Kelly v. Guinn Answering Brief of Plaintiffs-Appellees and Opening Brief of Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NO. 71-2332
HERBERT E. KELLY, SR., et al.,

Plaintiffs-Appellees, 
vs.

KENNETH GUINN, Supt. of Schools, 
Clark County School District, 
et al.,

Defendants-Appellants.

NO. 71-2340
HERBERT E. KELLY, SR., et al., 

Plaintiffs-Appellees, 
vs.

KENNETH GUINN, Supt. of Schools 
Clark County School District, 
et al.,

Defendants-Appellants

NO. 71-2422
HERBERT E. KELLY, SR., et al.,

Plaintiffs-Appellants,
vs.

KENNETH GUINN, Supt. of Schools, 
Clark County School District, et 
al. ,

Defendants-Appellants. 
[Cross-Appeals]

Appeal from the United States District Court 
for the District of Nevada

ANSWERING BRIEF OF PLAINTIFFS-APPELLEES
and

OPENING BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

CHARLES L. KELLAR
1042 West Owens Avenue 
Las Vegas, Nevada 89106

Attorneys for Plaintiffs, as 
Appellees and Appellants



INDEX

ISSUES PRESENTED FOR REVIEW
Page

STATEMENT OF THE CASE....
argument

I The Clark County School District Is 
Constitutionally Obligated To 
Desegregate Its School System___ 7

II The Plan Approved By The District 
Court Discriminates Against Black 
Students And Should Have Been 
Rejected.......

Ill The District Court Should Have Awarded 
Attorneys' Fees And Litigation Expenses 
To The Plaintiffs........

IV The District Court's Stay Order Was 
Improvidently Granted And Sould Be 
Immediately Vacated....

CONCLUSION........

TABLE OF CASES
Adams v. School District No. 5, Orangeburg. 

444 F.2d 99 (4th Cir. 1971) (en banc)(per 
curiam), aff'd Green v. School Board of 
Roanoke, 316 F. Supp. 6 (W.D. Va. 1970) 

Alexander v. Holmes County Board of Education 396 U.S. 19 (1969) . .
19

Bell v. School City of Gary, 324 F.2d 209
(7th Cir. 1963), cert, denied 377 U.S. 924 (1964) 

Bell v. West Point Municipal Separate School 
District, 446 F.2d 1362 (5th Cir. 1971)

Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1^70) 
438 F.2d 945 (6th Cir. 1971), civ. No. 35257 
(E.D. Mich., Sept. 27, 1971)

32,33

9n
19

1 On 11 17Bradley v. School Board of Richmond, Civ. No. 
3353-R (E.D. Va., May 26, 1971)

» J- '-'119 1 1 , 1 j 
10 11

Br?l965)V* ^C'*100 '̂ ®oar<̂  °f Richmond, 382 U.S. 103
► <3 v | J 1

Brewer v. School Board of Norfolk, Va., 397 F 2d 37 (4th Cir. 1968)......
1 J
lOn, 1 1

1



Brice v. Landis, 314 F. Supp. 974 (N.D. Calif. 1969)... 17
Briggs v. Elliott, 132 F. Supp. 776 (E.D. S.C. 1955)... 9n
Brown v. Board of Education, 347 U.S. 483 (1954)...... 7,9
Brown v. Board of Education, 349 U.S. 294............. 16
Carr v. Montgomery County Board of Education,

429 F. 2d 382 (5th Cir. 1970)........................  19
Carter v. West Feliciana Parish School Board,

396 U.S. 226 (1969), 396 U.S. 290 (1970)............  2,32,34
Chambers v. Iredell County Board of Education,

423 F. 2d 613 (4th Cir. 1970).......................  19
Clark v. Board of Education of Little Rock,
426 F.2d 1035 (8th Cir. 1970), No. 71-1409
(8th Cir., Sept. 10, 1971) (en banc) (per curiam).... lOn,18 

Cleveland v. Second National Bank & Trust Co.,
149 F.2d 466 (6th Cir.), cert, denied 326 U.S. 777
(1945)..............................................  23

Crawford v. Board of Education of Los Angeles,
No. 822-854 (Super. Ct. Cal., Jan. 11, 1970)........  21,27,30

Davis v. Board of School Comm'rs of Mobile,
402 U.S. 33 (1971)..................................  15

Davis v. School District of City of Pontiac,
443 F.2d 573 (6th Cir. 1971), cert, denied
___U.S.___ (Oct. 26, 1971)..........................  10, lOn, 11,

12,14Deal v. Cincinnati Board of Education, 369 F.2d 55
(6th Cir. 1966), cert, denied 389 U.S. 847 (1967)___ 9n,lOn

Dolgow v. Anderson, 43 F.R.D. 472 (E.D. N.Y. 1968).... 29
Dowell v. Board of Education of Oklahoma City,

396 U.S. 269 (1969)................................  33
Downs v. Board of Education of Kansas City,

336 F.2d 988 (10th Cir. 1964), cert, denied
380 U.S. 914 (1965)................................  9n

Eisen v. Carlisle & Jacquelin, 391 F.2d 555
(2d Cir. 1968).....................................  29

Felder v. Harnett County Board of Education,
409 F. 2d 1070 (4th Cir. 1969).......................  19

Gautreaux v. Chicago Housing Authority, 296 F. Supp.
907 (N.D. 111. 1969), aff'd 436 F.2d 306 (7th Cir.
1970), cert, denied 402 U.S. 922 (1971).............  4n

Gilbert v. Hoisting & Portable Engineers, 237 Ore.
139, 390 P. 2d 320 (1964)............................  29

Gordon v. Jefferson Davis Parish School Board,
446 F. 2d 266 (5th Cir. 1971)........................  19

Green v. County School Board of New Kent County, Va.,
391 U.S. 430 (1968).................................  9n,13,15,16

Guey Heung Lee v. David Johnson, No.A-203
(O.T. 1971) (Aug. 25, 1971).........................  34

ii

Page



Page
Kammond v. Housing Authority & Urban Renewal Agency,

328 F. Supp. 586 (D. Ore. 1971)............ y Y' ,Q
Haney v. Board of Education, 429 F.2d 364.. .......  -.p'
H6409 F ^ d ^ S ^ ^ t h  ”Uni?ipal SeParate School * D i s t '

(1969)2d 682 5th Clr')' cert- denied 396 U.S. 940
Hi^  v- Frankiin c°unty Board of Education, 390 F.2d 10n,ll583 (6th Cir. 1968).................... [ 2?

Johnson v. San Francisco Unified School Dist civ
No. C-70-1331 SAW (N.D. Cal., July 9, I97v[. 14

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)......  4n,23,26,28
Keile£ Y: Metropolitan County Board of Educ. of

Nashville, 436 F.2d 856 (6th Cir. 1970)... 14
U969) SCh°01 DiSt* N°* lf Denver' 396 U.S. 1215.....

k Y d ? 34..................................  14
Le ĉZil Macon County Board of Education, No. 30154 (5th Cir., June 29, 1971)___
Lel5«- ,:a"°n,?OU?tY B°ard °f Education^ *267*f ! Supp!* *"*458 (M.D. Ala.), aff'd 389 U.S. 215 (1967) ,,
Le%Z: B°Uthf^n ?OIT,e Sites Corp. , 429 F. 2d 290.........(5th Cir. 1970)........................... • • • ......... . • . . . 26

Ml(5th Cir?IT11970?nt EntGrprises' Inc*» 426 F.2d 534
Mills v. Electric Auto-Lite *Co.’ ,’ ‘ 396 ’u.*S.”  375 “(1970) 2 2 ^ 2 7

3??e,w'nB°^rd °f Comm,rs of Jackson, 244 F. Supp. '2?353 (W.D. Tenn. 1965)___ ^

........ ................... 8n
Ne?nln y* Jtatesville City Board of Educ., 418 F.2d
M ■. Clr* 1969) (en banc) (ger curiam).......  -y\Newbern v Lake Lorelei, Inc., 308^7 Tupp. 407,

1 Race Rel. L. Survey 185 (S.D. Ohio 1968).......  ?6
Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968)’* 24 27 28Norris v. Alabama, 294 U.S. 487 (1935) '’ * 24,27,28,31
Northcross v Board of Educ. of the Me^phi^’c i ^ .......

Schools, 397 U.S. 232 (1970)........m..... Y
N°333Cf°?H °f Education of City * of Memphis *333 F. 2d 661 (6th Cir. 1964).................  20
Offerman v. Nitowski, 378 F.2d 22 (2d Cir. 1967).......  gn
Parham v. Southwestern Bell Tel. Co., 433 F 2d 421 (8th Cir. 1970).......
Pina v. Homsi, 1 Race Rel. L. ’S u i ^ '  is**(d ! ' Mass .”  1969) ! 26n
R° ^ \ V* Atlantic Coast Line R. R. , 186 F.2d 473(4th cir. 1951)............... '...... .. 2g

i ii



Page
Rolfe v. County Board of Educ. 

282 F. Supp. 194 (E.D. Tenn. 
F* 2d 77 (6th Cir. 1968)....

of Lincoln County, 
1966), affd 391

Serrano v. Priest, Cal.2d , p
---' 96 Cal- Rptr. 601 (1971) . .777. .777. . ’ ---'

Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970)..’
V* Wllliani E- Bookhultz & Sons, Inc.419 F. 2d 720 (D.C. Cir. 1969)...... '

Sims v. Georgia, 389 U.S. 404 (1967)___!
J enth S c h ° o 1 District of Wilson County* 433 F. 2d 587 (6th Cir. 1970)..............  Y

Smith v. St. Tammany Parish School Board
302 F. Supp. 106 (E.D. La. 1969).......

Spangier v. Pasadena City Board of EducatioA......
311 F. Supp. 501 (C.D. Cal. 1970)........ .

Sprague v. Ticonic National Bank, 307 U.S. 161 
Sullivan v. Little Hunting Park. Inc 

396 U.S. 299 (1969).............. ’ [
SW402 u:s?hr u 9 7V ecklenburg Bo^ a ’°f*Educ:;

(1939)..

Swann v. Charlotte-Mecklenburg Board of Educ., 
328 F. Supp. 1346 (W.D. N.C. 1971)......

Terry v. Elmwood Cemetery, Civ. No. 69-490
(N.D. Ala., Jan. 29, 1970)...........

Terry v. Elmwood Cemetery, 307 F. Supp. 369*** (N.D. Ala. 1969).................
Tracy v. Robbins, 40 F.R.D. 108 * (d ! *S.*c ! * 1966)
Un^ o d States v- Board of Education, Tulsa,429 F.2d 1253 (10th Cir. 1970)...........
United States v. Board of School Comm’rs of 

Indianapolis, civ. No. IP-68-C-225 (S D ind Aug. 18, 1971)..................

uni^ed States V. School Dist. NO. 151,"286 *F** Su d d  * 
1 1 1 -  1 9 6 7 ) ,  a f f d  4 04  F . 2d U 2 5  ( T t h ^

remand 301 F* Supp- 201 (n -d - in.1969), affd 432 F.2d 1147 (7th Cir ' 
denied, 402 U.S. 943 (1971)..... 1970), cert,

Vaughan v. Atkinson, 369 U.S. 527 (1962)......
Wall v. Stanly County Board of Educ., 378 F 2d 275 (4th Cir. 1967)..............

27

8
4
24n
14
lOn
19
11,12,13,
14,18 
23,27
27
7,8n,lOn,12, 
15n,16,32
18

26n
26n
27

9n,lOn,11

9n
12

9n,lOn,12, 
13

24n,27

27

IV



Statutes:
Paqe

42 U.S.C. $ 1982....................
26,27

42 U.S.C. § 1983................
28

42 U.S.C. §2000a-3(b)................

V



IN THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

NO. 71-2332
HERBERT E. KELLY, SR., et al..

Plaintiffs-Appellees,
vs.

NO. 71-2340
HERBERT E. KELLY, SR., et al..

Plaintiffs-Appellees,
vs.

KENNETH GUINN, Supt. of Schools, 
Clark County School District, et al.,

KENNETH GUINN, Supt. of Schools, 
Clark County School District et al.,

Defendants-Appellants. Defendants-Appellants.

NO. 71-2422
HERBERT E. KELLY, SR., et al.,

Plaintiffs-Appellants.
vs.

KENNETH GUINN, Supt. of Schools, 
Clark County School District, et al.,

De fendants-Appel1ants. 
[Cross-Appeals]

Appeal from the United States District Court 
for the District of Nevada

ANSWERING BRIEF OF PLAINTIFFS-APPELLEES
and

OPENING BRIEF FOR PLAINTIFFS-APPELLANTS

ISSUES PRESENTED FOR REVIEW 
On the School Board*s Appeals

The school board states the issue before the Court as
follows: "Whether Defendants-Appellants have a Constitutional



Duty to alleviate racial imbalance in the six Westside schools 
of Clark County where the imbalance was not caused by any act 
of discrimination on their part." We find this statement 
unacceptable, assuming as it does the existence of facts contrary 
to those found by the district court. Considered as an abstract 
legal question, it is equally unsatisfactory because there is no
necessity of deciding that abstract issue in the context of this 
case.

The more appropriate question on this appeal is —  whether 
the district court correctly required the Clark County School 
District to take affirmative steps to desegregate where the past 
actions of the school authorities and other governmental agencies 
had resulted in the containment of most of the school district's 
black elementary students to six westside Las Vegas schools.

On the Plaintiffs' Appeal

1. Whether the district court should have disapproved the 
school district's "Sixth Grade Center" plan of desegregation 
because it placed the burden of transportation disproportionately 
upon the younger black students.

2. Whether the district court abused its discretion in
to tax costs in favor of the plaintiffs or to award them 

attorneys' fees and costs of litigation.
3. Whether the district court's stay of its own order 

violates Alexander v. Holmes County Bd. of Educ.. 396 U.S. 19 
(1969) and Carter v. West Feliciana Parish School Board, 396 U.S. 
226 (1969), 396 U.S. 290 (1970) and should, therefore, be imme—

-2-



diately vacated.

STATEMENT OF THE CASE
The school board’s statement of the case adequately sets 

forth its procedural history.
This lawsuit was brought by Negro children and their parents 

living in Clark County (Las Vegas), Nevada in order to bring
1/about the desegregation of the public schools of the county (R.1-14). 

At the time the lawsuit was filed, some 4,978 black students 
attended six westside Las Vegas elementary schools, each of which 
was over 95% black in student enrollment (10/68 Tr. 199,388,412;
DX 17) and each of which had a faculty disproportionately black 
in comparison to other schools in the system (DX 16). The students 
attending these schools were, on the average, a year behind the 
students attending predominantly white Las Vegas schools in 
achievement test scores (10/68 Tr. 413; 5/69 Tr. 48).

