Brief for Appellants

     [||cdc63638-c1ed-462a-9098-25593cbc745f||] IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

¥ VS. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICT, et al., 

Defendants-Appellees. 

Appeal From The United States District Court For The 
Northern District of Mississippi 

Delta Division 

" BRIEF FOR APPELLANTS 

JACK GREENBERG 

MELVYN R. LEVENTHAL 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs- 
Appellants 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

vs. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 
DISTRICT, et al., 

Defendants-Appellees. 

CERTIFICATE OF COUNSEL 

The undersigned counsel of record for appellants 

certifies that the following listed parties have an interest 

in the outcome of this case. These representations are made 

in order that Judges of this Court may evaluate possible dis- 

qualification or recusal pursuant to Local Rule 1l3(a) 

l. N.A.A.C.P.Legal Defense Fund 

2. Black school age children of Clarksdale, Mississippi 

3. Board of Trustees of Clarksdale M.S.S.D. 

MELVYN R. LEVENTHAL 
Attorney of Record for 

Appellants. 



TABLE OF CONTENTS 

Certificate Of COUNSEL. ccsecrereseserrenenesesnns ‘e i 

Table Of Cases and StatuteS.c.cececcccecececsss .'s ii 

Statement of the Case...... ses esensts eres snnnns 1 

Statement OF the FaCtSecrtcrrsetecrrtececenee cower 4 

Argument 

I. Attorneys' fees should have been 
awarded because defendants' con- 
duct must be characterized as "un- 
reasonable and obdurately obstinate"...... 15 

II. Attorneys' fees should have been 
awarded for all time expended by 
plaintiffs' counsel under 20 U.S.C. 
810) 7ceccesnnnen MERI aF VI a tere eniesns renee 22 

III. The district court's decision to 
award less than plaintiffs requested, 
in the event plaintiffs prevailed on 
this appeal, failed to specify the rea- 
sons for such a reduction and must be 
re-examined on remanQes ces cesessassscnns 25 

CONC US ION cc ss svt ss nsnnvs sssusnseoos yee ee vee. 25 



TABLE OF CASES 

Albemarle Paper Co. v. Moody, 45 

Le BAe 20 280 (1975) cn vennninnecodvnoinnnsninssons 16 

Bradley v. School Board of City of 
Richmond, Va., 53 P.R.D. 28 
IE De Va: JOT aie env teneerstnesonsnevonvuesiess 16,19 

Bradley v. School Board of the City 
of Richmond, 472 F.2d 318, 
(AL Cir. 1972) nnvuternrernonsneeidanvienioeiosss 16,23 

Bradley v. Richmond School Board, 
415. 0.8. 698 11974) vis snnsntnsrssnunsismsonvns 3,23,24 

Brewer v. School Board of the City of 
Norfolk, 456 F.2d 943 (4th Cir. 
1972), modified, 3500 P.24 1129, 
{GE CA, 1074) i sone vavidovosnniinsssnnesinnsas 23,24 

Bush v. Orleans Parish School Board, 

308 FP.24 491 (Sth Cir. 1082) cus ceeinsvironsoemes 10 

Evers v. Jackson M.8.8.D., 323 P.24 408, 

Bosom eh ia LT) SUI I RB PEC AS 6 

Green v. New Kent County Virginia, 391 
U.S. 430 (1068) ein sisvavsnsovnnisnssnsansnsisissdsns 20 

Henry v. Clarksdale M.S.S.D., 409 F.2d 
682 (5th Cir. 1969), cert. den., 
396 U.S. 940 (1969), 425 F.2d 
698 (1970), 433 2.24 397 (1970), 
480 T.24 583 {1973 vi tsvnivsnnnssvosnensaines passim 

Johnson v. Combs, 471 F.2d 84 (5th 
Cail O72) cninnnuninoneessurienicesnne vo nner ee 3 

Johnson v. Georgia Highway Express, 
488 F248 714 (5Eh Cir. 1974) esses vessnneens 25 

Local 189, United Paperm. & Paperworkers 
v. United States, 416 F.2d 980 
(EI Cire OBO) cess ens r sais tts nnn s bond 18 

Monroe v. Board of Commissioners, 453 F.2d 

259 (6Eh-Qir. 1972) ccensnn iain evinde v sin oo nininte 16 

Plessy v. Ferguson, 163 U.8. 537 (1896) cece eveese 5,11 .7:19 

it 



Singleton v. Jackson M.S.S.D., 419 F.2d 
3211 (5th Cire 1909) use srrsinnrnosnsnsnneesos 13 

Stell v. Savannah-Chatman County Board of 
Bducation, 318 FP.248 425 (5th Cir. 1963)..... 6 

Swann v. Charlotte-Mecklenburg Board of 
BAucation, 202. :U.8. 1 {1971) cecvcvsvenvscnes 20 

STATUTES 

20 U.S.C. §1617 [1718 of the Education 
Amendment Ack OF 1972 cc vnsivsveronssvnnoesns passim 

iii 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PFIPFTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

VS. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICT, et al., 

Defendants-Appellees. 

