Clark v. Little Rock Board of Education Brief for Plaintiffs-Appellants

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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 30, 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)

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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)

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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

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MAY 26 1971 f

u. s. dist.; ĉ ax,KIC»IOHD..Î r

L ACTION 
3353-R

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memorandum

This c la s s  a c t io n , brought ten  years ago in  an e f f o r t  to  

end r a c ia l  d iscr im in a tio n  in  the o p era tion  o f  p u b lic  sc h o o ls  in  

Richmond, V ir g in ia , i s  before  the Court on a motion fo r  a tto rn ey s ' 

f e e s .  An appropriate r u lin g  on t.;e pending m otion req u ires  an 

abridged review  o f  ev en ts  s in c e  Marc*, o f  1970.

On March 10, 1970, a m otion fo r  fu rth er  r e l i e f  was f i l e d  In  

th i s  c a se , and a f t e r  e x te n s iv e  h earin gs t h i s  Court ordered in to  e f f e a t  

an in ter im  d eseg reg a tio n  p lan prepared by the School Board fo r  the  

sch oo l year 1970-71 , Bradley v . School Board o f  C ity  o f  Richmond,

317 F. Supp. 555 (E.D. Va. 197 0 ), and la t e r ,  a p lan fo r  1971-72 , I d . .

________ F. Supp. _________  (E.D . Va. A p r il 5 , 1971). Appenaed to  the

motion ._ r fu rth er  r e l i e f  was an a p p lic a t io n  fo r  an award o f  reasonable  

a tto rn ey ..' f e e s ,  to  be paid by th e  C ity  School Board. In j.ight o f  the  

—ien d an ts' conduct b efore  and during l i t i g a t i o n ,  and by reason o f  th e  

unique ch a ra cter  o f  sch oo l d eseg reg a tio n  s u i t s ,  j u s t ic e  req u ires th a t  

es sin -d be awarded.

This ca se  la y  don—ot fror. 1966 u n t i l  th e  m otion o f  March, 

i v .  During th a t p eriod  the c i t y  sch o o ls  were operated  under a fr e e  

.a le e  system  o f  p u p il assignm ent. The p len  was approved ay th e  court

r\J

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION

CAROLYN BRADLEY, e t c . ,  ec  a i  

v .

THE SCHOOL BOARD OF THE CITY OF 
RICHMOND, VIRGINIA, e t  a l

CLE

CIV
NO.

APPENDIX "E"

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11

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o f  a p p ea ls , Bradley v . School Board o f  C ity  o f  Richmond. 315 F . 2d 310 

(4 th  C lr . 196 5 ), but the case  was remanded fo r  fu rth er  h ear in gs on 

fa c u lty  assignm ents by the Supreme C ourt, Bradley v . School Board o f  

the C ity  o f  Richmond, 382 U .S . 103 (1 9 6 5 ). A fter  some fu r th er  d i s ­

t r i c t  court proceed ings the ca se  la y  Id le  u n t i l  1970.

When the s u i t  was rea c tiv a te d  the defendants were d ir e c te d ,  

pursuant to  th is  C ou rt's u su a l p r a c t ic e  In sch oo l d eseg reg a tio n  c a s e s ,  

to  s t a te  on the record whether th ey  contended th a t th e  sch o o ls  were 

then op eratin g  as a u n ita ry  system , and, I f  n o t , what period  o f  tim e 

would be required  to  form ulate a c o n s t itu t io n a l  p la n . In  open c o u r t, 

a lb e i t  r e lu c ta n t ly , th e  defendants adm itted th a t th e  C o n stitu tio n  was 

not being  com plied w ith*; they  were ordered on A p r il 1 , 1970, to  sub­

m it a u n ita ry  p lan  on or b efore  May 11 , 1970. H earings were s e t  fo r
'■■kn

June, and th e  p a r t ie s  were admonished a s to  the n e c e s s ity  o f  Imple­

menting a u n ita ry  p lan  in  th e  f a l l  o f  1970.