At the secondary level there was no school in which similar 
numbers of black students were concentrated. A predominantly 
black westside junior high school had been closed in 1956 (10/68 
Tr. 200) and its students dispersed to other schools in the 
system (10/68 Tr. 150-51). At that time as well, some of the 
now-black westside elementary schools had significantly larger 
white enrollments (e.g., 10/68 Tr. 200). However, although the 
white and black school population of the district subsequently

—' Citations are to the original record before this Court. 
Transcript citations will be identified by page and date of 
hearing.

- 3 -



grew about the same rate, black students at the elementary level
were increasingly isolated in heavily black westside elementary 
schools.

There were, of course, a variety of factors which brought 
about this result. Housing in the Las Vegas area was tightly

2 /segregated and Negroes were generally confined to the west side, 
a fact known to the school authorities (10/68 Tr. 73,220,258,451; 
8/70 Tr. 83). Yet the district closed schools on the fringe areas 
of the westside Negro community (6/71 Tr. 100-01) and replaced 
them with new elementary schools built in the heart of black areas 
(10/68 Tr. 201; 5/69 Tr. 302). At the same time, federally 
assisted low-income housing projects on the west side swelled 
the impaction of black residents (e.g.. 10/68 Tr. 251,314-15;
8/70 Tr. 160; cf. 8/70 Tr. 50); it has been only very recently 
that such projects have begun to be located outside the tradi­
tionally black westside area (6/71 Tr. 70-71^

The school district claims to have been following a "neigh­
borhood school policy" in these matters, merely responding to 
the demands of local growth in determining both its site locations 
and its school attendance policies. However, it is significant 
that at the time of the hearings there were only six "neighborhood" 
schools m  the Las Vegas area to which no students were bused;

2 /  ~ ~ ----------------------------—

Nevada passed an open housing statute in 1970 (6/71 Tr 48) 
two years after the federal Fair Housing Act of 1968 went into

*lso Jones v. Alfred H. Mayer Co., 392 U.S. 409 .1968). 
But the effects of racially discriminatory housing practices are longstanding. See 10/68 Tr. 221.

tI* ?-aUtff3UX V* -Chica9° Housing Auth. . 296 F. Supp. 907 (N.D.
I I ’ ei36 F'2d 306 (7th Cir- 1970)' Cert* denied 4°2u.B. 922 (1971); Shannon v. HUD. 436 F.2d 809 (3d Cir. 1970).

-4-



five of these were black, westside elementary schools (6/71 Tr. 
237,239). Under the district's attendance plan, considerable 
numbers of white students were transported to school buildings 
other than those closest to them (5/69 Tr. 121; 8/70 Tr. 221;
6/71 Tr. 237), including white students being transported to 
white schools and by-passing one of the black west side schools 
(5/69 Tr. 96,122-23; 6/71 Tr. 301; see 10/68 Tr. 428-29).

The school district says it did not take the racial effect 
of its school construction policies into account until 1966 when 
it determined to build no more black schools on the west side 
(10/68 Tr. 330,354); however, its new facilities have generally 
not been filled to capacity when they open (10/68 Tr. 163; 8/70 
Tr. 394) and school construction generates increased settlement 
in the immediate area (10/68 Tr. 372,379; 5/69 Tr. 258). In the 
context of residential segregation in Las Vegas, therefore,the 
district's construction policies made the situation worse. As 
recently as 1969, the district was building a new school in a 
white suburb to relieve overcrowding at nearby white schools
(5/69 Tr. 107-08) although black schools were underutilized (10/68 
Tr. 143,168-69).

The school district also helped to create and maintain the 
pattern of racially identifiable schools by restricting the trans­
fer rights of black students at the westside schools (10/68 Tr. 
80,254) and by failing to utilize yearly attendance zone changes

4 / -------------
- Jo Mackey Elementary opened in 1965 and C.V.T. Gilbert in 1966 (10/68 Tr. 142,151).

-5-



to increase desegregation (compare 10/68 Tr.163,8/70 Tr.367 with 
6/71 Tr. 301). Traditionally it has assigned its few black 
elementary teachers to the westside schools (e.g.. R.115); the 
district had never assigned a black teacher to a white school 
before 1969 (10/68 Tr. 438). The school district recently has 
undertaken an extensive renovation program at the westside schools 
m  order to "make them equal to other schools in the District 
(10/68 Tr. 354; 8/70 Tr. 229).

The district court ruled in 1968 that Clark County was 
constitutionally obligated to desegregate the westside school!^ 
During the 1969-70 and 1970-71 school years, with the lower 
court's sanction, the school district experimented with a volun­
tary choice desegregation plan under which black students could 
transfer from regular westside elementary schools and white 
students could transfer to reorganized "prestige" schools on the 
west side. The district court concluded that this plan would not 
work and ordered the board to propose a plan to ensure the 
desegregation of the westside schools in 1971-72 (R.512-18)

The new plan was consistent with the school district's 
approach throughout the litigation of abandoning the westside 
schools (10/68 Tr. 388) rather than sending white students to them 
(Id. at 389) and, in general, putting the burden of desegregation 
(8/70 Tr. 328-29,353) upon the black students who sought by this 
litigation to vindicate their constitutional rights (8/70 Tr. 175,

The underlying theory of the district court's decision discussed in the Argument, infra. is

-6-



198). The district's plan would cluster each westside school 
with white elementaries, with the westside school becoming a 
sixth grade attendance center for the group. The effect of this 
plan is that only sixth grade white students are bused, while 
all black students in the lower grades, including all kindergarten 
children as young as 4*3 years old, are bused (6/71 Tr. 153). This 
plan was adopted by a school board which proposed to build 
"neighborhood" schools for whites, but not for blacks, if it had 
to desegregate (10/68 Tr. 388; 8/70 Tr. 227; 6/71 Tr. 70,110).

Following the decision of the United States Supreme Court 
Swann v. Charlotte—Mecklenburg Bd. of Educ.. 402 U.S. 1 (1971), 

the district court granted a stay of implementation pending the 
appeal to this Court (R.652-53).

ARGUMENT
I

The Clark County School District is Consti­
tutionally Obligated To Desegregate Its 
School System.

In Brown v. Board of Education. 347 U.S. 483 (1954), the 
Supreme Court said that "[tjoday, education is perhaps the most 
important function of state and local governments. Compulsory 
school attendance laws and the great expenditures for education 
both demonstrate our recognition of the importance of education
to our democratic society --- In these days, it is doubtful
that any child may reasonably be expected to succeed in life if 
he is denied the opportunity of an education. Such an opportunity, 
where the state has undertaken to provide it, is a right which 
must be made available to all on equal terms." id. at 4 9 3 .

-7-



The controversy presently before this Court is concerned with the 
obligation of the Clark County School District to make available 
this fundamental right, see Serrano v. Priest. Cal.2d

--- P*2d ---'---' 96 Cal- RPtr. 601, 615-19 (1971), to its Negro
students on equal terms.

The important questions raised in this litigation must be 
resolved by careful analysis rather than by reference to ambiguous, 
if currently popular, terms such as "de jure versus de facto" 
segregation. Whatever the term "de facto" may mean, this case 
involves a school district in which segregation has been brought 
about and maintained by regular, systematic and deliberate choice 
of the school authorities. And, while the district court may 
have labelled the school system's stubborn adherence to a "neigh­
borhood school policy" in the black westside schools (R.513) or 
its deliberate construction of new "neighborhood" (and consequently 
black) schools in that area (R.514) "de facto segregation^ (10/
68 Tr. 501) because neither had Nevada law ever required segrega­
tion nor had the school district ever openly advocated it as 
formal policy, the lower court's order was specifically grounded 
upon the official action of the school district in maintaining 
and aggravating segregation long after Brown v. Board of Education
(R.514).

1 7 n ^ i ?ya^  * * V‘ lotte~Mecklenburg Bd. of Educ. . 402 U.S.
segregation" 6 Supreme Court referred to "so-called 'de facto* 1,

V- . Moses V. Washington Parish School Board. 276 f . .<?«««834, 847 (E.D. La. 1967). ----------------  PP

-8-



The defendants' Brief recognizes the findings of the 
district court (p. 16) but goes on to make the astounding 
assertion that Brown v. Board of Education is inapplicable to 
Las Vegas because "the District Court did not hold that the 
Appellants maintained a state dual school system, or had a past 
history of state-imposed segregation." But see R. 514 (lines 
14—22). Surely this is to exalt form above substance.

The heart of the school board's argument is its claim that 
its actions have in no way been responsible for the identifiably 
black character of the westside elementary schools;. The evidence

g / ~
The cases cited by defendants are not helpful in resolving 

this controversy. Offer-man v. Nitkowski. 378 F.2d 22 (2d Cir.
1967) dealt with an attack upon a school district's voluntarily 
adopted desegregation plan; the Court of Appeals upheld the 
school district's power to implement it, even if the board had 
no constitutional obligation to remedy the existing segregation.
Id. at 24. The Court did not hold that the school system had no 
such obligation.

As to Bell v. School City of Gary. 324 F.2d 209 (7th Cir. 
1963), cert, denied, 377 U.S. 924 (1964) and Downs v. Board of 
Education, 336 F.2d 988 (10th Cir. 1964), cert, denied 380 U.S.
914 (1965), both cases concerned previously dual school systems 
and in each the Courts of AppeaLs recognized no affirmative duty 
to desegregate, applying Briggs v. Elliott. 132 F. Supp. 776 
(E.D. S.C. 1955). These cases were undermined by the Supreme 
Court's recognition of an affirmative duty to overcome past 
segregation in Green v. County School Board. 391 U.S. 430 (1968). 
Compare Bell with United States v. School District No. 151. 286 
F. Supp. 786 (N.D. 111. 1967), aff'd 404 F.2d 1125 (7th Cir. 1968), 
on remand 301 F. Supp. 201 (N.D. 111. 1969), aff'd 432 F.2d 1147 
(7th Cir. 1970), cert, denied 402 U.S. 943 (1971); United States 
v. Board of School Comm'rs of Indianapolis, Civ. No. IP-68-C-225 
(S.D. Ind., August 18, 1971); compare Downs with United States 
v. Board of Education. 429 F.2d 1253 (10th Cir. 1970).

Deal v. Cincinnati Board of Educ.. 369 F.2d 55 (6th Cir.
1966), cert, denied 389 U.S. 847 (1967), aff'd after remand 419 
F.2d 1387 (6th Cir. 1969), cert, denied 402 U.S. 962 (1971) did 
involve a school district without an admitted recent policy of 
segregation. And the Court of Appeals' opinions do contain the 
language so extensively quoted in defendants' brief. And the

-9-



Shows, however, that the Clark County School District has done 
precisely those things which impose upon school boards the affirma­
tive obligation to disestablish the resultant school segregation.

Clark County's application of the "neighborhood school" 
policy has been formalistic. Five of its six "neighborhood 
schools" incorporate existing residential segregation and contain 
black students in segregated elementary schools. Justification 
of the segregated attendance patterns requires inconsistent appli­
cation of the "neighborhood school" principle. See Davis v.

8/ cont'd
Court of Appeals did announce various legal rulings with which 

ir\ y ig0r0US disagreement-such as the notion that the school authorities need not take remedial action to eliminate 
segregation produced by other agencies of the State— the vJry 
issue reserved m  Swann, 402 U.S. at 23. (We add, however, that 
we are not concerned with that issue here because the record 
amply reveals the participation of the school authorities in
llter^i —  BUt SVGn — al has been significantly weakened by 
309 ? Sun^10? ^  ,£°npare gJ*vis v- School District of Pontiac.734 (E*D * Mich. 1970), aff'd 443 F.2d 573 (6th Cir )
4J3 F tTetl W h UAS* ^ ? Ct* 26' 1971)7 Bradley v. Miiliken ' 27, 1971) 1970), Civ. No. 3525~(E.D. Mich., Sept.

The Courts of Appeals are in agreement that the Consti-
co^st?uctioi°ihteh ^  3 pattern of attendance zoning and school into ^ incorporates racial residential segregation
F 2d 37 SY^  Brewer v. School Board of Norfolk. 397
Schoo^7n-4!h - ir‘̂ n 68); Henry v- Clarksdale Municipal Separate 
Ifb n 9 ^ ?  c? ' F.2d~582 (bth Cir.), cert, denied 396 U.S.
F 2d SO? 9 ra~V^i,V* Te-n!:!l/<S'? h ° ° 1 Di5trict of Wilson County. 433 F.2d 587, 589 (6th Cir.1970)7 Davis v. School District of
Pontiac, supra? United States v. School District No. 15lT~supra-
Cir' 197of°aNo °7 lE^ n o t^Q^°f ----tle R°Ck' 426 F'2d 1035 "(StiT'7l71409^ 8th Cir., Sept. 10, 1971)? United States
L  L r n t  0n| 29 F-2d 1253 {10th Cir* 197°T7 and the---

1 a9Plees' See Swarm v‘ Charlotte-Mecklenburg Board of Education, 402 U.S. 1 at 7, 20-21 (1971). --- a------

-1C-



School District of Pontiac. 443 F.2d 573, 576 (6th Cir.), cert.
denied ___ U.S. ___ (Oct. 26, 1971). Moreover, the school
district entrenched the already existing residential segregation 
on the westside by superimposing upon it a system of compact, 
"neighborhood" attendance zones. See Brewer v. School Board of 
Norfolk, 397 F.2d 37, 41 (4th Cxr. 1968); Henry v. Clarksdale 
Municipal Separate School District. 409 F.2d 682, 687, 689 (5th 
Cir.), cert, denied 396 U.S. 940 (1969); Davis v. School District 
of Pontiac, supra; United States v. Board of Education. 429 F.2d 
1253, 1259 (10th Cir. 1970); Spangler v. Pasadena City Board of 
Education. 311 F. Supp. 501, 512 (C.D. Cal. 1970).

The school board is not relieved of responsibility for the
segregated schools it operates because agencies of the state and
federal governments (through, for example, the location of low-
income housing projects) and private discriminators have helped
to bring about the segregated residential pattern. As a Michigan
district court recently put it.

Pupil racial segregation in the Detroit Public 
School System and the residential racial segre­
gation resulting primarily from public and private 
racial discrimination are interdependent phenomena.
The affirmative obligation of the defendant Board 
has been and is to adopt and implement pupil 
assignment practices and policies that compensate 
for and avoid incorporation into the school system 
[of] the effects of residential racial segregation.
The Board's building upon housing segregation 
violates the Fourteenth Amendment.

Bradley v. Milliken. Civ. No. 35257 (E.D. Mich., Sept. 27, 1971)
(typewritten slip opinion at p. 24).

Again, the district court's finding that Clark County intensi­
fied school segregation by the construction of new elementary schools

-11-



on the westside supports the lower court's imposition upon the 
school district of the duty to disestablish that segregation. 
United States v. School District No. 151. 286 F. Supp. 786, 800 
(N.D. 1 1 1 . 1967), aff'd 404 F.2d 1125 (7th Cir. 1968); Spangler 
v. Pasadena City Board of Educ.. 311 F. Supp. 501, 517-19 (C.D. 
Cal. 1970); Davis v. School District of Pontiac, supra. 309 
F. Supp. at 741; cf. Lee v. Macon County Board of Educ.. 267 
F. Supp. 458, 472, 480 (M.D. Ala.), aff'd 389 U.S. 215 (1967); 
United States v. Montgomery County Board of Educ.. 395 U.S. 225, 
231 (1969); Swann v. Charlotte-Meeklenburg Board of Educ.. supra.

