Clark v. Little Rock Board of Education Brief for Plaintiffs-Appellants
Public Court Documents
January 1, 1971
Cite this item
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Brief Collection, LDF Court Filings. Clark v. Little Rock Board of Education Brief for Plaintiffs-Appellants, 1971. e71fc692-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/21e70841-0663-440f-a9ef-bff933cbac9f/clark-v-little-rock-board-of-education-brief-for-plaintiffs-appellants. Accessed July 20, 2025.
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Table of Cases
Table of Contents
Page
. ii
Preliminary Statement ....................
Issues Presented for Review ............
Statement of the Case ....................
ARGUMENT
I The District Court Ignored Constitutional
Requirements By Not Ordering Elementary
School Desegregation Earlier Than The 1972-73 School Year ......................
II The District Court Erred in Refusing To
Require Assignment Of Faculty And Staff
Members In Accordance With Objective Criteria ........................
Ill The Plan Approved By The District Court
Closes Black Schools, Overcrowds White
Schools And Places Heavier Burdens In
The Desegregation Process Upon Black
Students, All For Impermissible Racial Reasons ......................
IV The District Court Should Have Awarded
Attorneys’ Fees To The Plaintiffs ..........
Conclusion ..........
1
1
7
21
33
38
51
57
APPENDICES
A Prior History of the Litigation
B Defendants' Exhibit No. 8
C Goss v. Board of Educ. of Knoxville,
U.S. (unnumbered. June 30f 1971)
D Lee v. Macon County Bd. of Educ.. Civ.
No. 70-251 (N.D. Ala., July 13, 1971)
E Bradley v. School Bd. of Richmond. Civ.
No. 3353-R (E.D. Va., May 26, 1971)
F Be3-1 v. West Point Municipal Separate
School Dist., No. 30175 (5th Cir., July 8, 1971)
G Lee v. Macon County Bd. of Educ.. No. 30154 (5th Cir., June 29, 1971)
Table of Cases
Page
Aaron v. Cooper, 143 F. Supp. 855 (E.D.Ark. 1956) .......................... . 21, 56
Aaron v. Cooper, 243 F.2d 361 (8th Cir. 1957) . . 21
Aaron v. Cooper, 156 F. Supp. 220 (E.D.
Ark. 1957), aff'd sub nom. Faubus
v. United States, 254 F.2d 797 (8th Cir.), aff'd sub nom. Cooper v. Aaron, 358 U.S. 1 (1958) ........................ . 21
Aaron v. Cooper, 163 F. Supp. 13 (E.D. Ark.),
cert, denied, 357 U.S. 566, rev'd 257
F.2d 33 (8th Cir.), aff'd 358 U.S. 1 (1958) ...................... . 21
Aaron v. Cooper, 261 F.2d 97 (8th Cir. 1958) . 22
Aaron v. McKinley, 173 F. Supp. 944 (E.D.
Ark.), aff'd sub nom. Faubus v. Aaron, 361 U.S. 197 (1959) ................ . 22
Aaron v. Tucker, 186 F. Supp. 913 (E.D. Ark.
1960), rev'd sub nom. Norwood v. Tucker,
287 F.2d 798 (8th Cir. 1961) .......... . 22
Alexander v. Holmes County Bd. of Educ.,
396 U.S. 19 (1969) ................ . 23, 25, 27,
30, 31
Arkansas Educ. Ass'n v. Board of Educ. of
Portland, No. 20,412 (8th Cir., July 26, 1971) ........................ . 36
Bell v. West Point Municipal Separate School
Dist., No. 30175 (5th Cir., July 8, 1971) . 46
Board of Educ. of Little Rock v. Clark, 401 U.S. 971 (1971) .................. . 10, 34, 53
Bradley v. School Bd. of Richmond, 324 F.Supp. 456 (E.D. Va. 1971) .............. . 49
Bradley v. School Bd. of Richmond, Civ. No.
3353-R (E.D. Va., May 26, 1971) ........ . 54, 55
Brown v. Board of Educ., 349 U.S. 294 (1955) . . 21
Brown v. County School Bd. of Frederick
County, 327 F.2d 655 (4th Cir. 1964) . . . . 56
11
Table of Cases (continued)
Page
Byrd v. Board of Directors of Little Rock
school Dist.f Civ. No. LR-65-C-142 (E DArk. 1965).......................... * 22
Carter v. West Feliciana Parish School Bd., 396
U.S. 226 (1969), 396 U.S. 290 (1970)........ 25
Chambers v. Hendersonville City Bd. of Educ.
364 F. 2d 189 (4th Cir. 1966)........*! . . 34
Clark v. American Marine Corp., 320 F. Supp. 709
(E-D. La. 1970), aff'd 437 F.2d 959 (5th Cir. 1971) ..............
Clark v. Board of Educ. of Little Rock, 369 F 2d 661 (8th Cir. 1 9 6 6 ) ..........[ / #
Clark v. Board of Educ. of Little Rock, 426 F.2d
1035 (8th Cir. 1970), cert, denied, u S___ (1971)....................... — *
Clark v. Board of Educ. of Little Rock, Civ.
No. LR-64-C-155 (E.D. Ark., August 17, 1970)
Clark v. Board of Educ. of Little Rock, 316 FSupp. 1209 (E.D. Ark. 1 9 7 0 ) ..........*.
54
51
7, 8, 23, 51
23
24
Clark v. Board of Educ. of Little Rock, No.
20485 (8th Cir., Feb. 2, 1971)(dissenting opinion) ..................
Clark v. Board of Educ. of Little Rock, No.
20485 (8th Cir., May 4, 1971) . 24
Clark v. Board of Educ. of Little Rock, Civ. No.
LR-64-C-155 (E.D. Ark., July 16, 1971) .
Dyer v.
Gordon v
No.
Love, 307 F. Supp. 974 (N.D. Miss.
. Jefferson Davis Parish School Bd.
30075 (5th Cir., June 28, 1971)
1968)
. 24, 33
. 56
. 46
Goss v. Board of Educ. of Knoxville, U.S.
___ (unnumbered, June 30, 1971) "T~.
Green v. County School Bd. of New Kent Countv 391 U.S. 430 ( 1968)................ /
Green v. School Bd. of Roanoke, Civ. No. 1093
(W.D. Va., August 11, 1970), aff'd sub nom.
Adams v. School Dist. No. 5, No. 14,695
(4th Cir., June 10, 1971) . \
27-28, 31
56
44
i l l
Table of Cases (continued)
Page
Haney v. County Bd. of Educ., 429 F.2d 364 (8th Cir. 1970) ........
Jackson v. Wheatley School Dist., 430 F 2d 1359 (8th Cir. 1970) . . .
Kelley v. Metropolitan County Bd. of Educ. of
Nashville, 436 F.2d 856 (6th Cir. 1970) . 27
Kelley v. Metropolitan County Bd. of Educ. of
Nashville, Civ. No. 2094 (M.D. Tenn., June 28, 1971) ........
Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir 1971) .......... . 54
Lee v. Macon County Bd. of Educ., Civ. No.
70-251 (N.D. Ala., July 13, 1971)
Lee v. Macon County Bd. of Educ., No. 30154 (5th Cir., June 29, 1971)
Lee v. Southern Horne Sites, Inc., 429 F 2d 290 (5th Cir. 1970) . . . . 54
Mapp v. Board of Educ. of Chattanooga, Civ. No. 3564 (E.D. Tenn., July 26, 1971) . 32
Miller v. Amusement Enterprises, 426 F 2d 534 (5th Cir. 1970) . . . 54
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) . . . . 54
Northcross v. Board of Educ. of Memphis, 397 u S 232 (1970) . . . . . 23, 25
Parham v. Southwestern Bell Tel. Co.. 433 F 2d 421 (8th Cir. 1970) . 54
Pate v. Dade County School Bd., 434 F.2d 1151 (5th Cir. 1970) . . . 32
Quarles v. Oxford Municipal Separate School
Dist., civ. No. WC6962-K (N.D. Miss., January 7, 1970) (oral opinion) . . 45
IV
Table of Cases (continued)
Page
Rolfe v. County Bd. of Educ., 282 F. Supp.
192 (E.D. Tenn. 1966), aff'd 391 F.2d 77(6th Cir. 1968) 37
Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d
3 (1962)....................................... 22
Smith v. Board of Educ. of Morrilton, 365 F.2d770 (8th Cir. 1966) .......................... ..
Smith v. St. Tammany Parish School 3d., 302 F.Supp. 106 (E.D. La. 1969) 44
Stell v. Savannah-Chatham Bd. of Educ., No.
71-2380 (5th Cir., August 2, 1971) ............ 28-29
Swann v. Charlotte-Mecklenburg Bd. of Educ.,
U.S. ___, 28 L.Ed.2d 588 (1971) . . . .“7“. . . 10, 24, 27, 32
38, 46, 52̂ 56
Swann v. Charlotte-Mecklenburg Bd. of Educ.,
Civ. No. 1974 (W.D.N.C., June 22, 1971) . . . . 46
Swann v. Charlotte-Mecklenburg Bd. of Educ.,
Civ. No. 1974 (W.D.N.C., June 29, 1971) . . . . 32
United States v. Board of Educ. of Baldwin County423 F. 2d 1013 (5th Cir. 1970) ............ 31
United States v. Sheet Metal Workers, 416 F.2d123 (8th Cir. 1969) .......................... ..
United States v. Texas Education Agency, 431F. 2d 1313 (5th Cir. 1970) .................... 32
Walton v. Nashville Special School Dist., 401 F.2d137 (8th Cir. 1968) .......................... 34
v
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
NO. 71-1415
DELORES CLARK, et al..
Appellants,
vs.
BOARD OF EDUCATION OF THE LITTLE ROCK SCHOOL DISTRICT, et al..
Appellees.
Appeal from the United States District Court for the Eastern District of Arkansas
BRIEF FOR APPELLANTS
Preliminary Statement
This is an appeal from the July 16, 1971 decree
of the United States District Court for the Eastern
District of Arkansas, Hon. j. Smith Henley, Chief Judge.
Issues Presented for Review
1* Did the district court commit constitutional
error in failing to order elementary school desegregation
until 1972-73?
Aaron v. Cooper, 143 F. Supp. 855 (E.D. Ark. 1956)
Aaron v. Cooper, 243 F.2d 361 (8th Cir. 1957)
Aaron v. Cooper, 156 F. Supp. 220
(E.D. Ark. 1957), aff'd sub nom.
Faubus v. United States, 254 F 2d (8th Cir.), aff'd sub nom.
Cooper v. Aaron, 358 U.S. 1(1958)
Aaron v. Cooper, 163 F. Supp. 13 (E.D.
Ark.), cert, denied, 357 U.S.
566, rev'd 257 F.2d 33 (8th Cir.). aff'd 358 U.S. 1 (1958)
Aaron v. Cooper, 261 F.2d 97 (8th Cir 1958)
Aaron v. McKinley, 173 F. Supp. 944
(E.D. Ark.), aff'd sub nom.
Faubus v. Aaron, 361 U.S. 197(1959)
Aaron v. Tucker, 186 F. Supp. 913
(E.D. Ark. 1960), rev'd sub
nom. Norwood v. Tucker, 287 F 2d 798 (8th Cir. 1961)
ALEXANDER v. HOLMES COUNTY BD OF EDUC 396 U.S. 19 (1969)
Brown v. Board of Educ., 349 u S 294 (1955)
Byrd v. Board of Directors of Little
Rock School Dist., civ. No. LR-
65-C-142 (E.D. Ark. 1965)
CARTER v. WEST FELICIANA PARISH SCHOOL
BD., 396 U.S. 226 (1969), 396 U.S 290 (1970)
Clark v. Board of Educ. of Little Rock
426 F.2d 1035 (8th Cir. 1970),
cert, denied, ___ U.S. ___ (1971)
Clark v. Board of Educ. of Little Rock
Civ. No. LR-64-C-155 (E.D. Ark., August 17, 1970)
Clark v. Board of Educ. of Little Rock,
316 F. Supp. 1209 (E.D. Ark. 1970)
Clark v. Board of Educ. of Little Rock
No. 20485 (8th Cir., May 4, 1971)#
Clark v. Board of Educ. of Little Rock
Civ. No. LR-64-C-155 (E.D. Ark July 16, 1971)
-2-
GOSS v. BOARD OF EDUC. OF KNOXVILLE,U.s. ___ (unnumbered, June 30,’1971)
Kelley v. Metropolitan County Bd. of
Educ. of Nashville, 436 F.2d 856 (6th Cir. 1970)
Mapp v. Board of Educ. of Chattanooga,
Civ. No. 3564 (E.D. Tenn., July 26, 1971)
Northcross v. Board of Educ. of Memphis 397 U.S. 232 (1970)
Pate v. Dade County School Bd., 434 F.2d 1151 (5th Cir. 1970)
Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962)
STELL v. SAVANNAH-CHATHAM BD. OF EDUC.
No. 71-2380 (5th Cir., August 2,1971)
Swann v. Charlotte-Mecklenburg Bd of
Educw __^ U.s. , 28 L.Ed. 2d588 (1971J
Swann v. Charlotte-Mecklenburg Bd. of
Educ., Civ. No. 1974 (W.D.N.C.,June 29, 1971)
United States v. Board of Educ. of
Baldwin County, 423 F.2d 1013 (5th Cir 1970)
United States v. Texas Education Agency 431 F.2d 1313 (5th Cir. 1970)
2. Should the district court have required defen
dants to assign faculty and staff members according to
objective criteria?
ARKANSAS EDUC. ASS'N v. BOARD OF EDUC OF
PORTLAND, No. 20,412 (8th Cir., July 26, 1971) *
Board of Educ. of Little Rock v. Clark 401 U.S. 971 (1971)
-3-
Chambers v. Hendersonville City Bd. of
Educ., 364 F.2d 189 (4th Cir. 1966)
Clark v. Board of Educ. of Little Rock,
No. 20485 (8th Cir., Feb. 2, 1971)
(dissenting opinion)
HANEY v. COUNTY BD. OF EDUC., 429 F.2d 364 (8th Cir. 1970)
Jackson v. Wheatley School Dist., 430 F.2d 1359 (8th Cir. 1970)
LEE v. MACON COUNTY BD. OF EDUC., Civ. No.
70-251 (N.D. Ala., July 13, 1971)
Rolfe v. County Bd. of Educ., 282 F. Supp.
192 (E.D. Tenn. 1966), aff'd 391 F.2d 77 (6th Cir. 1968)
Smith v. Board of Educ. of Morrilton, 365 F.2d 770 (8th Cir. 1966)
UNITED STATES v. SHEET METAL WORKERS, 416 F.2d 123 (8th Cir. 1969)
3. Should the district court have disapproved the
school district's desegregation plan and its renewal of
construction at Henderson Junior High School because they
placed the burden of desegregation upon black students?
BELL v. WEST POINT MUNICIPAL SEPARATE SCHOOL
DIST., No. 30175 (5th Cir., July 8, 1971)
Bradley v. School Bd. of Richmond, 324 F.Supp. 456 (E.D. Va. 1971)
Gordon v. Jefferson Davis Parish School Bd.,
No. 30075 (5th Cir., June 28, 1971)
Green v. School Bd. of Roanoke, civ. No. 1093
(W.D. Va., August 11, 1970), aff'd sub
nom. Adams v. School Dist. No. 5, No.
14,694 (4th Cir., June 10, 1971)
HANEY v. COUNTY BD. OF EDUC., 429 F.2d 364 (8th Cir. 1970)
-4-
Kelley v. Metropolitan County Bd. of
Educ. of Nashville, Civ. No. 2094 (M.D. Tenn., June 28, 1971)
LEE v. MACON COUNTY BD. OF EDUC.,
No. 30154 (5th Cir., June 29,1971)
QUARLES v. OXFORD MUNICIPAL SEPARATE
SCHOOL DIST., Civ. No. WC6962-K (N.D. Miss., January 7, 1970)(oral opinion)
Smith v. St. Tammany Parish School Bd.,
302 F. Supp. 106 (E.D. La. 1969)
4. Should the district court have awarded
attorneys' fees to plaintiffs?
Aaron v. Cooper, 143 F. Supp. 855 (E.D Ark. 1956)
Board of Educ. of Little Rock v Clark 401 U.S. 971 (1971)
BRADLEY V . SCHOOL BD. OF RICHMOND, Civ. No. 3353-R (E.D. Va., May 26,1971) r
Brown v. County School Bd. of Frederick
County, 327 F.2d 655 (4th Cir. 1964)
Clark v. American Marine Corp., 320 F. Supp. 709 (E.D. La. 1970),
aff'd 437 F.2d 959 (5th Cir. 1971)
CLARK v. BOARD OF EDUC. OF LITTLE ROCK 369 F.2d 661 (8th Cir. 1966)
Clark v. Board of Educ. of Little Rock
426 F.2d 1035 (8th Cir. 1970)
DYER v. LOVE, 307 F. Supp. 974 (N.D.Miss. 1968)
Green v. County School Bd. of New Kent
County, 391 U.S. 430 (1968)
Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971)
-5-
429Lee v. Southern Home Sites, Inc.,
F.2d 290 (5th Cir. 1970)
Miller v. Amusement Enterprises, 426 F.2d 534 (5th Cir. 1970)
Newman v. Piggie Park Enterprises,
Inc., 390 U.S. 400 (1968)
PARHAM v. SOUTHWESTERN BELL TEL. CO., 433 F.2d 421 (8th Cir. 1970)
Swann v. Charlotte-Mecklenburg Bd. ofEduc., ___ U.S. ___, 28 L. Ed. 2d588 (1971)
-6-
Statement of the Case
-̂s the second appeal from proceedings on
remand from this Court's decision in Clark v. Board of
Educ. of Little Rock. 426 F.2d 1035 (8th Cir. 1970). The
history of this litigation prior to that time is reprinted
as Appendix "A" infra for the convenience of the Court.
Further description may be found in the Brief filed by the
plaintiffs in the 1970 appeal, No. 20485, and that Brief
is, for the purpose of brevity, hereby adopted by reference.
The Little Rock School District encompasses most
of the city of Little Rock and some western portions of
Pulaski County. The pupil population projected for the
district for 1971-72 is 23,208; by race, 13,695 pupils are
white and 9,513 are black. By grade levels, 34.1% of the
pupils in the upper three grades are black, 39.2% of the
pupils in grades 8 and 9 are black; 40.5% of the pupils in
grades 6 and 7 are black; and 44.8% of the elementary pupils
are black (DX 1001, 1020-1024).
the 1970—71 school term, the district
operated five senior high schools, seven junior high schools,
?nd thirty-one elementary schools. The racial compositions
of the schools generally reflected the racial constituencies
of the neighborhoods in which they were located, and were
thus essentially the same as the 1969-70 assignment pattern
condemned by this Court in Clark, supra. The exceptions
were those instances where black pupils in grade 10 were
-7-
assigned by court decree to either Hall or Parkview schools
as part of the proposed phasing out of Mann High School.-^
The segregated character of the neighborhoods in
i'̂ -ttle Rock is the result of State, as well as private,
action. The Little Rock Housing Authority and the Little
Rock urban renewal agency, as well as the Model Cities
agency (all federal programs) have fostered segregated housing
1/ Despite this Court's opinion of May 13, 1970, Clark v.
Board of Educ. of Little Rock, supra, the Little Rock
schools' operations have remained relatively unchanged
except at the senior high school level. The most notable
and alarming change affected Horace Mann Senior High School.
In a plan submitted to the District Court on August 10, 1970,
the Board proposed the complete phasing out of Horace Mann
High in two stages by September, 1971. This plan, opposed
by the patrons and by the defendants themselves, was first
suggested by the district court (see Transcript of Proceedings, August 6, 1970, pp. 120-23).
On August 6, 1970, the Superintendent of Schools stated:
" . . . we have no plans whatsoever to propose the closing
of Mann High School, due to the fact that we fully recognize that the Mann High School community wants the Mann High
School" (Transcript of Proceedings, August 6, 1970, p. 122). The District Court then asked counsel for plaintiffs if
counsel would oppose such a closing if the Court did it.
Just three days after this colloquy, the school district did
propose the closing of Mann High School, and in justification of this abrupt and dramatic reversal, we find the same
Superintendent testifying just one week later concerning the closing of Mann, as opposed to Parkview High School:
I think there is a practical aspect to this, and that is, that we will have less diffi
culty, perhaps, in getting black students
enrolled in Hall, in Parkview, than we would
expect or experience — being totally practical
about this — than we would experience in
getting white students transported across the
city and enrolled in the Mann High School building.
(Transcript of proceedings, August 13, 1970, p. 20). Under
the plan proposed for the school year 1971-72, Mann will be
operated as an 8th and 9th grade school while Central, Hall
and Parkview will serve the 10th, 11th and 12th grades. Dur
ing the school year 1970-71, Mann housed the 11th and 12th grades only.
-8-
conditions. Clifton Giles, the Director of the Little Rock
Housing Authority and urban renewal agency, testified that
public housing projects in Little Rock were created on a
racially identifiable basis (Tr. 5 1 6 - 2 0 ) , and were located
near schools. Urban renewal relocated blacks from the
midtown West Rock area to east side black areas and rede
veloped West Rock into a white area consistent with its
surrounding neighborhoods (Tr. 515-20). The Housing Auth
ority has no present plans to locate any projects west of
University Avenue (Tr. 531). There exists no policy of
promoting integrated housing patterns by any of these
agencies (Tr. 543-44).
Nathaniel Hill, Director of the Model Cities
program, testified that the Model Cities area in eastern
Little Rock is 85% black and that there are no plans to
increase the white residency (Tr. 546). He does not expect
the racial constituency to change at all in the foreseeable
future (Tr. 548) except to become increasingly black (Tr.
549) .
During the school year 1970-71, the school
district entered into a program of construction to enlarge
the white Henderson Junior High School located in western
Little Rock. Injunctive relief against the construction
was sought pending decision by this Court of the appeal in
^ Cit?oi?nS in the foritl "Tr* ___" are to the Transcriptof 1971 proceedings, copies of which have previously been furnished to the Court.
-9-
this case then under submission, but was denied by the
district court (Order of December 18, 1970). Relief was
unanimously granted by this Court but, by an equally divided
vote, conditioned upon a penal bond in the amount of $25,000
(Order of December 28, 1970). Later the same Court required
that the bond be posted by February 1, 1971 (Order of Jan
uary 20, 1971). The Supreme Court reversed and eliminated
the bond requirement pending decision of the case in chief
on its merits by this Court. Board of Educ. of Little PopV
v. Clark, 401 U.S. 971 (1971).
On April 20, 1971, the Supreme Court rendered its
decisions in the "busing" cases. See Swann v. Charlotte-
Mecklenburg Bd. of Educ., ___ U.S. ___, 28 L.Ed.2d 588 (1971).
Pursuant thereto, on May 4, 1971, this Court remanded this
case to the district court with instructions regarding timing
for preparation and presentation of appropriate plans, and
for decision. This Court indicated that appeals would be
expedited and decided prior to the opening of the 1971-72
school term (presently scheduled to commence August 31, 1971).
The District's Proposed Plan
The school district's initial plan submitted for
approval to the District Court on June 8, 1971, may be
summarized as follows:
(a) It proposed to continue grades 1 through 5
substantially unchanged, with pupil assignments e mg based primarily on a zoning system. Ac
cordingly, the racial composition of the elementary schools would continue to reflect the
racial composition of the neighborhoods in which
-10-
the schools were located except for the
dispersal of black students from Gibbs to seven western schools, see below.
(b) It proposed to desegregate the upper seven
grades by restructuring the grade levels. Grades
6, 7, and 8 would form one unit, grades 9 and 10 another, and grades 11 and 12 yet another.
There would be two eleventh and twelfth grade
schools, Hall and Parkview, both of which would
be located in the western (white) part of the
city, to accommodate the estimated 2900 pupils in those grades (DX 1009). Central and Mann,
located in the largely black central and eastern
areas of Little Rock, would house the estimated
3400 9th and 10th grade pupils (DX 1010). The
sixth, seventh and eighth grade pupils would be
placed in Dunbar-Gibbs, Pulaski Heights Junior- Elementary, Forest Heights, Henderson, and Southwest-Bale schools (DX 1011).
(c) it proposed to achieve substantial racial
balance in all of the secondary schools except
Gibbs-Dunbar, which would house approximately 50% of the black school population in grades
6, 7, and 8 (the middle school grade levels) in an identifiably black school.
(d) It proposed to assign the almost all-black student body of Gibbs elementary school, now
without a school, to seven western white
elementaries, while assigning the almost all-
white student bodies of Bale Elementary School
and Pulaski Heights Elementary School, now also
without school buildings, to other elementary
schools in zones contiguous to those of their former facilities.
(e) it proposed to afford transportation only to those pupils in the middle school grades (Tr. 229-30).
(f) It proposed to use black Booker Junior High School as an adjunct to Metropolitan High
School, a vocational-technical school, and to utilize a "choice" method of pupil assignment
tor that complex, with a shuttle bus service
between the Booker and Metropolitan building for academic classes (Tr. 218).
The stated approach of the school district in
drawing this plan was as follows: first, the district
-11-
established the goal of racial balance for every school
(Tr. 285). Then the board established criteria for meeting
that goal which included (a) cost to the district,mini
mizing disruption of grade structure, faculty, program and
activities; (c) minimizing inconvenience, transportation,
and the use of satellite zones (Tr. 211-12); (d) equalizing
of burdens of transportation; and (e) maximizing the use
of school buildings (Tr. 281-83).
_3/ The projected budget of the school district for the 1970-
71 school year was $14,413,905.00 (DX 103)[1970 trial]; the operating income of the district for the 1970-71 year
was $14,601,945.00. The budget projected for 1971-72 is $15,773,783.00 (Tr. 138).
The district does not have a school transportation system but does own one small bus it uses to transport physically
handicapped children (Tr. 171). other than this one bus,
it has not projected expenditure of any money for pupil
transportation (Tr. 143). The district has the power to
issue postdated school district warrants for the purchase of school buses (Tr. 501) and may borrow money from the
State Education Department revolving loan fund for the
purpose of purchasing buses and operating a transportation system (Tr. 486-87).
The district has approximately $3,500,000 in unspent
construction funds which are drawing interest (Tr. 157).
Such interest, as well as the interest on monies on deposit
in activity accounts, may be used in the board's discretion for general operating purposes (Tr. 154, 491).
During the trial, the district vigorously projected the
average annual cost of transportation per pupil to be $90, despite the fact that the Arkansas average is less than
$50 (Tr. 129) and that the Pulaski County School District
which surrounds the Little Rock and North Little Rock
districts, averaged less than $30 per pupil to transport
14,000 pupils an average of 25 miles each way each
day (Tr. 114, 498, 502). The district court found the
board's $90 projection to be too high (July 10, 1971 opinion, p. 16).
-12-
The defendants were advised by their counsel
that desegregation had to extend to every grade level and
that transportation would probably be required (Tr. 284-85).
In applying the criteria, the school district
created satellite zones in the black sections and assigned
pupils residing in those sections to distant white schools
(Tr. 212). The district also assigned all of the east
side black sixth grade pupils not included in the Gibbs-
Dunbar complex to distant white schools (Tr. 337-38).
Moreover, the district proposed to close Gibbs, most of
whose pupils are black, and transport these pupils to seven
distant white elementary schools (Tr. 264, 369). The
district did not use satellite zones to assign white pupils
to formerly black schools; nor did the district by any
method propose to assign white students below the ninth
grade level to formerly black schools, except for those
whites who lived in immediate proximity to. those black schools.
Pupils from Bale and Pulaski Heights Elementary Schools,
which were being combined with adjacent junior high schools,
were reassigned to other formerly white elementary schools
next to the closed facilities on a proximity basis (Tr. 257,
330-32, 428).
The rationale for the Board's apparently differ
ent treatment of black and white pupils was the desire to
maintain neighborhood schools (Tr. 295, 334, 412) in white
areas and the desire to prevent white flight (Tr. 212, 332)
-13-
or the anticipated creation of private schools (Tr. 333-34).
