Goss v. Knoxville, TN Board of Education Reply Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 72-1766, -1767

JOSEPHINE GOSS, et al.,
Plainti f f s-AppeHants ,

vs.
THE BOARD OF EDUCATION OF THE CITY 
OF KNOXVILLE, TENNESSEE, et al.,

Defendants-Appellees.

REPLY BRIEF FOR APPELLANTS

CARL A. COWAN2212 Vine Avenue 
Knoxville, Tennessee 37915

AVON N. WILLIAMS, JR.404 James Robertson Parkway Nashville, Tennessee 37219
JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN SYLVIA DREW 
JOHN BUTLER10 Columbus CircleNew York, New York 10019
Attorneys for Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 72-1766, -1767

JOSEPHINE GOSS, et al.,
Plainti ffs-Appellants,

vs .
THE BOARD OF EDUCATION OF THE CITY 
OF KNOXVILLE, TENNESSEE, et al.,

Defendants-Appellees.

REPLY BRIEF FOR APPELLANTS

I

We should like to limit this reply brief insofar as 
possible to a short discussion of the substantive legal errors 
made by appellees; however, in light of their charge at pages 
10-12 of their brief to the effect that plaintiffs' statement 
of facts in our opening brief misrepresented the record, we 
feel constrained to add one or two statements in this regard.

We respectfully invite the Court to examine the portions 
of the Appendix cited in our original brief for we are confi­
dent that they are supportive of the propositions we advanced.
A few illustrations regarding matters specifically mentioned



by appellees may be helpful.

At page 11 of their brief, appellees insist that Dr. 
Bedelle "did not agree that black principals made schools 
racially identifiable as stated on page 13 of the brief."
Dr. Bedelle's testimony is as follows:

Q. All right. Then we come down to Park Lowry,
Now that is a predominant black school and it 
has a black principal doesn't it?

A. Yes.
Q. And go on down to Sam Hill —  well, just keep

your finger on the last column and you can find 
the formerly black schools in this system, can't 
you, Dr. Bedelle?

A. Yes.
Q. Isn't that a matter of racial identifiability, 

everyone of them, Austin-East, Beardsley, every 
black school has a black principal?

A. And has a black principal with a lot of tenure
in a relatively secure salary category. (A. 146)

On page 12 appellees do correctly note that because of 
counsel's error in transcription from his own notes, the wrong 
pages were cited for Mr. Lawler's testimony. The proper 
reference is to page 375 where he testified as follows:

Q. When you locate public housing in close proximity 
to schools segregated by race, and the public 
housing is segregated by race, what —  would that 
or not have a reinforcing effect on segregation in the schools?

A. I would think so.
Q. And if you located schools, on the other hand,

in an area adjacent —  an area close to a public 
housing pro3ect that was segregated by race, 
would that, or not, have a tendency to create or 
strengthen segregation in those schools?

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A. If you consider the neighborhood concept, I am 
sure it would.

Examination of other claimed inaccuracies would merely be cumu­
lative .

II

Appellees at pages 22-26 of their brief criticize us 
for our discussion of transfer policies and contend that the 
district court did not, as we suggested, "conveniently ignore" 
the evidence because it was not pointed out to the judge. We 
agree with appellees that Dr. Bedelle produced the transfer 
request but was not examined in detail about them. However,
Dr. Stolee testified that his own analysis of the requests 
indicated that they had been used to perpetuate segregation. 
Whether or not any further emphasis before the district court 
was placed upon the transfer requests, the court states in its 
opinion (A. 1667-68) that it looked at the forms and disagreed 
with Dr. Stolee's conclusions. It was only because the district 
court purported to have examined the formswith sufficient 
thoroughness to rebut Dr. Stolee's conclusions that we discuss 
them in the brief at all.

Ill

The Board argues that Knoxville is somehow different 
from Swann because all of the parties (namely, the Board itself) 
do not agree that prior to the 1972 hearings, Knoxville had 
not attained a unitary nondiscriminatory school system. What-

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t

ever may be the merits of such an essentially picayune distinc­
tion, it is clearly inapplicable to Davis v. Board of School 
Comm1rs of Mobile, 402 U.S. 33 (1971), the companion case to
Swann before the Supreme Court. The Board would conveniently 
overlook the repeated charge by the Supreme Court that desegre­
gation efforts are to be tested by their effectiveness just 
as it would like to rewrite the Swann decision to relieve it 
of the obligation of measuring its desegregation results With 
a consciousness of the system-wide pupil distribution. It is 
interesting that the discussion of this novel proposition in 
the brief (pp. 15-16) does not contain a single case citation.

IV
With respect to the counsel fee issue, we wish to bring 

to the Court's attention the November 29, 1972 decisions of the 
United States Court of Appeals for the Fourth Circuit in 
Bradley v. School Bd. of Richmond, No. 71-1774 (rev1g 53 F.R.D. 
28 (E.D. Va. 1971], cited in our opening Brief); Thompson v. 
School Bd. of Newport News, Nos. 71-2032-33; Copeland v. School 
Bd. of Portsmouth, Nos. 71-1993-94; and James v. Beaufort County 
Bd. of Educ., No. 72-1065, which are attached hereto as an 
Appendix for the convenience of the Court. In those school 
or teacher desegregation cases, the Fourth Circuit rejected 
arguments relating to the award of counsel fees that were 
essentially the same as those made here by appellants. We urge

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this Court not to follow the Fourth Circuit; we respectfully 
refer it to the dissenting opinions of Judge Winter, which we 
believe present the proper view as to both the applicability 
of §718 of the Education Amendments of 1972 and as to whether a 
private-attorneys-general standard should apply in §1983 school 
desegregation cases.

We have discussed at length in our main brief the reasons 
why §718 applies to this case, and here we will simply reiterate 
some of those points in response to the arguments of appellees.

Appellees' discussion of Thorpe v. Housing Authority of 
Durham, 393 U.S. 268 (1969) is simply incorrect. There, the 
North Carolina Supreme Court had applied what it held to be a 
general proposition, namely that statutes are never presumed to 
have retroactive effect but only to operate prospectively, when 
it held that the HUD regulation at issue did not apply. 393 
U.S. at 273-74. The Supreme Court unequivocally rejected that 
view and held that, in federal courts, the general rule was that 
the law as it existed at the time of decision must govern. Thus, 
in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971),
the petitioners argued, relying on Thorpe, that a Department of 
Transportation regulation issued after the approval of the 
highway route in question governed:

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. . . even though the order was not in
effect at the time . . . and even though
the order was not in tended to have 
retrospective effect . . . .

401 U.S. at 418 (emphasis supplied). The Supreme Court, after 
discussing Thorpe at some length, stated that it does "not 
question that . . . [the] order . . . constitutes the law in
effect at the time of our decision . . . ." Id. at 419. No
hint was given that Thorpe was a limited holding arising from 
the fortuity that Mrs. Thorpe had obtained stays of her eviction 
notice pending the disposition of her petition for writ of 
certiorari.

The significant fact, common to Thorpe, Volpe and this 
case, is that in the earlier stages of litigation substantive 
rights were governed by a rule of law that was subsequently 
changed before a final determination of the merits. It is this 
factor that distinguishes Greene v. United States, 376 U.S. 149 
(1964), cited by appellees, which was specifically relied upon 
by the North Carolina Supreme Court in Thorpe, and which 
reliance was discussed and rejected by the United States Supreme 
Court.

We recognize that the Fourth Circuit, in the attached 
decisions, relies on this purported principle of prospective 
application. However, we note, as does Judge Winter, that the 
majority simply states the principle with no discussion what-

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soever of the meaning or applicability of Thorpe.

Appellees' argument that the private-attorneys-general 
theory is inapplicable because of possible HEW enforcement or 
the right of the Attorney General to commence suit is also 
inapposite. This lawsuit was filed prior to the passage of 
the Civil Rights Act of 1964 which established such mechanisms.
At no time during its pendency has the Attorney General sought 
to intervene (as that officer has done in some other school 
desegregation cases) to effectuate the rights of plaintiffs' 
class. And as the United States District Court for the District 
of Columbia recently held in Adams v. Richardson, Civ. No.
3095-70 (Nov. 16, 1972)[copy attached as appendix], there has
been no HEW enforcement of desegregation in districts under 
judicial supervision.

Moreoever, the Attorney General may also bring and inter­
vene in suits to enforce rights protected by Titles II and VII 
of the Civil Rights Act of 1964 (see, 42 U.S.C. §§2000a-3, 2000a- 
2000e-5 and 2000e-6); nevertheless, it is clear that the private 
parties bringing such suits will receive attorneys' fees pursu­
ant to Newman v. Piggie Park Enterprises, Inc., 390 U.S.

42 U.S.C. §2000c(6)(b) does indeed permit the Attorney 
General to institute a legal action to desegregate a school 
district when he has received a complaint in writing, believes



it is meritorious, and deems the complainant "unable, either 
directly or through other interested persons or organizations, 
to bear the expense of the litigation or to obtain effective 
legal representation." The language makes it clear that Congress 
intended enforcement of school desegregation to rest not only, 
or even principally, upon the activities of the federal govern­
ment but rather upon a combination of federal action and 
continued vigorous private litigation. Cf. 42 U.S.C. §2000c-(8).

Finally, we submit there is no problem with the "final 
order" language of §718. The purpose of that provision is to 
prevent collusive lawsuits, not to postpone the assessment of 
attorneys' fees until a case is stricken from the docket. We 
do not seek to have this Court award fees for services which 
will be required upon a remand; rather, we seek direction to 
the district court to make an award of reasonable counsel fees 
for the period of the litigation which has pushed Knoxville 
toward, although not achieving, full desegregation of its school 
system.

CONCLUSION
Plaintiffs respectfully repeat their request for relief 

contained at pp. 60-61 of the opening Brief for Appellants herein.

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Respectfully submitted,/, /
, ( \ //

CARL A. COWAN 
2212 Vine Avenue 
Knoxville, Tennessee 37915

AVON N. WILLIAMS, JR.
404 James Robertson Parkway 
Nashville, Tennessee 37219
JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
SYLVIA DREW 
JOHNNY J. BUTLER 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of December, 
1972, I served two copies of the foregoing Reply Brief for 
Appellants upon counsel for the appellees herein, by depao iting 
same in the United States mail, first class postage prepaid, 
addressed to each as follows: Sam F. Fowler, Jr., 1412
Hamilton National Bank Building, Knoxville, Tennessee 37902, 
and W. P. Boone Dougherty, 1200 Hamilton National Bank Building, 
Knoxville, Tennessee 37902.

// , /( c ■

-9-



UNITED STATES CC'JilT GF AFrEAlS
FOR THE FOURTH CIRCUIT

No. 71-1774

Carolyn Bradley and Michael Bradley, 
infants, by Minerva Bradley, their
mother and next friend, et al. , Appellees,

-versus-
The School Board of the City of
Richmond, Virginia, et al.. Appellant.

Appeal from the United States District Court for the 
Eastern District of Virginia, at Richmond. Robert R. 
Merhige, Jr., District Judge.

Section III of the opinion, dealing with the application of 
Section 710 to the proceedings, heard October 2, 1972,
Before HAYNSWORTH, Chief Judge, WINTER, CRAVEN, RUSSELL and 
FIELD, Circuit Judges (Butrner, Circuit Judge, being dis­
qualified) sitting en banc;
Other parts of the cause heard March 7, 1972,
Before WINTER. CRAVEN and RUSSELL, Circuit Judges.

Decided November 29, 1972.

George B. Little (John H. O'Brion, Jr., James K. Cluverius, 
and Browder, Russell, Little and Morris, and Conrad B. Mattox, 
Jr., City Attorney for the City of Riclur.ond, on briof) for 
Appellant, and Louis R. Lucas (Jack Greenberg, James Nabrit, 
III, Norman J. Chachkin, James R. Olphin, and M. Ralph Page 
on brief) for Appellees.



RUSSELL, Circuit Judge:
This appeal challenges an award of attorneys fees

. nlaintiffs in the school desegregationmade to counsel for plamtins
suit filed against the School Board of the City of Richmond. 
Virginia. Though the action has been pending for a nunber 
of years/ the award covers services only for a perrod fro* 
March, 1970. to January 29. 1971. It is predicated on two
grounds, U) that the actions tahen and defenses entered by 
the defendant School Board during such period represented 
unreasonable and obdurate refusal to 1 * 1 — *  clear consti­
tutional standards, and (2) apart from any consideration of

1See Note 1 in majority 
School poard of̂  the £.i£X  
june 5. 1972. for history of

opinion of Bradley 
Richmond, Virginia, 
this litigation.

v . The
decided

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obduracy on the part of the defendant School Board since 1970, 
it is appropriate in school desegregation cases, for policy 
reasons, to allow counsel for the private parties attorney's 
fees as an item of costs. The defendant School Board con­
tends that neither ground sustains the award. We agree.

We shall consider the two grounds separately.
I.

