Correspondence from Bryant to Judge Keady; Memorandum in Response to Court's Letter of Inquiry on Attorney Fees

     [||077504f8-f199-4975-9c0d-7a0c2c01ea1c||] fA @ | 

DEPARTMENT OF JUSTICE 

Office of the Attorney General 
JACKSON, MISSISSIPPI 39205 

  

A..F SuMMER ¥ GirLEs W. BRYANT 

ATTORNEY GENERAL ; SPECIAL ASSISTANT ATTORNEY GENERA October 31, 1975 FRRaL 

Honorable William C. Keady 
United States District Judge 
P, 0. Drawer 190 
Greenville, Mississippi 38701 

Re: Delores Norwood, et al. 

ve. 

D. L,, Harrison, et al. 

No. WC 70-53-K 
  

.Dear Judge Keady: 

Upon review, the defendants note that there are several 
errors which appear in our memorandum of October 30, 
1975, which need to be corrected. At page 2 in the last 
line, please change the word "designation" to "desegre- 
gation." At page 4, the citation for Gooden should 
read as follows: 5 Cir. 1974, 499 F.2d 441, rehearing 
denied 503 F.2d 567, cert. denied 419 U.S. 1093. 

Sincerely yours, 

    
GWB:bs 

  

/ 
/ cc: Melvyn R. Leventhal, Esquire 

 



DEPARTMENT OF JUSTICE 

Offtee of the Attorney General 
JACKSON, MISSISSIPPI 39205 

  

A..F. SuMMER GiLES W. BrYaNT 

ATTO RNEY GENERAL SPECIAL ASSISTANT ATTORNEY GENERAL 

October 30, 1975 

Honorable William C. Keady 
United States District Judge 

P. O. Drawer 190 
Greenville, Mississippi 38701 

Re: Delores Norwood, et al. 

Ve. 

D. IL. Harrison, et al. 

No. WC-70-53-K 
  

Dear Judge Keady: 

In response to the court's written request dated 
September 30, 1975, the defendants herewith submit 
their Memorandum in Response to Court's Letter of 

Inquiry on Attorney Fees. 

Sincexely yours, 

Giles W. Bryant i 
Special Assistant Attorney General 

   
GWB:bs 

Enclosure 

cc: Melvyn R. Leventhal, Esquire 
Suite 2030 
10 Columbus Circle 

New York, New York 10019 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF MISSISSIPPI 

WESTERN DIVISION 

DELORES NORWOOD, et al. ) 
Plaintiffs) 

) 
Y. ) CIVIL ACTION 

) NO. WC 70-53-K 
) 

D. I. BARRISON, et al. ) 
Defendants ) 

MEMORANDUM IN RESPONSE TO 
COURT'S LETTER OF INQUIRY 

ON ATTORNEY FEES 
  

INTRODUCTION   

At the outset, the defendants believe that it 

would be beneficial to the Court to explain what this 

case is not about. The facts as reflected in the Supreme 

Court decision of this case clearly indicate that this is 

not a situation falling anywhere within the desegregation 

process. This case is not one of pupil assignment, pupil 

placement, a drawing of district lines, student transfer, 

teacher transfer or reassignment, or teacher employment. 

Norwood is a case which involves a 1940 and a 1942 

Mississippi statute providing for the allotment of text- 

books to all school children in the State of Mississippi. 

Therefore, we are dealing in a straight-line situation, 

i.e., textbooks to pupils. 

This is neither a case of segregation or 

desegregation. If one must pinpoint the exacting issue 

determined by the Supreme Court, then it must be a question 

 



  

of the existence of discrimination. 35 ie clear from 

the record in this case that neither this Court nor he 

Supreme Court of the United States ever found that the 

State Textbook Purchasing Board unconstitutionally ad- 

ministered Sections 6634, et seq. The Supreme Court 

only held that the Board could not administer the text- 

book program to the extent previously determined by this 

Court, i.e., textbook aid to all students attending 

private schools regardless of discriminatory school 

policies. The Supreme Court refused to declare a blanket 

condemnation. Neither discrimination nor bad faith has 

been found to be extant on the part of the Board. The 

record in this case shows that the Board has sedocted he 

applications of five schools seeking textbook. assistance. 