The rationale for continuing Dunbar-Gibbs as a black school,
as well as the present racially identifiable elementary
school arrangement, was the cost of transportation, estimated
to be approximately $150,000 for the Gibbs-Dunbar complex
students (Tr. 223) and between $383,850 and $461,790 for the
elementary students (Tr. 270-71, 322-23).
ffs 1 Proposed Alternative
Plaintiffs presented an alternative plan which
at the secondary level used the basic criteria and struc
ture established by defendants (Tr. 648-81). At the secon
dary level, the proposal was as follows:
(a) Three-year high schools would be continued.
School buildings used at this grade level would be the Central High School, and Hall High -
Forest Heights Junior High. The latter two
buildings, physically only two blocks apart,
would be combined to form one high school of
comparable capacity to Central. East-west
zoning generally along major transportation arteries would produce geographic zones of
comparable size and similar racial and socioeconomic proportions.
(b) At the junior high school level, there would
be a feeder school for each high school within
the identical geographic zone, rather than the
satellite zones proposed by the Board which it
has itself found objectionable in the past.
The proposed use of Henderson Junior High
under this alternative would not require further construction. r
(c) There would be three 6th and 7th grade
feeder schools into the 8th and 9th grade
schools, using contiguous east-west zones
basically parallel to those established for the
eight- to twelve-grade schools. Dunbar under
this alternative would be totally desegregated.
-14-
(d) Transportation would be provided for
homes^P±1S aSSigned two miles or more from their
Plaintiffs' elementary alternative was to pair
schools and to provide transportation to facilitate the
pairing. The proposed pairings closely followed those
submitted to the District Court during the August, 1970
hearings with the exception of those schools which were
eliminated as a result of being combined with junior high
schools. The defendants (Tr. 251, 274-75) and the District
Court (July 16, 1971 opinion, p. 13) conceded there was no
other effective way to desegregate the elementary schools.
The district did not devise an elementary plan because for
its plan to be successful, white majorities were required
in every school (Tr. 433) and "there was already in the
record a plan to do - the Walker plan - which did the only
thing that I could do, if you had finances and everything
to go that far" (Tr. 434). Although there were a number
of schools Within walking distance of each other in the
center of the city, which could be desegregated through a
pairing plan (the Beta complex), without transportation,
the district declined to offer it. The rationale offered
by the defendants was that such pairing would somehow promote
white flight (Tr. 335, 435).
The District's Proposed Alternative
On June 21, 1971, the district court orally ad
vised the school district that its plan would be rejected
primarily because it left Dunbar Junior High School
-15-
racially identifiable (Opinion of July 16, 1971, p. 5).
The court required the submission of an alternative plan,
and on June 28, 1971, the Board submitted, without endorse
ment, an alternative plan in a "Supplementary Report of
Defendants," which may be described as follows (see DX 1022)
(a) There would be three desegregated high
schools. The total enrollment in each would be as follows:
1* if that plan which allows seniors to
elect to remain in their present schools
were adopted, and dependent upon the drop
out factor and enrollment at Metropolitan:
Central between 1701 and 2204Hall » 1502 " 1701
Parkview •• i285 " 1466
2. If that plan which did not permit
seniors to elect to remain in their
present schools were adopted, and dependent upon the dropout factor and
enrollment at Metropolitan:
Central between 1931 and 2251Hall •• 1362 •• 1550
Parkview •' 1195 " 1370
Neither plan would fill Central to capacity
whereas under either plan, the use of portables
or some extraordinary alternative arrangement such as lengthening the school day would be
necessary at Parkview, and peril aps at Hall,
because of overcrowding (Tr. 772).
(b) There would be four desegregated junior high schools (8th and 9th grades), all of which would
be located in central or eastern Little Rock.
The ratios would range from 36.7% black at Booker
to 41.0% black at Mann. Permanent capacities of
schools, as taken from DX 8 [1965 trial](reproduced herein as Appendix "B") and projected enrollments are as follows:
School Capacity Enrollment
Booker goo 852
Dunbar 1000 837
-16-
School Enrollment
Mann ,
Pulaski Heights—
Capacity
1400 12951538 931
Total 4638 3945
There is thus capacity for 693 more pupils than are assigned at this level.
(c) There would be three desegregated middle
(6th and 7th grade) schools, all of which would
be in western Little Rock. The ratios would
range from 39.2% black at Forest Heights to
41.5% black at Henderson. The plan requires the
continuation of the enjoined Henderson Junior
High School construction. Capacity (from DX 8) and projected enrollments are:
Forest Heights
Henderson
Bale-Southwest
Total
1000s/ 1148
750^ 1353
1532 1402
3282 3903
Under this alternative, Gibbs would not be
combined with Dunbar, but would remain a black elementary
school; Centennial, a predominantly black school, would be
closed and its pupils distributed among the western white
elementaries which would have received the Gibbs pupils
(Tr. 787, 822).
This alternative contemplates contiguous north-
south zones for Central High School; "neighborhood schools"
4/ Since DX 8 was prepared, the permanent capacity of Pulaski
Heights Junior High School was enlarged from 750 to approx
imately 950 by construction permitted by the dis trict court
Iear ^ r‘ 345^* The Superintendent first testified that it had not been decided whether Pulaski Heights Elementary
for junior high grades under this alternative (Tr. 788), then that it would not be (Tr. 792) and finally
that it was considered a "swing" building available for uue in those grades (Tr. 822).
—/ The temporary capacity of the Henderson facility is pres-
ently 1000 students, having been enlarged by the addition of four portable classrooms to the site (Tr. 302-03).
-17-
for students living near Hall and Parkview, with east side
students transported from satellite zones; "neighborhood"
schools for junior high school students in central and
eastern Little Rock with satellite zones from the western
areas; and "neighborhood" middle schools in the west with
eastern pupils being transported to them. As proposed and
approved by the district court, students entering their
senior year in 1971-72 who attended Hall, Parkview or Central
last year and would be required to attend a different high
school under the board's zoning, will be permitted to elect
to remain at the school they attended last year. There
will be no such opportunity for Horace Mann students (Tr.
766) .
Plaintiffs retained their preference for their
alternative plan but established other approaches to the
school district's second proposal which would be preferable.
Besides using Hall, Mann (essentially equal schools, Tr. 463)
and Central and the senior high level, and Parkview at the
8th and 9th grade level (eliminating the need to lengthen
the school day), it was also noted that if Gibbs were
combined with Dunbar as originally proposed and that complex
used instead of Henderson for 6th and 7th grades, using
Henderson then for 8th and 9th grades, no construction at
Henderson would be necessary (Tr. 793-94).
-18-
Faculty Desegregation
The school district's 6-3-3 desegregation plan
requires certain administrative and faculty changes
involving, inter alia, principals,—^ vice principals, deans,
coaches, band and choral directors, and subject matter
department chairmen. The school district, pursuant to the
Arkansas Continuing Contract Law, is obliged to retain all
personnel for 1971-72. At the time of the hearing, however,
assignments had not been made nor had criteria for
making such arrangements been devised. The defendants
refused to use objective criteria in reassigning school
personnel (Tr. 808-12) and the District Court did not impose
such a requirement, holding that the adequacy of the district's
staff desegregation could be deferred until pupil desegregation
had been satisfactorily completed (July 10, 1971 Opinion,
p. 7). Under this approach, with the court's approval, all
black secondary principals, coaches, band directors, etc.
had been removed from the adjacent North Little Rock School
District (Tr. 809; see Transcript of Proceedings in the
companion appeal, Davis v. Board of Educ. of North Little Rock).
Plaintiffs showed apparent racial discrimination in thesenior high school principals' salary schedules. See
P X 2 0 0 0 -
Certifi- ExperienceName cation Dist. Total Deqree Salary Rai
Harry Carter Admin. 20 20 M.S. 14,887 WWeldon Faulk Admin. 18 18 M.E. 15,087 WEdwin Hawkins Sr.Prin. 19 30 M.S.E. 13,787 BAl Thalmueller Sr.Prin. 13 13 M.S.E. 14,289 WLeonard Spitzer Sr.Prin. 18 19 M.E. 14,487 W
-19-
The District Court's Ruling
On July 16, 1971, the district court issued a
Memorandum Opinion and Decree. The court ordered the
school district to implement its three-year high school
alternative plan for the 1971-72 school year, and to
furnish transportation to students assigned more than two
miles from their homes. The district court permitted the
continued operation of essentially segregated elementary
schools for yet another year, indicating that it would
require submission of a new plan for 1972-73 because it
reluctantly felt -that the federal appellate courts will
sooner or later require busing in districts like Little Rock
and North Little Rock where full integration cannot be
achieved by any other method" (July 16, 1971 opinion, pp.
14-15). The court did not, however, require the school
district to acquire additional transportation facilities
during the next school year in preparation for elementary
school integration at some subsequent date.
The district court declined to require the assign
ment of faculty and other staff according to objective
criteria and also denied plaintiffs' prayer for attorneys'
fees so as not to "burden the Board additionally at this
time beyond the financial strains which would be imposed
by compliance with its decree (July 16, 1971 opinion, p. 21).
-20-
ARGUMENT
I
The District Court Ignored Con
stitutional Requirements By Not Ordering Elementary School
Desegregation Earlier Than The 1972-73 School Year
The sad history of events relating to the deseg
regation of the Little Rock, Arkansas public schools bears
witness to unfortunate exploitation of the patience and
temperateness which have traditionally characterized courts
of equity. Since Brown v. Board of Educ.. 349 u.S. 294
(1955), the federal courts have at every juncture allowed
the greatest possible discretion to the Board of Education
of Little Rock to resolve "educational" and "administrative"
difficulties as a means of facilitating the desegregation
of the public schools. in every instance, the courts' tol
erance has been rewarded only by further entrenchment of
the very ill sought to be corrected, or further delay in
application of the remedy.^ it is with no small feeling of
5 V h? ^ery outset of this litigation, the Little Rock School Board adopted a gradual integration plan because t claimed financial inability to otherwise meet the cost
of aen^2 r̂ a£10nv,anc? that Lt needed to complete construction of a new high school in western Little Rock. See Aaron v
Cooper, 143 F. Supp. 855, 859 (E.D. Ark. 1956). The district
- L V f thlS Court declined to enjoin more rapid progress toward^a unitary system because of the district's "good
. i t 1 at 864~65; 243 F.2d at 364 (8th Cir. 1957). Although the federal court restrained state officials from
l ^ epfe5ing ^he execution of the plan, Aaron v. Cooper,r1Tf6^F; ^upp. 220 <E*D* Ark. 1957), aff'd sub nom. Faubusv. jJnited States, 254 F.2d 797 (8th Ci7Tr~affrd_iTIb S ^ o o o e r
I; 358 U,S* 1 (1958)' the school board subsequent!^® ! susPend desegregation because it was not popular ith the community. See Aaron v. Cooper. 163 F. Supp. 13 (e d r .), cert. denied, 357 U.S. 566, rev'd 257 F 2d 33 fRfh
Cir.), affld 358 U.S. 1 (1958). T h ^ o o l bo^d also
-21-
deja vu, therefore, that plaintiffs again ask this Court
to direct the integration of the Little Rock school system.
(cont'd)
attempted to frustrate integration by leasing public school
buildings to segregated private schools, see Aaron v. Cooper
261 F.2d 97 (8th Cir. 1958). While this action was declared
illegal, the courts did not require that it be undone by
opening the schools on an integrated basis since it was
presumed that the board would comply with the law. The re
sult was to delay any integration in Little Rock for another
year. See Aaron v. McKinley. 173 F. Supp. 944 (E.D. Ark.),
aff'd sub nom. Faubus v. Aaron, 361 U.S. 197 (1959).
Similarly, the district court approved the school board's use of the Pupil Placement Law in reliance upon the educa
tional and administrative problems the board said it encoun
tered m the desegregation process, although this Court found that Little Rock had applied the law so as to limit
desegregation. Aaron v. Tucker. 186 F. Supp. 913, 932-33
(E.D. Ark. 1960), rev1d sub nom. Norwood v. Tucker. 287 F 2d 798 (8th cir. 1961). Thus for six years Little Rock used
every opportunity afforded it by the courts to delay or
avoid integration. At the same time, the school district
undertook other actions which intensified segregation within
the school system. For example, in 1961 an all-white school
was made a "Negro" school. See Safferstone v. Tucker 235
Ark. 70, 357 S.W.2d 3 (1962). In 1963 the white East Side Junior High School was closed as nearby Booker Jr. High was
first opened. The former East Side students were not
however, assigned to the new building in order to integrate it, but to West Side (See Appendix A). in 1965 initial
assignments of all black students and an all-black faculty
were made to a new facility, although the district was
supposed to be operating on a free choice basis at that time
SZrd v- Board of Directors of Little Rock School Dist
C^* No-.lr-657C-142 (E.D. Ark. 1965). Thus, nearly a'decade after this litigation began. Little Rock had managed to
delay integration and reinforce the racially distinctive
operation of its schools. it also took advantage of the
delays gained to implement a construction program which is
at the root of the "educational" and "administrative"
difficulties it now claims impede integration of its schools (see below).
-22-
More than a year ago, following exhaustive
briefing, extended oral argument en banc, and "deliberate
consideration," this Court directed that a plan be adopted
for Little Rock so that "no person is to be effectively
excluded from any school because of race or color," with
such plan to "be fully implemented and become effective
no later than the beginning of the 1970-71 school year."
Clark v. Board of Educ. of Little Rock. 426 F.2d 1035,
1046 (8th Cir. 1970), cert, denied, ___ U.S. (1971)
(emphases supplied). The school district's response in the
summer of 1970 was to file plans for junior high and
elementary schools "which will not disestablish those
schools as racially identifiable units." Clark v. Board
of Educ. of Little Rock. Civ. No. LR-64-C-155 (E.D. Ark.,
August 17, 1970)(Memorandum Opinion at p. 3).
The school district sought to justify its foot-
dragging in its last Brief to this Court (Brief for Appellees
and Cross-Appellants, Nos. 20485, 20568) by an oblique
reference to "the appropriate construction of the mandate
of Alexander v. Holmes County, supra, in a metropolitan
school district . . . " (P. 20); the notion that Alexander
meant one thing in rural school systems and another in city
systems had been decisively rejected in March, 1970,
Northcross v. Board of Educ. of Memphis. 397 U.S. 232 (1970).
In 1971, following remand from this Court for
submiss:on of a plan of desegregation "effective at the
-23-
beginning of the 1971-72 school term" and appropriate action
by the district court "in order that all of the schools in
the Little Rock School District shall be desegregated"
consistent with the Swann decisions, Clark v. Board of
Educ. of Little Rock. No. 20485 (8th Cir., May 4, 1971)
(emphasis supplied), the school district again submitted
plans which called for virtually no change, and continued
racially identifiable schools, at the elementary level.
V* B£ard of Educ. of Little Rock, civ. No. LR-64-C-155
(E.D. Ark., July 16, 1971)(Memorandum Opinion, pp. 4-6).
And at the junior high school level, despite the district
court s warning in 1970 that "[h]owever progressive or
enriched the District's program for students living east
of the Broadway-Arch Street line may be . . . a program for
black students in a largely black school complex" could be
approved only for 1970-71, Clark v. Board of Educ. of Little
Rock, 316 F. Supp. 1209, 1214 (E.D. Ark. 1970). the school
district's preferred submission did "not comply with the
[District] Court's 1970 decree relating to the secondary
schools because it leaves Dunbar with a black enrollment of
more than 90 percent which would quickly become 100 percent."
Clark, Memorandum Opinion of July 16, 1971, p. n.
Time after time the federal courts have abstained
from ordering or requiring; they have acquiesced in pleas
for additional time — additional years of segregated
schooling for black children — for this school district to
-24-
Yet inwork out the wrinkles of its desegregation plans,
the final analysis, the district has done nothing to earn
the encomiums of "good faith" heaped upon those who, by
subtle appeal to moderation, manage to achieve as much and
more than those who choose the path of outright resistance.
Unfortunately, the rulings of the district court
since this Court's 1970 decision have sanctioned every
delay in desegregation. On August 17, 1970, despite the
language of Alexander, Carter^ and Northcross. and the
clear direction of this Court in its 1970 opinion, the
district court required no desegregation of Little Rock
elementary schools which "are and will be essentially as
racially identifiable as they have been" because the district
court somehow concluded that, while it was the only remedy
that would work, the law did not require "the massive trans
portation of elementary school students for the sole purpose
of disestablishing a unitary elementary school system or
subsystem." Though effectuation of constitutional rights
hung in the balance, the district court merely noted that
if it had erred, "it will learn of its error in due course.-^
8/ Carter v. West Feliciana Parish School Bd.. 396 Ti s (1969), 396 U.S. 290 (1970).
9/ We are compelled to add that the appellate judicial process
m 1970 defaulted on what we consider its duty to afford effective access to appellate review of evidently lawless
decisions. While this Court's May 4, 1971 remand in light of
Swann attempted to avoid a repetition of last year's events
by requiring action below in time for review here prior to
school opening, the district advantaged itself of the delay
creating continuing practical problems. For example, although
it was clear more than a year ago that a pairing-transportation
-25-
Again this year, the district court has pointedly
ignored both this Court's directive and the school district's
wilful failure to propose an acceptable elementary plan.
Rather than putting the district under an effective mandate,
the district court has repeated "its opposition to busing
["particularly at the elementary grade levels and involving
young children"] for that purpose" [desegregation] and has
approved racially identifiable elementary schools for the
1971-72 school year. The district court has indicated that
" [a]s of the opening of school for the 1972-73 session, the
elementary grades must be integrated satisfactorily" but
has not yet established any date by which the school district
must take advantage of this latest opportunity to submit a
new elementary plan.
The foregoing establishes, we believe, that the
fact that Little Rock's elementary schools remain segregated
today is not caused solely by physical, educational or
administrative problems beyond the control of either school
district or federal court. Rather, there has been a pattern
of refusals to act by the school authorities which has been
explicitly or implicitly sanctioned by the district court,
(cont 'd)
plan would be necessary to desegregate the elementary schools,
yet during 1970-71 the school district neither prepared its
own plan for that purpose nor sought to acquire the vital transportation capability.
-26-
culminating in the order from which appeal is taken, which
postpones elementary school desegregation yet another year
In Kelley v. Metropolitan County Bd. of Educ. of
Nashville, 436 F.2d 856, 862 (6th Cir. 1970), the Court said
It is clear to us that the rights of
school children to schooling under nondis-
criminatory and constitutional conditions cannot be recaptured for any school
semester lived under discriminatory practices.Nor can any court thereafter devise an effective remedial measure.
r̂’or that reason, the Court of Appeals in Kelley reversed
a district court decision suspending further proceedings
to effectuate desegregation in Nashville pending the Supreme
Court's decision in Swann because
[w]e believe that "the danger of denying
justice by delay" in this case is as
clear as it was in Alexander, supra; Green
v* County Board, supra, and Carter. supra.
The continuing vitality of Alexander v. Holmes County Bd,
of Educ., 396 U.S. 19 (1969) has recently been reemphasized
by the Supreme Court. in a June 30, 1971 per curiam order
in Goss v. Board of Educ. of Knoxville (unnumbered)(see
Appendix "C"), the Court said:
The United States District Court for the
Eastern District of Tennessee has not had
an opportunity since the June 22, 1971
remand of the case by the United States
Court of Appeals for the Sixth Circuit to inquire whether respondents have failed
to maintain a unitary school system as
in Swann v. Char lot te— Mecklenburg
Board of Education. ___ U.S. ___ (1971),
and prior cases. of course, the District
Court must conduct forthwith such proceedings as may be required for the prompt
determination of this question, and,
-27-
should it find that respondents have not maintained a unitary school system
respondents must terminate dual school
once. . . . » Alexander v. golmes^County^Board of Education. 396
(emphasis supplied). Yet the order of the district court
entered herein July 16. 1971 proposes the assignment of
elementary school students for this chool year according
to the geographic attendance zones which this Court has
held were unconstitutional from their inception in 1969.
The Fifth Circuit has very recently passed upon
a situation identical to that presented here: the district
court in savannah had ordered high school integration only
for the current school year and delayed elementary deseg
regation until 1972. in a per curiam order, the entire
text of which follows, the Fifth circuit rejected any
further delay:
U i* ukuered that Appellants' Motion for Summary Reversal of the District Court's order of June 30, 1971, is to be held in
abeyance pending a report to this Court
Dlstrict Court of its action on the case following the Board's progress report of August 5, 1971. P
The District Court in its June 30, 1971 order approved the Board's plan for zoning
student assignment, and transportation on
snbmf^°?dary sch°o1 level* This plan was submitted as a modification of a prior plan
ig?n°VJd £y .the Disfcrict Court on July 18, ' 19/0, to bring the Savannah-chatham school
mS ? " int° colt,Pliance with Swann vs Charlotte-
1267 r?9 7 ?? BSard,°f Education, 91 Sup ct TuW 7 ? decided APril 20, 1971. The
foiYo7197° £lan Waf' however* left standing or elementary school because the District
Court questioned the feasibility of preparing
-28-
and implementing a new plan for the 1971-
72 school year. The Board was directed
to present the District Court with a plan
by April, 1972, and possibly sooner. A
progress report is due August 5, 1971.
h. delay of this nature in implementing a_ unitary school system at any level is not
permissible under the precedents of this
Court or the United States Supreme Court.
Nevertheless, this Court is reluctant to
order a summary reversal when such an order
may be rendered unnecessary by action of
the District Court following the August 5th report of the Board. The District Court
should report to this Court on its action as soon as possible, but not later than August 10, 1971.
ste11 v- Savannah-Chatham Bd. of Educ.. No. 71-2380 (5th
Cir. , August 2, 1971) (Thomberry, Morgan, Clark, JJ. ) (emphasis
supplied).
We do not suggest disagreement with the district
court's finding that Little Rock cannot, at this moment,
completely implement an elementary school desegregation plan
on the presently scheduled first day of the 1971-72 school
term in September, 1971. We do insist, however, that that
fact is the result of the school district's refusal to act
and in no way justifies the approach adopted by the dist
rict court; certainly, more than nothing at all can be done.
Last year plaintiffs were in much the same
posture. The district had no money and no buses for
integration, it said, and the capacity of Twin City Transit
was limited. it proposed no desegregation at the elementary
level. Plaintiffs, with the assistance of an educational
expert, developed a plan to totally desegregate all Little
-29-
Rock schools and presented it to the district court. We
suggested to the Court at that time that it should approve
plaintiffs' plan (the only plan before the district court
which met the constitutional requirements) and order its
implementation as soon as feasible, while at the same time
enjoining the school district to take the necessary steps
forthwith to be able to implement the plan.-^^
This year, plaintiffs modified the proposals put
forth in 1970 so as to better conform to the basic proposals
of the school district at the secondary l e v e l . A g a i n
the school district proposed only a partial plan, without
any significant elementary school desegregation at all.
Again the district court ignored plaintiffs' proposals.^/
W c*a^cteriZed this approach, in their Briefo this court last year, as some sort of concession
distrf^ a: n apP 1Xtd dl£ferently in metropolitan and rural ^ * ,Tt 1S not such* but rather an attempt to
The wi S L ~ o>Xand^r rUle rec5uirin<? integration pendente lite. The wisdom of such a course is demonstrated by the failur^—f the school district, absent a specific injunction to
t?ansno^S^ePS whats?ever in 1970-71 to acquire additional transportation capacity — thus virtually assuring that
complete integration in 1971-72 would bean impossibility.
— ^ ®Pecific objections to the school districtssecondary plan are treated below.
12/ "The court has considered the alternative plan sub-
mitted by plaintiffs and the original intervenors
Assuming that their plan would effectively integrate the
District C°Urt is not 9°ing to impose it on the
-30-
Again the district court has tolerated the school dis
trict's outright refusal to take any steps toward elementary
desegregation; and again the district court has set no
meaningful time limits to guard against a repetition next
year of this year's and last year's events. Meanwhile,
the class of black plaintiffs continues in segregated
elementary schools.
We earnestly plead for remedial action from this
Court. The law is clear. The violation of the law
sanctioned below is clear. This Court must now act as
the district court should have acted. We respectfully
suggest the following:
(1) Plaintiffs' plan for elementary schools
and secondary schools should be approved and ordered
implemented as the only plan in the record, at the elem
entary level, which meets constitutional standards, united
States v. Board of Educ. of Baldwin County. 423 F.2d 1013
(5th Cir. 1970). Those parts of the plan which are capable
of immediate implementation should be so implemented (e.g..
the Beta complex contiguous pairing). The entire present
transportation capability of the district should be strained
to the utmost to permit immediate implementation of as much
desegregation as possible. Alexander v. Holmes County Rd
oOduc^, supra; Goss v. Board of Educ. . supra.
-31-
(2) The school district should be mandatorily
enjoined to acquire at the earliest possible moment
sufficient transportation capability to entirely imple
ment the plan, and in light of its repeated past failures
to act, it should be placed under frequent progress reporting
provisions. E ^ , Swann v. Charlotte-Mecklenhnrg ad. of
Educ^, civ. No. 1974 (W.D.N.C., June 29, 1971)(monthly
reports to district court required).
(3) The district court should be directed to
consider delaying the opening of school for a short period
of time should it appear that with such a delay substantially
greater desegregation could be achieved. See United States
V* - -Xas Education Agency, 431 F.2d 1313 (5th cir. 1970).
(4) The school district should be required to
utilize such additional buses as it acquires immediately
upon their acquisition so as to further increase desegre
gation of the schools. see Mapp v. Board of Educ.
Chattanooga, civ. No. 3564 (E.D. Tenn., July 26, 1971)
(full desegregation plan approved but complete implementation
delayed until transportation facilities available).
(5) None of the foregoing should be construed
to prevent the school district from proposing new alterna
tives to the district court which achieve "the greatest
possible amount of actual desegregation," Swann, provided
that the order should not be modified by the acceptance
of any plan which does not achieve at least as much deseg
regation as is projected under plaintiffs' plan. Pate v.
Dade County School Bd., 434 F.2d 1151 (5th Cir. 1970).
-32-
II
The District Court Erred In
Refusing To Require Assignment
Of Faculty And Staff Members
In Accordance With Objective
Criteria
Plaintiffs sought, in the district court, to
require the Little Rock School District to assign faculty
and staff members on the basis of objective criteria. The
district court lectured the school authorities for several
pages of its opinion on their duty to avoid discrimination
against black faculty and staff members during the deseg
regation process but refused to require any protective
steps to avoid such discrimination. Rather than requiring
the selection of personnel on some reviewable, objective,
nondiscriminatory basis, the district court merely "commented"
that "the Board should make every effort to incorporate into
the unitary system specialized Negro personnel such as
athletic coaches, band directors, and similar categories of
employees" but "the Little Rock's principal integration
problem relates to student assignments, and until that
problem is solved satisfactorily the Court is not inclined
at this ̂ age to interfere with individual assignments of
staff members and teachers or to impose on the Board objec
tive criteria in such assignments to the exclusion of
everything else" (Opinion of July 16, 1971, pp. 7-8) ^
13/ The last time the district court "suggested" something
to this school district, its warning was of no avail
and further constitutional difficulties were created. in
its September 24, 1970 opinion, the district court declined
to enjoin further school construction at Henderson Junior
High School but added "that the Board would be well advised not to commence work without the prior approval of this
Court or of the Court of Appeals." 316 F. Supp. at 1216.
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else, 11 of course, means wholly subjective
cr *̂'er^a with their vast potential for arbitrary action.H/
For example, despite plans to phase out Mann High School
and a vacant principalship at Hall last year, the school
district assigned a white to that position who had less
experience than the black principal of Mann, Edwin Hawkins,
and who subsequently was paid at a higher rate than Mr.
Hawkins. See note 6 supra. This was justified on the
grounds that Mr. Hawkins was "better suited" to deal with
the problems at Mann; in other words, a black principal
should be assigned to a black school.
