Thompson v. Wilcox County Board of Education Reply Brief for Plaintiffs-Intervenors-Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 73-3543

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

WILLIAM P. THOMPSON, et al.,
Plaintiff s-Intervenors-Appellants, 

PATSIE PRIM, et al.,
Plaintiff s-Interveners-Appellants ,

vs .

WILCOX COUNTY BOARD OF EDUCATION, et al.,
Defendants-Appellees.

On Appeal from the United States District Court for the Southern District of Alabama, Northern Division

REPLY BRIEF FOR PLAINTIFFS-INTERVENORS-APPELLANTS

A. J. COOPER, JR.
1308 West Turner Road 
Prichard, Alabama 36610

JACK GREENBERG 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- Intervenors-Appellants



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 73-3543

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

WILLIAM P. THOMPSON, et al.,
Plaintiffs-Intervenors-Appellants, 

PATSIE PRIM, et al.,
Plaintiffs-Intervenors-Appellants,

vs.

WILCOX COUNTY BOARD OF EDUCATION, et al.,
Defendants-Appellees.

On Appeal from the United States District Court 
for the Southern District of Alabama, Northern Division

REPLY BRIEF FOR PLAINTIFFS-1 NT ERVENORS-APPELLANTS

The private plaintiffs-interveners, appellants before 
this Court, respectfully submit this Reply Brief because (a) the 
Brief for the Appellees, Wilcox County Board of Education, et 
al., completely fails to address the real and substantial issues 
raised, or to in any way explain the irrational and erroneous 
rulings of the court below; and (b) they wish to direct the 
attention of the Court to other relevant authorities on the ques­
tion of an attorneys' fee award.



I

The substantive issues on this appeal may, for the 
sake of convenience, be grouped. We treat the question of an 
attorneys’ fee award in Part II hereof. In the remainder of 
this section, we briefly discuss the other major issues and the 
appellees' non-response in their brief.

A. Wilcox County has for long years after Brown 
continued to operate one of the most openly discriminatory and 
segregated school systems in the Nation. For the sake of 
racial separation, numerous small and inefficient schools, both 
black and white, were maintained without rational educational 
justification. It is not surprising, therefore, that the Title 
IV Center and the parties agreed, during the course of 1he pro­
ceedings below, that consolidation of schools in each atten­
dance area of the county was required both to desegregate and 
to make some start at equalizing the quality of education offered 
black and white students.

Following direct communication to the district court 
by a group of white parents, the court determined to reject the 
consolidation proposals not only of the Title IV Center but also 
of the Wilcox County school board (a decision the school board 
now belatedly offers to support) for the sole, openly admitted, 
and completely unconstitutional reason that the departure of 
the remaining white students from the Wilcox County public 
schools is otherwise feared.

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There is no other justification, proffered or 
deducible, for the district court’s action. The appellees’ 
reference to the fiscal "impossibility" of the Title TV Center 
plan (a subject to which we shall return) is irrelevant to the 
basic issue of student attendance patterns. The school board’s 
proposal of an alternative pairing plan for the Camden Attendance 
Area belies any claim that lack of resources prevents the mere 
consolidation of schools in this, as in other, attendance 
districts. The additional Title IV Center recommendations 
which would require further funds to carry out, relate to the 
equalization of educational opportunities throughout the county, 
and to raising the overall educational level in the county to 
where it might have been but for the decades of senseless waste 
to preserve segregation.

Both the continued maintenance of K-12 centers at 
Camden Academy and Wilcox County High School, and the provision 
of a county-wide minority-to-minority transfer, result from the 
misguided application of a rejected judicial principle: that
failure to desegregate— thoroughly and immediately— can be 
justified by the fear of white flight. See Monroe v. Board of 
Comm’rs of Jackson, 391 U.S. 450 (196S); United States v.
Scotland Neck City Bd. of Educ., 407 U.S. 434 (1972); Franklin 
v. Quitman County Bd, of Educ., 443 F.2d 909 (5th Cir. 1971); 
Brunson v. Board of Trustees of School Dist. No. 1, 429 F .2d 
820 (4th Cir. 1970). But white students may not be enticed to 
remain in the public schools at the expense of their constitu-

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tional operation. The district court’s decision was erroneous 
and should be reversed.