The Court w i l l  not r e s ta te  i t s  fin d in g s  o f  fa c t  and co n c lu s io n s  

o f  law which r e su lte d  from the hearin gs o f  the summer o f  1970; th ese  

are adequately  covered in  the reported  d e c is io n . A few p o in ts  r e le ­

vant to  the p resen t motion should be s t r e s s e d .

Although the School Board had s ta te d , as n oted , th a t the free  

ch o ice  system  f a i le d  to  comply w ith  the C o n stitu tio n , producing as I t  

did segregated  s c h o o ls , they  d ec lin ed  to  admit during the June hearings  

th a t t h i s  seg reg a tio n  was a ttr ib u ta b le  to  th e  fo rce  o f  law (tr a n s c r ip t ,  

hearing o f  June 20 , 1970, a t  3 2 2 ). H earings which th e  Court had hoped

1. Of co u rse , i t  s c a r c e ly  excu ses th e  School Board's continued  opera­
t io n  under an in v a lid  p lan  th a t they were under an ou tstan d in g  
court order to  do so . L egal requirem ents change; what i s  c o n s is te n t ,  
m oreover, w ith  a pace o f  d e lib e r a te  speed a t  one tim e should not be 
confused w ith  th e  u lt im a te  g o a l. The sch oo l system  was In v io la t io n  
o f  ou tstan d in g  a u th o r ita t iv e  d e c is io n s , Swann v . C harlotte-M ecklenburg  
Board o f  E ducation . 431 F. 2d 138, 141 (4 th  C lr . 197 0 ), r e v 'd . In p a r t , 
____ U.S. _______ (A p ril 20, 197 1 ). To aw ait the p la i n t i f f s '  I n i t i ­
a t io n  o f  le g a l  a c tio n  may have seemed a w ise s t r a te g ic  c h o ic e , but 
i t  cannot be equated w ith  the fu l f i l lm e n t  o f  the a ff ir m a t iv e  duty  
to  d acegrega te .



r'

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would be con fin ed  to  the e f f e c t iv e n e s s  o f  a p lan  o f  d eseg reg a tio n  

consequently  were expanded; the p l a i n t i f f s  were put to  the tim e and 

expense o f  dem onstrating th a t governmental a c tio n  la y  behind the  

segregated  sch oo l attendance p r e v a ilin g  in  Richmond. P u b lic  and 

p r iv a te  d iscr im in a tio n  were shown to  l i e  behind th e  r e s id e n t ia l  seg re ­

ga tio n  p a ttern s over which the School Board proposed to  draw neighbor­

hood sch oo l zone l i n e s .  Evidence on ch o ice  o f  sch oo l and p u b lic  housing  

s i t e s ,  r e s t r ic t i v e  covenants in  d eed s, d iscr im in a tio n  in  fe d e r a l mort­

gage insurance o p p o r tu n it ie s , housing seg reg a tio n  o rd in a n ces , and 

continued p r a c t ic e  o f  p r iv a te  d iscr im in a tio n  was p resen ted , most o f  i t  

w ithout cross-exam in ation  or se r io u s  attem pt a t  r e fu ta t io n . A l l  o f

t h is  proof was c le a r ly  r e le v a n t , not on ly  under Swann v . C h a r lo tte -
431 F . 2d a t

Mecklenburg Board o f  E ducation , supra, / 141, decided  ju s t  p r io r  to  the  

h ea r in g s , but a ls o  under Brewer v . School Board o f  C ity  o f  N orfo lk .