Appeal From The United States District Court For The 
Northern District Jf Mississippi 

Delta Division 

BRIEF FOR APPELLANTS 

STATEMENT OF THE CASE AND FACTS 

This is a postscript to the protracted Clarksdale 
1/ 

school desegregation litigation. At issue is whether the 

district court erred in denying plaintiffs an award of 

attorneys' fees for time expended prior to the effective 

1/ 409 F.2d 682 (5th Cir. 1969), cert. denied, 396 U.S. 
940 (1969); 425 F.2d 698 (1970); 433 F.2d 387 (1970); 
480 7.24 583 (1973). 



27 
date of 20 U.S8.C. $1617. 

I. 

Proceedings on Motion for Award of 
Attorneys' Fees 

June 22, 1973, this Court entered its opinion affirming 

a district court order requiring the transportation of 

elementary students at school district expense and refusing 

defendants' request for modifications to the plan of pupil 

assignment. 480 F.2d 583 (5th Cir. 1973) (Clarksdale 1IV). 

That opinion also disposed of a motion for an award of fees, 

addressed to this Court, by directing the district court to: 

(a) award fees for time expended subsequent to July 1,1972, 

the effective date of 20 U.S.C. §1617 [§718 of the Education 

Amendments Act of 1972]; and (b) award fees for time ex- 

pended prior to July 1, 1972, in the event plaintiffs demon- 

strated that Clarksdale school officials acted in an "un- 

reasonable and obdurately obstinate" manner during the earlier 

stages of the litigation. No immediate action was taken by 

2/ 20 U.S.C. 81617 provides: 

Attorney fees 

Upon the entry of 4 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 comply 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 
secondary education, the court, in its discretion, 
upon a finding that the proceedings were necessary to 
bring about compliance, may allow the prevailing 
party, other than the United States, a reasonable 

attorney's fee as part of the costs. 



the district court in response to this Court's directive. 

May 15, 1974, the Supreme Court held that attorneys’ 

fees must be awarded in a school desegregation case for time 

expended prior to the effective date of 20 U.S.C. §l617, pro- 

vided the case was still pending on the statute's effective 

date. The Court specifically rejected this Court's holding 

to the contrary in Johnson v. Combs, 471 F.2d 84, 86 (5th Cir. 

1972) and Clarksdale IV, 380 F.2d 583. Bradley v. Richmond 

School Board, 416 U.S. 696, 715.n.20 (1974). 

September 18, 1974, the district court entered an order 

providing plaintiffs 30 days to file a motion and affidavits 

in support of an award of attorneys' fees; the court request- 

ed that plaintiffs distinguish between amounts sought for time 

expended prior to July 1, 1972 from amounts sought for time 

expended subsequent thereto. Defendants were given an 

opportunity to respond. (A. 280 ) The motion, BiTioavice 

and defendants' response were duly filed. (a. 281-292) 

Plaintiffs' sought through affidavits of counsel, $30,260. 

in attorneys' fees for all time expended by all counsel for 

plaintiffs from the suit's inception in 1963 through the full 

decade of litigation culminating in Clarksdale IV. (A. 2860292) 

3/ Through inadvertence, plaintiffs filed their motion for 
an award of fees after they filed their affidavits in support. 

Plaintiffs' motion advanced both traditional equity 
principles and 20 U.S.C. §1617 as bases for a fee award for 
time expended throughout the litigation (A. ) 2° 



November 10, 1975, the district court entered an opinion and 

order: (a) granting plaintiffs $1,500. for services performed 

subsequent to July 1, 1972; (b) holding that, except for 

plaintiffs' August 1, 1972 motion leading to Clarksdale 1V, 

this litigation was inactive at the time of and subsequent to 

the enactment of 20 U.S.C. §1617 and hence no fee award for 

pre-Clarksdale IV work could derive from that statute: 

(c) holding that defendants' conduct in this litigation from 

the filing of the Complaint in 1963 through Clarksdale I 

[409 F.2d 682] could not be characterized as "unreasonable or 

obdurately obstinate;" (d) holding that, although a "close 

factual issue," defendants' conduct could not be so character- 

ized for the period subsequent to Clarksdale I; (e) that in 

the event of reversal in this Court on point "(d)," a reason- 

able fee for all time expended subsequent to Clarksdale I 

would be $10, 000. [$8,500. plus the $1,500 already awarded]. 

(A.293-315). 

Plaintiffs challenge on this appeal holdings "(b)" 

through "(e)" above. 

ll. 

A detailed review of the history of this litigation may 

be necessary for a resolution of the issues presented by this 

appeal: if the court rejects our argument that 20 U.S.C. 

