Bradley v. School Board of the City of Richmond Reply Brief for Petitioners

    I n t h e

i>upnmt£ (Emtrt nf %  ItttfTii States
October Term, 1973 

No. 72-1322

C arolyn B radley, et al.,

vs.
Petitioners,

T h e  S chool B oard oe t h e  C ity  of R ic h m o n d , et al.

REPLY BRIEF FOR PETITIONERS

J ack  G reenberg  
J am es M. N abrit , III 
N orman  J .  C h a c h k in  
C h a rles  S t e p h e n  R alston  
E ric  S c h n a p p e r

10 Columbus Circle
New York, New York 10019

W illia m  T. C o lem a n , J r.
Fidelity-Philadelphia Trust Bldg. 
Philadelphia, Pa. 19110

L ouis R . L ucas

525 Commerce Title Building 
Memphis, Tennessee 38103

J am es R. Ol p h in

214 East Clay Street 
Richmond, Virginia 23219

M. R a l ph  P age

420 North First Street 
Richmond, Virginia 23219

Counsel for Petitioners



1st th e

(to rt nf tlw Ihuitb BuUb
October Term, 1973 

No. 72-1322

Carolyn  B radley, et al.,

vs.
Petitioners,

T h e  S chool B oard oe t h e  C ity  of R ic h m o n d , et al.

REPLY BRIEF FOR PETITIONERS

I

Respondents urge at length that Section 718,1 which 
became effective over 17 months ago, should not now be 
applied to this case because such an application would 
be “retroactive”. They maintain that federal statutes 
should not be applied to any cases or appeals pending 
when the statutes became effective, even though such 
cases may not be finally decided until many years after 
that effective date.

Respondents’ assertion is not a novel one: their posi­
tion has been fully litigated, and resoundingly rejected, by 
this Court in the past. In Housing Authority of City of 
Durham v. Thorpe, as here, the lower court held that a 
new federal law should not be applied to litigation pend­
ing on appeal. Compare 271 N.C. 468, 470, 157 S.E. 2d 
147, 149 (1967) with Thompson v. School Board of City

1 Section 718 is now codified in 20' U.S.C. § 1617.



2

of Newport News, 472 F. 2d 177 (4th Cir. 1972). In 
Thorpe, as here, reliance was placed on Greene v. United 
States, 376 U.S. 149 (1964) by those opposing application 
of the new law. Compare 271 N.C. at 470-471, 157 S.E. 2d 
at 149-150 with Respondents’ Brief, pp. 10-13. In Thorpe, 
as here, the respondents construed United States v. 
Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801) as pre­
cluding application of the new law. Compare Brief for 
Respondents in No. 1003, 1967 Term, p. 27, with Brief for 
Respondents, pp. 15-18. Yet in Thorpe this Court rejected 
the identical arguments reasserted in this case, and held 
unanimously that the new federal law must be applied to 
that pending appeal. Thorpe reiterated it was the “gen­
eral rule” that new laws must be applied to all cases pend­
ing on appeal, 393 U.S. at 281, and that Greene was an 
“exception” needed to prevent manifest injustice on the 
special facts of that case. 393 U.S. at 282. Respondents 
offer no reason why that exception should now become 
the general rule.

Respondents suggest that the sole reason this Court 
applied the new law in Thorpe was that Mrs. Thorpe, at 
the time of the decision, still had not been evicted from 
her apartment. Respondents’ Brief, p. 19. The majority 
in Thorpe reaffirmed the rule that new laws were to be 
applied to pending appeals without referring to the fact 
that Mrs. Thorpe had not been evicted. That fact was 
noted only to show the unreasonableness of the Housing 
Authority’s refusal to comply voluntarily with the new 
law. Only Mr. Justice Black, in a concurring opinion, 
gave significant weight to this factor, and he objected 
that the rest of the Court, in discussing the more gen­
eral question of applying new laws on appeal, had used 
“a cannon to dispose of a case that calls for no more than 
a pop gun.” 393 U.S. at 284. Mr. Justice Black correctly 
understood the difference between his concurring opinion



3

and the majority opinion joined in by the other eight 
members of the Court; the restricted construction of 
Thorpe urged by Respondents is precisely the narrow 
ground on which Mr. Justice Black urged unsuccessfully 
that the Court base its opinion.