397 F . 2d 37, 41 (4 th  C ir . 1968).

At the same h earings the School Board p resen tee  -  d eseg reg a tio n  

proposal developed by a team from th e Department o f  H ea lth , E ducation  

and W elfare th a t was ob v io u sly  unacceptab le under law then  c u rren t. I t  

i s  hard to  see  how the Board cou ld  have contended o th erw ise , fo r  i t s  

p roposals ach ieved  very  l i t t l e  d eseg reg a tio n  beyond what p rev a iled  under 

the fr e e  ch o ice  system , which i t  had r ig h t ly  d ec lin ed  to  defen d . These 

h earings were h eld  more than two years a f t e r  Green v .  County School Board 

or New Kent County. 391 U .S . 430 (1968) was handed down. S in ce  th a t tim e 

it has been c le a r  th a t com pliance w ith  th e  C o n stitu tio n  i s  n ot measured 

by the form al r a c ia l  n e u tr a l ity  o f  a p u p il assignm ent p lan  but ra th er  

by i t s  e f f e c t iv e n e s s  in  ex tin g u ish in g  th e  p u b lic  p o lic y  o f  se g r e g a t io n .  

Freedom o f  ch o ice  had l e f t  th ree  o f  seven  h igh  sch o o ls  a l l  b lack  and

■3-



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one n ea r ly  a l l  w h ite . I t  l e f t  f iv e  ju n io r  h igh  sch o o ls  ou t o f  e le v e n  

a l l  b lack  or n ea r ly  so  and two n ea r ly  a l l  w h ite . Of fo r ty -fo u r  elem en­

tary  sch o o ls  tw enty-tw o were s u b s ta n t ia l ly  a l l  b lack  and e ig h t  alm ost 

a l l  w h ite , w ith  se v e r a l o th ers co n ta in in g  a s ig n if i c a n t  but s t i l l  

g r o ss ly  d isp ro p o rtio n a te  Negro en ro llm en t. The School B oard's d eseg - !I
reg a tio n  proposal -  -  the HEW plan  -  -  would have p laced  sm all m in o r it ie s i
o f  the o p p o site  race in  the th ree  form erly b lack  h igh  sch o o ls  and would 

have l e f t  th e  w h ite  h igh  sch oo l unchanged. Three ju n io r  h igh  sch oo ls  

would have remained a s o b v io u s ly  b lack  f a c i l i t i e s  and th ere  would have 

been two c le a r ly  w h ite; and f iv e  alm ost 1007. w h ite  and f i f t e e n  n ea r ly r
a l l  b lack  elem entary s c h o o ls . Many o th er  elem entary sch o o ls  cou ld  not 

s t r i c t l y  have been c a lle d  a l l  b lack  or a l l  w h ite , but departed substan­

t i a l l y  from th e systemwide r a t io  and would be r e a d ily  id e n t i f ia b le t
2

r a c ia l ly . t
Not o n ly  d id  th e  r e s u l t s  o f  the School Board proposal condemn j

i t ,  but a ls o  i t  f a i le d  to  pass le g a l  muster because th ose  who prepared 

i t  were lim ite d  in  th e ir  e f f o r t s  fu rth er  to  d esegrega te  by se lf-im p o sed  

r e s t r ic t io n s  on a v a ila b le  tech n iq u es . C on sid eration  o f  r e s id e n t ia l  

seg reg a tio n  in  drawing zone l in e s  was o m itted , excep t th a t i t  was de­

cided  a t  a la t e  d ate to  p a ir  a few sc h o o ls ;  tra n sp o r ta tio n  was not 

s e r io u s ly  con sidered  as a d eseg reg a tio n  t o o l ,  and in  g e n e r a l, a sto n ­

is h in g ly ,  race was not taken in to  account in  the form ulation  o f  the  

p lan . S in ce  1966 i t  has been p la in  th a t sch oo l boards in  t h i s  c ir c u i t  

may co n sid er  race in  preparing zone p la n s . Wanner v . County School 

Board o f  A rlin g ton  County. 357 F . 2d 452 (4 th  C ir . 1966). To bar t h i s  

aey fa c to r  from d is c u ss io n  would render Im possib le alm ost the f i r s t

B. A f u l l  ta b u la tio n  o f  the r e s u l t s  p ro jected  under the HEW plan  I s  
g iven  in  Bradley v . School Board o f  the C ity  o f  Richmond, supra. 
317 F. Supp. a t  564-65 .

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1

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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.

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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

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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

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