The Supreme Court in Swann, 402 U.S. at 21, described the
segregation-producing decisions of school boards in terms which
are very appropriate to Clark County:

In addition to the classic pattern of building 
schools specifically intended for Negro or white 
students, school authorities have sometimes, 
since Brown, closed schools which appeared likely 
to become racially mixed through changes in 
neighborhood residential patterns. This was 
sometimes accompanied by building new schools 
in the areas of white suburban expansion farthest 
from Negro population centers in order to main­
tain the separation of the races with a minimum 
departure from the formal principles of "neigh­borhood zoning."

Thus, the Clark County Board's construction policies and 
practices have added to and reinforced the pattern of segregation. 
Although there were vacant seats in the westside schools to which 
white students could have been assigned at lesser cost and with 
the achievement of integration, rhe board continued to expend 
substantial sums for construction of new schools designed to 
service areas of racial concentration. Cf. United States v.
School District No. 151. supra. 404 F.2d at 1132-33; Davis v.

-12-



Spangler v. Pasadena City Board of Educ.. supra. 311 F. Supp. at 
517-18. White students were bused past the westside schools to 
other white schools. Cf. Spangler v. Pasadena City Board of Educ.. 
supra. 311 F. Supp. at 507-08.

The school district in Clark County reinforced the racial 
identity of the westside schools by assigning a disproportionate 
number of its Negro faculty to westside schools. Such a policy 
of racial faculty assignment is an independent constitutional 
violation, Bradley v. School Board. 382 U.S. 103 (1965); Green 
v. County School Board, 391 U.S. 430 (1968); Spangler v. Pasadena 
City Board of Educ.. supra. 311 F. Supp. at 523, and it also 
creates an inference that other school board policies and prac­
tices which resulted in the racial separation of pupils were 
racially discriminatory. United States v. School District No.
Hi* 30 1 F. Supp. 201, 229-30 (N.D. 111. 1969).

It matters not whether defendants acted with any malicious 
intent in adopting the policies which have created and perpetuated 
school segregation in Las Vegas. It is sufficient that the effect 
of their acts was to create and maintain segregated, racially 
identifiable schools. "School districts are accountable for the 
natural, probable and foreseeable consequences of their policies 
and practices, and where racially identifiable schools are the 
result of such policies, the school authorities bear the burden 
of showing that such policies are based on educationally required, 
non-racial considerations." Bradley v. Milliken. Civ. No. 35257

School District of Pontiac, supra, 309 F. Supp. at 741-42;

(E.D. Mich., Sept. 27, 1970) (typewritten slip op. at p. 23).



An act is intentional, in the constitutional sense, if it was 
taken with reasonably foreseeable knowledge of the results.
Keyes v. School District No. 1, Denver, 303 F. Supp. 279 (D. Colo. 
1969); Spangler v. Pasadena City Board of Educ., supra; Davis v. 
School District of Pontiac, supra. Protestations of good faith 
and lack of intention to discriminate are insufficient to justify 
racially discriminatory results. C_f. Sims v. Georgia, 389 U.S. 
404, 407-08 (1967); Norris v. Alabama, 294 U.S. 487, 498 (1935). 
When the power to act is available, failure to take the necessary 
steps so as to negate or alleviate a harmful situation is as 
wrong as taking affirmative steps to advance the situation. Sins 
of omission can be as serious as sins of comission. Davis v. 
School District of Pontiac, supra, 309 F. Supp. at 741-42.

In sum, the record amply demonstrates that the Clark County 
School District has been intimately involved in the creation and 
perpetuation of the segregated westside Las Vegas schools. The 
district court recognized this participation in its December 2, 
1970 order, and we are frankly at a loss to understand why the 
court persists in referring to the matter as one involving "de 
facto" segregation. But, labels aside, we submit that the lower
court's order requiring Clark County to desegregate was entirely

9/
proper and ought to be affirmed.

---- --------------------------
The arguments we have made are supported by, in addition 

to the cited cases, Johnson v. San Francisco Unified School 
District, Civ. No. C-70-1331 SAW (N.D. Cal., July 9, 1971).
We have refrained from citing that decision only because it is 
presently on appeal to this Court, but that should not be taken 
as detracting from our wholehearted agreement with Judge Weigel's 
reasoning on these issues.

-14-



II
The Plan Approved By The District Court 
Discriminates Against Black Students And 
Should Have Been Rejected.

We have argued above that the district court correctly 
required the Clark County School District to submit and imple­
ment a desegregation plan. And we do not understand defendants 
to disagree— assuming the propriety of requiring desegregation 
at all— with the district court's conclusion after the experience 
of the 1969-70 and 1970-71 school years that voluntary desegre­
gation would not suffice to meet defendants' constitutional 
obligations. Green v. County School Board of New Kent County. 
supra; Alexander v. Holmes County Board of Educ.. 396 U.S. 19 
(1969); Davis v. Board of School Comm'rs of Mobile, 402 U.S. 33 
(1971). The district court was correct, then, in assessing
proposed plans in light of their likely effectiveness to end

10/heavily black enrollments at the westside elementary schools.
But the court's inquiry should also have encompassed the fairness 
of the mechanics of any desegregation plan; the court should have 
disapproved the school district's "Sixth Grade Center" Plan 
because it unfairly places almost the entire burden of desegre­
gation upon black students.

Under that plan, the six black westside elementary schools
would serve sixth graders from that area as well as white students

19/ The district court's concern only with a 50% ratio in these 
schools rather than commencing with the system-wide ratio of 
black students was, however, incorrect, Swann v. Charlotte-Meck- 
lenburg Bd. of Educ., supra, and in preparing plans on remand 
the direction should be to avoir! schools substantially dispro­
portionate to the system-wide racial enrollment. A 50% black 
school in Las Vegas is substantially disproportionate.

-15-



from other schools; only sixth grade white students would be 
transported for the purpose of integration but all elementary 
black students except sixth graders would be so transportelT^ 
Thus, the burden of transporting young children alluded to in 
Swarm, 402 U.S. at 31, falls only on the black students. And 
al± black students must leave the westside area for twelve of 
thirteen grades, while most white students stay in their "neigh­
borhoods" except for the sixth grade.

When the Supreme Court spoke in Brown v. Board of Education. 
349 U.S. 294, 300 (1955), of the need for school boards "to 
effect a transition to a racially nondiscriminatory system" and 
111 Gjreen v- School Board of New Kent County. 391 U.S. 430 (1968) 
of its being necessary "to convert to a unitary system in which 
racial discrimination would be eliminated root and branch," and 
in A.lexander v. Holmes County Board of Education. 396 U.S. 19 
(1969) of the requirement that school boards "no longer operate 
a dual system based on race or color" but rather "unitary school 
systems within which no person ls to be effectively excluded 
from any school because of race or color," it was talking not 
merely in terms of a result— desegregation— but also about a 
process. in Swann, when the Court mandated creation of unitary 
systems through the exercise of the equity power residing in the 
federal courts "to correct, by a balancing of the individual 
and collective interests, the condition that offends the Consti-

. -ala^  secondarY students are already all bused to schools outside the westside area.

-16-



tution," it envisioned situations in which not only the results, 
but also the means used by school boards to achieve those results 
would be free of discriminatory motive or effect with respect 
to the black community, its students and teachers. This concept 
certainly embodies the view that the black community should not, 
absent compelling circumstances, be made to bear an unequal 
burden in the desegregation process; nor should school boards 
make decisions in effecting desegregation which reflect a disdain 
and disrespect for the black community— decisions which assure 
blacks that their status as second-class citizens has not ended.

Most of the cases which have dealt with the issue have
involved the total closing of black facilities and the transfer
of their students to other schools. The district court articulated
the constitutional concerns in Brice v. Landis. 314 F. Supp. 974,
978 (N.D. Calif. 1969):

Where, however, the closing of an apparently 
suitable Negro school and transfer of its 
pupils back and forth to white schools without 
similar arrangements for white pupils, is not 
absolutely or reasonably necessary under the 
particular circumstances, consideration must 
be given to the fact that such a plan places 
the burden of desegregation entirely upon one racial group.
The minority children are placed in the posi­
tion of what may be described as second-class 
pupils. White pupils, realizing that they are 
permitted to attend their own neighborhood 
schools as usual, may come to regard themselves 
as "natives" and to resent the Negro children 
bussed into the white schools every school day 
as intruding "foreigners." it is in this 
respect that such a plan, when not reasonably 
required under the circumstances, becomes sub­
stantially discriminating in itself. This 
undesirable result will not be nearly so likely 
if the white children themselves realize that 
some of their number are also required to play 
the same role at Negro neighborhood schools.

-17-



Accord, Spangler v. Pasadena city Board of Education. 311 F. Supp.
at 524. These principles have, however, been applied to the
review of plans calling for the disproportionate busing of black
students. in Swann v. Charlotte-Mecklenburq Board of Education.
328 F. Supp. 1346 (W.D. N.C. 1971), the school board was not
permitted to amend its plan so as to make the black schools
(which had served the fifth and sixth grades) into sixth grade
centers because black students would thereby be disproportionately
bused and because the grade reduction was viewed as a prelude
to closing the black schools entirely. And in Clark v. Board
of Education of Little Rock. No. 71-1409 (8th Cir., Sept. 10,
1971) (en banc) (per curiam), the Court of Appeals recognized
the valid concerns of black students:

We note the plaintiffs’ objection that the plan 
fails to designate Mann, the present black high 
school, as a graduating high school. While we 
apree that the burden of integration must be 
shared by blacks and whites, we do not agree 
that the sharing of the burden at the secondary 
level, when considered as a whole, is so unequal 
as to require upsetting the District Court's plan .... [emphasis supplied]

(slip op. at p. 4). See also, Haney v. County Board of Education. 
429 F.2d 364, 371-72.

The Fifth Circuit has also condemned the burdening of black
students by closing black schools in order to avoid transporting
white students to them (compare 10/68 Tr. 389; 8/70 Tr. 175,198,
227,328-29,353; 6/71 Tr. 70):

Brown II, supra, calling for "a racially non- 
discriminatory school system," and its progeny 
require not only that past discriminatory 
practices be overcome by affirmative actions 
but also that new forms of discrimination not 
be set up in their place. Closing formerly

-18-



black school facilities for racial reasons 
would be such a prohibited form of discrimi­
nation. "Such a plan places the burden of 
desegregation upon one racial group." Brice 
v. Landis, N.D. Cal. 1969, 314 F. Supp. 947.
See Quarles v. Oxford Municipal Separate 
School District, N.D. Miss., January 7, 1970,
C.A . W.C. 6962-K.

Lee v, Macon County Board of Edge., No. 30154 (5th Cir., June 
29, 1971) (slip op. at p. 15) [footnote omitted]. Accord, Bell 
v. West Point Municipal Separate School District, 446 F.2d 1362 
(5th Cir. 1971); Gordon v. Jefferson Davis Parish School Board, 
446 F.2d 266 (5th Cir. 1971); see also, Smith v. St. Tammany 
Parish School Board, 302 F. Supp. 106, 108 (E.D. La. 1969).

To similar effect in the Fourth Circuit are Adams v. School 
District No. 5, Orangeburg, 444 F.2d 99 (4th Cir. 1971) (en 
banc) (per curiam), aff'g Green v. School Board of Roanoke, 316 
F. Supp. 6 (W.D. Va. 1970); Felder v. Harnett County Board of 
Education, 409 F.2d 1070, 1074 (4th Cir. 1969).

The cases which have approved black school closings have 
done so on the ground that the deteriorated physical condition 
of the buildings required their closing, so that black students 
bore no special burdens of desegregation thereby. E.g., Carr 
v. Montgomery County Board of Educ., 429 F.2d 382 (5th Cir. 1970) 
Chambers v. Iredell County Board of Education, 423 F.2d 613 
(4th Cir. 1970). There is nothing in this record which indicates 
that the westside elementary schools are only, or even particu­
larly, suited for use as all-sixth grade schools. Rather, the 
evidence clearly indicates that the school board's desire is to 
relieve the white community of the necessity to attend the for­
merly black schools any more than is absolutely necessary and to

-19-



continue the comfortable pattern of attending white "neighborhood" 
schools in segregated white neighborhoods as much as possible.
— * Northeross v. Board of Education of Memphis. 333 F.2d 661 
(6th Cir. 1964).

The district court should be instructed on remand to explore 
and approve feasible alternative desegregation plans which 
equitably distribute the burden of desegregation upon the white 
and black communities.

Ill
The District Court Should Have Awarded 
Attorneys' Fees And Litigation Expenses 
To The Plaintiffs.

The district court denied plaintiffs' motion for an award 
of attorneys' fees and taxation of costs and litigation expenses 
because it "is the professional responsibility of lawyers as 
members of the legal profession ... to donate time and services 
in cases of public importance." 6/71 Tr. 26. Without in any way 
deprecating the high ideals of public service by members of the 
bar, we suggest that the lower court was applying the wrong 
standard. Plaintiffs in this action are but nominal petitioners 
on behalf of all students. They could not and should not be

12/expected to finance these proceedings from their own resources. 
The investigation, research and presentation of expert and fact 
witnesses require the expenditure of tremendous amounts of time

1 2/ 7This Court has granted plaintiffs leave to proceed on this appeal jLn forma pauperis.

-20-



by capable counsel, aside from the actual trial hearings. To 
undertake to pay the reasonable value of the services rendered 
to date by experienced and diligent counsel is only within the 
financial ability of the rich.

These proceedings are equitable in nature and were made 
necessary by the board to compel it to perform the duties 
especially imposed upon it by law. Without the undertaking of 
this cause by counsel and without the allowance by this Court 
of reasonable compensation to them, plaintiffs and others of the 
class for whose benefit the proceeding was filed would be at 
the mercy of the defendant school board.

The board had at its command able and experienced lawyers 
compensated from public funds. Additionally, it used and made 
available to its counsel the abilities, education and skill of 
its staff— among the very persons enjoined by law to render 
and perform the duties imposed by law sought to be enforced by 
plaintiffs.

In these circumstances, the Court in Crawford v. Board of 
Education of Los Angeles. No. 822-854 (Super. Ct. Cal., Jan. 11, 
1970), awarded a substantial attorneys' fee as well as "[p]eti- 
tioners' and counsels' costs and disbursements herein." (Slip 
op. at p. 64). See also, Nesbit v. Statesville City Board of 
Educ., 418 F.2d 1040, 1043 (4th Cir. 1969) (en banc) (per curiam).