This Court has repeatedly declared that only in
"the extraordinary case" where it has been "'found that the 
bringing of the action should have been unnecessary and was 
compelled by the school board's unreasonable, obdurate obsti­
nacy' or persistent defiance of law", would a court, in the 
exercise of its equitable powers, award attorney's fees in 
school desegregation cases. Brewer v. School Board of. City 
of Norfolk, V irginia (4th Cir. 1972) 456 F.2d 943, 949. 
Whether the conduct of the School Board constitutes "obdurate 
obstinacy" in a particular case is ordinarily committed to 
the discretion of the District Judge, to be disturbed only 
"in the face of compelling circumstances", Bradley v. School 
Boa rd o_f City q£ Richmond, Vi rginia (4th Cir. 1965) 345 F.2d 
310, 321. A finding of obduracy by the District Court, like

-3-



any other finding of fact made by it, should bo reversed
however, if "the reviewing Court on the entire evidence is 
left with the definite and firm conviction that a mistake 
has been committed." United States v. Gypsum Co. (1948) 333 
U. S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746; Wright-Miller. 
Federal Practice end Procedure. Vol. 9, p. 731 (1971). We 
are convinced that the finding by the District Court of 
"obdurate obstinacy" on the part of the defendant School 
Board in this case was error.

Fundamental to the District Court's finding of 
obduracy ia its conclusion that the litigation, during the 
period for which an allowance wao made, was unnecessary and 
only required because of the unreasonable refusal of the 
defendant School Board to accept in good faith the clear 
standards already established for developing a plan for a 
non-racial unitary school system. This follows from the 
pointed statements of the Court in the opinion under review 
that, "Because the relevant legal standards were clear it is 
not unfair to say that the litigation (in this period) was 
unnecessary", and that, "When parties must institute litiga­
tion to secure what is plainly due them, it is not unfair to 
characterize a defendant's conduct as obstinate and unreason­
able ana as a perversion of the purpose of adjudication, which

- 4-



is to settle actual disputes.- At another point in Its 
opinion, the Court uses similar language, declaring that 
-the continued litigation herein (has) been precipitated 
by the defendants' reluctance to accept clear legal direc­
tion, * * *."* 3 It would appear, however, that these criti­
cisms of the conduct of the Board, upon which, to such a 
large extent, the Court's award rests, represent exercises
in hindsight rather than appraisal of the Board's action in

4the light of the law as it then appeared. The District 
Court itself recognized that, during this very period when 
it later found the Board to have been unreasonably dilatory 
there was considerable uncertainty with reference to the 
Hoard's obligation, so much so that the Court had held in 
denying plaintiffs' request for mid-school year relief in

2

See, 53 FRD at p. 39.

3 53 FRD at p. 40.

^ See Monroe v. Board of Com' rs. of City of. Jackson.
Tenn. (6th Cir. 1972) 453 F.2d 259, 263:

"In determining whether this Board's conduct 
war,, as found by the District Court, unduly 
obstinate, we must consider the state of the 
law as it then existed."

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the fall of 1970, that "it would not be reasonable to require 
further steps to desegregate * * giving as its reason:
"Because of the nearly universal silence at appellate levels, 
which the Court interpreted as reflecting its own hope that 
authoritative Supreme Court rulings concerning the desegrega­
tion of schools in major metropolitan systems might bear on 
the extent of the defendants' duty." In fact, in July,
1970, the Court was writing to counsel that, "In spite of the 
guidelines afforded by our Circuit Court of Appeals and the 
United States Supreme Court, there are still many practical 
problems left open, as heretofore stated, including to what 
extent school districts and zones may or must be altered as 
a constitutional matter. A study of the cases shows almost 
limitless facets of study engaged in by the various school 
authorities throughout, the country in attempting to achieve 
the necessary r e s u l t s . T h e  District Court had, also, earlier 
defended the School Board's request of a stay of an order 
entered in the proceedings on August 17, 1970, stating:
"Their original (the School Board's) requests to the Fourth

53 FRD at p. 33.

^ See, Joint Appendix 74-75.
- 6 -



Circuit that the matter lie in abeyance were undoubtedly based 
on valid and compelling reasons, and ones which the Court has 
no doubt were at the time both appropriate and wise, since 
defendants understandably anticipated a further ruling by 
the United States Supreme Court in pending cases; * * *."7 
Earlier in 1970, too, the Court had taken note of the legal 
obscurity surrounding what at that time was perhaps the crit— 
ical issue in the proceeding, centering on the extent of the 
Board's obligation to implement desegregation with transpor­
tation. Quoting from the language of Chief Justice Burger in 
his concurring opinion in Norcross v. Board of Education o_f 
Memphis, Tenn. City Schools. (1970) 397 U. S. 232, 237, 90 
S. Ct. 091, 25 L. Ed. 2d 426, the District Court observed 
that there are still practical problems to be determined, 
not the least of which is "to what extent transportation may 
or must be provided to achieve the ends sought by prior hold­
ings of the Court."8 In fact, the District Court had during 
this very period voiced its own perplexity, despairingly com­
menting that "no real hope for the dismantling of dual school 
systems (in the Richmond school system) appears to be in the

7 325 F. Supp. at p. 032.

8 317 F. Supp. at p. 575.
- 7 -



offing unless and until there is a dismantling of the all 
Black residential areas.”9 At this time, too. as the Dis­
trict Court pointed out, there was some difficulty in apply­
ing even the term "unitary school system".10 In summary, it 
was manifest in 1970, as the District Court had repeatedlyI
stated, that, while Brown and other cases had made plain 
that segregated schools were invalid, and that it was the 
duty of the School Board to establish a non-racial unitary 
system, the practical problems involved and the precise 
standards for establishing such a unitary system, especially 
for an urbanized school system- which incidentally were the 
very issues involved in the 1970 proceedings- had been neither 
resolved nor settled during 1970; in fact, the procedures are 
still matters of lively controversy.11 It would seem, there­
fore, manifest that, contrary to the promise on which the

9 317 F. Supp. at p. 560.
10 That this tern "unitary" is imprecise, the District 

Court stated in 325 F. Supp. at p. 044:
"The law establishing what is and what is not 
a unitary school system lacks the precision 
which men like to think imbues other fields 
of law; perhaps much of the public reluctance 
to accept desegregation rulings is attributable 
to this indefiniteness."

11 Bradley v. The School Board of the City of Richmond. 
Virginia. decided June 5, 1972, supra.

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District Court proceeded in itr. opinion, the legal standards 
to be followed by the Richmond School Board in working out an 
acceptable plan of desegregation for its system were not clear 
and plain at any time in 1970 or even 1971.

It is true, as the District Court indicates, that 
the Supreme Court in 1960 had. in Green v. County. School Board 
(I960) 391 U. S. 430. 88 S. Ct. 1689. 20 L. Ed. 2d 716. found 
" f reedorn-o f-cho i cc “ plans that were not effective unacceptable 
instruments of desegregation, and that the defendant Board, 
following that decision, had taken no affirmative steps on 
its own to vacate the earlier Court-approved "freedom-of- 
choice" plan for the Richmond School system, or to submit a 
new plan to replace it. In Green, the Court had held that.
••if there are reasonably available other ways, such for illus­
tration as zoning, promising speedier and more effective con­
version to a unitary, nonracial school system, 'freedom of 
choice’ must be held unacceptable."12 In suggesting zoning. 
Green offered a ready and easily applied alternative to 
•• freedom-of-choice” for a thinly populated, rural school 
district such as Old Kent, but other than denying generally 
legitimacy to freedom-of-choice plans, Green set forth few.

12 391 U.S. at p. 441.



if any, standards or benclimaiks for fashioninq a unitary system 
in an urbanized school district, with a majority black student 
constituency, such as the Richmond school system. In fact, a 
commentator has observed that "Green raises more questions than 
it answer*;". Perhaps the School Board, despite the obvious 
difficulties, should have acted promptly after the decis­
ion to prepare a new plan for submission to the Court. Because 
of the vexing uncertainties that confronted the School Board 
in framing a new rdan of desegregation, problems which, inci­
dentally, the District Court itself finally concluded could 
only be solved by the drastic and novel remedy of merging 
independent school districts,14 and pressed with no local 
complaints from plaintiffs or others, it was natural that the 
School Board would delay. Mere inaction under such circum­
stances, however, and in the face of the practical difficulties 
as reflected in the later litigation, cannot be fairly charac­
terized as obdurateness. Indeed the plaintiffs themselves were 
in some apparent doubt as to how they wished to proceed in the 
period immediately after Green and took no action until March,

H2 r. Rev. lib.

14 A measure found inapprooriate by this Court in Bradley
v* lllS School, Board o£ the_ City of Richmond, Virqinia. decided June 5, 1 972 , suora.

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1070. Even then they offered no real plan, contenting them- 
se 1 vc- s with demand i ng that the School Board formulate a uni­
tary plan, and with requesting an award of attorney's fees.
It is unnecessary to pursue this matter, however, since the 
District. Court does not seem to have based its award upon the 
inaction of the School Board prior to March 10, 1970, but 
predicated its award on the subsequent conduct of the School 
Boa rd.

The proceedings, to which this award applies, began 
with the filing by the plaintiffs of their motion of March 10, 
1970, in which they asked the District Court to "require the 
defendant school board forthwith to put into effect a method 
of assigning children to public schools and to take other 
appropriate steps which will promptly and realistically con­
vert the public schools of the City of Richmond into a unitary 
non-racial system from which all vestiges of racial segregation 
will have been removed; and that the Court award a reasonable 
fpe to their counsel to be assessed as costs. With the filing 
of this motion, the Court ordered the defendant School Board 
to "advise the Court if it is their position that the public 
schools of the City of Richmond, Virginia are being operated 
in accordance with the constitutional requirements to operate

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unitary schools as enunciated by the United states Supreme 
Court." it added that, should the defendant School Board not 
contend that its present operations were in compliance, it 
should advise the Court the amount of time' needed "to sub­
mit a plan." Promptly, within less than a week after the 
Court issued this order, the School Board reported to the 
Court that (1) it had been advised that it was not operating 
"unitary schools in accordance with the most recent enuncia­
tions of the Supreme Court of the United States" and (2) it 
had requested HEW. and HEW had agreed, to make a study and 
recommendations that would "ensure" that the operation of the 
Richmond Schools was in compliance with the decisions of the 
Supreme Court. This HEW plan was to be made available "on or 
about May 1, 1970" and the Board committed itself to submit a 
proposed plan "not later than May 11, 1970". A few days later, 
the District court held a pre-trial hearing and specifically 
inquired of the School Board as to the necessity for "an evi­
dentiary hearing" on the legality of the plan under which the 
schools were then operating. The defendant School Board can­
didly advised the court that, so far as it was concerned, no 
hearing was required since it "admitted that their (its) free- 
dom-of-choice plan, although operating in accord with this

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- — T r * » « *



***'*•' c > :.-

Court's order o.f M&jfth 30 » I960, was opefat
„15contrary to const i tut iona lifdfpj irdments 

Court characterizes this concession by the 
"reluctantly" given, and its finding of re 
early stage in the proceeding is an element 
Court's conclusion that the School Board ha 
The record, however, provides no basis for 
zation of the conduct of the School Board, 
had manifested no reluctance to concede that 
pla n of operation did not comply with Green

m g  in a manner*
The District

School Board as 
l.p eta nee at this 

in the District 
s been obdurate, 
this characteri-

by the Court for a response to plaintiffs' 
acted with becoming dispatch to enlist the 
agency of Government supposed to have expe 
of school desegregation and charged by law 
assisting school districts with such problem 
of the School Board at this stage could be 
ably calculated to facilitate the progress 
and to lighten the burdens of the Court.

The School Board 
its existing 
When called on 

ihotion, it had

Th
supported by the fact that what the Board d 
found acceptable and helpful by both the Co4 
tiffs. Neither contended that the proposed

assistance of that 
rtise in the area
Vith the duty of 
s. Every action 

said to be reason- 
f the proceedings 
is conclusion is
• d was apparently 
rt and the plain- 
time-table was

15 333 F. jupp. 71.
-1 3-

/• *



dilatory or that the use of HEW was an inappropriate agency 
to prepare an acceptable plan. As a matter of fact, the 
utilization of the services of HEW under these circumstances 
was an approved procedure at the time, one recommended by 
courts repeatedly to school districts confronted with the 
same problem as the Richmond schools.^

On May 4, 1970, HEW submitted to the School Board 
its desegregation plan, prepared, to quote HEW, in response 
to the Board's own "expressed desire to achieve the goal of 
a unitary system of public schools and in accordance with 
our interpretation of action which will most soundly achieve 
this objective." In formulating its plan, HEW received no

Green v. School Board of City of Roanoke, Virginia 
(4th Cir. 1970) 428 F.2d 811, 812; Monroe v. County Bd. of 
Educat ion of Madison Co., Tenn. (6th Cir. 1971) 439 F.2d 804, 
806; Note, The Courts, HEW and Southern School Desegregation,
77 Yale L. J. 321 (1967).

During oral argument, counsel for the plaintiffs con­
tended that HEW had in recent months become a retarding factor 
in school desegregation actions, citing Norcross v. Board of 
Education of Memphis, Civ. No. 3931, (W.D. Tenn., Jan. 12, 1972
____ F. Supp. ____, ____. Without passing on the justice of
the criticism, it must be borne in mind this was not the view 
in 1970, as is evident in the decisions cited. This argument 
emphasizes again, it may be noted, the erroneous idea that the 
reasonableness of the Board's conduct in 1970 is to be tested, 
not by circumstances as they were understood then, but in the 
light of 197? circumstances.

