Stat. 27, re-enacted by Section 18 of the Enforcement Act of 1870, Act of May 31, 1870, c. 114, Section 18, 16 Stat. 140, 144, codified in Sections 1977 and 1978 of the Revised Statutes of 1874. 5/ It was the Jones decision which led the District Court to hold on the merits that Southern Home Sites' discrimination violated Section 1982 and to issue the injunction barring future discrimination and ordering the sale of a lot to Lee (1.44). 6/ See n.4, supra. -9- temper which gave rise to and sustained them. They expressed particular concern about the likelihood that those persons whom the Act sought to protect could not bear the expense of enforcing their rights if they were not assisted by the 8/ federal attorneys. In the intervening reenactments of the Act of 1866, the penal provisions which originally accompanied it have been V 7/ Introducing the bill on January 5, 1866, Senator Trumbull stated its objective was to give effect to the declaration contained in the Thirteenth Amendment and to secure to all persons within the United States practical freedom. "There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be affected by them have some means of availing themselves of their benefits." Cong. Globe, 39th Cong., 1st Sess. 474, quoted in Jones v. Alfred H. Mayer Co., supra, at 431-32. 8/ /James Wilson, who introduced the bill into the House, expressed in greater detail the legislative intention as he responded to Ohio Congressman Bingham's motion to recommit and to "strike out all parts of the bill which are penal and authorize criminal proceedings and in lieu thereof to give injured citizens a civil action in the United States Courts..." Id. at 1293. Between the two, Mr. Wilson said, "There is no difference in the principle involved...There is a difference in regard to the expense of protection. There is also a difference as to the effectiveness of the two modes...This bill proposes that the humblest citizen shall have full and ample protection at the cost of the Government, whose duty it is to protect him. The Amendment of the gentleman recognizes the principle involved, but it says that the citizen despoiled of his rights... must press his own way through the courts and pay the costs attendant thereon. This may do for the rich, but to the poor, who need protection, it is mockery. . . " Ici. at 1295 (emphasis added). -10- separated or eliminated, so that today Section 1982 is "enforceable only by private parties acting on their own initiative." Jones v. Alfred H. Mayer Co., supra, at 417. However, as the Court noted in Jones, "The fact that 42 U.S.C. Section 1982 is couched in declaratory terms and provides no explicit method of enforcement does not, of course, prevent a federal court from fashioning an effective equitable remedy." Id. at 414, n.13. And as this Court stated in its previous opinion in the instant case: "In the area of civil rights, many cases have either allowed or implicitly recognized the discretionary power of a district judge to award attorneys 1 fees in a proper case in the absence of express statutory provision icitations omitted] and especially so when one considers that much of the elimination of unlawful racial discrimination necessarily devolves upon private litigants and their attorneys, cf. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968), and the general problems of representation in civil rights cases. See Sanders v. Russell, 5th Cir. 1968, 401 F.2d 241." Lee v. Southern Home Sites Corp., 429 F.2d 290, 295 (5th Cir. 1970). * 18 9/ 9/ The only remaining criminal statute derived from the Act is 18 U.S.C. Section 242. See United States v. Price, 383 U.S. 787, 801-02 (1966). While Section 242 is limited to actions taken "under color of law," it may well be that 18 U.S.C. Section 241, derived from the Enforcement Act of 1870 (the reenactment of Section 1982, see n.4, supra) would permit criminal prosecutions against persons who conspire to interfere with the rights guaranteed by Section 1982. -11- In Jones, the Supreme Court resurrected Section 1982 and held that it operated as a fair housing statute to outlaw 10/ all racial discrimination in the sale of real property. We submit that the effectiveness of Section 1982 as a guarantee of equal housing opportunity would be vastly diminished by limiting the availability of attorneys' fees under the standard followed by the court below. The District Court here denied fees on the around that appellant failed to prove that Southern Home Sites had actual knowledge or notice of the Supreme Court's decision in Jones and that, accordingly, appellee's discriminatory conduct was not "malicious, oppressive or so 'unreasonable and obdurately obstinate' as to warrant an award 11/for attorneys' fees" (1.8) . The District Court did not 10/ The Court noted and agreed with the statement of the Attorney General at oral argument: "The fact that the statute lay partially dormant for many years cannot be held to diminish its force today." 392 U.S. at 437. 11/ The court went further to find that in the absence of such proof, Southern Home Sites did not in fact have notice of the Jones decision (II. 7). This inference is without any evidentiary support whatever and is clearly erroneous. It might be noted that the Jones decision made headlines in every newspaper in the South. See, e.g., the Jackson Clarion-Ledger, June 18, 1968, p. 1; the Gulfport-Biloxi Daily Herald, June 18, 1968, p. 1? the Mobile Press, June 18, 1968, p. 3; the Mobile Press Register, June 23, 1968, p. 1. It seems exceedingly unlikely that a large real estate developer like Southern Home Sites would remain wholly ignorant of a landmark decision directly affecting its business. In any event, as will be demonstrated below, an award of attorneys fees cannot be conditioned on proof that the defendant actually knew the law condemning its racially discriminatory practices. -12- mention the facts that (1) six weeks after the Jones decision, Southern Home Sites distributed thousands of racially insulting letters, with no attempt whatever to determine the race of addressees and thus with callous disregard for the feelings of black recipients; (2) appellee's policy was not only to keep Ocean Beach Estates a lily-white preserve, but it planned a wholly segregated all-black development; and (3) appellee's defense in the trial court was frivolous— appellee contended that the promotional offers were for a "gift" and that under Mississippi law the donor had complete discretion to select his donees (1.32-34,37; defendant's response to motion for 12/summary judgment). The reason for the District Court's denial of counsel fees — that appellee did not "know" of the Jones decision— might be appropriate if the question were whether to impose punitive damages and if some showing of willful or malicious conduct were required. But here we are dealing with whether counsel fees may be awarded, and the District Court's approach seems wholly inappropriate. Indeed, the approach of 12/ Appellant proved at trial that the transactions could in no way be considered "gifts." Recipients of promotional