Harkless v. Sweeny Independent School District Memorandum in Support of Plaintiffs' Motion for an Award of Reasonable Attorneys' Fees and Costs

    IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF TEXAS 

GALVESTON DIVISION

CIVIL ACTION NO. 66-G-34

MILDRED HARKLESS et al. ,
Plaintiffs

- v -
THE SWEENY INDEPENDENT SCHOOL 
DISTRICT OF SWEENY, TEXAS et al.,

Defendants

MEMORANDUM IN SUPPORT OF PLAINTIFFS' 
MOTION FOR AN AWARD OF REASONABLE 

ATTORNEYS1 FEES AND COSTS

WELDON H. BERRY 
711 Main Street 
Houston, Texas 77002

JACK GREEN3ERG 
JAMES M. NAERIT, III 
JAMES C. GRAY, JR.

10 Columbus Circle 
Suite 2030
New York, New York 10019

GABRIELLE K. MCDONALD 
1834 Southmore Blvd. 
Suite 203
Houston, Texas 77004

SANFORD D. BISHOP, JR.
1214 First Avenue 
P.O. Box 709 
Columbus, Georgia 31901

Attorneys for Plaintiffs



I N D E X
Page

I. PLAINTIFFS ARE ENTITLED TO AN AWARD
OF ATTORNEYS' FEES TO COMPENSATE THEIR
COUNSEL FOR TIME SPENT ON THE PROSECUTION
OF THIS LITIGATION ........ .....................  1

II. IN ORDER TO VINDICATE PLAINTIFFS' RIGHTS,
COUNSEL HAVE HAD TO VIGOROUSLY PROSECUTE
THIS ACTION OVER THE COURSE OF MANY YEARS....... 3

III. DURING THE TWELVE YEARS OF LITIGATION,
DEFENDANTS HAVE PAID THEIR COUNSEL OVER 
$50,000 IN FEES FOR THE DEFENSE OF THIS
ACTION .........................................  7

A. Fees Paid by Defendants ...................  7
B. Burden of Litigation .....................  10

IV. JOHNSON y . GEORGIA HIGHWAY EXPRESS, INC.,
SETS FORTH THE STANDARDS WHICH THE COURT 
SHOULD USE IN DETERMINING THE FEES TO BE 
AWARDED PLAINTIFFS FOR THEIR COUNSEL'S
TIME SPENT ON THIS LITIGATION ................  11
1. Time and Labor Required ..................  13

2. Novelty and Difficulty of the Issues .....  14

3. Skill Required ...........................  15
4. Experience, Reputation ard Ability cf

Counsel ...................................  16

5. The Amount Involved and the Results
Achieved ......................... ,.......  16

6 . Whether the Fee is Fixed or Contingent.... 18

7. Customary Fee .............................  18

8 . Preclusion of Other Employment ..........  20

l



Page
9. Undesirability of Litigation ...........  20

10. Nature and Length of Relationship ......  22

11. Time Limitations Imposed ................. 22

12. Awards in Similar Cases ................ 22

V. PLAINTIFFS’ REQUEST FOR AN AWARD OF
REASONABLE ATTORNEYS' FEES •..................  34

VI. EXPENSES OF LITIGATION .......................  36

VII. CONCLUSION ....................................  37

CERTIFICATE OF SERVICE ............................  38

APPENDIX

Docket Entries as of March 3, 1975 ............... 1

Hohenstein Factors and 1% Return On
Defendants' Fees to Counsel ......................  12

Bernstein, "Attorney Fee Awards in Securities
Cases", Vol. 1 No.3 Federal Attorney Fee
Awards Reporter .................................. 13



IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF TEXAS 

GALVESTON DIVISION

MILDRED HARKLESS, et al.,

Plaintiffs,

- v - CIVIL ACTION
: NO. 66-G-34

THE SWEENY INDEPENDENT SCHOOL
DISTRICT OF SWEENY, TEXAS et al.. :

Defendants. .

MEMORANDUM IN SUPPORT OF PLAINTIFFS' 
MOTION FOR AN AWARD OF REASONABLE 

_____ATTORNEYS 1 FEES AND COSTS

I.
PLAINTIFFS ARE ENTITLED TO AN AWARD 
OF ATTORNEYS' FEES TO COMPENSATE 
THEIR COUNSEL FOR TIME SPENT ON THE 
PROSECUTION OF THIS LITIGATION_____

In 1968, the U.S. Supreme Court explained the "private 
attorney general" rationale for awarding successful civil 

rights litigants reasonable attorneys' fees as part of their 

costs of litigation. In Newman v. Piggie Park Enterprises

Inc., 390 U.S. 400, 19 L.Ed.2d 1263, the Court stated:



. . .  If successful plaintiffs were 
routinely forced to bear their own 
attorney's fees, few aggrieved in­
dividuals would be in a position to 
advance the public interest by in­
voking the injunctive powers of the 
federal courts. Congress, therefore, 
enacted the provision for counsel fees 
not simply to penalize litigants . . . 
but . . . to encourage individuals 
injured by racial discrimination to 
seek judicial relief . . .
390 U.S. 402 (emphasis added).

This "private attorney general" rationale is clearly 

applicable to the instant matter. Moreover, Congress has spe­

cif ically provided for plaintiffs in actions such as this 

to recover as part of the costs of litigation reasonable 

attorneys' fees. Both the 1972 Education Act Amendments, 20 

U.S.C. §1617, and the 1976 Civil Rights Attorneys' Fees Awards 

Act, P.L. 94-559 amending 42 U.S.C. §1988, provide for an 

award of fees. In passing the 1976 Act which applies to 
§§1981 and 1983 actions, Congress stated:

It is intended that the amount of fees 
awarded under §2278 be governed by the 
same standards which prevail in other 
types of equally complex Federal litiga­
tion, such as anti-trust cases, and not 
to be reduced because the rights in­
volved may be non-pecuniary in nature.
The appropriate Standards, see Johnson 
v. Georgia Highway Express, 488 F.2d 
714 (5th Cir. 1974), are correctly 
applied in [cases omitted]. These cases 
have resulted in fees which are adequate 
to attract competent counsel, but which 
do not provide windfalls to attorneys.

2



In computing the fee, counsel for pre­
vailing parties should be paid for all 
time reasonably expended on a matter.

S. Rep. No. 94-1011, 94th Cong., 2nd Sess. 6 (1976).

The Court of Appeals in reversing the original trial 

judge's 1975 opinion ordered that judgment on the merits be 

entered for the plaintiffs and the action be remanded for 

determination of reinstatement, back pay and an award of 

attorneys' fees. 554 F.2d 1353, at 1360 (1977). In light of 

the Fifth Circuit's decision, there can be no question that 

plaintiffs are the prevailing parties and are entitled to 

recover attorneys' fees as part of their costs.

II.

IN ORDER TO VINDICATE PLAINTIFFS'
RIGHTS, COUNSEL HAVE HAD TO 
VIGOROUSLY PROSECUTE THIS ACTION 
OVER THE COURSE OF MANY YEARS

Plaintiffs filed this action in May 1966 seeking injunctive 

and equitable relief from the defendant school district's ter­

mination of 17 of the 25 black educators employed by the system. 