B. Appellees’ discussion of several of the issues 
raised in our opening brief consists of nothing more than their 
bald claim of non-discrimination, unsupported by evidentiary 
citation or legal authority; we respectfully refer the Court to 
the discussion in our opening brief and appendices thereto 
relating to the discharged teachers, advisory council, trans­
portation and student fees.

C. The remaining issue, apart from attorneys’ fees, of 
any significance, concerns the district court’s failure to 
require any meaningful action— now or at any specified date in 
the future— to equalize and improve the quality of educational 
resources made available to black students in Wilcox County.
The appellees attempt to evade this issue, by asserting that 
the Wilcox County school board lacks the power to levy taxes,
or by suggesting that the power of a fedeel court to utilize 
the receivership technique is somehow limited to the facts of 
Turner v. Goolsby, 255 F. Supp. 724 (S.P. Ga. 1966).

All this is, of course, mostly beside the point. And 
the important point is that over the period of this litigation, 
the Wilcox County school system has been uncooperative to the 
extreme; it has acted in a harsh and vindictive manner toward 
black parents, students and teachers alike, in an effort (one 
supposes) to penalize them for having dared to challenge the 
prevailing social order of segregation.

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There is little dispute about the abysmally low 
quality of the education generally offered in the Wilcox County 
public schools, and particularly made available to black students 
in black schools of the county over the past decade. Likewise, 
there can be little doubt upon the entire record of this case 
that many opportunities for correcting this situation were let 
pass in order to maintain segregation so long as possible.

Under the circumstances, the failure of the district 
court to require immediate, affirmative, constructive action, is 
deplorable. Our opening brief suggested the variety of courses 
of action open to the district court: establishing specific
goals and timetables, appointing a receiver to superintend the 
compensatory operation, requiring economic and technical assis­
tance to be furnished by the defendant Alabama state officers 
and bodies, and directly intervening in the process by which tax 
funds are raised. The court below failed to utilize any of these 
techniques.

We cannot understand appellees' citation of Plaquemines 
Parish School Bd. v. United States, 415 F.2d 817 (5th Cir. 1969) 
in support of the district court's passive attitude. In that 
decision, only the directive to apply for all conceivable federal 
funds was held too broad (although this Court emphasized the power 
of the district court to require, upon a showing, application 
for specific program grants). Other provisions of the district 
court's decree in that case, which provided in detail for the 
equalization and improvement of educational offerings, were upheld.

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Given the shocking facts of record in this case, 
we think it plain that some or all of the techniques mentioned 
in our opening brief must be employed in Wilcox County, now.
The experience of the last appeal and remand proceedings indicates 
that such general remands will simply not get the job done. We 
respectfully suggest that this Court fashion the order to be 
implemented upon remand. See Stell v. favannah-Chatham Bd, of 
Educ,, 387 F.2d 486 (5th Cir. 1967).

II
We direct the Court’s attention to the fact that in 

their brief, appellees do not dispute the facts relating to the 
award of attorneys' fees which all parties had expected would be 
entered by the district court. Under the circumstances outlined 
in our opening brief, there is no explanation for the district 
court's determination to deny such an award unless the litigation 
were "terminated" (but cf,, e,q,, Wright v« Board of Public 
Instruction of Alachua County, 445 F.2d 1397 (5thCir. 1971)).
The award of attorneys’ fees is also required, however, by §718 
of the Education Amendments [Emergency School Aid Act] of 1972,
20 U.S.C. §1617.

A substantial portion of the work done by counsel for 
plaintiffs-intervenors, for which legal fees is sought, occurred 
after July 1, 1972, and under the statute an award of fees is 
required (absent special circumstances) for such services. North- 
cross v. Board of Educ. of Memphis, 412 U.S. 427 (1973); Johnson 
v. Combs, 471 F.2d 84 (5th Cir. 1972), rehearing denied, 472 F.2d

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1405 (5th Cir. 1973).