offers were required to pay $49.50 in cash to obtain a lot (1.93,25,31-32,27,33). All 119 of these transactions were accounted for on Southern Home Sites' books in exactly the same manner as all cash purchases of lots (1.94-95,118). Appellee introduced no evidence of donative intent. -13- the court below has already been rejected by this Court in the analogous case of Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). In Miller, the district court had denied attorneys1 fees to a successful plaintiff in a suit challenging racial discrimination under Title II of the Civil Rights Act of 1964. The reason for the denial was that at the time of the discriminatory act (and, indeed, even up to and after the decision of a panel of this Court), the defendant company was not deemed in violation of the law; not until the en banc decision of this Court was the defendant held to be covered by Title II. This Court reversed the denial of fees, stating that the defendant ". . .became subject to the prescribed judicial relief not because the Court said so, but rather because the Court said--even perhaps for the very first time— that the Congress said so." 426 F.2d at 536. The Court also ruled that the defendant's subjective "good faith" was not to be considered as a justification for denying counsel fees. Even though the defendant in Miller, unlike appellee here, advanced no frivolous defenses, and even though several judges agreed with its position, this Court directed an award of attorneys' fees. To be sure, Miller involved a statute containing an express provision for attorneys' fees. See 42 U.S.C. Section 2000a-3 (b) (fees may be granted in the "discretion" of the -14- court). But this Court's reasoning applies equally to Section 1982: "Congress did not intend that vindication of statutorily guaranteed rights would depend on the rare likelihood of economic resources in the private party (or class members) or the availability of legal assistance from charity--individual, collective or organized. An enactment aimed at legislatively enhancing human rights and the dignity of man through equality of treatment would hardly be served by compelling victims to seek out charitable help." 426 F.2d at 539. Miller relied on the Supreme Court's decision in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). In Piggie Park, the Court noted that since the statute, like Section 1982, provides no administrative agency or criminal prosecutions to enforce its mandate, its effectiveness depends 13/ on the ability of private litigants to maintain civil suits. Said the Court: "If [the plaintiff] obtains an injunction, he does so not for himself alone but also as a "private attorney general," vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts." 390 U.S. at 402 (footnote omitted). 13/ The Attorney General of the United States is empowered to bring suit to enforce Title II. See 42 U.S.C. Section 2000a-5(a). But Section 1982 has no such provision and its enforcement depends wholly on private civil actions. See generally, on the need for counsel fee awards to enforce fair housing statutes, Davidson and Turner, Fair Housing and Federal Law, 1 ABA Human Rights 36, 49-50 T1970). -15- This Court has subsequently applied the "private attorney general" doctrine not only in Mi Her but also in cases arising under the fair employment provisions of the Civil Rights Act of 1964. See Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969); Jenkins v. United Gas Corp., 400 F .2d 28, 32-33 (5th Cir. 1968); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). The teaching of Piggie Park and its progeny is that counsel fees should be awarded to the successful plaintiff unless "special circumstances render such an award unjust." 390 U.S. at 402. It is irrelevant whether the defenses advanced by the discriminating party were frivolous or plausible. And it is perfectly clear under Miller that the test cannot be whether the defendant had actual knowledge of the law. The fact that Section 1982, unlike more recently 14/ enacted civil rights statutes, does not explicitly provide for attorneys' fees should not justify deviation from the Piggie Park standard. First, as demonstrated above, Congress originally provided that the enforcement of the rights guaranteed by Section 1982 should be undertaken by government attorneys for the very reason that the persons aggrieved could 14/ See n.2, supra. -16- Nothing in the subsequentnot bear the cost of litigation. revisions which have made those rights "enforceable only by 16/ private parties acting on their own initiative" indicates that Congress intended to limit their availability to those few who could bear the cost of litigation. The allowance of attorneys 1 fees under the Piggie Park standard clearly would serve Lo fulfill the legislative intent and to effectuate the Congressional policy expressed in Section 1982. Second, the cases relied on by the District Court to support its standard of requiring "unreasonable, obdurate 17/ obstinacy" by a defendant before attorneys’ fees can be allowed were all in the context of school desegregation suits, where the plaintiffs sought to enforce rights which were judicially declared and which were not an explicit statutory 15/ 15/ See nn. 6 and 7 and accompanying text, supra. 16/ Jones v. Alfred H. Mayer Co., supra, at 417. 17/ Bradley v. School Board of the City of Richmond, 345 F .2d 310, 321 (4th Cir. 1965); cf. Id. at 324-5 (Sobeloff and Bell, JJ. dissenting); Kemp v. Beasley, 352 F .2d 14 (8th Cir. 1965); Williams v. Kimbrough, 295 F.Supp. 578, 587, aff'd, 415 F.2d 875 (5th Cir. 1969), cert, denied, 396 U.S. 1061 (1970). Smoot v. Fox, 353 F.2d 830 (6th Cir. 1965), also cited by the District Court, was a common law libel action and is in no way relevant to this case. -17- 18/ "policy that Congress considered of the highest priority." Moreover, the defendant here is a profit-making corporation engaged in racial discrimination as part of its business, not a school board composed of unpaid public servants. Whatever may be the policy for denying counsel fees in school cases, the policy does not apply here. Indeed, the explicit 19/ provision for counsel fees in the Fair Housing Act of 1968# establishes a Congressional policy strongly favoring counsel fee awards in housing discrimination cases. Other district courts granting injunctive relief in suits under Section 1982 have awarded attorneys' fees. In Terry v. Elmwood Cemetery, 307 F.Supp. 369 (1969), suit was brought to compel the defendant cemetery to sell a burial plot to a black mother for the grave of her son, who was killed in action in Viet Nam. The cemetery refused to sell the plot 18/ Newman v. Piggie Park Enterprises, supra, at 402. See Cong. Globe, 39th Cong., 1st Sess., 474, quoted in Jones v. Alfred H. Mayer Co., supra, at 431-32. Also, Congress has now authorized the Attorney General to file suits on behalf of the United States to desegregate schools. See Title IV of the Civil Rights Act of 1964, 42 U.S.C. Section 2000c et. seq. See also Title III, 42 U.S.C. Section 2000b ejt seq. , authorizing the Attorney General to sue to challenge discriminatory practices in state owned or operated facilities. Much of the cost of litigation to desegregate schools is thus borne by the federal government. 