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instructions from the School Board. "Except to try our best 
to meet the directive of the Court Order and they gave me the 
Court Order." There were no meetings of the School Board and 
HEW "until the plan had been developed in almost final form." 
Manifestly, the Board acted throughout the period when HEW was 
preparing its plan, in utmost good faith, enjoining HEW "to 
meet the directive” of the Court and relying on that special­
ized agency to prepare an acceptable plan. The Board approved, 
with a slight, inconsequential modification, the plan as pre­
pared by HEW and submitted it to the Court on May 11, 1970.
The District Court faults the Board for submitting this plan, 
declaring that the plan "failed to pass legal muster because 
those who prepared it were limited in their efforts further 
to desegregate by self-imposed restrictions on available tech­
niques"17 and emphasizing that its unacceptability "should have 
been patently obvious in view of the opinion of the United 
States Court of Appeals for the Fourth Circuit in Swann v.
Chari ott e-Mock lonburg Boa rd of Education , 4 31 F.2d (13B) (4th 
Cir. 1970), which had been rendered on May 26, 1970." ^  The

See, 53 F.R.D. at p. 31. 

See, 3 38 F. Supp. at p. 71.

1 7

-15-



failure to use "available techniques" such as "busing and 
satellite zonings" and whatever "self-imposed limitations" 
may have been placed on the planners were not the fault of 
the School hoard but of MEW, to whom the School Board, with 
the seeming approval of the Court and the plaintiffs, had 
committed without any restraining instructions the task of 
preparing an acceptable plan. Moreover, at the time the plan 
was submitted to the Court by the School Board, '-wann had not 
been decided by this Court. And when the Court disapproved 
the HEW plan, the hoard proceeded in good faith to prepare on 
its own a new plan that was intended to comply with the ob­
jectives stated by the Court.

The Court did find some fault with the Board because, 
"Although the School Board had stated, as noted, that the free 
choice system failed to comply with the Constitution, produc­
ing as it did segregated schools, they declined to admit during 
the June (1970) hearings that this segregation was attributable 
to the force of law (transcript, hearing of June 20, 1970, at 
322)" and that as a result, "the plaintiffs were put to the 
time and expense of demonstrating that governmental action lay 
behind the segregated school attendance prevailing in Richmond".1

See, 53 FR at p. 30.

-16-



This claim of obstruction on the part of the Board is based
on the latter’s refusal to concede, in reply to the Court's
inquiry, "that free choice did not work because it was de

20facto segregation". it is somewhat difficult to discern
the importance of determining whether the "free choice" plan
represented "de facto segregation" or not: It was candidly
conceded by the School Board that "free choice", as applied
to the Richmond schools, was impermissible constitutionally,
and this concession was made whether the unacceptability was

21due to ”de facto" segregation or not. in a school system
such as that of Richmond, where there had been formerly de
■jure segregation. Green imposed on the School Board the "duty
to eliminate racially identifiable schools even where their
preservation results from educationally sound pupil assignment 

22policies." The School Board's duty was to eliminate, as far

20
See Joint Appendix 47, Tr. p. 322.

21
See 345 F. 2d 322.

2202 Mar. h. Rev. Ill; rf., Fills v. Board of Public 
Instruction o_f Orange C o . , F1 a . (5th Cir. 1970) 423 F. 2d 203,
204 .

-17-



as feasible, "racially identifiable schools” in its system.
The real difficulty with achieving this result was that,
whatever may have been the reasons for its demographic and

24residential patterns, there was, as the Court later 23 24

23

23
The very term racially identifiable" has received no 

standard definition. in Beckett v. School Board of City of 
Norfojk (D.C.Va. 1969) 308 F. Supp. 1274. 1291,r e ~  o^ other 
grounds, 434 F. 2d 408, the Court found that a school in which 
f-he representation of the minority group was 10 per cent or 
bottor was not 'racially identifiablo". Dr. Pettigrew, the 
expert witness on whom the District Court in this proceeding 
relied heavily and who testified in Beckett, used 20 per cent 
in determining 'racially identifiable" school population.
See 306 F. Supp. 1291. The recent case of Yarbrough v.
Hu 1hert-West Memphis School pist. No. 4 (8th Cir. 1972)
457 F. 2d 333, 334, apparently would define as "racially
identifiable" any school where the minority, whether white or 
black, was less than 30 per cent. The District Court in this 
proceeding would, in its application of the term "racially 
identifiable", construe the term as embracing the idea of a 
"viable racial mix" in the school population, which will not 
lead to a desegregation of the system. 330 F. Supp. at pp. 194 
Actually, as Dr. Pettigrew indicated, it would seem the term 
"racially identifiable" has no fixed definition and, its 
application, will v^ry with the circumstances of the particular 
situation, just as a plan of desegregation itself will vary, 
since, as the Court said in Green, supra, at p. 439, "There is 
no universal answer to complex problems of desegregation; there 
is obviously no one plan that will do the job in every case. "

24That school policy is generally a minimal factor in 
such, situation, see 65 liar. I,. Rev. 77. m  fact, the use of 
zoning and restrictive covenants as instruments of segregation 
is far more typical of northern than southern communities. See 
McCloskey, The Modern Supreme Court (Mar.,1972), pp.109-10;

"In fac.t, the maintenance of 'black ghettos' 
in tlie- cities was the north's substitute for 
th' segregation laws of the south * * *. The

- If -



reluctantly recognized, no practical way to achieve a
racially balanced mix, whatever plan of desegregation
was adopted, with a school population approximately
65 per cent black, it was not possible to avoid having schools

25that would be heavily black. The constitutional obligation
thus could, in that setting, only have as its goal the one
stated by the District Court, i.e., "to the extent feasible

26within the City of Richmond." Indeed, it was the very 
intractability of the problem of achieving a "viable racial 
mix" that prompted the Court to suggest in July, 1970, that it 25 26

24(Continued)
president's Committee on Civil Rights reported 
in 1947 that the amount of land covered by 
racial restriction in Chicago was as high as 
80 per cent and that, according to students 
of the subject, virtually all new subdivisions 
are blanketed by these covenants."

25Cf.. United states v. Choctaw County Board of Education 
(D.C.Ala. 1971) 339 F. Supp. 901, 903.

26
See 325 F. Supp. 835.

- 19-



might be appropriate for the def<ndant School Board to discuss
with the school officials of the contiguous counties the
feasibility of consolidation of the school districts, "all

27of which may tend to assist them in their obligation".
The Court's finding of obstruction particularly 

centers on the substitute plan which the School Board 
proposed on July 23, 1970, in accordance with the Court's
previous directive. It found two objections to the plan. The 
objections are actually part of one problem, i.c., 
transportation. The Hirst objection was that the plan did not 
require as much integration in the elementary grades as in
the higher grades. Such a difference in treatment, however.

28 29the Court found had some support in both Swann and Brewer.
An increase in the desegregation of the elementary grades, 
however, depended upon the purchase and use of a considerable 
amount of transportation equipment by the Board; and this was t 
basis of the second criticism that 'the School Board had in

27See Joint Appendix 74
2B
431 F. 2d 13R.

29
In 321 F. Supn. ‘“68, the Court said;

"Lanauan and holdinas in both Swann and
Bjrewer v-. School I ioa r d of c i t y of Norfolk ,
4 34 F. 2d 408 (4 th C i r . Juno 22, 1970),
indicate that a schorl board's duty to 
desegregate at the secondary level is some­
what-more categori-M than at the elementary level,



August 0.970) still taken no steps to acquire the necessary 
equipment. ,,3° The Court repeated this criticism with refer­
ence to the plaintiffs' mid-term motion made in the fall of 
1970 for an amendment of defendant's approved interim plan 
which, for implementation, "required the purchase of trans­
portation facilities which the School Board still would only 
say it would acquire if so ordered."30 31 Yet at the very time 
when the action of the School Board in failing to buy buses 
was thus being found to be "unreasonably obdurate", the Court 
itself was declaring on August 7, 1970, that "it seems to me 
it would be completely unreasonable to force a school system 
that has no transportstion, and you all don't have any to 
any great extent, to go out and buy new busses when the 
United States Supreme Court may say that is wrong. Again,
as late as January 29. 1971. the Court, in refusing to order 
the immediate implementation of a plan submitted by the 
plaintiffs, which "would require the acquisition of additional 
transportation facilities not then available", found that "the

30 53 FRU 32.

31 53 FRD 32-3.

Joint Appendix 92-3.
- 21-



possibility that forthcoming rulings (by the Supreme Court," 
might make such acquisition unnecessary and a needless expense 
induced "the court to decide that Mediate reorganisation 
Of the Richmond system would be •unreasonable, under Swann "33

“  thC C°Urt Jid "0t fCCl -  —  reasonable in January. l97l 
to require the Board to purchase additional buses, it certain-

t be said that, m  the period of uncertainty in 1970 
the failure of the School Board to propose such acquisition.' 
lustifies any charge of unreasonableness, much less obdurate­
ness or action "in defiance of law" or taken in "bad faith".

The conclusion of the District Court that the Board
was "unreasonably obdurate", it seems was • ,,ctrTIS' was influenced by the
feeling, repeated in a number of the Court's opinions, that 
"Each move (by the Board, in the agonisingly slow process of 
desegregation has been taken unwillingly and under coercion".34 
The record, as we read it. though, does not indicate that the 
Board was always halting, certainly not obstructive, in its 
efforts to discharge its legal duty to desegregate, nor does 
it seem that the Court itself had always so construed the

3 3

34
Sec, Joint Appendix 132, 13/j, 135 

338 1 . Supp. 103; see. also. 53 FRD 39.

- 22-



action of the Board. In June, 1970, the Court remarked, that
while not satisfied "that every reasonable effort has been 
made to explore" all possible means of improving its plan, 
it was "satisfied Dr. Little and Mr. Adams (the school admin­
istrators) have been working day and night diligently to do 
the best they could, the School Board too."^^ It may be that 
in the early years after Brown the School Board was neglect­
ful of its responsibility, but, beginning in the middle of 
1965, it seems to have become more active. Moreover, the 
promptness and vigor with which the Board adopted and pressed 
the suggestion of the Court that steps be considered in con­
nection with a possible consolidation of the Richmond schools 
with those of Chesterfield and Henrico Counties must cast 
doubt upon any finding that the Board was unwilling to explore 
any avenue, even one of uncharted legality, in the discharge 
of its obligation. The Court wrote its letter suggesting a 
discussion with the other counties looking to such possible 
consolidation on July 6 , 1970. The letter was addressed to 
the attorneys for the plaintiffs but a copy went to counsel 
for the School Board. Nothing was done by counsel for the 
plaintiffs as a result of this letter but on July 23, 1970,

35 See , Joint Appendix 92.
-23-



the Board moved the Court for leave to make the School Boards 
of Chesterfield and Henrico Counties parties and to serve on 
them a third-party complaint wherein consolidation of their 
school systems with that of the Richmond systems would be 
required. The Board thereafter took the -laboring oar" in 
that proceeding. Neither it nor its counsel has been halting 
m  pressing that action, despite substantial local disapproval.36 37

It is clear that the Board, in attempting to develop
a unitary school system for Richmond during 1970, was not
operating in an area where the practical methods to be used
were plainly illuminated or where prior decisions had not
left a "lingering doubt" as to the proper procedure to be 

37
followed. Even the District Court had its uncertainties.
All parties were awaiting the decision of the Supreme Court 
in Swann. Before Swann was decided, however, the parties 
were engaged in an attempt to develop a novel method of 
desegregating the Richmond school system for which there was 
not as the time legal precedent. Nor can it be said that 
there was not some remaining confusion, at least at the District

36
See, 338 F. Supp. 67, 100-1.

37Sec, Lora! No. 149 A.& A. I .W.
I*I£Lk<I Co_j_ (4t h Cir. 1902) 298 F. 2d 212,
369 II. S. 873, 82 S. Ct. 1142, 8 L.Ed.2d 276.

v. American 
216, cert. den.

In ivrer on v. Ra^, 380 u.S. 547, 557 (1967), it was 
stated that "a police officer is not charged with predicting 
the future course of constitutional law " nv like -
seem a school board should not be required, under penalty of’beiS 
charged with obdurateness and being saddled with onerous attorneys
law" * i n°t h^murky^’i'rod 0^  ^  course of "const i tut iona

1 no murKy <<ioa of school desegregation. 2 4



30 Thr frustrationslevel, about the scope of Swann tt-el •
Of the District court in its commendable attempt to arrive 
at a school Plan that would protect the constitutional rights 
of the plaintiffs and others in their class, are understand­

able. but. to some extent, the School Board itself was also
v fp. Find undo r the sc c i. it frustrated. It seems to us unfair to find un

cumstances that it was unreasonably obdurate.
The District court enunciated an alternative ground

for the award it made. It concluded that school desegregation 
actions serve the ends of sound public policy as expressed in 
Congressional acts and are thus actually public actions, 
carried on by •■private-attorneys general", who are entitled 
to be compensated as a part of the costs of the action. Specif­
ically. it held that "exercise of equity power requires the 
Court to allow counsels' fees and expenses, in a field in 

which congress has authorised broad equitable remedies 'unless 
special circumstances would render such an award unjust.'" 

