Bradley v. State Board of Education of Virginia Brief for Petitioner

    C a ro s i

TABLE OF CONTENTS

Opinions Below ................................................................

Jurisdiction .....................................................................

Question Presented .........................................................

Statutory and Constitutional Provisions Involved .....

Statement of the Case ...............................-...................

Summary of Argument —...............................................

A r g u m e n t —

I. Section 718 of the Emergency School Aid Act of
1972 Requires the Award of Attorneys’ Fees in 
This Case ............................................... ..................

II. Attorneys’ Fees Must Be Awarded Because This
Litigation Benefited Others ....................................

III. Plaintiffs Are Entitled to Attorneys’ Fees Be­
cause They Maintained This Action as Private 
Attorneys General ...................................................

IV. The District Court Had the Discretion to Award
Attorneys’ Fees Because of the Conduct of the 
Defendant School Board ...................................... .
1. Conduct Prior to the Motion for Further Relief
2. Conduct After the Motion for Further Relief

Conclusion



PAGE
Table of A uthorities

Cases:
Alexander v. Holmes County Board of Education, 390

IJ.S. 19 (1909) ........................................................................ 41
American Steel Foundries v. Tri-City Cent. Trades

Council, 257 IT.S. 184 (1921) ..... .............................. 12-13
Arcambel v. Wisemam, 3 U.S. (3 Dal.) 300 (1790) ......  32

Bowman v. County School Board of Charles City
County, 382 F.2d 320 (4th Cir. 1907) ......................... 37

Bradley v. School Board of Richmond, Virginia, 345
F.2d 310 (1905) .......................................................... 3,41

Bradley v. State Board of Education, No. 72-550 ..........  24
Brewer v. School Board of the City of Norfolk, Vir­

ginia, 450 F.2d 943 (4th Cir. 1972) .......... ..................  35
Brown v. Board of Education, 347 U.S. 483 (1954) ....25,29

Calhoun v. Latimer, 377 U.S. 303 (1904) .....................  41
Callahan v. Wallace, 422 F.2d 59 (5th Cir. 1972) ..........  24
Carpenter v. Wabash Railway Co., 309 U.S. 23 (1940) 12
Central Railroad and Banking Co. v. Pettus, 113 U.S.

110 (1885) ...................................................................  22
Cheff v. Schrackenberg, 384 U.S. 373 (1900) ................  33
Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402(1971) ...................    14
Claridge Apartments Co. v. Commissioner, 323 U.S.

141 (1944) .................................  14
Clark v. Board of Education of Little Rock School Dist.,

449 F.2d 493 (8th Cir. 1971); 309 F. 2d 601 (8th Cir.
1900) ............................................................................. 36

Cooper v. Aaron, 358 U.S. 1 (1952) ............................. 40
Cooper v. Allen, 407 F.2d 830 (5th Cir. 1972) ................ 28
Cox v. Hart, 200 U.S. 427 (1922) ......................  ...... 13-14



Ill

PAGE

Flast v. Cohen, 392 U.S. 83 (1968) ................................  30
Fleischmann Distilling Corp. v. Maier Brewing Co.,

386 U.S. 71+ (1967) ........................................... 22,26,3+
Ford v. White, (S.D. Miss., Civil Action No. 1230(N)....2+, 28

Goldstein v. California,+1 IJ.S.L.W.+829 (1973) ..........  13
Goss v. Board of Education, 373 U.S. 683 (1963) ......  +1
Green v. County School Board of New Kent County,

391 U.S. 430 ............................................. +, 7, 37, +0-41-+2
Greene v. United States, 376 U.S. 1+9 (1963) .............. 14
Griffin v. School Board, 377 U.S. 218 (196+) ................ 41

Hall v. Cole, 36 L. Ed. 2d 702 ................... 6, 23, 26, 28-29-30
Hammond v. Housing Authority, 328 F. Supp. 586 (D.

Ore. 1971) .....................................................................  2+
Horton v. Lawrence County Board of Education, 4+9 

F.2d 393 (5th Cir. 1971) .............................................  35

Jackson v. Denno, 378 U.S. 368 (196+) ......................... 20
Jinks v. Mays, 350 F. Supp. 1037 (N.D. Ga. 1972) .....24,28
Johnson v. United States, 163 F.2d 30 (1st Cir. 1908) .... 13

Kelly v. Guinn, +56 F.2d 100 (9th Cir. 1972) ..............
Knight v. Aueiello, 453 F.2d S52 (1st Cir. 1972) ..........

La Baza Unida v. Volpe, 57 F.R.D. 9+ (N.D. Cal. 1972) 
Lee v. Southern Home Sites, 4+4 F.2d 1+3 (5th Cir.

1971) ..................................................................... 27,28,
Linkletter v. Walker, 381 U.S. 618 (1965) .....................

36
28

28

20

McDaniel v. Barresi,+02 U.S. 39 (1971) ..................... 41,42
McEnteggart v. Cataldo, 451 F.2d 1109 (1st Cir. 1971) 35
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) ....21-22,

24, 29



IV

PAGE

Monroe v. Board of Commissioners of City of Jackson,
453 F.2d 259 (6th Cir.) ......................... ' ..................... 35

Monroe v. Pape, 365 U.S. 167 (1961) ............................. 32

NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala. 1972) ....27-28
NAACP v. Button, 371 U.S. 415 (1963) .........................  33
Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968) ................................................................. 7,9,28,34
Newman v. State of Alabama, 349 F. Supp. 278 (M.D.

Ala. 1972) ................................................................... 24, 28
Newton v. Consolidated Gas Co., 265 U.S. 78 (1924) .... 35 
Northcross v. Board of Education of Memphis City 

Schools, 41 U.S.L.W. 3635 (1973) ..................... 5,9, 28-29

Reynolds v. United States, 292 U.S. 433 (1934) ..........  13
Ross v. Goshi, 35 F. Supp. 949 (D. Hawaii 1972) ...... 27, 28

Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) ..........  33
School Board of the City of Richmond, Virginia v.

State Board of Education, No. 72-549 ......................... 24
Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972) ....24, 27-28
Sincoek v. Ohara, 320 F. Supp. 1098 (D. Del. 1970) ......  24
Sprague v. Ticonic National Bank, 307 U.S. 161

(1939) ......................................................................... 21-22
Swann v. Charlotte-Mecklenburg Board of Education,

431 F.2d 138 (1970) .....................................8,41,42,48

Thompson v. School Board of the City of Newport
News, 472 F.2d 177 (1972) ........................................S, 18

Thorpe v. Housing Authority of Durham, 393 U.S. 268
0969) ..................................................................... 5,12,14

Trafficante v. Metropolitan Life Insurance Co., 409 U.S.
205 (1972) ...................................................................  25

Trustees v. Greenough, 105 U.S. 527 (1883) ...................22,24



V

PAGE

Union Pacific Railroad Co. v. Laramie Stock Yards, 231
U.S. 190 (1913) ............................................................  13

United States v. Alabama, 362 U.S. 602 (1960) ............  12
United States v. Schooner Peggy, 5 U.S. (1 Crancli)

103 (1801) ................................  11,13

Vanderbark v. Owens-Illinois Glass Company, 311 U.S.
538 (1941) ...................................................    12

Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972) .... 28

Yablonski v. United Mine Workers of America, 466 
F.2d 424 (D.C. Cir. 1972) ...........................................  24

Ziffrin v. United States, 318 U.S. 73 (1943) .................. 12

Statutes:

15 U.S.C. §78(a) ............................................................  23
15 U.S.C. §1116 .............................................................. 27
15 U.S.C. §1117 97

18 U.S.C. 
28 U.S.C. 
28 U.S.C. 
28 U.S.C. 
42 U.S.C. 
42 U.S.C. 
42 U.S.C. 
42 U.S.C. 
42 U.S.C.

§245 (b) (2) (A)
§1254(1) ......
§1331 ............
§1343 ............
§1983 .............
2000a .............
§2000c-6 .........
§2000c-8 ........
§2000d-l .........

............. 29

....... .....  1
O............  o

.......... -3,31
2, 3, 6,21,31

..............  20

............  29

........... 27-28

............  30



VI

PAGE

42 U.S.C. 2000e-5 .........................................................  20
42 U.S.C. 3612(c) ..........................................................  20
Elementary and Secondary Education Act of 1966 ......  30
Emergency School Aid Act of 1972 ..................2, 8,16, 30

Jury Selection Act of 1968 ...........................................  11
Labor-Management Reporting and Disclosure A c t......  31
Securities Exchange Act of 1934 ................................23,31

Other Authorities:
Sen. Rep. No. 92-61, 92nd Cong., 1st Sess.................... 16-17
Conference Rep. No. 79S, 92nd Cong., 2nd Sess. (1972) 16
Hearings Before the Subcommittee on Education of the 

Senate Labor and Public Welfare Committee, 92nd 
Cong., 1st Sess. 99 (1971) ........................................ 17,19

S.683, 92nd Cong., 1st Sess............................................  16
114 Cong. Rec................................................................... 17
117 Cong. Rec...................................................15-16-17-18-19

Moore’s Federal Practice .......................    10
Coleman, et ah, Equality of Educational Opportunity 

(1966) ........................................................................... 25
Stone, “The Common Law in the United States”, 50 

Harv. L. Rev. (1936) ................................................... 33
IJ.S. Civil Rights Commission, Racial Isolation in the 

Public Schools (1967) ...............................................  25



I n t h e

§>upnmtr (Enurt nf tlip I hUpii
October Term, 1973 

No. 72-1322

Carolyn B radley, et al.,

vs.
Petitioners,

T he S chool B oard of the City of R ichmond, et at.

BRIEF FOR PETITIONER

O pinions Below

The opinion of the Court of Appeals is reported at 472 
F.2d 318 and is set out in the Appendix (160a-193a). The 
opinion of the District Court is reported at 53 F.R.D. 28, 
and is set out in the Appendix (113a-145a).

Other opinions of the District Court, not dealing with 
the question of attorneys fees, are reported at 317 F. Supp. 
555, 325 F. Supp. 828, and 338 F. Supp. 67.

Jurisdiction

The judgment of the Court of Appeals for the Fourth 
Circuit was entered on November 29, 1972. On February 
21, 1973, Mr. Chief Justice Burger ordered that the time 
for fding a Petition for Writ of Certiorari in this case be 
extended to March 29, 1971. The Petition was tiled on 
March 29, 1971 and was granted on June 11, 1973. This 
Court’s jurisdiction is invoked under 28 U.S.C. §1254(1).



Q uestion Presented

Did the District Court have the discretion to award 
attorneys’ fees to successful plaintiffs in this school de­
segregation action?

Statutory and Constitutional Provisions Involved

Section 1 of the Fourteenth Amendment to the United 
States Constitution provides:

All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the States wherein they re­
side. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United States; nor shall any State deprive any 
person of life, liberty, or property, without due process 
of law; nor deny to any person within its jurisdiction 
the equal protection of the laws.

Section 1983, 42 United States Code, provides:
Every person who, under color of any statute, ordi­

nance, regulation, custom, or usage, of any State or 
Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper proceed­
ing for redress.

Section 718 of the Emergency School Aid Act of 1972, 
86 Stat. 235, provides:

Upon the entry of a final order by a court of the 
United States against a local educational agency, a



3

State (or any agency thereof) or the United States 
(or any agency thereof), for failure to comply with 
any provision of this title or for discrimination on the 
basis of race, color, or national origin in violation of 
title VI of the Civil Rights Act of 1964, or the four­
teenth amendment to the Constitution of the United 
States as they pertain to elementary and secondary 
Education, the court, in its discretion, upon a finding 
that the proceedings were necessary to bring about 
compliance, may allow the prevailing party, other than 
the United States, a reasonable attorney’s fee as part 
of the costs.

Statement o f  the Case

This case was commenced in 1961 to desegregate the 
public schools of Richmond. Jurisdiction was claimed, 
inter alia, under 28 U.S.C. §1343 to enforce 42 U.S.C. §1983, 
and under 28 U.S.C. §1331 to enforce the Fourteenth 
Amendment, the amount in controversy exceeding $10,000. 
Jurisdiction was conceded by the defendant school board.