Of the eighty-five schools..applying for free textbooks 

from the State of Mississippi, twenty-four were finally 

objected to by plaintiffs. Of these twenty-four schools, 

only four schools have ever been found by the Court to be 

ineligible for textbooks from the State of Mississippi. 

Even in these four situations there has been no finding 

that the State Textbook Purchasing Board acted discrimin- 

aSoriiy, oF in bad faith.\ Only after an adversary hearing 

and oy the presentation of evidence|beyond that contained 

in the applications of these four an were-same—found 

0 be ineligible.) Finally, it is most important to point 

out that it has never been found that the awarding of 

free textbooks to private academies had an adverse 
% 
3 

effect on the designation of the public schools of this 

state. 

 



  

\ 

7 ol 

3. 

20 U.S.C. $1617 DOES NOT APPLY 
IN THIS ACTION SINCE IT BEARS 
NO RELATIONSHIP WHATEVER WITH 
THE DESEGREGATION PROCESS. 
  

The defendants note with some concern that 

plaintiffs quote from the Congressional Record, Vol. 117 

Cong. Rec. 10762, et seq., to bolster their argument as 

to the intent of the national Congress to implement the 

attorney fees section of the Emergency School Assistance 

“Act of 1972. A cursory analysis of the Senate argument 

during that period clearly indicates that the forte 

between Senator Mondale, Senator Cook and Senator Pell 

was over entirely different subject matter and their 
oT) 

\ argument falls of its own weight, if any./ While the 
—— 

defendants do not dispute that the general subject matter 

was attorney fees, we do contest the weight and materiality 

~QF the citation. We call the Court's attention to the fact 

that the Senate was in a heated dispute over the creation 

of the $15 million dollar slush fund to pay attorney fees 

which was ultimately defeated by a resounding vote of 47 

to 38. It is well to note that the author of the now 

existing proviso voted against this measure. 

By the same token, defendants can find no direct 

reference whatever as to congressional intent of Section 

718 of the Act. The Senate report merely makes reference 

that this provision was inserted during conference and 

there is not one single statement to indicate that the 

Congress intended any other purpose than the payment of 

attorney fees in a successful action to effect desegrega- 

tion per se. 

 



  

Let us turn now to the record sub judice. 

Section 718 requires that the Court make a finding that 

the action is necessary to implement a necessary pattern 

of desegregation in a particular school district. The 

Act further imposes the restriction that these fees only 

accrue to the successful party and none other, specifically 

excepting the United States government from the receipt 

of any such fee. Such a finding must be made. Gooden v. 

Mississippi State University, 499 F.2d 441, aff. 499 F.2d 

441, cert. den. Dec, 21, 1974. 

It needs no citation to show the Court that such 

a finding was not made during the proceedings before the 

three-judge court in this matter. By the same token, the 

defendants have difficulty in gleaning any such determina- 

tion by the Supreme Court in its presentation. For 

instance, in the factual situation they so state: 

"...We cannot and do not know, On 
this record at least, whether state 
textbook assistance is the determina- 
tive factor in the enrollment of any 
students in any of the private schools 
in Mississippi.” 37 1L.B4.24.723, 731, 
732. 

Without any basis, then, not even the Supreme 

Court could state affirmatively that a basis for the 

award of attorney fees would lie even at this late date 

in the proceedings, for in some of its conclusionary 

remarks it expressed concern as to the relief which may 

be accorded in this matter. 

"Private schools are not fungible 
and the fact that some or even most 
may practice discrimination does not 
warrant blanket condemnation." 

37 L,.84.28 723, 735. 

On remand, the record stands in the same posture. 

 



  

Il. 

ASSUMING ARGUENDO THE POSSIBLE 
APPLICABILITY OF SECTION 718, 
THE FACTS IN THIS CAUSE PLACE IT 
WITHIN THE AMBIT OF THE "SPECIAL 
CIRCUMSTANCES" EXCEPTION SPOKEN 
OF IN NORTHCROSS 
  

For thirty-five years the State of Mississippi 

benevolently provided free textbooks for all school 

children. Its statute of provision is one of long standing 

and the principle embodied in the language of the statute 

or statutes was assumed to be constitutionally permissible. 