Apparently, though, the District Court would limit the appli­

cation of this alternative ground for the award to those

3H winstnn-Falem/Forsyth County Board _°I Education 
v. Scott^ opi^ori'of-Chief Justice Burger, dated August 31.
1 971 . ____U S . -----*

39 See 53 FRD at p. 42.
-2 5-



frn
r

situations where the rights of the claim,rrplaintiff were plain and
the defense manifestly without merit This en , ■• mis conclusion fol-
lows from the fact that the Court finds this right of an

item previous expressions in the opinion, the Court concluded 
that all doubts about how to achieve a non-racial unitary
schc.1 system had been resolved, and any failure of a school
system to inaugurate such ^e such a system was obviously in bad faith
and in defiance of law That- fmiiThat follows from this statement made
by way of preface to its exposition of its alternatis alternative ground:

oraSli^ingC'f^sSon°th:Clih0 *">ropri.t„n...
equitable standa, '̂ h e ^ I r Y 1V ', d i t ; ! 1that in 1970 and ini, It “ 15 persuaded
full^and'ai0n “ ‘^ “ i o n ^ s ^ ^  s u c h ^  

alternative ground for today's ruling."40
If this is the basis for the Court's alternative 

ground, it realiy does not differ from the rule that has 
heretofore been followed consistently by this Court that.
where a defendant defends in bad faith or in defiance of law.
equity will award attorney’a foes The diff ny ees. The difficulty with the
application of l ho ConrPe -> ,,Court s alternative ground for an award on

40
S & c , 5 3 FRD at p. 41.

-2 6-



this basis, though, is its assumption that by 1970 the law 
°n the standards to be applied in achieving a unitary school 
system had been clearly and finally determined. As we have 
seen, there was no such certainty in 1970; indeed it would 
not appear that such certainty exists today. And it is this 
very uncertainty that is the rationale of the decision in 
Kelly, v. Guinn (9th cir. 1972) 456 F.2d 100. 111. where the 
Court, citing both the District Court’s opinion involved in 
this appeal (53 FRD 26). and Lee v. Southern Home sites Coro, 
(5th Cir. 1970) 429 F.2d 290. 295-296.41 sustained a denial 
of attorney’s fees in a school integration case, because.

"First, there was substantial doubt as to 
the school district's legal obligation in 
the circumstances of this case; the dis­
trict s resistance to plaintiffs’ demands 
rested upon that doubt, and not upon an 
obdurate refusal to implement clear consti­
tutional rights. Second, throughout the 
proceedings the school district has evinced 
a willingness to discharge its responsibili­
ties under the law when those duties were made clear."

If, however, an award of attorney's fees is to be 
made as a means of implementing public policy, as the District 
Court indicates in its exposition of its alternative ground of 
award, it must normally find its warrant for such action in

See, also, lyse v. Soul hern Homo Sites C o m  1971) A 44 F . 2d 143. ‘ ^ (5th Cir.

-27-



pro-statutory authority. Congress, however, has made no 
vision for such award in school desegregation cases. Legis­
lation to such effect, included in a bill to assist in the 
integration of educational institutions, was introduced in 
1971 in Congress but it was not favorably considered. More­
over, in the Civil Rights Act of 1964, it expressly provided
for such award in both the equal employment opportunity^ and

44tne public accommodations sections but pointedly emitted to 
include such a provision in the public education section.
In giving effect to this contrast in the several titles of 
the Civil Rights Act of 1904, and in affirming that any award 
of attorney’s fees in a school desegregation case must be pred­
icated cn traditional equitable standards, the Court in Kemp v. 
Beasley (8th Cir. 1965) 352 F. 2d 14, 23, said:

42

42See Fleischmann v. Maier Brewing Co. (1967) 386 U. S.
> 87 S. Ct. 1404, 18 L. Ed. 2d 475; see, also. Brewer 

v ' Schoo1 Board of City of Norfolk, Virginia, supra, note 22. at p. 950.
43
See, Section 2000 e-5(k), 42 U.S.C.

44
See, Section 2000 a-3(b), 42 U.S.C.

45
Section 2000 c-7, 42 U.S.C.; and see. United States 

v. Gray (D.C.R.I. 1970) 319 F. Supp. 871, 872-3. SeT^ 
however. Note 57, post.

-28-



"Congress by specifically authorizing attorney's 
fees in Public Accommodation cases and not making 
allowance in school segregation cases clearly 
indicated that insofar as the Civil Rights Act 
is concerned, it does not authorize the sanction 
of legal fees in this type of action. The doc­
trine of Expressio uniuw est exclusio alterius 
applies here and is dispositive of this conten- 
t ion. "

The same conclusion was reached in Monroe v. Board of Com'rs. 
of City of Jackson, Tenn. (6th Cir. 1972) 453 F.2d 259, 262-3, 
note 1 , where an award, though sustained, was sustained on the 
ground of "unreasonable, obdurate obstinacy" as enunciated in 
Bradley v. School Boa rd ojf Richmond, Vi rginia (4 th Cir. 1965) 
345 F.2d 310, 321, and not as a vehicle for the enforcement of 
public policy. To the same effect is United States v. Gray. 
supra .

It is suggested that Mills v. Electric Auto-Lite 
(1970) 396 U. S. 375, 90 S. Ct. 616, 24 L. Ed. 2d 593, and 
Lee v. Southern Home Sites Corp. (5th Cir. 1971) 444 F.2d 143,
sustain this alternative award as in the nature of a sanction
designed to further public policy. Any reliance on Mills is
“misplaced, however, because conferral of benefits, not policy
enforcement, was the Mills Covi rt ' s stated justification for

46its holding." 50 Tex. L. Rev. 207 (1971). In fact, the

See, also, Ka ha n v. Rosenst iel (3d Cir. 1970) 424 F.2d 
161, 166:

"In the Mills opinion. Justice Harlan noted that 
the plaintiffs' suit conferred a benefit on all 
the shareholders * * (Italics added.)

-29-



award in MiJ_l^ wan based on the same concept of benefit as 
was used to support the award in Trustees v. Greenouoh (1081) 
105 U. S. 527. 36 Mo. L. Rev. 137 (1971). Equally inapposite
is Lee. Though filed under Section 1982, it was like unto, 
and, so far as relief was concerned, should be treated sim­
ilarly as an action under Section 3612(c), 42 U.S.C., in 
which attorneys fees are allowable/ 7 By this reasoning, 
the Court sought to bring the award within the umbrella of 
a parallel specific statutory authorization/ 8 There is no 
basis for such a rationale here.

If, however, the rationale of Mills is to be 
stretched so as to provide a vehicle for establishing judi­
cial power justifying the employment of award of attorney's

47
See, particularly note 2, p. 147, 444 F. 2d.
This case has been criticized in bo Tex

Thus, it finds untenable its attempt to identify its award 
with the statutory authorization provided in Section 3612(c) 
because, "Under the latter statute (section 3612) the court 
may not award attorney's fees to a plaintiff financially able to pay his own fees." (Page 208).

48
ISniallt V. Auciello (1st Cir. 1972) 453 F. 2d 

a similar case, involving discrimination proscribed tion 1982, 42 U.S.C.
852, is 
by Sec-

-30-



fcco to promote and encourage private litigation in support of 
public policy as expressed by Congress or embodied in the Con­
stitution, it will launch courts upon the difficult and complex 
task of determining what is public policy, am issue normally 
reserved for legislative determination, amd, even more difficult, 
which public policy warrants the encouragement of award of 
fees to attorneys for private litigants who voluntarily

49
take upon themselves the character of private attorneys-general.
Counsel in environmental cases would claim such a role for

50their services. The protection of historical houses and 
monuments against the encroachment of highways has been 
cloaked within the mantle of public interest and it would be

51
argued should receive the encouragement of an award. Con-

52suraers' suits are clearly to be considered. Apportionment

See, Note, The Allocation of Attorney's Fees After 
Mills v. Electric Auto-Lite Co., 38 University of Chicago L. 
Rev. 316, at pp. 329-30 (1971).

50See, Section 4332(2), et seq., 42 U.S.C.; Environmental 
Defense Fund v. Corps of Eng. of U.» S. Ax my, (D.C. Ark. 1971)
325 F. Supp. 749; Environmental Defense Fund, Inc. v. Corps of,. 
Engineers (D.C.D.C. 1971) 324 F. Supp. 878; Businessmen 
Affected Severely, etc, v. D.C. City Counci1 (D.C.D.C. 1972)
339 F. Supp. 793.

Sec. Section 461, 16 U.S.C., and Section 4331(b)(4),
42 U S C *  West Virginia Highlands Conserv. v. Island Creek 
Coal/Co." (4th~Cir. 1971) 441 F. 2d' 232; Cf., Ely v. Velde (D.C. 
Va. 1971) 321 F. Supp. 1008.

5 2 g e e, 38 U n i v e r s i t y  o f  Chicago, L. Rev. 316.



scnts would justify awards und.-r this th-ory.5 ’ First

Amendment rights arc* often spoken of as preferred

constitutional rights. Attacks upon statutes infringing free
speech would, under this theory, command an allowance. nut

it must be emphasized that whether the enforcement of

Congressional purpose in all these cases commands an award of

rncy s fees is a matter for legislative determination. And
Congress has not been reticent in expressing such purpose in

those cases where it conceives that such special award is

appropriate. in many instances, where Congress has enacted

statutes designed to further public purpose, it has bulwarked

their enforcement with provisions for the allowance of counsel

fees to attorneys for private parties invoking such statutes; in
54other cases it has denied such awards Tawards. In some of the statute,

authorizing such allowances, the award is, as in the

statute involved in Newman v. Piggie Park Enterprises

(l')6R) 390 u. S. 400, 80 S. Ct. 964. 19 L . Ed. 2d 1263.

cither mandatory or practically so; in others it is
a- 55discretionary and the granting of awards is generally made * 54 55

Actually, an alternative award has been made in such 
a case. Sims v. Amos (3-judge ct. Ala. 1972) F Sudd
(filed March 17, 1972). ----  " P P ‘----- '

54
See Annotation, 8 L. Ed. 2d 894, at pp. 922-32. for a 

listing of statutes authorizing an award of attorney's fees
Lending a cU  Sh°U ld a<Wod S,‘ctio" 1640. 15 U.S.C. (Truth-in-

55
See, for instance. Section 1 5 3 ,  4 3  U.S c • i i n i f - o r i  

T x a n ^ pi tgtion Uni»n_v. Soo Li no RR eg. (7th*cir. T 9 7 2 ) ~ 4 5 7  F 2d



through the use of the same guidelines as motivate courts in 
making awards under the traditional equity rule. Should the 
courts, in those instances where Congress has failed to grant 
the right, review the legislative omission and sustain or 
correct the omission as the court's judgment on public policy 
suggests? This, it seems to us. would be an unwarranted exercise 
of judicial power. After all. Courts should not assume that 
Congress legislates in ignorance of existing law, whether 
statutory or precedential. Accordingly, when Congress omits 
to provide specially for the allowance of attorney's fees in 
a statutory scheme designed to further a public purpose, it 
may be fairly accepted that it did so purposefully, intending 
that the allowance of attorney's fees in cases brought to 
enforce the rights there created or recognized should be 
allowed only as they may be authorized under the traditional 
and long-established principles as stated in Sprague v.
Ticonic Bank (1939) 307 U. S. 161, 166, 59 S. Ct. 777,
83 L. Ed. 1184. Such consideration, it would seem, was 
the compelling reason that prompted one commentator to 
offer the apt caveat that the determination of public policy 
as a predicate for such awards should be more 9afely left with 
Congress and not undertaken by the Courts. Thus in 50 Tex. L. 
Rev. 209 (1971), it is stated:

-33-



The decision, (referring to Lee) however, 
sanctions excessive judicial discretion that 
may emasculate the general rule against fee 
awards and inject more unpredictability into 
the judicial process. The legislature should 
formulate a rule that would promote predicta­
bility and utilize the power inherent in fee 
allocation to pursue the goals it desires to 
achieve, one of which would be equal access 
to the courts."

Even the author of the Note, The Allocation of Attorney’s
Fees After Mills v. Electric Auto-Lite Co.. 38 University of
Chicago Rev,. , 316, though sympathetic to the extension of

cover awards of attorney's fees in support of public
policy, recognizes that a general policy, applicable to all
cases, on the award of attorney's fees should be adopted,
concluding its review of the subject with this comment:

Logically, one of two things must happen: 
either judicial discretion to grant fees on 
policy grounds will result in universal fee 
shifting from the successful party, or the 
courts will withdraw to the traditional posi­
tion, denying any fee transfer without specific 
statutory authorization. Mills represents an 
uneasy half-way house between these two 
extremes." (Page 336)
We find ourselves in agreement with the conclusion 

that if such awards are to be made to promote the public 
policy expressed in legislative action, they should be

-3d-



authorized by Congress and not by the courts. This is 
especially true in school cases, where the guidelines are 
murky and where harried, normally uncompensated School 
Boards must tread warily their way through largely uncharted 
and shadowy legal forests in their search for an acceptable 
plan providing what the courts will hopefully decide is a 
unitary school system.