The factual setting of this claim is by now a
familiar one to this Court. in the process of desegrega
tion in Arkansas, school districts often realize operating
efficiencies which result in staff reduction or the elimin
ation of some positions. Walton v. Nashville Special School
Dist^, 401 F.2d 137 (8th Cir. 1968). in the past two years,
for example. Little Rock has variously proposed the closing
(cont *d)
Nevertheless, "the Board without taking the matter up with
the United States District Court, or the Court of Appeals,
or with counsel for the plaintiff, advertised for bids and
awarded a construction contract" (Clark v. Board of Educ
— yLltt?-f Ro<:k' No- 20485 (8th Cir., Feb. 27"l97l) (dissenting opinion)) and the matter was eventually resolved by the
Supreme Court of the United States, which halted construction. Board of Educ. of Little Rock v. Clark. 401 U.S. 971 (1971)
It should have been apparent to the district court that
this school district can only be given guidance in the form of mandatory orders.
11/ Cf,» Chambers v. Hendersonville City Bd. of Educ 364 F-2d 189, 192 (4th Cir. 1966).
-34-
of the Mann, Booker, West Side, Gibbs, Centennial, Bale,
Pulaski Heights Elementary, and Lee schools. Under the
plan approved by the district court, Mann will no longer
operate as a high school; Centennial and Lee will be closed.
Coincident with such school closings has often
occurred the wholesale dismissal of black teachers and
E-9* > Smith v. Board of Educ, of Morrilton. 365 F. 2d
770 (8th Cir. 1966); Jackson v. Wheatley School Dist.. 430
F.2d 1359 (8th Cir. 1970). Mr. Patterson testified that
where there were 134 black secondary school principals in
Arkansas in 1967, only 15 remained throughout the State in
1971 (Tr. 577). Anticipation of similar occurrences in
this district is not just fanciful thinking. The record
in the summer of 1970 established in considerable detail
the difficulties faced by black educators in Little Rock and
North Little Rock as a result of the phasing out of various
black schools. Particular stress last year was laid upon
treatment of black athletic personnel.
This year, under the school district's proposed
plan, there will be significant grade restructuring and
considerable shifting of personnel. Plaintiffs sought to
have the school district apply objective criteria to such
reassignments. in Haney v. County Bd. of Educ.. 429 F.2d
364, 371 (8th Cir. 1970), this Court directed that the
school board should be ordered to set up
definite objective standards for the
employment, retention, transfer and
assignment of teachers on a non-racial,
-35-
nondiscriminatory basis and to apply
these standards to all teachers impartially
in a manner compatible with the requirements of the Equal Protection clause of the United
States Constitution. . (emphasis supplied)
Thus, the law requires much more than the precatory language
of the district court.
Plaintiffs sought to bind the district to a
nondiscriminatory, objective assignment policy now so as to
avoid the necessity of further litigation after the fact —
not just for reasons of judicial economy but because, as
this Court has recognized, class relief is appropriate
because staff members who are discriminated against but
retained in some capacity may be reluctant to initiate
remedial litigation for fear of further jeopardizing their
positions. Arkansas Educ. Ass'n v. Board of Educ. of
Portland, No. 20,412 (8th Cir., July 26, 1971)(slip op. at
P- 5) .
Despite the school district's contentions, in
the context of a desegregating school system, the decision
who shall be assigned to principalships and other faculty
and staff positions is not purely an administrative task
left to the unfettered discretion of the board. See, e.g.,
Lee v. Macon County Bd. of Educ.. Civ. No. 70-251 (N.D.
Ala., July 13, 1971) (reprinted as Appendix "D").
Given the right to nondiscriminatory assignment
of teachers and staff, Haney, supra, the school board should
-36-
be required to adopt reviewable objective standards in
advance of their application. Lee v. Macon County ah
— ' S-Upra; Bo,lfe v. County Bd. of Educ. . 282 F. Supp.
192, 200 (E.D. Tenn. 1966), affd 391 F.2d 77 (6th Cir.
1968); cf. United States v. Sheet Metal Workers. 416 F. 2d
123, 136 (8th Cir. 1969).
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Ill
The Plan Approved By The District
Court Closes Black Schools, Overcrowds White Schools And Places
Heavier Burdens in The Desegregation
Process Upon Black Students, All For
Impermissible Racial Reasons
Last year, the Little Rock School District proposed
a senior high school plan which called for the closing of
the black Horace Mann High School and assignment of its
black students to Central, Hall and Parkview, each of which
was initially built and operated as a white school. The
district court approved the plan over plaintiffs' objec
tions that the burden of desegregation was being unfairly
cast upon the black community, and also permitted the school
district to undertake construction of a substantial addition
to the almost all-white Henderson Junior High School, the
westernmost Little Rock junior high. Plaintiffs appealed
on both issues to this Court, which considered the questions
raised serious enough to unanimously authorize the halting
of construction at Henderson pending a decision on the
merits of the claim that the plan discriminated against
black students.
None of the issues were decided, however, in this
Court's brief remand order issued May 4, 1971 in light of
the Swann decision. Instead, the case was returned to the
district court for reconsideration of all issues, including
the propriety of the Henderson construction. Again this
year, plaintiffs return to this Court raising the same issues
in the context of the new plans.
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The questions are separable and yet related. As
to the Henderson construction, it may be viewed as follows:
(1) should the construction be permitted in light of the
location of the school, the demographic patterns in Little
Rock, and the history of the school district; (2) should
it be permitted considering the above factors and also the
existence of as much capacity in existing facilities as is
to be added at Henderson; and (3) should it be permitted
where it is an essential ingredient of a desegregation plan
which deliberately maximizes the assignment of black students
to white schools and minimizes the assignment of white
students to black schools? As to the desegregation plan
itself, the questions are (1) whether it is preferable to
the other alternatives available to desegregate the secon
dary schools which do not result in closing black schools
or underfilling them while overcrowding white schools; and
(2) whether the district justified its selection where the
record shows the reasons advanced were inconsistently applied
at best, and the choice was admittedly made on racial grounds.
The plan approved this year does not close Mann
High School outright, as had been contemplated in 1970.
However, it does reduce Mann to the status of a lower grade
school while retaining as graduating high schools the
three traditionally white Little Rock high schools: Central,
Hall and Parkview. Last year, black tenth, eleventh and
twelfth graders who would in the past have attended Mann
were to be assigned to central and western schools, thus
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bearing the entire burden of desegregating the upper grades,
and the district proposed to furnish no transportation to
students who were not eligible for Title I assistance.
This year the situation remains the same except that the
district court required students more than two miles from
their assigned schools to be given transportation; but now
having presented a plan for additional lower grades, however,
the school district contends that the burden is equalized
by the requirement that 8th and 9th grade white students in
western Little Rock must come east to attend Booker, Mann,
Dunbar and Pulaski Heights. (However, 6th and 7th grade
blacks again shift west to attend Forest Heights, Southwest
and Henderson).
The acceptability of this proposal cannot be
determined by simple mathematical calculation; it must be
examined in light of the rationale for its selection and the
comparative impact of available alternatives.
It seems fairly obvious from the chronology of
school district proposals in this case that the objective
has been to avoid the assignment of white students to black
schools. Last year the Board proposed to close Mann en
tirely; this year it will not be a senior high. The district's
first junior high scheme this year was to close Booker as
a separate facility and make it an annex to the "racially
neutral" Metropolitan High, to continue Dunbar as a heavily
black school but assign other black junior high students
(from Booker) to white western schools. Elementary black
-40-
students displaced if Gibbs were combined with Dunbar
would be assigned west (as the predominantly black students
of Centennial are under the final plan) but similarly
situated whites from Bale and Pulaski Heights Elementary
Schools would remain close to their western "neighborhoods."
When the plan was revised because the district
court refused to permit operation of Dunbar as a black
school, the idea of closing Booker was abandoned and the
drastic imbalance of transportation favoring white students
lessened, but black students still must bear a dispropor
tionate share of the burden because the district selected
a plan which underutilizes the formerly black schools near
them and overcrowds the white schools, thus forcing the
additional construction at Henderson and the use of portables
or a longer school day at Parkview.
There are alternatives to accomplish desegregation
which do not present these problems. The district's reasons
for not choosing them are inconsistently applied. For
example, one justification for not assigning more students
to Central High (which might have reduced the transporta
tion burdens on blacks) was that Central would be much
larger in enrollment than Hall or Parkview. That has cer
tainly never bothered the school district in the past. m
1956 Central had 2475 students, Mann 582; in 1960 it had
1693, Hall 889 and Mann 821. In 1964 it had 2286 students.
Hall 1558 and Mann 1239. See Brief of Appellant. in No.
-41-
19795, p. 34. Besides, plaintiffs' alternative plan
proposed central and Hall-Forest Heights as two senior
highs of comparable size.
The Superintendent's criticisms of plaintiffs'
Plan were unfounded. He did not like clustering Hall and
Forest Heights, he said (Tr. 715) because it was dangerous
to cross University Avenue, but he acknowledged that
children presently do so (Tr. 727). m any event, a shuttle
bus between the buildings was originally proposed by the
school district for Booker-Metropolitan, so why not for
Hall-Forest Heights? He also pointed out that Forest
Heights was designed as a junior high school (Tr. 718)fas
was Booker] but admitted that related problems could be
worked out by appropriate scheduling (Tr. 729). He criti
cized certain parts of the plaintiffs' plan but discovered
that the Board's proposal operated in exactly the same
fashion (Tr. 724, 732-33, 742).
The district's plan, utilizing Parkview as a
senior high school, overcrowds it and necessitates the use
of portables or a lengthened day but substitution of Mann
as the senior high school would obviate this since its
capacity is greater. Similarly, the Superintendent admitted
that if the Dunbar-Gibbs complex were established and used
to house the 6th and 7th graders the school district pro
posed to send to Henderson (and Henderson used for 8th and
9th grades) there would be no need for the construction there.
(Tr. 793-94).
-42-
selected.The real reason why the school district
first, alternatives which underutilized or closed black
schools, overcrowded white ones, and necessitated expensive
additional construction, and second, selected Parkview over
Mann as the third high school, ^ 7 were racial reasons. This
was admitted by the Superintendent, who testified that:
white elementary students from closed Bale and Pulaski
Heights Elementary Schools were not assigned to desegre
gate schools in eastern Little Rock because of fears that
they would not attend, or would start private schools (Tr.
332, 334); the recommendation last year to phase out Mann
was based on the supposition that if whites were assigned
to the school, they would not attend (Tr. 391); Parkview
was selected as a high school over Mann for the same reason
(Tr. 763-64).
Under these circumstances, it has repeatedly been
held that the plan must be rejected as discriminatory.
~aney v‘ .County Bd. of Educ.. 429 F.2d 364, 372 (8th Cir.
1970), in this Circuit, establishes that black schools may
— 7 do not contend that Mann must necessarily be oper-
a*ed af.a sen3-or hl9h school. For example, we proposed an alternative which does not so use it, but instead desia- nates Central and Forest Heights-Hall as high schools in a
L5ever1Cweado1thi^kethiSPr°P?rti0nate burdens of defendants' ' do think the question of discrimination is
lastvear V ” Ught °f the dlstricfs proposald i e t e d totally phase out Mann -- when the schoolistnct proposes three senior high schools and chooses to overcrowd Parkview rather than utilize Mann's capacity?
-43-
not be closed for racial reasons. Accord. Smith v. St.
Tammany Parish School Bd.. 302 F. Supp. 106 (E.D. La. 1969).
Recent decisions of other courts have dealt with factual
situations even closer to that at hand.
In Green v. School Bd. of Roanoke, civ. No. 1093
(W.D. Va., August 11, 1970), the school board had proposed
the closing of a black high school. The court wrote:
The court has taken a tour of the City of Roanoke and has actually observed most of
the schools in question. it has noted the
splendid brick construction (with its 10
acres of grounds) of Lucy Addison High School, which has been used only since 1951. in
the fact that Addison's closing will cause overcrowding in the three remaining high schools has not escaped this court's
attention. The plaintiffs' objection that the black community should not be required
to shoulder the largest part of the burden
involved in the desegregation process has
although the realities of the actual physical facts makes such imposition diffi
cult to avoid. The court does not feel that
the school board or HEW have presented suffi
cient reasons to justify the conversion of
such a splendid facility, even if the school
officials do express good faith intentions to use the school for advanced and vocational
classes. There is a certain student and
community feeling about a school which such a
conversion would drastically diminish. There
fore, both the school board and HEW high school
proposals are rejected, and Lucy Addison is to retain its present status.
Id^, slip op. at p. 7. The Court of Appeals affirmed, sub
nonu Adams v. School Dist. No. 5. No. 14,694 (4th Cir., June
10, 1971) (en banc) ("in No. 15,110, the judgment of the
district court retaining Addison School is affirmed.")
-44-
In Quarles v. Oxford Municipal Separate School
Disjt̂ , Civ. No. WC6962-K (N.D. Miss., January 7, 1970) (oral
opinion), the court rejected a plan to close the black
high school and operate the white school on double shifts
in these words:
I think justice in this case requires that this building be used and that it not
be terminated. To terminate it, frankly,
as this Court sees the present situation
from this evidence here today, would be only for racial reasons. it would be for the
reason that the white people are willing
for the colored children to come to the
white sections of town to go to white schools
but the white people are not willing to let
their children go to the colored section. I
think that is the reason and we might as well tag it for what it is.
Recent decisions of the Fifth Circuit are in
accord. in Bell v. West Point Municipal Separate School
P.ist- > No* 30175 (5th Cir., July 8, 1971) (Appendix "F")
the Court held that "an otherwise useful building may not
be closed merely because the school board speculates that
whites will refuse to attend the location. Such action
constitutes racial discrimination in violation of the
Fourteenth Amendment" (slip op. at p. 3). in Lee v. Macon
County Bd. of Educ., No. 30154 (5th Cir., June 29, 1971),
(Appendix "G"), the Court wrote:
Brown II. supra, calling for "a racially
nondiscriminatory school system," and its progeny require not only that past
discriminatory practices be overcome by affirmative actions but also that new
forms of discrimination not be set up in their place. Closing formerly black
school facilities for racial reasons
would be such a prohibited form of discrim
ination. "Such a plan places the burden of
-45-
desegregation upon one racial group."
lJ-ice v- Landis. N.D. Cal. 1969, 314
F* Supp. 947. See Quarles v. Oxford Municipal Separate School District.
N.D. Miss. January 7, 1970, C.A. w!c.
Here, however, it is clear from the
record and briefs that the primary reason
closing the schools was the county board's conclusion that the use of the
black facilities would lead whites to
withdraw from the public system. And
there is little evidence of any legitimate reasons for the closings. Although
arguing below that the black facilities were inferior, appellees asserted on
appeal that the facilities of County
Training "are excellent." Also, the
district court found County Training to
have an "excellent physical plant" in
assigning twelve grades of black students there. Thus the action is not supported
by ^h? inferiority of the physical facilities. Moreover, the county's plan
would have required an extended day at
Oxford High because of the crowding
caused by closing County Training. On the record before us, the county's
original proposal is unacceptable.
Id^, slip op. at pp. 15-16. And see, Gordon v. Jefferson
Davis Parish School Bd., No. 30075 (5th Cir., June 28, 1971)
— -nn v* ghariotte-Mecklenburg Bd. of Educ.. Civ. No. 1 9 7 4
(W.D.N.C., June 22, 1971).
Much of what has been said above is applicable
also to the Henderson construction. There was an extensive
discussion of school construction in Swann:
The construction of new schools and the
closing of old ones is one of the most impor
tant functions of local school authorities
and also one of the most complex. They must
decide questions of location and capacity in
light of population growth, finances, land
-46-
values, Site availability, through an almost endless list of factors to be considered.
The result of this will be a decision which,
when combined with one technique or another of student assignment, will determine the
racial composition of the student body in
each school in the system. Over the long
run, the consequences of the choices will be
far reaching. People gravitate toward school
^aciiities, just as schools are located in
response to the needs of people. The location of schools may thus influence the
patterns of residential development of a
metropolitan area and have important impact
on composition of inner city neighborhoods.[16/]
In the past, choices in this respect
have been used as a potent weapon for creating
or maintaining a state-segregated school system. In addition to the classic pattern
of building schools specifically intended for
Negro or white students, school authorities
have sometimes, since Brown, closed schools which appeared likely to become racially
mixed through changes in neighborhood residential patterns. This was sometimes
accompanied by building new schools in the
areas of white suburban expansion farthest
from Negro population centers in order to
maintain the separation of the races with a
minimum departure from the formal principles
of 'neighborhood zoning." Such a policy does more than simply influence the short-run
composition of the student body of a new school. it may well promote segregated
residential patterns which, when combined
with "neighborhood zoning," further lock the school system into the mold of separation of the races.
The description by the Supreme Court of this
"potent weapon for creating or maintaining a state-segregated
school system" is an accurate depiction of the history of
this school district. And, we believe, the Court modeled
— 7 425' whefe Superintendent Parsons testified. T“ha^ tl}e Slze of the school would denote the neighborhood."
-47-
its language upon this district. The construction injunc
tion issued by the Court in this case in March was, to our
knowledge, the first time the Supreme Court had ever passed
directly on the matter. Furthermore, the detailed history
of this school district was available to the Court (the
material reproduced as Appendix "A" is excerpted from the
Brief in Opposition to the school board's certiorari petition).
The district court seems to have approved the
continuation of construction on the theory that the school
must be built because 26,000 people live in a large area
surrounding the site (July 16, 1971 opinion, p. 8) and it
will be adequately desegregated under the Board's plan of
transporting black students to it. Thus the district court
seems to have approved the construction venture without
considering either the racial composition of the area or
the unused capacity elsewhere in the system.
But the decision cannot be made so abstractly.
The construction needs of the Henderson area are not to be
judged in vacuo, but rather from the standpoint of the
entire system and in terms of their effect upon desegrega
tion of the entire system. The effect of the construction
at Henderson is to facilitate a plan which disproportionately
burdens blacks by not assigning whites to unused capacity
in black schools but enlarging white facilities in conformity
with the school district's historic pattern of affording
fleeing whites convenient access to schools — and then
-48-
busing blacks out to them under compulsion of law. But a
desegregation plan which meets that objection also obviates
the need for construction.
In light of the fact that a greater proportion
of blacks than whites must be moved in Little Rock to
effectively desegregate (July 16, 1971 opinion, p. 12),
moreover, transportation costs will certainly not be mini
mized by additional construction in the outer reaches of
the system.
Consistently with its affirmative duty to take such administrative steps (again within reason) as will lead to integrated
student bodies, the defendant city board
should in this case have explored particular
feasible alternatives in order to avoid
decisions which will limit the extent of
reasonable desegregation in the future.
With an eye, in other words, to the possible costs of extensive cross—busing over a number of years, they should satisfy
themselves as to whether a certain added
construction expense is merited. The board, simply put, should not erect obstacles to
the achievement of desegregation at lowest possible cost.
Bradley v. School Bd. of Richmond. 324 F. Supp. 456, 467
(E.D. Va. 1971).
Parkway is generally the divider between the inner-city pupils and the
outer-county pupils. it is roughly the
halfway division. By the establishment of schools in this area, the integration of
schools would be effected naturally and thereby minimize transportation.
-49-
The proposed Goodlettsville school, a comprehensive high school, is located
in an all-white community and is not
located near the dividing line between
inner-city population and outer-county
population. By referring to the pupil
locator map, it clearly appears that the erection of this school would tend to
promote segregation. Thus the erection of this school in its proposed location is hereby enjoined.
jS-glley v. Metropolitan County Bd. of Educ. of Nashville.
Civ. No. 2094 (M.D. Tenn., June 28, 1971)(Memorandum
Opinion, p. 15).
Thus, we believe that whether considered from
the standpoint of its location only, or taking into
account the existing capacity in the rest of the system
and the discriminatory assignment plan which will be
furtdiered hy the construction, the district court should
have enjoined the Henderson addition.
-50-
IV
The District Court Should Have
Awarded Attorneys' Fees To The
Plaintiffs
Plaintiffs have been seeking an award of attorneys'
fees m this litigation since this Court said in 1966 that
[t]he time is coming to an end when recalcitrant state officials can force unwilling victims
°f,llleg,al discrimination to bear the constant .and crushing expense of enforcing their
constitutionally accorded rights.
* * *.the time fast approaching when the additional sanction of substantial attorneys fees should be seriously considered by the trial courts.
Clark v* Board of Educ. of Little Rock. 369 F.2d 661, 671
(8th Cir. 1966) (emphasis supplied).
Judge Young denied an award of attorneys fees to
plaintiffs in 1968 on the ground that
the Court cannot say that since the Court of Appeals opinion in 1966 the Board has exhibited bad faith
although he had commented otherwise during the hearings
(Appendix in No. 19795, pp. 32a, 405a, 920a). Plaintiffs
appealed on that issue but this Court declined to decide
it at that time, noting merely that
[o]n remand the question of attorney fees may again be presented to the district court.
426 F.2d at 1046. In its August 17, 1970 decree, the
district court awarded plaintiffs $1000 attorneys' fees.
-51-
In its Swann remand of May 4, 1971, this Court
again denied plaintiffs' request for attorneys' fees on
appeal despite the school district's obvious refusal to
comply with the mandate of this Court's 1970 decision. See
the dissenting opinions from the September 4, 1970 order
denying an emergency hearing.
Again the school district proposed a plan which
deliberately left its elementary schools segregated,
acting with apparent utter disdain for constitutional con
cerns. But the district court refused to award attorneys'
fees, this time on the ground
that compliance with the decree will strain
the District financially, [and therefore]
the Court will not burden the Board addition
ally at this time by assessing any attorney's fee against it . . . .
The implicit assumption underlying this reasoning is that
somehow, although their public tax monies have supported
this school district's determined pattern of resistance to
school desegregation over the years, and have paid the
salaries of the school administrators who have failed to
shoulder their constitutional responsibilities, somehow
the black plaintiffs in this litigation are better able
financially to undertake the cost of enforcing public
responsibility. Nothing could be further from the truth.
In fact, within the past year affidavits have
been submitted to this Court, in connection with the con
struction at Henderson Junior High School, which demonstrate
-52-
plaintiffs’ inability to continue to bear this crushing
burden, little relieved by the token award of 51000 in 1970
And the Supreme Court on the same evidence directed the
entry of a construction injunction without bond. Board of
Educ. of Little Bock v. Clark. 401 o.S. 971 ,1971).
The court should not be misled, by the fact that
Plaintiffs’ attorneys are assisted in this case by salaried
attorneys of a non-profit organisation (the NAACP Legal
Defense and Educational Fund. Inc, into believing either
that unlimited funds arere avaj-lable to support this lawsuit
or that a counsel ■unset fee award is inappropriate in these
circumstances.
As to the former, it suffices to say that the
Legal Defense Fund is a non-profit corporation supported
-inly by public contributions. It is involved in . wide
variety of litigation, including more than one hundred fifty
school desegregation cases, at enormous cost. Last year
the Legal Defense Fund operated at a 5250.000 deficit.
Most important, the fact that local counsel are
assisted (almost entirely only at the appellate level, by
Legal Defense Fund attorneys furnishes no basis for
declining to award counsel fees SuchSuch an argument has beenrejected:
perhaps ̂ ^major‘par t^of^laint if fs^n
-53-
filed Jhls suit WGre Louisiana counsel ngaged m private practice, members of
the Louisiana State Bar and of the bar f this court; they were joined as co-
admittld Y 3 iaWyer from New York who was admitted pro hac vice. The latter did infact act as leading counsel. But the
feesUto theSin0t prescribe thG payment of f® 5 t0 *he lawyers. it allows the award to be made to the prevailing party
Whether or not he agreed to pay a fee and in what amount is not decisive
Clark V . American Marine Corp , 320 F. Supp. 709, 711 (E.D.
La- 1970), aff'd 437 F.2d 959 (5th Cir. 1971).
Recent decisions in this and other Circuits have
recognized the necessity for counsel fee awards in
discrimination actions which serve public policy goals.
E ^ , Parham v. Southwestern Bell Tel, i-n 433 F-2d 421_
429-30 (8th Cir. 1970,.- Lea v. Cone Mills C o m . . 438 F.2d
86 (4th Cir. 1971): Newman v. Piggie Park Enterpri...
^90 U.S. 400 (1968); Lee v. Southern Home Sites, Tno. 429
P.2d 290. 295 (5th cir. 1970, : toiler v. Amusement « n L .
firises, 426 F.2d 534 (5th cir. 1970). And the Supreme
Court in Nevmsn noted that even absent the statutory auth
orization for counsel fee awards in the civil Rights Act
Of 1964, equity courts would be justified in imposing such
a sanction upon defendants litigating in bad faith for
purposes of delay. 390 U.S. at 402 n.4.
The most recent, and exhaustive, survey of the
law regarding the award of counsel fees in school desegre
gation cases is Bradley v. School Bd. of Richmond civ. No.
3353-r (E.D. Va., May 26, 1971)(Appendix "E").
-54-
r
about legal requirements, in light of this district's
obligations since Aaron v . Cooper and the clear import of
Supreme Court rulings from Green v. County School Bd. of
New Kent County, 391 U.S. 430 (1968) to Swann; not to mention
this Court's 1970 opinion. Cf. Dyer v. Love, 307 F. Supp.
974, 987-87 (N.D. Miss. 1968). Nor do defendants' belated
attempts to provide some desegregation at the secondary
level in 1971-72 insulate them. See Brown v. County School
Bd- of Frederick County. 327 F.2d 655 (4th Cir. 1964).
This Court should award attorneys' fees on this
appeal and direct a similar award by the district court for
proceedings below.
-56-
CONCLUSION
WHEREFORE, for the foregoing reasons, appellants
respectfully pray that the judgment below be reversed and
the case remanded to the district court with instructions
(1)to order the implementation of the plaintiffs' alterna
tive plan effective with the 1971-72 school year; (2) to
delay the opening of school briefly if required to suc
cessfully implement the plan; (3) to require the adoption
by defendants of objective criteria for the assignment or
transfer of faculty and staff effective for the 1971-72
school year; (4) to award plaintiffs attorneys' fees for
the proceedings in the district court. Appellants further
pray that this Court award them attorneys' fees on this
appeal, and that the mandate issue immediately and not be
stayed pending any petition for rehearing or certiorari.
JACK GREENB0RC
NORMAN J. CRACHKIN
10 Columbus Circle
New York, New York 10019
w al ker, KAPLAN & MAYS, P.A 1820 West 13th Street
Little Rock, Arkansas 72202
Attorneys for Appellants
JOHN W. WALKER
PHILIP E. KAPLAN
WALKER, KAPLAN & MAYS
-56-
A P P E N D I C E S
After Brown v. Board o f Educ., 347 U.S. 483 (1954), the Little
Rock school board adopted a plan of very gradual integration
When that plan was not implemented, Negro students and their
parents brought suit in 1956. The initial plan, calling for comDlete
desegregation by 1988; approved fry Ml? district court that
year, A aron v. Cooper, 143 F. Supp. 855 (E D Ark. 1956). The
Court of Appeals rejected arguments that more rapid desegrega
tion should be required, in part for the reason that the first plan
had been voluntarily adopted by the school board even before the
second B row n decision ( B row n v. Board o f E duc., 349 U S 294
(1955)). A aron v. C ooper, 243 F.2d 361 (8th C ir.’ 1957) Subse
quently, when white parents obtained a state injunction to prevent
implementation of the plan in 1957-58, the district court restrained
compliance with the order of the Arkansas court and mandated
execution of the plan. A aron v. C ooper, 2 Race Rel. L. Rep. 934-36
938-41 ( E D . Ark. 1957), aff'd 254 F.2d 808 (8th Cir. 1958). The
Governor of Arkansas then took measures to prevent Negroes from
attending classes at the previously-white Central High School in
cluding the stationing of National Guardsmen with fixed bayonets
at the school with orders to prevent the entry of Negro students
This conduct was enjoined in A aron v. Cooper, 156 F. Supp. 220
(E .D . Ark. 1957) aff'd sub nom. Faubus v. I ’nited States, 254 F.2d
797 (8th Cir. 1958). However, intervention by federal troops under
direct order of the President of the United States was required to
effectuate compliance with the district court’s orders and with
the Constitution. C ooper v. A aron, 358 U.S. 1, 12 (1958).