The first trial was held in March of 1969 and, as the record 

shows, many pretrial conferences were held during this period 

and many procedural issues litigated. Between 1966 and 1969, 

plaintiffs' counsel not only had to develop the evidence necess­

ary to prove that the plaintiffs' terminations were racially

3



motivated but they also had to litigate a host of procedural 

matters. This procedural litigation involved defendants' 

objections to answering plaintiffs' discovery requests, 
plaintiffs' unsuccessful attempt to obtain class action 

status for the case, defendants' demand for a jury trial and 

plaintiffs' motion for an interlocutory appeal on this ques­

tion, and defendants' motion to dismiss for lack of juris­

diction. Counsel also had to prepare plaintiffs' questions 

for the jury on voir dire and trial briefs. (See Docket 

Entries 1-61)
The trial judge granted defendants' demand for a jury 

trial and denied plaintiffs' motion for an interlocutory 

appeal. The trial was held before a jury in March 1969 and 

lasted for ten days. At the end of the trial, the jury found 

for defendants except for one basis for relief. Between the 

jury verdict and the entry of final judgment in June, plain­

tiffs' counsel prepared and filed motions and briefs seeking 
to have the jury's verdict set aside, a directed verdict 

entered, or alternatively a new trial. In June 1969, the trial 

judge dismissed the action for lack of jurisdiction. (Docket 

Entries 62-76)

Plaintiffs' counsel then successfully appealed this case 

to the Fifth Circuit which reversed the trial judge holding 

that a jury trial was improper and that adequate jurisdiction 

existed under §1983. Defendants unsuccessfully sought certiorari.

4



On remand, the court requested plaintiffs' counsel to 

prepare a supplemental exhibit on plaintiffs' qualifications. 

Plaintiffs' counsel located experts who could testify on the 

validity of the Steck form evaluation procedure allegedly 

used by defendants and the relative qualifications of the 
various teachers in the system using objective criteria. In 

January and April 1972, four more days of hearings were held 

to supplement the trial record. Defendants moved to have the 

jury verdict considered advisory. Plaintiffs' counsel prepared 

extensive proposed findings of fact and conclusions of law and 

a post-trial brief on all the issues which were filed on June 1, 

1972. (Docket Entries 93-105)
The court took the matter under advisement in June 1972 

and took no action on the case until November 1973 when it 

directed counsel to give their views on the applicability of 

the Supreme Court's decision in City of Kenosha v. Bruno, 412 
U.S. 507 (1973). Defendants moved to dismiss the suit and

plaintiffs moved for leave to amend their second amended com­

plaint and for an immediate decision. Briefs were filed by 
both sides on the issues in the beginning of 1974. (Docket 

Entries 106 to 122)
On January 10, 1975, the district court issued a 50 page 

memorandum opinion ruling against plaintffs on the court's 

jurisdiction to award back pay under §1983, plaintiffs' motion

5



to amend and on the merits of their claims.

Plaintiffs appealed this decision to the Fifth Circuit 
and won a reversal of the district court on the jurisdictional 

issues and on the merits. Defendants unsuccessfully sought 

certiorari. On appeal, the issues, inter alia, involved the 

merits of the plaintiffs' claims, the meaning of Kenosha, the 

immunity of school officials, the right to amend a complaint 

to correct jurisdictional defects and Rule 52(a).

Over the many years of litigation, plaintiffs1 counsel 
have had to vigorously prosecute this action in order to 

achieve a result which would vindicate plaintiffs' rights.

It has taken two trials, two appeals and two oppositions to 
certiorari. Counsel received no fees over this period from 

plaintiffs who could little afford to pay the cost of litigating 

such an action. Under such circumstances, the need for applying 

the "private attorney general" rationale of Newman v. Piggie 
Park is clearly demonstrated. Plaintiffs look to this Court 

for an award of fees that will adequately compensate their 

counsel for the weeks, months and years of litigation spent 

on this cause.

6



III.

DURING THE TWELVE YEARS OF 
LITIGATION, DEFENDANTS HAVE 
PAID THEIR COUNSEL OVER 
$50,000 IN FEES FOR THE 
DEFENSE OF THIS ACTION

A . Fees Paid by Defendants

In their Answers to Interrogatories served on March 14,

1978, defendants state:

Through February 17, 1978 Sweeny Independent 
School District had paid $49,155 as attorneys' 
fees in this case. Answer to Int. No.3.

In response to Interrogatory No.5, defendants state that 

at all times they have paid their attorneys on an hourly basis 

and that they currently pay counsel $75 per hour for work per­

formed by a partner and $65 per hour for work performed by an 
1/

associate. The rates for prior years are not stated.

In response to Interrogatory No. 4, defendants have supplied 

bills submitted by their counsel over the twelve years of liti­

gation. These bills account for $36,379 of the $49,155 reported 

by defendants to have been paid through February of 1977. The 

remaining $12,776 is not identified.

1/ In Foster v. Boise-Cascade, Inc., 420 F.Supp 674 (S.D.Tex. 
1976), the court found that "fees for cases filed in 
federal district court average $75.00. Partners in large 
Houston law firms charge a minimum of $90.00 per hour . . . 
Associates . . . $40 to $75.00". Clearly, with respect 
to partners, defendants' current rates are below the pre­
vailing rates in Houston two years ago.

7



The following chart shows by year: (1) the actual amount

paid by defendants; (2 ) the value of the amount in 1978 when

compounded at 6% interest per annum; and (3) the value of
2/those fees when adjusted into 1977 terms.

Year Fees Paid 6% Value Table 3 Value
1966 500 1005 1122
1967 2190 4161 4682
1968 2078 3720 42 72
1969 10750 18168 20393
1970 500 795 858
1971 - - -
1972 1005 1427 1446
1973 - - -
1974 3668 4622 4468
1975 6888 8197 7839
1976 5650 6328 6046
1977 3130 3339 3150

Total 36,379 51,762 54,276
Assuming that the unidentified amount of $12,776 was paid

2/ See, Table 3, Hohenstein "Subtract Inflation," ABA
Journal on Legal Economics, Summer 1978 (The 1966
factor of 2 .243 is based upon the 4.7% decrease shown
in Column 4 of the Table. ) The factors used in com-
piling this chart are attached to this : 
the Appendix at page 12 •

memorandum in

8



in 1969, the totals in the above chart would be increased 

as follows:

V

Fees Paid 6% Value Table 3 Value

$36,379 

12,776 
Total $49,155

$51,762

21,591
$54,276

24,236

$78,459$73,353

As these figures show, the $49,155 spent by defendants

over the course of this litigation, when viewed in current

dollars, represents a much larger sum. Were defendants to
pay their counsel today for the services rendered during the

course of this litigation, the sum would be considerably higher
£/than that actually paid.

3/ An examination of defendants' bills suggest that the
missing bills cover the period of February to September 
1967, the oral argument in the 1969 appeal and the 
1971-72 remand proceedings. The difference between an 
even distribution of the $12,776 over these three periods 
and the allocation of the total amount to 1969 is rela­
tively small. The above assumption is based upon these 
premises.

4/ This is further demonstrated by a comparision of the 
fees paid for the 1969 and 1975 appeals. The 1975 
appeal cost defendants $15,688 in fees between 1975 
and 1977. While the records produced show bills of 
$1,280, $1,725 and $500 for the 1969 appeal, these do 
not include items such as oral argument or preparation 
of the petition for certiorari. A total cost of $6,000 
in fees, in light of the omissions, does not seem un­
reasonable .

At a return of 1% per annum, the defendants 1 payments 
to counsel would have a value of $78,541, and the Table 
3 Value when adjusted into 1978 dollars would exceed 
$82,000.

9



B. Burden of Litigation
In discussing the fees paid by defendants in defense of 

this action, plaintiffs would point out to the Court that 

their counsel have faced a much heavier burden in prosecuting 

this litigation. At the trial level, plaintiffs' counsel 

have had to develop through discovery the evidence necessary 

to prove their claims, while defendants' counsel have had 

ready access to school board records and officials. Moreover, 

plaintiffs' counsel have had the burden of proof on discrimi­

nation in the trial before the jury and the original trial 

judge.
On the appellate level, plaintiffs' counsel have gone 

before the Fifth Circuit on two occasions without the benefit 
of favorable findings of fact and conclusions of law from the 

trial judge. On each occasion, plaintiffs have borne the 

burden of persuading the Court of Appeals to reverse the deci­

sions of the trial judge. While defendants spent $15,688 on 

the second appeal, their counsel had only to defend the trial 

court's decision not upset it. As appellees, defendants' burden, 

both in terms of content and number of briefs, was less than 

plaintiffs'.
Defense counsel's fees give only a modest indication of 

the value of the services rendered by plaintiffs' counsel since 

defendants' burden was so much less than plaintiffs' and de­

fendants ' officials provided unaccounted for manpower.