Accordingly, until Congress authorizes otherwise 
awards of attorney's fees in school desegregation cases must 56

56

56
It is interesting that in all the cases where the 

right to make an award for policy reasons has been stated, 
it has been stated simply as an alternative ground to a 
finding of unreasonable obduracy. See, 53 FRD at pp. 39-42,
40(1 supra, at p. 144. In Sims, supra. at p. ____, the
Court found that, "The history of the present litigation is 
replete with instances of the Legislature's neglect of, and 
even total disregard for, its constitutional obligation to 
reapportion." In short, no court has yet predicated an award 
exclusively upon the promotion of public policy.

-35-



i.co«. upwn uaiiiuuiwi equiianie sLdnaaros as stated in
Bradley v. Richmond School hoard (4th Cir. 1965) 345 F.2d 310,.
which provide ample scope for the award in appropriate cases.

Ill.
After the above opinion had been prepared but not 

issued, the Congress enacted Section 71R of the Emergency 
School Aid Act. The appellees promptly called to the Court’s 
attention this Section, suggesting that it provided an 
alternative basis for the award made. They construed the 
reference in the Section to "final order” to embrace any 
appealable order dealing with any issue raised i.s a school 
desegregation case. Any order which had been appealed and 
was pending on appeal, unresolved, on the effective date of 
the Section (i.e., July 1, 1972), they argued, could provide 
a proper vehicle for an award under the Section.56(a)

Since this issue of the application of Section 71R 
was raised simultaneously in a number of other pendinq appeals, 
it was determined to withhold the above opinion for the time 
beinq, and to consider on lane the reach of Section 71R, 
as applied both to this c.ir;p and to the other related appeals. 
Such banc hearing has been had and the Court has concluded

56*a^Durinq the course of the oral argument counsel for the 
appellees was asked to define the term "final order" as used in 
Section 7 1R. His reply v;a s ,

"* * there is mention of final order in the legisla­
tive material- they use that term rather than a final 
judgment because in recognition of the peculiar nature 
of school cases,- that in you may have a wave of litiga­
tion that would end up in a final decision by this court 
or the Supreme Court and then the case would again be re- 
litigated later-- that order which is appealable is a final order." -36-



that Section 710 does not reach services rendered prior to 

June 30, 1972.
Were it to be construed as extending to any "final 

order", entered as "necessary to secure compliance", and 
pending unresolved on the effective date of the Act (which 
is the plaintiffs* construction of the sweep of the Section), 
such Section could not be used as a vehicle to validate this 
award. This is so because there was no "final order" pending 
unresolved on appeal on June 30, 1972. to which this award 
could attach. The only proceeding pending unresolved in this 
case on May 26. 1971. when the District Court issued its order 
allowing attorney's fees, was the action begun on motion of 
the School Board itself to require the merger of the Richmond 
schools with those of the contiguous counties of Chesterfield 
and Henrico. All orders issued prior to that date in this 
desegregation action had long since become final and were not 
pending on appeal either on May 26 or on the date Section 718 
became effective. Thus, on August 17. 1970. the District Court 
had approved the School Board’s interim plan for the school

57 James
Cope 1 <•> nd , e t 
V i roj ni«i , ot 
School Board 
(Nos. 71-2032

v . The Beaufort County Board of Education (72-1065) 
1 V- fjrhoql Hoard of the Citv of Portsmouth, 

iTl"7 (NosTTl -19~)3 and 71-1994); Thompson v. The 
of the City of Newport News, Virginia, e_t a 1_._ 
_and~71-203 3) , filed October____ , 1972.

-37-



year 1970-1. There was no appeal perfected from that order. 
The plaintiffs had moved on December 9, 1970, for additional 
relief but that motion had been denied by an order dated 
January 29, 1970, which, incidentally, was the same date 
used by the District Court for the cut-off of its allowance 
of attorney's fees. Again, there was no appeal from that 
order dismissing plaintiffs' application for relief, and, 
even if it be assumed that plaintiffs' attorneys are to be 
granted attorneys' fees when they do not prevail (an assump­
tion clearly not psrmitted under the language of Section 718) ,
the proceeding under which that order was entered was not

58pending when Section 718 became effective. To restate*
The only proceedings pending undetermined by an order that
had not become final on the date Section 718 became effective
was the action begun by the School Board and resulting in the

59order of the District Court dated January 10, 1972. That 
order, which, it may be assumed, is still pending since the

58 is true that on January 29, 1971, the School Board
submitted to the District Court its proposed plan for the 
operation of the Richmond schools for the school year 1971-2. 
There seems to have been either no dispute over this plan or 
the proposal was swallowed up in the more expansive merger
action.

59 338 F. Supp. 67.’
-38-

• V  -



School Board is presently seeking certiorari, was reversed 
by this Court60 and. unless the decision of this Court is 
in turn reversed, it will not support any allowance of 
attorneys' fees, since Section 71B authorises allowance only 

when plaintiffs have prevailed.

REVERSED

60 462 F.2d 1058.



WINTER, Circuit Judge, dissenting:

The in biinc court holds that this case is not governed 
by § 718 of Title VII, "Emergency School Aid Act," of the 
Education Amendments of 1972. P.L. 92-318; 86 Stat. 235;

1972 U.S. Code and Admin. News 1908, 2051. The panel concludes 
I<oth that the Richmond School Board was not guilty of "un­
reasonable, obdurate obstinacy" and that plaintiffs were not 
entitled to recover counsel fees under the private attorney 
general concept. On all issues, 1 would conclude otherwise 

and I therefore respectfully dissent.

I .
Because 1 conclude not only that § 718 is applicable to 

this litigation, but also that, as a matter of statutory 
construction, its terms arc met, 1 place my dissent from the 
panel's decision piimarily on that ground. If, however, § 718 
is treated as inapplicable to this case, I would affirm the 
district court, preferably on my concurring views in Brewer 
v. School Board of City of Norfolk, Virginia, 456 F.2d 943, 
952-54 (4 Cir. 1972) cert. den. ____ U.S.____  (1972). Even

- 40 -

r~ ̂



if the obdurate obstinacy test controls, I would still affirm.
As I read the record, I can only conclude that for the period 
for which an allowance of fees was made, the Richmond School 
Board was obdurately obstinate. Commendably, it seized the 
initiative in vindicating plaintiffs' rights by seeking to 
sustain a consolidation of school districts; but this was a 
latter-day conversion that occurred after the district couvc 

suggested that consolidation be explored. Until that time the 
record reflects the Board's stubborn reluctance to implement 
Brown 1 (Brown v. Board of Education, 347 U.S. 483 (1954) in 
the light of Green v. County School Board of New Kent County,
Va., 391 U.S. 430 (1968); Alexander v. Holmes County Board of 
Education, 396 U.S. 19 (1969); Carter v. West Feliciana Parish 
School Board, 396 U.S. 226 (1969); and, while the litigation was 
progressing, Swann v. Char lotte-Mecklenburg Board of Education, 
402 U.S. 1 (1971). The history of the litigation, as set forth 
in the opinion of the district court, is sufficient to prove 
the point. Bradley v. School Board of City of Richmond, 

Virginia, 53 l'.R.D. 28, 29-33 (E.D. Va. 1971).

-41-



11 .

] turn to the more important questions of the scope and 
application of § 710. Neither in the instant case, nor in

James v. The Beaufort County Board of Education. ----F.2d----
(4 cir. decided simultaneously herewith), does the majority 
articulate in other than summary form why § 710 should not 
apply to cases pending on its effective date (July 1. 1972).

1 conclude that it does apply, and in the face of the majority's 
silence, I must discuss the pertinent authorities at some 

long th .
The text of § 710 is set forth in the margin.1 Its

Attorney Fees
S(»c. 7 18. Upon the entry of a final order by a court 

of the Unite;) States against a local educational agency, 
a State (or any agency thereof), or the United States 
(or any agency thereof), for failure to comply with any 
provision of this title or for discrimination on the basis 
of race, color, or national origin in violation of title VI 
of the Civil Rights Act of 1964, or the fourteenth amend­
ment to the Constitution of the United States as they 
pertain to elementary and secondary education, the court, 
in its discretion, upon a finding that the proceedings 
wore necessary to bring about compliance, may allow the 
prevailing party, other than the United States, a reasonable 
atloi i icy ‘ s fee as part of t he costs.

-42-



enactment presents no question of retroactive application to 
this litigation. As 1 shall show, the issue of the allowance 
of counsel fees has been an issue throughout every stage of 
the proceedings; and the proceedings were not terminated when 
§ 71B became effective on July 1, 1972, because this appeal
was pending before us. This is not a case where a subsequent 
statute is sought to be applied to events long past and to 
issues long finally decided. Rather, it is a case which 
presents the concurrent application of a statute to an issue 
still in the process of litigation at the time of its enactment. 
United States v. Schooner Peggy, 1 Cranch 103 (1801), and
Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969), 
are the significant controlling authorities.

In Peggy, while an appeal was pending from a decision of 
the lower court in a prize case, the United States entered 
into a treaty with France, which if applicable would have 
required level sal. The treaty explicitly contemplated that it 
would lie applicable to seizures that had taken place prior to 
the treaty's ratification where litigation had not been 
terminated prior to ratification. On the basis of the new

-4 3-



treaty, the Supreme Court reversed the decision of the lower
court. In the opinion of Mr. Justice Marshall, it was said:

It is in the general true that the province of an 
appellate court is only to inquire whether a judgment 
when rendered was erroneous or not. But if, subse­
quent to the judgment, and before the decision of the 
appellate court, a law inteivenes and positively 
changes the rule which governs, the lav/ must be obeyed, 
or its obligation denied. If the law be constitutional,
. . . 1 know of no court which can contest its obligation
It is true that in mere private cases between individuals 
a court will and ought to struggle hard against a con­
struction which will, by a retrospective operation, 
affect the rights of parties, but in great national 
concerns, where individual rights, acquired by war, 
are sacriiied for national purposes, the contract 
making the sacrifice ought always to receive a con­
struction conforming to its manifest import; and if the 
nation his given up the vested rights of its citizens, 
it is not for the court, but for the government, to 
consider whether it be a case proper for compensation.
In such a case the court must decide according to 
existing laws, and if it he necessary to set aside a 
judgment, rightful when rendered, but which cannot be 
affirmed but in violation of law, the judgment must be 
set as i de.

United States v. Schooner Peggy, supra, 1 Cranch at 109.
Peggy may be interpreted in two ways: Under a narrow

interpretation the Court held only that, where the law changes 
between the decision of the lower court and an appeal, the 
appellate court must apply the new law if, by its terms, it

-44-



p u r p o r t s  t o  be a p p l i c a b l e  t o  p e n d i n g  c a s e s .  T h e  d e c i s i o n a l

process, under this interpretation, requires the appellate 
court to examine the intervening law and to determine whether 
it was intended to apply to factual situations which trans­
pired prior to the law's enactment. Since the treaty in Peggy 
explicitly applied to situations where the controversy was 
still pending, it followed that the statute should be applied 
in deciding the case. Certainly the facts of Peggy and much of 
the language of the opinion of Mr. Justice Marshall support 
this interpretation.

By a broader interpretation, Peggy may be considered to 
hold that where the law has changed between the occurrence of 
the facts in issue and the decision of the appellate court and 
where the controversy is still pending, the appellate court 
must apply the new law, unless there is a positive expression 
that the new law is not to apply to pending cases. This is 
the interpretation of Peggy which found its final expression in 
Thorpe. But before turning to Thorpe it is well to consider 
intervening decisions.

- 4 5 -



In Vandenbark v. Owens-111ino)s Glass Co.. 311 U.S. 530

(1941), the Court held that a federal appellate court in 
exercisir.q diversity jurisdiction must follow a state court 
decision which was subsequent to and contradicted the district 
court decision. In Carpenter v. Wabash Ry. Co., 309 U.S. 23 
(1940), the Court held that the appellate court must apply an 
intervening federal statute where the case is pending on appeal. 
However, in Carpenter, the statute explicitly indicated that it 
was to apply to pending cases. In United States v. Chambers,
291 U.S. 217 (1934), the Court held that indictments returned 
pursuant to the eighteenth amendment, and before the adoption of 
the twenty-first amendment, must be dismissed after passage of 
the twenty-fiist amendment even though the acts when committed 
were crimes. See also Ziffrin v. United States, 31R U.S. 73 
(1943). Then, in Linkletter v. Walker, 381 U.S. 618 (1965), 
the Court drew a firm distinction between those cases where 
an appeal is still pending and those that are final ("where 
the judgment of conviction was rendered, the availability of 
appeal exhausted, and the time for petition for certiorari had 
elapsed. . .," 381 U.S. at 622, n. 5). The Court held that

-46-



but not to final cases. It discussed the previous decisions 
to which reference has been made and concluded that " [u)nder 
our cases . . .  a change in law will be given effect while a 
case is on direct review . . .." 3B1 U.S. at 627. It should
be noted, however, that the Court was by no means consistent 
in applying this rule after Linklettor. See Desist v. United 
States, 394 U.S. 244, 256-60 (1969) (Harlan. J., dissenting).