In March, 1964, after extended litigation, the District 
Court approved a “freedom of choice” plan proposed by 
the defendant school board. Plaintiffs appealed to the 
Fourth Circuit Court of Appeals, which affirmed the lower 
court’s finding that freedom of choice satisfied the school 
board’s constitutional obligations. Bradley v. School Board 
of Richmond, Virginia, 345 F.2d 310 (1965). Plaintiffs 
then petitioned this Court for a Writ of Certiorari to con­
sider the constitutionality of the freedom of choice plan. 
On November 15, 1965, this Court declined to review the 
Fourth Circuit’s decision regarding freedom of choice, but 
did grant plaintiffs certain additional relief regarding dis­
crimination in the assignment of teaching personnel. 382 
U.S. 103.



4

Plaintiffs also sought attorneys’ fees for this phase of 
the litigation. The District Court refused to award legal 
fees except for one $75.00 allowance, and the Fourth Cir­
cuit aflirmed the denial. 345 F.2d at 321. For the litigation 
prior to this decision of the Fourth Circuit the school board 
had paid their outside counsel $6,580.00 (103a).

On March 30, 1966 the District Court approved a freedom 
of choice plan submitted by the parties. The plan expressly 
stated that freedom of choice would have to be modified if 
it did not produce significant results (20a-24a).

On May 27, 1968, this Court ruled that freedom of choice 
plans were not constitutionally permissible unless they 
actually brought about a unitary school system. Green v. 
County School Board of New Kent County, 391 U.S. 430.

On March 10, 1970, plaintiffs moved in the District Court 
for additional relief under Green. The defendant school 
board conceded that the freedom of choice plan under which 
it had been operating was unconstitutional. After consider­
ing a series of alternative and interim plans, the District 
Court on April 5, 1971, approved a plan for the integration 
of the Richmond schools involving pupil reassignments 
and transportation only within the city of Richmond. 325 
F. Supp. 828. The defendant school board took no appeal 
from that decision.1

On August 17, 1970, the District Court directed the 
parties to attempt to reach agreement on the matter of 
attorneys’ fees. When the parties were unable to reach 
such an agreement, memoranda and evidentiary material 
were submitted to the court. On May 26, 1971, the District 
Court awarded plaintiffs attorneys’ fees of $43,355.00 as

1 The defendant City Council of Richmond filed a notice of 
appeal from that decision on April 29, 1971, but on the motion of 
the City Council that appeal was dismissed on May 13, 1971.



5

well as costs and expenses of $13,064.65. On appeal the 
Fourth Circuit, Judge Winter dissenting, reversed the 
award of attorneys’ fees.2

Summary o f  Argument

I. Section 718 of the Emergency School Aid Act of 1972 
authorizes the award of counsel fees to a successful plain­
tiff in a school desegregation case. Such fees must be 
directed in the absence of special circumstances rendering 
such an award unjust. North-cross v. Board of Education 
of Memphis City Schools, 41 TT.S.L.W. 3635 (1973). No 
such special circumstances are present in this case.

Section 718 should he applied to all cases pending on 
appeal as of the date it became effective, July 1, 1972. The 
general rule followed by this Court is that changes in the 
laAV are applied to all cases pending on appeal when the 
change occurs. Thorpe v. Housing Authority of Durham, 
393 TT.S. 268 (1969). The only exception to that rule is 
where the application of the new statute to events occurring 
before its enactment will result in manifest injustice. The 
award of counsel fees under section 718 in this case would 
in no way be unfair to the defendant school board. On 
the contrary, such an application of section 718 would 
carry out Congress’s desire that school boards which vio­
late the law pay the attorneys’ fees of private citizens forced 
to sue to obtain their rights.

TI. This Court has expressly sanctioned the award of 
attorneys’ fees where a successful litigant wins relief which 
benefits others and where the award will serve to pass the

2 Although the school board’s notice of appeal mentions the 
awards of both attorneys’ fees and costs, only the matter of attor­
neys’ fees was briefed, and the Fourth Circuit’s decision does not 
deal with the costs.



6

cost of that litigation on to the other beneficiaries. Unit 
v. Cole, 36 L. Ed. 2d 702. Such an award of counsel foes 
is made, not to penalize the defendant, but to assure that 
those who desire benefits from the litigation are not un­
justly enriched thereby.

The instant plaintiffs, by desegregating the schools of 
Richmond to the extent possible within the city, conferred 
a substantial benefit on all the students affected. Since 
the funds of the defendant school board are held for the 
rise and benefit of those same students, an award of counsel 
fees against the school board serves to pass the cost of this 
litigation on to those other beneficiaries.

III. Plaintiffs maintained this action, not merely on 
their own behalf, but to vindicate important statutory and 
constitutional policies. The school integration achieved by 
the instant case benefits, not merely the students immedi­
ately affected, but the public at large. Such litigation also 
benefits the defendant school board, whose first interest 
and obligation is to comply with the Constitution. Where 
private litigants enforce important statutory or constitu­
tional provisions and thus benefit the public, they are 
entitled to legal fees under the rationale of Hall v. Cole, 
just as they would be for a benefit conferred upon a smaller 
ascertainable group.

Courts of equity traditionally fashion new remedies to 
solve problems not adequately dealt with at law. The pro­
liferation of important national policies enforceable only 
through private civil litigation is such a problem, for the 
cost of such litigation generally exceeds the benefit to any 
individual plaintiff. The award of counsel fees to make 
possible such litigation by private attorneys general car­
ries out equity’s policy of seeking to do complete justice 
in any case, and accords with provisions of 42 U.S.C. §1983,



7

broadly authorizing actions to “redress” deprivation of 
constitutional rights. Compare, Newman v. Piggie Parle 
Enterprises, 390 U.S. 400 (1968).

IV. Plaintiffs are entitled to counsel fees because of 
the defendant school board’s conduct.

1. Prior to this latest round of litigation, the District 
Court in 1966 directed the establishment of a plan involv­
ing freedom of choice. In 1968 this Court declared such 
plans illegal where, as here, they did not in fact result in 
desegregation. Green v. County School Board of New Kent 
County, Virginia, 391 U.S. 430. Despite the illegality of 
Richmond’s freedom of choice plan, and although the defen­
dant school board must have been aware of Green, the 
board obstinately persisted in operating that unlawful plan 
for two years until brought back into court by plaintiffs. 
The District Court correctly found there was no justifica­
tion for the board’s decision to continue operating a system 
which they conceded was unconstitutional, and thus forc­
ing plaintiffs to resort to private civil litigation. Under 
those circumstances the award of counsel fees was well 
within the District Court’s discretion.

2. The award is also justified by the conduct of the 
board in proposing to the court two manifestly inadequate 
plans of desegregation in the spring and summer of 1970. 
The legal services for which fees were awarded to plain­
tiffs were rendered in opposing these two plans. The first 
plan, proposed in May 1970, would have left two-thirds 
of Richmond’s schools overwhelmingly white or overwhelm­
ingly black. The second plan, of July 1970, would have left 
a substantial number of overwhelmingly white or black 
high schools and middle schools, and placed about half the 
black students and half the white students in such segre­
gated elementary schools. Both plans were clearly inade­



quate under the Fourth Circuit’s decision in Swann v. 
Charlotte-Mecklenburg Board of Education, 431 F.2d 138 
(1970). The District Court clearly had the discretion to 
award counsel fees to plaintiffs for legal services rendered 
in opposing these two plans.

ARGUMENT

I.
Section T ill o f  the Em ergency School Aid Act o f  

1 9 7 2  Requires the Award o f Attorneys’ Fees in This 
Case.

While this case was pending before the Court of Appeals, 
Congress enacted the Emergency School Aid Act of 1972.3 
Section 718 of that Act provides:

Upon the entry of a final order by a court of the United 
States against a local educational agency, a State (or 
any agency thereof), or the United States (or any 
agency thereof), for failure to comply with any pro­
vision of this title or for discrimination on the basis 
of race, color, or national origin in violation of title 
V I of the Civil Rights Act of 15)64, or the fourteenth 
amendment to the Constitution of the United States as 
they pertain to elementary and secondary education, 
the court, in its discretion, upon a finding that the 
proceedings were necessary to bring about compliance,

3 This development was brought to the court’s attention, but the 
Fourth Circuit ruled that section 718 was not applicable to the in­
stant. case. In its opinion in the instant case the Court of Appeals 
held that there was no final judgment to which the award of fees 
could be connected (187a-188a). In a companion ease, Thompson 
v. School Board of Newport News, 472 F.2d 177 (1972), the court 
held that section 718 only authorized legal fees for work done after 
the effective date of the statute, July 1, 1972."



may allow the prevailing party, other than the United 
States, a reasonable attorney’s fee as part of the costs.

Section 718 is applicable to the instant case, and requires 
the award of attorneys’ fees.

This Court has already held that, in cases falling under 
Section 718, the successful plaintiff “should ordinarily re­
cover an attorney’s fee unless special circumstances would 
render such an award unjust.” Northcross v. Board of 
Education of the ’Memphis City Schools, 41 U.S.LAV. 
3635 (1973) ; compare Newman v. Piggie Parle Enterprises, 
Inc., 390 II.S. 400 (1968). No such special circumstances 
are present in the instant case. The District Court ex­
pressly inquired whether there were special circumstances 
which might render an award unjust, citing the standard 
in Newman, and found there were not. 140a. The Court of 
Appeals noted that the award of attorneys’ fees under the 
Newman standard were “either mandatory or practically 
so,” 183a, but did not expressly decide whether the Newman 
standard had been met. The only circumstance in this case 
which the Court of Appeals felt militated against legal 
fees was its conclusion that, in view of the alleged uncer­
tainty as to the constitutional requirements, the various 
defenses and plans put forward by the school board, though 
legally insufficient, were not advanced for purposes of 
delay or in bad faith. 177a. Such good faith, however, has 
been expressly held not to fall within the narrow category 
of special circumstances permitting the denial of attorney’s 
fees in these cases. Newman v. Piggie Park Enterprises, 
Inc., 390 U.S. 400, 401 (1968). There is of course no ques­
tion that the instant action was necessary to bring about 
compliance. The school board was in violation of the Dis­
trict Court’s 1966 decree and of the decisions of this Court, 
and made no pretense that it would change its ways other 
than under court order.



10

Section 718 further requires that legal fees may be 
awarded “upon the entry” of a final order against a de­
fendant school board based on a violation of the Fourteenth 
Amendment or certain statutes. The quoted phrase does 
not require, of course, that the award of legal fees be 
simultaneous with the entry of such an order, but makes 
the existence of such a final order a prerequisite to the 
award of attorneys’ fees. Several such orders had been 
entered and became final prior to the award of attorneys’ 
fees in this case on May 20, 1971.4 Where, as here, the 
course of litigation in a district court involves the entry 
of several orders over a period of months or years, neither 
section 718 nor sound judicial administration require that 
the question of legal fees be litigated separately and repe- 
titiously upon the occasion of each such order. A request 
for fees may present difficult questions of fact or require 
the taking of evidence which might interfere with a court’s 
simultaneous efforts to dismantle a dual school system. 
Costs, of which attorneys’ fees are made a part by section 
718, are normally imposed after the final disposition of 
the case. Doubtless a District Court has discretion to 
award costs and attorneys’ fees incident to the disposition 
of interim relief matters, f> Moore’s Federal Practice 
j[54.70[5], and it would be particularly desirable to exercise 
that discretion where, as is common in litigation under 
Brown, the fashioning of effective relief occurs over a 
period of years and delay in awarding fees and costs may 
work hardship on plaintiffs or their counsel. That discre-

4 On June 20, 1970, the District Court ordered a suspension of 
all school construction in Richmond pending the approval of a 
final plan. On August 17, 1970, the District Court ordered into 
operation an interim plan for the 1970-71 school year. On April 5, 
1971, the District Court ordered into operation the plan under 
which the Richmond schools are now operating. Each of these 
orders had become final when the attorneys’ fees were awarded on 
May 20, 1970.



11

tion, however, exists for the protection of the plaintiff and 
his attorney; a defendant cannot be heard to complain if 
it is not so exercised.6

The defendant school board maintains, however, that 
section 718 should not be applied to the instant case because 
the legal services for which fees are sought were rendered 
prior to July 1, 1972, the date on which section 718 became 
effective.6 Plaintiffs contend that section 718 should be 
applied to any case in which the propriety of an award 
of legal fees was still pending resolution on appeal as of 
July 1, 1972, regardless of when the services were per­
formed. This case does not present the question of whether 
section 718 should be applied, retroactively, to cases in 
which the question of legal fees had been presented and 
been resolved by a final order prior to July 1, 1972.