10



IV.

In

JOHNSON V. GEORGIA HIGHWAY 
EXPRESS. INC.. SETS FORTH THE 
STANDARDS WHICH THE COURT SHOULD 
USE IN DETERMINING THE FEES TO 
BE AWARDED PLAINTIFFS FOR THEIR 
COUNSEL'S TIME SPENT ON THIS 
LITIGATION

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
(1974), the Fifth Circuit set forth twelve guidelines for the 
courts to use in awarding attorneys' fees to successful liti­
gants. These guidelines were adopted from Disciplinary Rule 
2-106 (B) of the American Bar Association's Code of Professional 
Responsibility, governing the setting of private fee arrangements. 
488 F.2d 719.

The twelve Johnson guidelines are:
(1) time and labor required;
(2) novelty and difficulty of the questions;
(3) skill requisite to perform the legal service;
(4) preclusion of other employment;
(5) customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or 

circumstance;
(8) amount involved and results obtained;
(9) the reputation, experience and ability of counsel;

(10) undesirability of the case;
(ID nature and length of the professional relationship 

with the client;
(12) awards in similar cases.

488 F.2d 717-719.

11



The Court in Johnson describes the interrelationship of 
these twelve factors as a "balancing process" which is designed 
to assist in arriving at adequate compensation for the servicesIVrendered. 488 F*2d 720. While the exact interplay of
these factors is not spelled out, it is clear from the decision
that the purpose of this "balancing process" is to determine
the fee which counsel could reasonably expect to receive for their
services in such a case from plaintiffs who were able to pay.
The guidelines help to identify the normal fee to be charged
for such services and those considerations unique to the case which

_§/require an adjustment, upwards or downwards, in the fee*
In a later decision, Matter of First Colonial Corp* of 

America v. Baddock, 544 F.2d 1291 (1977), the Fifth Circuit 
explained the procedure that should be followed in determining 
the attorneys' fees award., The Court ruled that it should be a 
three-stage process: the court should (1) ascertain the nature
and extent of the services supplied, (2) assess the value of 
those services, and then (3) explain its award by entering 
findings of fact indicating how each factor affected the decision* 
544 F .2d 1299-1300. See also Wolf v. Frank, 555 F.2d 1213.

5 ___/ In applying these and similar guidelines, the courts have
varied in their approaches* See Berger, "Court Awarded Attor­
neys' Fees: What is 'Reasonable'", 126 U* Penn. Law Rev. 281, 
at 283-294*
6 / Categorization of the various individual guidelines as 
"normal" or "special" is open to debate and may depend on the 
facts of the case*

12



In the following pages we discuss the applicability of 
the Johnson guidelines to the instant case, 
lo Time and Labor Required

The affidavits of counsel reflect the many hours spent inubringing this litigation to a successful conclusion* During 
the twelve years of litigation, many procedural issues were 
litigated, numerous pretrial conferences held and memoranda 
prepared and two trials lasting ten and four days* respectively, 
were held. There were also two appeals to the Fifth Circuit 
involving complex procedural and factual issues and two opposi­
tions to certiorari in the United States Supreme Court.

Since this Court has not had the opportunity to observe
the conduct and work product of counsel chrough the course of
this litigation, it may be necessary to review the docket entries
and memoranda filed in the record in assessing the time and
labor required* Johnson states:

The trial judge should weigh the hours 
claimed against his own knowledge, 
experience, and expertise of the time 
required to complete similar activities*
488 F* 2d 717*

The docket entries give some indication of the many conferences held 
and memoranda filed in this litigation.

7 / Because of the length of the litigation, New York counsel 
changed over the years. There was, however, continuity of 
counsel and the turnover was a direct result of the years 
required to complete the litigation*

13



This work was necessary to bring this litigation to a 
successful conclusion and counsel should be compensated for 
their time spent in prosecuting this action,,
2 * Novelty and Difficulty of the Issues

The issues in this case were both substantive and proce­
dural. On the merits, counsel had to prove that the termination 
of these teachers was racially motivated and that the purported 
evaluations of them were subjective rather than objective,, This 
case was brought prior to the Fifth Circuit's seminal decisions 
on teachers' rights in the desegregation process in U.S. v *
Jefferson County Board of Education, 373 F*2d 836 aff'd with mod. 
on rehearing en banc, 380 F.2d 385, cert, den, sub nom Caddo 
Parish School Board v. U*S., 389 U.S 845(1975), and Singleton v . 
Jackson Municipal Separate School District, 419 F*2d 1211 (1969)*
At the time of the suit, this area of the law was just beginning 
to develop, and the issues of proof were novel and difficult* 
Further, the validity of an evaluation such as the purported one 
in the instant matter -- absent clear evidence of racial manipu­
lation -- remains an undecided issue*

On the procedural level also, the issues were both novel 
and difficult* The first opinion by the Court of Appeals remains 
a landmark decision on the right to a jury trial and the equita­
ble nature of back pay* Until City of Kenosha v* Bruno, 412 U.S.507 
32 L.Ed. 2d 109 (1973), was decided, Harkless I was the leading 
authority within this Circuit on jurisdiction under §1983. while 
Kenosha brought the authority of the decision into question, the 
Supreme Court in Monell v. Dept* of Social Services of the City

14



of New York, ___ U.S. ___, 56 L.Ed.2d 611 (1978), has overruled
Kenosha adopting the position which instant plaintiffs have 
held on §1983 jurisdiction since the commencement of suitQ In 
the hiatus between Kenosha and Monell, the law on jurisdiction 
under §1983 was in a state of development. The jurisdictional 
issues raised in the second appeal were such that both plaintiffs 
and defendants found it necessary to file supplemental briefs on 
jurisdiction with the Court.
3o Skill Required

This litigation required counsel to perform at all levels 
of the federal court system: district, appellate and Supreme
Court. To prevail, counsel had to perform their services with 
a high level of skill and knowledge of federal procedure and 
litigation: conducting discovery under adverse circumstances, 
presenting at trial a case which would either convince a jury 
or constitute a winning record on appeal, preparing for and 
presenting experts in an untried area of the law, and presenting 
and arguing complex statutory and constitutional issues.

Johnson states on the skill required:
The trial judge's expertise gained 
from past experience as a lawyer and 
his observation from the bench of 
lawyers at work become highly import­
ant in this consideration.
488 F.2d 718.

15



4. Experience, Reputation and Ability of Counsel

The affidavits show the preparation and experience of the 

attorneys involved. They also show counsel's expertise in the 

area of civil rights. All of the counsel for plaintiffs have 

specialized in civil rights litigation. Texas counsel are en­

gaged in private practice and have handled school desegregation 

and employment discrimination cases over the years. New York 

based counsel are, or were at the time the services were rendered,

employed by the NAACP Legal Defense Fund, a public interest law
_8/

office specializing in civil rights litigation.
Johnson states:

An attorney specializing in civil rights 
cases may enjoy a higher rate for his 
expertise than others, providing his 
ability corresponds with his experience.
If a young attorney demonstrates the 
skill and ability, he should not be 
penalized for only recently being ad­
mitted to the bar.
488 F .2d 719.