19/ 42 U.S.C. Section 3612(c). -18- solely because of the race of the deceased. Chief Judge Lynne carefully analyzed the Jones decision and the lower court cases which followed it and held that the refusal to sell the burial plot was a violation of Section 1982. In the final judgment (which followed the reported opinion), attorneys' 20/ fees in the amount of $2500 were awarded. Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407; 1 Race Re1. L. Survey 185 (S.D. Ohio, 1968, 1969), which was relied upon in Terry, is very similar to the instant case in that it involved a large real estate development from which blacks were excluded. The case was brought as a class action by an individual who had been refused a lot in the development. The court defined the class as "members of the Negro race" who had been similarly excluded, Id., at 417, the same delimitation of the class made by the lower court in this case (1.49). By a supplemental order, the court in Newbern awarded attorneys 21/ fees in the amount of $1000 . Also, in Pina v. Homsi, 1 Race Rel. L. Survey 18 (D. Mass. July 10, 1969), the plaintiffs were 20/ Terry v. Elmwood Cemetery, N.D. Ala. Civ. No. 69-490, order of January 29, 1970. Terry is a particularly significant case in this regard as the property there involved is not covered by the provisions of the 1968 Fair Housing Act and suit, even today, could be maintained only under the provisions of Section 1982. 21/ Newbern v. Lake Lorelei, Inc., 1 Race Rel. L. Survey 185 (S.D. Ohio, March 12, 1969). -19- refused an apartment because the husband was black. Under Section 1982, the court awarded compensatory damages and attorneys' fees. These cases under Section 1982 follow the well established principle that federal courts have equitable power to award counsel fees in appropriate cases even in the absence of statutory authorization. See Mills v. Electric Autolite Co., 396 U.S. 375 (1970); Vaughn v. Atkinson, 369 U.S. 567 (1962); Sprague v. Ticonic National Bank, 307 U.S. 161 (1939); Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S. at 402, n.4. The instant case presents special reasons supporting an award of counsel fees: (1) Section 1982 expresses a national policy of the highest priority — the eradication of racial discrimination in housing. Therefore, appellant acts here as a "private attorney general" in vindicating the statutory right to equal housing opportunity. Cf. Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S. at 402. And as the Supreme Court said of Section 1982, "The existence of a statutory right implies the existence of all necessary and appropriate remedies." Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969). 2 (2) The discrimination involved here was systematic and deliberate; it was not isolated or accidental. Appellant Lee challenged not only the refusal to sell him a lot but also -20- the policy of (a) distributing offers addressed to the general public but acceptable only by "a member of the white race," and (b) creating a wholly segregated all-black development. This kind of action ought to be encouraged by an award of counsel fees under Section 1982, so that neither aggrieved parties nor their attorneys need subsidize from their own pockets the essentially public activity of correcting 22/ systematic racial discrimination. (3) This is a class action on behalf of all blacks discriminated against by Southern Home Sites. If the action had not been brought, the rights of class members would never have been vindicated, because their claims are too small to * * * * * * * * 22/ Awarding counsel fees to encourage "public" litigation by private parties is an accepted device. For example, in Oregon, union members who succeed in suing union officers guilty of wrongdoing are entitled to counsel fees both at the trial level and on appeal, because they are protecting an interest of the general public: If those who wish to preserve the internal democracy of the union are required to pay out of their own pockets the cost of employing counsel, they are not apt to take legal action to correct the abuse. . . . The allowance ofattorneys1 fees both in the trial court and on appeal will tend to encourage union members to bring into court their complaints of union mis-management and thus the public interest as well as the interest of the union will be served. Gilbert v. Hoisting & Portable Engineers, 237 Or. 139, 390 P.2d 320 (1964). See also Rolax v. Atlantic Coast Line R.R., 186 F.2d 473 (4th Cir. 1951). -21- justify individual litigation. Cf. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 560 (2d Cir. 1968); Dolgow v. Anderson, 43 F.R.D. 472, 484-87 (E.D. N.Y. 1968). And since individual suits would not have been brought, the statute outlawing appellee's conduct would have gone unenforced. As the Supreme Court said in granting fees in Mills v. Electric Autolite Co., supra, "private. . .actions of this sort. . . furnish a benefit to all. . .by providing an important means of enforcement of the. . .statute." 396 U.S. at 396. Therefore, it was error for the court below to withhold counsel fees on the ground that appellee was not on notice of the Jones decision and did not act maliciously or obstinately. The case should be remanded with instructions to award reasonable attorneys 1 fees covering all proceedings in the District Court and on both appeals. See Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 539 (5th Cir. 1970). II. II. The Explicit Provision For Attorneys' Fees In The 1968 Fair Housing Act, A Procedural Aspect of the Statute, Should Be Applied to This Case. The discriminatory acts of Southern Home Sites would clearly have been covered by specific provisions of the Fair Housing Act of 1968 had they taken place after December 31, 1968. See 42 U.S.C. Section 3604 (a), (b), (c) and (d). Because they occurred during 1968 and related to housing -22- substantive prohibitions of the Act did not cover them. Appellant Lee was thus compelled, in this action filed October 15, 1968, to base his substantive claim that the acts were illegal on Section 1982. But invoking the procedural and remedial provisions of the 1968 Act would not run counter to Congressional intention. Indeed, the legislative history of the Act indicates that Congress had in mind as one of its purposes the effectuation of Section 1982: [T]he Senate Subcommittee on Housing and Urban Affairs was informed in hearings held after the Court of Appeals had rendered its decision in the case that Section 1982 might well be "a presently valid federal statutory ban against discrimination by private persons in the sale or lease of real property." The Subcommittee was told, however, that even if this Court should so construe Section 1982, the existence of that statute would not "eliminate the need for congressional action" to spell out "responsibility on the part of the federal government to enforce the rights it protects." The point was made that, in light of the many difficulties confronted by private litigants seeking to enforce such rights on their own, legislation is needed to establish federal machinery for enforcement of the rights guaranteed under Section 1982...." quoted in Jones v. Alfred H, Mayer Co., 392 U.S. at 415-16 (emphasis added; footnotes omitted). not owned or financed by the federal government, the 23/ 23/ 42 U.S.C. Section 3603. The substantive prohibitions covered only housing owned or financed by the federal government during 1968. Id. It might be noted that the 1968 Act even now covers only "dwellings" and does not cover personal, commercial, or industrial property. Of course, Section 1982 covers all property. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968); see generally, on the coverage of the respective statutes, Davidson and Turner, Fair Housing and Federal Law, 1 ABA Human Rights 36 (1970). -23- Thus, it seems entirely appropriate to apply the "machinery" of the Fair Housing Act--in this context, its provision for attorneys' fees--to assist in the enforcement of the Section 1982 rights which were violated here. The 1968 Fair Housing Act explicitly provides for the allowance of "reasonable attorney fees in the case of a prevailing plaintiff" suing under its provisions. 42 U.S.C. 24/Section 3612(c). Since attorneys' fees are universally 24/ The provision is phrased in stronger language than the analogous provision in Title II of the Civil Rights Act of 1964, which authorizes attorneys' fees in the "discretion" of the court. The Title II provision has been interpreted to mean that fees must be awarded in virtually every successful case. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). Thus the Fair Housing Act should be interpreted to confer a right to recover fees, except where the plaintiff is wealthy enough to afford easily the expense of litigation. Also, the legislative history indicates that successful plaintiffs who are not even obligated to pay their lawyers— for example, persons represented by legal services offices or private legal associations— are entitled to recover fees, on the Piggie Park theory that "private attorneys general" play an important role in vindicating constitutional rights. See remarks of Senator Hart (floor manager of the bill), 114 Cong. Rec. S2308 (daily ed. March 6, 1968). -24- we submit that thisconsidered a procedural matter, provision of the Act should be applied to the instant case. This type of application of new Congressional policy to prior conduct in the civil rights field was seen in Hamm v. City of Rock Hill, 379 U.S. 306 (1964), where the Court held 26/ that the statutory prohibition of interference with equal access to public accommodations abated all pending criminal prosecutions of persons who had sought such access prior to the passage of the Act. Here, an appreciably less significant retrospective application is sought, since the Fair Housing 25/ 25/ Rules governing the retrospective application of the substantive portions of a statute need not be discussed here. Provisions for attorneys' fees are without a doubt procedural. In the cases and statutes pertinent hereto, counsel fees are awarded as part of the costs. Provisions which govern their allowance are found in the procedural sections of the Fair Housing and other Civil Rights Acts. 42 U.S.C. Section 3612(c); 42 U.S.C. Section 2000a-3(b); 42 U.S.C. Section 2000e-5 (k) . In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 403 (1968), the Supreme Court ordered the district court on remand to "include reasonable counsel fees as part of the costs to be assessed against the respondents." This Court in Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 539 (5th Cir. 1970), recognized that "The Newman rule. . .calls for the allowance of attorney fees as part of the costs." (emphasis added) See also Rules 30 (g) , 37 (a), 37 (c) , 54 (d) and 56 (g) of the Federal Rules of Civil Procedure. All refer to attorneys' fees as an element of costs or expenses. 26/ Title II of the Civil Rights Act of 1964, 42 U.S.C. Section 2000a-2. -25- Act was enacted well before Southern Home Sites engaged in 27/its discriminatory conduct and the conduct was in any event illegal under Section 1982. Also relevant is the principle of Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268 (1969), that when there is a change in the law while a case is pending in the courts, the court should generally apply the law in effect 28/ at the time of its decision. Here, the 1968 law was fully applicable prior to the first judicial opinion in this case (the District Court's opinion of April 7, 1969), and it seems quite proper to apply its procedural devices here. Finally, the Supreme Court has recently said of Section 1982 and the Fair Housing Act that "the 1866 Civil Rights Act considered in Jones should be read together with the later statute on the same subject. . . . " Hunter v. 29/ Erickson, 393 U.S. 385, 388 (1969). Moreover, there is 27/ The law was enacted on April 11, 1968, Pub. L. 90-284; 82 Stat. 82; 42 U.S.C. Sections 3601 et_ seq. 28/ See also, United States v. Schooner Peggy, 1 Cranch 103, 110 (1801); Vandenbark v. Owens Illinois Co., 311 U.S. 538 (1941); Ziffrin, Inc. v. United States, 318 U.S. 73 (1943). 29/ The Court was there discussing whether the earlier lawshould be read so as to incorporate the provision of the 1968 statute preserving local fair housing laws, and held that it should. -26- the mandate of 42 U.S.C. Section 1988, requiring that the federal courts, in proceedings to protect and enforce civil rights, be guided not only by the particular statute in question; the courts are directed also to draw from other laws to assure effective remedies for the wrongs involved. The Supreme Court has invoked this provision specifically to supply appropriate remedies under Section 1982. See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969). And this Court has said of Section 1988 that "In civil rights cases, federal courts should use that combination of federal law, common law and state law as will be best adapted to the object of the civil rights laws. . ." Brown v. City of Meridian, 356 F.2d 602, 605 (5th Cir. 1966). Therefore, the 1968 Fair Housing Act should be read harmoniously with Section 1982 to provide a single set of effective remedies under these statutes, and the attorneys' fees provision of the 1968 Act should be applied in this case. -27- CONCLUSION For the reasons stated, the case should be remanded to the District Court with instructions to award reasonable attorneys' fees covering all proceedings in that court and on both appeals of this case. Respectfully submitted, JACK GREENBERG JEFFRY A. MINTZ 10 Columbus Circle New York, New York 10019 REUBEN V . ANDERSON FRED L. BANKS, JR.538 1/2 North Farish Street Jackson, Mississippi WILLIAM BENNETT TURNER 1095 Market Street San Francisco, California 94103 Attorneys for Appellant -28- II The District Court Erred In Dismissing These Cases Without Finding That the School Districts Had Eliminated All Vestiges of Their Racially Dual and Unequal School Systems These cases were dismissed without any finding that the school districts had achieved and maintained unitary status. The district court did not state that the school districts had achieved "unitary status," nor did it state that the districts had eliminated all the vestiges of their racially dual and unequal school systems. The district court's opinions provide only, with respect to Etowah County and Sylacauga City, that they "operated a unitary system over the past several years" (R2-25- 8; R3-24-12); the courc is completely silent on this issue with respect to Talladega City. (R4-26.) In Georgia State Conference of Branches of NAACP v. Georgia. 