The right of counsel to reasonable compensation should not 
be restricted or inhibited by a doctrine which limits the compen­
sation to causes which result in monetary recovery and excludes 
cases of public importance which are not pecuniary. The pro­

-21-



tection and preservation of the inalienable constitutional
rights of any class of citizens, the enforcement of the duties
of government owed to its citizens by law, is at least as
valuable (if not more so) than the recovery by litigation of
money. Rights, particularly the inalienable constitutional
rights, are a species of property. in a nation of laws, the
reaffirmance, enforcement and preservation of the most sacred
and invaluable rights— the rights to life, liberty and the
pursuit of happiness, to be a human being, to receive the same
equal protection of our laws— is one of the highest callings of
counsel. When such tasks are undertaken on behalf of those
otherwise unable to do so— the disadvantaged— justice requires
that counsel receive reasonable compensation.

To the extent that a large proportion of the students
of Las Vegas are afforded substantial benefits through this
action by causing the school board to perform the duties
specially imposed upon it by law, it raises the standard of the
fiduciary relationship of the board to all of its students

13/
and so serves important considerations of public policy.

While cases from the ordinary commercial practice are 
helpful in the analysis of the standards, scope and coverage of

13/—  Cf. Mills v. Electric Auto-Lite Company. 396 U.S. 375. 396 (1970): --
[R]egardless of the relief granted, private 
stockholders' actions of this sort "involve 
corporate therapeutics," and furnish a bene­
fit to all shareholders by providing an 
important means of enforcement of the proxy 
statute.

-22-



awards of attorneys' fees as well as costs and disbursements
of the prevailing party, the courts have further amplified the
basis for the right of plaintiffs in civil rights actions to be
awarded their costs and reasonable attorneys' fees. Plaintiffs
respectfully submit that civil rights cases under Sections 1983
and 1982, 42 U.S.C. fe.q.. Jones v. Mayer. 392 U.S. 409 (1968)]
and the various other Civil Rights Acts provide the kind of
extraordinary circumstances" which would allow an equity court
allocate full costs and amplify the award of attorneys’ fees
In Cleveland v. Second National Bank & Trust Co.. 149 F.2d

466 (6th Cir.), cert, denied 326 U.S. 777 (1945), the Court said
There is no room for doubt that an equity court, 
may, under extraordinary circumstances impose 
upon the defeated plaintiff in an equity case, 
the entire cost of defense, notwithstanding 
statutory limitations upon costs to be taxed at law.

Id. at 469. (emphasis supplied). The court followed the
decision of the Supreme Court in Sprague v. Ticonic National
Bank, 307 U.S. 161 (1939), where the Court held that in equity
cases the lower courts could allow counsel fees and other
expenses entailed by litigation not included in the ordinary
taxable costs recognized by statute. Speaking for the Court,
Mr. Justice Frankfurter said:

Allowance of such costs in appropriate situations 
is a part of the historic equity jurisdiction of 
the federal courts. The "suits in equity" of 
which these courts were given "cognizance" ever 
since the First Judiciary Act, 1 Stat. 73, con­
stituted that body of remedies, procedures and 
practices which theretofore had been evolved in 
the English Court of Chancery, subject, of course, 
to modifications by Congress, e.g., Michaelson 
v. United States. 266 U.S. 42, 45 S. Ct., 69 L.
Ed. 162, 35 A.L.R. 451. The sources bearing on

-23-



eighteenth-century English Practice— reports 
and manuals— uniformly support the power not 
only to give fixed allowance for the various 
steps in a suit, what are known as costs "be­
tween party and party," but also as much of 
the entire expenses of the litigation of one 
of the parties as fair justice to the other 
party will permit, technically known as costs 
"as between solicitor and client" ...
Plainly the foundation for the historic prac­
tice of granting reimbursement for the cost of 
litigation other than the conventional taxable 
costs is part of the original authority of the 
Chancellor to do equity in a particular situa­
tion.

wId. at 164-65, 166. (emphasis supplied).
Tbe Supreme Court in Newman v. Piqqie Park Enterprises.

390 U.S. 400 (1968), enunciated the equity principle which 
should govern civil rights litigation. Although that case arose 
out of a violation of Title II of the Civil Rights Act of 1964, 
it expresses the purpose and justification for such awards 
since Title II, like 42 U.S.C. §1983 and §1982, is legislation 
implementing the Thirteenth and Fourteenth Amendments, designed 
to effectuate the same commitment to black Americans.

The Court advanced the concept that a plaintiff in a class 
action of this type obtains an injunction not for himself alone 
but as a "private attorney general." That statement of purpose 
has since been adopted by many other courts in other areas of 
civil rights litigation. In Parham v. Southwestern Bell Tel.

H 7
There is support for treating such awards in non-civil rights 

cases as a form of damages, compensatory or exemplary. Vaughan 
v. Atkinson. 369 U.S. 527, 530-31 (1962); Siegel v. William E. 
Bookhultz & Sons, Inc.. 419 F.2d 720 (D.C. Cir. 1969) (Robinson, 
J.), especially pp. 723-24 and n. 22-25.

-24-



Co., 433 F.2d 421 (8th Cir. 1970), the court held that a class
action plaintiff in an employment discrimination case was
entitled to reasonable attorneys' fees in the district court
and on appeal even though no injunction was issued and he
received no personal relief or award of back pay.

We believe Parham's lawsuit acted as a 
catalyst which prompted the appellee to 
take action implementing its own fair 
employment policies and seeking compliance 
with the requirements of Title VII. In 
this sense, Parham performed a valuable 
public service.

_Id. at 429-30. See also, Clark v. American Marine Corp. . 304 
F. Supp. 603, 611 (E.D. La. 1969); Dobbins v. Local 212, IBEW.
292 F. Supp. 413 (S.D. Ohio 1968); Lea v. Cone Mills Corp.. 438 
F-2d 86 (4th Cir. 1971); Hammond v. Housing Auth. & Urban Renewal 
Agency, 328 F. Supp. 586 (D. Ore. 1971).

While 42 U.S.C. §1983 does not expressly authorize the
granting of attorneys' fees to successful plaintiffs, analysis
of a related provision— 42 U.S.C. §1982— readily demonstrates
that the allowance of attorneys' fees to successful plaintiffs
invoking the provisions of the Civil Rights Acts is a proper means

15/
of "fashioning an effective equitable remedy for their enforce­
ment.

The penal provisions which originally accompanied 42 U.S.C. 
§1982 have been separated or eliminated so that today it is

— ^ Jones v. Mayer. 392 U.S. 409, 414 n.13 (1968); see also, 
Louisiana v. United States. 380 U.S. 145 (1965); Green v. Countv 
School Board of New Kent County. 391 U.S. 430 (1968).

-25-



\

"enforceable only by private parties acting on their own initia­
tive. " Jones v. Mayer, supra, 392 U.S. at 417. However, as the 
Supreme Court noted in Jones, "ft]he fact that 42 U.S.C. Section 
1982 is couched in declaratory terms and provides no explicit 
method of enforcement does not, of course, prevent a federal 
court from fashioning an effective equitable remedy." JL3. at 
414, n. 13.

In a recent Fifth Circuit case, the court said:
In the area of civil rights, many cases have 
either allowed or implicitly recognized the 
discretionary power of a district judge to 
award attorneys' fees in a proper case in 
the absence of express statutory provision,
[citations omitted] and especially so when 
one considers that much of the elimination of 
unlawful racial discrimination necessarily 
devolves upon private litigants and their 
attorneys, £f. Newman v. Piggie Park Enter­
prises, Inc., 390 U.S. 400, 402 (1968), and 
the general problems of representation in 
civil rights cases. See Sanders v. Russell,
5th Cir. 1968, 401 F.2d 241.

Lee v. Southern Home Sites Corp., 429 F.2d 290, 295 (5th Cir.167
1970).

— f District courts granting injunctive relief in suits under 
§1982 have awarded attorneys' fees. In Terry v. Elmwood Cemetery, 
307 F. Supp. 369 (N.D. Ala. 1969), suit was brought to compel 
a cemetery to sell a burial plot to a black mother for the grave 
of her son who was killed in action in Viet Nam. The cemetery 
refused to sell the plot solely because of the race of the 
deceased. Chief Judge Lynne carefully analyzed the Jones deci­
sion and the lower court cases which followed it and held that 
the refusal to sell was a violation of §1982. In the final 
judgment, attorneys' fees in the amount of $2500 were awarded. 
Terry v. Elmwood Cemetery, Civ. No. 69-490 (N.D. Ala., Jan. 29, 
1970). Accord, Newbern v. Lake Lorelei, Inc., 308 F. Supp. 407,
1 Race Rel. L. Survey 185 (S.D. Ohio, 1968, 1969); Pina v.
Homsi, 1 Race Rel. L. Survey 18 (D. Mass. 1969).

-26-



These cases under §1982 follow the well established principle
that federal courts have equitable power to award counsel fees 
in appropriate cases even in the absence of statutory authoriza­
tion. See Mills v. Electric Auto Lite Co., supra; Sprague v. 
Ticonic National Bank, supra; Vaughan v. Atkinson, supra; Newman 
v. Piggie Park Enterprises, Inc., supra. And as the Supreme 
Court has said, "[t]he existence of a statutory right implies 
the existence of all necessary and appropriate remedies."
Sullivan v. Little Hunting Park, Inc.. 396 U.S. 299, 239 (1969).

The reasoning of the courts applies with full force and 
effect to the companion statute, §1983, under which this suit 
was brought. Like the non-civil rights cases cited at pages 22-24 
above, courts have held that under §1983, nominal or exemplary 
damages may be awarded. Tracy v. Robbins, 40 F.R.D. 108 (D.S.C. 
1966). Actual damages, too, can be awarded. Wall v. Stanly 
County Board of Educ., 378 F.2d 275 (4th Cir. 1967). Some of 
the reported cases awarding counsel fees, in addition to Crawford, 
supra, are Hill v. Franklin County Board of Educ., 390 F.2d 583 
(6th Cir. 1968); Rolfe v. County Board of Education of Lincoln 
County, 282 F. Supp. 194 (E.D. Tenn. 1966), aff'd 391 F.2d 77 
(6th Cir. 1968); and Monroe v. Board of Comm'rs of Jackson, 244 
F. Supp. 353, 366 (W.D. Tenn. 1965).

In Miller v. Amusement Enterprises, Inc., 426 F.2d 534 
(5th Cir. 1970), the Court reversed a district court which had 
denied attorneys' fees to a successful plaintiff in a Title II 
suit. To be sure, Miller involved a statute containing an express 
provision for attorneys' fees. See 42 U.S.C. §2000a-3(b) (fees

-27-



may be granted in the "discretion" of the district court).
But the Fifth Circuit's reasoning applies equally to Section 1983:

Congress did not intend that vindication of 
statutorily guaranteed rights would depend on 
the rare likelihood of economic resources in 
the private party (or class members) or the 
availability of legal assistance from charity—  
individual, collective or organized. An enact­
ment aimed at legislatively enhancing human 
rights and the dignity of man through equality 
° 7 treatment would hardly be served by compel­
ling victims to seek out charitable help

17/Miller, supra. 426 F.2d at 539.

Plaintiffs brought this action not only for themselves 
but as a class action on behalf of all Negroes similarly situated, 
to obtain a broad injunction against racial discrimination in 
the defendant school system. Thus, plaintiffs acted as a "pri­
vate attorney general" in vindicating the rights of the class 
and in furthering the public policy of the nation of eliminating 
racial discrimination in schools. Cf. Newman v. Piggie Park 
Enterprises, supra; Jones v. Mayer, supra. "The Rule 23 class

Wh° introduced the bill containing what is 
detan to the nouse of Representatives, expressed in great
etaii the legislative intention as he responded to a motion

JenalCr  t0 ”str;Lke out a11 Parts of the bill which arepenal and authorize criminal proceedings and in lieu thereof to
91V" Civil aCtion th* States/courts
suora 3S ' tt i0be| l ^ h^ ° n9' ' lst Sess"  quoted in Jones v. Maver.U*S* at 431-32. Between the two, Mr. Wilson said, *
[ Jhere is no difference in the principle involved ... There

is alsi^d???6 in regarf t° the expense of protection. There is also a difference as to the effectiveness of the two modes
... This bill proposes that the humblest citizen shall have full 
and ample protection at the cost of the Government, whose duty 
it is to protect him. The Amendment of the gentleman recognizes 
the principle involved, but it says that the citizen despoiled 

rights ••• must press his own way through the courts and 
pay the costs attendant thereon. This may do for the rich, but 
to the poor, who need protection, it is mockery ..." Conq! Globe supra, at 1295. '

-28-



action 'as a way of redressing group wrongs is a semi-public 
remedy administered by the lawyer in private practice'— a cross 
between administrative action and private litigation." Dolgow 
v. Anderson, 43 F.R.D. 472, 481 (E.D. N.Y. 1968).

If this class action had not been brought, the rights of 
the individual black pupils may not have been vindicated, because 
their claims might be too small to justify individual litigation 
or too small in terms of the cost of seeking relief. cf. Eisen 
v. Carlisle & Jacquelin, 391 F.2d 555, 560 (2d Cir. 1968);
Dolgow v. Anderson, supra. And since individual suits might not 
have been brought, without great individual expense, the Four­
teenth Amendment, outlawing defendants' conduct, would have gone 
unenforced. Ibid. Thus, plaintiffs' class action performs an
important public function in making meaningful the statutory

18/
prohibition of racial discrimination. Cf. Hammond v. Housing 
Auth. & Urban Renewal Agency, supra.

I Q /  ~
— ' Awarding counsel fees to encourage "public" litigation by 
private parties is an accepted device. For example, in Oregon, 
union members who succeed in suing union officers guilty of 
wrongdoing are entitled to counsel fees both at the trial level 
and on appeal, because they are protecting an interest of the 
general public:

If those who wish to preserve the internal democracy 
of the union are required to pay out of their own 
pockets the cost of employing counsel, they are not 
apt to take legal action to correct the abuse ....
The allowance of attorneys' fees both in the trial 
court and on appeal will tend to encourage union 
members to bring into court their complaints of 
union mismanagement and thus the public interest as 
well as the interest of the union will be served.

Gilbert v. Hoisting & Portable Engineers, 237 Ore. 139, 390 
P.2d 320 (1964). See also, Rolax v. Atlantic Coast Line R.R., 
186 F.2d 473 (4th Cir. 1951).

-29-



Plaintiffs respectfully submit that the history of equity 
courts calls for an equalization of the parties in all respects. 
The crushing burden of the costs of these cases on private 
parties is exemplified by the resources available to the defen­
dants— the sovereign of all citizens to whom these private 
Parti-es pay taxes and from whom they should receive in full 
measure "at once" the constitutional rights. Counsel were 
retained by the school board (see Crawford, supra) to mount a 
vigorous defense of the action. Of great importance is the full 
staff of the board, from its research department, draftsmen, 
attendance officers and supporting staff to its educational 
experts constantly available and utilized in the litigation to 
defend the action and oppose and delay the granting of plaintiffs' 
rights. As of the date of this brief, the school board is still 
asking the court to permit the continued, indefinite segregation 
of approximately 5,000 black children in schools which the 
defendants built for the purpose of maintaining that very viola­
tion of constitutional rights. All of these forces are arrayed 
against plaintiffs by the very persons "enjoined by law to render 
and perform the duties imposed by law sought to be enforced by
plaintiffs." Crawford v. Board of Education of Los Angeles. 
supra.