5. The Amount Involved and the Results Achieved

Since May 1966, plaintiffs have sought a decision holding 

that their terminations were unlawfully based on race and a judg­

ment which would restore them to their rightful place. In 1977,

8/ Counsel affiliated with the Legal Defense Fund have brought 
many of the cases which have developed this field of the 
law. E.g.,attorneys from the Legal Defense Fund were coun­
sel in the U.S. Supreme Court in the Monell case which 
overruled Kenosha and its predecessor Monroe v. Pape.

16



with the decision of the Court of Appeals, plaintiffs achieved 
this long-sought goal.

The passage of time has made reinstatement impractical and, 

in two cases, impossible. Nevertheless, the result has been ex­
tremely important for the plaintiffs. In terms of dignity and 

self-esteem, this vindication of their civil rights and teaching 

competency is of great value. While placing a monetary value on 

this vindication is difficult, the economic value is ascertainable. 

The back pay figures submitted by counsel show the tremendous 

economic injury sustained by the various plaintiffs over the course 

of time as a consequence of their unlawful terminations. Both 
pecuniary and non-pecuniary rights were involved and in both res­

pects the results are significant.

In terms of the law, the results have also been significant. 

Important precedents were established on the right to jury trials 

in equitable actions, the equitable nature and function of back 

pay, jurisdiction under §1983 and other civil rights statutes, the 

rights of teachers and proof of racial discrimination.

Both the pecuniary, non-pecuniary and precedential results 

should be considered in determining the fee due plaintiffs' counsel. 

Johnson states :

Although the Court should consider the amount 
of damages, or back pay awarded, that considera­
tion should not obviate court scrutiny of the 
decision's effect on the law.
488 F .2d 718.

17



6. Whether the Fee is Fixed or Contingent

Counsel have charged plaintiffs no fees for their time

spent on this litigation. Plaintiffs' counsel have run the risk

of receiving no recompense for their efforts on plaintiffs'
__9/

behalf. in contrast, defendants' counsel have been continuously

paid over the years for their time with no risk of non—recovery

if their client did not prevail. Plaintiffs' counsel look to

the court for their fair compensation. When the recovery of fees

is contingent on success and a court award, the award should re-
10/

fleet the risks assumed by counsel.

7. Customary Fee

In Foster v. Boise-Cascade, Inc., supra, the Court found 
that "[t]he evidence forthcoming at the April 9 [1976] hearing 

establishes that fees for cases filed in federal district court 

average $75.00 per hour. Partners in large Houston law firms 

charge a minimum of $90.00 per hour for cases in federal court. 

Associates, however, command an hourly rate in the $40.00 to $75.00 
range." 420 F.Supp. 692.

9/ Texas counsel have received a nominal per diem from the
Legal Defense Fund for some days spent on the case. This 
modest per diem barely defrays overhead expenses.

10/ Counsel who rely on court-awarded fees invariably do not 
recover in all cases for their time spent on behalf of 
their clients. To assure access to counsel willing to 
take cases on such a basis, the awards given should 
generously compensate them for their risks. See, e.g., 
City of New York v. Darling-Delaware Co., 440 F.Supp.1132 
(S.D.N.Y. 1977).

18



Defendants currently pay their counsel $75.00 per hour for 

work performed by a partner and $65.00 per hour for work per­

formed by an associate. The rate charged by defendants' counsel 

for partner's time is considerably lower than the minimum rates 

found to be charged by partners in large Houston law firms in 

1976 in Foster. We assume that this is because of the long 

relationship between counsel and client.

The customary rates as demonstrated by the prevailing rate
in the community and the rates charged by defense counsel should

11/
provide a bench mark in determining the fee. It should be noted

IV Many of the services rendered on the plaintiffs' behalf
occurred prior to 1973. Nevertheless, the fee award should 
be made in terms of current rather than historic dollars.
A $35 per hour fee in 1966 would currently be worth $78.75 
based upon a 7% per annum return, or $78.50 using the Hohen- 
stein values for inflation in fees (see footnote 2, p.8).
The effects of inflation and lost use of the funds makes 
unadjusted historic rates inequitable and inadequate.

In City of New York v. Parling-Delaware Co., 440 F.Supp. 
1132 (S.D.N.Y. 1977), the court held that present rates were 
to be used. The Court stated:

The attorneys in this case have waited 7 years to 
receive any compensation for their services. Where 
the attorneys have waited so long for any compensation 
it seems that a calculation at present rates is appro­
priate to compensate for loss of interest and inflation. 
In fact, if we used historic rates and added to them 
compensation for interest and inflation, the Court 
would add far more than the 5-11% difference between 
a calculation of the hours at the two different rates. 
[Median of hours was four years earlier](emphasis 
added; footnotes omitted) 420 F.Supp. 1134.

In the present case where counsel have waited twe1ve years 
for any compensation, fair compensation must either be in 
terms of current rates or historic rates adjusted for interest 
and inflation. Current rates are simpler. See Bernstein, 
"Attorney Fee Awards In Securities Cases", Vol.l No.3 Federal 
Attorney Fee Awards Reporter, p.4 at Appendix page 13.

19



that rates in New York because of the higher overhead are normally 
higher than in other parts of the country.

8 . Preclusion of Other Employment

Counsel have spent many hours on this litigation. The time 
spent could have been devoted to other matters and a settlement 

granting relief to the plaintiffs would have been welcomed. Texas 

counsel were precluded from spending their time on matters which 

would have generated an immediate and higher fee. The Legal 

Defense Fund's attorneys were precluded from devoting time to 

other cases where important civil rights were also at issue, or 

were forced to forego personal time in order to meet all obligations. 
Since the Legal Defense Fund does not charge any of its clients for 

its attorneys' services, recovery of fees in successful suits are 

needed to continue providing services as a public interest law office.

9. Undesirability of Litigation

In Palmer v. Rogers, 10 EPD 510,499 (D.D.C. 1975), the Court
said on the question of undesirability:

Congress' provision for awards of attorney's fees 
in Title VII cases indicates a recognition that 
such cases are inherently undesirable. That is 
especially true in the instant case, where the 
plaintiff was of limited means and the prospective 
monetary recovery was small.
10 EPD p.6132.

In Oliver v. Kalamazoo Board of Educ., 73 F.R.D. 30 (W.D.

Mich. 1976), the court took note of the community hostility which 

attorneys defending the rights of victims of racial segregation

20



can encounter. 73 F.R.D. 45 - 46. Private practitioners such as 

Mr. Berry who took on civil rights suits in the 1960's ran a high 

risk of economic loss from the community hostility engendered by 

such suits. Not only did they face disapproval from the community 

at large but also from some of their fellow members of the bar and 
some of the judges before whom they appeared. It is impossible to 

measure the consequences of such an identification in terms of 

lost clients, lost referrals, and lost cases or less successful 

judgments from judge and jury, but there clearly were economic 
consequences.

In addition to this, the case had certain other undesirable 

aspects. First, the defendants had considerably greater resources 

than the plaintiffs both in terms of funds available and manpower. 

While defense counsel could request the school board's employees 

to perform various tasks, plaintiffs' counsel have had no similar 
resource.

Second, it is regrettably true that the original trial judge 

was not favorably inclined towards plaintiffs and their counsel. 

This meant not only that the normal courtesies and treatment of 
counsel could not be expected but also that the chances of success 

were considerably lessened. Since appellate review is limited to 

clearly erroneous findings of fact, wrong conclusions of law and 

abuse of discretion, the prospects of true success were limited. 

Under the circumstances, the case was particularly undesirable.

21



10. Nature and Length of Relationship

Since no fees were expected from the plaintiffs, the nature 

and length of the relationship between plaintiffs and counsel is 

onlY relevant in that the fidelity of unpaid counsel over so many 

years may require special enhancement of the fee award. Just as 

an attorney receiving payment from a client over many years of 

litigation may adjust his or her normal rate downward, so may an 

attorney receiving no payment for many years expect an adjustment 

upwards at the end of litigation. In the instant case, it would 
appear defense counsel are charging their clients less than their 
normal rate.