Since United States v. Schooner Peggy, this Court has 
recognized that “if, subsequent to the judgment, and before 
the decision of the appellate court, a law intervenes and 
positively changes the rule which governs, the law must 
be obeyed, or its obligation denied.” 5 U.S. (1 Cranch) 103,

5 Tin* Court of Appeals refused to apply section 718 to the in­
stant case on the ground, inter alia, that on the effective date of 
the Act there was no final order regarding the substantive claim 
of discrimination pending on appeal (187a-188a). This standard, 
in the sense it was used, could never be met, for no order could 
be both final and also pending on appeal. If, as plaintiffs contend, 
section 718 should apply to services performed prior to July 1, 
1972, there is no precedent for requiring that such fees be arbi­
trarily denied because of the date on which an order was entered 
directing the desegregation of a defendant school district.

6 The date on which a law becomes effective is not the same 
thing as the date from which the law shall apply. The former date 
describes the time at which the courts will begin to invoke the 
law in dealing with events or transactions; the latter date delimits 
the class of events or transactions as to which that law may be 
invoked. For an example of a statute specifying both effective 
date and the transactions to which it applied, see section 104 of 
the Jury Selection Act of 1968, Pub.L. 90-274.



12

106 (1801). This Court has applied on appeal intervening 
changes in the law under a wide variety of circumstances. 
In Thorpe v. Housing Authority of Durham, 393 U.S. 268 
(1969), after the plaintiff public housing authority had 
won an eviction order in state courts, the Department of 
Housing and Urban Development altered the procedural 
prerequisites to such evictions. This Court held that the 
defendant could not bo evicted unless the new procedures 
were followed. “The general rule . . .  is that an appellate 
court must apply the law in effect at the time it renders 
its decision.” 393 U.S. at 281. In United States v. Alabama, 
362 U.S. 602 (1960), the district court dismissed an action 
brought by the United States under the 1957 Civil Rights 
Act against the state of Alabama on the ground that the 
State could not be sued under that statute. While the case 
was pending on appeal Congress passed the 1960 Civil 
Rights Act expressly authorizing suits against a state, and 
this Court applied the new statute. “Under familiar prin­
ciples, the case must be decided on the basis of law now 
controlling, and the [new provisions] are applicable to this 
litigation.” 362 U.S. at 604. In Ziff r in v. United States, 
after a company seeking permission to operate as a con­
tract carrier had filed its application with the Interstate 
Commerce Commission, the Interstate Commerce Act was 
amended to bar such operation by an applicant who was 
controlled by a common carrier serving the same territory. 
This Court upheld the application of the new law to the 
pending request. “A change in the law between a nisi prius 
and an appellate decision requires the appellate court to 
apply the changed law. A fortiori, a change of law pending 
an administrative hearing must be followed in relation to 
permission for future acts.” 318 U.S. 73, 78 (1943). See 
also Vanderbark v. Owens-Illinois Glass Company, 311 U.S. 
53S (1941); Carpenter v. Wabash Railway Co., 309 U.S. 23, 
2i (1940), and cases cited; American Steel Foundries v.



Tri-City Cent. Trades Council, 257 U.S. 184, 201 (1921); 
Reynolds v. United States, 292 U.S. 443, 449 (1934).

Except where the statute involved expressly purports 
to be of exclusively prospective application, see e.g. Gold­
stein v. California, 41 U.S.L.W. 4829, 4830 (1973), this 
Court has routinely applied new laws to all cases pending 
on appeal, without reference to legislative history and 
without requiring express statutory language that they be 
so applied. When Congress has concluded that greater 
justice would be done if a new and different legal principle 
were applied to some recurring circumstances, Congress 
must be presumed to have intended that that new standard 
and the more equitable result entailed be applied to all 
cases, including those pending on appeal. Compare John­
son v. United States, 163 F.2d 30, 32 (1st Cir. 1908) 
(Holmes, J.).

A narrowly drawn exception to this practice has been 
sanctioned by this Court where, under the facts of a par­
ticular case, application of a new law to a matter arising 
before its enactment would work an unfair hardship on one 
of the parties. In such a situation this Court has, where 
possible, sought to construe the statute to avoid such an 
inequitable result. The precise category of cases to which 
this exception applies has never been clearly defined. In 
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 
(1801), this Court urged such a rule of construction “in 
mere private cases between individuals.” 5 U.S. at 106. 
In Union Pacific Railroad Co. v. Laramie Stock Yards Co., 
this Court explained the rule applied to statutes which 
might interfere with “antecedent rights,” 231 U.S. 190, 
199 (1913). Cox v. Hart defined a “retroactive” statute as 
one which impaired a vested right or imposed a new obli­
gation on a private interest, and indicated that statutes 
should not readily be construed as “retroactive” in this



sense. 260 U.S. 427, 433 (1922). In Claridge Apartments 
Co. v. Commissioner, 323 11.S. 141 (1944), the Conrt de­
liberately construed a new tax law so as not to retroac­
tively increase the taxes on “closed transactions.” 323 U.S. 
at 164. In Greene v. United States, 376 U.S. 149 (1963), 
this Court refused to apply new and more strenuous ad­
ministrative procedures for obtaining remuneration to a 
claimant who had already obtained a “final” and favorable 
determination under the old procedures. 376 U.S. at 161. 
Most recently, in Thorpe v. Housing Authority of Durham, 
this Court characterized Greene and its predecessors, more 
simply and more cogently, as exceptions “made to prevent 
manifest injustice.” 393 U.S. at 282.7

The application of section 718 to the instant case would 
work no injustice such as that threatened in Greene. Sec­
tion 718 did not alter the defendant school board’s consti­
tutional responsibility to provide an education free of the

7 The difference between the rule reaffirmed in Thorpe and the 
exception applied in Greene is well illustrated by the facts in those 
cases. Both eases involved disputes between a private citizen and 
a government, agency. In Thorpe a city public housing authority 
had sued to evict the defendant tenant; in Greene a private citizen 
who had been discharged when the Department of the Navy re­
voked his security clearance brought an action for lost wages. 
In both, while the litigation was still pending and before Mr. 
Greene bad received reimbursement or Mrs. Thorpe been evicted, 
tin' procedures for reimbursement and eviction, respectively, were 
changed. However, in Thorpe the application of the new rule 
accrued to the benefit of the private citizen, whereas in Greene 
this Court refused to apply the change where the beneficiary would 
have been the government not the individual litigant. In Greene 
the application of the new rule would have interfered with a right 
to reimbursement which had been established and became final, 
,'S7(i U.S. at 161; in Thorpe the Housing Authority had no com­
parable rights to infringe, 303 U.S. at 283. And, while in Thorpe 
the tenant had insisted throughout the litigation that she was 
entitled to procedural protections guaranteed by the new provision, 
in Greene the government had never questioned the procedures 
being followed until seven years after the litigation began, those 
procedures were altered by administrative regulations. Compare 
Citizens lo Preserve Overton Park v. Volpe, 401 U.S. 402, 418- 
410 (1071).



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15

stigma of segregation, and plaintiffs do not seek to apply 
retrospectively any new standard of conduct first estab­
lished in 1972. The school board’s substantive obligations 
are those of the Constitution, as announced by this Court; 
section 718 only elaborates the remedy available to a pri­
vate citizen when local officials have violated the law. As 
Senator Cook remarked during the debate on section 718:

The 14th amendment to the Constitution of the 
United States was there long before we [Congress] 
came to a conclusion that something should be done 
in the field of discrimination in the school system of 
the United States. We are not talking about some­
thing that was born yesterday.8

The school board in the instant case does not claim it would 
have acted any differently between 1966 and 1972 had sec­
tion 718 been in effect at that time. Under such circum­
stances, the application of section 718 to litigation occur­
ring before its effective date can hardly be said to be 
unfair. The only relevant right which existed prior to the 
enactment of section 718 was the right of the instant plain­
tiffs to an education in a unitary school system; applica­
tion of section 718 to this case serves not to impair that 
right but to vindicate it. Plaintiffs’ assertion that they are 
entitled to attorneys’ fees is not a new claim suddenly 
asserted in the light of section 718; such fees were asked 
in the original complaint filed in 1961,3 and have repeatedly 
been sought in the proceedings since that time.

That legal fees should be awarded under section 718 for 
A v o r k  done before its effective date is supported by the

8 117 Cong. Roc. 11528. 
3 See 4a .

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16

legislative history of the Emergency School Aid Act of 
1972.10

Section 718 grew out of a provision contained m a 
bill sponsored by Senator Mondale in 1971. The statute 
proposed by Senator Mondale would have authorized the 
payment of counsel fees out of federal funds specially 
set aside for that purpose, $5 million for the first year 
and $10 million for the second. That proposal, included 
in the committee bill presented to the Senate, expressly 
stated that the award would be “for services rendered, ant 
costs incurred, after the date of the enactment of this 
Act . .”u (Emphasis added) On the floor of the Senate,

Sot:
ot'srrb ist1ZApi't! mi. of «o„,;,oro

t .  Tis t x ,  a r .
sponsored by Senator Cook, section 718 in its present form was 
inserted in the bill. 117 Cong. Rec. 11521-11529 ,11724-26. the 
House amended the bill passed by the Senate RtrlklI'-  e^ ^ thl’̂  
after the enacting clause and inserting a new text- which, inter aha 
deleted any mention of counsel fees. The provnuon for egal fevs 
was restored in conference. Conference Rep. No. 798, 9-uid Cong., 
2nd Scss. (1972). The only debate on the subject of attorneys 
fees occurred in the Senate on April 21 and 22, 197 .

11 Section 11(a) of Senator Mondale’s bill, S.683, 92nd Cong., 
1st Sess., provided in fu ll:

Upon the entry of a final order by a court of the United States 
against a local educational agency a State (or any agency 
thereof), or the Department of Health, Education and Me 
fare for failure to comply with any provision of this Act 
title 1 of the Elementary and Secondary Education Act ot 
19(15 or discrimination on the basis of raee, color or national 
origin in violation of title VI of the Civil Rights Act of 1964, 
or of the fourteenth article of amendment to the Constitution 
of the United States as they pertain to elementary and sec­
ondary education, such court shall award, from funds reserved 
pursuant to section 3(b)(1)(c), reasonable counsel fee, and 
costs not otherwise reimbursed, for services rendered, and



Senator Dominick, with the support of Senator Cook, suc­
cessfully amended the bill to delete this proposed section 
in its entirety.12 The next day, however, Senator Cook 
proposed to substitute new provisions authorizing the 
award of such attorneys’ fees against the defendant.13 
This new provision deleted the language in Senator Mon­
dale’s version which had limited the section to services 
rendered after its enactment. This Court should not read 
back into section 718 the very limitation regarding appli­
cation to services performed prior to enactment which was 
deliberately removed from the statute by Congress.

The application of section 718 to cases pending when it 
was enacted serves to carry out the purposes of that pro­
vision as expressed in the congressional hearings and 
debates leading to its enactment. Senator Mondale, who 
first urged a statutory authorization of legal fees in these 
cases, argued that his proposal and that of Senator Cook 
were needed to encourage more private litigation,14 and to 
equalize the legal resources available to litigants in such 
cases.15 If, however, such fees are oidy awarded for work 
done after July 1, 1972, and after the entry of a final order 
resulting from and subsequent to those services, substantial 
additional funds under this section for the increase of

costs incurred, after the date of enactment of this Act to the 
party obtaining such order.

Similarly, the Committee Report states that the federal funds 
are available “for services rendered, and costs incurred, after the 
date of enactment of the Act.” Sen. Rep. No. 92-61, 92nd Cong., 
1st Sess., pp. 55-56 (1971).