Factually, Norwood indeed indicates a situation 

of "unusual circumstances." The State of Mississippi, by 

and through its subordinate authorities empowered to 

implement the provisions of Sections 6634, et seq., Miss. 

Code Ann. (1942), has long operated under the precept that 

the Books were educational instruments which naturally flow 

to the child attempting to receive an education whether it 

be in public or private parochial schools. Such was the 

case here. 

In other words, the theme of the statute that 

was attacked through this litigation was to provide all 

eligible school children with the necessary material 

available throughout the state in order to achieve a 

quality education. 

The Supreme Court did not determine in Norwood 

that all state aid to private academies was unconstitutional 

nor did it adjudicate that the existence of private academies 

was unconstitutional, nor did it grant to plaintiffs the 

relief sought, i.e., the blanket condemnation of aid to 

 



  

students attending private academies in the State of 

Mississippi. The very limited relief, if any, that was 

accorded these plaintiffs was to be had on remand to the 

district court, A procedure was devised whereby the 

academies were accorded due process to determine if they 

wished to prove whether or not they operated on a dis- 

criminatory basis. Those who refused to indicate an 

open-door policy were denied further access to free text- 

books by the State of Mississippi. Those who indicated 

therwise were allowed to continue under the existing 0 

program, and some for one reason or another chose not to 

apply for this assistance. 

This brings us squarely to the proposition of 

the special circumstances spoken of in Northeross v. 

Memphis Board of Education, 412 U.8..427,°37 1.86.24 48, 

93 $.Ct. 2201 {June 4, 1973). Pirst, there was no  indi- 

cation of the point in time where discrimination may or 

may not lie in this cause because we had no definitive 

declaration of the applicability of constitutional prin- 

ciples in this situation. Surely one cannot doubt that 

we were plowing new ground in this area, and the Supreme 

Court said as much when they said that the record itself 

did not give rise to the relief requested at that time 

and mandated further proceedings. Analysis of the decision 

of the Supreme Court shows a severe limitation of the relief 

requested by the plaintiffs. That court realized that what 

they (the plaintiffs) had requested was in and of itself 

unconstitutional. The court recognized the existence of 

private institutions as a viable means of education for 

citizens of the United States. It recognized that even 

segregated academies were permissible. The only thing 

 



  

provided for in Norwood was a judicial vehicle whereby 

discrimination might be eliminated from the distribution 

of textbooks to children attending private academies in 

the State of Mississippi. Surely this is in and of itself 

a special circumstance because no one knew until this time 

under which principle the statute would continue to be 

applied, if at all. At most, thls reasoning would dictate 

the inapplicability of the provisions of Section 718 and, 

at the very least, the creation of a special circumstance. 

CONCLUSION   

Once again, this is not a case of segregation 

and/or desegregation. The plaintiffs attempted to equate 

segregation and the existence of private academies in the 

State of Mississippi with discrimination. The clear dic- 

tates of Norwood negatives any such assertion, for as the 

court said in its closing remarks, "mere assumptions do 

not rise to unconstitutional presumptions." The facts in 

this case are clearly outside the language of Section 718 

and plainly within the special circumstance exception, 

assuming that it applies in the first instance. For these 

reasons, the request for attorney fees in this cause should 

be denied. 

Respectfully submitted, 

A. F. SUMMER 

ATTORNEY GENERAL 
STATE OF MISSISSIPPI 

wig Bl 
ED—DPAVES-—DNOBLE , 3 

Assistant ris ey 

4) N Br 
GILES W. BRYANT 

Special Assistant by General 

  

  

  

O. Box 220 

kson, MS 39205 ac (S
v)
 

 



  

CERTIFICATE 
  

I, GILES W. BRYANT, Special Assistant Attorney 

General, do hereby certify that I have malled this date 

by United States Mail a true copy of the foregoing 

Memorandum to: 

Melvyn R. Leventhal, Esquire 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorney for Plaintiffs 

THIS the 1] day of October, 1975. 

Sr I Bn?   

GILES W. BRYAN: [||077504f8-f199-4975-9c0d-7a0c2c01ea1c||]