§1617 supports a fee award from the litigation's inception 

then we ask the court to reverse the district court's findings 

that defendants' conduct was not "unreasonable and obdurately 

obstinate;" in addition, the question of whether this case 



was "active" on the effective date of §l617, is illuminated 

by a review of proceedings. 

April 22, 1964, plaintiffs filed their Complaint alleg- 

ing a complete dual racial system-students, faculty, trans- 

portation and extra-curricula activities - highlighted not 

merely by segregation but by violations of Plessy v. 

Ferguson, 163 U.S. 537 (1896), with black schools inferior 

as to monies spent, teacher salaries and training and pupil- 

teacher ratios. The Complaint also alleged, and defendants’ 

Answers admitted, that members of plaintiff class had 

petitioned defendants in 1955, 1963 and 1964 to terminate 

the dual racial system which petitions defendants refused to 

even leis oF (A. 12,-17 -.19); 

the Complaint prayed for, inter alia, a decree "for the re- 

organization of the entire Clarksdale school system into a 

unitary nonracial system . . . [and] costs herein and . . . 

such further, other, additional or alternative relief as may 

appear to the Court to be equitable and just." (A.21-22) 

Plaintiffs also filed a Motion for Preliminary Injunction, 

which included references to then recent authority in the Fifth 

4/ It was alleged, however, that the names of the 1955 
petitioners were published in the local newspaper of 
Clarksdale. O.R. Vol. I, p.7. 

- i 



Circuit holding that exhaustion of the administrative remedies 

under the State's 1954 "Pupil Placement," statute unnecessary. 

Evers v. Jackson M.S.85.D., 328 F.24 408 (5th Cir. 1964); the . 

motion also referred to Stell v. Savannah-Chatham County Board 

of Education, 318 P.24 425 (5th Cir., May 24, 1963) holding 

that proof that racial segregation was "advantageous" to both 

black and white students could not sustain a district court 

decision "reversing" Brown. (A. 23-26) 

June 10, 1964, defendants answered: they admitted that 

schools were operated on a completely dual racial basis but 

denied violations of the Fourteenth Amendment. Two months 

after Evers, supra, they alleged that plaintiffs should be 

required to exhaust remedies under the State's pupil place- 

ment law; in addition, more than a year after Stell, they 

alleged: 

there are such differences and disparities 
between the ethnic group allegedly represent- 
ed by plaintiffs and the Caucasian children 
in the Clarksdale Municipal Separate School 
District as to form a rational basis for 
separating such ethnic groups in the schools 
of the Clarksdale M.S.S.D., and that the 
establishment and maintenance of separate 
specially-adapted schools granting equal 
opportunity for development of the differing 
capacities and abilities of the children of 
the two ethnic groups is most advantageous 
£0 all. 

racial differences are factual differences; 
that neither [defendants] nor those represented by 
them in the Clarksdale M.S.S.D. have ever 
been a party or parties to, or represented 
by counsel, in any cause wherein an integra- 
tion decree was entered and hence they are 
not bound by any decree heretofore rendered 
between other parties. 

(A. 31-32) 



June 10, 1964, defendants moved the district court to 

strike those paragraphs of the complaint alleging violations 

of Plessy on the ground that such allegations "are immaterial 

and impertinent." (A.36-37) 

June 27, 1964, the district court, without hearing, 

entered an order granting plaintiffs' motion for preliminary 

injunction directing defendants to formulate a plan of 

desegregation. (O.R. Vol. I, pp. 40-46) 

July 27, 1964, defendants filed a plan of desegregation 

which proposed to "desegregate" Clarksdale schools through 

geographic zoning. (A. 38-60) July 30, 1964, 

plaintiffs filed objections to the plan noting that the pro- 

posed plan failed to specify zone boundaries so that plaintiffs 

could not determine whether desegregation would be achieved 

under the plan, failed to provide for desegregation of students 

entering the school system for the first time, failed to provide 

for transfer by students making specific requests therefor, all 

of which was required by then controlling precedents of the 

Fifth Circuit. Plaintiffs also objected to the absence of 

any plan to desegregate faculties. (A.62-65) 

August 19, 1964 a hearing on the proposed plan was held; 

at its conclusion the district court entered its decision 

approving defendant's "plan 1" for September, 1964 to be 

modified in January, 1965 upon the completion of the 



5/ 
Riverton Elementary School. The Court made it very clear 

that its decision was "for the interim only, subject to 

complete review and reconsideration by the court as the 

development of this plan . . . occurs." (Trial Transcript 

Vol. lv, p.1l68, A.66-67.) 

After schools opened in September, 1964, and enrollment 

data became available, it became patently clear that nothing 

whatsoever had changed; plaintiffs filed a Motion for Further 

Injunctive Relief alleging, inter alia: 

Based upon information contained in the 
Answers to interrogatories . . . there 
are no Negro children attending schools 
formerly designated solely for white 
children, and no white children attend- 
ing schools formerly designated for 
Negro children. It also appears that 
this situation will not be changed after 
school begins for the second semester of 
the 1964-65 school year. 