11. Time Limitations Imposed

At various stages of the litigation, time pressures were 

imposed. Counsel sought to have the plaintiffs reinstated before 

the commencement of the 1966—67 school year. The passage of years 

required new counsel to familiarize themselves quickly with a 

lengthy record in order to proceed on with the litigation. The 

time limitations, however, were not on the whole extraordinary.
12. Awards in Similar Cases

The final factor which Johnson instructs district courts to 
utilize in the "balancing process" of fee determinations is con­

sideration of awards in similar cases. The Court stated:

The reasonableness of a fee may also be 
considered in the light of awards made in 
similar litigation within and without the 
court’s circuit.
488 P .2d 719.

22



The following are some of the reported cases awarding fees

under 20 U.S.C. §1617, 42 U.S.C. §2000-e, 42 U.S.C. §1988, or
other federal statutes.

I. Awards Against School Boards
1976

Oliver v. Kalamazoo Board of Educ.

73 F.R.D. 30 (W.D. Mich. 1976)

School Desegregation Suit.

Counsel awarded fees at $100, $75, and $35-$40; hours 
with multiple counsel discounted 10% and 2.00 multiplier 
for certain attorneys based upon Johnson type factors.
Total award: $507,067

Dowell v. Board of Educ. of Ind. Sch. Dist. No.89 
of Oklahoma County

71 F.R.D. 49 (W.D. Okla. 1976)

Fees in School Desegregation Case for period of 1969-1976.

Lead counsel awarded $150,000 in fees at rates of $40 
to $70 per hour; Associated counsel at rates of $50 
to $70 per hour.

Total award: $171,150

Fabian v. Ind. Sch. Dist. No.89 of Oklahoma County 

409 F.Supp 94 (W.D. Okla. 1976)

Sex Discrimination in Employment Suit with recovery of 
$208,127 in back pay; suit commenced in 1972.

Counsel awarded fees for 1168 hours at effective rate of 
$51 per hour.

Total award: $60,000

23



1975

Swann v. Charlotte-Mecklenburq Board of Educ.

66 F.R.D. 483 (W.D.N.C. 1975)

School Desegregation Suit covering 1968-1975.

Counsel awarded fees at effective rate of $65.00 per hour. 

Total award: $175,000 in fees plus expenses of $29,072

Armstead v. Starkville Municipal Separate School District 

395 F.Supp. 304 (N.D. Miss. 1975)

Teacher Discharge and N.T.E. Suits.

Counsel awarded fees at effective rate of $55 per hour and 
at $35.00 per hour less discount for non-prevailing issues.

Total Fees award: $87,500 plus $21,342 in expenses and costs

II• Employment Suits Against Other Governmental Defendants 
1978

Parker v. Califano

443 F.Supp. 1059 (D.D.C. 1978)

On remand after affirmance of earlier award, in Parker 
v. Matthews, 411 F.Supp. 1059 (1976), by D.C. Circuit 
561 F .2d 320 (1977).

Individual Federal Employment Discrimination Suit - settled.

Lead counsel awarded fees at $60 per hour and her asso­
ciates at $30 and $35 per hour. Award discounted 20% for 
excessive phone calls and conferences and increased by 
25% as incentive. 411 F.Supp. 1059.

Lead counsel awarded additional fees at $60 for pre-April 
1976 work and $72 for post-April work. Associates at $45 
and $35 per hour. 25% incentive fee on trial level work 
and 10% on appellate level work involving attorneys' fees only.

24



Total award: $24,198 including $424 expenses

1977

Beazer v. New York City Transit Authority

14 E.P.D. 57584 (S.D.N.Y. 1977),aff'd with mod, on
fees, 558 F.2d 97 (2nd Cir. 1977), cert. granted 57 L.Ed.2
1146(1978)
Discrimination against Methadone Users.
(Rates for fees were at $100 to $110 for senior attorneys 
and $60 for junior attorneys.)

Counsel fees of $310,000 awarded plus premium of $50,710 
and costs $14,290. Reversed as to premium, affirmed as 
to basic fee.

Total award: $310,000 plus $14,290 in costs

1976

Williams v. Saxbe

12 E.P.D. Ull,130 (D.D.C. 1976)

Individual Federal Employment Suit.

Counsel awarded fees for work from 1972 to 1976 at $30 
to $65 and $30 to $40 depending on experience. 35% 
incentive award added.

Total award: $13,291

1975
Palmer v. Rogers

10 E.P.D. 510,499 (D.D.C. 1975)
Individual Federal Employment Suit.

Fees awarded at $75 for senior counsel and $40 for associates. 

Total award: $25,768

25



1974
Smith v. Kleindienst

8 FEP Cases 753 (D.D.C. 19.74), aff1 d in part and rev'd 
in part, sub nom. Smith v. Levi, 527 F.2d 853 (D.C. Cir.1975)

Individual Federal Employment Suit.

Counsel awarded fees at $75 and $40 per hour.

Total award: $18,444

Davis v. County of Los Angeles 

8 EPD f9444 (C.D. Cal. 1974)

Suit against Fire Department on behalf of Black and Mexican- 
American potential employees.

Counsel awarded fees at rates of $60, $55 and $35.
$1000 reduced for unnecessary duplication and award 
augmented by $7,193 in light of Johnson type factors 
as "Result Charge".

Total award: $60,000 in fees and costs

III. Private Employment Discrimination 

1977

Sherrill v. J.P. Stevens and Co.

15 E.P.D. 58004(W.D.N.C. 1977)

Equitable relief ordered.
Fees awarded at $75, $60 and $55 per hour, plus incentive. 

Total award: $94,200

1976
Foster v. Boise-Cascade, Inc.

420 F.Supp. 674 (S.D.Tex. 1976)

26



Settled Sex Discrimination Suit.

Fees awarded at $65, $50 and $35 per hour depending on 
work performed.

Total award: $8,231

Walker v. Ralston Purina Co.

409 F.Supp. 101 (M.D.Ga. 1976)

Settlement of Title VII action.

Various counsel awarded fees at $75, $50 and $35 per hour. 

Total award: $27,460 plus $3,428 in costs
1975

Rosenfeld v. Southern Pacific Co.

519 F .2d 527 (9th Cir. 1975)

Sex Discrimination Suit.

Counsel awarded fees at effective rate of $73.71 per hour 
over four years of litigation.

Total award: $30,000
1974

Barth v. Bayou Candy Co.

379 F.Supp. 1201 (E.D. La. 1974)

Sex Discrimination Suit.

Counsel awarded fees at $50 and $40 per hour.
Total award: $6,160

1970

Clark v. American Marine Corp.

320 F.Supp. 709 (E.D.La. 1970), aff'd per curiam. 43 7 F.2d 
959 (5th Cir. 1971)

27



Counsel awarded fees at $35 per hour.

Total award: $20,000 plus costs

IV. Other Civil Rights Suits 

1977

Brown v. Culpepper

559 F .2d 274 (5th Cir. 1977)

Jury Exclusion Suit.

Fees ordered at $75 and $65 per hour.

Total award: $2,276

Souza v. Southworth

564 F.2d 609 (1st Cir. 1977)

Prisoners' Rights Suit settled in light of law change.

Fees for 1973 work at $60 per hour and post-1973 work at 
$75 affirmed but reduced to $50 per hour for appellate 
work involving non-prevailing issues and attorneys' fees.

Guajardo v. Estelle

432 F.Supp. 1373 (S.D.Tex. 1977)

Prisoners' Rights Action litigated over six year period. 

(Fees awarded at $125 and $50 per hour.)

Total award: $127,565 plus $11,229 in expenses

1975
Nat'1 Assn, for Mental Health v. Weinberger 

68 F.R.D. 387 (D.D.C. 1975)

Impoundment of Federal Funds.