After the conclusion of the 1957-58 school vear, the board sought
to delay implementation of the plan for at'least three additional
years because of the extent of white opposition to integration. The
district court's order approving a delay, A aron v. Cooper, 163 F.
Supp. 13 (E .D . Ark. 1958), cert, denied, 357 U.S. 566 (1958) was
reversed. 257 F.2d 33 (8th Cir. 1958), aff'd sub nom. C ooper v
A aron , 358 U.S. 1 (1958).
Pursuant to emergency measures passed by the Arkansas Legisla
ture in special session, the Governor of Arkansas then ordered all
Little Rock high schools [the desegregation plan at that time ex
tended only to the high school grades] to be closed indefinitely
Thereupon, the board undertook to lease its high school buildings
to a segregated private school corporation. The district court denied
an injunction against the leasing of the facilities, but the Court of
Appeals reversed and required issuance of the decree A aron v
C ooper 261 F.2d 97 (8th Cir. 1958). However, Little Rock public
high schools remained closed during the 1958-59 school year, see
APPENDIX "A"
la
A aron v. C ooper, 169 F. Hupp 925 ( E D . Ark. 1959), until the
Arkansas school closing legislation was declared void by a three-
judge district court in Aaron v. M cK inley , 173 F . Supp.944 (E .D .
Ark. 1959) (per curiam), aff'd sub nom. Faubus v. A aron, 361 U S
197 (1959).
The board then assigned pupils during the 1959-60 school year
on the basis of regulations adopted by it pursuant to the Arkansas
Pupil Placement laws, which required consideration of a multitude
of factors other than residence (e.g ., “the possibility of breaches of
the peace or ill will or economic retaliation within the community” ).
An attack upon these laws was rejected by the district court,
A aron v. Tucker, 186 F . Supp. 913 (E .D . Ark. 1960), but its judg
ment was reversed in Norwood v. Tucker, 287 F.2d 798, 802 (8th
Cir. 1961), where the Court said, “ [wjhile we are convinced that
assignment on the basis of pupil residence was contemplated under
the original plan of integration, it does not follow that the school
officials are powerless to apply additional criteria in making initial
assignments and re-assignments.” The board’s use of the pupil
placement laws was “motivated and governed by racial considera
tions,” id. at 806, said the Court, and the board’s “obligation to
disestablish imposed segregation is not met by applying placement
or assignment standards, educational theories or other criteria so
as to produce the result of leaving the previous racial situation
existing as it was before.” Id. at 809.
The Clark plaintiffs in 1965 complained of continued manipula
tion of the Pupil Placement laws to limit the movement of Negroes
into previously all-white schools. The district eourt so found. See
Clark v. B oard o f Educ. o f IAttle R ock, 369 F.2d 661, 665 (8th
Cir. 1966). While the district court’s opinion in that case was being
prepared, the board determined to abandon the Pupil Placement
laws in favor of a “freedom of choice” plan, subsequently approved
by the district court and by the Eighth Circuit with certain di
rected modifications. Clark v. B oard o f E duc. o f L ittle R ock, supra.
2a
Between 1956 and 1969 there were many instances of
actions taken by the district which developed or reinforced the
racial identifiability of its schools: iorced the
an d .'Vif1.iam8 Elementary schools were constructed prior
ities m aU'Whl nelghb<)rhoods and st^ffed with all-white facil-
In 1961, the district decided to “convert” the previonslv »n
Kighteell elementary school an all5eg“ order ,o
rel'eve overcrowding at nearby all-Negro * ementary sohook No
eonsideratKm was given to the possibility of operating all schools
in the area on an integrated basis (A a7 o u
Tucker, 235 Ark. 70, 357 A v 2d T ( 1962)) ‘ »•
In 1963-64, while Henderson Junior Hiirh School w»«
struetion, white pnpik living i„ ,h , f . f w t S ̂ t , , " o, The
city were transported by school diatriet bus pant Side and
teg?MeD<l“ b*‘ “ w h °“ r" 1 ,,||el‘lhta^h' ^ T T . JT “ , T “ * r ' n , b“|,K'aSrs, sa-jsfKizr i?*** ~ ssr? ;s? “st r Brk"' *he ^
S ,r1Wesiy s ’7 Se,,Hdu ° in ,964'65 to disestablish the identities of West Side and Henderson as white junior high schools and
r b?r “ Negr° 1™ ™ h-gh schools. d
in . 19f, m He dlStnct 0pened Gillam Elementary School located
( A 4 7 r rm ° area’ 88 a Negr0 80,1001 with an Si-Negro’ faculty
t z s ?
4god gA |?u: r<V'hoJ' than t0 nearby white elementary facilities (A
aidom of ttS'e ~ c S t t t t f S S l S S
R ock supra 369 F.2d at 665, students assigned to Is T were no5
afforded a cho.ce of schools until the district was ordered to permit
3a
choree in fiyrd v. Board o f D irectors o f L ittle Rock School D ist
Civ. No. L R 65-C-142 (E .D . Ark 1965).
When all-Negro Pfeifer and Carver schools became overcrowded,
A 6 u f 0t ° ffeI N egro 8tudent* » second choice of schools
(A . <315-16), but moved portable classrooms to the site to expand
the capacity of the schools and contain the Negro student popula
tion (A 498-99). In contrast, Hall High School was declared over
crowded under the freedom-of-choice plan, necessitating the estab
lishment of an attendance zone. However, when the board drew
m L T T a '222*4') "° *"*“ Pt “
In addition to staffing new schools with all-white or all-Negro
faculties, the district hired teachers on a strictly racial basis
through 1964-65 (A . 2 8); thereafter, all attempts to achieve fac
ulty integration were on a purely voluntary basis only (A . 2551
And prior to Ju ly 1968, except for two white principals at Negro
schools, the district maintained a racial allocation of principalshiDs
with white principals at traditionally white schools and N egro
principals at “Negro” schools (A . 121-22).
In 1966, the district purchased a school site in Pleasant Valley
r” e*clusjvely white upper-middle class subdivision (Defendants’
Exhibit No. 30; A. 213, 485), again without any consideration of
the racial composition of the neighborhood or the past history of
segregation (A . 486). A n y school constructed on the site (there is
still a sign announcing that a school will be built on the site) would
be all-white; were Pleasant Valley, Walton Heights and Candle-
wood subdivisions not within the Little Rock district, the closest
rA°488 89)d h* * predominantly NeS™ school in the Pankey area
Finally,— and this list is by no means exhaustive of the means
by which this district maintained the segregated character of its
s3stcm— the school district undertook to build a new senior high
school (1 arkview) m the far western section of the city in 1967
despite the availability of over four hundred vacant classroom
spaces at Horace Mann High School (A . 144-45). Three high
schools coidd still serve the high school population of the district
(A 617-18)he °Ver<'r0Wdlng at the time WM m high schools
4 a
L I T T L E R O C K P U B L I C S C H O O L S
I n o n - o v e r l a p p i n g a t t e n d a n c e districts w e r e c r e a t e d at all levels
i ^ T : r r y \ r i0r hi e h SCh001, a n d 8e n i o r hi8 h »<*ool). the pattern
r o l l m e n t b y r a c e s w o u l d closely a p p r o x i m a t e the following:
S e n i o r H i g h S c h o o l
C e n t r a l H i g h S c h o o l 2, 4 0 0 2 , 0 0 5 2 1 0 2 , 2 1 5
Hall H i g h S c h o o l 1 . 4 0 0 1 , 4 5 8 6 0 1, 5 1 8
M a n n H i g h S c h o o l 1 , 4 0 0 3 5 9 1 , 0 6 5 1 , 4 2 4
Totals 5, 2 0 0 3 , 8 2 2 1 , 3 3 5 5, 15 7
Junior-High School Efficiency
Capacity
B o o k e r 9 0 0
D u n b a r 1 , 0 0 0
F o r e s t H e i g h t s 1 , 0 0 0
H e n d e r s o n 7 5 0
P u l a s k i H e i g h t s 7 5 0
S o u t h w e s t 1, 0 0 0
W e s t Side 9 0 0
Total 6, 3 0 0
2 5 2 7 3 8 9 9 0
2 8 9 6 6 4 953
9 3 7 1 9 3 8
6 8 3 6 6 749
7 7 9 39 8 1 8
9 6 6 42 1 . 0 0 8
5 3 8 3 1 6 8 5 4
4 , 4 0 9 1 , 8 6 6 6, 35 5
A P P E N D IX " B "
lb
E L E M E N T A R V S C H O O L S
School
Efficiency
Capacity M u t e Ne g r o Total
Bale 532
Brady 672
Carver-Pfeifer 1008
Centennial 336
Fair Park 336
Forest Park 560
Franklin 728
Garland 532
Gibbs 784
Granite Mt. 896
Jackson 308
Jefferson 700
Kramer 336
Lee 504
Meadowcliff 504Mitchell 420
Oakhurst 448Parham 392
Pulaski Heights 588
Rightsell 448Romine 532
Stephens 560
Washington 560
Williams 532
Wilson 532Woodruff 336
30th 5 Pulaski 504Terry 364
Total 14952
349 0 349
657 0 657
284 731 1015
217 29 246
208 0 208
451 0 451
607 56 663
263 1 264
70 289 359
12 614 626
250 89 339
623 0 623
139 63 202
267 14 281
485 0 485
276 25 301
360 31 391
209 130 339
450 7 4S7
109 329 438
435 86 521
145 369 514
44 499 543
592 2 594
521 11 532
235 0 235
391 355 746
242 0 242
8891 3730 12621
GRAND TOTAL
26452 17202 6931 24123
2b
SUPREME COURT OF THE UNITED STATES
October Term, 1970
JOSEPHINE GOSS et al. v . BOARD OF EDUCATION
OF THE CITY OF KNOXVILLE. TENNESSEE.
ET AL.
ON MOTION KOK AN INJUNCTION
Decided June .'{(). 1971
t , ln0Ji0n f,°r an nn,mHjiatp order requiring
Kiioxville,S8,h" i>f a P a" t0r th° ,lose^Kat'<>" of the KnoM.lle school system for the 1971-1072 school year
and for an order requiring the District Court to hold
oeh hearings, enter such orders and entertain such
proceedings as may hr necessary to achieve a unitary
PUl l ^ t(>: : . ,n ,Kn° XVil,e bV th* — - 1 of the • ■/_ school year was presented to Mk. Ji stick
is denied3 Th^ r " *° the ( ’° Urt- The motionis denied. The I mted States District Court for the
Kastern District of Tennessee has not had an opportunity
since the June 22. 1971. remand of the case by \ L S
States Ciiurt of Appeals for the Sixth Circuit to inquire
A ether respondents have failed to maintain a unitary
school system as defined in Swann v. Charlotte-Mrcklen-
bvZ Z T r - - r S - )• and pr r., ( i th<‘ District ( ourt must conduct forth
u . h such proceedings as may be required for the prompt
determination of this question, and. should it fi.T th a!
respondents have not maintained a unitary school system
- I n d e n t s must term inate dual school s y ^ m
<.f Appeals should ° ' (
APPENDIX "C"
l c
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ALABAMA, SOUTHERN DIVISION
ANTHONY T. LEE, et al.,
Plaintiffs
UNITED STATES OF AMERICA
Plaintiff-Intervenor and Amicus Curiae
NATIONAL EDUCATION ASSOCIATION, INC. ,
Plaintiff-Intervenor
- vs -
MACON COUNTY BOARD OF EDUCATION; et al.,
Defendants
))))))))))))))))))))
FILED IN CLERK’S OFFICE
NORTHERN DISTRICT OF ALABAMA
JUL 131971
W IL L IA M E. D A V IS
C L E R K , U. S. D IS TR IC T C O U R T
Br' OCPUTV CLERK
CIVIL ACTION NO. 70-251
(No. 604-E - M.D. Ala.)
(Decatur City School
System)
MEMORANDUM OPINION
The three-judge court in Lee v. Macon County Board of
Education. Civil Action No. 604-E, Middle District of Alabama,
entered orders on February 11, 1970 and March 24, 1970 modifying
and approving a plan for the complete disestablishment of the
dual system in the Decatur City School District by the start of
the 1970-71 school year. The plan provides in part:
Staff members who work directly with children,
and professional staff who work on the administra
tive level will be hired, assigned, promoted, paid,
demoted, dismissed and otherwise treated without
regard to race, color or national origin, except
to the extent necessary to correct discrimination.
If there is to be a reduction in the number of
principals, teachers, teacher-aides, or other profes
sional staff employed by the school district which
will result in a dismissal or demotion of any such
staff members, the staff member to be dismissed or
demoted must be selected on the basis of objective
and reasonable non-discriminatory standards from
among all the staff of the school district. In
addition, if there is any such dismissal or demo
tion, no staff vacancy may be filled through recruit
ment of a person of a race, color, or national origin
different from that of the individual dismissed or
demoted, until each displaced staff member who is
qualified has had an opportunity to fill the vacancy
and ha3 failed to accept an offer to do so.
APPENDIX "D"
Id
2.
Prior to such a reduction, the school board will
develop or require the development of non-raclal Objective criteria to be used In selecting the staff
member who Is to be dismissed or demoted. These
criteria shall be available for public Inspection an
shall be retained by the school district. The.f^tion district also shall record and preserve the evaluation
of staff members under the criteria. Such shall be made available upon request to the dismissed
or demoted employee.
"Demotion" as used above Includes any reassign
ment (1) under which the staff member recedes less pay or has less responsibility when under the assign
ment he held previously, (2) which requires esser
degree of skill than did the assignment he held
previously, or (3) under which the staff member is asked to teach a subject or grade other than one for
which he is certified or for which he has had substantial experience within a reasonably curren. period.
In general and depending upon the subject involved, five years is such a reasonable period.
The February 11, 1970 order contained the following
instructions:
1). In the event that the school system, in con
nection with its conversion to a unitary plans to dismiss or demote personnel, as those terms
are hereinabove used, a report containing the fol-
lowing information shall be filed with the Court and
served upon the parties by June 1, 1970-
a. The system's nonracial objective criteria
used in selecting the staff member(s) dismissed or
demoted;
b. The name, address, race, type of
cate held, degree or degrees held, total teaching
perience and experience in the system and position
during the 1969-70 school year of each Person to be
dismissed, or demoted, as hereinabove defi^ d£ *"d in the case of a demotion, the person's new position
during the 1970-71 school year and his salaries for
1969-70 and 1970-71.
c. The basis for the dismissal or demotion
of each person, including the procedure employed in
applying the system's nonracial objective criter ,
d. Whether or not the person to be dismissed
or demoted was offered any other ; and’if so, the outcome; and, if not, the reason.
P l a i n t iff-lntervenor, National Education Association,
Inc., filed a motion on March 29, 1971 for further relief al
leging that the Board was not adhering to the requirements of the
2d
February 11 order regarding desegregation of faculty. On May 3,
1971, plalntiff-lntervenor, the United States, filed a motion to
show cause and for supplemental relief specifying In some detail
alleged violations of the requirements for desegregation of
faculty and staff. A full evidentiary hearing was held on these
motions on June 3, 1971.
FINDINGS OF FACT
Upon consideration of the evidence presented at the
hearing and the factual stipulations of the parties, the Court
makes the following findings of fact:
1. There were 11 white and 3 black principals employed
by the Decatur City School System for the 1969-70 school year.
The 3 black principals were employed as follows:
C. Leon Sheffield - Lakeside (now Lakeview)Benjamin T. Davis - Westlawn
William L. England- Cherry Street (now closed)
2. For the 1970-71 school year, there were 13 white and
.0 black principals employed. The Decatur High School Principalshlp
will be vacant as of July 1, 1971, leaving 12 white and 0 black
principals in the System.
3. Beginning with the 1969-70 school year, Grades 10,
11 and 12 were by order of the Court removed from Lakeside and
divided between Decatur High School and Austin High School. Mr.
Sheffield remained as principal at Lakeside with 251 pupils, all
of them black, in Grades 7, 8 and 9. Grades 5 and 6 from Cherry
Street Elementary School, also all black, were housed at Lakeside
during the 1969-70 school year due to a fire which destroyed
several classrooms at Cherry Street. Mr. England remained as princi
pal of Cherry Street School, so that in effect there were at Lakeside
during the 1969-70 school year two separate schools, each with
its own principal, housed in the same facility.
3d
n.
4. Prior to the commencement o f the 1970-71 school year,
and pursuant to the February 11, 1970, Court-approved plan, River
side Elementary and Cherry Street Elementary Schools were both
closed, and the students from both schools were reassigned to
Lakeside, which was renamed Lakeview. The former principal of
Riverside Elementary School, Mr. Floyd W. Briscoe, was made princi
pal o f the new Lakeview School. The old Riverside School was con
verted into a school for specialized classes, including Head Start
Program and classes for special education. Mr. England, former
principal at Cherry Street Elementary, was reassigned as director
of the new Riverside Child Development Center. The students who
had attended Grades 7, 8 and 9 at Lakeside during the 1969-70 school
year were reassigned to Decatur and Austin High Schools, thereby
eliminating Mr. Sheffield's principalship. Mr. Sheffield thereupon
was made assistant principal at Austin High School. At the end of
the 1969-70 school year, Mr. Davis was removed from the principal-
ship at Westlawn Elementary School, due allegedly to a discrepancy
in cafeteria funds, and was made assistant principal at Oak Park
Middle School, formerly Decatur Jr. High. To replace Mr. Davis,
•Mr. Arlo Abercrombie, who had been principal of Eastwood Ele
mentary School during the 1969-70 school year, was transferred to
Westlawn, thereby leaving a vacancy in the Eastwood principalship.
5. At the beginning of the 1970-71 school year, none of
the 3 former black principals was any longer assigned to a princi
palship: Mr. England was director of the Child Development Program
at the Old Riverside School. Mr. Sheffield was one of two assistant
principals at Austin High School, and Mr. Davis was an assistant
principal at Oak Park Middle School. Three principalships in
existence during the 1969-70 school year, namely, Riverside,
Cherry Street, and Lakeside, had been eliminated, and in their
place remained one principalship, that at the new Lakeview School —
a net reduction of two principalships. The two principals who
4d
5.
lost their positions were both black, and the third black principal,
Mr. Davis, had been replaced by a white principal. Concurrently,
at the beginning of the 1970-71 school year, two principalship
vacancies existed: that at Eastwood, which had been vacated when
Mr. Abercrombie wa3 transferred to the Westlawn School, and the
one at Brookhaven Middle School, for which the faculty was created
although the building would not be ready until the 1971-72 school
year. Thus stood the situation at the beginning of the 1970-71
school year.
6. Two white persons were appointed to fill the princl-
palships vacant at the beginning of the 1970-71 school year. Mrs.
Marie South, a former teacher at Eastwood Elementary School in
1969-70, who had no prior experience as a principal, was reassigned
as principal at Eastwood for the 1970-71 school year. Mr. James
Ward Webster, who until this time had not been in the Decatur City
School System, was assigned as principal at Brookhaven Middle
School for the 1970-71 school year.
7. None of the black former principals was offered
either of the principalships vacant at the beginning of the 1970-
71 school year.
6. If Mr. Davis were offered a principalship at this
time, he would not accept.
9. Mr. England, as director of the Child Development
Center at the Old Riverside School, has administrative charge of
the building and the cafeteria and has supervision over M teachers,
<4 assistant teachers, and 3 staff members, fewer teachers and fewer
staff members than he had supervision over at Cherry Street. He is
administratively responsible for the manpower program, three
special education teachers, and two aides. Mr. England received
an increase in salary at the new position, but the Court finds that
le33 responsibility and skill are required In his present assignment
5d
6.
than in his former position a3 principal. Mr. England is qualified
on the basis of his certificate to be principal of Decatur High
or to fill any other princlpalship in the System which may become
vacant. The request of the United States for the appointment of
Mr. England to a princlpalship is not contested.
10. The reasons given for the reassignment of Mr.
Sheffield were his mismanagement of athletic funds and problems
with class scheduling and discipline at Lakeside School during
the 1969-70 school year. These three reasons given for the reas
signment of Mr. Sheffield were based solely on the evaluation of
the Superintendent, Dr. Sellers.
11. The Lakeside School owed the Lang Sporting Goods Store
$2,01)5.01) at the end of the 1969-70 school year for athletic equip
ment and improvements to athletic facilities. Some of this deficit
had been carried over from the 1967-68 school year. It is undis
puted that Mr. Sheffield violated a policy adopted by the Board
of Education in 1965 prohibiting any school from incurring any
athletic obligations during any year which could not be paid out
of the proceeds of that school's operation that year, unless such
carry-over was approved in writing by the Superintendent of Educa
tion. Mr. Sheffield did not request the approval of the superin
tendent to carry over a deficit in either of these years. He had,
since I960, maintained his own continuous account with local
merchants for purchasing athletic equipment and supplies for Lake
side, a previously all black high school; while at the same time
this responsibility had been assumed by the central office staff
of the Decatur City Board of Education for the other high schools
No action was taken by the Board, after the adoption of its fiscal
policy rule, to see that Sheffield conformed to it and he was
allowed to operate as he had for some years.
6d
The primary source of revenue used to pay for athletic
equipment and supplies is the gate receipts from athletic contests.
For the 1969-70 school year, Grades 10 through 12 at Lakeside were
discontinued, leaving Grades 7 through 9, and causing the cessa
tion of high school athletic events. Mr. Sheffield tried to
schedule athletic events with other schools, but was unsuccessful.
As a result of the elimination of the high school athletic program
and the consequent reduction in gate receipts, Mr. Sheffield was
unable to pay his bill. The entire deficit has been paid out of
the general school funds of the Board of Education.
12. There were scheduling problems at the beginning of
the 1969-70 school term. The classes were disproportionate _
some classes with 50 children, and others with 8 or 10. There
were also irreconcilable conflicts. The Director of Secondary
Education of the Decatur School System, Mr. Henderson, was sent
to Lakeside to resolve the problem. He, Mr. Sheffield and Mrs.
Lucille Summers redesigned the schedule and alleviated the problem.
13. Lakeside had greater problems with discipline in
the 1969-70 school year than did the other schools in the Decatur
, city School System. Not long after the opening of the 1969-70 school
year, it came to the attention of the superintendent by report from
the teachers and from his own observation, that the discipline was
poor at Lakeside, that the teachers were having to keep doors
locked to keep other students out of the classes, that disorder
occurred in the halls and cafeteria, and that children were stay
ing in their rooms without supervision when they were supposed to
be in the cafeteria. Part of the discipline problem might have
been attributed to a high percentage of new teachers (7 out of the
1^ faculty members were new teachers at Lakeside), but it also
appears that Mr. Sheffield had not published and was not enforcing
firmly his own admittedly adequate rules of discipline. Mr. Edward
7d
8.
McEvoy was placed on the Lakeside staff in November and remained
there for the balance of the school year. His sole responsibility
was to maintain discipline, and the problem was substantially
alleviated as the school year progressed.
13. Less responsibility and skill are required in Mr.
Sheffield's present assignment as assistant principal of Austin
High School than in his former position as principal at Lakeside.
As principal of Lakeside High School from 19^5 to 1969, he was
responsible for curriculum development in a 7-12 grade school with
peak enrollment of 630 students.. He had supervision over a staff-
of 30 teachers and 8 nonprofessional staff members. As assistant
principal his primary duties are delivery of textbooks, supervision
of custodial services, and processing student withdrawals. He has
no responsibility for curriculum development or supervision of
instruction, and has no teachers or staff under his direct control.
Mr. Sheffield i3 qualified on the basis of his certificate to be
principal of Decatur High School or to fill any other prlncipalship
in the System which may become vacant. Mr. Sheffield has qualifica
tions (academic degrees and years of experience) equal to or greater
than six out of the twelve principals currently assigned.
CONCLUSIONS OF LAW
1. All three former black principals, Mr. Davis, Mr.
England, and Mr. Sheffield, have been demoted within the meaning
of the order entered February 11, 1970, in that their present
assignments give them less responsibility and require a lesser
degree of 3kill than did the principalships they held previously.
2. The number of principals in the System in the 1970-
71 school year was reduced by two from the 1969-70 school year.
3. The defendants have failed to comply with desegrega
tion of faculty and staff provisions in the February 11, 1970,
Court order in the following respects:
8d
9.
(a) The defendants did not adopt and did not
file with the Court or serve on the parties the System's
nonracial objective criteria to be used in selecting
the staff members to be demoted.
'(b) The defendants did not file with the Court
the required information concerning the principals
demoted after the 1969-70 school year.
(c) The defendants did not evaluate by non
racial objective standards all of the principals in
the System prior to deciding which principals would be
demoted after the 1969-70 school year.
(d) The defendants did not offer to any of the
three demoted black principals the vacant principal-
ships at Eastwood Elementary School and Brookhaven
Middle School at the beginning of the 1970-71 school
year.
Jl. The three black principals demoted had a limited prefer
ential right to subsequent vacant principalships. The defendants
were free.to recruit white persons to fill the two vacancies oc
curring at the end of the 1969-70 school year only in the event that
the demoted black principals were not qualified for the vacant posi
tions. The word "qualified" does not mean "less qualified". Lee v.
Macon County Bd. of Education. 321 F.Supp. 1, it n.H (N.D. Ala. 1971).
With respect to Mr. Sheffield, the defendants have brought forward
evidence of some problems that occurred during his administration
as a principal at Lakeside during the 1969-70 school year and other
evidence intended to show that the two white persons appointed to the
vacant principalships were more qualified than Mr. Sheffield for the
positions. The defendants have in effect asked the Court to
examine the irregularities that occurred at Lakeside in 1969-70 and,
9d
10.
In the absence of any adopted nonraclal objective criteria, to
determine that they were sufficiently serious to disqualify Mr.
Sheffield for any future principalships. This is sought despite
the fact that,for the some twenty-five years previous to the
1969-70 tern defendants had been willing to treat Mr. Sheffield
as qualified under a dual school system. Neither the Court nor
defendants may at this time, under the February 11, 1970, Court
order, engage in a comparison of Mr. Sheffield's qualifications
with those of other principals in the System or other candidates
for the vacancies. That type of comparative evaluation should
have been carried out by the defendants at the time the demotions
occurred, in accordance with the Court order. With respect to the
question now presented to it, the Court finds that Mr. Sheffield
is qualified to serve as principal of Decatur High School or to
fill any other princlpalship in the System, within the meaning of
the Court order, and should have been offered the vacancies that
occurred at the end of the 1969-70 school year before white
persons were recruited to fill them. The Court makes the same
.findings with respect to Mr. England. The eligibility of Mr. Davis
to be offered one of the vacant principalships will not be con
sidered, since Mr. Davis has indicated that he would not accept
such a position if it were offered him.
United States District Judge
July 13, 1971
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MAY 26 1971 f
u. s. dist.; ĉ ax,KIC»IOHD..Î r
L ACTION
3353-R
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memorandum
This c la s s a c t io n , brought ten years ago in an e f f o r t to
end r a c ia l d iscr im in a tio n in the o p era tion o f p u b lic sc h o o ls in
Richmond, V ir g in ia , i s before the Court on a motion fo r a tto rn ey s '
f e e s . An appropriate r u lin g on t.;e pending m otion req u ires an
abridged review o f ev en ts s in c e Marc*, o f 1970.
On March 10, 1970, a m otion fo r fu rth er r e l i e f was f i l e d In
th i s c a se , and a f t e r e x te n s iv e h earin gs t h i s Court ordered in to e f f e a t
an in ter im d eseg reg a tio n p lan prepared by the School Board fo r the
sch oo l year 1970-71 , Bradley v . School Board o f C ity o f Richmond,
317 F. Supp. 555 (E.D. Va. 197 0 ), and la t e r , a p lan fo r 1971-72 , I d . .
________ F. Supp. _________ (E.D . Va. A p r il 5 , 1971). Appenaed to the
motion ._ r fu rth er r e l i e f was an a p p lic a t io n fo r an award o f reasonable
a tto rn ey ..' f e e s , to be paid by th e C ity School Board. In j.ight o f the
—ien d an ts' conduct b efore and during l i t i g a t i o n , and by reason o f th e
unique ch a ra cter o f sch oo l d eseg reg a tio n s u i t s , j u s t ic e req u ires th a t
es sin -d be awarded.