The Board's plans are further defective 
in failing to contain provisions for the 
desegregation of teachers and other 
faculty personnel as well as all curric- 
ular and extra-curricular activities. 

(A.69-70). 

The problem with defendants' plan had little to do with 

white flight: 

Traditionally, most Negro residents in the 
city have lived south of the Illinois 
Central tracks while the great majority of 
the white residents have lived north of the 

5/. The school, constructed south of elevated tracks, upon 
opening in January, 1965 enrolled black children only, and 
employed black teachers and administrators only. (O0.R. Vol.I, 

Pp. 



tracks. Under the school board's proposed 
attendance-zone plan, no school child will 
cross those tracks. The result was obvious 
from the beginning: the zoning could produce 
only token desegregation. Henry v. Clarksdale 

M.5.8.D., 409 1.24 682, 686 (5th Cir. 1969) 
(Clarksdale I) (Emphasis added). [See more 
detailed analysis of why segregation was in- 
evitable, 409 F.2d 686, n.8.] 

August 11, 1965, after full hearing, the district court 

entered its first full decision on the merits. It made these 

pertinent findings: (a) defendants proposed plan for elemen- 

tary schools located in the black community (south of rail- 

road tracks) was racially gerrymandered to assure that the 

small white population residing in that area attended its 

formerly white Clark Elementary School: "the evidence 

strongly indicates, if it does not conclusively show, that 

to the west of Wilson Avenue and the subdivision boundary 

(a zone boundary line) the population is white and to the 

east the population is Negro; " (A.89) for this 

reason the Court declined to approve the south elementary 

zone boundaries; (b) faculties and staffs were completely 

segregated; the court declined to require immediate changes 

but put the district on notice that faculty segregation would 

be later considered; (A.97-98) (c) plaintiffs’ 

Plessy allegations "are justified;" defendants were ordered to 

eliminate all disparities in program, salaries and expenditures 

between white and black schools. (A.95-97) In 

other respects, the school district's plan was approved over 

plaintiffs' strenuous objections and Motion to Amend Findings 

and Judgment. '(A.123,129) 



Although this Court had held that black children in 

grades not yet covered by the "stair-step" plan must be given 

an opportunity to individually transfer to white schools, e.g., 

Bush v. Orleans Parish School Board, 308 F.2d 491, 501 (5th 

Cir. 1962), the district court declined to require such a 

provision in defendants' plan; it did require transfer rights 

for pupils desiring to take a course offerred in a school other 

than the ones to which they were assigned. (A. 118-19) 

Betty Jean Yarbrough, one of the courageous named plaintiffs, 

denied an opportunity for a desegregated education under the 

school district's zoning plan by virtue of her residence south 

of the railroad tracks, was impelled to file a Motion for 

Further Relief seeking a transfer to the white Clarksdale High 

School to take Latin - a course not offerred at the black high 

school. {O.R. Vol. 1, p.178) Defendants resisted that motion 

alleging that plaintiff Yarbrough had filed her application for 

transfer one day late. (Vol. I, p.182) The district court 

directed the transfer approved, as required by its earlier 

order, while noting that defendants' position had some merit. 

(O.R. Vol.I, p.202) 

In accordance with the district court's August 11,1965 

order defendants submitted a new plan of geographic zoning 

for the elementary schools located south of the railroad track. 

(O.R. Vol.I, p.191) Plaintiffs filed objections thereto, 

noting that racial segregation throughout the system would 

go uncorrected by defendants' proposal. (0.R. Vol.I,pp.217-221) 

EC Le 



The district court approved defendants' plan, as revised, by 

opinion and order entered December 14, 1965. (A.131-138) 

It is fair to observe that defendants plan provided for 

the assignment of a handful (if that many) black children to 

schools located north of the railroad with the overwhelming 

majority of white students assigned such schools; and it 

provided for the assignment of 115 white elementary students 

residing south of the railroad to one of the several schools 

attended by virtually all of the district's black students. 

Thus, after a year and half of the most intensive 

litigation, Clarksdale changed its plan of pupil and faculty 

assignments not at all. Rights protected by Plessy were 

achieved by order of the district court. And plaintiffs 

noticed their appeal. (0.R. Vol.I, p.247) 

On March 6, 1969, this Court (Judge Cox, sitting by 

designation, dissenting), reversed. It provided this clear 

mandate to the district court and Clarksdale school officials: 

The Board should bear in mind that it 
bears the burden of proving that its ex- 
isting plan of desegregation is adequate 
now 'to convert [the dual system] to a 
unitary system in which racial discrimi- 
nation would be eliminated root and 
branch. If the plan does not promise 
'realistically to work now, ' the Board 
bears the burden of taking corrective 
action. An effective plan should produce 
desegregated faculties, staff, facilities, 
transportation, and school activities 
(such as athletics) along with integrated 
student bodies. If there are still all- 
Negro schools, or only a small fraction 
of Negroes enrolled in white schools, or 

=i ll = 



no substantial integration of faculties and 
school activities then, as a matter of law, 
the existing plan fails to meet constitution- 
al standards as established in Green and its 
companion cases. 