28



Fees awarded at $70 per hour for substantive work 
plus 1.75 multiplier, and $50 per hour for attorneys' 
fees application.

Total award: $110,375

National Association of Regional Medical Programs 
v. Weinberger

396 F.Supp. 842 (D.D.C. 1975), aff 'd, 546 F.2d 1043 
(D.C. Cir. 1976)

Unlawful Impoundment of Federal Rinds.

Fees awarded at $70 per hour plus 2.00 multiplier, and 
$50 per hour for attorneys' fees.
Total award: $105,000

1975
Torres v. Sachs

69 F.R.D. 343 (S.D.N.Y. 1975)

Voting Rights Suit.

Fees awarded at $75 and $50 per hour.

Total award: $23,163 plus $89 in xeroxing costs

Stanford Daily v. Zurcher 

64 F.R.D. 680 (N.D. Cal. 1974)

Search and Seizure Case (Reversed on Merits, ____  U.S.
____, 56 L.Ed.2d 525 (1978)).

Counsel awarded fees at $50 per hour plus increase for 
contingent nature, quality of work and result for effective 
rate of approximately $63 per hour.

Total award: $47,500

29



V. Civil Rights Suits Where Award Does Not Disclose 
Hours or Rates Involved.

1977

Chandler v. Roudebush

14 E.P.D. f7589 (C.D. Cal. 1977)

Individual Federal Employment Suit.

$55,185 in interim fees awarded for litigation to Supreme 
Court on the trial de novo issue prior to determination 
on merits.

1976
Pond v. Braniff Airways, Inc.

12 E.P.D. fll,274 (N.D.Tex. 1976)

Sex Discrimination case.

Attorneys' fees of $15,000 awarded to counsel for plain­
tiff who received $30,000 in back pay.

1975

Smith v. Concordia Parish School Board 
387 F.Supp. 887 (W.D.La. 1975)

Individual Teacher Discharge.

$10,000 fee awarded.

1974

Cornist v. Richland Parish School Board 

495 F .2d 189 (5th Cir. 1974)

Singleton violations of Teachers' Rights.

Award of $7,500 ($3,750 per teacher) affirmed.

30



1971

Bradley v. School Board of City of Richmond 

53 F.R.D. 28 (E.D. Va. 1971)

School Desegregation Case.

Fees of $43,355 plus expenses of $13,065 awarded for work 
to 1971.

Peters v. Missouri - Pacific Railroad Company 

3 E.P.D. 58274 (E.D. Tex. 1971)

Racial Discrimination in Retirement Plan.

Fees of $44,000 and expenses awarded counsel.

VI. Fees in Other Federal Litigation Involving Pecuniary Rights

1977

Wolf v. Frank

555 F .2d 1213 (5th Cir. 1977)
Stockholders' Derivative Action where judgment of $557,614 
was obtained. 1975 Award of $259,612 in fees at base hour 
rates of $150, $100 and $75; affirmed as to base hours and 
enhancement to $250 and $200 per hour for "in-court" time, 
but modified to reduce 100% enhancement to 33 1/3% en­
hancement for "out of court" time.

1976
Rubenstein v. Republic National Life Insurance Co.

74 F.R.D. 337 (N.D.Tex. 1976)

Securities case.

Total award: $519,573 for 6375 hours of work; average effective 
rate of $81.50.

31



1974

In Re Gypsum

386 F.Supp. 959 (N.D. Cal. 1974)

Private Antitrust Action resulting in 68 million dollar 
settlement.

$9,262,559 in fees awarded to various counsel at community 
standard of $100 for partners and $50 per hour for asso­
ciates plus use of weighte'd factors of 3.0 and 2.2 times rate.

1972

Ellis v. Flying Tiger Corp.

504 F .2d 1004 (7th Cir. 1972)
Stockholder^ Derivative Suit.

Attorneys1 fees award where extensive preparation for trial 
did not occur and no new developments in the law resulted 
was reduced from $600,000 to $75,000 to an effective hourly 
rate of between $132 and $94.

As the foregoing cases demonstrate, in awarding attorneys'

fees the courts have sought to arrive at a fee which will adequately

compensate counsel for the services performed on their clients'

behalf. Counsel in lengthy school desegregation cases have been
12/

awarded substantial fees, as have counsel in major employment

discrimination actions against school boards and other governmental
13./

defendants.

12/ See Oliver v. Kalamazoo Bd. of Educ., supra ($507,067); Dowell
v . Bd. of Educ., supra ($171,150); Swann v. Charlotte-Mecklenburg 
Bd. of Educ., supra ($175,000).

13/ Fabian v. Ind. Sch. Dist. No.89, supra. ($60,000); Beazer v.
New York City Transit Authority, supra ($310,000); Davis v .
County of Los Angeles, supra ($60,000).

32



In major civil rights actions brought against governmental

officials for failure to observe the law, substantial awards have
14/

been made. Even in individual suits when the litigation has re­

quired extensive attorney time and effort, the awards have been 
15/

s ignificant.

The hourly rates used have varied depending on the locale,

the experience and specialization of counsel, the issues involved

and results obtained. Since 1975, the courts have generally used

base rates of between $60 and $75 per hour for skilled counsel
16/

performing major litigation responsibilities and rates of between
17/

$70 and $110 for senior counsel with extensive litigation experience.

In addition in a number of cases, the courts have found it 

necessary to increase the normal "base" fee through the use of a 

multiplier or incentive award in order to adequately compensate 

counsel for the risks or difficulties of the litigation. Such an

14/ See Guajardo v. Estelle, supra ($12 7,565); Natl. Assn, for 
Mental Health v. Weinberger, supra ($110,375); National 
Association of Regional Medical Programs v. Weinberger, 
supra ($105,000).

15/ Chandler v. Roudebush, supra ($55,185); Parker v. Califano, 
supra ($24,198); Palmer v. Rogers, supra ($25,768); Smith v . 
Kleindienst, supra ($18,444)

16/ See Dowell v. Board of Educ., supra; Parker v. Califano, supra; 
Palmer v. Rogers, supra; Williams v. Saxbe, supra; Smith v . 
Kleindienst, supra; Sherrill v. J.P. Stevens, supra; Foster v . 
Boise-Cascade, Inc.; Walker v. Ralston Purina Co., supra;
Brown v. Culpepper, supra; Torres v. Sachs, supra.

17/ See Dowell v. Board of Educ., supra; Oliver v. Kalamazoo Board 
of Educ., supra; Beazer v. N.Y.C. Transit Authority, supra; 
Guajardo v. Estelle, supra.

33



"enhancement" of the base fee is justified when one or more of
18/the Johnson considerations is particularly present.

V.

PLAINTIFFS' REQUEST FOR AN AWARD 
OF REASONABLE ATTORNEYS 1 FEES

As the previous section demonstrates, the issues in this 

case were novel and difficult, the amount involved and the results 
achieved significant and the risk of non-recovery high. The liti­

gation required a high level of skill, involved certain undesir­

able aspects and precluded counsel from other employment. As the 

affidavits show, all counsel have specialized in civil rights 

litigation. In 1976, the customary fee in Houston for federal 

litigation was $75, and $90 for partners in large firms; courts 

awarding fees in similar cases since 1975 have used a base rate 
of between $60 and $110 per hour. Defendants' counsel, who have 

received fees currently worth $80,000 or so, charged their client

18/ See, Wolf v. Frank, supra (2 times multiplier approved); Oliver 
v. Kalamazoo Board of Educ., supra (2 times multiplier used); 
Nat11 Assn, for Mental Health v. Weinberger, supra (1.75 
multiplier used); Nat11 Assn, of Regional Medical Programs v . 
Weinberger, supra (2 times multiplier used); In Re Gypsum, 
supra (3.0 and 2.2 weighted factors used); Williams v. Saxbe, 
supra (35% incentive fee); Davis v. County of Los Angeles, 
supra ($7,193 "Result Charge"); Sherrill v. J.P. Stevens and 
Co., supra (incentive added); Parker v. Califano, supra (25% 
and 10% incentive award); Stanford Daily v. Zurcher, supra (26% 
increase for contingent nature, quality cfwork and result).
See also, City of New York v. Dariing-Delaware, supra (award 
of $1,277,277 in fees using risk factor multiples of 100%, 60% 
and 0%) .