775 F.2d 1403 (11th Cir. 1985), this Court recognized the confusion over the meaning of the terms "unitary" and "unitary status." The Court explained the difference in a footnote: Some confusion has been generated by the failure to adequately distinguish the definition of a "unitary" school system from that of a school district which has achieved "unitary status." As used in this opinion, a unitary school system is one which has not operated segregated schools as proscribed by cases such as Swann and Green for a period of several years. A school system which has achieved unitary status is one which is not only unitary but has eliminated the vestiges of its prior discrimination and has been adjudicated as such through the proper judicial procedures. Unfortunately, the terminology used to refer to these concepts is not universal. See. e". a . . Castaneda Tv. Pickard! . 648 F.2d [989,] at 996-97 [(5th Cir. 1981)](referring to a school district which does not 25 operate a dual system as having achieved "unitary status"). Id. at 1413 n.12.33 The district court embraced these definitions in its opinions in each of these cases by specifically "adopt[ing] and reiterat [ ing]" the rationale of its opinion in Lee v. Macon County Board of Education (Nunnelley State Technical College). 681 F. Supp. 730, where the court stated: "Unitary status" is a term of nouveau art. The fact that a school district or institution has ceased to operate in a racially segregated fashion, and is, therefore, "unitary" in that limited sense, is not synonymous with a finding that the entity is "fully unitary" or has achieved "unitary, status." Id. at 736 (thereafter citing Georgia State Conference of Branches. and quoting most of the passage set out above.) In light of the district court's acknowledgement that the two terms have different meanings, it cannot be argued that the findings made by the district court are equivalent to findings of "unitary status."34 Indeed, it is difficult to discern why the district court decided to dismiss these cases without making specific "unitary status" findings. Although the court described "unitariness" as a "will-o-the-wisp" concept at one point in its Nunnelley opinion, it concluded that an ad hoc. case-by-case approach to 33 See Monteilh v. St. Landrv Parish School Board. 848 F.2d 625, 629 (5th Cir. 1988). 34 Even if the district court's opinion could somehow be construed to have concluded that all vestiges of the dual systems had been eliminated, such a finding would be clearly erroneous based upon the undisputed facts alleged by plaintiffs. 26 e the issue was "not only unavoidable, but wise." 681 F. Supp. at 730. Nevertheless the court failed to address the question squarely in these cases. This may well have been because of its recognition that even on the facts produced through limited discovery and without the hearing that plaintiffs sought, findings of "unitary status" — which the court at one point in its Nunnellev opinion appears to have equated with unattainable "perfection," see 631 F. Supp. at 739 — could not be justified. Because a finding that a school district has eliminated all vestiges of its racially dual system and thus has achieved "unitary status" must be made before a court can conclude a school desegregation case, Georgia State Conference of Branches. 775 F.2d 1403 ; Pitts v. Freeman. 755 F.2d 1426,35 the district court erred in concluding these cases without making such a finding and the judgment below should be reversed. Ill The District Court Erred In Vacating The Permanent Injunctions Without Finding That They Had Become Burdensome Or Oppressive And That The Dangers Prevented By The Injunctions Had Become Attenuated To A Shadow We have argued above that it was error for the district court to dismiss these cases without holding a hearing and without making a finding of "unitary status." Reversal of the judgment below on either or both of these grounds would 35 See also Lee Macon (Nunnellev State Technical College), County Board of Education 681 F. Supp. at 736. 27 necessarily mean that the portion of the district court's orders vacating all injunctive relief previously granted in these cases also could not stand, inasmuch as the fact of dismissal was the basis for the district court's dissolution of its decrees. We deal in this section of the brief with the separate question whether, even if these school systems have achieved "unitary status" and the cases are properly dismissed, all prior injunctive orders entered in the lawsuits should be vacated.36 There are two aspects of this question: (a) does the achievement of unitary status require dissolution of all prior remedial decrees? (we contend that it does not) , and (b) what is the correct legal standard for determining whether to vacate or modify injunctive relief in a case? The district court dissolved the permanent injunctions entered in these cases because it concluded that defendants have complied with the provisions of the injunctions and, at least as to Sylacauga and Etowah County, have "operated a unitary system over the past several years."37 Equating the determination of unitary status38 with the decision whether to dissolve 36 Thus, even if the Court rejects our earlier arguments, it should reverse so much of the orders below as vacated all prior injunctive decrees in these cases. If the Court agrees with us as to the error of dismissing these cases, it may nevertheless wish to decide the questions addressed in this section of the brief in order to provide appropriate guidance to the district court on remand. 37 See supra note 25. 38 As we have shown in § II above, the district court did not in fact make findings of "unitary status" in this case. (continued...) 