Henry v. Clarksdale M.S.S.D., supra, 409 F.2d 

at 689. 

Defendants skillfully maneuvered to prevent any change 

in their zoning plan effective for the 1969-70 school year. 

Plaintiffs sought an order directing the immediate issuance 

of the mandate in Clarksdale I which was granted. (A.141l) Defendants 

filed a motion in this Court to recall the mandate and filed 

a motion in the district court to stay proceedings pending 

disposition of its motion in this Court; (A.143,149) the district court 

granted defendants' motion, (A.l50a)whereupon plaintiffs filed a motion 

in this Court for an immediate order denying defendants' motion 

for a stay of the mandate; (A.l1l50b) this Court took no action on 

plaintiffs' request nor on defendants' motion to recall the 

mandate. And the district court was to take no action until 

the Supreme Court denied defendants' petition for writ of 

certiorari on November 24, heh 4 (A. 157: 3) 

Two days after certiorari was denied, November 26, 1969, 

the district court entered an order providing for the implementa- 

tion of this Court's March 6, 1969 opinion. The court directed 

school officials to confer with HEW, directed HEW to file a 

6/ During this school year, the black community utterly 
frustrated by its failure to obtain desegregated schools, 
picketed school officials demanding a free transfer right 
to white schools. October, 1969, defendants sought and 
obtained an order enjoining plaintiff class members from 
picketing the homes of counsel opposite and school board 
members. (A.154(b)-(h), 155) 

A 



proposed plan by December 13, 1969, with objections thereto 

filed by the parties by January 2, 1970. (A.157-58) 

HEW duly filed its proposed plan and the parties filed 

objections thereto. Defendants maintained that the geo- 

graphic zoning plan condemned in Clarksdale I, (review of 

which had been declined by the Supreme Court) was in all 
1/ 406 “3 (§ 

respects constitutional. (A.159-164) Hearing was held 

on January 10, 1970; on the same day the district court 

entered orders: (a) requiring defendants to implement fixed 

racial faculty ratios required by the then recently pro- 
8/ 

mulgated uniform Singleton decree, 419 F.2d1211(5th Cir.1969); 

(b) rejecting the HEW plan and the school district's "plan;" 

(c) appointing a special master to formulate and submit to the 

court an alternative plan which satisfied Clarksdale I. (A.173-182) 

id Defendant did offer one proposal; they suggested that 
two new autonomous school districts be formed with the railroad 

tracks the divide. (A. )s 

8/ It appeared that at least plaintiffs would at last have 
desegregated faculties during the second semester of the 
1969-70 school year. But even this defendants avoided by 
ignoring the Court's January 10, 1970 order: March 19, 1971, 
plaintiffs filed a Motion for Supplemental Relief (in effect, 
for contempt judgment), alleging that Singleton faculty ratios 
had not been implemented during the second semester of the 
1969-70 school year; the district court, after a hearing, 
found for plaintiffs, directed fixed ratios for the 1970-71 
school year and observed that defendants failed to offer any 
satisfactory explanation for their failure to comply with 
the Court's January 10, 1969 order. (A.225-230) 

- 13 - 



Plaintiffs appealed and defendants cross appealed 

from the district court's January 10 orders. Plaintiffs 

urged summary reversal under Alexander v. Holmes County 

Board of Education while defendants insisted that their 

geographic zoning plan should be upheld. This Court 

declined to enter any immediate relief and remanded for 

further hearings and findings of fact. 425 F.2d 699 

(5th Cir. 1970) (Clarksdale II) 

Thereafter, the special master filed his plan and 

plaintiffs and defendants filed objections thereto. (183-97) After 

a full hearing, the district court on May 8, 1970, entered 

its opinion and order adopting in toto the special master's 

plan which fully desegregated the junior-senior high school 

grades but left defendants' elementary geographic zoning 

plan in tact. 

Cross appeals with defendants still insisting that 

their 1964 geographic zoning plan was constitutional 

resulted in plaintiffs prevailing on all issues. Clarksdale 

III, 433 F.2d 387 (5th Cif. October 27, 1970); in that 

opinion defendants were characterized as "intransigent." 