The most recent, and exhaustive, survey of the law regarding 
the award of counsel fees in school desegregation cases is 
Bradley v. School Board of Richmond. Civ. No. 3353-R (E.D. Va.,
May 26, 1971) (Appendix "A").

- 3 0 -



We believe that an award of substantial attorneys' fees 
in favor of plaintiffs is justified on either of the two alter­
native grounds set out in Bradley: the wilful actions of the
school district which have delayed desegregation in Las Vegas 
or the "private attorney general" concept enunciated in Newman 
and Parham:

The private lawyer in such a case most 
accurately may be described as a "private 
attorney general." Whatever the conduct of 
defendants may have been, it is intolerably 
anomalous that counsel entrusted with 
guarantying the effectuation of a public 
policy of nondiscrimination as to a large 
proportion of citizens should be compelled 
to look to himself or to private individuals 
for the resources needed to make his proof.
The fulfillment of constitutional guaranties, 
when to do so profoundly alters a key social 
institution and causes reverberations of 
untraceable extent throughout the community, 
is not a private matter. Indeed it may be 
argued that it is a task which might better 
be undertaken in some framework other than 
the adversary system. Courts adapt, however, 
but in doing so they must recognize the new 
legal vehicles they create and ensure that 
justice is accomplished fully as effectively 
as under the old ones. The tools are avail— 
able* Under the Civil Rights Act courts are 
required fully to remedy an established wrong, 

v. County School Board of Prince Edward 
County, 377 U.S. 218, 232-34 (1964), and the 
payment of fees and expenses in class actions 
like this one is a necessary ingredient of such a remedy.

This rule is consistent with the Court's 
power and serves an evident public policy to 
encourage the just and efficient disposition 
of cases concerning school desegregation.

Bradley, supra, at p. 26.
This Court should award attorneys' fees on this appeal and 

direct a similar award by the district court for proceedings 
below.

-31-



IV

rt»n..?iS^riC! SOUrt's StaV Order Was Improvi- 
VacatedGranted An<3 Should Be Immediately

Defendants in this ease initially moved for a stay pending 
the supreme Court’s decisions on school desegregation last term 
(R.534-36). Swann v. Charlotte-Mecklenburg Board of Rd„c 402 
u.s. 1 (1971) and companion cases were handed down prior to 
action on the motion by the district court. However, the lower 
court subsequently stayed implementation of desegregation in 
Las Vegas pending the determination of this appeal.

That stay should now be vacated in order to allow the 
defendants to begin immediately to desegregate their faculties 
and to take all necessary preparatory steps to implement a 
constitutional plan of desegregation at the earliest possible
opportunity, preferably not later than the second semester of 
the current school year.

The district court granted the stay because, it said,
"[w]henever an appeal is taken from a decree of this (injunctive) 
character, it is customary to stay enforcement of the decree 
pending decision of the appeal ....•• (6/71 Tr. 305) . But such
is not the rule in school desegregation cases. The Supreme 
Court has made it clear that black students are not to be forced 
to endure additional years of segregated schooling pending the 
outcome of appellate proceedings; in school cases, the rule is 
to desegregate first and litigate later. Alexander v. Holme. 
County Board of Educ.. 396 U.S. 19 (1969); Carter v. West 
Feliciana Parish School Board. S96 U.S. 226 (1969), 396 U.S. 290

-  52-



(197°)* Dowell v. Board of Educ. of Oklahoma City. 396 U.S.
269 (1969); Northcross v. Board of Educ. of Memphis. 397 U.S. 
232 (1970).

In response to this Court's inquiry, the district judge 
stated in "Special Findings of Fact" dated August 13, 1971, 
that it had stayed implementation of its order because "[t]he 
Courts of Appeals and the Supreme Court have not to this date 
spoken clearly and plainly with respect to a school district's 
responsibilities concerning problems of de facto segregation 
... a stay of implementation of the integration plan was justi­
fied pending an authoritative determination of the difficult 
legal issues, believing that after such a ruling, the community 
resistance to the school district's efforts to accomplish 
elementary school integration will be substantially dissipated 
and a peaceful solution anticipated" (R.671).

On the record before it at the time, this Court correctly 
concluded it could not vacate the stay, but it did expedite 
this appeal. We submit that with the full record before it as 
well as the briefs of the parties, this Court is now in a 
position to make the determination that no novel questions of 
de facto" segregation are here involved. Therefore, this case 

clearly falls within the Alexander doctrine and the stay should 
be vacated. As the Sixth Circuit Court of Appeals has said,
"the rights of school children to schooling under nondiscrimina- 
tory and constitutional conditions cannot be recaptured for any 
school semester lived under discrimination practices. Nor can 
any court thereafter devise an effective remedial measure."

- 3 3 -



Kelley v. Metropolitan County Board of Educ.. 436 F.2d 856 
862 (6th Cir. 1970).

The Supreme Court and the individual Justices have consis­
tently denied stays of integration orders. E. g. , Keyes v.
School District No. 1, Denver. 396 U.S. 1215 (1969) (Mr. Justice 
Brennan, Acting Circuit Justice); Guey Heung Lee v. David 
Johnson, No. A-203 (O.T., 1971) (August 25, 1971) (Mr. Justice 
Douglas, Circuit Justice). The district court's stay order 
should, therefore, be immediately vacated. While plaintiffs 
do not believe that the school district's Sixth Grade Center 
plan fully protects their constitutional rights, it does produce 
desegregation and its implementation would be preferable to the 
present segregated situation. The stay order should be vacated 
so that defendants can begin immediately to prepare to implement 
a desegregation plan for the second semester of the current 
school year (cf. Carter, 396 U.S. 226 (1969)): either the Sixth
Grade Center Plan or a new plan to be approved by the district 
court should plaintiffs prevail on this appeal as to the ultimate 
propriety of the Sixth Grade Center plan.

CONCLUSION
WHEREFORE, plaintiffs respectfully pray that the judgment 

below be affirmed insofar as it requires desegregation of the
County School District; that the stay order be vacated 

and the cause remanded to the district court for preparation and 
implementation of a nondiscriminatory desegregation plan for 
the Clark County schools, to be effectuated by the beginning of 
the second semester of the current school year; that this Court

-  3 4 -



award them attorneys' fees and costs on this appeal and direct 
the district court to make such an award for the period of the 
trial below; and for such other, further and additional relief 
as to the Court may seem equitable and just.

Respectfully submitted,

New York, New York 10019
CHARLES L. KELLAR

1042 West Owens Avenue 
Las Vegas, Nevada 89106

Attorneys for Plaintiffs, as
Appellees and Appellants

CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of October, 1971,

I served a copy of the foregoing, Answering Brief of Plaintiffs- 
Appellees and Opening Brief for Plaintiffs-Appellants, upon 
Robert L. Petroni, Esq., 225 East Bridger, Las Vegas, Nevada, 
attorney for defendants-appellants, and Frank A. Schreck, Esq., 
717 South Third Street, Las Vegas, Nevada, attorney for inter— 
venors, by United States Mail, postage prepaid.



N

e\

IH THE DWITK1) STAXIS DISTRICT COURT 

FOR THE EASTERN DISTRICT OR VXBCOTA 

RICHMOND DIVISIDS

T>s I L * ® 

MAY «n

CLEW.

CAROLYN BRADLEY, ate., ec ar

v.

THE SCHOOL BOARD OF THE CITY OF 
RICHMOND, VIRGINIA, at al

C i m  ACTION
■ 0. 3353-1

t
MEMORANDA

Thla class action, brought. taa yaara ago La aa effort to 

and racial d lac rial nation in tha cparation of publla eoheols la 

Richmond, Virginia, la bat ora tha Court oa a aatloa for ettomspa1 

faaa. An approprlata ruling on t.ia faatog aatlaa rtylras m  

abridged review of avanca since Marc.: of 1*70.

On March 10, 1970, a notion for ftirther relief aaa filed la 

this case, and after extensive hearings t U f  Court ordered late effoot 

an Interim daaagragation plan prepared by tha School Board ftor the 

achool year 1970-71, Bradley v. School Board of Clre ef 

317 F. Supp. 555 (E.D. Va. 1970), end later, a plea for 1971-71, Id.,

------- F- SuPP-________ (*•»• Va. April 3, 1971). Appended to the

motion . - further relief was an application for an award of raaaoaabla 

ajcorney.' fees, to be paid by tha City School Board. In .lght of tha 

.fondants' conduct before and during litigation, and by reaeon of tha 

unique character of school oaaeviagatloa eulte, Justice requires that 

es s. d be awarded.

This case lay dorr, t fro- .960 until tha aatloa of March, 

u. During that period the city schools ware operated uadaa a free 

-JLee systaa of pupil aaslgnaant. Tha plea ana apprawed jy tha court

A P P U D I X

lo



{i}it
V

f
I

I
I

*I
I
i
I
i

I
I»

I

f
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of appeals, Bradley v. School Board of city of Klohmond. 313 F. 2d 310 
(4th Clr. 1965) , but the caae v u  rsasndsd for further hearings oa 

faculty assignments by the Supreme Coart, lredley a. Ishool Board of 
the City of Richmond. 382 C.S. 103 (IMS). After eoae further dle- 
trlct court proceeding the caae lay Idle uattl 1970. f

When the ault was reactivated the defendants were directed, 

pursuant to this Court's usual practice la ached  desegregation oaeee, 
to state on the record whether they coatended that the schools were 
then operating as a unitary system, and. If not, whet period ef tlee 
would be required to formulate a constitutional plea. Za open court, 
albeit reluctantly, the defendants admitted that the Constitution m s  

not being coaplled with*; they ware ordered oa April 1, 1970, to sub­
mit a unitary plan on or before May 11, 1970. hearings were set for 
June, and the parties ware admonished as to the eeeeeslty ef lnple- i >
mentlng a unitary plan In the fall of 1970.

The Court will not restate Its findings of feet sad conclusions
of law which resulted from the hearings of the -unmer of 1970; these 
are adequately covered in the reported deelaloa. A fee poises rele- 

var.r to the present notion should be stressed.
Although the School Board had stated, as noted, that the free 

choice system failed to comply with the Constitution, producing as It 
did segregated schools, they declined to admit during the June hearings 
that this segregation was attributable to the force of law (transcript, 
hearing of June 20, 1970, at 322). Bearings which the Court had hoped

1. Of cotrse, It scarcely excuses the School Board's continued opera- 
* tier, under an invalid plan that they were under an outstanding

court order to do so. Legal requirements change; iA*t is consistent,
' moreover, with a pace of deliberate speed at one time should not be

confused with the ultimate goal. The school system was la violation 
of outstanding authoritative decisions, Si^np v. Charlbttg■MedllfBtPM 
Board of Education. 431 F. 2d 13*. 141 (4th Clr. 1970), rav’d. In part.

U.S. (April 20, 1971). To await the plaintiffs' Initi­
ation of legal action may have seemed a wise strategic choice, but 
it cannot be equated with the fulfill sent of the af flmet lue duty 
to Ji -<_gregate.

i



would be confined to the effectiveness of a plan of desegregation 
consequently were expanded; the plaintiffs ware put to tha tine and 
expense of demonstrating that govem e n t a l  action lay behind tha 

segregated school attendance prevailing In Rlcteond. Public and 
private discrimination were shown to lie behind tha residential segre­

gation patterns over which the School Board proposed to draw neighbor­
hood school zone lines. Evidence on choice of echool end public 
sites, restrictive covenants In deads, discrimination la federal mort­
gage insurance opportunities, housing segregation ordinances, 
continued practice of private discrimination eaa presented, woat of it 
without cross-examination or serious attaag>t st refutation. All of
this proof was claarly relevant, not only undar jhflgg v. Cbarlotta-

431 F. 2d at
Mecklenburg Board of Education, supra./141. decided just prior to tha 
hearings, but also under Brewer v. School Board of City of Bar folk.
397 F. 2d 37, 41 (4th Cir. 1968).

At the seme hearings the School Board presentee _ dasagiigatSf" 
proposal developed by a team from the Department of Beale*., fare-tine 
--d Welfare that was obviously unaocaptabla trader law rhea currant. Xt 
is hard to see how the Board could have otherwise, for lta

proposals achieved very little desegregation beyond whet prevailed under 
the free choice system, which It had rightly declined to defend. These 

hearings wars held sore than two years after Green v. County School Board 
of New Kent County. 391 U.S. 430 (1968) was handed does. Bines that time 
-- has been clear that coapllance with tha Coastltutlwe la not measured 
b\ the formal racial neutrality of a pupil assignment plan but rather 
by Its effectiveness In extinguishing tha public policy ef segregation, 
.-adorn of choice had left three of seven high schools all black amd

-3-



one nearly all white. It left five Junior high echoole out of slsvun 

all black or nearly ao and two nearly ell white. Of forty-four elemen­

tary schools twenty-two were substantially all black and eight alaoet 

all white, vd th several others containing a significant but still 

grossly disproportionate Negro enrollment. The School Board's deseg­

regation proposal - - the HEW plan - - would have placed aaall minorities 

of the opposite race In the three formerly black high schools end would 

have left the white high school unchanged. Three Junior high echoole 

would have remained as obviously black facilities and there would have 

been two clearly white; and five alaoet 1001 white and fifteen nearly 

all black elementary schools. Many other elementary schools could not 

strictly have been called all black or all i*lte, but departed substan­

tially from the systemwide ratio and would ha readily Identifiable 
2

racially.

Not only did the results of the School Board proposal condaam 

it, but also It felled to pees legal nuster because those who prepared 

it were limited in their efforts further to desegregate by self-laposed 

restrictions on available technique#. Consideration of residential 

segregation in drawing sons lines was omitted, except thee It was de­

cided at a late date to pair a few schools; transport atloo was not 

seriously considered as a desegregation tool, end In general, aston­

ishingly, race was not taken into account In the forwulatlon of the 

plan. Since 1966 it has been plain that school boards la this circuit 

may consider race in preparing cone plans. Wanner v. County School 

t >ard of Arlington County. 357 F. 2d 452 (4th Clr. 1966). To her «•>»«■ 

vey factor from discussion would render leyoesible alaoet the first

A full tabulation of the results projected under th*. HXW plan Is 
given in Bradley v. School Board of the City of hlchmood. supra. 
317 F. Supp. at 564-65.