28 outstanding permanent injunctive relief, however, conflates the separate substantive issues faced by a court in concluding a school desegregation case — retention of active supervision and dissolution of all injunctive remedies — and displaces the established body of equitable principles applicable to the second inquiry. The fact that a school district has complied with the court's injunctive orders, and perhaps thereby attained "unitary status," does not provide a basis for the conclusion that the injunctions should be dissolved.38 39 In order to afford complete relief, school authorities should be prohibited from taking action that results in the loss of the benefits gained in the litigation; if school authorities' decisions result in reestablishment of the dual system, plaintiffs ought to be able to return to court to protect the relief they obtained, by enforcing the permanent injunction.40 See Keves v. School 38(...continued) However, it purported to apply a legal rule dependent upon such a finding. The discussion in text assumes arguendo that there has been a predicate finding of "unitary status" in a case. 39 In fact this Circuit has never held that a finding of "unitariness" or "unitary status," should be equated with dissolution of all permanent injunctive relief. See Youngblood. Lee v. Macon County (Baldwin County). United States v. Hinds County. United States v. Texas Education Agency. Steele v. Board of Pubic Instruction. Wright v. Board of Public Instruction. Georgia State Conference of Branches. Pitts v. Freeman. United States v. Jackson County cited supra at 19-24 and United States v. Georgia. 691 F. Supp. 1440 (M.D. Ga. 1988). 40 As the Tenth Circuit put it in Dowell v. Board of Education of Oklahoma Citv. 795 F.2d 1516, 1520, 1521 (10th Cir.), cert. denied. 107 S. Ct. 420 (1986), rejecting, the position of the government and the Fourth Circuit in Riddick v. (continued...) 29 District No. 1. Denver. 653 F. Supp. 1536, 1541-42 (D. Colo. 1987) .40 41 The district court relied upon Judge Higginbotham's opinion in United States v. Overton. 843 F.2d 1171 (5th Cir. 1987) (dictum),42 for the proposition "that a finding of 40(...continued) School Board of Norfolk. 784 F.2d 521 (4th Cir.), cert, denied. 107 S. Ct. 420 (1986), "the parties cannot be thrust back to the proverbial first square just because the Court previously ceased active supervision over the operation of the [desegregation p]lan;" in order "[t]o make the remedy meaningful, the injunctive order must survive beyond the procedural life of the litigation." 41 A rather pedestrian example underlines the point. If the plaintiff in a nuisance action obtains an injunction to prevent his neighbor from burning tires in his yard, spreading fumes and particulate matter onto the plaintiff's property, the fact that the neighbor complies with that order for five or ten years does not provide a basis for the court to vacate the injunctive decree and force the plaintiff to file a new lawsuit if the neighbor resumes the practice. In no other area of the law have plaintiffs found any cases where a defendant, after having been found to have violated the law and being enjoined from continuing that violation, is released from all restraint based merely upon a showing that the injunction has not been violated during its continuance, or based upon a finding that the defendant's current behavior conforms to legal requirements. 42 In Overton. a consent decree provided that the plan which it embodied was to be implemented for a period of three years, at the end of which time, "unless there is objection by the parties," the school district "shall be declared to be a unitary school system and this case shall be dismissed." 834 F.2d at 1173. After three years, an objection was made by one of the parties but withdrawn by a further stipulation. After the stipulation expired, the school district adopted a new pupil assignment plan which the original plaintiffs sought to attack as a violation of the consent decree. The district court held that the consent decree was no longer enforceable and the Fifth Circuit agreed, interpreting the decree itself to have terminated at the end of the three-year period. Id. at 1174. Once the panel concluded that the decree was "unenforceable" because it had "expired by its own terms," there was no need to decide any other issue in the case, especially an issue of the (continued...) 30 unitariness calls for the dissolution of permanent injunctive relief previously granted." (R2-25-15; R3-24-15; R4-26-15.)42 43 In so doing, the court below ignored the clear statement of this Court: "That school districts have become unitary, however, does not inevitably require the courts to vacate the orders upon which the parties have relied in reaching that state." United States v. Board of Education of Jackson County. 794 F.2d at 1543 (per curiam). Unless Jackson County is to be overruled, therefore, the trial court's justification for vacating the injunctive decrees in these cases cannot be accepted.44 42(...continued' scope or duration of constitutionally required relief. See United States v. Henry. 709 F.2d 298, 310 (5th Cir. 1983); accord United States v. Stuebben. 799 F.2d 225 (5th Cir. 1986). 43 See Lee v. Macon County (Nunnellev) . 681 F. Supp. at 737. 44 The district court attempted to distinguish Jackson County. stating that the facts underlying that decision are "inapposite" to these cases where "plaintiffs have had [many] years under the benefit of the injunction in which to call to this court's attention any failures on the [School] Board's part to comply with the explicit terms of the permanent injunction." R2-25-15; R3-24-15; R4-26-15. In Jackson County. however, this Court's statement was a necessary rejection of an across-the- board rule advanced by the United States and was not limited to the facts of that suit; rather, it came in response to the argument of the United States "that all orders flowing from desegregation suits must be vacated with the dismissal of the suits and that the unitary nature of the school districts removes any basis for continuing jurisdiction," 794 F.2d at 1543. What was fact-bound about this Court's Jackson County decision was its affirmance of the district court's order there vacating a 1970 decree because it had been complied with, had achieved the purposes for which it was entered, and was no longer necessary: [T]he district court apparently accepted the resolution. modifying the contract as fulfilling the 1970 order. (continued...) - 31 In Swann v. Charlotte-Mecklenburg Board of Education. 402 U.S. 1, 12-16 (1971), the Supreme Court emphasized the holding of Brown v. Board of Education. 349 U.S. 294, 299-300 (1955) (Brown II) that traditional equitable principles would apply in desegregation suits. The traditional equitable principle to be applied in considering a request for modification or dissolution of injunctive relief, once granted, is set forth in United States v. Swift & Company. 286 U.S. 106 (1932), and its progeny: The inquiry for us is whether the changes [in circumstances] are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new circumstances should lead us to change what was decreed after years of litigation with the consent of all concerned. 286 U.S. at 119.44 45 Accord Dowell v. Board of Education of 44(...continued)This contract sufficed to obtain the state assistance that the 1970 order was meant to obtain. Id. This analysis is consistent with the Swift standards, see infra at 32-33. (In Jackson County this Court was not asked to consider the propriety of the district court's vacating the more general 1969 desegregation order. 794 F.2d at 1543.) 