12117 Cong. Rec. 11345.
13117 Cong. Rec. 11520-21.
14 114 Cong. Rec. 10760, 10761, 10762-3, 10764, 11339-40, 11343, 

11344, 11345.
15 Hearings Before the Subcommittee on Education of the Senate 

Labor and Public Welfare Committee, 92nd Cong., 1st Sess. 99 
(1971); 114 Cong. Rec. 10762.



private litigation will not bo available for years.16 It is 
hardly likely that Senator Mondale envisioned or desired 
such a delay when he called for a statutory right to legal 
fees to meet the “urgent need” for vigorous private litiga­
tion to resolve the “major crisis in the enforcement of con­
stitutional protections affecting civil rights in this land.”17

Senator Cook, the draftsman and sole spokesman for 
section 71S as finally enacted, emphasized an additional 
reason for his amendment. Senator Cook opposed Senator 
Mondale’s proposal on the ground that it failed to require 
that the school system which had violated the law pay the 
costs incurred in rectifying that violation. He urged:

[W]e can solve the problem by merely inserting the 
language that the costs and attorneys’ fees will be

16 The practical realities of school litigation are such that the 
goal sought by Senator Mondale will he substantially delayed if 
attorneys’ fees are not awarded for services performed prior to the 
effective date of the statute. The vast majority of school deseg­
regation eases have in the past been, and will continue to he, 
brought by a handful of private attorneys supported in many in­
stances by national organizations concerned with such litigation. 
The costs and salaries of the attorneys must be paid by those 
organizations or sacrificed by those attorneys from the moment a 
case is begun, but such costs and fees are only available under 
section 718 after a final judgment has been entered in the case. 
The delay between the commencement of an action and the entry 
of any final judgment will often be substantial. In the cases de­
cided mb vom. Thompson v. School Board of the City of Newport 
News, 472 F.2d 177 (1972), in which the Fourth Circuit refused to 
apply section 718 to work done before its effective date, the com­
plaints initiating those actions had first been filed in 1961, 1965, 
1969 and 1970. Tf section 718 is limited to work done after .Tidy 1, 
1972, it will be years before that statute yields sufficient legal fees 
to enable private attorneys and their organizational sponsors to 
increase the number of school desegregation cases they are finan­
cially able to handle. On the other hand, if such fees are made 
available now in appropriate pending cases for work done before 
July 1, 1972, the resources will be available at once to make pos­
sible the increase in such litigation sought by Congress.

17 117 Cong. Rec. 10760, 10762. See also 117 Cong. Rec. 11339, 
11342. 11343. 11344.



1.9

charged against the losing litigant. . . . We can even 
charge those expenses and make them a debt against 
the Title I funds, so that we are penalizing the person 
who violates the law; we are penalizing the person 
who decides the 14tli amendment is for someone else 
and not for him. We are then imposing the cost on 
that individual who saw fit to commit an act that the 
court concluded was in violation of the, law, or in viola­
tion of the proper utilization of Title I funds and 
that, as an indirect result thejeof, that person shall 
suffer.18

In the debates on his own amendment, Senator Cook re­
iterated his desire to place the cost of litigation on the 
“guilty party”,19 to assure that a school board violating the 
law will “pay for it”,20 and to provide that those who have 
disobeyed the constitution “should have to make recom­
pense for that mistake.” 21 Senator Cook also referred, as 
had Senator Mondale,22 to the inequity of paying with edu­
cation funds for the lawyers who unsuccessfully opposed 
integration, but not using those funds for attorneys who 
achieved an end to segregation.23

18 117 Cong. Rec. 11343 (Emphasis added). See also 117 Cong. 
Rec. 11341, 11342.

19117 Cong. Ree. 11725.
20 117 Cong. Rec. 11527.
21 117 Cong. Rec. 11528.
22 Hearings Before the Subcommittee on Education of the Senate 

Labor and Public Welfare Committee, 92nd Cong., 1st Sess. 99 
(1971) “Now, most of the money today being spent, publicly 
in school desegregation cases is public money which is being spent 
for lawyers and legal fees to resist the reach of the 14th amend­
ment. So why would it not he fair to set aside a modest, amount to 
pay lawyers who are successful in enforcing the Constitution for 
legal fees and costs.”

23117 Cong. Rec. 11527, 11528.



20

It is reasonable to assume that Congress contemplated 
that the injustices discerned by Senator Cook would be 
righted in cases still pending when section 718 became 
effective. It cannot plausibly be maintained that Senator 
Cook intended that, months or years after the enactment 
of section 71S, school boards which had violated the law 
would be able to avoid recompensing those who corrected 
their mistakes merely because the plaintiffs’ attorneys were 
diligent enough to bring that violation to an end prior to 
July 1,197 2.24 The statute involved here is not one intended 
merely to shape future events by encouraging the initiation 
of litigation under the Fourteenth Amendment, compare 
Linkletter v. Walker, 381 U.S. 618 (1965), but was designed 
to effectuate Congress’ judgment that a serious injustice 
is worked when, in a case such as this, the offending school 
board pays no price for its years of ignoring Brown, while 
the private plaintiff must look to himself and the generosity 
of his counsel or the public to meet the costs of enforcing 
the constitution. Compare Jackson v. Denno, 378 U.S. 368 
(1964). In deciding who shall ultimately bear the cost of 
litigation to end discrimination in the public schools, this

24 Both Senator Mondale and Senator Cook explained that their 
goal was to provide the same right to attorneys’ fees in school 
discrimination cases as exist for discrimination in housing, 4- 
IJ S C 53612(c) in employment, 42 U.S.C. §2000e-5(A), and pub­
lic accommodations, 42 U.S.C. §2000a-e(b). 117 Cong. Rec. 11339 
(Remarks of Senator Mondale), 11521 (Remarks of Senator Cook) 
See Northcross v. Board of Education of the Memphis City Schools, 
41 U.S.L.W. 3635 (1973). In the absence of special circumstances, 
a successful plaintiff in a housing, employment or public accom­
modations case would be entitled to attorneys’ fees for all the legal 
services performed in connection with a case won on April 5, 1. /- 
(the day final relief was awarded here) or July 1, 1972 (the day 
section 718 became effective). Because the substantive rights and 
counsel fee provisions were created by the same statute, sections 
2000a-3(b), 2000e-5(k) and 3612(c), 42 U.S.C., apply to all actions 
described therein, regardless of when commenced. Congress pre­
sumably intended to create a similarly broad right covering all 
work done in all school cases.



21

Court should give full effect to the standards and values 
established by Congress in section 718 in all cases in which 
the question of attorneys’ fees has not been finally resolved 
before July 1, 1972.

II.
Attorneys’ Fees 3Iust Be Awarded Because This 

Litigation Benefited Olliers.

In the absence of an express statutory requirement of 
attorneys’ fees, federal courts in the exercise of their 
equitable powers may award such fees where the interests 
of justice so require. Their authority to do so derives 
from Article I I I26 of the Constitution and, in cases such 
as this, section 1983, 42 U.S.C.20 As Justice Frankfurter 
noted a generation ago, the power to award such fees “is 
part of the original authority of the chancellor to do equity 
in a particular situation.” Sprague v. Ticonic National 
Bank, 307 U.S. 161, 166 (1939). Federal courts do not 
hesitate to exercise this inherent equitable power wherever 
“overriding considerations indicate the need for such a 
recovery.” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 
391-92 (1970).

One well-established case in which such fees are awarded 
is where a plaintiff’s successful litigation confers “a sub­
stantial benefit on the members of an ascertainable class,” 
and where the court’s jurisdiction over the subject matter 
of the suit makes possible an award that will operate to 
spread the costs proportionately among them. Mills v.

25 “Section 2. Jurisdiction. The judicial power shall extend to all 
Cases, in law and Equity, arising under this Constitution, the Laws 
of the United States, and Treaties made . . .” (Emphasis added.)

26 Section 1983 authorizes “an action at law, suit in equity, or 
other proper proceeding for redress.” (Emphasis added.)



22

Electric Auto-Lite, 396 U.S. at 393-94. This rule has its 
origins in the “common-fund” cases, which have tradition­
ally awarded attorneys’ fees to the successful plaintiff when 
his representative action creates or traces a “common- 
fund,” the economic benefit of which is shared by all mem­
bers of the class. See, e.g. Central Railroad and Banking 
Co. v. Pettus, 113 U.S. 116 (1885); Trustees v. Greenough, 
105 U.S. 527 (1883). In Sprague v. Ticonic National Bank, 
the rationale of these cases was extended to authorize an 
award of attorneys’ fees to a successful plaintiff who, al­
though suing on her own behalf rather than as a repre­
sentative of a class, nevertheless established the right of 
others to recover out of specific assets of the same defen­
dant through the operation of stare decisis. In reaching 
this result, the Court explained that the beneficiaries of 
the plaintiff’s litigation could be made to contribute to the 
costs of the suit by an order reimbursing the plaintiff out 
of the defendant’s assets from which the beneficiaries would 
eventually recover. Finally, in Mills v. Electric Auto-Lite 
Co., this Court held that the rationale of these cases must 
logically extend, not only to litigation that confers a mone­
tary benefit on others, but also to litigation “which corrects 
or prevents an abuse which would be prejudiced to the 
rights and interests” of those others. 396 U.S. at 396.27

Fee-shifting is justified in these cases because “[t]o 
allow the others to obtain full benefit from the plaintiff’s 
efforts without contributing equally to the litigation ex­
penses would be to enrich the others unjustly at the plain­
tiff’s expense.” Mills v. Electric Auio-Lite Co., 396 U.S. at 
392; see also Fleisclimann Distilling Corp. v. Maier Brew­
ing Co., 386 U.S. 714, 719 (1967); Trustees v. Greenough, 
105 U.S. 527, 532 (1882). Thus, in Mills this Court ap-

27 Also supporting the award in Mills was the fact that the action 
vindicated important statutory policies. 396 U.S. at 396.



23

proved an award of attorneys’ fees to successful share­
holder plaintiffs in a suit brought to set aside a corporate 
merger accomplished through the use of a misleading proxy 
statement in violation of §14(a) of the Securities Exchange 
Act of 1934, 15 II.S.C. §78(a). In reaching this result, 
this Court reasoned that, since the dissemination of mis­
leading proxy solicitations jeopardized important interests 
of both the corporation and “the stockholders as a group,” 
the successful enforcement of the statutory policy neces­
sarily “rendered a substantial service to the corporation 
and its shareholders.” 396 U.S. at 396. In Ilall v. Cole, 
36 L. Ed. 2d 702 (1973), legal fees were approved for a 
union member who successfully sued for reinstatement in 
his union after he had been expelled for criticizing the 
union’s officers. This Court concluded that the plaintiff, 
by vindicating his own right, had dispelled the “chill” cast 
upon the right of others, and contributed to the preserva­
tion of union democracy. 36 L. Ed. 2d at 709. Both Mills 
and Hall involved a benefit that was not pecuniary in 
nature.28

28 In Mills this Court expressly repudiated any requirement that 
the benefit be pecuniary.

The fact that this suit has not yet produced, and may never 
produce, a monetary recovery from which the fees could be 
paid does not preclude an award based on this rationale. Al­
though the earliest cases recognizing a right to reimbursement 
involved litigation that had produced or preserved a ‘common 
fund’ for the benefit of a group, nothing in these cases indi­
cates that the suit must actually bring money into court as a 
prerequisite to the court’s power to order reimbursement of 
expenses. . . .  [A]n increasing number of lower courts have 
acknowledged that a corporation may receive a ‘substantial 
benefit’ from a derivative suit, regardless of whether the benefit 
is pecuniary in nature. . . .  [I]t. may be impossible to assign 
monetary value to the benefit. Nevertheless . . . petitioners 
have rendered a substantial service to the corporation and its 
shareholders. 396 IT.S. at 392, 395-396. (Emphasis added.)

Following Mills, legal fees have been awarded in cases involving 
such non-pecuniary benefits as guaranteeing free and fair union



24

Sucli legal fees are assessed against the defendant, not 
because of any bad faith, but because the costs will thus 
be passed onto and borne by the benefiting class. In the 
early common-fund cases, the fee was deducted directly 
from a sum of money held for distribution to the bene­
ficiaries. Trustees v. Greenough, 105 U.S. 527 (18S2). In 
Mills v. Electric Auto-Lite Co., the beneficiaries of the ac­
tion were a corporation and its stockholders; by awarding 
attorneys fees against the corporation the Court simul­
taneously assessed one of the beneficiaries and assured that 
the cost would be borne by the stockholders as owners of 
the corporation. 396 U.S. 375, 390. In 1 lull the fees were 
paid out of the treasury of the union involved, the con­
tents of which were held for use by the union on behalf of 
its members, the beneficiaries of the action involved. 36 
L. Ed. 2d at 709.

The instant case is clearly governed by Mills and Hall. 
Plaintiffs, in dismantling the dual school system within 
the city of Richmond benefited many persons other than 
themselves.29 This case is a class action on behalf of all

elections, Yablonsld v. United Mine Workers of America, 466 F.2d 
424 (D.C. Cir. 1972), cert, denied 41 U.S.L.W. 3624 (1973), dis­
crimination in public housing, Hammond v. Housing Authority, 
328 F. Supp. 586 (D. Ore. 1971), and inadequate medical facilities 
for prisoners. Newman v. State of Alabama, 349 F. Supp. 278 
(M.D. Ala. 1972). See also Callahan v. Wallace, 422 F.2d 59 
(5th Cir. 1972) ; Jinks v. Mays, 350 F. Supp. 1037 (N.D. Ga. 
1972) ; Sincock v. Obara, 320 F. Supp. 1098 (D. Del. 1970). Legal 
fees have also been awarded to plaintiffs who simultaneously ef­
fectuated public policies and benefited others where the benefits 
involved such non-pecuniary matters as legislative reapportionment, 
Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972) and ending jury 
discrimination, Ford v. White (S.D. Miss., Civil Action No. 
1230(N), opinion dated August 4, 1972.)