In Thorpe, the Housing Authority gave the tenant notice 
to vacate in August, 1965, but refused to give its reasons 
for the notice. When the tenant refused to vacate, the 
Authority brought an action for summary eviction in September, 
1965, and prevailed. Actual eviction, however, was stayed 
during the pendency of the litigation. In 1967, before the 
Supreme Court decided the case, the Department of Housing and 
Urban Development issued a circular directing that tenants must 
be given reasons for their eviction. The Supreme Court held 
that housing authorities must apply the HUD circular "before 
evicting any tenant still residing in such projects on the date 
of this decision." 393 U.S. at 274. Relying on Peggy, it

Mapp v .  O h i o ,  367 U . S .  643 ( 1 9 6 1 ) ,  a p p l i e d  t o  p e n d i n g  c a s e s

- 4 7 -



explained that "(tjhe gcntiral rule . . . is that, an appellate
court must apply the law in effect at the time it renders its 
decision," although it recognized that "[e]xceptions have been 
made to prevent manifest injustice . , . ." 393 U.S. at 281-82,

The difference between Thor pe and Peggy is that the HUD 
circular did not indicate that it was to be applied to pending 
cases or to facts which had transpired prior to its issuance. 
Indeed, the circular stated that it was to apply "from this 
date" (the date of issuance). 393 U.S. at 272, n. 5. Thus, 
Thorpe lie Id that even where the intervening law does not ex­
plicitly or implicitly contemplate that it would be applied to 
pending cases, it, nevertheless, must be applied at the appellate 
level to decide the case. The line of cases from Peggy to 
Thorpe dictates the application of § 718 in the instant case, 
irrespective of legislative intent. Simply stated, since the 
law changed while the case (the lawyers' fees issue) was still 
pending before us, the new law applies.

The School Board contends that Thorpe does not erase the 
long-standing rule of construction favoring prospective 
application. It argues that Thorpe did not present a retro-

-48-



activity question since the tenant had not yet been evicted.
It places great reliance on the "tenant still residing" 
language in Die opinion. The'School Board concludes that since 
the tenant had not yet been evicted, the I1UD circular was not 
retroactively applied but was currently applied to a still 
pending eviction. With respect to the legal services in issue 
in the instant case, the Board argues that the Thorpe rule does 
not apply since the performance of legal services was a com­
pleted act prior to the effective date of § 718.

While the Board's premise regarding the interpretation of 
Tho_rpe may not be faulted, its analogy is inapt and its con­
clusion incorrect. True, the rendition of legal services in 
the instant case had been completed (except for legal services 
on appeal), but the dispute over who was liable for payment 
was very much alive, as alive as the dispute over eviction in 

• The proper analogy is not between rendition of legal 
services and the eviction litigation, but between rendition of 
1 ega 1 services and the Housing Authority's termination of the 
lease and notice to vacate. The;;*; are the completed acts.
What lingers is the dispute over who is right, and it lingers

-49-



i n  b o t h  c a s e s .  T h e r e f o r e , a s  i n  T h o r p e , h e r e  t h e r e  i s  no

retroactivity issue. Thorpe governs and § 718 applies unless 
it is rendered inapplicable because one or more of its 
provisions has not been met. See Bassett v. Atlanta Inde­
pendent School Hist. No. 1550 ( F . D . Tex. August 28. 1972).2

2. It must be recognized that there are some dis­
cordant notes in the case law: in Soria v. Oxnard

Dlst- Board, ____F.2d____ (9 Cir. August 21,
972), it was held, in a per curiam opinion, that 

§ 803 of the Education Amendments of 1972, which 
postponed the effectiveness of busing orders for the 
purpose of achieving racial balance until all appeals 
have been exhausted, had no application to a case 
pending at the time of its effective date in which 
busing, pursuant to an integration plan, is already 
in operation. There is no mention, however, of Thorpe.

In Or eerie v. United States, 370 U.S. 149 ( 1964), 
the Court refused to apply an intervening Department* 
of Defense regulalion to a pending case, reasoning in 
retroactivity language. But this case was obviously 
one where retroactivity would work "manifest injustice " 
See Thorpe, supra at 282 n. 43. Cases construing the 
Criminal Justice Act, 18 U.S.C.A. § 3006A (1970), which 
provides court-appointed attorneys with fees from 
federal funds have held that it applies only where 
counsel was appointed after the Act, or at least, only 
whoie counsel's assistance was rendered after the Act. 
Compare United States v. Pope, 251 F.S. 331 (D. Neb.
1966) with United States v. Dutsch, 357 F.2d 331 (4 Cir
1966); United States v. Thompson, 356 F.2d 216 (2 Cir 
1966) coil. den. 184 U.S. 964 (1966); Dolan v. United* 
states, 5j1 I. 2d 67 1 (!) Cir. 1965) (per curiam).

- 5 0 -



jito
.-**
2 * 4-***
 •

)
1 1 1 .

\

■ i v

Since Thorpe governs, legislative history is not relevant, 
unless it unequivocally shows an intention on the part of 
Congress that the statute not apply to live issues in currently 
pending cases. The legislative history of § 718 provides no 
such expression of intent. To the extent that it proves any­
thing, it supports the conclusion that § 718 should apply to 
live issues in currently pending cases.

Two clauses of § 718 bear on the issue. As originally 
proposed and reported, § 718 provided for a federal fund of 
$15 million from which counsel would be paid "for services 
rendered, and the costs incurred, after the date of enactment 

" S. 683, § 11 (Quality Integrated education Act). The
Senate Committee on Labor and Public Welfare reported the 
bill, with this clause intact, as S. 1557. Sen. Rep. No. 92-61 

92nd Cong. 1st Sess. pp. 55-56.

2. (Continued)
But that Act involved expenditures of federal appropri­
ations which, by the terms of the Act, would not become 
effective until a year after enactment, so that it may 
be fairly said that there was a clear legislative in 
ten, ion nut to make the te,ms of the Act applicable to
pend i ng cas.es .

-51-

vm»V' mrrr



The School Board places groat stress on this language 
as indicating a strictly piospective legislative intent.
It fails to point out, however, that the federal funding, as 
well as the "after the date" clause, were deleted by floor 
amendment prior to the passage of the Act. This floor amend­
ment can be construed to indicate that Congress' ultimate 
intent was indeed the opposite of that urged by the Hoard.
The "after the date" clause and federal funding seem to have 
gone in tandem. Given the nature of federal appropriation, 
prospective application would be a sensible requirement. 
Compare Criminal Justice Act, 18 U.S.C.A. § 3006A (1970).
By the deletion of federal funding, the reason for restricting 
payment of attorneys' fees for services performed after the 
date of enactment disappeared.

Secondly, the School Board points to the language in the 
committee report which refers to "additional efforts," but 
the* sentence is phrased in the conjunctive. It reads:
"$15 million is set aside for add i t i ona1 efforts under this 
bill and undei Title 1 of the momentary and Secondary 
Kdueut ion Act of 1965 * * * ajnd fo_r vigorous nation-wide

-52-

" O * '



enforcement of constitutional and statutory protection against 
all forms of discrimination" (emphasis added). Whether 
••additional efforts" modifies everything that follows, or 
just What precedes the conjunction "and", is debatable and a

rather unenlightening inquiry.
Thus, nothing on the face of S 718, or in its legislative

history, conclusively manifests a congressional desire that 
the Thorpe rule applying new legislation to live issues in 
pending litigation should not prevail. 1 turn to the question 

of its precise application.

IV.
Section 718 empowers the court to award counsel fees "in 

lt3 discretion, upon a finding .hat the proceedings were

necessary to bring about compliance . . •• Tho pr1
attorney genera, rule of Nevm.au v. P.gg.e Part enterprises. 
390 u.S. 400 (1968), governs the court's discretion. Under
t he Piaaic Park, standard, the court should award counsel fees 
"unless special circumstances would render such an award 
unjust." 390 U.S. at 402. See Lea v. Cone Hills Corp..
438 V  .2 ( 3 80 (4 Or. 1971). The language of f, 718 is sub-

- r > 3 -



s tout 1  ,i 1 1 y s ] m  ) ! , 1 1  to t h«- rout, c  1 i i•( } l i > V ) '. 1 r: I. ill 201(b)
of Title 11 cind § 706(k) of Title Vll ot the Civil Rights 
Act of 1964, 42 U.S.C.A. §§ 2000a-3(b), 2000e-5(k). and 
§ 012(c) of Title VIII of the Civil Rights Act of 196R, 42
U.S.C.A. § 3612(c), all of which are governed by biggie Park. 
Moreover, the legislative history of § 718 reveals that its 
purpose is the same as the counsel fee provisions in Titles 
II, VII, and V1 11 . 117 Cong. Rec . S. 5484, 5490 (b.-iiy Ed.
April 22, 1921): id. S. 5537 (Daily Ed. April 23, 1971). The
additional standard in § 718 requiring the court to find that 
the suit was necessary to bring about compliance does not modify 
the Hi Id.1 e ££!.! ii standard, because its purpose, as revealed by 
the legislative history, is to deter champortous claims and the 
unnecessary piotraction o' litigation. 117 Cong. Rec. S. 5485. 
.>490-91 (Daily Ed. April 22, l' /l). In the instant case, the 
district court lound that suit was necessary to bring about 
compliance and it also found, at least implicitly, that there 
were no exceptional circumstances which would render an award 
of counsel fees against the School Board ungust. These
1 ladings a re no! cleat ly erroneous and hence counsel are



entitled to some allowance of fees under § 710 as construed

by Pi ggie Park .

V.

Although § 710 should be applied to legal services, 

whenever rendered, in connection with school litigation 

culminating in an order entered after its effective date 

(July 1, 1972), § 718 will not support affirmance of the

precise award made by the district court in this c3oG. It 

would, however, support a larger award to compensate for legal 

services rendered over a longer period.
The district court's award was for legal services rendered 

from March 10, 1970, the date when plaintiff filed a motion

for further relief because of the decisions in New Kent County, 

supra, Alexander, supra, and Carter, supra, to January 29,

1071, the date on which the district court declined to im­

plement plaintiff's plan. Manifestly, the entry of that order 

cannot support an award of counsel fees for services to the 
date of its entry because the older did not grant relief to 

the pa i t n s  seek i ng to recover fees — a condition precedent

-55-



to the award of fees as set forth in § 718. But, a recita­

tion of the history of the litigation shows that counsel 

fees should be awarded for all legal services rendered from 

March 10, 1970 to April 5, 1971, the date on which the 

district court entered an order approving the plan under 

which the Richmond schools are presently being operated, 

and thereafter for legal services rendered in this appeal.

The essential dates in the history of the litigation 

follow: The motion for further relief was filed March 10, 1970

Appended thereto was an application for an award of reasonable 

attorneys' fees. After admitting that its schools were not 

then being constitutionally operated, the Board filed a plan 

(Plan 1) to bring the operation of the schools into compliance 

with the Constitution. After hearings, the district court 

disapproved Plan 1 (June 2( , 1970) and directed the preparation

and filing of a new plan. Plan 2 was filed July 21, 1970, and

hearings were held on it. It, too, was disapproved as an 

inadequate long-range solution. But, because there was insuf­

ficient time to prepare, file and consider another plan before 

the beginning of the next school term. Plan 2 was ordered into

-56-



■f

1

I
t

effort on August 17, 1970, for the term commencing August 30,
1070, and the Board was also ordered to make a new submission.
The Board appealed from the order implementing Plan 2 and
obtained a delay in briefing from this court. The appeal
was never heard, because, having been effectively stayed,
it was rendered moot by later orders. Before Plan 3 was filed,
plaintiffs sought further relief for the second semester of
the 1970-71 school year, but Plan 3 was filed (January 15, 1971)
before they could be heard and their motion was denied on
January 29, 1971, the terminal date for the allowance of com-
ponsation in the order appealed from. Plan 3 contained three
part;. - it was a restatement of Plans 1 and 2, and it contained
a new third proposal. The Board urged the adoption of the
plan 2 aspect of Plan 3; but, on April 5, 1971, the district
court ordered into effect for the 1971-72 school year the new
t h r  1 proposal. This is the plan under which the Richmond

3schorls are presently operating.

Of course, there were even still further proceedings 
culminat i.ug in an order to consolidate the Richmond,
Hear ico County and Civ: teifield School Districts, but 
tin coniL set that order aside in Bradley v. The School
Board of the City of Richmond, Virginia, ____ F .2d____
(4 Cir. June 5. 1972), application for cert, filed
Ort obni _ , 19 7 2.

-5 7-



To this summary there need only be added that on
August 17, 1970, the district court ordered the parties to
confer on the subject of counsel fees. Plaintiffs filed 
on March 5, 1971, a memorandum in support of their request 
for an allowance; the court, on March 10, 1971, ordered that 
further memoranda and evidentiary materials with regard to 
the motion for counsel fees be filed; and these were filed 
on March 15, 1971. The order directing the payment of counsel 
fees was entered May 20, 1971, after the entry of the order
approving and implementing Plan 3.

The majority concludes that § 718 was rendered inapplicab 
because the order appealed from was entered May 26, 1971, a
date on which there was no "final order" entered as "necessary 
to secure compliance." This conclusion seems to me to be over 
technical and not in accord with the facts.