45 In Swift. the Supreme Court rejected a request to modify a decree enjoining the continuance of a combination of meatpackers in restraint of trade. At another stage in the Swift litigation, the district court denied a new request for modification of the decree, rejecting the companies' argument that the public would be adequately protected by the ability of the parties to file new lawsuits: It is of no avail to argue, as they have, that the anti-trust laws . . . now provide ample remedies for future violations. The public now enjoys the specific (continued...) - 32 Oklahoma City. 795 F.2d at 1521; Paradise v Prescott. 767 F.2d 1514 n.13 (11th Cir. 1985), aff'd. 107 S.Ct. 1053 (1987) (employment discrimination claim under the Fourteenth Amendment); Cable Holdings of Battlefield. Inc, v. Cooke, 764 F.2d 1466, 1474 n.19 (11th Cir. 1985) (contract, anti-trust, and securities law claims).45 46 The fundamental misconception of the Overton dictum is, we believe, its creation of a remedial jurisprudence in school desegregation cases which is wholly separate and different from these equitable principles, which the Overton panel itself 45(...continued) protections of a decree. The defendants' contention that the general law also forbids the conduct would be equally available to prevent the issuance of any injunction against future conduct, and would render the equitable remedy nugatory. United States v. Swift & Company. 189 F. Supp. 885, 906 (N.D. 111. 1960), aff'd per curiam. 367 U.S. 909 (1961). Accord Securities & Exchange Commission v. Jan-dal Oil & Gas, Inc., 433 F. 2d 304 , 305 (10th Cir. 1970) (rejecting argument that continuance of injunction was unnecessary because it did not "gran[t] the S.E.C. any power that was not contained within the act itself"); United States v. Western Electric Company, Inc. . 592 F. Supp. 846, 854-55 (D.D.C. 1984), appeal dismissed. 777 F.2d 23 (D.C. Cir. 1985). 46 Converting the "unitary status" determination into a decision on dissolution or modification of injunctive relief puts school desegregation cases into a category of their own and affords plaintiffs in these suits less protection from future injury to their constitutional rights than litigants whose claims are purely economic. This is particularly inappropriate, given that the right to be free from discrimination in education is one of the most fundamental constitutional rights. Bob Jones University v. United States. 461 U.S. 574, 592-93 (1983); Brown v. Board of Education. 347 U.S. 483 (1954)(Brown I). 33 recognized were applicable "in other civil litigation, including antitrust and securities cases," 834 F.2d at 1174.47 47 Overton is not persuasive for other reasons. For example, the panel there misconstrued the language of Swann v. Charlotte-Mecklenburg Board of Education. 402 U.S. 1 (1971), upon which it sought to rely. See Overton. 834 F.2d at 1175, text at n.ll. At the end of its opinion, the Supreme Court indicated that following unitariness, in the face of demographic change unaccompanied by school district actions, "a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools," id. at 32, would be required to justify further judicial relief in a desegregation suit. The Overton panel quoted this passage with an ellipsis that uprooted the Supreme Court's language from its context and implied that conduct by school officials which brought about a recurrence of the dual system following "unitariness" could be remedied only upon the showing necessary in a new lawsuit— intentional discrimination — and that school authorities had no continuing obligations after "unitariness": [I]n the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter . . . the racial composition of the schools, further intervention by a district court should not be necessary. 834 F.2d at 1175 (emphasis and ellipsis added by panel). But see the Supreme Court's language, 402 U.S. at 21, discussed below. The Overton panel also erred in attempting to distinguish the Lee v. Macon County (Baldwin County) ruling cited above, 584 F.2d 78 (5th Cir. 1981), which upheld the continuing jurisdiction of the court following "unitariness." The Overton opinion asserted that the statements in the Baldwin County case "that a unitary district is 'bound to take no actions which would reinstitute a dual school system' and that school districts should maintain unitary status once achieved" were made in "reli[ance] upon" the passage it quoted from Swann and were therefore limited to the circumstances of deliberate conduct emphasized by the Overton panel. In fact, the Baldwin County decision cited an entirely different passage from the Swann opinion for its conclusion: In devising remedies where legally imposed segregation (continued...) 34 Plaintiffs-appellants submit that consistent with this Court's decision in Jackson County, the reasoned decision in Dowell. harmonizing remedial principles in school desegregation cases with those in other equitable suits in the federal courts, rather than the mechanical rule espoused by the Overton panel, should govern the issue of modification or dissolution of injunctive relief in school desegregation suits in this Circuit. The court below, however, made no attempt to determine either that all vestiges of the discriminatory conduct by which the dual system was maintained had been removed, or that the possibility that such discriminatory conduct would recur had become "attenuated to a shadow." Its ruling that the prior orders in these cases should be vacated must therefore be reversed. In sum, the district court erred in vacating the permanent injunctions in these cases based on its conclusion that where injunctions have been complied with and the court concludes that the school district is unitary, those injunctions are to be dissolved with dismissal of the case. 47 47(...continued) has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual system. 402 U.S. at 21; see 584 F.2d at 81. Lee v. Macon County (Baldwin County), correctly construed and unaffected by the erroneous characterization of the Overton panel, is controlling here. . See Bonner v. City of Prichard. 661 F.2d 1206, 1209-11 (11th Cir. 1981)(en banc). 