2tl The plaintiffs were able to achieve only such integregation as 
was possible within the city itself. A complete dismantling of the 
dual system involved would have required merger with the sur­
rounding predominantly white counties. See Bradley v. State 
Board of Education, No. 72-550 and School Board of the City of 
Richmond, Virginia v. State Board of Education, No. 72-549.

fiipipO T

fSfe • .-4' A Wi ̂  t ' * * , >.  i, ffE A y. .U •. t1 a , /

—



25

the school children of Virginia and their parents or guard­
ians (4a). The harm suffered by black children when 
compelled to attend segregated schools is well recognized. 
Brown v. Board of Education, 347 U.S. 483, 494 (1954) ;30 
Coleman, et ah, Equality of Educational Opportunity 
(1966); U.S. Civil Rights Commission, Racial Isolation in 
the Public Schools, 106 (1967).31 Nor can the maintenance 
of a dual school system be said to have benefited the white 
students involved.32 Compare Trafficante v. Metropolitan 
Life Insurance Co., 409 U.S. 205 (1972).

30 “Segregation of white and colored children in public schools 
has a detrimental effect upon the colored children. The im­
pact is greater when it has the sanction of the law; for the 
policy of separating the races is usually interpreted as de­
noting the inferiority of the negro group. A sense of in­
feriority affects the motivation of a child to learn. Segregation 
with the sanction of law, therefore, has a tendency to [retard] 
the educational and mental development of Negro children 
and to deprive them of some of the benefits they would receive 
in a racial [ly] integrated school system.”

31 “School personnel in predominantly white schools more often 
feel that their students have the potential and the desire for high 
attainment. The Equality of Education Opportunity survey found 
that white students are more likely to have teachers with high 
morale, who want to remain in their present school, and who regard 
their students as capable.

“The environment of schools with a substantial majority of Ne­
gro students, then, offers serious obstacles to learning. The schools 
are stigmatized as inferior in the community. The students often 
doubt their own worth, and their teachers frequently corroborate 
these doubts. The academic performance of their classmates is 
usually characterized by continuing difficulty. The children often 
have doubts about their chances of succeeding in a predominantly 
white society, and they typically are in school with other students 
who have similar doubts. They are in schools which, by virtue both 
of their racial and social class composition, are isolated from 
models of success in school.”

32 For white children, as for black, a vital part of their educa­
tion consists in learning, through contact with their fellows, about 
the society in which they live and shaping through such contact 
the values which will guide them for years to come. Racial isola­
tion cuts off these students from others with widely divergent views



26

Viewed in this context, there can be no doubt that plain­
tiffs, to the extent that they succeeded in dismantling the 
dual school system in Richmond, rendered a substantial 
service to the pul,lie school students of Richmond. Requir­
ing reimbursement of plaintiffs’ attorneys’ fees out of the 
funds33 of the school board “simply shifts the costs of liti­
gation ‘to the class that has benefited from them and would 
have had to pay them had it brought the suit.’ ” Hall v. 
Cole, 36 L. Ed. 2d at 709.

Although such fee shifting is within the inherent author­
ity of equity, Congress has the power to circumscribe such 
relief. In Fleischmann Distilling Corp. v. Maier Brewing 
Co 386 U S 714 (1967), for example, this Court held that 
the Lanham Act precluded an award of attorneys’ fees in 
a trademark infringement case because the statute “meticu­
lously detailed the remedies available” and Congress must 
have intended these express remedial provisions “to mark 
the boundaries of the power to award monetary relief in

and experiences, and may inculcate fears and prejudices overcome 
only with "reat effort later in life. Students who may pursue busi­
ness careers in the areas where they were educated will be deprived 
of contacts and acquaintances of commercial g p“  $
inconceivable that, among a new generation of Americans tree 
racial bigotry, an education in an all white school P ^ l ^ l ^ 11̂ 
the South, will carry a social stigma inconceivable to earlier gene
tions.

■■ Those funds are held for use on behalf of the public school 
students who benefited from this action. Section 22-97(1-) of the 
Code of Virginia authorizes the use of such funds: to provide lor 
the ta v  of teachers and of the clerk of the board, for the cost of 
providing schoolhouses and the appurtenances thereto a»4 ttm re- 
Lairs thereof for school furniture and appliances, for necessary 
textbooks f0;  children attending the public free schools whose 
parent or guardian is financially unable to furnish them, and for 
any other expenses attending the administration ot the public free 
school system) so far as the same is under the control or at the 
charge of the school officers.”



27

cases arising under the Act,” 386 U.S. at 719, 721.34 Unlike 
the Lanham Act, section 1983 contains no specific authoriza­
tion of detailed remedies; rather, it broadly authorizes the 
courts to grant whatever relief may be appropriate.35 A 
defendant is made liable “in an action at law, suit in equity, 
or other proper proceeding for redress.” Section 1983 
recites, not remedies, but the types of proceedings which 
may be maintained, and the clear intent of Congress was 
not to set any boundary on the type of actions which be 
maintained, but to provide on the contrary that any  appro­
priate proceeding may be commenced. The enactment, some 
93 years after section 1983, of Title IV of the 1964 Civil 
Rights Act in no way limits the expansive grant of author­
ity in section 1983 or circumscribes the inherent equitable 
power left unimpaired by that section. Title IV does not 
confer upon private parties any new legal remedies, and 
expressly provides that nothing therein shall “affect ad­
versely the right of any person to sue for or obtain relief 
in any court against discrimination in public education.” 
42 U.S.C. §2000c-8.36

34 The statute in Flcischmann expressly detailed six specific 
remedies, including award of the plaintiff’s damage, the defendant’s 
profits, the costs of the action, additional damages up to three 
times the amount actually sustained, any amount over and above 
the defendant’s profits if that recovery proved inadequate, 15 
U.S.C. §1117, as well as injunctive relief. 15 U.S.C. §1116.

35 See Boss v. Goshi, 35 F. Supp. 949, 955 n.15 (D. Hawaii 
1972) (“Section 1983, on the other hand, is not a statute provid­
ing detailed remedies, and there is no reason to infer any congres­
sional intent to limit the otherwise broad equitable powers of this 
court.” ) NAACP v. Allen, 340 F. Supp. 703, 709-710, n.9 (M.D. 
Ala. 1972); Sims v. Amos, 340 F. Supp. 691, 695 (M.D. Ala. 
1972). See also Lee v. Southern Home Sites, 444 F.2d 143 145 
(5th Cir. 1971) (§1982).

36 The decision of the Court of Appeals suggests that Congress 
may have intended to revoke this Court’s inherent power to grant 
attorney’s fees when, in the 1964 Civil Rights Act, it dealt with 
school segregation in Title IV without authorizing legal fees, where­
as such fees were provided for in Titles II and VII. Section 2000c-



28

V  ) ^

h i .

Plain lifts Are E nlilled  to Attorneys’ Fees Because 
They Maintained This Action as Private Attorneys 
General.

A substantial number of lower courts have concluded 
that successful plaintiffs should be awarded attorneys’ fees 
where they sue, not merely on their own behalf, but to 
enforce important constitutional or statutory policies.3 
Replying on both the reasoning and standard set in this 
Court’s opinion in Newman v. Piggie Park Enterprises, 
390 U.S. 400 (1968), these decisions have concluded that 
legal fees should be awarded to such private attorneys 
general unless there are special circumstances which would 
render an award unjust. The District Couit m the instant 
case relied on this ground as an alternative basis for its 
award of fees (135a-141a). This Court, however, has not 
indicated whether plaintiffs can recover fees as private 
attorneys general in the absence of an express authoriza­
tion such as that present in Newman?* Plaintiffs maintain

8 forbids any such conclusion however. If the existence of any 
part of Title IV is not. to adversely affect the right to counsel fees, 
ipso facto the existence of Title IV itself cannot do so.

37 Lee v Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 
1971) ; Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ; Knight v. 
Aucirllo, 453 F.2d 852 (1st Cir. 1972) ; Ross v. Goshi, 351 F.Supp. 
949 (D. Hawaii 1972) ; La Raza TJnida v. Volpe, 57 F.R.D. 94 
(N.D. Cal. 1972); Ford v. White (S.D. Miss., Civil Action No. 
1230(N), opinion dated August 4, 1972); Jinks v. Mays, 350 
F.Supp. 1037 (N.D. Ga. 1972); Wyatt v. Stickncy, 344 F.Supp. 
387 (M.D. Ala. 1972) ; NAACP v. Aliev, 340 F.Supp. 703 (M.D. 
Ala. 1972) ; Sims v. Amos, 340 F.Supp. 691 (M.D. Ala. 1971).

38 This Court expressly declined to reach that question in Hall 
v. Cole, 36 G. Ed. 2d 702, 708 n.7 (1973), and Northcross V. 
Board, of Education of the Memphis City Schools, 41 U.S.L.W. 
3635 n.2 (1973).



that such awards are proper, and would urge this Court to 
resolve this question of growing importance for the guid­
ance of the lower courts.

The well established common benefit cases, discussed 
supra, sanction the award of attorneys’ fees where a plain­
tiff’s action confers a substantial benefit on the members 
of an ascertainable class, such as the members of a union 
or the shareholders of a corporation. 11 all v. Cole, 36 
L. Ed. 2d 702, 709 (1973) ; Mills v. Electric Auto-Lite Co., 
396 U.S. 375, 393-394 (1970). The rationale of those cases 
is equally applicable where, as here, the plaintiffs’ action 
enforces important constitutional and statutory policies 
and thus benefits the public at large. Compare Mills v. 
Electric Auto-Lite Co., 396 U.S. at 396.39 As this Court 
indicated in Newman, any action which vindicates such 
policies serves, ipso facto, to “advance the public interest.” 
390 U.S. 400, 402.

The plaintiffs in this action sued to vindicate the right 
of all students to attend not black schools or white schools, 
but just schools, a national policy of the highest impor­
tance. Compare, Broum v. Board of Education, 397 U.S. 
483, 493 (1954). This national policy has been embraced 
and advanced in major legislation. Northcross v. Board of 
Education of the Memphis City Schools, 41 U.S.L.W. 3635 
(1973).40 The achievement of this goal of integration of

39“ [I]n vindicating the statutory policy, petitioners have ren­
dered a substantial service to the corporation and its shareholders.”

40 Congress lias expressly authorized the Attorney General to 
institute civil actions under appropriate circumstances to “further 
orderly achievement of desegregation in public education.” 42 
U.S.C. § 2000c-(i. The use of force or threats of force to prevent 
any person from enrolling in or attending any public school be­
cause of his race has been made a federal crime. 18 U.S.C. §245 
(b)(2)(A ). All federal agencies providing financial assistance to 
state schools have been directed by Congress to insure, by termina­
tion of funding or otherwise, that no person is excluded from



30

tho public schools is vital to the public interest. It develops 
for the benefit of all the creative talents of students who 
might otherwise be relegated to an inferior education, it 
contributes to the skills, motivation and earning power of 
young men and women who might otherwise be destined 
for the burgeoning ghettos that blight our major cities, 
and it inculcates in students, teachers, parents and others 
in the community racial attitudes essential to the creation 
of a society in which blacks and whites work and live 
together in peace.

The plaintiffs who bring litigation of such national im­
port should not be required to bear alone tho cost of the 
ensuing public benefit. This Court has abandoned any 
suggestion that a private party lacks standing to sue where 
his interest is essentially the same as all his fellow citizens, 
Flast v. Colien, 392 U.S. 83 (1968); a plaintiff should not 
be denied reimbursement for benefits conferred on others 
merely because the beneficiary is not a small and distinct- 
group, but the public at large. In the instant case the funds 
of the defendant school board derive from taxes paid by 
residents of the area most immediately affected by this 
action.41 Assessing the cost of this action against such 
public revenues serves to pass on that cost to those who 
profited from it. Hall v. Cole, 36 L. Ed. 2d 702, 709 (1973).

participation in any such program on account of race. 42 U.S.C. 
§ 2000d-l. On repeated occasions Congress has authorized grants 
and technical assistance to assist school boards in ending segrega­
tion. 42 U.S.C. §§ 2000c-2 ct ftr.q; Elementary and Secondary Edu­
cation Act of 1906, P.E. 89-750, §181; Emergency School Aid Act 
of 1972, P.E. 92-318, Title VII.