The request for counsel fees was made when the motion for 
additional relief was filed on March 10, 1970. While very
much alive throughout the proceedings, properly, the motion wa 
not considered until the district court could approve a plan 
for a unitary system of schools for Richmond which was other 
than an interim plan. .That approval was forthcoming on

-58-



April 5, 1971, and promptly thereafter the district court
addressed itself to the question of allowance of counsel 
fees. The approval of a permanent plan was not easily 
arrived at. Because the proposals of the Richmond School 
Board were constitutionally unacceptable, except on an interim 
basis, this approval was arrived at in several steps:
(a) disapproval of Plan 1, (b) interim approval of Plan 2.
(c) disapproval of additional interim relief, and (d) approval 

of Plan 3 .
Certainly, § 718 is not to be so strictly construed that 

any counsel fees allowable thereunder must be allowed the very 
instant that an order granting interim or permanent relief is
entered. A request for fees may present difficult questions 
of fact and require the taking of evidence. The burden of 
deciding these questions should not be added to the simultaneous 
burden of deciding the often very complex question of what is 
a constitutionally acceptable desegregation plan; rather, the 
issues should be severed and the question of counsel fees 
decided later so long as the issue of counsel fees had been 
present throughout the litigation and has not been raised as



an afterthouqht after the school desegregation plan has 

become f ) na 1 . These pi act teal coni Jo r a t ions, plus the fact 

that every stage in the proceedings has been a part of an 

overall transition from unconstitutionally operated schools 

in Richmond to constitutionally operated schools, lead me to 

the conclusion that the exact terms and conditions of § 718 
have in the main been met.

Wlii le I therefore conclude that there was a sufficient

nexus between the request for counsel fees and the entry of 

a final order necessary to obtain compliance with the Consti­

tution so as to warrant invoking § 71R, I think that § 718 

requires that the district court redetermine the allowance.

As previously stated, the district court made an allowance for 

services to the date that plaintiffs' request for additional 

interim relief was denied. If the various steps for arriving 

at an overall desegregation plan for Richmond are severed,

§ 718 would not permit an allowance for services leading to 

the ordei of January 29, 1971, since on that date plaintiffs

were denied the additional interim relief they prayed and 

§ 718 permits an allowance only to the prevailing party.

-60-

• ~ r , l i j f r - w



However, plaintiff' would bo entitled to an allowance for 
services beyond January 29, 1971, up to April 5. 1971. the
date of approval of Plan 3, because on that date they became 
the prevailing party and they obtained an order, still in 
effect, which required the schools of Richmond to be operated 
agreeably to the Constitution, I would therefore vacate the 
judgment and remand the case for a redetermination of the 
amount of the allowance —  in short. I would require that 
counsel be compensated for their services to and including 
April 5, 1971 and also their services on appeal in this case.

-61-

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I , i



UNITED STATES COURT OF APPEALS
FOR THE FOURTH ORCUTT

No. 71 - 20 12

Frank V. Thompson, Benjamin V. Thompson, 
and Solomon V. Thompson, infants, by 
Vearland F. Thompson, II. their father 
and next friend, Jerma Ann Jackson, an 
infant, by Eva G. Jackson, her mother 
and next friend, Charlotte 0- McDaniel 
and Charlene O- McDaniel, infants, by 
Ernest McDaniel and Pearl McDaniel, 
their parents and next friends, and 
Vearland F. Thompson. II. Eva G. Jackson, 
Ernest McDaniel and Pearl McDaniel,

versus

The School Board of the City of Newport 
News, Virginia and George J. McIntosh, 
Division Superintendent of Schools for 
the City of Newport News,

No. 71-2033

Frank V. Thompson, Benjamin V. Thompson, 
and Solomon V. Thompson, infants, by 
Vearland F. Thompson, II, their father 
and next friend, Jerma Ann Jackson, her 
mother and next friend, Charlotte 0. 
McDaniel and Charlene 0. McDaniel, infants 
by Ernest McDaniel and Pearl McDaniel, 
their parents and next friends, and 
Vearland F. Thompson. II. Eva G. Jackson. 
Ernest McDaniel and Pearl McDaniel,

Appellants,

Appellees.

Appe1lees,

versus



The School Board of the City of Newport 
News, Virginia and George J. McIntosh,
Division Superintendent of S 'hools for 
the ty o Newport News,

Appellants.

No. 71-1993
Michael Copeland, et al,

~ * versus
School Board of the City of Portsmouth, 
Virginia, et al.

Appellants,

Appellees.

No. 71-1994
Michael Copeland, et al.

Appellees,
versus

School Board of the City of Portsmouth,
Virginia, et al,

Appellants,

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN 
DISTRICT OF VIRGINIA, AT NORFOLK. WALTER E. HOFFMAN, District
Judge.



No. 72-1065
Nathaniel James, R. L. Simpson, and the 
North Carolina Teachers Association, a
corporat ion,

versus
The Beaufort County Board of Education, 
a public body corporate.

Appellees,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN 
DISTRICT OF NORTH CAROLINA, AT NEW BERN. JOHN D. LARKINS, JP.. 
District Judge.

Argued October 1972 on issue of attorneys' fees.

Decided November 29, 1972.

Before HAYNSWORTH, Chief Judge, WINTER, CRAVEN, BUTZNER, RUSSELL 
and FIELD, Circuit Judges, sitting en banc.

Robert V. Beale (Bateman, West and Beale, and Panos A. Yeapanis, 
City Attorney for the City of Newport News, Virginia, on brief) 
for Appellees in No. 71-2032 and for Appellants in No. 71-2033;
Michael A. Korb, Jr., for Appellees in No. 71-1993 and for
Appellants in No. 71-1994; Lee E. Knott, Jr., (McMullan. Knott 
and Carter on brief) for Appellant, and Adam Stein (Chambers, 
Stein, Ferguson and Lanning, and J. LeVonne Chambers, Conrad 0. 
Pearson, Jack Greenberg, Norman Chachkin and Charles Stephen 
Ralston on brief) for Appellees in No. 72-1065; (Henry L. Marsh, 
III, S. W. Tucker, James W. Benton, Jr., and Hill, Tucker and 
Marsh; Philip S. Walker, Jack Greenberg, James M. Nabrit, III, 
and Norman Chachkin on brief) for Appellants in No. 71-2032 and 
for Appellees in No. 71-2033; (S. W. Tucker, Henry L. Marsh, III,
James W. Benton, Jr., and Hill, Tucker, and Marsh; and James A.
Overton, Jack Greenberg, James M. Nabrit, III, and Norman Chachkin 
on brief) for Appellants in No. 71-1993 and for Appellees in 
No. 71-1994.



PER CURIAM:
We ordered ejn banc consideration of lawyer fee claims 

in these school cases to consider the extent of the applicability 
of § 718 of the Emergency School Aid Act of 1972. in the City of 
Portsmouth and the Beaufort County cases, however, apparently 
adequate fees are allowable on other bases. The precise extent 
of the reach of § 718 in those cases, therefore, now appears 
academ i c .

In the Newport News case, most of the legal services 
are yet to be rendered, and we are unanimously of the view that, 
if relief is granted, fees will be allowable under § 718 for those 
future services. The division within the Court as to the application 
of § 718 will have some bearing upon any ultimate allowance of fees 
in that case, though less than was supposed when reargument was 
requested.

The Court is unanimously of the view that it should apply 
§ 718 to any case pending before it after the Section's enactment. 
This is consistent with the principle of United States v. Schooner 
Peggy, 5 U.S. (1 Cranch) 103, most recently enunciated in the 
Supreme Court in Thorpe v. Housing Authority of Durham. 393 U.S.
268.

2



A majority of the Court, however, is of the view that 
only 1 ega 1 services rendered after the effective date of § 718 are 
compensable under it. Those members of the Court invoke the 
principle that legislation is not to be given retrospective effect 
to prior events unless Congress has clearly indicated an intention 
to have the statute applied in that manner. They do not find such 
an intention from the omission of a provision in an earlier draft 
expressly limiting its application to services rendered after its 
enactment, when the earlier draft was extensively revised and 
there is no affirmative expression by any member of Congress of 
an intention that it should be applied to services rendered prior 
to its enactment.

A minority of the Court would apply § 718 to legal 
services, whenever rendered, in connection with school litigation 
culminating in an order entered after June 30, 1972. In their 
view, someone must pay the fee, and a statutory placement of the 
burden of payment on school boards is not a retroactive application 
of the statuê , though some of the services may have been rendered 
before its enactment as long as an order awarding relief, the fruit 
of the services, is entered afterwards.

The cases will be remanded for such further proceedings 
in the District Court as may be necessary in accordance with the

3



IT
%

4- r. - --

views of the majority, appTying S 718, when it may.otherwise be
U

applicable, only to services rendered alter June 30, 1972.
In the Portsmouth case, the District Court will award 

reasonable attorneys’ fees on the principle of Brewer v. The 
School Board of the City of Norfolk, 4 Cir., 456 F.2d 943 (1972) 
In the Beaufort County case, the award heretofore made by the 
District court is approved.

Remanded.

* In the Newport News case, on a completely different basis, 
the District Court made an award of attorneys' fees of $750.00 
in connection with services and events occurring before 
June 30, 1972. Since that award was not dependent upon § 718,
nothing we say here should be construed to disturb it.

4



WINTER, Circuit Judge, concurri ng specially:

1 concur in Che ludgment of the court to the extent 
that it directs the allowance of attorneys fees in the 
^ ^ P o r t s j s j u t h .  Beaufort County and Newport N e w s  cas ,s . 
For the reasons set forth in my separate opinion in
Bradley v. School Board of Richmond. ___F.2d_ (4 Cir.
No. 71-1774. decided------------). , wou ld direct the

allowance in all three cases on the basis that S 7l8 of the 
Emergency School Aid Act of 1972 applies to legal services 
rendered before the effective date of that enactment in 
cases pending on that date.

Printed by System Printing Ltd  
Contract /¥USCA 3985



1 N I l l'll STATES d i s t r i c t court 
cor mi: d i s t r i c t o f coi.umi ua I- S L E D

KENNETH ADAMS cj: al. , ))))))))))))

PIaintiffs,

v. Civil Action No. 3095-70

FIX TOT RICHARDSON, I n d i v i d u a l l y ,  
a nd  a s  S r c r e l  a r v  o f  I lit- Depa r t  mint  
" I  Ilea Mi l ,  Till tea  I i n n ,  a nd  He I f a r e
•I a l

Defendants.

MEMORANDUM OPINION

This is a suit for declaratory and injunctive relief against

the Secretary of Health, Education and Welfare and the Director of the 

Office for Civil Rights (OCR) of the Department of Health, Education 

and Welfare (HEW), complaining of alleged defaults on the part of 

defendants in tile administration of their responsibilities tinder Title VI 

of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000d, et seq. 

(1970).

and enforcement of HKW’s regulation issued pursuant to Title VI and 

published at 45 C.F.R. Part 80. In addition, the OCR through agreement 

with other departments and agencies of the Executive Branch, had been 

assigned responsibility for Title VI enforcement with respect to most 

federal financial assistance to elementary, secondary and higher education 

and for health and social welfare activities, including such assistance as 

is granted and administered by those departments and agencies.

summary judgment was denied in order to allow plaintiffs to engage in and 

complete discovery. Such discovery, inter alia, included a very lengthy

The responsibilities of the OCR include the administration

In an earlier proceeding, defendants' motion to dismiss or for

deposition of defendant Pottingor.



Upon completion of discovery, plaintiffs filed a motion for 

summary judgment. Defendants have filed a combined motion to dismiss 

and a cross-motion for summary judgment. both sides base their motions 

upon the entire record before this Court. On the basis of this record, 

it appears that, in certain of the areas about which plaintiffs complain,

HEW has not propcrlv fulfilled its obligation under Title VI to effectuate 

the provisions of Section 2000d of such Title and thereby to eliminate 

the vestiges of past policies and practices of segregation in programs 

receiving federal financial assistance. Our specific findings and con­

clusions are set forth below.

FINDINGS OF FACT

A. Higher Education

1. Between January, 1969 and February, 1970, HEW concluded 

that the states of l.ouisiana, Mississippi, Oklahoma, North Carolina,

Florida, Arkansas, IVnnsyI vania, Georgia, Maryland, and Virginia were 

oporalinp segregated systems of higher education in violation of 

Title Vi. At that time HEW requested each of the ten states to submit 

a desegregation plan within 120 days or less.

2. Five states, Louisiana, Mississippi, Oklahoma, North 

Carolina and Florida, have totally ignored HEW's request for a desegrega­

tion plan and have never made submissions.

3. The other five states, Arkansas, Pennsylvania, Georgia, 

Maryland and Virginia, submitted desegregation plans which are unacceptable 

to HEW. Although the submissions were made between 18 and 36 months ago, 

HEW has failed formally to comment on any of these submissions.

4. As yet HEW has not commenced an administrative enforcement 

action against any of these ten states nor have these matters been

referred to the Justice Department for the filing of suits against any

of said Ien states.



5. HKW has attempted to justify its failure to take 

administrative action on the* grounds that negotiations with these ten 

states are still pending, that there are problems of great complexity 

in the segregation of state-wide systems, and that the Supreme Court 

standard of desegregation "at once" does not apply to public higher 

education.