I
-w

step in the Board’s task of disestablishing the dual system. For 

failure to address itself to the legal duty Imposed upon It by green, 
that of taking affirmative action to desegregate, the plea was mani­
festly invalid. Furthermore, Swann held that busing and satellite 

zoning were legitimate integration techniques. Swann v. Charlotte- 
Mecklenburg Board of Education, iupra. 431 F. 2d at 143-46. A plan 
that failed even to experiment with these legitimate tools end yet 
left such substantial segregation should never have been proposed to 
the Court.

The School Board was directed to submit a further plan within 
a month's time, and hearings were held on the second proposal. At the

r i
conclusion of the June proceeding the Court had specifically called 
the parties' attention to recent appellate rulings fining the extent 
of their obligation: Brewer v. School Board of City of Norfolk. 434
F. 2d 408 (4th Cir.) cert, denied 399 D.8. 929 (1970), Green v. School 
Board of City of Roanoke. 428 F. 2d 811 (4th Cir. 1970); Jolted Stetea 
v. School Board of Franklin City. 428 F. 2d 373 (4th Cir. 1970); gwanw 

v. Charlotte-Mecklenburg Board of Education, supra. 431 F. 2d. Under 
these precedents the School Board's second plan also felled to establish 
a unitary school system. Its deficiencies a m  fully treated la the 

Court's earlier opinion^; the sxsst glaring inadequacy la the large pro­
portion of elementary students placed la substantially segregated 
schools. The Fourth Circuit in Swann rejected an elementary plan which 

left over half the black elementary students in 8STL to 1001 black 
...ioc.b and about half the whites in 861 to 1001 white schools. In the 
.ace of that ruling the School Board proposed a plan uader which S,814

uradley v. School Board of the City of Bichmond. supra. 317 F. Bupp.
at 572-76.



f

>

r~f,

•<

of 14,943 black elementary pupil* would b* In ebelv* -11— Titrrj 
achool* over 90% black, ano 4,621 of 10,296 whit* aleeentary pupil* 
would actend seven 901 or more whir* school*. At th* m b * tla*, 

although testimony in the June hearings by school administrators 
indicated a consensus that desegregation of such schools could not 

be achieved without transporting students, th* School Board had la 
August still takan no steps to acquire th* necessary equip— nt 
Because by that time it was too lat* to do so by th* beginning of th* 
1970-71 school year, the plaintiffs war* forced to accept only partial 
relief in the fora of the School Board's Inadequate plan on an lntsrle 
basis.

The order approving that plan Included a direction to th* defen­
dants to report to the Court by mid-November th* specific step* taken 
to create a unitary system and to advise the Court of th* earliest date 
such a system could be put into effect.

Appeals were noted by all parties, but effort* by th* City 

Council to secure a stay, pursued at all levels, failed. On notion of 
the Scnool Board, however, briefing was postponed by th* Court of Appeals 
ponding rulings by th* Supreae Court on school desegregation cases then 
before that court. The effect of that order was to stay all appellate 
.breedings.

The School Board's November report atatad only that three fur­
ther desegregation plana were in preparation and would be submitted on 
January IS, 1971. Theae proposals were to be based on various ass— p- 

tlons concerning the Suprecie Court's disposition of tbs cases before It.
In the meantime the: School Board sought relief frosi the Court's 

outstanding order enjoining planned school construction. Depositions 
expert witnesses were takan and th* natter waa submitted on briefs.

- t -



1/
V.

The evidence disclo.ed char the School Board had not aariou.ly re­

viewed the site and capacity decisions which it had made, according

rlier testimony, without consideration of their impact on efforts 

to desegregate. Rather it was reportedly determined that the site, 

chosen were compatible with various cooc.iv.bl. measure, of the affirm­

ative duty to desegregate, none of which we. consistent with current 

decisions. Bases for the conclusions of compatibility, moreover, were 

not presented. The Court declined to lift th. con.truction Injunction.

- ^ v" SchooX Board of H r y 0f Richmond. _____ y, Supp.
(E.D. Va. Jan. 29, 1971).

In December, prior to consideration of tha echool construction 

issue, the plaintiffs moved for further relief affective during the 

second semester of the 1970-71 school yaar, acting that th. defendant.' 

report indicated that they did not intend further desegregation effort, 

during the current year. The promised plan, were filed in January.4 

The only proposal which promised more than an insubstantial advance 

over toe inadequate interim plan, the School Board's Pl.r 3, required 

:.u. purchase of transportation facilities which the School Board still 

would only say it would acquire if so ordered. In It. Kov-ber report

J°ard Stated £Lrmly 1CB opposition to sny mid-year modifications
of the plan.

The Court declined to order further mid-year relief. Bradley v.

~ ° 1  B°ard °f Ctt* 0f Rlo^nd, _____ F. Supp. ______ (E.D. V... Jen.
29, 1971). Because of the nearly universal silance at appellate level., 

v.ich the Court interpreted a, reflecting it, own hop. that authorita­

tive Supreme Court rulings concerning tha desegregation of schools In

They are described in this Court
joard ut City of Richmond, _____ a prior opinion, Bradley v. School 

F- SuPP- ______(E.D. Va. .Apr. 5, 1971).

- 7-



major metropolitan systems might bear on the actant of the defen­

dant*' duty, the Court felt that It would not be reasonable to re­

quire further stepa to desegregate during the second semester, end 

particularly ao In view of the expense of such steps and the likelihood 

that they could not become effective, on account of the delay In ac­

quiring transportation facilities, until late In that aamaatar. The 

fact remains, nonetheless, that the School Board had made effective 

and limned late further relief nearly lmpoeslbla because It had not 

taken the specific step of seeking to acquire buses. This policy of 

Inaction, until faced with a court order, la especially putt ling In 

view of representations later made by counsel for the School Board to 

the effect that at least flfty-slx bus units would have to bo bought,

In the Board's view, In order to operate under nearly any possible 

plan during the 1971-72 school year.

Finally, the Court heard further evidence on the plan to be 

Implemented during 1971-72.5 The School Board, as noted, offend 

three plans;6 one only, aa stated, would work to eliminate the sub­

stantial segregation that remained in Richmond schools. Plan 1 was 

a strictly contiguous geographic coning system. Plan 2, at the ele­

mentary level, suffered from the same fault* which had condemad tha 1 

echool administration's plan In Swann and tha Interim plan In this case. 

Plan 3 substantially eliminated tha racial ldemtlflablllty of 

elementary facilities. But, although the Board prepared that plan, 

they did not urge Its adoption but Instead endorsed plan 2 for tha 

1971-72 school year. At the hearings, counsel for the School Board

5. The Instant motion seek* only fee* and expenses for litigation to 
January 29, 1971, but evidence of subsequent behavior of the defen­
dants la relevant in that It tends to show a consistent policy, 
pursued at all stage* of tha caa*.

6. Details of the proposals are given In Bradley v. School Board of
City of Richmond. ______ P. Supp. fr.D. V a "  April*. 1971).

-8-



again stated that no furthar tranaportatloa units would ba acquired 
unleaa the Court so ordarad specifically, despite that the Court had 
found In August of 1970 that the Interim plan did not achieve a euf-

A
flclent level of desegregation and could be approved as a taagwrery 
expedient only In view of the lack of equlpamnt neeassary for further 
desegregation. The Court directed the adoption of plan 3 for the 
upcoming school year.

As a very general stataamnt of the law. It Is true that American 
courts do not reimburse the victorious litigant for the full price of 

his victory, his attorney's fees and expenses. See Goodhact, Costs.
38 Yale L.J. 849 (1929). Like moat generalisations in law, this rule 
Is subject to several exceptions. The shape of these exceptions pro­
vides an exaapla of the tensions existent In our system between two 
sources of legal rules: courts and legislatures. For ths cases show
that courts recognise a power in themselves, necessary at times in 
order fully to achieve justice, to direct that a losing litigant pay 
his opponent's attorney's fees. This power, If It has a statutory 
source at all, Is conferred lnpllcltly In the grant of equitable juris­
diction. At the sans time legislative directives sametlmss provide 
that a court may or must award a winning plaintiff reasonable counsel 
fees. Such statutes, not lnfre^iently, form part of a more extensive 
legislative scheme which creates a legal right a—d the appropriate 
remedy for Its violation. It la not difficult to see how legal doubts 
may arise as to the court's power In a certain case to direct the pay­
ment of fees. Host federal cases Involve tha vindication of statutory 

rights. In certain caeas the question arises whether Congress, In 
omitting from legislation any provision for the award of counsel fees, 
Intended to lapoee a restriction on available relief or Intended instead

9-



to permit the court, to axercis. the power resting In the. under 

existing decisions. Conversely, where • award 1 . sp^ifinnUy 

authorized, the question arise. whether s o n  different factual * a„l»g

fron, that required under general equitable principle, support. ,n 
award.

The plaintiff, do not argue that explicit statutory authori­

zation exists for an averd of counsel fee,. Th. case 1. brought pur­

suant to 42 U.S.C. , 1983 and this Court's general equlteble power to 

enforce constitution.! protections; Congress ha. not -end-ted that 

Judgments on such cases should a. . matter of ordinary course Include 

the payment of coun^l f.... w u i u , .  v. Ugbrough, 415 P. 2d 874 

(5th Clr. 1969), cert, denied, 396 U.S. 1061 (1970).

The case therefore present, an issue to be resolved on the 

basis of principle, governing this Court's gen.r.1 equitable discretion, 

If discretionary power 1. av.ll.ble to the Court In -alters of this 

nature. In seeking out whatever particular or special circumstance. 

Justify an award of attorney's fees, the Court must be mindful that 

this case should be compart not solely with other case, concerning 

school desegregation, but with all other type, of litigation a. well.

gpragu- v* laconic National Bank. 307 U.S. 161 (1939), estab­

lishes that counsel fee. and other litigation axpenses, not taxabla as 

costs by statute, may be awarded a. part of a litigant's relief. 

"Allowance of such costs In appropriate situations Is part of the 

historic equity Jurisdiction of the federal courts," id., 164. On. 

circumstance In which an award may be an appropriate use of the power 

of equity Is that In which an individual litigant by hi. activities 

creates or preserve, a fund In which other, than he may have an 

interest. Sprague we. such a case, in effect, but the Court In that

7. See, e ^ ,  Trustees v. Greenough. 105 U.S. 527 (1881); Kahan v.
rthhn9tlepi 2d 161 (3d Clr,) 'WoUd. 348 U.S. 950 (197gibbs v. Blachwalder, 346 F. 2d 943 (4th Clr. 1965): Mercantlla-

J8g*ChM*t  Arkan**« P l a t r l c t .  106 F. 2d 966



decision declined to limit the equity court’, power to any partleuler 

circumstance.. "As In w c h  else that pertains to equitable juried lc- 

tlon, Individualization In the exerclae of a discretionary power will 

alone retain equity as a living systeai and save It from sterility . . . .  

In any event such allowances are appropriate only In exceptional cases 

and for dominating reasons of Just Ice," Id., 167.

Flelschmann Distilling Corn, v. Malar Brewing Co.. 386 U.S. 71* 

(1967), stresses that the principles allowing awards of couneel (m s  

have no application In cases involving "statutory causes of action for 

which the legislature had prescribed Intricate raamdles," Id.. 719, 

not Intended by Congress to Include the payment of counsel fees. Pie inch- 

mann has, however, been followed by Henman v. Plxxle Part: Enterprises.

390 U.S. 400 (1968), and Mills v. Electric Auto-Lite Co.. 396 U.S. 375 

(1970). In Neman, an action under the 196* Civil tights Act, *2 U.S.C. 

i 2000a, et seq., an enactment tdilch provides In terms that fcs remedies 

are exclusive, 42 U.S.C. f 2000a-6(b), the Court held that a successful 

plaintiff should be awarded attorney's fees In the ordinary case, under 

a specific provision of the act. The Court noted, however, that such a 

sanction could have been laqtosed upon a defendant who litigated In bad 

faith for purpose, of delay, Newman v. PUxle Park Enterprises, supra.

402 n. 4, even had Congress not authorized by statute an award of 

counsel fees.

In Mills the Court directed that a corporation reimburse plain­

tiffs in a derivative suit for their attorney's fees, despite that the 

statute Involved made specific provision for attorney's fees only in 

sections other than that on which liability was predicated in the action. 

Congress' failure to establish the precise bounds of possible relief for

%
-11

■»



V

violation of it. prohibitions (indeed the private right of action 

is implied) was thought to reflect an intention not to exclude the 

possibility of an award of attorney's fee. under conventional princi­

ples. Mill. v. Electric Auto-Mte Co., su£ra, 391. The Court directed 

an interim award on a variation of the fund theory.

Lower court, have also construed federal enactment., old and 

recent, not to bar an award of attorney', fees when equity would re­

quire it, in the absence of indicia of congressional purpose to render 

•uch relief unavailable. See Lee v. Southern Home Site, m . p  429 

F. 2d 290 ( 5th Cir. 1970) (42 U.S.C. , 1982); JUhjj, v. Ro.en.tlel- ,„pra, 

(Securities Exchange Act J 10b, Rule 10b-5) ; Local 149. TntemaM^.i 

Union, Automobile, Aircraft and Agricultural Implement Manufacture, of

hS^£i£3 V- ^ rlcan Brake Sho« 298 F. 2d 212 (4th Cir.) cart, denied.
369 U.S. 873 (1962) (L«bor Management Relations Act | 301).

Section 1983 and general federal equitable power to protect con­

stitutional rights are not restricted by any congressional language in­

dicating an intention to preclude an award of counsel fee., either by 

express exclusion or the creation of an Intricate ra«dial scheme. The 
statute creates liability

"in an action at law, suit in equity, or 
other proper proceeding for redress."
42 U.S.C. { 1983.

In its reference to suit, in equity the statute must be taken 

to authorize relief, such a, .ward of counsel fees, a. might normally 

be available in such suits. Case law prior to Flelschmann in school 

desegregation cases, discussed below, recognize, the power of a federal 

equity court trying a desegregation suit to award counsel fees. In the 

light of the decisions subsequent to Flelschmann. such construction of 

S 1983 is not subject to serious question.

The issue, then, is whether this case is a proper one for a 
discretionary award.

-12-



Many of the cases directing or approving an award of 

attorneys' fees turn upon the fund theory: the concept that, first,

a litigant's counsel fees have been expended in such a manner as to 

benefit a number of other persons, not participating in the suit, and 

that, second, means are available whereby such outside beneficiaries 

can be made to bear something like a pro rata share of expenses by 

taking the fee from a defendant (a fiduciary, often) who holds or 

controls something in which the beneficiaries have an Interest.

School desegregation cases, or any suits against governmental bodies, 

do not fit this fund model without considerable cutting and trinsning. 

This is a class suit to be sure, with class relief, but to say that 

the plaintiff class will actually in effect pay their attorneys if 

the School Board is made to pay counsel fees entails a number of 

unproved assumptions about the extent to which pupils pay for their 

free public achoollng.