35 Conclusion For the reasons stated above, plaintiffs-appellants respectfully request that this Court reverse the final judgments of the district court entered on July 8, 1988, with respect to the Etowah County Board of Education, Sylacauga City Board of Education, and Talladega City Board of Education, dismissing these cases, dissolving all injunctive relief, and terminating jurisdiction. December 16, 1988 Respectfully submitted, SALOMON S. SEAY, JW. IP.O. Box 6215 ''Montgomery, AL 3 6106 (205) 834-2000 JULIUS L. CHAMBERS NORMAN J. CHACHKIN JANELL M. BYRD 99 Hudson Street, 16th FI. New York, New York 10013 (212) 219-1900 Counsel for Plaintiffs- Appellants 36 Certificate of Service copies of the Plaintiff-Appellants' Brief on Appeal from the Northern District of Alabama was served by first class U.S. mail, postage prepaid on the following individuals: Cleophus Thomas, Jr., Esq. P. 0. Box 2303 Anniston, AL 36202 Ralph Gaines, Jr., Esq. Gaines, Gaines & Gaines, P.C. Attorneys at Law 127 North Street Talladega, Alabama 35106 James R. Turnbach, Esq. Pruitt, Turnbach & Warren P.O. Box 29 Gadsden, Alabama 35902 Donald B. Sweeney, Jr. Esq. Rives & Peterson 1700 Financial Center Birmingham, A l a b a m a 35203 Dennis J. Dimsey, Esq. Thomas E. Chandler, Esq. Department of Justice Civil Rights Division Appellate Section P.O. Box 66078 Washington, D.C. 20035-6078 Frank Donaldson, Esq. Caryl Privett, Esq. Office of the United States Attorney 1800 Fifth Avenue North Birmingham, Alabama 35203 Jim R. Ippolito, Jr., Esq. 609 State Office Building Montgomery, Alabama 36130 37 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ANTHONY T. LEE, ET AL., ) Plaintiffs, ) )vs. ) )UNITED STATES OF AMERICA, ) Plaintiff-Intervenor ) and Amicus Curiae, ) )NATIONAL EDUCATIONAL ) ASSOCIATION, INC., ) Plaintiff-Intervenor, ) )vs. ) )MACON COUNTY BOARD OF ) EDUCATION ET AL., ) Defendants. ) ____________________________________ ) UNITED STATES' MOTION AND SUPPORTING MEMORANDUM REQUESTING FURTHER RELIEF On August 8, 1988 the Shelby County Board of Education (Shelby County), in compliance with this Court's order granting the United States' motion to compel, filed its response to objections raised by the United States and private plaintiffs to a finding that Shelby County has achieved unitary status. The United States filed its objections on April 12, 1988, stating that prior to a declaration of unitary status and dismissal, the Shelby County School District (Shelby County) should be required to produce evidence that it has continued to comply with this Court's orders in the area of faculty hiring and promotion. On July 8, 1988, prior to receiving Shelby County's response to the objections filed by the United States and private CIVIL ACTION NO. 7 0-AR-251-S (SHELBY COUNTY) plaintiffs, this Court concluded that a hearing was appropriate to allow the parties to present additional evidence on whether the school district has reached and maintained unitary status sufficiently to allow the action to be dismissed. The defendant school districts were given the option of proceeding to hearing on the question of unitary status and dismissal or of taking nine months to come into compliance. Shelby County chose to proceed to hearing, apparently believing that they are entitled to a finding of unitary status and dismissal of their case. The hearing is currently set for August 31, 1988. In responding to the concerns raised by the United States regarding faculty hiring and promotion, Shelby County admits in its response filed on August 8, 1988 (filed following an order granting the United States' motion to compel such a response), that it hires faculty so that the ratio of black faculty is the same as the ratio of black students in the district. Accordingly, the percentage of black faculty has decreased over time as has the percentage of black students. Such a standard for hiring faculty members is clearly discriminatory, is in violation of this Court's orders,^- and 1 The permanent injunction entered on July 25, 1974 enjoins the school district from operating a dual school system and requires that: Staff members who work directly with children, and professional staff who work on the administrative level, will be hired, assigned, promoted, paid, demoted, dismissed, and otherwise treated without regard to race, color, or national origin. 2 precludes a finding that Shelby County has attained unitary status. The admitted practices of Shelby County of hiring and assigning faculty in accordance with the racial composition of the student enrollment represent, indeed, affirmative, intentional discrimination by the school district. See generally Wyqant v. Jackson Board of Education. 476 U.S. 267 (1986.)2 We note further that the proper standard for faculty assignment within a school district is to assign faculty and staff to district schools so that the ratio of white to black faculty is substantially the same at each school in the district, i.e.. reflects the overall district-wide percentage of faculty. Singleton v. Jackson Municipal Separate School District. 419 F.2d 1211 (5th Cir. 1969), cert, denied, 396 U.S. 1032 (1970). The United States respectfully requests that the Shelby County Board of Education be ordered to cease its current employment practices, and to develop within 60 days a plan for implementing employment procedures which will ensure nondiscriminatory policies and practices in the area of recruitment, hiring, assignment, promotion demotion and termination. 2 The United States does not believe that analysis of statistical evidence is necessary since defendants have admitted on the record that they engage in discriminatory employment practices. We do note that if such statistical evidence were shown, the relevant labor pool would be the Birmingham metropolitan area. In determining whether actual discrimination has occurred, the proper comparison is "between the racial composition of [the school's] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market." Wyqant v. Jackson Board of Education. 476 U.S. 267, 275 (1986); citing, Hazlewood School District v. United States. 433 U.S. 299, 308 (1977). 3 The United States would propose that the parties enter into a consent decree which would commit the defendants to correcting the faculty violation and to continuing to follow the other orders already in place. If this decree is followed for a period of two years, the United States would then join defendants in a motion to dismiss the case. Respectfully submitted FRANK W. DONALDSON United States Attorney WM. BRADFORD REYNOLDS Assistant Attorney General CARYL P. PRIVETT Assistant United States Attorney PAULINE A. MILLER Attorneys Civil Rights Division Department of Justice Washington, D.C. 20035-5958 (202) 633-4092 CERTIFICATE OF SERVICE I hereby certify that on this day of August 25, 1988, I served copies of the foregoing pleading to counsel of record, by depositing copies of said documents in the United States mail, postage prepaid, addressed to: Martin Ray/Raymond Ward Ray, Oliver, Ward & Parsons 2020 University Boulevard P.O. Box 65 Tuscaloosa, A1 35402 James E. Turnbach Pruett, Turnbach & Warren P.O. Box 29 Gadsden, A1 35902 Larry H. Keener Floyd, Keener, Cusimano & Roberts, P.C. 816 Chestnut Street Gadsden, A1 35999-2701 Donald B. Sweeney, Jr. Rives & Peterson 1700 Financial Center Birmingham, A1 35203 Ralph D. Gaines, III Gaines, Gaines & Barnett, P.C. 127 North Street Talladega, Al 35160 Donald Watkins Watkins Carter & Knight 1120 South Court Street Montgomery, Al 36104 Oliver P. Head Wallace, Ellis, Head & Fowler Attorneys at Law P.O. Box 587 Columbiana, Al 35051 H.C. Conwill Conwill & Justice P.O. Box 557 Columbiana, Al 35051 Jim R. Ippolito, Jr. State Department of Education 609 State Office Building Montgomery, Al 36103 Thomas W. Thagard David R. Boyd Balch & Bingham P.O. Box 78 Montgomery, Al 36101 Janell M. Byrd NAACP-LDF 99 Hudson Street 16th Floor New York, New York 10013 Solomon Seay 732 Carter Hill Road P.O. Box 6215 Montgomery, Al 36106 Pauline A. Miller Attorney Civil Rights Division Department of Justice Washington, D.C. 20035-5958