34



in February 1978 at $75 and $65 per hour for services rendered.

In light of these factors, plaintiffs believe that an award 

compensating their counsel using the following hourly rates and 

multipliers would be reasonable:

Weldon H. Berry, Esq. - $75 per hour 

For services rendered 1966-1978
Plus 100% multiplier for the substantial preclusion 
of other employment, the high risk of non-recovery, 
the undesirable aspects of the litigation, and 
results achieved.

Gabrielle K. McDonald, Esq. - $75 per hour

For services rendered in 1972 regarding remand 
proceedings.
Sanford D. Bishop, Esq. - $75 per hour
For services rendered in 1974 regarding jurisdictional 
issues.
NAACP Legal Defense Fund, Inc.

For services rendered 1966-1978
Attorneys with Primary Responsibility:

1966-70 - Conrad K. Harper, Esq.
$75 per hour for pre-trial, trial and first appeal.

1971-72 - Sanford D. Bishop, Esq.
$65 per hour for remand proceedings.

1975-78 - James C. Gray, Jr., Esq.
$75 per hour for second appeal and remand 
proceedings

Plus 50% multiplier for novelty and difficulty of issues, 
preclusion, risk of non-recovery, undesirablility of 
litigation and results achieved.

35



Associate Attorneys:

1969 - W. Haywood Burns, Esq.
$65 per hour for assistance at trial and 
post-trial proceedings.

1974 - Norman Chachkin, Esq.
$75 per hour for preparation of jurisdictional 
responses.

1977 - James M. Nabrit, III, Esq.
$100 per hour for review and preparation of 
Response to Certiorari.

In light of Johnson guidelines discussed, these hourly rates which 

parallel defendant's current below-the-market rates are low. The 
use of a multiplier for Mr. Berry's time and the time of LDF's 

attorneys with primary responsibility for this litigation corrects 

this by taking into consideration the risks involved, the undesira­

bility of the case and the results ultimately achieved. In the 

absence of a multiplier, much higher hourly rates should be used 

for these attorneys.

VI.

EXPENSES OF LITIGATION

Plaintiffs' court costs and expenses for depositions, expert 

witnesses and travel of counsel incurred in the course of this 

litigation are properly recoverable as part of the award. See,

Swann v. Charlotte-Mecklenburg Board of Educ., supra; Parker v .

Califano, supra; Beazer v. N.Y.C. Transit Authority, supra; Davis 

v. County of Los Angeles, supra; Walker v. Ralston Purina Co., supra?

36



Guajardo v. Estelle, supra; Bradley v. School Board of City of

Richmond, supra; Armstead v. Starkville Municipal Separate School 

District, supra; City of New York v. Parling-Delaware Co., supra.

Because of the length of the litigation reimbursement of 

these expenses should be in terms of current value.

VII.
CONCLUSION

For the foregoing reasons, plaintiffs, having prevailed, 

request this Honorable Court to award them their costs and 

expenses, including an award of attorneys' fees that will com­

pensate their counsel for the services rendered on their behalf.

Respectfully submitted,

WELDON H. BERRY 
711 Main Street 
Houston, Texas 77002

JACK GREENBERG 
JAMES M. NABRIT, III 
JAMES C. GRAY, JR.

10 Columbus Circle 
Suite 2030
New York, New York 10019

SANFORD D. BISHOP, JR.
1214 First Avenue 
Columbus, Georgia 31901

GABRIELLE K. MCDONALD
1834 Southmore Blvd., Suite 203 
Houston, Texas 77004

Attorneys for Plaintiffs.

37



CERTIFICATE OF SERVICE

I certify that two copies of Plaintiffs1 Motion

for An Award of Costs and Attorneys1 Fees and Memorandum in

Support of Plaintiffs 1 Motion have been served upon counsel

for defendants by mailing same first class postage paid,

addressed to:

Grant Cook, Esq.
16th Floor
1100 Milam Building
Houston, Texas 77002

This day of November, 1978

Attorney For Plaintiffs

38



\)



I

ii

O A TS

5-23-66
5-23-66
5-25-66

- 6-15-66 
7- 6-66 
7-13-66
7- 22-66 
7-26-66:
7-28-66
8 -  8-66 
8-17-66

9- 2=66
11-18-66: 
12-  2=66

12-13-66:

32-16-66 
12- 22- 66 ’  

1-18-67' 
, 1-20-67 

, 1-26-67 
1-22-67 
1-30-67 . 4';-25-67 
6- 5*67:

• 6- 5-67: 

6- 6-67: 

6- 6-67:

■6- 8-67: 
6- 9-67: 

6-26-67

Ot , i O

G- 34
J

P I U M 0 9 — PROCEEDINGS
AMOUNT 

RGPOUTCf) IN 
CMOLUM C NT 

RETURNS

Complaint, f.i.d
Motion for Preliminary Injunction, f i.d. (Not on M/D)
Summons issued for service on Sweeny Ind. Sch JJist. and Fred. 
Miller, .Supt. Executed 5-25-66.
Defts' Original Answer, f.i.d.
(JN) FT 11-18-66; TR 1-9-67, 9:30 AM,' Galv.
PIT's Interrogatories, f.i.d.
Defts1 Objection s to Interrogatories, f.i.d. (Not on M/D) 
Defts' Notice of Hearing on Objections to Interrogatories, f.: 
Agreed Order Extending Time for Answer of Written Interroga­
tories, and Order (BCC) thereon, f.id. Attds ntfd.
Defendants answers to plaintiffs interrogatories,filed in dup 
(JN)Defendants objections to written interrogatories 3 and 4 | 
is hereby DENIED;however,defendant shall, not be recuired to i 
furnish plaintiff the answers,but plaintiff shall have !
access at reasonable time to the data in the office of 
defendant necessary to supply the answers to interrogatories 3 and 4. Notice. JN

Motion of P3.f, Claudia C. Wilson, to Dismiss, and Order theceo 
filed, entered. Order Signed 8-21-66 Atty for Plf ntfd.(JN) Pre-trial head; reset to 12-13-66, 1:30 AM, Ho&.
(JN) "Counsel are requested to appear December 13, 1966, at 

1:20 P.M., in chambers - local counsel only - for discussion of trial setting."
(JN) Pre-trial held in chambers (not reported). Trial I-9-67 

passed- to be set in Galveston in June or in Houston In 
February, if possible. Each side to submit brief on 
whether this is appropriate suit for class action by 
1-20-67; replies by 1-27-67; est. trial time: 2 days. 

Pre-trial Order, f.i.d.
Deposition of Fred Miller, filed. /.
Plfs''Memorandum of Law, f.i.d.
Defendants' Trial Brief, a.i.d. •
Plfs' Reply to Defts' Trial Brief, f.i.d.
Defts' Reply Brief, f.i.d.
Defts' Plea in-Abatement and Notice thereon, f.i.d.(M/D 2-18-67 
(JN) Order denying Defts' Plea in Abatement, entered.
Plf's Notice of T'king Depositions of C. W. New, et al, f.i.d. 
Plf'a Motion for Production of Documents for Inspection,
Copying and Photographing, and Notice theeon, f.i.d.
Defts' Motion to Vacate Notice of Taking Depositions,and Notice theredof, f.i.d. (M/D 6-12-67)
Memorandum in Support of Defts' Motion to Vacate Notice of Depositions, f.i.d.
Plfs' Amended Notice to Take Depositions.^f.i.d.

