Clark v. Little Rock Board of Education Brief for Plaintiffs-Appellants
Public Court Documents
January 1, 1971

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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. -33- 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). -37- 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. -38- 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 -39- 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 lOd tV N l>. MAY 26 1971 f u. s. dist.; ĉ ax,KIC»IOHD..Î r L ACTION 3353-R / 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 -i, %■ 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' 'l 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 ■3- * it I I V-1 }«i V k i1I r A v r • J£;-- ■ " l , '• t-.i * ;:-S; i y v j .. r;_- . r̂W, ' p* ' • ' . 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 V 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