This ca se la y don—ot fror. 1966 u n t i l th e m otion o f March,
i v . During th a t p eriod the c i t y sch o o ls were operated under a fr e e
.a le e system o f p u p il assignm ent. The p len was approved ay th e court
r\J
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
CAROLYN BRADLEY, e t c . , ec a i
v .
THE SCHOOL BOARD OF THE CITY OF
RICHMOND, VIRGINIA, e t a l
CLE
CIV
NO.
APPENDIX "E"
l e
11
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o f a p p ea ls , Bradley v . School Board o f C ity o f Richmond. 315 F . 2d 310
(4 th C lr . 196 5 ), but the case was remanded fo r fu rth er h ear in gs on
fa c u lty assignm ents by the Supreme C ourt, Bradley v . School Board o f
the C ity o f Richmond, 382 U .S . 103 (1 9 6 5 ). A fter some fu r th er d i s
t r i c t court proceed ings the ca se la y Id le u n t i l 1970.
When the s u i t was rea c tiv a te d the defendants were d ir e c te d ,
pursuant to th is C ou rt's u su a l p r a c t ic e In sch oo l d eseg reg a tio n c a s e s ,
to s t a te on the record whether th ey contended th a t th e sch o o ls were
then op eratin g as a u n ita ry system , and, I f n o t , what period o f tim e
would be required to form ulate a c o n s t itu t io n a l p la n . In open c o u r t,
a lb e i t r e lu c ta n t ly , th e defendants adm itted th a t th e C o n stitu tio n was
not being com plied w ith*; they were ordered on A p r il 1 , 1970, to sub
m it a u n ita ry p lan on or b efore May 11 , 1970. H earings were s e t fo r
'■■kn
June, and th e p a r t ie s were admonished a s to the n e c e s s ity o f Imple
menting a u n ita ry p lan in th e f a l l o f 1970.
The Court w i l l not r e s ta te i t s fin d in g s o f fa c t and co n c lu s io n s
o f law which r e su lte d from the hearin gs o f the summer o f 1970; th ese
are adequately covered in the reported d e c is io n . A few p o in ts r e le
vant to the p resen t motion should be s t r e s s e d .
Although the School Board had s ta te d , as n oted , th a t the free
ch o ice system f a i le d to comply w ith the C o n stitu tio n , producing as I t
did segregated s c h o o ls , they d ec lin ed to admit during the June hearings
th a t t h i s seg reg a tio n was a ttr ib u ta b le to th e fo rce o f law (tr a n s c r ip t ,
hearing o f June 20 , 1970, a t 3 2 2 ). H earings which th e Court had hoped
1. Of co u rse , i t s c a r c e ly excu ses th e School Board's continued opera
t io n under an in v a lid p lan th a t they were under an ou tstan d in g
court order to do so . L egal requirem ents change; what i s c o n s is te n t ,
m oreover, w ith a pace o f d e lib e r a te speed a t one tim e should not be
confused w ith th e u lt im a te g o a l. The sch oo l system was In v io la t io n
o f ou tstan d in g a u th o r ita t iv e d e c is io n s , Swann v . C harlotte-M ecklenburg
Board o f E ducation . 431 F. 2d 138, 141 (4 th C lr . 197 0 ), r e v 'd . In p a r t ,
____ U.S. _______ (A p ril 20, 197 1 ). To aw ait the p la i n t i f f s ' I n i t i
a t io n o f le g a l a c tio n may have seemed a w ise s t r a te g ic c h o ic e , but
i t cannot be equated w ith the fu l f i l lm e n t o f the a ff ir m a t iv e duty
to d acegrega te .
r'
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would be con fin ed to the e f f e c t iv e n e s s o f a p lan o f d eseg reg a tio n
consequently were expanded; the p l a i n t i f f s were put to the tim e and
expense o f dem onstrating th a t governmental a c tio n la y behind the
segregated sch oo l attendance p r e v a ilin g in Richmond. P u b lic and
p r iv a te d iscr im in a tio n were shown to l i e behind th e r e s id e n t ia l seg re
ga tio n p a ttern s over which the School Board proposed to draw neighbor
hood sch oo l zone l i n e s . Evidence on ch o ice o f sch oo l and p u b lic housing
s i t e s , r e s t r ic t i v e covenants in d eed s, d iscr im in a tio n in fe d e r a l mort
gage insurance o p p o r tu n it ie s , housing seg reg a tio n o rd in a n ces , and
continued p r a c t ic e o f p r iv a te d iscr im in a tio n was p resen ted , most o f i t
w ithout cross-exam in ation or se r io u s attem pt a t r e fu ta t io n . A l l o f
t h is proof was c le a r ly r e le v a n t , not on ly under Swann v . C h a r lo tte -
431 F . 2d a t
Mecklenburg Board o f E ducation , supra, / 141, decided ju s t p r io r to the
h ea r in g s , but a ls o under Brewer v . School Board o f C ity o f N orfo lk .
397 F . 2d 37, 41 (4 th C ir . 1968).
At the same h earings the School Board p resen tee - d eseg reg a tio n
proposal developed by a team from th e Department o f H ea lth , E ducation
and W elfare th a t was ob v io u sly unacceptab le under law then c u rren t. I t
i s hard to see how the Board cou ld have contended o th erw ise , fo r i t s
p roposals ach ieved very l i t t l e d eseg reg a tio n beyond what p rev a iled under
the fr e e ch o ice system , which i t had r ig h t ly d ec lin ed to defen d . These
h earings were h eld more than two years a f t e r Green v . County School Board
or New Kent County. 391 U .S . 430 (1968) was handed down. S in ce th a t tim e
it has been c le a r th a t com pliance w ith th e C o n stitu tio n i s n ot measured
by the form al r a c ia l n e u tr a l ity o f a p u p il assignm ent p lan but ra th er
by i t s e f f e c t iv e n e s s in ex tin g u ish in g th e p u b lic p o lic y o f se g r e g a t io n .
Freedom o f ch o ice had l e f t th ree o f seven h igh sch o o ls a l l b lack and
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one n ea r ly a l l w h ite . I t l e f t f iv e ju n io r h igh sch o o ls ou t o f e le v e n
a l l b lack or n ea r ly so and two n ea r ly a l l w h ite . Of fo r ty -fo u r elem en
tary sch o o ls tw enty-tw o were s u b s ta n t ia l ly a l l b lack and e ig h t alm ost
a l l w h ite , w ith se v e r a l o th ers co n ta in in g a s ig n if i c a n t but s t i l l
g r o ss ly d isp ro p o rtio n a te Negro en ro llm en t. The School B oard's d eseg - !I
reg a tio n proposal - - the HEW plan - - would have p laced sm all m in o r it ie s i
o f the o p p o site race in the th ree form erly b lack h igh sch o o ls and would
have l e f t th e w h ite h igh sch oo l unchanged. Three ju n io r h igh sch oo ls
would have remained a s o b v io u s ly b lack f a c i l i t i e s and th ere would have
been two c le a r ly w h ite; and f iv e alm ost 1007. w h ite and f i f t e e n n ea r ly r
a l l b lack elem entary s c h o o ls . Many o th er elem entary sch o o ls cou ld not
s t r i c t l y have been c a lle d a l l b lack or a l l w h ite , but departed substan
t i a l l y from th e systemwide r a t io and would be r e a d ily id e n t i f ia b le t
2
r a c ia l ly . t
Not o n ly d id th e r e s u l t s o f the School Board proposal condemn j
i t , but a ls o i t f a i le d to pass le g a l muster because th ose who prepared
i t were lim ite d in th e ir e f f o r t s fu rth er to d esegrega te by se lf-im p o sed
r e s t r ic t io n s on a v a ila b le tech n iq u es . C on sid eration o f r e s id e n t ia l
seg reg a tio n in drawing zone l in e s was o m itted , excep t th a t i t was de
cided a t a la t e d ate to p a ir a few sc h o o ls ; tra n sp o r ta tio n was not
s e r io u s ly con sidered as a d eseg reg a tio n t o o l , and in g e n e r a l, a sto n
is h in g ly , race was not taken in to account in the form ulation o f the
p lan . S in ce 1966 i t has been p la in th a t sch oo l boards in t h i s c ir c u i t
may co n sid er race in preparing zone p la n s . Wanner v . County School
Board o f A rlin g ton County. 357 F . 2d 452 (4 th C ir . 1966). To bar t h i s
aey fa c to r from d is c u ss io n would render Im possib le alm ost the f i r s t
B. A f u l l ta b u la tio n o f the r e s u l t s p ro jected under the HEW plan I s
g iven in Bradley v . School Board o f the C ity o f Richmond, supra.
317 F. Supp. a t 564-65 .
■4'
1
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N
step in the B oard's ta sk o f d is e s ta b l is h in g th e dual system . For
fa i lu r e to address i t s e l f to the le g a l duty imposed upon i t by Green,
th at o f tak in g a ff ir m a tiv e a c t io n to d eseg reg a te , the p lan was mani
f e s t l y in v a l id . Furthermore, Swann h eld th a t busing and s a t e l l i t e
zoning were le g it im a te in te g r a t io n tech n iq u es . Swann v . C h a r lo tte -
Mecklenburg Board o f E ducation , jupra , 431 F. 2d a t 145 -46 . A p lan
th a t fa i le d even to experim ent w ith th ese le g it im a te to o ls and y e t
l e f t such su b s ta n tia l seg reg a tio n should never have been proposed to
th e Court.
The School Board was d irec ted to submit a fu r th er p lan w ith in
a month's tim e, and h earin gs were h eld on the second p ro p o sa l. At the
co n c lu s io n o f the June proceeding th e Court had s p e c i f i c a l ly c a l le d
the p a r t ie s ' a t te n t io n to recen t a p p e lla te r u lin g s f ix in g th e e x te n t
o f th e ir o b lig a t io n : Brewer v . School Board o f C ity or N o rfo lk , 434
F. 2d 408 (4 th C ir .) c e r t , denied 399 U .S . 929 (1970); Green v . School
n„ard o f C ity o f Roanoke, 428 F. 2d 811 (4 th C ir . 1970) ; U nited S ta te s
v . sch oo l Board o f F ranklin C ity , 428 F . 2d 373 (4 th C ir . 1970); Swann_
v . C harlotte-M ecklenburg Board o f E ducation , supra, 431 F. 2d. Under
th ese preced en ts the School Board’ s second p lan a ls o f a i le d to e s t a b lis h
a u n ita ry sch oo l system . I t s d e f ic ie n c ie s are f u l ly tr ea ted in the
C ou rt's e a r l i e r op in ion 3 ; the most g la r in g inadequacy i s th e la r g e pro
p o rtio n o f elem entary stu d en ts p laced in s u b s ta n t ia l ly segregated
sc h o o ls . The Fourth C ir c u it in Swann r e je c te d an elem entary p lan which
l e f t over h a lf the b lack elem entary stu d en ts in 867. to 100X b lack
jc n o o ls and about h a lf the w h ites in 867. to 1007. w h ite s c h o o ls . In the
_uce o f th a t r u lin g th e School Board proposed a p lan under which 8 ,814
3 . Bradley v . School Board of the City of Richmond, supra, 317 F . Supp,
a t 572-76 .
o f 14 ,943 b lack elem entary p u p ils would be in tw elve elem entary
sch o o ls over 907. b lack , and 4 ,621 o f 10 ,296 w h ite elem entary p u p ils
would a tten d seven 907. or more w h ite s c h o o ls . At the same tim e,
although testim ony in the June h earin gs by sch oo l ad m in istra tors
in d ica ted a consensus th a t d eseg reg a tio n o f such sch o o ls cou ld not
be ach ieved w ithout tran sp ortin g s tu d e n ts , the School Board had in
August s t i l l taken no step s to acq u ire th e n ecessary equipm ent.
Because by th a t time i t was too la t e to do so by th e beginn ing o f the
1970-71 sch oo l yea r , the p la i n t i f f s were forced to a ccep t on ly p a r t ia l
r e l i e f in the form o f th e School B oard's inadequate p lan on an Interim
b a s is .
The order approving th a t p lan included a d ir e c t io n to th e d efen
dants to rep ort to the Court by mid-November the s p e c i f i c s te p s taken
to c r e a te a u n ita ry system and to a d v ise th e Court o f the e a r l i e s t date
such a system cou ld be put in to e f f e c t .
Appeals were noted by a l l p a r t ie s , but e f f o r t s by th e C ity
C ouncil to secure a s ta y , pursued a t a l l l e v e l s , f a i l e d . On m otion o f
the School Board, however, b r ie f in g was postponed by the Court o f Appeals
pending r u lin g s by th e Supreme Court on sch oo l d eseg reg a tio n c a se s then
before th a t c o u r t . The e f f e c t o f th a t order was to s ta y a l l a p p e lla te
t o ceed in g s .
The School Board's November report s ta te d on ly th a t th ree fu r
th er d eseg reg a tio n p lans were in p rep aration and would be subm itted on
January 15, 1971. These p roposals were to be based on variou s assump
t io n s concerning th e Supreme C ou rt's d is p o s it io n o f th e c a se s b efo re i t .
In the meantime the School Board sought r e l i e f from th e C ou rt's
outstand ing order en jo in in g planned sch oo l c o n str u c tio n . D ep o sit io n s
o f expert w itn e s se s were taken and th e m atter was subm itted on b r ie f s .
-6-
(>
V,
The evidence d is c lo se d th a t the School Board had not s e r io u s ly re
viewed the s i t e and c a p a c ity d e c is io n s which i t had made, accord ing
to e a r l i e r testim on y , w ithout co n s id era tio n o f th e ir impact on e f f o r t s
to d e seg reg a te . Rather i t was rep o rted ly determ ined th a t the s i t e s
chosen were com patib le w ith var iou s co n ce iv a b le measures o f the a ff ir m
a t iv e duty to d eseg reg a te , none o f which was c o n s is te n t w ith cu rrent
d e c is io n s . Bases fo r th e co n c lu s io n s o f c o m p a t ib il ity , m oreover, were
not p resen ted . The Court d ec lin ed to l i f t the co n str u c tio n in ju n c tio n .
Bradley v . School Board of City of Richmond. _____ F. Supp. _________
(E.D. Va. Jan. 29, 1971).
In December, p r io r to co n s id era tio n o f the school co n stru c tio n
is s u e , the p la i n t i f f s moved fo r fu rth er r e l i e f e f f e c t iv e during the
second sem ester o f the 1970-71 sch oo l year , s ta t in g th a t th e defendants'
report in d ica ted th a t they d id not in ten d fu rth er d eseg reg a tio n e f f o r t s
during the current year . The promised p lans were f i l e d in January.4
The on ly proposal which promised more than an in s u b s ta n tia l advance
over the inadequate in terim p lan , the School Board's P lan 3 , required
th e purchase o f tra n sp o rta tio n f a c i l i t i e s which the School Board s t i l l
would on ly say i t would acqu ire i f so ordered . In i t s November report
the. Board s ta te d firm ly i t s o p p o s itio n to any m id-year m o d ifica t io n s
o f the p lan .
The Court d ec lin ed to order fu rth er m id-year r e l i e f , B radley v .
School Board o f C ity o f Richmond. _____ F. Supp. ______ (E.D. V a ., Jan.
29, 1971). Because o f the n early u n iv e r sa l s i le n c e a t a p p e lla te l e v e l s ,
which the Court in terp reted as r e f l e c t in g i t s own hope th a t a u th o r ita
t iv e Supreme Court ru lin g s concerning th e d eseg reg a tio n o f sch o o ls in
They are d escrib ed in th i s C ou rt's p r io r o p in ion , B radley v . School
Board o f C ity o f Richmond. _____ F. Supp. _______(E.D. V a .,A p r.S , 1971).
-7-
major m etrop o litan system s might bear on the e x te n t o f the d efen
dants' d u ty , the Court f e l t th a t I t would not be reasonable to r e
quire fu r th er step s to d esegregate during the second sem ester , and
p a r t ic u la r ly so In v iew o f the expense o f such s te p s and th e l ik e lih o o d
th a t they cou ld not become e f f e c t iv e , on account o f the d e lay In a c
q u irin g tra n sp o r ta tio n f a c i l i t i e s , u n t i l la t e In th a t sem ester . The
fa c t rem ains, n o n e th e le ss , th a t th e School Board had made e f f e c t iv e
and immediate fu rth er r e l i e f n ear ly Im possib le because I t had not
taken the s p e c i f ic s tep o f seek in g to acqu ire b u ses . T his p o lic y o f
In a c t io n , u n t i l faced w ith a court ord er , I s e s p e c ia l ly p u zz lin g In
view o f r ep resen ta tio n s la t e r made by cou n sel for the School Board to
the e f f e c t th a t a t l e a s t f i f t y - s i x bus u n it s would have to be bought,
In the Board's v iew , In order to op erate under n ear ly any p o s s ib le
plan during the 1 9 7 1 -7 2 .school year .
F in a l ly , the Court heard fu rth er ev idence on the p lan to be
Implemented during 1 9 7 1 -7 2 .5 6 The School Board, as n o ted , o ffered
th ree p lan s;^ one o n ly , as s ta te d , would work to e lim in a te th e sub
s t a n t ia l seg reg a tio n th a t remained In Richmond sc h o o ls . P lan 1 was
a s t r i c t l y con tiguous geographic zoning system . P lan 2 , a t the e l e
mentary l e v e l , su ffered from the same fa u l t s which had condemned th e 1
school a d m in is tr a tio n 's p lan In Swann and the in terim p lan in t h i s c a se .
Plan 3 s u b s ta n t ia lly e lim in a ted the r a c ia l l d e n t l f i a b l l l t y o f numerous
elem entary f a c i l i t i e s . B ut, although the Board prepared th a t p la n ,
* they did not urge i t s adoption but In stead endorsed p lan 2 fo r the
1971-72 school yea r . At the h ea r in g s , cou n sel for the School Board
5 . The in s ta n t m otion seek s on ly fe e s and expenses fo r l i t i g a t i o n to
January 29, 1971, but ev idence o f subsequent behavior o f the d efen
dants i s r e le v a n t In th a t I t tends to show a c o n s is te n t p o lic y ,
pursued a t a l l s ta g e s o f the c a se .
6 . D e ta ils o f the p rop osa ls are g iven In Bradley v . School Board o f
C ity o f Richmond. _______ F. Supp. (E.D . V a ., A p r il 5 , 1971).
-8-
aga in a ta ted th a t no fu rth er tra n sp o r ta tio n u n it s would be acquired
u n le s s th e Court so ordered s p e c i f i c a l ly , d e sp ite th a t the Court had
found In August o f 1970 th a t the Interim plan d id not ach ieve a su f -
f l c l e n t le v e l o f d esegrega tion and cou ld be approved as a temporary
exped ien t on ly In v iew o f the la ck o f equipment n ecessary fo r furth er
d eseg reg a tio n . The Court d irec ted th e adoption o f p lan 3 for the
upcoming sch oo l yea r .
As a very gen era l statem ent o f the law , i t I s tru e th a t American
co u rts do pot reim burse the v ic to r io u s l i t i g a n t for th e f u l l p r ic e o f
h is v ic t o r y , h is a tto r n e y 's fe e s and exp en ses. See Goodhart* C o sts .
38 Yale L .J . 849 (1 9 2 9 ). L ike most g e n e r a liz a t io n s In law , t h i s ru le
Is su b jec t to s e v e r a l e x c e p tio n s . The shape o f th ese ex cep tio n s pro
v id e s an example o f the ten s io n s e x is t e n t In our system between two
sources o f le g a l r u le s : co u rts and le g i s la t u r e s . For the c a se s show
th a t cou rts recogn ize a power In th em selves, n ecessary a t tim es In
order f u l ly to ach ieve j u s t ic e , to d ir e c t th a t a lo s in g l i t i g a n t pay
h is opponent's a t to r n e y 's f e e s . T his power, I f I t has a s ta tu to r y
source a t a l l , Is con ferred I m p lic i t ly In the grant o f e q u ita b le j u r i s
d ic t io n . At the same tim e l e g i s l a t iv e d ir e c t iv e s sometimes provide
th a t a court may or must award a w inning p l a i n t i f f reasonable cou n sel
f e e s . Such s t a t u t e s , not In freq u en tly , form part o f a more e x te n s iv e
l e g i s l a t iv e scheme which c r e a te s a le g a l r ig h t and the appropriate
remedy for I t s v io la t io n . I t I s not d i f f i c u l t to see how le g a l doubts
may a r is e as to the c o u r t 's power In a c e r ta in case to d ir e c t th e pay
ment o f f e e s . Most fed era l ca se s Involve the v in d ic a tio n o f s ta tu to r y
r ig h t s . In c e r ta in c a se s the q u estio n a r is e s whether C ongress, In
om ittin g from l e g i s l a t io n any p r o v is io n fo r the award o f cou n se l f e e s ,
Intended to impose a r e s t r ic t io n on a v a ila b le r e l i e f or Intended Instead
9-
to permit the co u rts to e x e r c is e the power r e s t in g in them under
e x is t in g d e c is io n s . C on versely , where a fee award i s s p e c i f i c a l ly
au th orized , the q u estion a r is e s whether some d if fe r e n t fa c tu a l showing
from th a t required under gen era l e q u ita b le p r in c ip le s supports an
award.
The p l a i n t i f f s do not argue th a t e x p l i c i t s ta tu to r y a u th o r i
za tio n e x i s t s for an award o f cou n se l f e e s . The case i s brought pur
suant to 42 U .S .C . $ 1983 and t h i s C ou rt's gen era l e q u ita b le power to
en force c o n s t itu t io n a l p r o te c t io n s ; Congress has not mandated th a t
judgments on such ca se s should as a m atter o f ordinary course in c lu d e
the payment o f co u n se l f e e s . W illiam s v . Kimbrough. 415 F. 2d 874
(5 th C ir . 1969 ), c e r t , d en ied , 396 U .S . 1061 (1970 ).
The case th ere fo re p resen ts an is s u e to be reso lv ed on the
b a s is o f p r in c ip le s governing t h i s C ou rt's gen era l e q u ita b le d is c r e t io n ,
i f d is c r e tio n a r y power i s a v a ila b le to the Court in m atters o f t h is
n atu re . In seek in g out w hatever p a r t ic u la r or s p e c ia l circum stances
j u s t i f y an award o f a tto r n e y 's f e e s , the Court must be m indful th a t
t h i s ca se should be compared not s o l e ly w ith o th er ca se s concern ing
sch oo l d e seg reg a tio n , but w ith a l l o th er types o f l i t i g a t i o n as w e ll .
Sprague v . T icon lc N ation a l Bank. 307 U .S . 161 (1 9 3 9 ), e s ta b
l i s h e s th a t cou n se l fe e s and other l i t i g a t i o n exp en ses, not ta x a b le as
c o s t s by s t a tu te , may be awarded as part o f a l i t i g a n t ' s r e l i e f .
"Allowance o f such c o s t s in appropriate s i tu a t io n s i s part o f the
h is t o r ic eq u ity J u r is d ic t io n o f the fe d e r a l co u r ts ," I d . , 164. One
circum stance in which an award may be an appropriate use o f th e power
o f eq u ity i s th a t in which an in d iv id u a l l i t i g a n t by h is a c t i v i t i e s
c r e a te s or p reserv es a fund in which o th ers than he may have an
7
in t e r e s t . Sprague was such a c a s e , in e f f e c t , but the Court in th at
7 . S ee , e . g . , T rustees v . Greenough. 105 U .S . 527 (1881); Kahan v .
R o s e n s t ie l . 424 F. 2d 161 (3d C ir .) c e r t , d en ied . 348 U .S . 950 (1970);
Gibbs v . B lackw elder. 346 F. 2d 943 (4 th C ir . 1965); M ercan tile -
Commerce Bank v . Southeast Arkansas Levee D i s t r i c t . 106 F . 2d 966
(8th C ir . 1939) .
d e c is io n d ec lin ed to l im it the eq u ity c o u r t 's power to any p a r tic u la r
circum stan ces. "As In much e l s e th at p er ta in s to e q u ita b le J u r is d ic
t io n , I n d iv id u a liz a t io n In the e x e r c is e o f a d is c r e tio n a r y power w i l l
a lone r e ta in e q u ity as a l iv in g system and save I t from s t e r i l i t y . . . .
In any event such a llow ances are appropriate o n ly In e x c e p tio n a l ca se s
and for dom inating reasons o f j u s t ic e ," I d . , 167.
Fleischmann D i s t i l l in g Corp. v . Maler Brewing C o .. 386 U .S . 714
(1 9 6 7 ), s t r e s s e s th a t the p r in c ip le s a llo w in g awards o f cou n se l fe e s
have no a p p lic a t io n in c a se s In vo lv in g " sta tu to ry causes o f a c t io n for
which the le g i s la t u r e had p rescrib ed In tr ic a te rem edies." I d . . 719,
not Intended by Congress to in c lu d e the payment o f cou n sel f e e s . F le ls c h - i
mann has , however, been fo llow ed by Newman v . P lg g le Park E n terp r ise s .
’ 390 U .S . 400 (1 9 6 8 ), and H i l l s v . E le c tr ic A uto-L ite Co. . 396 U .S . 375
(1970 ). In Newman, an a c tio n under the 1964 C iv i l R igh ts A c t, 42 U .S.C . "i
5 2000a, e t s e q . , an enactment which p rovides In terms th a t it s remedies I
are e x c lu s iv e , 42 U .S.C . $ 2 000a -6 (b ), the Court h eld th a t a s u c c e s s fu l
p l a i n t i f f should be awarded a tto r n e y 's fe e s in the ordinary c a s e , under
a s p e c i f ic p ro v is io n o f the a c t . The Court n o ted , however, th a t such a
sa n ctio n could have been Imposed upon a defendant who l i t i g a t e d In bad
fa i th fo r purposes o f d e la y , Newman v . P lg g le Park E n te r p r is e s , supra.
402 n . 4 , even had Congress not au thorized by s ta tu te an award o f
cou n sel f e e s .
In M il ls the Court d irec ted th a t a corp oration reim burse p la in
t i f f s in a d e r iv a t iv e s u i t fo r th e ir a tto r n e y 's f e e s , d e sp ite th a t the
s ta tu te in volved made s p e c i f ic p r o v is io n for a tto r n e y 's fe e s on ly in
se c t io n s o th er than th a t on which l i a b i l i t y was p red ica ted In the a c t io n .
C ongress' f a i lu r e to e s t a b lis h the p r e c is e bounds o f p o s s ib le r e l i e f for
11-
X
v io la t io n o f i t s p r o h ib it io n s (indeed the p r iv a te r ig h t o f a c tio n
i s im plied ) was thought to r e f l e c t an in te n t io n not to exclu d e the
p o s s ib i l i t y o f an award o f a tto r n e y 's fe e s under con v en tio n a l p r in c i
p le s . M il ls v . E le c tr ic A u to -b ite Co. , supra. 391. The Court d irec ted
an in ter im award on a v a r ia t io n o f the fund th eory .