Plaintiffs-intervenors maintain that they are entitled 
to an award of counsel fees for services performed both before 
and after July 1, 1972, on the grounds that (l) §718 must be 
applied to all cases pending on July 1, 1972, regardless of when 
the services were performed, Thorpe v. Housing Authority of 
Durham, 393 U.S. 268 (1969); (2) this litigation confers a sub­
stantial benefit on the schoolchildren of Wilcox County, and the 
cost of the litigation should thus be paid out of the funds of 
the defendant board of education, Hall v. Cole, 412 U.S. 1 (1973);
(3) in maintaining this action, plaintiffs-intervenors and their 
counsel acted as private attorneys general, Lee v. Southern Home 
Sites Corp., 444 F.2d 143 (5th Cir. 1971); and (4) the conduct 
of the defendants, in refusing to integrate voluntarily the Wilcox 
County schools and in unreasonably opposing the granting of ade­
quate relief in this case, constitutes such obdurate obstinacy as 
to require the award of fees. Each or any of these grounds appar­
ently would move the district court to award fees if this action 
were terminated. Such a condition is clearly wrong and this 
Court should therefore direct the award of fees upon remand, in 
the amount already agreed upon by the parties.

Each of these grounds for the award of counsel fees 
also is now being reviewed by the United States Supreme Court 
in Bradley v. School Bd. of Richmond, No. 72-1322 (argued December 
5, 1973). We submit that this Court should not rule directly 
upon any of these four grounds until the Supreme Court has

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decided Bradley, but should withhold any decision on these 
questions pending Bradley, as has been done by another panel 
in Davis v. Board of School Commtrs of Mobile, No. 72-3118 (see 
notice attached as Appendix A hereto).

district court abused its discretion by denying fees in this 
case after the parties had agreed that a fee should be awarded, 
however, and since this ground for an award of counsel fees is 
not pending in nor likely to be affected by the Bradley decision 
the matter could appropriately be resolved by this Court in 
favor of plaintiffs-intervenors, without awaiting the decision 
of the Supreme Court.

plaintiffs-intervenors-appellants respectfully pray that the 
judgment below be reversed and that this Court prescribe the ■ 
Order to be entered upon remand by the district court.

Since plaintiffs-intervenors also maintain that the

CONCLUSION

For the reasons stated above and in our opening brief,

A .  J .  U U U ^ t r t j / J f t .
1308 West Turner Road 
Prichard, Alabama 36610

JACK GREENBERG 
NORMAN J. CHACHKIN 10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Intervenors-Appellants

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0

E D W A R D  W . W A D S W O R T H  
CLritK

Mmtetr States (Jlouri of Appeals
F I F T H  C I R C U I T  

O F F I C E  O F  T H E  C L E R K e o o  c a Vi p  s t r e e t  
N E W  O R L E A N S .  LA .  7 0 1 3 0

r *
\ ff

August. 27, 1973

v.TO ALL COUNSEL OF RECORD:
No. 72-3118 - Birdie Mae Davis^Jet al, vs.

Board of S>cheol Commissionars of 
Mobile County, et al.

Gentlemen:
\

I am directed by the Court to advise that the decision 
in the above referenced case is being withheld pending 
decision of the Supreme Court in Bradley v. School Board 
— — .Richmond> Virginia, certiorari granted on June 11 1973, 41 L.W. 3641.

Very truly yours,
EDWARD W. WADSWORTH, Clerk

"/Richard E. Windhorst, Jr. 
Chief, Judicial Support Division

REW,Jr.:rcv

Messrs. J. u. Blacksher & A. J. Cooker,Jr. 
Mr. Charles Stephen Ralston \ /
Messrs. Victor T. Hudson, A. L. Philips, Jr. 

and James D. Brooks

NTf/'Wy A
•a- • TT-



CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of December, 
1973, I served two copies of the foregoing Reply Brief for 
Plaintiffs-Intervenors-Appellants upon counsel for the parties
herein, by depositing same in the
class postage prepaid, addressed

W. McLean Pitts, Esq.
P. O. Box 722 
Selma, Alabama 36701
John R. Scott, Esq.
U.S. Dept, of Justice 
Washington, D.C. 20530

United States mail, first 
is follows:
Solomon S. Seay, Esq.
352 Dexter Avenue 
Montgomery, Alabama 36104
Thomas W. Thagard, Jr., Esq. 
600 Bell Building 
Montgomery, Alabama 36104

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