Nonetheless, the fund theory does not exhaust the grounds on 

which an equity decree to pay counsel fees may be based. Other cases 

exist in which "overriding considerations Indicate the need for such 

recovery." Mills v. Electric Auto-Lite Co., supra. 391-*2; see Note,

77 Harvard L.Rev. 1135 (1964). Such considerations in general are 

present when a party has used the litigation process for ends ether 

than the legitimate resolution of actual legal disputes.

Cuardian Trust Co. v. Kansas City Southern Rellway Co., 28 

F. 2d 233 (8th Cir. 1928), rev'd. on other grounds, 281 U.S. 1 (1930), 

the Eighth Circuit reviewed exhaustively the circumstances in which an 

equity court might allow costs "as between solicitor and client" despite 

the lack of statutory authority. That court concluded that such a fee 

award was proper in a number of instances, including those in which a

13-



“a”'“ry hl, t„.tl or, psrty h„ d<fond>d bu
W l . . !  and u tlg..

*>“ ' * - v « h  .i..„„doc,, h..
on the merits.

In Rude v. Buchalter, 286 U.S. 451 (1932), the Supreme Court 

held unwarranted award of attorney', fees against an unsuccessful 

Plaintiff where no finding of particular bad faith or an Intent to 

"perpetrate a fraud or impose upon the court." Id.. 459, was made.

The Court said also that those seeking such sn award did not. on 

the record, appear deserving of .uch equitable treatment.

The Seventh Circuit, in I n ^ c h w j r t r , 130 F. 2d 229 (7th 

Cir. 1942). approved an award of $1000 counsel fee. to be paid by

parties who forced an opponent into "unnecessary, groundless, vexatious 
•nd oppressive," Id., 231, litigation.

The Supreme Court, in Universal Oil Co. v. Root Refining r«
U.S. 57S (1946). th,t „  „ „ „  ^  ^  ^  _

00911 .̂ .u, „ ot .„ if

^ ■ »« *«<«..' «. • ». ol„TO ̂
Ticonic National Bank, sunra 1A7 • •------aujira, 167, such as would be the case if . liti­
gant had practiced a frauc upon the court.

A leading case in this Circuit is RoUx v. Atlantic Coaat 

M i l - S i ^ .  186 F. 2d 473 (1951). a case from this Court. Chief 

dudge Parker gave the opinion that it would be entirely Justifiable 

for the trial court, on remand, to tax a. costs ag.in.t the defendant 

labor union, guilty of a clear breach of it. duty of fair representa­
tion, a reasonable attorneys' fee:

-14-

1 4p



Ordinarily, of course, attorneys' feea, except 
*s fixed by statute, should not be taxed as a 
part of the costs recovered by the prevailing 
party; but in a suit in equity where the taxation 
of such costs is essential to the doing of justice, 
they may be allowed in exceptional cases. The Jus­
tification here is that plaintiffs of small means 
have been subject to discriminatory and oppressive 
conduct by a powerful labor organization which was 
required, as a bargaining agent, to protect their 
interests. The vindication of their rights necess­
arily involves greater expense in the employing of 
counsel to institute and carry on extensive and im­
portant litigation than the amount involved to the 
individual plaintiffs would justify their paying.
In such situations, we think that the allowance of 
counsel fees In a reasonable amount as a part of 
the recoverable costs of the case is a matter rest­
ing in the sound discretion of the trial ludse 
Id.. 481.

Although the indication that such costs are proper if "essential 

to the doing of justice" in a sense begs the question, the factors men­

tioned give some guidance. The suit obviously benefited an entire class

of Negro locomotive firemen. The defendant, equipped with legislatively-
t°

conferred bargaining powers, owed them something akin/a fiduciary’s con- 

eern and had violated that duty. The resources of the parties were dis­

proportionate. The cost of litigation was disproportionate to the 

monetary benefit to any one plaintiff. Last, the legal issues were 

relatively settled before suit. Analogous factors are present in the 

instant litigation.

In Taussig v. Wellington Fund, Inc.. 187 F. Supp. 179 (D. Del. 

1960) *ff'd. 313 F. 2d 472 (3d Cir. 1963), cert, denied. 374 U.S. 806 

(1963), a stockholders derivative suit charging unfair competition, 

the shareholder plaintiffs were awarded attorneys' fees not out of the 

treasury of their corporation, which their lawsuit presumably benefited, 

but against those guilty of unfair practices. Such an equitable damage- 

award, the court said, must be premised on a finding that "the wrong­

doers' actions were unconscionable, fraudulent, willful, in bad faith, 

vexatious, or exceptional," Id., 187 F. Supp. at 222 (footnotes omitted).

-15-



Our own Circuit ruled that it was within the power of a court 

of equity to award attorneys' fees in a suit under f 301 of the Taft- 

Hartley Act to enforce an arbitrator's award if it were shown that 

the employer's refusal to comply with the award was arbitrary and 

unjustified. The decision was based on precedents establishing a 

court's equitable power and on the judicial duty to develop a body 

of federal law under J 301. In the particular case the litigation was 

Ju,tifiad, and a fee award improper, because questions of some legal 

substance remained. Local 149, International Union, United Automobile. 

Aircraft and Agricultural Implement Workers of America v. American 

Brake Shoe Co., supra.

In Vaughan v. Atkinson. 369 U.S. 527 (1962), attorneys' fees

as an item of damages on an admiralty case were held due when the«
owner's conduct toward an ill seaman was consistently stubborn:

In the Instant case respondents were callous in 
their attitude, making no investigation of 
libellant's claim and by their silence neither 
admitting nor denying it. As a result of that 
recalcitrance, libellant was forced to hire a 
lawyer and go to court to get what was plainly 
owed him under laws that are centuries old. The 
default was willful and persistent. Id., 530-31.

A district court in another case declined to exercise its

acknowledged equity power to award attorneys' fees in a suit against

a labor union, finding nc "fund" had been created and no compelling

circumstances otherwise existed. The court conroented, however, that:

[W]ith the possible exception of civil rights 
litigation, see Bell v. School Bd.. 321 F. 2d 
500 (4th Cir. 1963), 77 Harv. L. Rev. 1135 
(1964), no area is more susceptible to the salutary 
effects of the exercise of the chancellor's power 
to award counsel fees without the presence of a 
fund than litigation Involving a member and his 
union. Primarily, this litigation seeks solely 
equitable relief and traditionally puts an impe­
cunious group of members against a solvent union

-16-



vith little expectation of a substantial monetary 
award from which to pay a counsel fee, even a 
contingent one. This recognition has prompted 
aeveral courts to allow counsel fees to successful 
union members who through litigation have correc­
ted union abuse even though they have not estab­
lished a fund or conferred a pecuniary benefit 
upon the commonwealth of the union. Cutler v.
American ̂ Federation of Musicians. 231 F. Supp.
845 (S.D. N.Y. 1964), aff'd. 366 F. 2d 779 (2d 
Cir. 1966), cert, denied. 386 U.S. 993 (1967).

A class suit to reapportion a local government unit, Dyer v. 

Love, 307 F. Supp. 974 (H.D. Miss. 1969), was the context for an award 
of counsel fees In a civil rights case. When the defendants, members 

of a board of supervisors, declined to reapportion their constituents, 

despite gross population variations between districts, and Instead 

forced cltlsens to initiate "vigorously opposed" litigation, the 

court found this "unreasonable and obstinate" conduct to be fair basis 

for a fee allowance, even though there had been no Supreme Court holding 

during most of the suit's pendency explicitly defining the defendants' 

duty, Id., 987. The direction of the developing law, the court said, 

should have been clear. Additionally, the court held that the absence 

of any fee agreement between plaintiff, and their lawyer constituted no 

bar to an award, because It was within the court's power to order pay- 

tnent to the Attorneys themselves.

In another case out of the same court, an allowance of counsel 

fee. was denied when the losing defendants, public educational adminis­

trators, were found not to have presented their defenses "In bad faith 

or for oppressive reasons," Stacy v. Williams. 50 F.R.D. 52 (N.D. Miss. 
1970) .

In Lee v. Southern Home Sites Corp.. supra, the Fifth Circuit 

authorized attorneys' fee awards in a suit under 42 U.S.C. » 1982 

contesting racial discrimination In housing sales, relying on the

-17-



dUo'-tive in Jones v. Alfred H. Mayer Co.. 392 U.S. 409 (1968) , to 

fashion appropriate and effective equitable remedies for $ 1982 

violations. The discretionary power clearly exists, the court said, 

and its exercise is especially appropriate in civil rights cases, 

where often discrimination with wide public impact can be terminated 

only by private lawsuit and problems of securing legal representation 

have been recognized. Hoover, because the district court's exercise 

of its discretion could only be reviewed on the basis of factfindings 

on the relevant issues, the case was remanded for further proceedings.

Jkjmerous other cases support the power of a court of equity 

to allow counsel fees when a litigant's conduct has been vexatious or 

groundless, or he has been guilty of overreaching conduct or bad faith.

See Siegel v. William E , Bookhultz & Sons. 419 F. 2d 720 (D.C. Cir.

1969); Smith v. Allegheny Corp.. 394 F. 2d 381 (2d Cir.) cert, denied.

393 U.S. 939 (1968); McClure v. Borne Chemical Co.. 292 F. 2d 824 (3d 

Cir.) cert. denied, 368 U.S. 939 (1961); In re Carlco. 308 F. Supp. 815 

(E.D. Va. 1970); Stevens v. Abbott. Proctor & Paine. 288 F. Supp. 836 

(B.D. Va. 196C).

School desegregation decisions illustrate the specific applica­

tion of a court's equitable discretion to allow counsel fees to plain­

tiffs when the evidence shows obstinate noncompliance with the law or 

imposition by defendants on the Judicial process for purposes of harass­

ment or delay in affording rights clearly owing. See, e.g. Nesblt v. 

Statesville City Board of Education. 418 F. 2d 1040 (4th Cir. 1969);

Williams v. Kimbrough, supra; Cato v. Parham. 403 F. 2d 12 (8th Cir. 1968); |
^ c v- County Board of Education of Lincoln County. 391 F. 2d 77 (6th 

Cir. 1968); Hill v. Franklin County Board of Education, 390 F. 2d 583

-18-

18e



(6th Cir. 1968); Clark v. Board of Education of Little Rock School 

District, 369 F. 2d 661 (6th Cir. 1966); Griffin v. County School 

Board of Prince Edward_County, 363 r. 2d 206 (4th Cir. 1966); Kemp v. 

Beast**. 352 F. 2d 14 (8th Cir. 1965); Bradley v. School Board of rftv 

of Richmond, supra, 3A5 F. 2d; Roger* v. Paul. 3A5 F. 2d 117 (8th Cir.) 

rev’d. on other grounds, 382 U.S. 198 (1965); Brown v. County School 

Board of Frederick Count y. 327 F. 2d 655 (Ath Cir. 196A) ; Bell v.

County School Board of Powhatan County. 321 F. 2d A9A (Ath Cir. 1963); 

— t-*vay v* County School Board of Surry County. 230 F. Supp. 480 (E.D. 

V,,) rgy'd- on other ground*, 339 F. 2d 486 (Ath Cir. 1964). See also, 

Felder v. Harnett County Board of Education. 409 F. 2d 1070 (4th Cir. 

1969), concerning Appellate Rule 38 and "frivolous" appeal*.

A prior appellate opinion in thi* case atates that district 
court* .hould properly exercise their power to allow counsel fees only 

"when it is found that the bringing of the action should have been 

unnecessary and was compelled by the school board', unreasonable, 

obstinate obduracy." Bradley v. School Board of City of BirhmrmH 

•ufita, 345 F. 2d at 321. The Court of Appeals recognized that appellate 

review of auch order*, however, necessarily had a narrow scope and 

fallad to disturb a nominal fee award.

In determining whether this particular lawsuit was unnecess­

arily precipitated by the School Board's obduracy, the Court cannot 

turn the clock back," Brown v. Board of Education of Topeka. 347 U.S. 

483, 492 (1954), to 1965. The School Board's conduct must be con­

sidered with reference to the state of the law in 1970. The Court has 

already reviewed the course of the litigation. It should be apparent

-19-



X

that since 1968 at the latest the School Board was clearly In 

default of Its constitutional duty. When hailed Into court, 

moreover, It first admitted Its noncomp Hence, then put Into con- • 

teat the responsibility for persisting segregation. When liability 

finally was established, it submitted and Insisted on litigating the 

merits of so-called desegregation plans which could not meet announced 

Judicial guidelines. At each stage of the proceedings the School 

Board s position has been that, given the choice between desegregating 

the schools and committing a contempt of court, they would choose the 

8ut that In any event desegregation would only come about by 

court order.

Other courts have catalogued the array of tactics used by *

school authorities in evading their constitutional responsibilities,

8wann v< Charlotte-Mccklenburg Board of Education, supra. _____ o.S.

-t ------- (April 20, 19'U) (slip opinion at 9); Jones v. Alfred H.

Mayer Co_., supra, 448 n.5 (1968) (Douglas, J., concurring); Wright v.

Council of the City of Emporia. No. 14,552, ______ P. 2d ______,

(4th Clr. Mar. 23, 1971)(slip opinion at 13-14)(Sobeloff, J., dissenting).

The freedom of choice plan under which Richmond was operating clearly

was one Such. When this Court filed Its opinion of August 17, 1970,

confirming the legal invalidity of that plan, the HEW proposal, and

the Interim plan, It was not propounding new legal doctrine. 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
are

to be the conventional means by which persons' rlghts/afforded. The 

law favors settlement 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

-20-



•nd unreasonable and »  a perversion of the purpose of adjudication, 

which Is to settle actual disputes.

It Is no argument to the contrary that political realities 

may compel school administrators to Insist on Integration by judicial 

decree and that this 1. the ordinary, usual means of achieving com­

pliance with constitutional deaegregatlon standards. If such consid­

erations lead parties to mount defenses without hope of succeas, the 

judicial process is nonetheless Imposed upon and the plaintiffs are 

callously put to unreasonable and unnecessary expense.

As long ago as 1966 a court of appeals In another circuit 

uttered a atrong suggestion that evasion and obatructlon of desegre­

gation should be discouraged by convening state officials to bear 
the cost of relief:

The Board la under an lamediats and absolute con­
stitutional duty to afford non-raclally operated 
school programs, and It baa been given judicial and 
executive guidelines for the performance of that 
<*uty. If well known constitutional guarantees con­
tinue to be Ignored or abridged and Individual pupils 
are forced to resort to the courts for protection, 
the time Is fast approaching when the additional sanc­
tion of substantial attorneys fees should be seriously 
considered by the trial courts. Almost solaly because 

ob8tlnat®» adamant, and open reals trance to the 
law, the educational system of Little Rock has been 
embroiled In a decade of costly litigation, while con­
stitutionally guaranteed and protected rights were 
collectively and Individually violated. The time Is 
coming to an end when recalcitrant state officials can 
force unwilling victims of Illegal discrimination to 
baar the constant and crushing expense of enforcing 
their constitutionally accorded rights. Clark v. Board 
of Education of Little Rock School District, supra. 671.