Respondents further urge that new statutes are applied 
to pending cases only where there is “a clear legislative 
intent” to affect such cases, and that a finding of such 
legislative intent was crucial to the decision in Thorpe 
and related cases. Respondents’ Brief, pp. 11, 18. This 
is simply wrong. In Thorpe the new law was a HUD circu­
lar regarding eviction procedures in federally assisted 
public housing; the Thorpe opinion contains absolutely no 
discussion of whether those who drafted the circular in­
tended to cover pending litigation. 393 U.S. at 281-284. 
So, too, in United States v. Alabama, 362 U.S. 602 (1960), 
the new statute was a provision of the 1960 Civil Rights 
Act authorizing suits by the United States against a state. 
This Court applied the new statute to that pending ap­
peal without any reference to the legislative history of 
or congressional intent behind the 1960 Act. See Petition­
ers’ Brief, p. 12. In Ziffin v. United States, 318 U.S. 73, 
(1943), the new statute was an amendment to the Inter­
state Commerce Act. This Court applied the change to a 
case pending before the Interstate Commerce Commission 
on the date of its enactment, without purporting to con­
sider whether Congress intended the new law to apply to 
such already pending matters.

Furthermore, the application of Section 718 to the instant 
case would not be a “retroactive” application, properly so 
called. Such application would be truly retroactive only 
if, in the case involved, the question of attorneys’ fees had 
been litigated and all appeals exhausted before Section 
718 became effective. See, e.g\, Williams v. Kimbrough,



4

415 F.2d 874 (5th Cir. 1969), cert, denied 396 U.S. 1061 
(1970).2 Whether a final order regarding legal fees could 
be reopened because of Section 718 is a question not pre­
sented in the instant case, and which this Court is not 
required to decide.

Respondents suggest there may be a substantial number 
of ongoing school desegregation cases in which the ques­
tion of legal fees has never been resolved, and they specu­
late that in some of these cases it might be unfair to 
award counsel fees. Respondents’ Brief, pp. 20-30. The 
district courts, however, have ample authority to deal with 
any such problem. Attorneys’ fees under Section 718 may 
be denied if “special circumstances would render such an 
award unjust”, Northcross v. Board of Education of Mem­
phis, 412 U.S. 427, 428 (1973), and a court of equity has 
similar discretion where legal fees would otherwise be 
appropriate for a private attorney general or under Hall 
v. Cole, 412 U.S. 1 (1973). In the instant case, however, 
the District Court expressly held there were no special 
circumstances which might render unjust an award of legal 
fees. 140 a.

II

A majority of the Court of Appeals below held Section 
718 inapplicable to the instant case on the alternative 
ground that it was not awarded “upon the entry of a final 
order” against the Respondents, 187a-188a. The error of 
this holding was dealt with in Petitioners’ Brief, pp. 10-11. 
Respondents, apparently recognizing that the position of 
the Court of Appeals is inconsistent with the language of

2 Similarly, Thorpe would have been a retroactive application, 
not if Mrs. Thorpe had been evicted before this Court’s decision, 
but only if all appeals had been exhausted and certiorari denied 
before the HUD circular was issued.



5

Section 718 and the facts of this case, have abandoned 
that position and declined to offer any argument in sup­
port of this aspect of the Fourth Circuit’s opinion.

Ill

Respondents do not seriously contest Petitioners’ argu­
ment that, under Hall v. Cole, 412 U.S. 1 (1973), a plaintiff 
who successfully sues to end unlawful or unconstitutional 
government action should in general have his counsel fees 
paid by the defendant if the lawsuit conferred a signifi­
cant benefit upon the public at large or upon the govern­
ment itself. See Petitioners’ Brief, pp. 21-28. Similarly, 
Respondents do not dispute Petitioners’ contention that 
the defendant should pay the legal fees of a successful 
plaintiff where the litigation served to vindicate important 
congressional or constitutional policies. See Petitioners’ 
Brief, pp. 28-34. While tacitly conceding that counsel fees 
should generally be awarded in successful civil rights liti­
gation, Respondents urge that an exception should be made 
for school desegregation cases. Respondents argue that 
this Court should adopt, in litigation enforcing the com­
mands of Brown v. Board of Education, 347 U.S. 483 
(1954), a special rule “more restrictive than might other­
wise be appropriate in other suits brought under Section 
1983.” Respondents’ Brief, p. 21.

It is difficult to understand why school boards which per­
sist in defiance of the Constitution until directed to desist 
by the federal courts should be exempted from paying the 
legal fees of the victims of that unlawful conduct, espe­
cially when all other state and local agencies must pay such 
fees in similar circumstances. The affirmative obligation 
of school officials to devise effective methods of desegre­
gation is no new development; eighteen years ago this