Lower co u rts have a ls o construed fed era l enactm ents, o ld and
r e c e n t, not to bar an award o f a tto r n e y 's fe e s when e q u ity would r e
qu ire i t , in the absence o f in d ic ia o f co n g ress io n a l purpose to render
such r e l i e f u n a v a ila b le . See Lee v . Southern Home S it e s Corp. , 429
F. 2d 290 (5 th C ir . 1970)(42 U .S.C . § 1982); Kahan v . R o s e n s t ie l . supra,
(S e c u r it ie s Exchange Act § 10b, Rule 1 0 b -5 ); L ocal 149, In te r n a tio n a l
Union, A utom obile, A ir c r a ft and A g r ic u ltu r a l Implement M anufacturers o f
America v . American Brake Shoe Co. . 298 F. 2d 212 (4 th C ir .) C er t■.d en ied ,
369 U .S . 873 (1962) (Labor Management R e la tio n s Act § 3 0 1 ).
S ec tio n 1983 and general fe d e r a l e q u ita b le power to p ro tec t con
s t i t u t io n a l r ig h ts are not r e s t r ic t e d by any co n g ress io n a l language in
d ic a t in g an in te n t io n to preclude an award o f cou n se l f e e s , e it h e r by
exp ress e x c lu s io n or the c r e a tio n o f an in t r ic a t e rem edial scheme. The
s ta tu te c r e a te s l i a b i l i t y
" in an a c tio n at law , s u i t in e q u ity , or
oth er proper proceeding fo r r e d ress ."
42 U .S.C. § 1983.
In i t s r e feren ce to s u i t s in eq u ity the s t a tu te must be taken
to au th o r ize r e l i e f , such as an award o f cou n sel fe e s , as might norm ally
be a v a ila b le in such s u i t s . Case law p r io r to Fleischm ann in sch oo l
d eseg reg a tio n c a s e s , d iscu ssed below , r eco g n izes the power o f a fed era l
e q u ity court try in g a d esegrega tion s u i t to award cou n sel f e e s . In the
l i g h t o f the d e c is io n s subsequent to F leischm ann. such co n stru c tio n o f
5 1983 i s not su b jec t to se r io u s q u estio n .
The issue, then, is whether this case is a proper one for a i
discretionary award.
-12
Many o f the c a se s d ir e c t in g or approving an award o f
a tto r n e y s ' f e e s turn upon the fund theory: the concept th a t , f i r s t ,
a l i t i g a n t s cou n sel fe e s have been expended in such a manner as to
b e n e f it a number o f o ther p erson s , not p a r t ic ip a t in g in the s u i t , and
th a t , second , means are a v a ila b le whereby such o u ts id e b e n e f ic ia r ie s
can be made to bear som ething l ik e a pro ra ta share o f expenses by
tak in g the fe e from a defendant (a f id u c ia r y , o fte n ) who h olds or
c o n tr o ls som ething in which the b e n e f ic ia r ie s have an in t e r e s t .
School d eseg reg a tio n c a s e s , or any s u i t s a g a in s t governm ental b o d ie s ,
do not f i t th i s fund model w ithout co n sid era b le c u tt in g and trimming.
T his i s a c la s s s u i t to be su re , w ith c la s s r e l i e f , but to say th at
the p l a i n t i f f c la s s w i l l a c tu a lly in e f f e c t pay th e ir a tto rn ey s i f
the School Board i s made to pay cou n se l fe e s e n t a i l s a number o f
unproved assum ptions about the e x te n t to which p u p ils pay fo r th e ir
fr e e p u b lic sch o o lin g .
N o n e th e le ss , the fund theory does not exhaust the grounds on
which an e q u ity decree to pay cou n se l fe e s may be based . Other ca se s
e x i s t in which " overrid in g co n s id e r a tio n s in d ic a te the need fo r such
recovery ." M il ls v . E le c tr ic A u to -L ite C o ., supra. 391-92; see N ote,
77 Harvard L .R ev. 1135 (1964)• Such co n s id e r a tio n s in gen era l are
presen t when a party has used the l i t i g a t i o n p rocess for ends other
than the le g it im a te r e so lu t io n o f a c tu a l le g a l d is p u te s .
In Guardian Trust Co. v . Kansas C ity Southern R ailway Co. . 28
F. 2d 233 (8 th C ir . 1928 ), r e v 'd . on o th er grounds, 281 U .S . 1 (1930 ),
the E ighth C ir c u it reviewed e x h a u st iv e ly the circum stances in which an
eq u ity court might a llo w c o s t s "as between s o l i c i t o r and c l ie n t" d e sp ite
the lack o f s ta tu to r y a u th o r ity . That court concluded th a t such a fee
award was proper in a number o f in s ta n c e s , in c lu d in g th ose in which a
-13-
f id u c ia r y has defended h is t r u s t , or a party has defended h is
t i t l e to c e r ta in property a g a in s t b a se le s s and v ex a tio u s l i t i g a
t io n , or a d efen d an t, charged w ith gross m isconduct, has p rev a iled
on the m e r its .
In Rude v . Buc h a lt e r , 286 U .S . 451 (1 9 3 2 ), the Supreme Court
h eld unwarranted an award o f a tto r n e y 's fe e s a g a in s t an u n su ccessfu l
p l a i n t i f f where no fin d in g o f p a r t ic u la r bad fa i th or an in te n t to
" p erpetrate a fraud or impose upon the co u rt," P d ., 459, was made.
The Court sa id a ls o th a t those seek in g such an award did n o t , on
the record , appear d eserv in g o f such eq u ita b le treatm ent.
The Seventh C ir c u it , in In re Schw artz. 130 F. 2d 229 (7th
C ir . 1942), approved an award o f $1000 cou n sel fe e s to be paid by
p a r t ie s who forced an opponent in to "unnecessary, gro u n d less , v e x a tio u s ,
and o p p ress iv e ," I d . , 231, l i t i g a t i o n .
The Supreme C ourt, in U n iv ersa l O il Co . v . Root R efin in g C o ..
328 U .S . 575 (1946 ), s ta te d th a t i t would be w ith in the power o f a
court o f e q u ity to d ir e c t payment o f an opponent’ s a tto r n e y ’ s fe e s i f
required by "dominating reasons o f j u s t ic e ," I d . , 580, c i t in g Sprague v .
T icon ic N ation a l Bank, supra, 167, such as would be the ca se i f a l i t i -
gant had p ra c ticed a fraud upon th e co u rt.
A lea d in g ca se in t h is C ir c u it i s Rolax v . A t la n t ic Coast T.fne
M ilroad _C o^ , 186 F. 2d 473 (1 9 5 1 ), a ca se from t h i s C ourt. C h ief
Judge Parker gave the op in ion th a t i t would be e n t ir e ly j u s t i f i a b le
fo r the t r i a l co u r t , on remand, to tax as c o s t s a g a in s t the defendant
labor un ion , g u i l t y o f a c le a r breach o f i t s duty o f f a ir rep resen ta -
t io n , a reasonab le a ttorneys* fee:
14p»
-14-
O rd in a r ily , o f co u r se , a tto rn ey s ' f e e s , excep t
as fix ed by s t a t u t e , should not be taxed as a
part o f the c o s t s recovered by the p r e v a ilin g
party; but in a s u i t in eq u ity where th e ta x a tio n
o f such c o s t s i s e s s e n t ia l to the doing o f j u s t i c e ,
they may be a llow ed in ex cep tio n a l c a s e s . The ju s
t i f i c a t i o n here i s th a t p la i n t i f f s o f sm all means
have been su b jec t to d iscr im in a tory and o p p ress ive
conduct by a pow erful labor org a n iza tio n which was
req u ired , as a bargain ing a gen t, to p r o te c t th e ir
in t e r e s t s . The v in d ic a t io n o f th e ir r ig h ts n e c e s s
a r i ly in v o lv e s g rea ter expense in the employing o f
cou n sel to in s t i t u t e and carry on e x te n s iv e and im
p ortan t l i t i g a t i o n than the amount in vo lved to the
in d iv id u a l p l a i n t i f f s would j u s t i f y th e ir paying.
In such s i t u a t io n s , we th ink th at the allow ance o f
co u n se l fe e s in a reasonab le amount as a part o f
th e recoverab le c o s t s o f the ca se i s a m atter r e s t
ing in the sound d is c r e t io n o f the t r i a l judge.
I d . , 481.
A lthough the in d ic a t io n th a t such c o s t s are proper i f " e s s e n t ia l
to th e doing o f ju s t ic e " in a sen se begs the q u estio n , the fa c to r s men
tio n ed g iv e some gu idance. The s u i t ob v io u sly b e n e fite d an e n t ir e c la s s
o f Negro locom otive firem en. The defendant, equipped w ith l e g i s l a t i v e l y -
to
conferred bargain ing powers, owed them som ething ak in /a f id u c ia r y 's con
cern and had v io la te d th a t d u ty . The resou rces o f the p a r t ie s were d i s
p ro p o rtio n a te . The c o s t o f l i t i g a t i o n was d isp ro p o rtio n a te to the
monetary b e n e f it to any one p l a i n t i f f . L a st, the le g a l is s u e s were
r e la t iv e ly s e t t le d before s u i t . Analogous fa c to r s are p resen t in the
in s ta n t l i t i g a t i o n .
In T aussig v . W ellington Fund, In c . . 187 F . Supp. 179 (D. D el.
1960) a f f ' d . 313 F . 2d 472 (3d C ir . 1 9 63 ), c e r t , d en ied . 374 U .S . 806
(1 9 6 3 ), a stock h o ld ers d e r iv a t iv e s u i t charging u n fa ir co m p etitio n ,
th e shareholder p l a i n t i f f s were awarded a tto rn ey s' fe e s not out o f the
treasu ry o f th e ir co rp o ra tio n , which th e ir law su it presumably b e n e fite d ,
but a g a in s t those g u i l t y o f u n fa ir p r a c t ic e s . Such an e q u ita b le damage
award, the court s a id , must be premised on a fin d in g th a t "the wrong
doers' a c tio n s were u n con scion ab le , frau d u len t, w i l l f u l , in bad f a i t h ,
v e x a t io u s , or e x c e p tio n a l," I d . , 187 F. Supp. a t 222 (fo o tn o te s o m itted ).
-15-
Our own C ir c u it ru led th a t i t was w ith in the power o f a court
o f e q u ity to award a tto rn ey s ' fe e s in a s u i t under § 301 o f the T a ft-
H artley Act to en force an a r b it r a to r 's award i f i t were shown th a t
the em ployer's r e fu s a l to comply w ith the award was a rb itra ry and
u n j u s t i f ie d . The d e c is io n was based on precedents e s ta b lis h in g a
c o u r t 's e q u ita b le power and on th e ju d ic ia l duty to develop a body
o f fe d e r a l law under § 301. In th e p a r tic u la r case th e l i t i g a t i o n was
j u s t i f i e d , and a fe e award im proper, because q u estio n s o f some le g a l
substance remained. L ocal 149, In te r n a tio n a l U nion, U nited A utom obile,
A ir c r a f t and A g r ic u ltu r a l Implement Workers o f America v . American
Brake Shoe Co. , supra.
In Vaughan v . A tk inson . 369 U .S. 527 (1962 ), a tto r n e y s ' fe e s
as an item o f damages on an adm iralty case were h eld due when the
*
ow ner's conduct toward an i l l seaman was c o n s is te n t ly stubborn:
In th e in s ta n t ca se respondents were c a llo u s in
th e ir a t t i tu d e , making no in v e s t ig a t io n o f
l i b e l l a n t ' s c la im and by th e ir s i le n c e n e ith e r
ad m ittin g nor denying i t . As a r e s u lt o f th at
r e c a lc itr a n c e , l i b e l l a n t was forced to h ir e a
law yer and go to court to get what was p la in ly
owed him under laws th a t are cen tu r ie s o ld . The
d e fa u lt was w i l l f u l and p e r s is t e n t . I d , , 530-31 .
A d i s t r i c t court in another case d ec lin ed to e x e r c is e i t s
acknowledged eq u ity power to award a tto rn ey s ' fe e s in a s u i t a g a in st
a lab or u n ion , fin d in g no "fund" had been created and no com pelling
circum stances oth erw ise e x is t e d . The court commented, however, th at:
[W ]ith the p o s s ib le ex cep tio n o f c i v i l r ig h ts
l i t i g a t i o n , see B e ll v . School Bd. , 321 F. 2d
500 (4th C ir . 1963), 77 Harv. L. Rev. 1135
(1 9 6 4 ), no area i s more su s c e p tib le to the sa lu ta ry
e f f e c t s o f the e x e r c is e o f the c h a n c e llo r 's power
to award cou n sel fe e s w ithout the presence o f a
fund than l i t i g a t i o n in v o lv in g a member and h is
u n ion . P r im a r ily , t h i s l i t i g a t i o n seeks s o le ly
eq u ita b le r e l i e f and t r a d i t io n a l ly puts an impe
cunious group o f members a g a in st a so lv e n t union
16-
w ith l i t t l e e x p ec ta tio n o f a su b s ta n tia l monetary
award from which to pay a cou n sel f e e , even a
con tin gen t one. This r e c o g n it io n has prompted
se v e r a l co u rts to a llo w cou n sel f e e s to su c c e s s fu l
union members who through l i t i g a t i o n have c o r r e c - ,,
ted union abuse even though they have not e s ta b - . ,
l i s h e d a fund or conferred a pecuniary b e n e f it
upon the commonwealth o f the un ion . C u tler v .
American F ederation o f M u sic ian s, 231 F. Supp.
845 (S .D . N.Y. 1964 ), a f f ' d . 366 F. 2d 779 (2d
C ir . 196 6 ), c e r t , d en ied , 386 U .S . 993 (1967 ).
A c la s s s u i t to reap p ortion a lo c a l government u n it , Dyer v .
L ove, 307 F. Supp. 974 (N.D. M iss. 1969), was the co n tex t fo r an award
o f cou n se l f e e s in a c i v i l r ig h ts c a s e . When the d efen d an ts, members
o f a board o f su p e r v iso r s , d ec lin ed to reapportion th e ir c o n s t itu e n t s ,
d e sp ite g ro ss p op u la tion v a r ia t io n s between d i s t r i c t s , and in stea d
forced c i t i z e n s to i n i t i a t e " v igorou sly opposed" l i t i g a t i o n , the
cou rt found t h i s "unreasonable and o b stin a te" conduct to be fa ir b a s is
fo r a fe e a llow an ce , even though th ere had been no Supreme Court h old ing
during most o f the s u i t ' s pendency e x p l i c i t l y d e fin in g th e defendants'
d u ty , H . , 987. The d ir e c t io n o f the develop in g law , th e cou rt sa id ,
should have been c le a r . A d d it io n a lly , the court h eld th a t the absence
o f any fee agreement between p la i n t i f f s and th e ir lawyer c o n s t itu te d no
bar to an award, because i t was w ith in the c o u r t 's power to order pay
ment to the a tto rn ey s th em selves .
In another ca se out o f th e same co u r t, an a llow ance o f cou n sel
fe e s was denied when the lo s in g d efen d an ts, p u b lic ed u ca tio n a l adm inis
t r a t o r s , were found not to have presen ted th e ir d e fen ses " in bad fa i th
or for op p ress iv e reason s ," S tacy v . W illia m s, 50 F.R.D. 52 (N.D. M iss.
1970) .
In Lee v . Southern Home S i t e s Corp. , supra, the F if t h C ir c u it
au th orized a tto r n e y s ' fee awards in a s u i t under 42 U .S.C . § 1982
c o n te s t in g r a c ia l d iscr im in a tio n in housing s a l e s , r e ly in g on the
-17-
d ir e c t iv e in Jones v . A lfred H. Mayer C o .. 392 U .S. 409 (1 9 6 8 ), to
fa sh io n appropriate and e f f e c t iv e eq u ita b le rem edies fo r § 1982
v io la t io n s . The d is c r e tio n a r y power c le a r ly e x i s t s , the court sa id ,
and i t s e x e r c is e i s e s p e c ia l ly appropriate in c i v i l r ig h ts c a s e s ,
where o fte n d iscr im in a tio n w ith wide p u b lic impact can be term inated
o n ly by p r iv a te la w su it and problems o f secu rin g le g a l r ep resen ta tio n
have been reco g n ized . However, because the d i s t r i c t c o u r t 's e x e r c is e
o f i t s d is c r e t io n could on ly be reviewed on the b a s is o f fa c t f in d in g s
on th e re le v a n t is s u e s , the ca se was remanded for fu rth er p roceed in gs.
Numerous o th er ca se s support the power o f a cou rt o f eq u ity
to a llo w cou n se l fe e s when a l i t i g a n t ' s conduct has been v ex a tio u s or
gro u n d less , or he has been g u i l ty o f overreach ing conduct or bad f a i th .
See S ie g e l v . W illiam E, Bookhultz & Sons. 419 F. 2d 720 (D.C. C ir .
1969); Smith v . A llegheny Corp. , 394 F. 2d 381 (2d C ir .) c e r t , d en ied .
393 U .S . 939 (1968); McClure v . Borne Chemical C o .. 292 F . 2d 824 (3d
C ir .) c e r t , d en ied , 368 U .S . 939 (1961); In re C a r lco . 308 F . Supp. 815
(E.D . Va. 1970); S tevens v . A bbott. P roctor & P a in e . 288 F . Supp. 836
(E.D. Va. 1 9 68 ).
School d eseg reg a tio n d e c is io n s i l lu s t r a t e the s p e c i f i c a p p lic a
t io n o f a c o u r t 's eq u ita b le d is c r e t io n to a llow cou n sel f e e s to p la in
t i f f s when th e ev id en ce shows o b s t in a te noncompliance w ith the law or
im p o sitio n by defendants on the ju d ic ia l process for purposes o f h arass
ment or d e la y in a ffo rd in g r ig h ts c le a r ly owing. S ee , e . g . N esb lt v .
S t a t e s v i l l e C ity Board o f E ducation . 418 F. 2d 1040 (4 th C ir . 1969);
W illiam s v . Kimbrough, supra; Cato v . Parham. 403 F. 2d 12 (8 th C ir . 1968);
K olfe v . County Board o f Education o f L in co ln County. 391 F. 2d 77 (6th
C ir . 1968); H i l l v . F ranklin County Board o f E ducation . 390 F. 2d 583
-18-
18e
(6 th C ir . 1968); C lark v . Board o f Education- o f L i t t l e Rock School
D i s t r i c t , 369 F. 2d 661 (6th C ir . 1966) ; G r if f in v . County School
Board o f P rin ce Edward County, 363 F. 2d 206 (4 th C ir . 1966); Kemp v .
Bea s l e y , 352 F. 2d 14 (8 th C ir . 1965); Bradley v . School Board o f C ity
o f Richmond, supra, 345 F. 2d; Rogers v . P a u l, 345 F. 2d 117 (8 th C ir .)
r e v 'd . on o th er grounds, 382 U .S. 198 (1965); Brown v . County School
Board o f F red erick County. 327 F . 2d 655 (4th C ir . 1964); B e ll v .
County School Board o f Powhatan County. 321 F. 2d 494 (4 th C ir . 1963);
Pettaway v . County School Board o f Surry County. 230 F. Supp, 480 (E.D.
Va*> r e v 'd . on o th er grounds, 339 F. 2d 486 (4th C ir . 196 4 ). See a ls o ,
F eld er v . H arnett County Board o f E ducation . 409 F. 2d 1070 (4 th C ir .
1 9 6 9 ), concern ing A p p e lla te Rule 38 and " fr iv o lo u s" a p p ea ls .
A p r io r a p p e lla te op in ion in th i s ca se s t a t e s th a t d i s t r i c t
co u r ts should p roperly e x e r c is e th e ir power to a llo w cou n sel fe e s only
"when i t i s found th a t the brin g in g o f the a c tio n should have been
unnecessary and was com pelled by th e sch oo l b oard 's unreasonab le,
o b st in a te obduracy." Bradley v . School Board o f C ity o f Richmond.
_8U£ra, 345 F. 2d a t 321. The Court o f A ppeals recogn ized th a t a p p e lla te
rev iew o f such o rd ers , however, n e c e s s a r i ly had a narrow scope and
f a i le d to d is tu rb a nominal fe e award.
In determ ining whether th is p a r tic u la r la w su it was unn ecess-
at i l y p r e c ip ita te d by the School B oard's obduracy, th e Court cannot
"turn the c lo ck back," Brown v . Board o f Education o f Topeka. 347 U .S.
483 , 492 (1 9 5 4 ), to 1965. The School Board's conduct must be con
sid ered w ith re feren ce to the s t a te o f th e law in 1970. The Court has
a lread y reviewed th e course o f the l i t i g a t i o n . I t should be apparent
-19
v
th a t s in c e 1968 a t the l a t e s t the School Board was c le a r ly in
d e fa u lt o f I t s c o n s t itu t io n a l duty. When h a iled in to co u r t ,
m oreover, i t f i r s t adm itted i t s noncorcpliance, then put in to con
t e s t the r e s p o n s ib i l i t y fo r p e r s is t in g se g r e g a t io n . When l i a b i l i t y
f i n a l l y was e s ta b lis h e d , i t subm itted and in s is t e d on l i t i g a t i n g the
m erits o f s o - c a l le d d eseg reg a tio n p lans which cou ld not meet announced
ju d ic ia l g u id e l in e s . At each sta g e o f the proceed ings th e School
B oard's p o s it io n has been th a t , g iven the ch o ice between d esegrega tin g
the sch oo ls and com m itting a contempt o f co u r t , they would choose the
f i r s t , but th a t in any event d eseg reg a tio n would on ly come about by
cou rt order.
Other cou rts have ca ta logu ed th e array o f t a c t i c s used by •
sch oo l a u th o r it ie s in evading th e ir c o n s t itu t io n a l r e s p o n s ib i l i t i e s ,
Swann v . C harlotte-M ecklenburg Board o f E ducation , supra, ______ U .S .
a t ________ (A p ril 20 , 1 9 7 1 )( s l i p op in ion a t 9 ); Jones v . A lfred H.
Mayer C o ., supra , 448 n .5 (1 9 6 8 )(D ouglas, J . , con cu rrin g); Wright v .
C ouncil o f th e C ity o f Emporia. No. 1 4 ,5 5 2 , _______ F. 2d _______, ______
(4 th C ir . Mar. 23 , 1 9 7 1 )( s l ip op in ion a t 1 3 -1 4 )(S o b e lo f f , J . , d is se n tin g )
The freedom o f ch o ice p lan under which Richmond was op era tin g c le a r ly
was one such. When th i s Court f i l e d i t s op in ion o f August 17 , 1970,
confirm ing the le g a l in v a l id i t y o f th a t p la n , the HEW p ro p o sa l, and
the in ter im p la n , i t was not propounding new le g a l d o c tr in e . Because
the re le v a n t le g a l standards were c le a r i t i s not u n fa ir to say th a t
the l i t i g a t i o n was u n necessary . I t a ch ieved , however, su b s ta n tia l
d e lay in th e f u l l d eseg reg a tio n o f c i t y s c h o o ls . Courts are not meant
are
to be the con ven tion a l means by which p ersons' r lg h ts /a f fo r d e d . The
law favors se ttlem en t and vo lu n tary com pliance w ith the law . When
p a r t ie s must in s t i t u t e l i t i g a t i o n to secure what i s p la in ly due them,
i t i s not u n fa ir to ch a r a c te r iz e a d efen d a n t's conduct as o b s t in a te
-20-
and unreasonable and as a p erversion o f the purpose o f a d ju d ica tio n ,
which i s to s e t t l e a c tu a l d is p u te s .
It is no argument to the contrary that political realities
may compel school administrators to insist on integration by judicial
decree and that this is the ordinary, usual means of achieving com
pliance with constitutional desegregation standards. If such consid
erations lead parties to mount defenses without hope of success, the
judicial process is nonetheless imposed upon and the plaintiffs are
callously put to unreasonable and unnecessary expense.
As long ago as 1966 a court o f appeals in another c ir c u i t
u tte r e d a stron g su g g estio n th a t ev a sio n and o b str u c tio n o f d eseg re
g a tio n should be discouraged by com pelling s t a te o f f i c i a l s to bear
the c o s t o f r e l i e f :
The Board i s under an immediate and a b so lu te con
s t i t u t io n a l duty to a ffo rd n o n -r a c ia lly operated
sch oo l programs, and i t has been g iven ju d ic ia l and
e x e c u tiv e g u id e lin e s for the performance o f th a t
d u ty . I f w e ll known c o n s t itu t io n a l guarantees con
t in u e to be ignored or abridged and in d iv id u a l p u p ils
are forced to r e so r t to th e cou rts fo r p r o te c t io n ,
the tim e i s fa s t approaching when the a d d it io n a l sanc
t io n o f s u b s ta n tia l a tto rn ey s fe e s should be s e r io u s ly
con sid ered by the t r i a l c o u r ts . Almost s o l e ly because
o f the o b s t in a te , adamant, and open r e s is ta n c e to the
law , th e ed u ca tio n a l system o f L i t t l e Rock has been
em broiled in a decade o f c o s t ly l i t i g a t i o n , w h ile con
s t i t u t io n a l l y guaranteed and p ro tected r ig h ts were
c o l l e c t i v e ly and in d iv id u a lly v io la te d . The tim e i s
coming to an end when r e c a lc itr a n t s t a te o f f i c i a l s can
fo rce u n w illin g v ic t im s o f i l l e g a l d isc r im in a tio n to
bear th e con stan t and crush ing expense o f en fo rc in g
th e ir c o n s t i t u t io n a l ly accorded r ig h t s . C lark v . Board
o f E ducation o f L i t t l e Rock School D i s t r i c t , supra. 671.
That tim e has now ex p ired . See a l s o , Cato v . Parham, supra. Our Court
o f A ppeals, to o , has in d ica ted a w ill in g n e s s to p la ce l i t i g a t i o n c o s t s
on defendants in recent cases; in Nesblt v. Statesville City Board of
E ducation , supra, they took the unusual s tep o f d ir e c t in g the d i s t r i c t
-21
cou rt to e x e r c is e i t s d is c r e t io n in the m atter in favor o f the p la in
t i f f s . T h is was a ls o done s ix years b efore in B e ll v . County School
Board o f Powhatan County, supra, when aggravated m isconduct was shown;
in N e sb it , by c o n tr a s t , the defendants seem to have been g u i l t y o f
d e la y a lo n e .
Not on ly has the continued l i t i g a t i o n h ere in been p r e c ip ita te d
by the d efen d an ts' re lu c ta n ce to accep t c le a r le g a l d ir e c t io n , but
oth er com p ellin g circum stances make an e q u ita b le allow ance n ecessa ry .
T his has been a long and complex s e t o f h ea r in g s . P l a i n t i f f s ' cou n sel
have dem onstrated adm irable e x p e r t i s e , d iscu ssed below , but from the
beginn ing th e resou rces o f opposing p a r t ie s have been d isp r o p o r tio n a te .
Ranged a g a in s t the p l a i n t i f f s have been the le g a l s t a f f o f th e C ity
A tto rn ey 's o f f i c e and re ta in ed cou n se l h ig h ly experienced in t r i a l
work. A d d it io n a lly the School Board p ossessed th e a s s is ta n c e o f i t s
e n t ir e a d m in is tra tiv e s t a f f for in v e s t ig a t io n and a n a ly s is o f informa
t io n , prep aration o f ev id en ce , and exp ert testim ony o f ed u ca to rs . Few
l i t i g a n t s - even the w e a lth ie s t - come in to court w ith resou rces a t
once so form idable and so su ite d to the l i t i g a t i o n task a t hand. Sums
paid o u ts id e co u n se l a lone fa r exceed the p l a i n t i f f s ' e st im a te o f the
c o s t o f th e ir tim e and e f f o r t .
M oreover, th i s so r t o f ca se i s an e n te r p r ise on which any
p r iv a te in d iv id u a l should shudder to embark. No s u b s ta n t ia l damage
award i s ever l i k e l y , and y e t the c o s t s o f proving a case fo r in ju n c
t iv e r e l i e f are h ig h . To secure cou n se l w i l l in g to undertake the job
t r i a l , in c lu d in g the su b s ta n tia l duty o f rep resen tin g an e n t ir e
c la s s (som ething which must g iv e pause to a l l a tto r n e y s , s e n s it iv e
22-
as i s the p r o fe s s io n to i t s e t h ic a l r e s p o n s ib i l i t ie s ) n e c e s s a r ily
means th a t someone - p l a i n t i f f or lawyer - must make a great s a c r i f ic e
u n le s s e q u ity in te r v e n e s . Coupled w ith the c o s t o f proof i s the l i k e ly
personal and p r o fe s s io n a l c o s t to cou n sel who work to v in d ic a te m in ority
r ig h ts in an atmosphere o f r e s is ta n c e or o u tr ig h t h o s t i l i t y to th e ir
e f f o r t s . See _NAACP v . B utton . 371 U .S. 415, 4 3 5 -3 6 ,(1 9 6 3 ); Sanders v .