433 P.24 at 389, n.s5. 

On remand plaintiffs and the district court labored 

through January, 1971 on the details of a plan of pupil 

assignment. A. 219: ) In March, 1971, defendants’ 

refusal to implement Singleton faculty ratios led to a motion 

ww 14 - 



for supplemental relief; a hearing on that motion was not 

held until May 27, 1971. (A.225-230) See n.7, p.l1l3, above. A plan 

of pupil assignment promising to satisfy constitutional 

requirements and a meaningful merger of faculties was not 

achieved in this school district until the 1971-72 school 

year. 

During the 1971-72 school year, plaintiffs carefully 

reviewed defendants' reports to the court to determine 

whether the plan proved effective in operation. It 4is 

not: on August 8, 1972 plaintiffs filed their motion for 

school district transportation of elementary pupils which 

culminated in an appeal by defendants 
and thé June, 1973 

Y\ 

oa 

Clarksdale IV; (A.256) in addition, defendants’ effort to dispose 

of certain property required an examination of such action 

in light of the "new construction" provisions of the 

desegregation decree, with district court action as late 

as August, 1972. (A. 240-253) 

ARGUMENT I 

The District Court's Findings That 
Defendants Were Not "Unreasonable 
Or Obdurately Obstinate" Both 
Before And After Clarksdale I is 
Inconsistent With Controlling 
Principles. 

Of course, the district court has wide discretion on 

the issue whether defendants' conduct justifies an award of 

attorneys' fees. "But such discretionary choices are not 

left to a court's inclination but to its judgment; and its 

- 15 w- 



judgment is to be guided by sound legal principles." 

Albermarle Paper Co. v. Moody, 45 L.Ed. 24 280, 295 (1975). 

The courts have uniformly held that the issue of 

obstinancy turns on whether plaintiffs were required to 

litigate, i.e., expend considerable resources, to "secure 

what [was] plainly due them." Bradley v. School Board of 

City of Richmond, Va., 53 P.R.D. 28,39 (E.D. Va. 1971) 

"In determining whether this Board's conduct was, as found 

by the District Court, unduly obstinate, we must consider 

the state of the law as it then existed." Monroe v. Board 

of Com'rs of City of Jackson, Tenn., 453 P.24 259, 263 (6th 

Cir. 1972). See similar analysis, Bradley v. School Board 

Of City of Richmond, 472 P.24 318, 320-21: {4th Cir. 1972), 

rev'd on other grounds, 416 U.S. 696 (1974). The district 

court's findings in favor of the Clarksdale defendants must 

be examined and ultimately rejected in light of this 

principle. 

A. Pre-Clarksdale I Proceedings 

The district court, in holding that this case was "hard 

fought on both sides," (Ruling of the Court, p.1l0, herein- 

after, R.C.) as opposed to holding defendants recalcitrant 

and obstinate, made these findings as to pre-Clarksdale I 

proceedings: (a) the Clarksdale school case was the first 

in the Northern District of Mississippi; (b) defendants saw 

fit to adopt a "unique attendance zone plan;" the "plan was 

unusual since most districts were resorting to freedom of 

- 16 = 



choice in efforts to comply with Brown;" (c) the Board's 

plan was approved by District Judge Clayton after a full 

hearing and "many lower court decisions upheld benign 

attendance zone plans when devised without racial overtones 

or motivations;" (d) until Clarksdale I, the school board 

"had readily complied with all court orders, and its actions 

had been upheld, and its legal positions had been upheld." 

(A.310-311) 

The first point, that this was the first school 

desegregation suit filed in the Northern District of 

Mississippi is legally irrelevant; it would be different 

if the district court could have found that Clarksdale 

officials were the first to abandon the "pupil placement" 

ruse or the first to take voluntary steps to desegregate. 

More to the point, plaintiffs repeated petitions to 

defendants - from 1954 through 1963 - for compliance with 

Brown were totally ignored by defendants thereby necessi- 

tating this litigation in the first instance. It was 

error for the district court not to consider these facts. 

The second point, that defendants adopted a "unique 

attendance zone" plan supports plaintiffs position. The 

"result [of the plan] was obvious from the beginning: the 

zoning could produce only token desegregation," Clarksdale I, 

409 F.2d at 686, and an "intent to discriminate may be in- 

ferred from the fact that the defendants persisted in the 

conduct after its racial implications had become known to 

- 17 



them." Local 189, United Paperm. & Paperwork v. United 

States, 416 F.2d 980, 997 (5th Cir. 1969). Since 

defendants' zoning plan achieved no more desegregation 

than any freedom of choice plan then in use, the district 

court erred in finding the plan submitted, evidence of 

good faith. In fact defendants knew that freedom of choice 

have 
in Clarksdale would/producedmore desegregation than geographic 

zoning. 

The third point, that defendants' plan was conceived 

free of racial overtones or motivation is unsupported by the 

record. In fact, as we point out above, p.9, defendants 

plan of pupil assignment was found to entail elements of 

racial gerrymandering and was rejected by the district court. 