41 A somewhat different situation would be presented where the 
defendant was a private person or organization, hence a benefici­
ary of the action but not necessarily able to pass on the cost of 
legal fees to all the oilier beneficiaries. This would be a circum­
stance relevant to, though not by itself controlling, the district 
court s decision as to whether special circumstances were present 
which rendered an award of counsel fees unjust. See p. 34, infra.



31

The award of legal fees was appropriate in Mills and 
Hall, not only because the litigation benefited the stock­
holders and union members involved, but because it bene­
fited the corporation and union as well. See 396 U.S. 375, 
396. That is not to say that the officials of the union or 
corporation supported the litigation or welcomed its re­
sults; the contrary was of course the case. Rather, Con­
gress had defined the interests of corporations and unions 
by law in the Securities Exchange Act and the Labor- 
Management Reporting and Disclosure Act, respectively. 
In the instant case the school board is entirely a creature 
of the law; its only interest is in achieving the goals set 
by law in the manner also fixed by law. The particular de­
sires of those who may sit on the board at any point in 
time, to the extent they are inconsistent with these goals 
and purposes, do not correspond to the legally cognizable 
interests of the board. Under the Constitution, the estab­
lishment of a unitary school system is as vital to the inter­
ests of the board as hiring instructors, teaching arithmetic, 
or providing students with books. An individual plaintiff 
who helps achieve any of these public goals through litiga­
tion is entitled to have his attorneys’ fees paid by the 
defendant school board.

The power of the courts to award legal fees to a private 
attorney general conferring such a benefit on the public 
or the government derives, as in all common benefit cases, 
from the inherent equity power of the courts. See p. 21, 
supra. In the instant case the existence of that power is 
amply confirmed by the statutes under which this action is 
brought. The remedy authorized, 42 U.S.C. §1983; 28 TJ.S.C. 
§1343(3), is not simply damages or an injunction, but “re­
dress” of deprivations of basic rights. This language con­
stitutes the broadest possible authorization to the courts 
to fashion a just and effective remedy. It was to provide 
just such broad relief, in the face of inadequate state reme-



32

dies, that section 1983 was first enacted. Monroe v. Pape, 
3G5 U.S. 167, 178 (1961). The term “redress” contemplates 
that the aggrieved plaintiff will he restored to the situation 
which would have obtained had his rights not been denied; 
such complete restoration ought include, in an appropriate 
case, compensation for tire cost of attorneys’ fees incurred 
that action for redress.

Courts of equity, in fashioning remedies to do complete 
justice, have traditionally created novel devices where the 
relief available at law proved inadequate for a new or 
unforeseen problem. When the general American rule 
against legal fees was first adopted, see Arcambcl v. Wise- 
mam, 3 IT.S. (3 Dal.) 306 (1796), there were few if any fed­
eral statutes providing for the public weal which were 
susceptible of enforcement by private civil litigation, and in 
a country of only four million the resources of the federal 
government were adequate to the task of enforcing the few 
such laws which might exist. Since the turn of the century, 
however, the number of federal laws regulating private and 
government action for the good of the public has grown in 
an unprecedented fashion. Many of these laws are capable 
of private civil enforcement and, in a population of over 
two hundred million, not a few such laws can only be en­
forced by such private action. Similarly the decisions of 
this Court carrying out the provisions of the Constitution 
have spelled out many rights not readily capable of govern­
ment enforcement, frequently because they are limitations 
on the powers of government itself.

In fashioning a remedy to deal with this problem, a court 
of equity could properly take cognizance of the injustice of 
using tax revenues only to defend government illegality, 
not to compensate those who prevent it. While the impor­
tance and cost of private civil actions to vindicate these 
public policies is often great, the financial gain to an indi-



33

vidua] plaintiff is often de minimis. As the district court 
correctly observed:

. . . this sort of case is an enterprise on which 
any private individual should shudder to embark. No 
substantial damage award is ever likely, and yet the 
costs of proving a case for injunctive relief are high. 
To secure counsel willing to undertake the job of trial, 
including the substantial duty of representing an en­
tire class (something which must give pause to all 
attorneys, sensitive as is the profession to its ethical 
responsibilities) necessarily means that someone— 
plaintiff or lawyer—must make a great sacrifice unless 
equity intervenes. Coupled with the cost of proof is 
the likely personal and professional cost to counsel who 
work to vindicate minority rights in an atmosphere of 
resistance or outright hostility to their efforts. See 
NAACP v. Button, 371 U.S. 415,435-36 (1963); Sanders 
v. Russell, 401 F.2d 241 (5th Cir. 1968).

It is especially appropriate that the remedy devised be 
the award of counsel fees employed by recent statutory 
provisions protecting civil liberties, for such statutes should 
he treated “as we treat a judicial precedent, as both a 
declaration and a source of law, and as a premise for legal 
reasoning. . . .” Stone, “The Common Law in the United 
States,” 50 Harv. L. Rev. 4, 13-14 (1936); Lee v. Southern 
Home Sites Corp., 444 F.2d 143, 146 (5th Cir. 1971). The 
effective administration of justice in cases of this sort re­
quires that the parties compete, on a relatively comparable 
basis, lest the vast revenues of a public defendant be used 
to wear down without hope of reimbursement a private 
plaintiff of far more modest resources. Tt is well within the 
supervisory power of the courts to take steps-necessary to 
put the parties on a more equal footing. Compare Chcff v. 
Schrackenberg, 384 U.S. 373, 380 (1966). The inherent 
power of the courts to enforce this Court’s decisions in



34

Brown and Greene would mean little if the courts lacked the 
authority to enable private parties to bring violations of 
those decisions to their attention.

The authority of the courts to award legal fees to private 
attorneys general is of limited applicability, and does not 
entail a general abandonment of the well established Amer­
ican rule against awarding legal fees in civil cases. This 
authority does not extend to merely private disputes, but 
may bo exercised only where the litigation benefits the gen­
eral public or otherwise involves statutory or constitutional 
policy of unusual importance. It may be circumscribed by 
Congress, either expressly or by providing such detailed 
other remedies for violations of the right involved as to 
indicate a desire to preclude remedies not so enumerated. 
Compare Fleisclimann Distilling Corp. v. Maier Breiving 
Co., 386 TT.S. 714 (1967). Even where, as here, this au­
thority exists, it should not be exercised if there are special 
circumstances rendering an award of counsel fees unjust. 
Compare Newman v. Biggie Parle Enterprises, 390 IT.S. 400 
(1968).

In the instant case, however, no such special circum­
stances were present. It was therefore within the District 
Court’s discretion to award plaintiffs counsel fees for hav­
ing vindicated, as private attorneys general, the Fourteenth 
Amendment and the decisions of this Court.

The District Court Had the D iscretion to Award At­
torneys’ Fees Because o f  the Conduct o f  the D efendant 
School Board.

■UK



35

prises, 390 U.S. 400, 402, n. 4. This discretion is properly 
exercised where the bringing of the action was compelled 
by the defendant’s inexcusable defiance of the law, or by 
unreasonable conduct by the defendant in the course of the 
litigation once commenced. In the instant case the District 
Court expressly grounded its award of attorneys’ fees on 
the conduct of the defendant school board, both before 
plaintiffs’ motion for further relief, 133a-135a, and there­
after, 135a-137a. The decision of the District Court in 
exercising that discretion carries with it a strong presump­
tion of correctness, and should only be overturned on 
appeal upon a clear showing that that discretion was 
abused. Newton v. Consolidated Gas Co., 265 U.S. 78, 83 
(1924). The award of legal fees in the instant case was 
well within the discretion of the District Court.

1 . C onduct P r io r  to  the M otion  fo r  Further Relief.

When plaintiffs moved on March 10, 1972, for further 
relief in this case, the defendant school board had for sev­
eral years been operating the Richmond public schools in 
a manner plainly inconsistent with the decision of this 
Court. All the legal fees awarded by the District Court 
are directly attributable to this unlawful pi’actice; had the 
school board acted on its own to comply with the clear 
command of this Court, no such fees would have been in­
curred by the instant plaintiffs. An award of attorneys’ 
fees is required where “the bringing of the action should 
have been unnecessary and was compelled by the school 
board’s unreasonable, obdurate obstinacy or persistent de­
fiance of the law.” Brewer v. School Board of the City of 
Norfolk, Virginia, 456 F.2d 943, 949 (4th Cir. 1972).42

42 See also, McEntcggart v. Cataldo, 451 F.2d 1100 (1st Cir. 
1971); Horton v. Lawrence County Board of Education, 449 F.2d 
393 (5th Cir. 1971); Monroe v. Board of Commissioners of City 
of Jackson, 453 F.2d 259 (6th Cir.), cert, denied,, 406 U.S. 945



36

The District Court’s decision to award fees on this basis 
was clearly justified by the facts in this case. Since, more­
over, the Court of Appeals reversed this award on the 
ground that the school board had no affirmative duty to 
act until brought into court, this case raises important 
questions regarding the responsibility of school officials 
to dismantle voluntarily dual school systems.

In March, 1964, the District Court in this case ordered 
the school board to implement a freedom of choice plan 
permitting black and white students to transfer to schools 
which had earlier been limited to pupils of the other race. 
Plaintiffs appealed that order, urging that the school board 
should be required to go beyond freedom of choice to a 
plan which would have actually resulted in a unitary school 
system. The Court of Appeals, however, affirmed the Dis­
trict Court’s decision, 345 F.2d 310, and this Court de­
clined to review that judgment by writ of certiorari. 382 
103 (1965). The appellate proceedings, however, made it 
clear that the school board’s legal responsibilities were not 
limited to implementing a freedom of choice plan. This 
Court directed the District Court to consider the impact 
of faculty segregation on the adequacy of any desegrega­
tion plans, expressly declined to approve the merits of the 
1964 plan, and cautioned the defendants that delays in 
desegregating school systems were no longer tolerable. 
382 IT.S. at 105. Two of the five Fourth Circuit judges 
cautioned the school board that the plan should be re­
viewed and reappraised to see if it was working, and 
reminded it “that the initiative in achieving desegregation 
of the public schools must come from the school authori­
ties.” 345 F.2d at 322-324. On remand in 1966, the District

(1972) ; Clark v. Board of Education of Little Bock School Dist., 
449 F.2d 493 (8th Cir. 1971), ccrt. denied, 405 TT.S. 936 (1972) ; 
369 F.2d 661 (8th Cir. 1966); Kelly v. Guinn, 456 F.2d 100 (9th 
Cir. 1972).

m



Court directed the implementation of a plan based on free­
dom of choice. 17a-24a.

Two years later, on May 27,1968, this Court unanimously 
condemned freedom of choice plans which did not have the 
effect, in fact, of dismantling the pre-existing dual school 
system. Green v. County School Board of New Kent 
County, Viryinia, 391 U.S. 430. The Court expressly re­
jected the argument, relied on earlier by the Fourth Cir­
cuit in approving freedom of choice in Richmond, that a 
school board could completely discharge its constitutional 
obligations by merely “adopting a plan by which every 
student, regardless of race, may ‘freely’ choose the school 
lie will attend.” 391 U.S. at 437. Those obligations required 
that each State eliminate “root and branch” the racial 
identification of its schools which had arisen under State 
sponsored segregation. 391 U.S. at 435, 438. Green stated 
unequivocally that school boards could not sit idly by main­
taining unconstitutional school systems until and unless 
litigation was commenced against them. 391 U.S. at 438- 
439.

The message of Green can hardly have been missed by 
the respondent school board. The Fourth Circuit panel 
reversed in Green was virtually the same as that which 
had earlier upheld Richmond’s freedom of choice plan, the 
relevant opinions were written by the same judge, and 
the 1967 decision reversed in Greenhixd relied on the earlier 
decision in this case.43 New Kent County itself is located 
less than 15 miles from the City of Richmond. Dr. Little,

43 Green, reported at 382 F.2d 338, was a per curiam decision 
relying on a decision the same day in Bowman v. County School 
Board, of Charles City County, 382 F.2d 326 (4th Cir. 1967). The 
Fourth Circuit’s earlier decision approving free choice in Bradley 
was cited at 382 F.2d 327, n. 2. Judges Haynsworth, Boreman and 
Bryan were in the majority in both Bradley and Bowman, joined 
in Bowman by Judge Craven who had been appointed subsequent 
to the 1965 Bradley decision.