That time ha. now expired. See also, gato v. Parham, supra. Our Court

of Appeals, too, has Indicated a willingness to place litigation costs

on defendants In recent cases; In Sesblt v. Statesville City Board of

Education, supra, they took the unusual step of directing the district

-21



court to exercise It, discretion In the matter In f.vor of the plain­

tiffs. This was also done six year, before In Bell v. County School 

Board of Powhatan County  su£ra, when aggravated misconduct wa. shown, 

In Nesbit, by contrast, the defendant, seem to have been guilty of 
delay alone.

Not only has the continued litigation herein been precipitated 

by the defendants' reluctance to accept clear legal direction, but 

other compelling circumstances make an equitable allowance nece.sary. 

This ha. been a long and complex .et of hearings. Plaintiffs' counsel 

have demonstrated admirable expertise, dl.cus.ed below, but from the 

beginning the resource, of opposing partle. have been disproportionate. 

Ranged against the plaintiff, have been the legal .t.ff of the City 

Attorney', office and retained counsel highly experienced in trial 

work. Additionally the School Board pos.a.aed the assistance of its 

entire admlnl.tr.tive staff for inve.tig.tlon and an.ly.l. of Informa­

tion, preparation of evidence, and expert testimony of educator.. Few 

litigants - even the wealthiest - come Into court with re.ource. at 

once so formidable and ,o .ulted to the litigation t.ak at hand. Sums 

paid outside counsel alone far exceed the plaintiffs' estimate of the 
cost of their time and effort.

Moreover, this sort of case 1. an enterprise on which any 

private Individual should shudder to embark. No substantial damage 

award 1. ever likely, and yet the costs of proving a case for Injunc­

tive relief are high. To secure counsel willing to undertake the Job 

of trial, Including the substantial duty of representing an entire 

class (something which must give pause to all attorneys, sensitive

22-



•«» inc K‘w«i»6iun to ics ethical responsibilities) necessarily
»ea„. that someone - plaintiff or lawyer - must make . great sacrifice 

unless equity Intervenes. Coupled with the cost of proof 1. the likely 

personal and professional cost to counsel who work to vindicate sonority 

right, in an atmosphere of resistance or outright hostility to their 

efforts. See NAACP v. Button, 371 D.S. 415. 435-36,(1963); Sanders v.

401 P. 2d 241 (5th Cir. 1968).

still further, the Court must note that the defendants' delay 

^  ln“Cti°n c°n» ^ t e d  more than a cause for needles, litigation.

It Inspired in a community conditioned to segregated school, a false 

hope that constitutional Interpretation, a. enunciated by the court, 

pursuant to their responsibilities, a. Intended by the Constitution, 

could l„ BO M  manner, other than a. contemplated by that very document, 

be Influenced by the sentiment of a coenunlty.

n»e foregoing In no manner is Intended to express a lack of 

personal compassion for the difficult and arduous task loosed upon 

the members of the defendant school board. Nevertheless they, and 

Indeed the other defendant, as well, had a public trust to encourage 

what may well be considered one of the most precious resources of a 

community; an attitude of prompt adherence to the law, regardless of 

the manifested erroneous view that mere opposition to constitutional

requirements would In some manner result in a change In those require­
ments.

Power over public education carries with it the duty to provide 

that education In a conatltutional manner, a duty In which the defen­
dants failed.

-23-



These general factors were present, although in lesser 

magnitude, in the Relax case in 1951, in which the Fourth Circuit 

said that an award of counsel fees would be fully justified.

Passing the question of the appropriateness of allowing fees 

on the basis of traditional equitable standards, the Court is persuaded 

that in 1970 and 1971 the character of school desegregation litigation 

has become such that full and appropriate relief must include the award

of expenses of litigation. This is an alternative ground for today*, 
ruling.

The circumstances which persuaded Congress to authorize the 

payment of attorney's fees by statute under certain sections of the 

1964 Civil Rights Act, see 42 U.S.C. if 2000a-3(b), 2000e-5(k), very 

often are present in even greater degree in school desegregation liti­

gation. In Newman v. PlEBle Park Enterprises, Inc., supra, the Supreme 

Court elucidated the logic underlying the 1964 legislation:

When the Civil Rights Act of 1964 was passed, it was 
evident that enforcement would prove difficult and 
that the Nation would have to rely in part upon pri- 
vate litigation as a means of securing broad compli- 
ance with the law. A Title II suit 1. thus private 
In form only. When a plaintiff brings an action 
under that Title, he cannot recover damages. If he 
obtains an injunction, he does so not for himself 
alone but also as a "private attorney general," vin­
dicating a policy that Congreas considered of the 
highest priority. If successful plaintiff, were 
routinely forced to bear their own attorneys' fees 
few aggrieved parties would be in a position to ad­
vance the public Interest by invoking the injunctive 
powers of the federal courts. Id., 401-02.

— 1??*n W M  followed 1" Mil*! v* Amusement Enterprises. Inc.. 426 F. 2d

534 (5th Cir. 1970), in which the court recognized that in cases where

the plaintiffs had undertaken no obligation to pay counsel, congressional

purposes would best be served by directing payment to the lawyer..

-24-

2 4 e



The rationale of Newman, moreover, has equal force in employ­

ment discrimination cases, even where plaintiffs are only partially 

successful, where their lawsuit serves to bring an employer into com­

pliance with the Act. tea v. Cone Mills Corn.. No. 14,068, ______ F. 2d

______ (4th Cir. Jan. 29, 1971); Parham v. Southwestern Bell Telephone

Co., 433 F. 2d 421 (5th Cir. 1970).

School desegregation cases almost universally proceed as class 

actions. Use of this unconventional form of action converts a private 

lawsuit into something like an administrative hearing on compliance of 

a crucial public facility with legal rules defining, in part, its 

mission. Such result has come about as the law developed so that it 

protects as a matter of individual right not Just admission into form­

erly white schools of black applicants, but attendance in a nondls- 

crlminatory school system. Green v. County School Board of New Kent 

County, supra; Bradley v. School Board of City of Richmond. 317 F. 2d 

429 (4th Cir. 1963).

Manifestly, too, not only are the rights of many asserted in 

such suits, but also it has become a matter of vital governmental policy 

not Just that such rights be protected, but that they be insaedlately 

vindicated in fact. See 42 U.S.C. f 2000e, et seq. Partly this national 

goal has been pursued by administrative proceedings, but a large part of 

the Job has fallen to the courts, and for them it has been a task of 

unaccustomed extent and difficulty. "Nothing in our national experience 

prior to 1955 prepared anyone for dealing with changes and adjustments 

of the magnitude and complexity encountered since then." Swann v.

Charlotte-Mecklenburg Board of Education, supra. _____ U.S. _________

(slip opinion at 9) .

-25-

2 5e



Til* private lawyer In such a case most accurately say be 

described as "a private attorney general." Whatever the conduct of 

defendanta may have been, It is Intolerably anomalous that counsel 

entrusted with guarantying the effectuation of a public policy of 

nondiscrimination as to a large proportion of citizens should be 

compelled to look to himself or to private Individuals for the re­

sources needed to sake his proof. The fulfillment of constitutional 

guaranties, when to do so profoundly alters a key social Institution 

and causes reverberations of untraceable extent throughout the conmunlty, 

Is not a private matter. Indeed It uiay be argued that It Is a task 

which might better be undertaken In some framework other than the adver­

sary system. Courts adapt, however; but in doing so they naast recognize 

the new legal vehicles they create and ensure that Justice Is accomplished 

fully as effectively as under the old ones. The tools are available.

Under the Civil Rights Act courts are required fully to remedy an es­

tablished wrong, Griffin v. County School Board of Prince Edward 

Count*, 377 U.S. 218, 232-34 (1964), and the payment of fees and ex­

penses In class actions like this one is a necessary Ingredient of 
•uch a remedy,

rule 1* consistent with the Court's power and serves an 

evident public policy to encourage the Just and efficient disposition 

of cases concerning school desegregation. Cf. 42 U.S.C. } 2000c-6.

It serves no person's Interest to decide these cases on the basis of 

a haphazard presentation of evidence, hampered by Inadequate manpower 

for research Into the bases of liability and the elements of relief.

Where the Interests of so many are at stake, justice demands that 

the plaintiffs' attorneys be equipped to inform the court of the con­

sequences of available choices; this can only be done if the availability

-26-

26e



of funds for representation is not left to chance. In this unpre­

cedented fora of public proceeding, exercise of equity power requires 

the Court to allow counsel's fees and expenses, In a field In which- 

Congress has authorised broad equitable remedies "unless special cir­

cumstances would render such an award unjust," Nemnan v. Plggle Park 

Enterprises, Inc., supra. 402. No such circumstances are present here.

The amount of the allowance Is not difficult to establish.

Counsel have agreed to submit the matter of costs, fees and expenses

to the Court on documentary evidence. The period of time to which this 
the

opinion relates runs from/March, 1970, motion for further relief until 

January 29, 1971. Findings of fact as to defendants' actions after 

that date have been made; these tend to establish their continuing 

pattern of inaction and resistance.

Trial counsel for the plaintiffs demonstrated throughout the 

litigation a grasp of the material facts and a coomand of the relevant 

law equaled by very few lawyers who have appeared before this Court. 

Needless to say their understanding of the field enabled them to be of 

substantial assistance to the Court, which is their duty. Local counsel 

did not examine witnesses, but assisted In pretrial preparation and also 

at hearings, as required by local rules. Some of the working hours In­

cluded In counsel's estimates of time spent, moreover, Include travel 

times. These are properly listed for two reasons. First, counsel can 

and do work while traveling. Second, other complex cases often require 

parties to enlist the aid of out-of-town counsel, for whose travel 

time they pay.

In conformity with practice In his home bar of Memphis, Tenn­

essee, a lawyer for the plaintiffs secured three affidavits from dis­

interested brother counsel stating their estimate of the fair value 

of legal services rendered by plaintiffs' counsel. The affidavits state

-27-



fact. showing . current familiarity with prevailing fee rate, and 

irith, in two caaea, the full ca.e file. Conaidering the abilltie. 

of counael, tha time required, am! the reaulta achieved, these lawyers 

placed a value on the service, very close to the estimate, of the 
plaintiffs.

The Virginia Supreme Court of Appeal, long ago set forth the 

factor, relevant to the valua of an attorney', services:

icjlrcumatancea to be considered . . .  ere the 
•eount and Character of the service, rendered, the 
responsibility imposed; the labor, time and trou- 
ble involved; the character and importance of the 
■attar in which the services are rendered; the 
a-ount of money or the value of the property to be 

\ ' k i l l  and experience 
called for; the character and standing in their 
profession of the attorneys; and whether or not 
the fee is absolute or contingent . . .  The result 
secured by the services of the attorney m y  liks- 
■tse be considered; but mrely as bearing upon the 
consideration of the efficiency with which they were 
rendered, and in that way, upon their value on a 
quantum meruit, not fra. the standpoint of their
T « Uv.t0ioh* , ^ tent- Campbell County v. Howard,133 Va. 19, 112 S.E. 2d^B76, 885 (1922). ------

In this case the marshalling of evidence on liability and especially on 

f-ady - r e  co-plex tasks. The responsibility was probably a. great as 

aver falls upon a private lawyer. T i m  spent we. considerable; the 

Court accept, the estimates of time and expenses dated January 6, 1970, 

as modified in a memorandum submitted on March 15, 1970. The subject 

of the litigation we. of the utmost importance. The Court has already 

referred to the lawyers' performance, which they undertook without

assurance of reasonable compensation. Substantial result., too, were 
secured by their efforts.

On the basis of these factors, plus the equitable considerations 

compelling an allowance, the Court ha. determined that a reasonable 

sttomey' s fee would be $43,355.00.*

The Court has reduced the requested allowance pursuant to the supple 
mental memorandum filed by plaintiffs under date of Mar. 15 1971
and in addition has deducted the item of $990 having to do with City 
Council s requested stay of Court's order of August 1970.



Expenses incurred, including taxable costs, have also been 

estimated by the plaintiffs. As in the case of attorney's fees, these 

cover the period from March of 1970 through January 29, 1971, and 

relief is not requested with reference to matters raised by the motion 

for Joinder of further parties filed by the School Board. Costs and 

expenses s. to those matters are therefore not under consideration.

Because the Court has decided that plaintiffs' counsel are due 

an allowance of the actual expenses of the litigation, it 1. not necess 

ary to determine whether certain items of expense would in the usual 

case be taxable a. cost, under 28 U.S.C. J 1920; see 6 Moore’s Federal 
Practice 1 54.70, et seq. (2d ed. 1966).

Many of the expenses incurred by plaintiffs' counsel are at­

tributable to their traveling from New York and Memphis for prepara­

tion and trial, but, a. the Court already said, the complexity of cases 

of this sort often, as here, Justifies the use of counsel from outside 

the local bar. The difficulty of retaining local trial counsel must be 

•specially great in litigation over minorities' civil rights; the un­

popularity of the causes and the likelihood of small reward discourage 

many lawyers even from mastering the field of law, much less accepting 

the cases. Expenses for travel, hotel accomodations and restaurant 

meals sre fairly allowable. The Court takes notice of the fact that 

the absence of an attorney from the area of his office usually results 

in financial hardship in relation to the balance of his practice, and 

there ought not to be superimposed thereon additional living expenses.

Fees for expert witnesses' testimony likewise will be allowed 

as an expense of suit. It is difficult to imagine a more necessary 

item of proof (and source of assistance to the Court) than the con­

sidered opinion of an educational expert.

-29-



Investigation assistance and office supplies likewise are 

obviously proper; one nwst contrast the rather minimal expenses of 

the plaintiffs under this heading with the resources used by the ,, 

defendants.

Transcript costs, Including those for depositions which were 

taken with the Court's encouragement, and miscellaneous court fees 

are allowable.

expenses occasioned by the stay applications unsuccessfully filed by 

the Richmond City Council. These may be considered on s separate 

application.

The Court computes the total allowable expenses to be

$13,064.65. The total atmrd, Including counsel fees, comas to 
9

$56,419.65. This Is a large amount, but It falls well below the 

value of efforts amde in defending the suit. Outside counsel for the 

School Board to date have submitted bills well In excess of the amounts 

awarded. [Portions of the submitted bills cover periods with which we 

are not here concerned.] In addition, as noted above, the defendants 

made use of the regular legal staff of the City Attorney and the 

School Board's sdmlnistratlve staff. For purposes of comparison, In 

a recent antitrust case tried by ona Richmond attorney and two lawyers 

from outside the local bar, this Court awarded $117,000 In counsel 

fees. The amount In this case Is not excessive.

For the reee>ns stated, an order shall enter this day decreeing 

the payment of the sum mentioned to

9. Expenses Incurred In reference to City Council's request for stay 
of August 1970 order are not Included herein, nor are expenses 
allocated to filing of amended complaint.

The Court will not against the School Board, however,