R u s s e l l . 401 F. 2d 241 (5 th C ir . 1968).
S t i l l fu r th e r , the Court must note th at the defen d an ts' d elay
and in a c t io n c o n s t itu te d more than a cause for n e e d le s s l i t i g a t i o n .
I t in sp ired in a community con d ition ed to segregated sch o o ls a fa l s e
hope th a t c o n s t itu t io n a l in te r p r e ta t io n s as enunciated by the cou rts
pursuant to th e ir r e s p o n s ib i l i t i e s , as intended by the C o n stitu tio n ,
cou ld in some manner, o th er than as contem plated by th a t very document,
be in flu en ced by the sentim ent o f a community.
The forego in g in no manner i s intended to exp ress a la ck o f
p ersonal com passion fo r the d i f f i c u l t and arduous ta sk imposed upon
th e members o f the defendant school board. N ev erth e less th e y , and
Indeed the o th er defendants as w e l l , had a p u b lic tr u s t to encourage
what may w e ll be con sid ered one o f the most p rec io u s resou rces o f a
community; an a t t itu d e o f prompt adherence to the law , r e g a r d le ss o f
the m an ifested erroneous view th a t mere o p p o s itio n to c o n s t itu t io n a l
requirem ents would in some manner r e s u lt in a change in th ose req u ire
m ents.
Power over p u b lic education c a r r ie s w ith i t the duty to provide
th a t ed u cation in a c o n s t itu t io n a l manner, a duty in which the d efen
dants f a i l e d .
23-
*
These gen era l fa c to r s were p resen t, a lthough in le s s e r
m agnitude, in the Rolax case in 1951, in which the Fourth C ir c u it
sa id th a t an award o f cou n se l fe e s would be f u l ly j u s t i f i e d .
P assin g the q u estio n o f the ap p rop ria ten ess o f a llow in g fe e s
on the b a s is o f t r a d it io n a l e q u ita b le standards, the Court i s persuaded
th a t in 1970 and 1971 the ch aracter o f sch oo l d eseg reg a tio n l i t i g a t io n
has become such th a t f u l l and appropriate r e l i e f must in c lu d e the award
o f expenses o f l i t i g a t i o n . T his i s an a lt e r n a t iv e ground fo r tod a y 's
r u lin g .
The circum stances which persuaded Congress to au th o r ize the
payment o f a tto r n e y 's fe e s by s t a tu te under c e r ta in s e c t io n s o f th e
1964 C iv i l R igh ts A ct, see 42 U .S.C . §§ 2 0 0 0 a -3 (b ), 2 0 0 0 e -5 (k ), very
o fte n are p resen t in even grea ter degree in sch oo l d eseg reg a tio n l i t i
g a t io n . In Newman v . P ig g ie Park E n te r p r ise s . In c . , supra, the Supreme
Court e lu c id a te d the lo g ic underly ing the 1964 le g i s la t io n :
When th e C iv i l R ights Act o f 1964 was p assed , i t was
ev id en t th a t enforcem ent would prove d i f f i c u l t and
th a t the N ation would have to r e ly in part upon p r i
v a te l i t i g a t i o n as a means o f secu rin g broad com pli
ance w ith the law . A T it l e I I s u i t i s thus p r iv a te
in form o n ly . When a p l a i n t i f f b rin gs an a c tio n
under th a t T i t l e , he cannot recover damages. I f he
o b ta in s an in ju n c t io n , he does so not fo r h im se lf
a lon e but a ls o as a " p rivate a ttorn ey g en era l," v in
d ic a t in g a p o lic y th a t Congress considered o f the
h ig h e s t p r io r i t y . I f su c c e s s fu l p la i n t i f f s were
r o u tin e ly forced to bear th e ir own a tto r n e y s ' f e e s ,
few aggrieved p a r t ie s would be in a p o s it io n to ad
vance th e p u b lic in t e r e s t by invoking the in ju n c t iv e
powers o f the fed era l c o u r ts . I d . , 401-02 .
Newman was fo llow ed in M ille r v . Amusement E n te r p r ise s , I n c . . 426 F. 2d
534 (5 th C ir . 197 0 ), in which the court recognized th a t in ca se s where
the p l a i n t i f f s had undertaken no o b lig a t io n to pay c o u n se l, co n g ress io n a l
purposes would b e st be served by d ir e c t in g payment to the law yers.
-2 4 -
24e
The r a t io n a le o f Newman, moreover, has equal fo rce in employ
ment d isc r im in a tio n c a s e s , even where p la i n t i f f s are on ly p a r t ia l ly
s u c c e s s fu l , where th e ir la w su it serv es to bring an employer in to com
p lia n c e w ith th e A ct. Lea v . Cone M ills Corp. . No. 1 4 ,0 6 8 , _______ F . 2d
---------- (4 th C ir . Jan . 29, 1971); Parham v . Southw estern B e ll Telephone
Co^, 433 F. 2d 421 (5th C ir . 1970 ).
School d eseg reg a tio n c a se s alm ost u n iv e r s a lly proceed as c la s s
actions. Use o f t h i s unconventional form o f a c tio n con verts a p r iv a te
la w su it in to som ething l ik e an a d m in is tra tiv e h earing on com pliance o f
a c r u c ia l p u b lic f a c i l i t y w ith le g a l r u le s d e f in in g , in p a r t, i t s
m iss io n . Such r e s u lt has come about as the law developed so th a t i t
p r o te c ts as a m atter o f in d iv id u a l r ig h t not ju s t adm ission in to form
e r ly w h ite sch o o ls o f b lack a p p lic a n ts , but attendance in a nond is-
crim in atory sch oo l system . Green v . County School Board o f New Kent
County, supra; B radley v . School Board o f C ity o f Richmond. 317 F. 2d
429 (4 th C ir . 1963) .
M a n ife s t ly , to o , not on ly are the r ig h ts o f many a sse r te d in
such s u i t s , but a ls o i t has become a m atter o f v i t a l governm ental p o lic y
not ju s t th a t such r ig h ts be p r o te c te d , but th a t they be im m ediately
v in d ica ted in f a c t . See 42 U .S .C . § 2000e, e t seq . P a r t ly t h is n a tio n a l
goa l has been pursued by a d m in is tra tiv e p roceed in gs , but a la rg e part o f
th e job has f a l le n to the c o u r ts , and fo r them i t has been a task o f
unaccustomed e x te n t and d i f f i c u l t y . "Nothing in our n a tio n a l exp erience
p r io r to 1955 prepared anyone fo r d ea lin g w ith changes and adjustm ents
o f the magnitude and com plexity encountered s in c e th en ." Swann v .
C harlotte-M ecklenburg Board o f E ducation , supra, U .S .
( s l i p op in ion a t 9 ) .
-25-
25e
The p r iv a te lawyer in such a case most a c c u r a te ly may be
d escrib ed a s "a p r iv a te a tto rn ey g en era l." Whatever the conduct o f
defendants may have been , i t i s in to le r a b ly anomalous th a t cou n sel
en tru sted w ith guarantying the e f f e c tu a t io n o f a p u b lic p o lic y o f
n o n d iscr im in a tion as to a la rg e p roportion o f c i t i z e n s should be
com pelled to look to h im se lf or to p r iv a te in d iv id u a ls fo r the r e
sou rces needed to make h is p ro o f. The fu lf i l lm e n t o f c o n s t itu t io n a l
g u a ra n tie s , when to do so profoundly a l t e r s a key s o c ia l in s t i t u t io n
and cau ses rev erb era tio n s o f u n traceab le ex ten t throughout the community,
i s not a p r iv a te m atter . Indeed i t may be argued th a t i t i s a ta sk
which might b e t t e r be undertaken in some framework o th er than the adver
sary system . C ourts adapt, however; but in doing so they must recogn ize
th e new le g a l v e h ic le s they c r e a te and ensure th a t j u s t ic e i s accom plished
f u l ly as e f f e c t iv e l y as under th e o ld on es. The to o ls are a v a ila b le .
Under th e C iv i l R igh ts A ct co u rts are required f u l ly to remedy an e s
ta b lish e d wrong, G r if f in v . County School Board o f P rin ce Edward
County, 377 U .S . 218, 232-34 (1 9 6 4 ), and th e payment o f fe e s and ex
penses in c la s s a c t io n s l ik e t h is one i s a n ecessary in g red ien t o f
such a remedy.
T his ru le i s c o n s is te n t w ith the C ourt's power and serv es an
ev id en t p u b lic p o lic y to encourage th e ju s t and e f f i c i e n t d is p o s it io n
o f ca se s concern ing sch oo l d eseg reg a tio n . C f. 42 U .S.C . § 2000c-6 .
I t serv es no p erso n 's in t e r e s t to d ec id e th ese c a se s on th e b a s is o f
a haphazard p r e se n ta tio n o f e v id en ce , hampered by inadequate manpower
fo r research in to th e bases o f l i a b i l i t y and the elem ents o f r e l i e f .
Where th e in t e r e s t s o f so many are a t s ta k e , j u s t ic e demands th a t
the p l a i n t i f f s ' a tto rn ey s be equipped to inform the court o f the con
sequences o f a v a ila b le c h o ic e s ; t h i s can on ly be done i f the a v a i la b i l i t y
-26-
26e
o f funds fo r rep resen ta tio n Is not l e f t to chance. In t h i s unpre
cedented form o f p u b lic p roceed in g , e x e r c is e o f e q u ity power req u ires
th e Court to a llo w c o u n se l 's fe e s and exp en ses, in a f i e ld in w h ich -
Congress has au th orized broad e q u ita b le rem edies " u n less s p e c ia l c i r
cum stances would render such an award u n ju s t," Newman v . P ig g ie Park
Ifobe r p r is e s , I n c . , supra, 402. No such circum stances are p resen t here .
The amount o f the allow ance i s not d i f f i c u l t to e s t a b l is h .
C ounsel have agreed to submit the m atter o f c o s t s , fe e s and expenses
to th e Court on documentary ev id en ce . The period o f tim e to which th is
the
op in ion r e la t e s runs from/March, 1970, m otion fo r fu r th er r e l i e f u n t i l
January 29, 1971. F indings o f fa c t as to d efendants' a c tio n s a f t e r
th a t d ate have been made; th ese tend to e s t a b lis h th e ir con tin u in g
p a ttern o f in a c t io n and r e s is ta n c e .
T r ia l cou n se l fo r the p l a i n t i f f s demonstrated throughout the
•̂̂ •t ^8at io n a grasp o f the m a ter ia l fa c t s and a command o f the re le v a n t
law equaled by very few law yers who have appeared before t h i s Court.
N eed less to say th e ir understanding o f th e f i e ld enabled them to be o f
su b s ta n tia l a s s is ta n c e to the C ourt, which i s th e ir duty . L ocal counsel
did not examine w itn e s s e s , but a s s is t e d in p r e tr ia l p reparation and a ls o
a t h ea r in g s , as required by lo c a l r u le s . Some o f th e working hours in
cluded in c o u n s e l 's e s t im a te s o f tim e sp en t, m oreover, in c lu d e tr a v e l
tim es . These are p roperly l i s t e d fo r two rea so n s . F ir s t , cou n sel can
and do work w h ile t r a v e l in g . Second, o th er complex c a se s o fte n requ ire
p a r t ie s to e n l i s t the a id o f ou t-o f-to w n co u n se l, for whose tr a v e l
tim e they pay.
In conform ity w ith p r a c tic e in h is home bar o f Memphis, Tenn
e s s e e , a law yer for th e p la i n t i f f s secured th ree a f f id a v i t s from d i s
in te r e s te d b rother cou n sel s ta t in g th e ir e stim a te o f the f a i r va lue
o f le g a l s e r v ic e s rendered by p l a i n t i f f s ' co u n se l. The a f f id a v i t s s ta te
-2 7 -
fa c t s showing a cu rren t fa m il ia r it y w ith p r e v a ilin g fe e r a te s and
w ith , in two c a s e s , the f u l l ca se f i l e . C onsidering th e a b i l i t i e s
o f c o u n se l, the tim e req u ired , and the r e s u l t s a ch ieved , th ese law yers
placed a v a lu e on th e s e r v ic e s very c lo s e to the e s t im a te s o f the
p l a i n t i f f s .
The V ir g in ia Supreme Court o f A ppeals long ago s e t fo rth the
fa c to r s r e le v a n t to the v a lu e o f an a tto r n e y ’ s s e r v ic e s :
[ c ] ircum stances to be con sid ered . . . are th e
amount and ch aracter o f the s e r v ic e s rendered, the
r e s p o n s ib i l i t y imposed; the la b o r , tim e and tro u
b le in vo lved ; the ch aracter and importance o f the
m atter in which the s e r v ic e s are rendered; the
amount o f money or th e v a lu e o f the property to be
a ff e c te d ; the p r o fe s s io n a l s k i l l and exp erience
c a l le d for; the ch aracter and standing in th e ir
p r o fe s s io n o f the a tto rn ey s; and whether or not
th e fe e i s a b so lu te or co n tin g en t . . , The r e s u lt
secured by the s e r v ic e s o f the a tto rn ey may l i k e
w ise be con sid ered ; but m erely as bearing upon the
c o n s id e r a tio n o f the e f f ic i e n c y w ith which they were
rendered, and in th a t way, upon th e ir v a lu e on a
quantum m eru it, not from the standpoin t o f th e ir
v a lu e to the c l i e n t . Campbell County v . Howard.
133 Va. 19 , 112 S .E . 2d 876, 885 (1922 ).
In t h i s ca se th e m arsh a llin g o f ev id en ce on l i a b i l i t y and e s p e c ia l ly on
remedy were complex ta s k s . The r e s p o n s ib i l i t y was probably as grea t as
ever f a l l s upon a p r iv a te law yer. Time spent was co n sid era b le ; the
Court a ccep ts the e s t im a te s o f time and expenses dated January 6 , 1970,
as m odified in a memorandum subm itted on March 15, 1970. The su b jec t
o f th e l i t i g a t i o n was o f the utm ost im portance. The Court has a lread y
referred to th e law yers' perform ance, which they undertook w ithout
assurance o f reasonab le com pensation. S u b sta n tia l r e s u l t s , to o , were
secured by t h e ir e f f o r t s .
On th e b a s is o f th ese fa c t o r s , p lu s th e e q u ita b le c o n s id era tio n s
com pelling an a llow an ce , the Court has determ ined th at a reasonab le
4
a tto r n e y 's fe e would be $ 4 3 ,3 5 5 .0 0 .
8 . The Court has reduced the requested allow ance pursuant to the supp le
m ental memorandum f i l e d by p l a i n t i f f s under date o f Mar. 15, 1971,
and in a d d it io n has deducted the item o f $990 having to do w ith C ity
C o u n c il's requested sta y o f C ou rt's order o f August 1970.
Expenses in cu rred , in c lu d in g taxab le c o s t s , have a ls o been
estim ated by the p l a i n t i f f s . As in the case o f a tto r n e y ’ s f e e s , th ese
cover th e period from March o f 1970 through January 29, 1971, and
r e l i e f i s not requested w ith re feren ce to m atters ra ised by the motion
fo r jo in d er o f fu rth er p a r t ie s f i l e d by the School Board. C osts and
expenses a s to th ose m atters are th ere fo re not under co n s id e r a tio n .
Because the Court has decided th a t p l a i n t i f f s ' cou n se l are due
an allow ance o f th e a c tu a l expenses o f the l i t i g a t i o n , i t i s not n ecess
ary to determ ine whether c e r ta in item s o f expense would in th e .u su a l
ca se be ta x a b le as c o s t s under 28 U .S .C . § 1920; see 6 M oore's Federal
P r a c tic e t 5 4 .7 0 , e t seq . (2d ed . 1966 ).
Many o f the expenses incurred by p la i n t i f f s ' co u n se l are a t
tr ib u ta b le to th e ir tr a v e l in g from New York and Memphis for prepara
t io n and t r i a l , b u t, as the Court a lread y s a id , the com plexity o f ca se s
o f th i s so r t o f t e n , as h ere , j u s t i f i e s the use o f cou n sel from o u ts id e
the lo c a l b ar . The d i f f i c u l t y o f r e ta in in g lo c a l t r i a l cou n se l must be
e s p e c ia l ly g rea t in l i t i g a t i o n over m in o r it ie s ' c i v i l r ig h t s ; the un
p o p u la r ity o f the cau ses and the lik e lih o o d o f sm all reward d iscourage
many law yers even from m astering the f i e ld o f law , much le s s accep tin g
the c a s e s . Expenses for tr a v e l , h o te l accommodations and restau ran t
m eals are f a i r ly a llo w a b le . The Court tak es n o t ic e o f th e fa c t th a t
the absence o f an a tto rn ey from th e area o f h is o f f i c e u su a lly r e s u lt s
in f in a n c ia l hardship in r e la t io n to the balance o f h is p r a c t ic e , and
th ere ought n ot to be superimposed thereon a d d it io n a l l i v in g exp en ses.
Fees fo r exp ert w itn e s se s ' testim ony lik e w ise w i l l be allow ed
as an expense o f s u i t . I t i s d i f f i c u l t to imagine a more n ecessary
item o f proof (and source o f a s s is ta n c e to the Court) than the con
sid ered op in ion o f an ed u ca tion a l ex p er t.
-29-
I n v e s t ig a t io n a s s is ta n c e and o f f i c e su p p lie s l ik e w is e are
o b v io u s ly proper; one must co n tr a s t the rather minimal expenses o f
th e p l a i n t i f f s under t h i s heading w ith the resou rces used by the
d efen d an ts.
taken w ith the C ou rt's encouragement, and m isce lla n eo u s court fe e s
are a llo w a b le .
The Court w i l l not a s s e s s a g a in s t the School Board, however,
expenses occasioned by th e s ta y a p p lic a t io n s u n su c c e s s fu lly f i l e d by
th e Richmond C ity C ou n cil. These may be con sidered on a separate
a p p lic a t io n .
The Court computes the t o t a l a llow ab le expenses to be
$ 1 3 ,0 6 4 .6 5 . The t o t a l award, in c lu d in g cou n sel f e e s , comes to
9
$ 5 6 ,4 1 9 .6 5 . T his i s a la r g e amount, but i t f a l l s w e ll below the
v a lu e o f e f f o r t s made in defend ing the s u i t . O utside cou n se l for the
School Board to date have subm itted b i l l s w e ll in e x ce ss o f th e amounts
awarded. [P ortion s o f the subm itted b i l l s cover p eriod s w ith which we
are n ot here con cern ed .] In a d d it io n , as noted above, the defendants
made use o f th e regu lar le g a l s t a f f o f th e C ity A ttorney and the
School B oard's a d m in istra tiv e s t a f f . For purposes o f com parison, in
a recen t a n t i tr u s t case t r ie d by one Richmond a tto rn ey and two law yers
from o u ts id e the lo c a l bar, t h i s Court awarded $117,000 in cou n sel
f e e s . The amount in t h i s ca se i s not e x c e s s iv e .
For th e reasons s ta te d , an order s h a l l en ter t h i s day decreein g
th e payment o f the sum mentioned to
9 . Expenses incurred in re feren ce to C ity C o u n c il's req u est fo r stay
o f August 1970 order are not included h e r e in , nor are expenses
a llo c a te d to f i l i n g o f amended com plaint.
T ran scrip t c o s t s , in c lu d in g th ose for d e p o s it io n s which were
IN THE
United States Court of Appeals
f o r t h e f if t h c ir c u it
N o . 3 0 1 7 S
HUGH LARRY BELL, ET AL.,
Plaintiffs-A ppellants,
versus
WEST POINT MUNICIPAL SEPARATE SCHOOL
DISTRICT, ET AL.,
Defendants-Appellaes.
A ppea l f r o m the United S ta te s D is tr ic t Court for the
Northern Dis tr ic t of Mississippi
(Ju ly 8, 1971)
B efore THORNBERRY, MORGAN and CLARK,
Circuit Judges.
MORGAN, Circuit Judge: In th is school d esegrega
tion ca se the issue is w hether the Board of T rustees
for the W est Point, M ississippi School D istrict m ay
va lid ly close tw o schools as part of a plan to estab lish
a unitary school system within the requirem ents of
Green v. County School Board of N ew Kent County,
1968, 391 U.S. 430, and Alexander v. Holmes County
Board of Education, 1969, 396 U.S. 19.
APPENDIX "F"
If
By an order entered on May 8, 1970, the D istrict court
refused to a lter W est P oint’s desegregation plan w hich
had been in operation since the court’s previous order
of January 21, 1970. The plan assign s all students in
the d istrict (1,852 whites, 2,388 b lacks) to five different
schools according to grade attended. R acia l seg reg a
tion is v irtually im possib le since all the children in
a particular grade attend the sa m e school irrespective
of the physica l location of the student’s hom e within
the district.
H ow ever, the W est Point school plan closed two
sch oo ls’ so lely because of the fear on the part of the
Board of T rustees that w hites would not attend these
form erly all-N egro schools located within the black
neighborhood. As a result of the schools being closed,
le ss classroom sp ace becam e ava ilab le so that the re
m ain ing five schools w ere forced to conduct c la sse s
on a “split se ss io n ”2 or “two shift a day” basis.
The closing of these schools for purely racia l rea
sons is im p erm issib le under Brown v. Board of Educa-
t iov of T o p e k a , 1955, 349 U.S. 294, w hich com m ands
2 BELL v. WEST POINT MUN. SEP. SCH. DIST.
'Before the desegregation plan was implemented by the district
court on January 21, 1970, West Point operated a total of
seven schools which would not have qualified as a unitary
system under Green v. County School Board of New Kent
County. 1968, 391 U.S. 430.
*In a “split session” arrangement, the pupil attends school in either
the morning or the afternoon shift, enabling the school build
ing to handle approximately twice the number of students it
could normally house in a single day. Under the West Point
plan the morning shift begins at 7:45 A.M. and ends at 12:40
P.M., and the afternoon shift lasts from 1:00 P.M to 5 45
PM. There is no significant difference in the racial composi
tion of any of the shifts.
2 f
BELL v. WEST POINT MUN. SEP. SCH. DIST. 3
that the public school sy stem s operate free from racia l
discrim ination. W hile it is undisputed that a particu
lar school m ay be term inated for sound educational
reasons, an otherw ise useful building m ay not be
closed m ere ly because the school board sp ecu lates that
w hites w ill refuse to attend the location. Such action
constitutes racia l d iscrim ination in violation of the
Fourteenth A m endm ent.
A ccordingly, w e hold that F ifth Street Junior and
Senior High School and N orthside E lem en tary School
cannot be closed for the reasons shown in the record
below.
The case is hereby rem anded to the d istrict court
with directions to form ulate a school d esegregation
plan not inconsistent with this order.
R EM A N D ED WITH DIRECTIONS.
CLARK, Circuit Judge, sp ecia lly concurring:
Under our recent decision in Lee v. Macon County
Board of E d u c a t i o n . ____ F .2 d _____ (5 Cir. 1971) [No.
30154, June 29, 1971 ] (P art IV), not published at the
tim e the d istrict court acted in this cause, I agree that
the present sta te of the record requires reversal. H ow
ever m y concurrence is based upon the understanding
that this m andate does not deprive the d istrict judge
of discretion to determ ine w hether he will hold addi
tional hearings or consider additional ev idence if such
hearings or ev idence m ight show that sound ed u ca
tional principles underlay the tem porary discontinu-
3 f
4 BELL v. WEST POINT MUN. SEP. SCH. DIST.
ance of the use of the F ifth Street and /or N orthside
school facilities. Cf. Gordon v. Jefferson D av is Par i sh
School B o a r d , ____ F .2 d ____ (5 Cir. 1971) [No. 30075,
June 28, 1971],
The W est Point M unicipal Separate School D istrict
plan has that one controlling virtue found in too few
court-m andated school operations of any racia l m a k e
up; it has worked! See Green v. County School Board
of N ew Kent County, 391 U.S. 430 (1968). This m ajority
black school d istrict is the sole su ch exam p le known
to m e w hich has been able to m ove from a totally
segregated past to a totally in tegrated present, w hile
p reserving a discip lined atm osphere in w hich a m ean
ingful education for pupils of both races has been a f
forded. U nless the trial court finds it m ust determ ine
that this accom plishm ent w as m ad e at a constitutional
ly im p erm issib le sacr ifice on the part of the b lack com
m unity then the law does not require this court to in
tervene. R ather, the district can be le ft to continue
to so lve its problem s in its own su ccessfu l way.
We have a lw ays recognized school ca ses as unique.
With equal certainty , w e should recognize that no court
should d ism antle a v iab le unitary school system m ere
ly to worship at the altar of form. If the closing of
th ese school fa c ilitie s and the utilization of double
sh ifts for student attendance can be dem onstrated to
be supportable on any nonracial ground, such as m ain
tain ing an extra busy school schedule during tran si
tion years, w hich w hile utilizing fu lly su itab le physi
ca l facilities, m ain ta ined an atm osphere in w hich
children could be su ccessfu lly taught in a tota lly new
4 f
sy stem for W est Point, then the d istrict court ought
to be free to determ ine that the school d istrict was
justified in allow ing the tem porary d iscontinuance of
these school p h ysica l p lants as a m atter of sound edu
cational judgm ent. At lea st such a showing, if it can
be m ade, is not foreclosed by our m andate here.
BELL v. WEST POINT MUN. SEP. SCH. DIST. 5
Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.
5f
IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
N o . 3 0 1 5 4
ANTHONY T. LEE, et aL,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor-Appellants,
NATIONAL EDUCATION ASSOCIATION, INC,
Plaintiff-Intervenor,
versus
MACON COUNTY BOARD OF EDUCATION, et aL,
and
CALHOUN COUNTY SCHOOL SYSTEM,
Defendant-Appellee,
and
CITY OF OXFORD SCHOOL SYSTEM,
Defendant-Appellee.
Appea l f rom the Uni ted S ta tes Dis tr ic t Court for the
Middle Dis tr ic t of A la b a m a
(June 29, 1971)
APPENDIX "G"
ig
2 LEE v. MACON CTY. BD. OF ED.
B efore WISDOM, COLEMAN, and SIMPSON,
Circuit Judges.
WISDOM, Circuit Judge: This school d eseg reg a
tion case' in vo lves the student assign m en t provisions
of the plan for d esegregating the public schools in Cal
houn County, A labam a. The U nited States, p laintiff-in-
tervenor, appeals from that portion of the court’s order
w hich would have the effect of leav ing approxim ately
45 percent of this sm all d istrict’s N egro students in
two virtually all-b lack schools; pairing a lternatives
would fu lly seg reg a te both schools.* We fee l com pelled
to reverse the d istrict court on this issue.
I .
Calhoun County, in northeastern A labam a, has
a county school sy stem serving rural areas and incor
porated m unicipalities not having their own sep arate
’A three-judge court consisting of Circuit Judge Richard T. Rives
and District Judge Frank M. Johnson, Jr. and H. H. Grooms
was convened in 1964 to hear a constitutional challenge to
an Alabama tuition grant law See Lee et als v Macon County
Board of Education, et als, M.D. Ala., 1964, 231 F. Supp. 743.
Ninety-nine local school systems, including Calhoun County’s
were involved in the suit See Lee v. Macon County Board
of Education, 1967, 267 F. Supp 458, aff’d sub nom. Wallace v
United States, 1967, 389 U. S. 215. The court continued to sit
in the school desegregation cases. By its order of June 12,
1970, the three-judge court transferred this case to the Northern
District of Alabama under 28 U.S.C. 8 1404(a). The matter
giving rise to the June 12 order was not “required” to be
heard by a three-judge court. The appeal therefore properly
lies to this court. 28 U.S.C. 1253, 1291.
a Although the exact figures are not available to show the result
of the district court’s order, approximately 730 black student*
will be in the two all-black schools.