3S

the Associate Superintendent of Schools, indicated school 
officials were aware actually of the inadequacy oi freedom 
of choice prior to the motion for further relief.

Despite the indisputable illegality of Richmond’s free­
dom of choice plan under Green, and despite Green s com­
mand that school boards seize the initiative in meeting 
their constitutional responsibilities, the Richmond school 
board made no effort to change its system to comply with 
the law. When the school board had persisted in defiance 
of Green for almost two years, plaintiffs and their counsel 
were forced once again to assume the burdens of proti acted 
litigation to gain the constitutional rights to which they 
were clearly entitled. Upon being brought back into court 
by plaintiffs in March of 1970, the board conceded, after 
some equivocation, the illegality of the system it had been 
operating for nearly two years in defiance of Green.**

44 Tn -July of I960, the school board commenced planning for the 
acquisition of sites for several new schools in an area to be an­
nexed from Chesterfield County, and purchased several sites over 
the year that followed. In connection with questions as to how 
these sites were chosen, the following dialogue occurred:

The Couiit- Dr. Little, do you recall any conversation or 
any suggestion that perhaps the [Richmond] freedom of choice 
plan would have to be changed by virtue of the United States 
Supreme Court decision prior to the acquisition of these sites. 
Did you hear anybody say anything about it or do you think 
the assumption was you ought to go on under the plan that 
you had because you felt it was a valid plan 1

The W itness: Your Honor, we have discussed it. We had 
some serious problems with freedom of choice, freedom of 
choice plan.

Hearing of June 19, 1970, 37a.
46 On March 12, 1970, the District Court ordered the defendants 

to state whether they maintained the Richmond schools were being 
run in accordance with the Constitution. On March 19 the defen­
dants filed a statement that they “had been advised the school 
system was not a unitary one. 28a. On March 31, after the 
District Court inquired whether this advice had been accepted, the 
school board conceded that the school system was operating in a 
manner contrary to constitutional requirements. 317 P. Supp. 558; 
30a.



39

The District Court based its award of legal fees in large 
measure on the failure of the school board for almost two 
years to satisfy its affirmative obligation under Green. In 
its opinion awarding these fees the District Court ex­
plained :

It should be apparent that since 19G8 at the latest the 
School Board was clearly in default of its constitu­
tional duty. * * * Because the relevant legal standards 
were clear it is not unfair to say that the litigation 
was unnecessary. It achieved, however, substantial 
delay in the full desegregation of city schools. Courts 
are not meant to bo the conventional means by which 
person’s rights are afforded. The law favors settle­
ment and voluntary compliance with the law. When 
parties must institute litigation to secure what is 
plainly due them, it is not unfair to characterize a 
defendant’s conduct as obstinate and unreasonable and 
as a perversion of the purpose of adjudication, which 
is to settle actual disputes.

It is no argument to the contrary that political reali­
ties may compel school administrators to insist on 
integration by judicial decree and that this is the ord­
inary, usual means of achieving compliance with con­
stitutional desegregation standards. If such considera­
tions lead parties to mount defenses without hope of 
success, the judicial process is nonetheless imposed 
upon and the plaintiffs are callously put to unreason­
able and unnecessary expense. 133a-134a.46

46 The District Court had taken a similar position throughout the 
proceedings. At the hearing of June 26, 1970, the court remarked, 
“We have had several years, and I will not dwell on it, but it has 
been several years since the New Kent case and nothing has been 
done. Nothing seems to be done until somebody comes in and cre­
ates litigation.” 62a. On August 7, 1970, the court commented, 
“ [Tlhe School Board, who has known since May 27, 1968, that 
freedom of choice was not constitutionally viable unless it works,



The Court of Appeals did not disturb the District Court’s 
findings of fact regarding the school board’s conduct prior 
to plaintiffs’ 1970 motion for further relief. Nor did the 
Fourth Circuit question the rule applied by the District 
Court that legal fees should be allowed where a school 
board forces private citizens to resort to litigation to vin­
dicate their clear right to a unitary school system. Rather, 
the appellate court excused the failure of the defendants 
to dismantle an admittedly illegal dual school system be­
cause (1) the school board had received no complaints from 
plaintiffs or others, and (2) the school board iaced vexing 
uncertainties in framing a new plan of desegregation.” 
161a-167a.

For almost two decades this Court lias admonished school 
hoards to seize the initiative in bringing their systems into 
compliance with the Constitution.47 The cautious pace of

wait [eel ] for two years to come into court. After they are brought 
into court they stand up and admit it did not work. l9a. On 
February 16, 1971, the court insisted it would in the near future 
order into effect a new plan, despite the practical problems in­
volved. “1 have come to the conclusion that I must enter an 
order, preferably by April 1, and the school board just has to do 
the best they can. I am sorry. I don’t  mean to put it that way, 
but this matter in 1967 [sic], everybody knew what they had to do. 
All you had to do was read the law. Nothing was done. You 
can’t go on and on and on.” 100a.

47 In Brown II the Court stated that full implementation of the 
constitutional principles enunciated in Brown 7 might “require 
solution of varied local school problems. School authorities have 
the primary responsibility for elucidating, assessing, and solving 
these problems.” 349 U.S. at 299. (emphasis added) In Coopery. 
Aaron, the Court explained that under Brown II school authorities 
were “’duty bound to devote every effort toward initiating desegre­
gation and bringing about the elimination of racial discrimination 
in the public school system.” 358 U.S. 1, 7 (1952). In Green V. 
County School Board of New Kent County the Court reaffirmed 
that school boards were “clearly charged with the affirmative duty 
to take whatever steps might be necessary to convert to a unitary 
school system in which racial discrimination would be eliminated 
root and branch. . . .  [I]t was to this end that Brown II  com- 
.mmdprl school boards to bend their efforts . . . The burden on



41

“all deliberate speed” announced in Brown has long since 
given way to a call for immediate action.48

If the standards applied by the Fourth Circuit in excus­
ing the school board’s two year delay were accepted by this 
Court, there would be virtually no circumstances under 
which a school board would have an affirmative obligation 
to act. Few students or parents without the assistance and 
protection of counsel will brave the community pressures 
against those who protest segregation. Compare Green v. 
Count)) School of New Kent Count)), 391 F.S. 430. 440 n.5 
(1968). Virtually any school district will be able to claim 
that, in view of the complex problems of pupil assignment, 
transportation, school construction and financing, it, like the 
Richmond school board, could not foresee the precise plan 
which would be approved by the courts if litigation were 
commenced. Compare Swann v. Chariot!'-e-Mecklenburg 
Board of Education, 402 F.S. 1 (1971). But whatever “un­
certainties” existed before or after Swann wen* as to the 
tools which the courts could use when state officials failed to 
comply with the law. The tools available to school officials 
themselves are limited only by their imagination and prac­
tical considerations; school boards have always been free to

a school board today is to come forward with a plan that promises 
realistically to work and promises realistically to work now.” 391 
U.S. at 437-439 (1968); see also McDaniel v. Barresi, 402 U.S. 39, 
41 (1971).

48 In 1963 and 1964 this Court announced that the context which 
surroun led the standard of Brown /  had long since changed. Goss 
v. Hoard of Education, 373 U.S. 683, 689 (1963) ; Calhoun v. Lati­
mer, 377 U.S. 363, 364-65 (1964). Griffin v. School Board an­
nounced “ [T]he time for mere deliberate speed has run out.. . . . ” 
377 U.8. 218, 234 (1964). Seven years ago, in this very case, the 
Court, declared, “Delays in desegregating school systems are no 
longer tolerable.” Bradley v. School Board of Richmond, 382 U.S. 
103, 105 (1965). The command in Green for integration now has 
been reiterated in subsequent decisions. Alexander v. Holmes 
County Board of Education, 396 U.S. 19, 20 (1969); Swann v. 
Charlottc-Mccklenburg Board of Education, 402 U.S. 1, 13-14 
(1971).



42

adopt any techniques which worked, even though some 
might be beyond the power of the federal courts to order. 
Compare Sivann v. Charlotte-Mecklenburg Board of Edu­
cation, 402 U.S. 1,16 (1971); McDaniel v. Barresi, 402 U.S. 
39 (1971). The goal to he achieved has always been clear— 
the creation of a unitary school system. Compare Green 
v. County School Board of New Kent County, 391 U.S. 430 
(1968). Any uncertainty on the part of the board as to how 
to achieve a unitary system cannot excuse the board’s de­
cision not to try to achieve such a system at all.

It has never been claimed, and no court has ever held, 
that the actual reason the school board took no action in 
the face of Green in 1968 was that it had no complaints or 
did not know what to do. The school board never asserted 
that it spent the 22 months after Green trying to formulate 
a new desegregation plan; once litigation commenced, the 
board was able to devise its first proposed plan in 41 days, 
and its second in 27. On the contrary, District Court found 
that the general attitude of the authorities was that they 
would take no steps to establish a unitary school system 
except under court order. 133a. The only excuse actually 
offered by the school board for failing to act after Green 
was that it was complying instead with the 1966 court order 
authorizing a freedom of choice plan.49 The notion that the

43 Brief for Appellants, p.21. At the hearing of August 7, 1970, 
the following dialogue occurred between the Court and counsel for 
the school board.

T iie Court: . . . [T]he School Board, who has known 
since May 27, 1968, that freedom of choice was not consti­
tutionally viable unless it works, wait for two years to come 
into court. After they are brought into court they stand up 
and admit it did not work.

Mr. Mattox: The School Board was operating a system 
under the direction of this Court.

The Court: But they knew that that was no longer valid.
Mr. Mattox.- But it was still operating, Your Honor, as—
The Court: You mean they were using the technical as­

pect; is that it?



43

school board could evade responsibility for obeying Green 
by complying instead with a lower court decision preceding 
and inconsistent with Green is completely at odds with the 
standards of scrupulous obedience of the law demanded of 
any government agency.

Moreover in the instant case the school board was in 
violation of the 1966 decree itself. The 1966 plan went 
beyond mere freedom of choice in several respects. First 
it required, pursuant to the order of this Court, that the 
board end existing racial segregation of faculty and assign 
faculty and other staff so that no school was identifiable 
as intended for students of a particular case.50 Yet in 1970 
the District Court discovered that 45 of 66 schools had 
faculty and staff in excess of 90% white or 90% black. 
338 F. Supp. 67, 72; see also 317 F. Sup]). 555, 560-561. 
It further found that “ [u] under the freedom of choice plan 
governing Richmond’s schools through 1969-70, the faculties 
of many schools were plainly segregated. This fact, stand- 
and in all probability it also impaired the process of student 
ing alone, contributed to the racial identifiability of schools, 
body segregation by personnel initiative.” 325 F. Supp. 
S28, 838. The Superintendent of Schools conceded that the 
board had never actually required teachers to work at a 
particular school in order to achieve faculty integration.61

Mr. M a t t o x  : No, sir, they were following the directive of 
this Court.

T h e  C o u r t : In spite of the fact that they knew that that 
was no longer the law, Mr. Mattox, really?

Mr. M a t t o x : Your Honor, the law—any School Board ap­
ply this as the law under the order that was issued in this 
case. Whether the law had changed or not is beside the point. 
It was not the law in this case at that time.

79a.
60 20a-21a.
61 At the hearing of June 19, 1970, Dr. Adams testified, “We 

have used all the means that we know how during the past four 
years to get teachers to move from one school to another short of 
making it a condition of employment” 49a (Emphasis added).



44

Second, the 1966 decree directed that school construction 
not be designed to perpetuate, maintain, or support racial 
segregation.52 Yet in 1970 the District Court found

“School construction policy has contributed substan­
tially to the current segregated conditions. Schools 
have been built and attendance policies maintained so 
that, even within existing school divisions and by com­
parison with the racial ratios prevailing therein, new 
or expanded facilities were racially identifiable. The 
evidence shows that this was purposeful, its immediate 
and intended result was the prolongation and at­
tempted perpetuation of segregation within school 
divisions.” 338 F. Supp., 86 (emphasis added).