6

Court declared that school officials were responsible for 
“solving” the practical problems of desegregation, Brown 
v. Board of Education of Topeka, 349 U.S. 294, 299 (1954), 
and eight years ago in this very case this Court declared 
that “[djelays in desegregating school systems are no 
longer tolerable.” Bradley v. School Board of Richmond, 
382 U.S. 103, 105 (1965). See also Alexander v. Holmes 
County Board of Education, 396 U.S. 19, 20 (1969). Neither 
can it be asserted that the rights involved in these oases 
are relatively unimportant; on the contrary, the stigma 
of a second-class segregated education is certain to stunt 
the intellectual and spiritual development of black students 
“in a way unlikely to be undone.” Brown v. Board of Edu­
cation, 347 U.S. 483, 494 (1954). Nor are school desegrega­
tion cases so easy to litigate or so short of duration as to 
render legal fees unnecessary; almost two decades of ex­
perience under Brown has shown all too clearly that such 
litigation is often fiercely contested and that adequate 
relief is often won only after years of effort. Of all types 
of civil rights litigation in which legal fees might be sought 
under Hall v. Cole or the private attorney-general theory, 
the claim for such fees is undoubtedly strongest in a case 
such as this.

Alternatively, Respondent urges that even if Hall v. Cole 
and the private attorney general theory are applicable to 
school litigation, it would not be “wise” for this Court to so 
hold since certain future school cases will be controlled by 
Section 718. Respondents’ Brief, pp. 26-30. This litigation 
presents a case or controversy, and unless legal fees are 
awarded on some other basis the applicability of Hall v. 
Cole and the private attorney general standard must be 
considered and decided. Certiorari was appropriate in this 
case because of the conflict between the opinion of the 
Fourth Circuit and eleven other lower court decisions



7

regarding the private attorney general rule. Petition for 
Writ of Certiorari, pp. 18-27. That conflict should not con­
tinue to languish unresolved. Respondents would have this 
Court conclude that, while Petitioners might have been 
entitled to legal fees if Section 718 had not been enacted, 
Congress’ decision in 1972 to assure the award of legal fees 
should have the effect of preventing the award of fees in 
all cases arising before Section 718 became effective. Such 
a restrictive result would hardly be consistent with the 
purposes of Section 718.

IV

Respondents urge throughout their brief that the award 
of counsel fees in this case, or in general, is unfair be­
cause of “uncertainty” which existed prior to this Court’s 
decision in Swann v. Charlotte-MecJclenburg Board of Ed- 
cation, 402 U.S. 1 (1971). Petitioners maintain that any 
such uncertainty is irrelevant to the award of fees in this 
or any other case. Even if it were relevant, whether a 
particular school board’s conduct was the result of any 
uncertainty, or due to other causes, is a question of fact 
peculiar to each case. There is nothing in the record in 
this case to indicate that the school board failed to act 
for two years after Green v. County School Board of New 
Kent County, 391 U.S. 430 (1968) because of any such 
uncertainty. There is nothing in the record in this case 
to indicate that, after the Fourth Circuit’s decision in 
Swann, the school board continued to propose unaccept­
able plans because of uncertainty as to whether this Court 
would grant certiorari in Swann.

It was never claimed in the District Court, and no court 
has ever held, that the actual reason the school board took 
no action in the fact of Green in 1968 was that it had no



8

complaints or did not know what to do. The school hoard 
never asserted that it spent the 22 months after Green 
trying to formulate a new desegregation plan; once liti­
gation commenced, the board was able to devise its first 
proposed plan in 41 days, and its second in 27. On the 
contrary, as late as March, 1970 the school board was 
still equivocating as to the meaning of Green, p. 115a, 
and the District Court found that the general attitude of 
the authorities was that they would take no steps to estab­
lish a unitary school system except under court order. 
P. 133a, see also p. 114a n.l. Whatever “uncertainties” 
existed before or after Swann were as to the tools which 
the courts could use when state officials failed to comply 
with the law. The tools available to school officials them­
selves are limited only by their imagination and practi­
cal considerations; school boards have always been free 
to adopt any techniques which worked, even though some 
might be beyond the power of the federal courts to order. 
See Swann v. CJiarlotte-Mecklenburg Board of Education, 
402 U.S. 1, 16 (1971) ; McDaniel v. Barresi, 402 U.S. 39 
(1971). The goal to be 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 decision not to try to achieve such a system at all.



9

CONCLUSION

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

Respectfully submitted,

J ack  G-reenberg  
J am es M. N abrit , III 
N orman  J .  C h a c h k in  
C harles S t e p h e n  R alston  
E ric  S c h n a p p e r

10 Columbus Circle 
New York, New York 10019

W illia m  T . C o lem a n , J r .

Fidelity-Philadelphia Trust Bldg. 
Philadelphia, Pa. 19110

Louis R. L ucas

525 Commerce Title Building 
Memphis, Tennessee 38103

J am es  R. Ol p h in

214 East Clay Street 
Richmond, Virginia. 23219

M. R a l ph  P age

420 North First Street 
Richmond, Virginia 23219

Counsel for Petitioners



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