The law at the time, as Judge Clayton clearly held, prohibit- 

ed such gerrymandering. And Judge Keady erred, in not 

considering relevant to the issue of obstinancy, that 

defendants' plan of pupil assignment as submitted, was found 

to assure that the only white elementary students residing 

south of the railroad would be assigned to the formerly white 

elementary school. 

Fourthly, that defendants prior to Clarksdale I complied 

with all outstanding court orders is irrelevant to the issue 

of whether defendants were "obdurately obstinate." If fee 

awards turned on proof of contemptuous conduct we would not 

have the "obdurately obstinate" standard. The district 

court's finding that defendants' actions and legal positions 

- 16. 



had been upheld by Judge Clayton is also error. In fact, 

the district court found defendants in violation of Plessy 

and their first plan inconsistent with Brown. 

Under the controlling standard, Judge Keady was required 

to consider - but did not - all of these factors: plaintiffs 

were required to file the lawsuit to uproot the dual racial 

system when Brown had required as much ten years before; 

plaintiffs were required to gather elaborate proof of dis- 

parities between white and black schools and vindicate rights 

assured by Plessy; to prevent the implementation of a plan 

of pupil assignment based upon racially gerrymandered zones, 

plaintiffs were required to gather elaborate proof, and 

present evidence at a lengthy trial when even defendants 

admitted that any such plan would not pass muster. hit is 

not unfair to characterize a defendant's conduct as obstinate 

and unreasonable and as a perversion of the purpose of adju- 

dication, which is to settle actual disputes," when plaintiffs 

must litigate to secure "what is plainly due them." Bradley, 

supra, 53:7.R.D. at 39, 

B. Post-Clarksdale I Proceedings 

The district court began by noting that "in all candor 

. « » this [is] a close factual issue." (R.C. 21) 

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 [from 
Clarksdale I] and by endeavoring to adhere 
to a rejected position. That attitude 
exhibited by the board did thrust upon the 

~~ 10 



Court a heavier burden in trying to resolve 
the Clarksdale school desegregation problems. 
Even so, several factors are present which 
incline this Court against a finding of un- 
reasonable, obdurate obstinancy by the board. 
One factor is that, in the eyes of this Court, 
HEW's plan in 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 school 
structure. The master's services cost the 
school board a fair sum of money, yet it was 
a direct consequence of the board's own 
failure to submit further plans. Neverthe- 
less, 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. 

(R.C. D.22) 

Every point made by the district court either supports 

an award of attorneys' fees or is factually inaccurate. 

Defendants refused to offer any plan other than their geo- 

graphic zoning plan or a proposal to form two new separate 

school districts, from the inception of this litigation through 

Clarksdale III.(A.159,167,183) They took that position after 

certiorari was denied; they took that position after Swann v. 

Charlotte Mecklenberg, Board of Education, 402 U.S. 1 (1971) 

and after Green v. New Kent County, Virginia, 391 U.S. 430 (1968) 

both of which left absolutely no doubt that the Clarksdale 

plan was facially and wholly violative of controlling 

principles of law. During this stage of proceedings the 

district court was impelled to virtually hold defendants in 

contempt for violations of its January 10, 1970 order 

- 20 



requiring merger of faculties. (See above, p. 13, n.7) 

The district court's final thought - that defendants 

defended the special master's plan on appeal is factually 

inaccurate. Defendants never supported any plan but their 
from 

1964 zoning plan in this Court and cross-appealed /the district 

court's order approving the master's plan. 

The district court notes the great burden placed upon 

it by defendants' refusal to offer any new proposal of its 

own, but ignores the equally relevant burden it placed upon 

plaintiffs. We advanced the HEW plan, entered evidence in 

its support and successfully defended it through intensive 

district and appellate litigation, all because defendants 

declined to offer their own constitutional proposal. The 

district court credits the master's plan with developing 

the concept of paired junior-senior high school programs, 

but the HEW plan contained provisions therefor three months 

before the master submitted his report. 

It is also irrelevant that in "the eyes of the 

[district] court, HEW's plan . . . was not satisfactory." 

The key fact is that defendants refused to offer an alter- 

native,a responsibility clearly assigned to them by Brown, 

Green and Swann. 

Again, returning to the controlling principle. The 

right to a new plan of pupil assignment subsequent to 

Clarksdale I, subsequent to the denial of certiorari in 

-tY 



Clarksdale I, subsequent to Swann and Green was "plainly due" 

plaintiffs. The right to merged faculties after the 

Singleton uniform decree was similarly due and it should have 

been unnecessary for them to engage in litigation to obtain 

compliance. 

With due respect to the district court, the issue of 

recalcitrance subsequent to Clarksdale I is not "a close 

factual question." Defendants can cite not a single event, 

nor for that matter did the district court, in support of 

the conclusion from which we appeal. 