Most significantly, the plan provided that it must be evalu­
ated “in terms of results,” and that if the steps taken by 
the school board did not produce “significant results . . . 
the freedom of choice plan will have to be modified with 
consideration given to other procedures such as boundary 
lines in certain areas.”53 Four years later the court con­
cluded “there was generally little change in the racial 
composition of the schools from the inception of the free­
dom of choice plan” to 1970. 317 F. Supp. 555, 561. Three 
of seven high schools were more than 90% black. Of nine 
middle schools, 3 were over 99% black and 3 were over 90% 
white. There were 17 all black elementary schools, and 
another 4 over 99% black, with 15 elementary schools over 
90% white. 317 F. Supp. 555, 571-72.

In view of the fact that the defendant school board had 
for several years been in open and inexcusable violation 
of both Green and the 1966 court order, and had thus com­
pelled the plaintiffs to pursue further litigation to obtain 
rights to which they were clearly entitled, the District

52 23a.
53 22a-23a.



Court plainly had the discretion to award plaintiffs at­
torneys’ fees.

2. Conduct After the Motion for Further Relief.

Since the defendants’ obdurate refusal to afford plain­
tiffs their constitutional rights forced them to initiate the 
litigation of 1970-71, plaintiffs would have been entitled 
to compensation for the ensuing legal fees even if the 
school board’s conduct, after being brought back into court, 
had been exemplary. After initially conceding that its 
freedom of choice plan was illegal and that plaintiffs were 
entitled to further relief, the school board proposed five 
desegregation plans—one in May 1970, one in July 1970, 
and three in January 1971. The District Court rejected 
both the May and July submissions as inadequate, but 
accepted the July plan as an interim measure so that 
schools could open in September. The court found two of 
the three January plans also deficient, and adopted the 
third, under which Richmond is now operating. The legal 
services for which the District Court awarded attorneys 
fees were expended largely in opposing the inadequtae 
school board plans of May and July,54 and the award was 
grounded, inter alia, on the unreasonableness of the school 
board in proposing such “additional relief” as was mani­
festly inadequate.55

The first plan offered by the school board was one pre­
pared by the Department of Health, Education and Wel­
fare (“HEW”) and modified only insignificantly by the 
board. This was a neighborhood school plan devised by 
simply assigning students to the school nearest them with-

54 The District Court’s award dealt only with services performed 
before January 29, 1971. 141a. Virtually all the services in this 
period were performed between the filing of the motion for fur­
ther relief in March and the rejection of the second plan in August. 
94a-95a.

66 See 135a-137a.



46

out regard to the resulting racial composition of the 
schools or the extent to which the pre-existing dual school 
system was dismantled. The plan had at best a minimal 
impact on the pattern of racially identifiable schools estab­
lished by the board before Brown and perpetuated by 
freedom of choice. The school board proposed that there 
be 20 schools with at least 90% black students, 19 schools 
with at least 70% white students, and only 14 schools be­
tween these two extremes.56 After almost three months 
had been expended in the preparation and analysis of this 
plan—a crucial period since the now school year was fast 
approaching—and after counsel for plaintiffs had expended 
substantial efforts in opposing a plan which would have 
largely defeated their request for additional relief, the 
District Court rejected this plan for continued segregation 
of the Richmond schools as “ [u] tterly ridiculous.”57

The school board cannot escape liability for legal fees 
caused by the proposal on the ground that it was prepared 
by HEW. As the District Court pointed out and counsel 
for the board conceded, the responsibility for proposing 
an effective plan of desegregation was the board’s, not 
HEW’s.68 While under many circumstances it may be con­
structive for a school board to turn to HEW for assistance 
in preparing such a plan, that was manifestly and fore- 
seeably not the situation in this case. As was well known to 
the school board, black and white school children were not 
evenly distributed throughout the city, but were grouped 
in residentially segregated areas, and under the illegal 
freedom of choice plan generally attended the school 
nearest their home which was, in most cases, either over­
whelmingly black or overwhelmingly white. At the very

5,i Transcript of Proceeding of June 29, 1970, 59a-61a, see 317 
P. Supp. 555, 564-65.

67 Transcript, of Proceeding of June 26, 1970, 57a-62a.
58 Transcript of Proceedings of June 19, 1970, 49a.



time that the school board proposed to seek the assistance 
of HEW in preparing a plan of desegregation, that Depart­
ment was under instructions from the administration to 
make the “neighborhood school” the basis of any proposed 
plan, and not to employ transportation of pupils “beyond 
normal geographic school zones.” Public Papers of the 
Presidents: 1970, pp. 112-113 (February 16, 1970), 315 
(March 24, 1970). If, as seems inconceivable, the school 
board was unaware of IIEW ’s policies when it first pro­
posed seeking its assistance, that was no longer the case 
after March 31, 1970 when, in conference with the District 
Court, plaintiffs’ counsel expressed his grave reservations 
at this proposal in the light of the administration’s posi­
tion.59

Despite this warning, the school board persisted in ask­
ing that IIEW prepare a plan. The board expressed no 
concern to HEW over the policies announced by the ad­
ministration, and made no request that they be ignored in 
preparing its recommendations.60 During the weeks that 
HEW was preparing its recommendations, the school 
board, despite ample resources, made no effort to draft 
any proposals of its own. Whatever illusions, if any, the 
board may have had as to IIEW’s intentions were neces­
sarily dispelled when the HEW plan was received in early 
May. At that point the school board, which had early con­
ceded to the court that it would not be bound bv TTEW’s 
recommendations,61 knew full well that the IIEW plan 
meant a continuation of racially identifiable schools 
throughout the city. Had the board desired in good faith 
to dismantle Richmond’s dual school system, it would have 
reported to the court the inadequacy of the HEW plan and 
asked for additional time to prepare a new plan of its own.

59 Transcript, of Proceedings of March 31, 1970, 33a.
60 Transcript of Proceedings of June 19, 1970, 45a.
61 Transcript of Proceedings of March 31, 1970, 33a.



Such a stop would have avoided the substantial delay and 
many unnecessary hours of plaintiffs’ counsel’s time neces­
sitated by insisting on litigating the merits of a manifestly 
inadequate proposal. Instead the school board, without 
considering any alternatives,62 approved the HEW plan 
and submitted it to the court.

After the board had submitted this plan to the court, 
and while plaintiffs were at work preparing their response, 
the Fourth Circuit handed down its decision in Srvann v. 
Charlotte-Mecklenburg Board of Education, 431 F.2d 138 
(May 2(1, 1970). Swann held that school boards which had 
operated a dual system must “use all reasonable means to 
integrate the schools in their jurisdiction,” including bus­
ing, non-contiguous zoning and clustering. 431 F.2d at 
142-143. If there was ever any doubt as to the invalidity 
of the HEW plan, and plaintiffs insist there was not, surely 
those doubts were extinguished by Swann. Had the board, 
in the face of Swann, moved with dispatch to withdraw the 
HEW plan and prepare a new one, further delay would 
have been avoided and considerable effort by plaintiffs’ 
counsel would have been unnecessary. Instead, the board 
insisted on advocating the HEW plan in the teeth of 
Sivann. Despite Swann’s command “all reasonable efforts 
be made to integrate every school,” the school board offered 
one witness that a unitary school system was achieved by 
any assignment plan that did not consider the race of the 
children,63 and a second who testified that a desegregated 
school in any school in which “ [tjhere is at least one 
legally definable Negro in an otherwise all-white school or 
there is at least one definable white in an otherwise all- 
Negro school . . .” 64 Despite the fact that Swann approved

62 Transcript of Proceedings of June 19, 1970, 41a.
63 Id. 50a.
64 Transcript of Proceedings of June 19, 1970, p. 173.



49

t]ie decision of the district court in that case rejecting a 
plan for elementary school desegregation because it was 
based on contiguous geographical zoning and thus left 
large numbers of virtually all-black or all-white schools, 
the board’s witness testified that the board’s proposal was 
prepared sub ject to the same limitation.65 Despite Swann’s 
ruling that busing was one of the reasonable means which 
was to be used if necessary to achieve integration, the 
board’s own witness further conceded that additional trans­
portation was not considered in preparing the board’s 
plan.66 Despite the holding in Swann that further steps 
were to be taken if some schools remained segregated be­
cause of residential patterns, 431 F.2d at 147, the board’s 
witness testified that the residential patterns of Richmond 
were not considered in the plan still supported by the 
board.67 Indeed, not even the race of the children in each 
school under the plan had been considered.68 Although 
Swann disapproved as ineffectual a plan for elementary 
schools which left about half the black students in nearby 
segregated schools, 431 F.2d at 146, counsel for the school 
board conceded its plan would leave over 50% of the black 
students in schools over 95% black.69

Whatever the board’s motives may have been when it 
first solicited (he assistance of HEW in March of 1970, the 
District Court’s statement welcoming “help” from any 
source70 did not authorize the board to delegate its entire 
responsibility to submit a plausible plan of desegregation

65 Id. 44a. See also pp. 122, 177.
66 Id. 44a-45a. See also pp. 97, 138 ct seq.
67 Id. p. 91.
68 /</. pp. 107-108.
09 Id. p. 103.
70 Transcript of Proceedings of March 31, 1970, 32a.



to any other government agency, least of all one committed 
to a policy of rigidly adhering to neighborhood schools 
even where, as in Richmond, that policy perpetuated a dual 
school system. The board’s decision to submit the inade­
quate HEW plan to the court, and to stubbornly advocate 
that plan even after Swann, contributed nothing to the 
fashioning of appropriate relief, and served only to delay 
that process and to place additional burdens on plaintiffs’ 
counsel. The award of attorneys fees for the work re­
quired of such counsel by reason of the board’s conduct 
was well within the discretion of the District Court.

Following the rejection of the HEW plan, the school 
board was directed to prepare a new plan for operation of 
the schools in the 1970-71 school year, to be considered 
over the summer. Under the plan proposed by the board 
two of the seven city high schools remained racially iden­
tifiable, as did certain of the middle level schools.71 Most 
significantly, 12 of the elementary schools were more than 
90% black and seven of them more than 90% white.72 In 
Swann the Fourth Circuit had expressly held inadequate a 
plan submitted to the district court in that case which left 
about half the white and black elementary school pupils in 
schools that were nearly completely segregated. 431 F.2d 
138, 146. Despite this clear holding, the Richmond school 
board proposed two months later that 8,814 of 14,963 
black elementary pupils be in schools over 90% black, and 
4,621 of 10,296 white elementary students be in schools over 
90% white.73 The District Court rejected this proposal as 
a final plan, but adopted it as an interim measure so that 
the schools could open in September. 317 F. Supp. 555, 
575-6.



51

The school board urged below that its conduct in pro­
posing these two unacceptable plans was not unreasonable 
in view of llie confusion that existed as to what tools 
might be required by law.74 In fact, however, the Fourth 
Circuit had made clear in Swann a month before the hear­
ing on the HEW plan that a school board “must use all 
possible means to integrate the schools in their jurisdic­
tion,” 4.11 F.2d at 148, including, inter alia, busing and sat­
ellite zoning. 4.11 F.2d 145. The school board cannot have 
failed to understand its duty, even before Swann, to elim­
inate racially identifiable schools, a goal neither achieved 
nor even approached by these plans.

The legal services performed by plaintiffs would never 
have been required if, as might have been hoped, the school 
board had proposed a constitutionally adequate plan in 
.May of 1970, instead of January of 1971. Doubtless there 
were methods of obstruction to which the defendant did 
not resort, and at a later stage in the litigation the defen­
dant assumed a significantly more constructive attitude, 
but these are factors of which the District Court was 
cognizant when it concluded that legal fees should be 
awarded in this case. At the stage of the proceedings when 
the legal services at issue were performed, each move by 
the board in the agonizingly slow process of desegregation 
was taken “unwillingly and under coercion.” 338 F. Supp. 
(57, 103. The fee awarded plaintiffs’ counsel was substan­
tially less than that paid out of tax funds to counsel for 
the school board.76 Under the circumstances the decision 
of the District Court to award attorneys’ fees cannot be 
said to have been an abuse of discretion.

74 Brief for Appellants, p. 25.
76 See Letter of Counsel for the School Board, dated March 11 

1971, 102a-104a.

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52

CONCLUSION

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For these reasons, the judgment of the Court of Appeals 
should be reversed.

J ack Greenberg

J ames M. N abrit, III
N orman J. Chachkin

Charles S tephen R alston

E ric S ciinapper

10 Columbus Circle 
New York, New York 10019

Louis II. L ucas

525 Commerce Title Building 
Memphis, Tennessee 38103

J ames R. Olphin

214 East Clay Street 
Richmond, Virginia 23219

M. R alph P age

420 North First Street 
Richmond, Virginia 23219

Counsel for Petitioners

i ■ M
^ ___