2g
3
t T r mih are fiVe SCho°‘ Systems 1,1 “■« county,
I960 7 6 ^ “ ‘y SyS'em and ' ° ur c ity In1969-70, the county board operated 24 schools, o f which
tw o were all-black and ten all-w hite. The sy stem had
about 11,322 white and 1573 black students (12 percent)
O ver 1000 of the M acks w ere in the two all-M ack
schools. At issu e here is the assign m en t of the stu
dents in these two schools, the Calhoun County Train
ing School and the Thankful School. N ecessarily in-
Volved m any desegregation plan are the form erly all-
w hite schools m Oxford and M echanicsv ille School
w hich is in a rural area. T hese schools lie c losest to
the all-black schools and present the m ost feasib le op
portunity for ach ieving desegregation by pairing.
Calhoun County Training School is located in all-
ack flobson City, an incorporated town on the edge
° lty ' Hobson CltY had a population of 770
in 1960, today it is thought to have double that popula
tion. County Training has served the black students
not only ot Hobson City but also of Oxford and other
areas. Oxford E lem entary School and Oxford High
School, located on a com m on site, have served w hites
^ O x f o r d anQ OUtlying areas. County Training and
e x ord schools are 1.6 m iles apart by road.
B ecause ° f the school district's rural character and
e b oard s previous m ain tenance of a segregated
school sy ste m, the county has provided ex ten sive
sThere were more Negroes in all-black schools last year than un«W
the court’s order for this coming year T h u u d
Of the black atud.nt, at £ t Z n ^ S k S » Z * Z " "
W6re “ hook under the
LEE V. MACON CTY. BD. OF ED.
3 g
4
n nno' ^ t( ansP °rtati° ” *»■ ^udente. Of the a lm ost
’ students m the county sy stem 10,000 or 77.6 per
cent w ere bussed to school in 1969-70. A pproxim ately
the sam e p ercen tage of students w ere bussed to the
xford schools as m the sy stem as a whole. Som e of
d a r iI s StUdentS Were PiCk6d UP the City boun-
P ast de jure segregation and residential patterns
ave shaped the context of this case. In 1899 Hobson
City, which had been part of Oxford, w as sep arately
incorporated after the a rea ’s black residents w er 1
gerrym andered out of Oxford, according to undisputed
testim ony in the record. Custom continued the residen-
ia segregation: Hobson City has rem ained all-b lack
and m Oxford blacks (five percent of the population)
b ird er 7 m SeCti° n Cl° SeSt t0 the ° xford-Hobson
Oxford had an independent school system until 1932
w hen its schools becam e part of the county system
U" n g this past school year, w hile the county system
w as under court order to subm it p lans for county-w ide
desegregation , Oxford estab lished a city school system
under a City Board of Education. This board requested
he Calhoun County Board to transfer control of the
wo ford schools to the new board. The takeover
becam e effective July 1, 1970. The city school board
as urged that its status as an independent entity is
relevant to desegregation proposals.
The other all-b lack school. Thankful School, is to the
north of County Training. Thankful served 278 black
LEE v. MACON CTY. BD. OF ED.
4g
LEE v. MACON CTY. BD. OF ED. 5
children in grades 1-6 in the 1969-70 school year. Thank
ful is approxim ately one m ile from M echan icsv ille
School, w hich has been serving 595 w hite children. Dur
ing the 1969-70 school year, 510 of th ese w ere bussed
to school. There are severa l other form erly all-w hite
county elem en tary schools within a radius of about
three m iles of Thankful.
The issu es in this ca se can best be considered by
describ ing the p lans subm itted to the three-judge court
by the various parties.
Under orders of the Court, the Calhoun County Board
of Education, January 12, 1970. subm itted a plan pro
posing the closing of the two black schools.4 County
Training and Thankful, and distributing the students
from these schools am ong a num ber of the other coun
ty schools • The Oxford schools would have received
4The county had previously closed several black schools and assigned the pupil*
to formerly white schools. This Included the closing of grades 7-9 at Thank
ful.
•The projection for the effect of the county’s plan is as follows:
Projected
School
Calhoun Co. Training
Thankful
Enrollment Formerly W
Capacity
1020
450
Gr. W N
(closed)
(closed)
T or N School*
N
NBlue Mountain 180 1-6 151 29 180 WEulation 390-420 1-6 400 20 420 WMechanicsville 720 1-6 590 130 720 wSaks El. 870-1010 1-6 950 62 1012 wSaks High 1200 7-12 980 126 1106 wOxford El. 810-1035 1-6 820 250 1070 wOxford High 1840-1860* 7-12 1375 220 1595 wWelborn 1380
*“On extended day school schedule”
7-12 1200 200 1400 w
5g
6 LEE v. MACON CTY. BD. OF ED.
a num ber of the black students from County Training.
The Oxford Board of Education, w hich asserts its sep
arate identity w ith respect to sending its students to
County Training, concurred in the plan. The school
closing plan would result in an extended day-school
schedule at Oxford High to house 1595 pupils in grades
7 to 12. While the plan indicated a cap acity of 1840-1860
at Oxford High based upon the extended day sched
uling, the Building Inform ation Form for that school
for the 1969-70 school year, stated that the m axim um
cap acity w as 1230. The plan would assign 1070 children
to Oxford E lem entary , with a regular capacity of 810,
1035 including 7 portable and 2 tem porary rooms.
The plaintiffs and the United S tates objected to c lo s
ing Calhoun County and Thankful on the ground that
it w as racia lly m otivated and would im pose an uncon
stitutional burden on the N egroes. The conclusion that
the proposed closing w as racially m otivated w as based
on the fact that the facilities to be closed w ere p h ysica l
ly adequate and that the county board's justifications
included the argum ent that w hites would resist going
to school in facilities form erly used by blacks. As an
alternative, the plaintiffs and p laintiff-intervenors sug
gested various pairing plans that would link County
Training with the Oxford E lem entary and High
Schools, and link Thankful School with M echanicsville
School.6 On F ebruary 10. 1970. the court ordered the
eSeveral pairing proposals were put forward. For County Train
ing and the Oxford schools, the plaintiffs at one point proposed,
without attendance projections, the following division: Oxford
Elementary 1-5; County Training 6-9, Oxford High 10-12. The
6g
LEE V. MACON CTY. BD. OF ED. 7
sy stem to show cause why this a lternative should not
be im plem ented, noting that “ Ltjhe school sy ste m ’s
plan appears to im pose an un necessary burden on the
children of both races solely to avoid assign ing white
students to a form erly black school. The im position
o such a burden, when based on racia l factors, v io
la tes the Fourteenth A m endm ent.”
to the county superintendent of schools
the Thankful School, built in 1953, is “in good condi -
3 good Slte and its “landscaping is fin e”.
The M echanicsv ille School, which would absorb m ore
han 100 students if Thankful w ere closed, is located
about one m ile from Thankful. Its site is not as a ttrac
tive as the one at Thankful. A portion of the Calhoun
plaintiffs later put forward
projections: the following pairing plan with
Oxford Elementary 1-4 575 '“”175 750 ''“ g 'lo^
Oxford High 5-9 860 249 1109 1
County Training 10-12 694 233 927 1020
suggestion f o r ^ e " * ^ ^ Pr°P°Sed the followin*
S chool
C ounty Tt
Oxford El.
O xford H igh
:ni.n;
Gr
1-4
5-8
9-12
W
575
625
1050
N
175
175
150
T
750
800
1200
- — - —
were presented: Parhes. The following figures
Mechanicsville
Thankful
Capacity
720
Wh. N. Total
360 610 260 870
79
8 LEE v. MACON CTY. BD. OF ED.
County Training School w as built in 1945 and the re
m ainder in the 1950’s and 1960's. It m ight cost a m il
lion dollars to build a structure like Calhoun County
Training at present. The system does not presently
have availab le m oney for new construction. The court
stated in the term inal order of June 12, 1970, that Coun
ty Training had “an excellen t physica l plant. .”
The County System gave three reasons for opposing
the pairing. (1) W hites would flee from the public
schools.7 (2) It would be exp en sive to convert the
Training School to an e lem en tary school. (3) Hobson
City’s two percent license tax, covering teachers,
would m ake it difficult to acquire su itable teachers.'
The Oxford system opposed the pairing for a num ber
of reasons. (1) It agreed with the county board that
w hites would flee the public sch oo ls* <2) Hobson City
is a sep arate town with its own governm ent. (3) The
7The board stated: 'These Defendants believe, and, if given an
opportunity to do so. will undertake to present oral testimony
to show that if the Court adopts the proposed modification it
will bring about extensive efforts to operate private school
systems to accommodate any white students who mi^ht
and their enrollments for the next school
reached their capacity. year have already
8g
LEE v. MACON CTY. BD. OF ED. 9
Oxford S ystem would not have elem en tary grades,
thereby m aking it difficult to a ttract industry. (4) P a ir
ing would require bussing; som e students live 3 or 4
m iles from County Training; the Oxford system did
not intend to operate buses.
The county board then proposed a new plan that
would keep both County Training and Thankful open
for grades 1-6. Under this plan, student assign m en ts
would be based on geographic attendance zones. S ince
the zone boundaries followed historic neighborhood
boundaries, their projected effect w as to m ake County
Training all-b lack and Thankful v irtually so.9 Children
in grades 7 to 12 form erly attending these schools
would be distributed to the form erly w hite schools a c
cording to the original county proposal.
A fter a hearing the d istrict court entered a single
order for the Calhoun County and Oxford system s a c
cepting the county board’s plan except for an am end
m ent providing that the board operate County Training
for grades 1 to 12 instead of 1 to 6. The order stated
that “the ev idence . . . reflects that r Countv Training]
oThe figures for the county board’s revised plan are as follows:
Thankful
Mechanicsville
Blue Mountain
Saks El.
Eulation
Oxford El.
County Training
Children 7-12 grades in the ------------ -------------- al^ Ilu
and Wellborn High schools, and those in the County Training
zone would attend Oxford High.
Enrollment
Gr. W N Capacity
1-6 20 230 360
1-6 590 30 720
1-6 175 5 180
1-6 950 5 1012
1-6 390 6 420
1-7 960 95 1070
1-6 — 250 750
9 g
10 LEE v. MACON CTY. BD. OF ED.
is an exce llen t physica l p lant”. The effect of the order
is to continue the school's all-black character serving
grades 1 to 12 and to deprive approxim ately 200 black
students of the integration provided by the county
plan .'0 Under the plan, approxim ately 45 percent of
the black students in the system w ill be assigned to
Thankful and County Training, 29.4 percent to all-black
County Training for their entire school careers.
II.
The first issue we d iscuss is w hether Oxford’s s e c e s
sion from the Calhoun County school system requires
that its schools be treated as an independent system .
Oxford asserts As freedom to keep its pupils in schools
within the city lim its; the board had no objection to
receiv ing black students in its schools from outside
the city, as w as proposed by the county in its original
plan. But the c ity ’s cla im to be treated as a separate
system has little m erit. In its power as a court of equity
overseeing within this Circuit the im plem entation of
Brown v. Board of Educa t ion , 1955, 349 U.S. 294, 300,
this Court m ust overcom e “a variety of ob stacles in
m aking the transition to school sy stem s operated in
accordance with the constitutional principles set forth
in (Brown I).” Brown II, supra.
• oFigures are not available on the exact number of students that
County Training would have under the plan. The Oxford board
has submitted information showing that under the plan It
would have only 157 Negro students out of an enrollment of
2441 in grade 1-12.
10g
LEE v. MACON CTY. BD. OF ED. 11
For purposes of relief, the d istrict court treated the
Calhoun County and Oxford City sy stem s as one. We
hold that the d istrict court's approach w as fully w ithin
its judicial d iscretion and w as the proper w ay to handle
the problem raised by Oxford's reinstitution of a sep
arate city school system . The C ity’s action rem oving
its schools from the county sy stem took p lace w hile
the city schools, through the county board, w ere under
court order to estab lish a unitary school system . The
city cannot seced e from the county w here the effect
— to say nothing of the purpose — of the secessio n
has a substantia l adverse effect on desegregation of
the county school district. If this w ere lega lly p erm is
sible, there could be incorporated tow ns for every
w hite neighborhood in every city. See Burleson v. Jack-
son County Board of Election Comm iss ioners , E.D.
Ark. 1970. 308 F. Supp. 352 <proposed re-estab lishm ent
of a discontinued d istrict); Wright v. Greenvi l le Coun
ty Board, E.D. Va. 1970, 309 F. Supp. 671; United S ta tes
v. Hal ifax County Board of Education, E.D.N.C., M ay
23, 1970, C.A. No. 1128; Turner v. W arren County Board
of Education, E.D.N.C., M ay 23. 1970. C.A. No.
1482-RE. E ven h istorica lly sep arate school d istricts,
w here shown to be created as part of a state-w ide dual
school system or to have cooperated together in the
m ain ten an ce of such a system , have been treated as
one for purposes of desegregation . See Haney v. County
Board of Education of Sev ier County. 8 Cir. 1970. 410
F.2d 920; United S ta te s v. Crocke t t County Board of
Education, W.D Tenn. May 15, 1967, C.A. 1663.
School d istrict lines within a sta te are m atters of
politica l convenience. It is u n n ecessary to decide
12 LEE v. MACON CTY. BD. OF ED.
w hether long-estab lished and racia lly untainted boun
daries m ay be disregarded in d ism antling school se g
regation. N e w boundaries cannot be drawn w here they
would resu lt in le ss desegregation when form erly the
lack of a boundary w as instrum ental in prom oting se g
regation. Cf. Henry v. Clarksdale Municipal S epara te
School District , 5 Cir. 1969, 409 F.2d 683, 688, n. 10.
Oxford in the past sent its black students to County
Training. It cannot by draw ing new boundaries d is
sociate itse lf from that school or the county system .
The Oxford schools, under the court-adopted plan, sup
ported by the city, would serve an area beyond the
city lim it of Oxford. Thus, the schools of Oxford would
continue to be an integral part of the county school
system . The students and schools of Oxford, th ere
fore, m ust be considered for the purpose of this case
as a part of the Calhoun County school system .
III.
The second question is w hether the plan approved
by the d istrict court is su fficient to sa tisfy the school
board’s a ffirm ative duty to d isestab lish the dual sy s
tem . A geographical zoning plan for student a ssign
m ents will som etim es sa tisfy this duty, depending on
its practica l e ffects and the feasib le a lternatives. But
it w ill not sa tisfy the board’s duty to d ism antle the
dual system when it does not work. Henry v. C larks
dale Municipal Separa te School District . To be sa t is
factory, a zoning plan m ust e ffective ly ach ieve d eseg
regation. When historic residential segregation crea tes
housing patterns that m ilitate aga in st desegregation
12g
based on zoning, a lternative m ethods m ust be e x
plored, including pairing of schools. See Green v. Coun
ty School Board, 1968, 391 U.S. 430, 442, n. 6. Swann
v. Charlo t t e-Meck lenburg Board of Educa t ion , 1971,
U.S. , 91 S.Ct. 1267. 28 L.Ed.2d 554.
An analysis of the plan adopted by the d istrict court
show s that it does not sa tisfy the board’s obligation
to d esegregate W hile the plan does put som e black
students in form erly all white schools, it lea v es over
45 percent of the d istrict’s N egro students in a ll-b lack
or virtually all-black schools. This continued seg reg a
tion resu lts from exten sive residential segregation and
boundary draw ing to retain “the com fortable security
of the old, estab lished d iscrim inatory pattern.” Mon
roe v. Board of C om m issioners of Jackson , 1968, 391
U.S. 20. For instance, the zone boundaries adopt the
dividing line betw een Oxford and Hobson, a boundary
tainted bv racial gerrym andering.
LEE v. MACON CTY. BD. OF ED. 13
The appellees contend with resp ect to County Train
ing that Hobson takes pride in its school and w ants
it to continue as it has been. Although this seem s a
m isinterpretation of the testim ony of M ayor Striplin
of Hobson," even if it w ere accurate it would not sup-
i 'Mayor Striplin seemed from the record to be saying only that If
the schoo's were not to be paired the black community would
prefer to have the facility used by 12 grades than have It
partially abandoned. But there was other language that would
support an interpretation that the community desired to have
?rade all-black school. In a letter dated January 7
1970, addressed to the Director of the Health, Education and
Welfare Department, Mayor Striplin wrote, in part:
“it would bring hardship to this 1,500 populated com
munity to be without a school We are not trying to
139
14 LEE v. MACON CTY. BD. OF ED.
port a defective plan. The d istrict court should require
the School Board forthwith to constitute and im plem ent
a student assign m en t plan that com plies with the prin
cip les estab lished in Swann v. Charlo t te-Mecklenburg
Board of Education.
IV.
The county board’s original plan proposed to close
the form erly black schools and disperse the students
am ong form erly white schools. Although this plan
would bring about student body desegregation , p lain
tiffs objected that the plan w as unconstitutional be
cause the closing of the two schools w as racia lly m o
tivated and placed an unequal burden on N egro stu
dents.
Closing schools for racial reasons would be unconsti
tutional. The equal protection clause of the fourteenth
am endm ent prevents any invidious d iscrim ination on
the basis of race. Yick Wo v. Hopkins , 1886, 118 U.S.
356. A governm ental unit bears a “very heavy burden
of justification” to support any use of racia l d istinc
tions. Loving v. V irg in ia , 1967, 388 U.S. 1. 9. Under
general equal protection doctrine, therefore, it would
be im p erm issib le for the school board to close form erly
black schools for racial reasons. More particularly,
such action is prohibited by the school desegregation
buck the guide lines, we are only asking you to spare
our school in some way. if We have Whites living all
around us. Some in walking distance, some on the bus
lines, can they be brought in? They are welcome. . . .”
14g
LEE v. MACON CTY. BD. OF ED. 15
cases. Brown 11, su pra , ca lling for “a racia lly non-
discrim inatory school sy ste m ,” and its progeny re
quire not only that past d iscrim inatory p ractices be
overcom e by affirm ative actions but also that new
form s of d iscrim ination not be set up in their place.
C losing form erly black school facilities for racia l rea
sons would be such a prohibited form of d iscrim ina
tion. “Such a plan p laces the burden of desegregation
upon one racial group.”'-* Brice v. Landis. N.D. Cal.
1969, 314 F. Sunn. 947. See Quarles v. Oxford Municipal
Separa te School District . N.D. M iss. Januarv 7 1970
C.A. W.C. 6962-K.
We are frankly told in the County Board’s brief that
without this action it is apprehended that w hite stu
dents will flee the school sy stem altogether. “But it
should go without say ing that the v ita lity of these con
stitutional principles canot be allow ed to yield sim ply
b ecause of d isagreem ent with them .” Brown II. at 300.
See Monroe v. Board of C om m iss ion ers of Jackson
at 459.
n Brice v Landis. N.D. Cal.. August 8, 1969, No. 51805 the court
discussed the discriminatory closing of formerly black schools-
“The minority children are placed in the position of
what may be described as second-class pupils. White
pupils, realizing that they are permitted to attend
their own neighborhood schools as usual, may come to
regard themselves as ‘natives’ and to resent the negro
children bussed into the white schools every school
day as intruding ‘foreigners.’ It is in this respect that
such a plan, when not reasonably required under the
circumstances, becomes substantially discriminating
m itself. This undesirable result will not be nearly
so likely if the white children themselves realize that
some of their number are also required to play the
same role at negro neighborhood schools.”
15g
16 LEE v. MACON CTY. BD. OF ED.
In Gordon v. Jefferson Davis Parish School Board,
5 Cir. July , 1971, F.2d [No. 30,075], this
Court, relying on Quarles, Brice, and Haney v. County
Board of Education of Sev ier County, 8 Cir. 1970, 429
F.2d 364. recently rem anded the ca se to the d istrict
court with d irections that the court “prom ptly conduct
hearings, and thereon m akes findings and conclusions
as to w hether or not the closing [of two schools] w as
in fact racia lly m otivated ”. Here, how ever, it is c lear
from the record and briefs that the prim arv reason
for closing the schools w as the county board’s conclu
sion that the use of the black facilities would lead
w hites to w ithdraw from the public system . And there
is little ev idence of any leg itim ate reasons for the c lo s
ings. Although arguing below that the black fac ilitie s
w ere inferior, appellees asserted on appeal that the
fa c ilities of County Training “are exce llen t.” A lso, the
district court found County Training to have an “e x
cellen t p h ysica l p lant” in assign ing tw elve grades of
black students there Thus the action is not supported
by the inferiority of the physical facilities. M oreover,
the county’s plan would have required an extended
day at Oxford High b ecause of the crow ding caused
by closing County Training. On the record before us,
the county’s original proposal is unacceptable.
V.
In contrast to the d efects of the plan adopted by the
court and the county’s original plan to close County
Training and Thankful Schools, the school sy stem
seem s suitable for pairing severa l schools to ach ieve
desegregation . County Training and the Oxford E le
1 6 g
LEE v. MACON CTY. BD. OF ED. 17
m entary and High School com p lex are only 1.6 m iles
apart by road. Thankful and M echanicsv ille are only
one m ile apart. T hese figures com pare favorab ly w ith
distances betw een elem en tary schools this court has
ordered paired in the past. See, e.g., B rad ley v. Public
Instruction of Pinellas County, 5 Cir. July 28, 1970 (e le
m entary schools one and two m iles apart paired).
In addition, a great num ber of the students attend-
ing these schools in the past have been transported
to school by the county school bus system . In its orig
inal proposal the county planned to provide the n eces
sary transportation for the black students to be d is
persed to the form erly white schools, dem onstrating
the ability of the county to use its transportation sys
tem to accom plish desegregation . The bussing n e ces
sary to handle the pairing m ight involve a m oderate
increase over that provided by the County in the past.
W here transportation facilities exist, a requirem ent of
a m oderate in crease in transportation is a proper tool
in the elim ination of the dual system . Tillman, Jr. v.
Volusia County, 5 Cir. July 21, 1970. F.2d [No.
. July 21. 19701.
The appellees overstate the ca se as to the a lleged
difficulties in pairing. The first assertion is that p h ysi
cal barriers ex ist betw een County Training and the
Oxford School com plex, i.e. railroad tracks and h igh
w ays. But a v iew of the m aps of Oxford and Hobson
show that these barriers not only separate the two
schools but also separate a large num ber of w hite stu
dents from the Oxford school com plex. The resu lt is
that som e white students live on the County Training
17g
side of the tracks and h ighw ays, and therefore crossed
these to attend the Oxford schools. B arriers that in
the past have yie lded to segregation should not now
prevent pairing to ach ieve integration. Also, the dif
ficu lty of physica l barriers is d ecreased by the a v a il
ability of transportation.
18 LEE v. MACON CTY. BD. OF ED.
The appellees a lso assert that the road that school
busses m ust use in traveling to County Training is un
safe for such buses. C onsidering that this road h as
been used by school busses going to County Training
in the past in order to m aintain segregation , such dif
ficu lties cannot now be found insurm ountable.
The City of Oxford argues that pairing cannot pro
ceed on the assum ption that pupils will be transported.
In the past it has been the practice of the county school
system not to transport children liv ing within a sep
arate m unicipal school d istrict to schools run by the
m unicipality. But application of the rule to the s itu a
tion involved here is predicated on the idea that Oxford
has becom e a separate school district. Since we have
concluded that lor purposes of this ca se the Oxford
schools should net be considered a separate entity, the
county m ust continue to treat Oxford as an in tegral
part of the county system for purposes of providing
school bus transportation. Last school year the county
did provide transportation to Oxford E lem entary and
High Schools for som e students liv ing within the Oxford
city lim its. The county board m ust now reconstitute
its transportation system to provide transportation
n ecessary for the pairing ordered by this decision.
Singleton v. Jackson Municipal Separa te School Dis
18g
LEE v. MACON CTY. BD. OF ED. 19
tr ict , 5 Cir. 1969, 419 F.2d 1211, 1217, n. 1 (en banc),
r e v ’d other grounds, sub nom. Car ter v. W es t Fe liciana
Par ish School Board, 1970, 396 U.S. 290, 90 S.Ct. 24
L.Ed.2d 477.
The ap p ellees also argue that none of the pairing
proposals su ggested by the plaintiffs are p racticab le
because the cap acity of County Training is too sm all
to accom m odate the num ber of pupils that would be
assigned to it under them . We note that until the ques
tion of pairing arose the officia l records of the county
system show ed County Training’s cap acity to be 1020,
as opposed to the 750 now said to be its capacity . E ven
if the cap acity is 750, pairing is feasib le . See the pro
posal by the United States, note 6 supra.
We do not prescribe the grade structure to be used
in pairing these two sets of schools. The county system
(including the Oxford City board), after consulting
with the plaintiffs and the p laintiff-intervenors. should
assign grades to these schools for the 1970-71 school
year, using each school to the sam e fraction of its ca
pacity as far as 'practical.
The judgm ent of the d istrict court as it rela tes to
student assign m en t is vacated and the cause is
rem anded w ith directions that the d istrict court re
quire the School Board forwith to institute and im p le
m ent a student assignm ent plan that com plies with
the principles estab lished in Sicanv v. Charlot te-Meck-
lenburg Board c j Education and reflects any changes
in conditions relating to school d esegregation in Cal
houn County since the Court’s decree of June 12, 1970.
19 g
20 LEE v. MACON CTY. BD. OF ED.
The district court shall require the School Board to
file sem i-annual reports during the school year s im i
lar to those required in United S ta te s v. Hinds County
School Board, 5 Cir. 1970, 433 F.2d 611, 618-19.»
VACATED AND R EM A ND ED WITH DIRECTIONS.
The Clerk is directed to issue the m andate forthwith.
COLEMAN, Circuit Judge, concurring in part and
dissenting in part.
I regret that I cannot fully agree with the m ajority
opinion in this case. Of course, I agree that all reason
able m eans m ust be exercised to d ism antle dual school
sy stem s and to estab lish unitary ones. My d isagree
m ents, now and in the past, have been founded upon
m y opposition to unrealistic plans, doom ed to failure
from the beginning, w hereas a d iscretionary approach
by the D istrict Judge would m ore likely have been
crow ned with better results, rather than destroying
public schools, so badly needed by white and black
alike.
A dm ittedly the problem in Calhoun County, A la
bam a, is not acute. There appears to be no real ob
stac le to the speedy accom plishm ent of a unitary
school system in this area.
isThis decision is based on a state record, in part because this Court
(en banc) determined to withhold all decisions in school
desegregation cases pending the Supreme Court’s issuance at
its judgment in Swann v. Charlotte-Mecklenburg.
20g
LEE v. MACON CTY. BD. OF ED. 21
I agree that school sy stem s in the process of deseg
regat ion m ay not escap e their obligations by changing
their operational status, as Oxford has attem pted to
do.
From such know ledge of history as I have I am not
convinced, that the incorporation of Hobson City in
1899, when P le s sy v. Ferguson w as on the books, had
any racial connotations, unless it m ay have been that
the black citizens desired a m unicipality of their own,
as, for instance, Mound Bayou, M ississippi.
For the reasons stated in m y d issenting opinion in
Marcus Gordon v. Jefferson Davis School Board fNo.
30,075, slip opinion dated ___________________ 1971]
------ ^ \2 d --------, I d isagree with Part IV of the m ajority
opinion. As I said there, race is, of n ecessity , at the
bottom of all school desegregation orders; otherw ise
there would be no Fourteenth A m endm ent jurisdiction.
I shall not repeat here that w hich I have already put
of record in Gordon. I sim ply adhere to the point.
I shall only add a reference to what the Suprem e
Court said in Swann v. Charlo t te-Mecklenburg Board
of Education:
Just as the race of the students m ust be
considered in determ ining w hether a violation
has occurred, so also m ust race be considered
in form ulating a rem edy”. [39 U.S.L.W. at
2 !g