ARGUMENT IT 

An Award of Attorneys' Fees Under 
20 U.S.C. 81617 is Required for All 
Time Expended in the Litigation of 
A School Desegregation Case Provided 
Only That the Case Was Pending on 

The Effective Date of the Act. 

The district court held that: 

[Tlhis 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 entered, were being 
complied with, and no appeals remained. 

(emphasis added, R.C. p.1l5) 

This holding is clearly at odds with Bradley v. Richmond 

School Board, 416 U.S. 696, 710 (1974). There the Court 

reviewed a Fourth Circuit holding that "because there were 

no orders pending or appealable on either May 26, 1971, when 

the District Court made its fee award, or on July 1, 1972, 

- 



when the statute became effective, §718 did not sustain 

the allowance of counsel fees." The lower court had found, 

as did the district court in this case, that all substantive 

litigation had ended at the time §718 was enacted and hence a 

fee award for time expended on such litigation was improper. 

In other words, a court was to apply the law controlling at 

the time the violations of law occurred and were litigated. 

Bradley v. Richmond School Board, 472 F.2d 318, 331-32 (4th 

Cir. 1972). 

The Supreme Court reversed holding that "a court is to 

apply the law in effect at the time it renders its decision, 

unless doing so would result in manifest injustice or there 

is statutory direction or legislative history to the contrary." 

416 U.s. at 711. Since the appeals court rendered its 

decision subsequent to the effective date of §718, a fee 

award for time expended well in advance of the statute's 

enactment was proper. The Supreme Court concluded: 

Accordingly, upon considering the rights 
‘ of the parties the nature of the rights, 

and the impact of §718 upon those rights, 
it cannot be said that the application 

’ of the statute to an award of fees for 

services rendered prior to its effective 
date, in an action pending on that date, 
would cause 'manifest injustice.’ 
416 U.S. at 721 (emphasis added) 

The Fourth Circuit en banc, has already applied 

Bradley to a case remarkable similar to ours and in 

plaintiffs' favor. In Brewer v. School Board of the City 

of Norfolk, 456 F.2d 943 (4th Cir. 1972) the appeals court 

approved an award of attorneys' fees for time expended to 

- 23, 



obtain free transportation for students; on remand plaintiffs 

sought fees for all time expended in the litigation which 

request was refused. On a second appeal the Fourth Circuit 

reversed its earlier holding. "As construed in Bradley it 

now appears that §718 provides a vehicle for an award of fees 

for the plaintiffs' attorneys for services rendered without 

limitation to what they did with respect to the issue of free 

transportation." 500 F.2d 1129, 1130 (4th Cir. 1974) (en banc). 

Alternatively the district court held that a fee award 

was barred by laches - i.e., that plaintiffs request for 

fees,filed either in the Court of appeals through Clarksdale IV 

or on remand therefrom,came too late. 

In fact, plaintiffs filed a motion for attorneys' fees 

at the approximate conclusion of the litigation which dates 

not from the approval of a plan of pupil assignment effective 

for the 1971-72 school year, but from after that plan was 

modified and proved constitutional in operation. Every 

significant order entered by Judge Clayton and Judge Keady 

properly noted that the Court retained jurisdiction to examine 

the plan in light of the school district's experiences. §718 

clearly provides for the award of fees upon the entry of a 

Hfinal order." Although a district court, upon application 

of plaintiffs may make a fee award "incident to the final 

disposition of interim matters," to prevent "substantial 

hardship on plaintiffs and their counsel," Bradley, supra, 

416 U.S. at 723, a request for fees at the time the orders 

- 24 



entered prove their efficacy, is timely under the clear 

language of §718. 

111. 

The district court held that in the event of reversal 

by this Court it will, on remand, reduce plaintiffs' award 

of fees for post Clarksdale I litigation from the requested 

$12,500. to $10,000. The district court offered no explanation 

for the reduction in the face of defendants' failure to object 

to either the hourly rate claimed or plaintiffs' statement of 

hours expended. (A. ) This is error under Johnson v. 

Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974) and the 

district court must make specific findings which support its 
S/ 

decision to substantially reduce the award. 

CONCLUSION 

For the foregoing reasons the district court's Judgment of 

November 10, 1975 must be vacated and the case remanded for an 

award to plaintiffs' of counsel fees, from the date litigation 

began through the present, and in an amount to be established on 

remand with the district court guided by the standards of Johnson 

v. Georgia Highway Express. 

Respectfully submitted, 

JACK GREENBERG 

MELVYN R. LEVENTHAL 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs- 
Appellants 

9/ The district court did not state the fee it would award in the 
event of reversal in this Court of its decision to deny fees for 
pre-Clarksdale I litigation. Accordingly, in the event this Court 
requires a fee award for pre-Clerksdale I litigation a Georgia Highway 

Express inquiry will also be required for that earlier period. 

- 05 [||cdc63638-c1ed-462a-9098-25593cbc745f||]