6. HKW lias advanced and continues to advance federal funds 

in substantial amounts for the benefit of institutions of higher 

education in said ten states.

I!. Kloniontnry and Secondary School Districts - 1970-71

I- HKW has reported that as of the school year 1970-71,

113 school districts had reneged on prior approved plans and were out 

of compliance with Title VI. Some 7A of these districts are still out 

of compliance with Title VI.

2. Although HKW has known of the noncompliance of most of 

these districts since early in the 1970-71 school year, HEW has commenced 

administrative enforcement actions against only seven such districts, 

and of the eight cases referred to the Justice Department, only three 

have been sued.

3. HEW has attempted to excuse its administrative inaction 

on the grounds that it is still seeking voluntary compliance through 

negotiation and conciliation.

A. These non-complying districts have received and continue to 

receive substantial federal assistance from HEW.

C. Compliance with Supreme Court Decisions

1- In Alexander v. Holmes County Board of Education, 396 U.S.

19 (1969), the Supreme Court required desegregation "at once" of dual



school systt'ms in thirtv Mississippi school districts. At the time of 

I his decision (October 29, 1969), 87 school districts had HKW-approved • 

desegregation plans which permitted segregation to be postponed until 

September, 1970. Despite the Supreme Court's directive, HEW took no 

steps to compel immediate desegregation in these 87 districts.

2. Following the decision of the Supreme Court in Swann v. 

Chariotito-Mccklonburg Hoard of Education, 402 U.S. 1 (1971), which 

enunciated "a presumption against schools that are substantially dis­

proportionate in their racial composition" HEW identified 300 non-court 

order school districts with one or more schools composed mostly of local 

minority students.

3. initially, HEW eliminated 75 of the 300 districts from 

further consideration without any on-site investigation or communication 

with the districts because in llKW's judgment the racial disproportion of 

the schools in these districts was too small to constitute a violation 

of Swann. 11F.W then eliminated 134 of the remaining 225 districts from 

further consideration still without any on-site investigation or communi­

cation with the districts. Although at least 85 of these districts have 

one or more schools substantially disproportionate in their racial 

composition, none was required to justify the substantial racial dis­

proportion in its schools. HEW mailed letters to the remaining 91 

districts in the summer of 1971, notifying them that additional desegre­

gation steps may he required under the Swann decision. Of these 91 

districts, HEW received desegregation plans acceptable to HEW from 37 

districts, noticed three for administrative hearing, and found Swann 

"not applicable" to nine.

4. Tiius, 42 districts which HEW deemed to be in presumptive 

violation of Swann remain so approximately a year later while HEW 

continues to review them.

5. These 42 school districts have been receiving federal funds 

from HEW throughout this period of over one year.

-4"



1). Vocational and Other Schools

1. State departments of education in the 17 southern and 

border states administer or operate numerous vocational and other schools. 

In the latter category are schools for deaf, blind and mentally 

handicapped children.

2. While apparently not a complete list, HEW did provide the 

names of 205 vocational schools, 28 schools for the blind and the deaf 

and certain other schools for the mentally handicapped administered by 

the departments of education in the 17 states.

3. HEW does not have any student enrollment and faculty data 

by race for many of these schools but it did provide statistics of 

students and faculty in Louisiana's vocational schools which show seven 

schools as overwhelmingly black and 25 schools as overwhelmingly white. 

Many of the schools operated by state departments of education are 

obviously segregated.

A. Prior to the filing of this suit, HEW had no comprehensive 

program of Title VI enforcement for such schools.

5. After Liu* filing of this suit, HEW announced a program to 

enforce Title VI with respect to state department-administered schools, 

but the program only affects vocational schools. As yet, HEW has 

scheduled no on-site reviews of the segregated vocational schools In 

the south.

6. Federal funds have been distributed to most of these schools 

for years and HEW continues to give such federal assistance.

E. Districts Subject to Court Orders

1. Some 640 school districts which receive HEW aid, including 

many of the largest school districts, are subject to school desegregation

court orders in the 17 southern and border states.



- 6 -

2. Shortly aftor tlie passage of the statute in 1964, HEW 

issued a regulation which, in effect, deemed a district in compliance

if it were subject to a final desegregation order and provided assurance 

that it will comply with said order including any subsequent modification 

thereof.

3. In 1968, Congress in amending §2000d-5 of the statute, 

adopted the HEW regulation in part by providing that, for the purpose 

of determining whether an educational agency is in compliance with 

Title VI, compliance by such agency with a final court desegregation 

order shall be deemed to he compliance with said Title.

4. Once a school district has been placed under a court 

desegregation order and gives assurance "on paper" that it is in 

compliance with such order, it is the practice of HEW to regard such 

school district as in compliance with Title VI. HEW does not monitor 

said school districts to determine whether or not the court order is 

being obeyed.

9. HEW's justification for failure to monitor school districts 

under court order is allegedly based upon possible conflicts with the 

courts, possible conflicts with the Justice Department, and HEW's 

alleged lack of resources to provide systematic monitoring.

6. HEW has advanced and continues to advance substantial 

federal funds to school districts under court order.

F. HEW's Record of Administrative Enforcement Proceedings.

1. Between the passage of the Civil Rights Act in 1964 and 

March 1970, HEW initiated approximately 600 administrative proceedings 

.(gains! ntvieomp I ying school districts. in 1968 alone, HEW initiated 

about 100 enforcement proceedings. In 1969 HEW Initiated nearly the 

same number of proceedings.



-7-

2. From March 1970, the month in which defendant Pottinger

assumed the position as director of HEW's OCR, until February 1971, 

no enforcement proceedings wore Initiated, and since February 1971, 

only a small, I ok on number of .such proceedings have been commenced.

3. As a result of such enforcement proceedings, 44 school 

districts were subject to fund terminations in 1968-69. Only two cutoffs 

occurred in 1969-70. No termination of funds have occurred since the 

summer of 1970.

4. Upon initiating an administrative enforcement proceeding, 

it is the practice of HEW to defer the school district's application for 

"new" programs funds only. HEW does not defer its advancement of funny 

under "continuing" and previously-approved programs.

3. HEW makes no attempt subsequently to recapture funds dis­

tributed to a district between the notice of hearing and the formal'I
determination of its Title VI ineligibility.

6. Since administrative enforcement proceedings generally 

consume one or more years, HKW's limited deferral practice allows the 

continued flow of large federal aid to the respondent school districts.

7. Despite defendants' reluctance or failure to employ enforce­

ment proceedings terminating funds, substantial progress toward com­

pliance with Title VI has been made. Since 1968 the number of Negro 

pupils in 100% minority schools or mostly minority schools in eleven 

southern states has greatly declined, decreasing from 68% of the total 

Negro pupils in the region in 1968 to 9.2% in 1971-72. On the other hand, 

the number of said pupils in 51% or more majority white schools has 

suhstanl ini 1y increased, rising from 18% in 1968 to 43% in 1971-72.

The basic issue presented for determination is whether 

defendants' exercise of discretion in relying largely on voluntary



-8-

coinp 1 i;in('c to accomplish the progress achieved and Lo obtain compliance 

in the areas still unresolved 1111*0 Is their full responsibilities under 

t he mandat r of Title VI.

C O N C L U S IO N S  01’ LAW

1. Plaintiff?; have standing to bring this action on behalf 

of themselves and others similarly situated.

2. The Court has jurisdiction under 5 U.S.C. §§702-704, 28 

IJ.S.C. §§1331 , 1 343(4), 1 361 , 2201, and 2202, and by virtue of the Fifth 

Amendment of the Constitution.

3. Tn its enactment of Title Vi of the Civil Rights Act of 

1064, Congress clearly indicated Its intent and purpose by Providing in 

§2()00d that:

"No person in the United States shall, on 
the ground of race, color, or national origin, 
be excluded from participation in, be denied 
the benefits of, or be subjected to discrimina­
tion under any program or activity receiving 
Federal financial assistance." (Emphasis supplied)

4. HEW and all other federal agencies empowered to grant 

federal assistance to any program or activity are directed by §2000d-l 

of Title VI to effectuate the provisions of §2000d by the issuance of 

rules, regulations and orders of general applicability consistent with 

the objectives of the statute authorizing financial assistance. Agencies 

granting federal assistance are authorized to enforce compliance with 

such requirements (1) by termination of or by refusal to grant or con­

tinue such assistance after opportunity for hearing and an express finding 
on the record of a failure to comply with such requirement, or (2) by 

any other means authorized by law. Prior to such enforcement action, 

notice of failure to comply with the requirement must be given by the 

agency concerned and there must be a determination by the agency that 

compliance cannot be secured by voluntary means. After the enforcement



• V

-fr­

action terminating or refusing to grant or continue assistance has 

boon concluded, the agency is required to make a rej>ort to the appropriate 

committee of the House and Senate* of t he circumstances and grounds for 

such action, which .shall not lake effect until thirty days after the 

filing of such report.

5. The underlying thrust of the statute requires that the 

agency involved, i.e., in this case HEW, attempt at the outset to secure 

compliance hy voluntary moans, if such method is reasonably possible.

This course involves negotiation, and negotiation takes time. To such 

extent, the defendants have discretion but such discretion is not 

unlimiled.

f>. Where a snhstaut ial period of time has elapsed, during

which period attempts toward voluntary compliance have been either not

attempted or have been unsuccessful or have been rejected, defendants’

limited discretion is ended and they have the duty to effectuate the

provisions of §2000d by either administrative determination, after a

hearing on the record, that there has been a failure to comply and that

funds should he terminated,or by any other means authorized by law, such

as reference to the Department of Justice. Under such circumstances,

defendants cannot rely on their alleged complete discretion as justifi-
1/

cation for permitting the mandate of the statute to be unenforced.

7. Title VI of the Civil Rights Act of 1964 is not a new 

statutory provision. The record is replete with instances occurring

1/ The discretion implied by the use of the term "all deliberate 
speed" in the Brown case has become exhausted and no longer 
exists. See Alexander v. Holmes County Board of Education,
396 II.S. J9, 20 (1969); Green v. County School Board of New
Kent_Comity, 391 U.S. 430, 438-39 (1968); Griffin v. County
School Board of Prince Edward County, 377 U.S. 218, 234 (1964). 
These Supreme Court opinions have made it abundantly clear 
that "continued operation of segregated schools under a 
standard allowing ’all deliberate speed' for desegregation is 
no longer constitutionally permissible. Under explicit hold­
ings of [the Supreme Court] the obligation of every school 
district is to terminate dual school systems at once and to 
operate now and hereafter only unitary schools." (Emphasis 
supplied) A 1exander, supra at 20.



-10-

over long periods of time* since 1964, where defendants' efforts seeking 

voluntary compliance lias either not been attempted or have been unsuccess­

ful or have met with rejection. In these cases, defendants cannot in 

their discretion permit further advances of federal assistance in 

violation of the statute, hut have the duty of accomplishing the purposes

of the statute through administrative enforcement proceedings or by other
2/

legal means.

8. After the initiation and during the pendency of said 

administrative enforcement proceedings, defendants in their discretion 

have the authority to defer further federal payments under continuing 

and previously approved programs and to refuse payments applied for under

new programs.

9. J'ompl iant:e by school districts and other educational agencies 

under final order of a federal court for the desegregation of the school 

or school system operated by such agency is, by virtue of §2000-5, to be 

deemed compliance with the provisions of Title VT. Until there lias been 

a finding, by Lin* Court entering the order that its order lias not been 

complied with, defendants are under no obligation to effectuate the pro­

visions of Title VI through the means previously described. To the 

extent that their resources permit, defendants have the duty to monitor 

school districts under court order and to bring their findings to the 

attention of the court concerned. The responsibility for compliance by 

school districts and other educational agencies under court order rests 

upon the court issuing said order.

10. In summary, the discretion implicitly vested in defendants 

by slatut <• exists solely for lhe purpose of achieving voluntary compliance

2/ Where school authorities are in default of their obligation
to proffer acceptable remedies to assure school desegregation, 
a District Court has broad power to fashion an appropriate 
remedy. Swann v. Chariotte-Mecklenburg Board of Education,
402 U.S. 1, 16 (1971) (Burger, C.J.). In the present case, 
the Court feels that ordering the Secretary of HEW to commence 
enforcement proceedings is not only appropriate but, indeed, 
required by the statute.



-11-
,a

with tin- requ i riwittn of Title-. VI. As the undisputed record demonstrates, 

defendants' efforts toward voluntary compliance have been unsuccessful 

in the cast; of many state and local educational agencies which continue 

to receive substantial federal funds in violation of the statute. 

Defendants now have no discretion to negate the purpose and intent of 

llu1 statute l>y a policy described in another context as one of benign 

neglect" but, on the contrary, have the duty, on a case-by-case basis, 

to employ the means set fort It in §2000d-1 to achieve compliance.

The foregoing constitutes the Court's findings of Fact and 

Conclusions of haw. Appropriate declaratory and injunctive relief will 

issue upon plaintiffs' submission of an order consistent with our 

findings and conclusions. Plaintiffs are directed to confer with 

defendants on the wording and substance of such order and submit the 

same within thirty (30) days.

John H. Pratt 
ted States District Judge

November 16, 1972

i

i t