'Answer to Plfs' Motion for Production, of Documents for Inspection, Copying and Photographing, f.i.d.
(JN) Order on Claps Action, filed and entered. Signed. 6-23-67

PARTIES NOTIFIED PURSlhiNT TO RULE 77/dl

1.
2 .
3-

5„-o,
• d. 7

3.
9

, 10.

11.12.
13.
14.
15.
16.
17.
18.
19.

20

21.
22.
23.
24.

(M/D

(M/D i



66-0-3^
CIVIL DOCKET MILDRED EARKLE5S, ET AL. VS THE SWEENY INDEPENDENT SCHOOL
DATC FILINGS—PROCEEDINGS

SHEET NO. 2. ' 1

AMOUNT RtPOSTCD IN KMOLUMCNT RETURNS
6-20-67: Plfs' Notice toTake Depositions of C. W. New, et al. f.i.d. 25.
6-29-67: (JN)Pre-trial, 11-16-67. 9:00 A. Galv: FOB: Trial 1-22-68.

9-14-67 Deposition of E. T. GEE taken 8-24-67 by Pltf. filed 26 110.50
9-14-67 Deposition of DR.FLETCHER HESTER taken 8-23-67 by Plf.filed 27 4 93.-60
9-14-67 Deposition of L.J.McKEIL.JR. taken 8-24-67 by Pltf. filed 28 LJ&JfP
9-14-67 Deposition of C. W. NEW taken 8-20-67 by Pltf. filed 29 >104.00
11-16-67 Pltf'c MOTION to Amend Complaint ft Pre-trial Order, f.i.d. 30

11-16-67: (JR) PRETRIAL HELD ft reset to 3-8-68 9:30 Houston. Order
entered; re: Motion for discovery; LEAVE GRANTED to

11-20-67 Deft's DEMAND FOR TRIAL* BY JURY, f.i.d. 31 JURY
11-20-67 Deft’s FIRST AMENDED Original ANSWER, f.i.d. 32
.12-1-67 Pltfs NOTICE OF MOTION to Strike Softs‘Demand for Jury Trial . O O

* -J

Motion to Strike Defendants’ Demand for Trial by Jury; and.
Memo in Support of Mo. to Strike Defts; Demand for Jury,fit. M/D 1F-I-Y

12-18-6', MEMO in Cooosition to Mo. to Strike Deft’s D.for J.,fid 34
1-12-60 (JN) ORDER on Pltf'c Motion for Production of Documents fox’

inspection, copying ft photographing signed by Judgd
Noel 1-11-68, filed. *?C

I-I0-6O (JN) MEMORANDUM ft ORDER, filed ft entered - certified copy
mailed to counsel of record. DF

2-1-60 Pltf’s MOTION fox* .leave to file Pltf’s Motion to Amend The, _
Complaint filed ft approved on 11-16-67. f.i.d. 97

2-1-63 Pltf'c NOTICE of Motion to Dismiss Piltf's Federal Due Procer Z

Prayer for Back Pay and for an Order Transferring this
—

Cause to the Non-Jury Calendar, f.i.d, M/D 2-12-68 38

2-1-60 Plt'f’s MOTION to Dismiss, etc, (ns above) f.i.d. 39
2-9-60 Deft's REPLY to Pltf’c Motion to Transfer this Causa to

the Non-Jury Calendar, f.i.d. 40
2-21-68 Pltf’c SECOND MOTION for Production of Documents for Inc-ecl cn.

Copying ft- Photograph?/ing ft NOTICE of Motion, f.i.d 4i; r.12-26-
r-26-60 R e n l v  to pla i phi ff ’ r. -a-nnU n «.

doc ..uments for inspect 1 on . r.on«1 and nh nt. na-ra ph i n- fiie.rf ■'i p

3-0-66 (JIT) In Houston: IRETRIAT. 7~T,D ft reset to 9-2-69. ?,.-n
5-9-60 Motion for Trial by Jui-y Pursuant to Rule 39(b) and Notice.fi Led 4;WD5-2(
r»_q_60 (JN) In Houston: PRETRIAL HELD; Pltf. to reply to Motion fox-

Jury by ’.1-90-6,1: Di-Ct. to have 1 day to respond.
',-l(i-60 Pltf's CK02,2.-MOTION Cor Transfer of this Cause to the Non-Ju-r7

. ___
Hu U: 111T.i1 ox hi M m  aj i.urnn 1. xve ,x or a ccrtiiixcate of Probnh te 

—Utuse-l Lir_Anpea 1 to the TI. P. Po-i-l- ,-,C Sn>v>nl- Sn-r tha we-if 'n. ci. ii« U.rcuut, f.i.d. ~--------- ^



: \ >
66-G-34

DATS nuNCft-raocceoiNGi AMOUNT 
REPORTED IN 
EMOLUMENT 

RETURNS

6 - 6 - 6 8 . (JN) MEMORANDUM & ORDER signed 6-6-68, filed & entered- 45
1 fa) granting Defendants' Motion for Jury Trial:

fb) denying Plaintiffs' Motion for Transfer to the Non-
Jury Calendar, and

fc) denying Plaintiffs' Motion for Interlocutory Apoeal
6 - 6 - 6 8 (JN) ORDER signed 6-6-68 on above Memo, filed & entered. 1 46
6 - 6 - 6 8 Certified copy of Memo & Order handed to counsel. 1
11/22/68 (JN) Pretrial held

•; 11/29/68 Plaintiff's Memorandum in Support of Motion by the National 1 b?riUuudlxuu AooOCid oiuu uU lauci'Vcutf d. Party -plaint 1 lY;— flu g c—
; 12/2/68 (JN) Order, entered, granting extension of time to December 191963 j. ui ixlj.ng, Ui nuduu Lu Intervene-07— National-----

----- Education Association - counsel notified
: 12/4/68 Motion of National Education Association for Leave to Fi 1 ° 48
\ ComDlaint and Intervention, filed
;12-19-68 Dcfts' REPLY to Motion for Leave to File COMPTATNT A TWTPE-
1: -- VENTION of NATIONAL EDUCATION ASSOCIATION OF THE U.S .fil ed 49
.12-19-68 MEMORArrDUM of Authorities in Support of Defts ' rrpt.v •vni Intervenors Motion for Leave to file Petition and t.h»
i1-------- Complaint in Intervention, filed. 50
.1/17/69 (Ji<) Tr.e motion of the National Education Association to

Intervene is denied. Notice. JN CG 1-20-69
1/29/69 (JN)"Counsel for plaintiffs and defendants will each file a

-------- trial' brief on or before February 17. 1969. Notice Jf It
! CG 1-29-69
i 2/4/69 PLAINTIFFS' QUESTIONS FOR JURY PANEL ON VOIR DIRE "lied 61

2/17/69 PLAINTIFFS' TRIAL BRIEF filed 52
, 2/17/69 DEFENDANTS' TRIAL BRIEF filed. 63

2/17/69 DEFENDANTS' OBJECTIONS TO PLAINTIFFS' PROPOSED QUESTIONS FOR
-L 1* ifa. JURY PANEL, etc., filed. ' ‘ ,----- 54.
j 3/6/69 DEFENDANTS" MOTION FOR INSTRUCTED VERDICT filed in dup in CTr;n 55.
! -3/6/69 qh j

3/10/69* Plaintiffs Supplemental Trial Brief filed in dun. 57.I
3/10/69 (JN) ORDER signed by Judge Noel (Presented on 3/8/68) decvirJ-f

plaintiffs ^lotion to Dismiss Plaintiffs' Federal Due Process i ~T
to the Non-Jury Calendar, entered and filed. “ 68

311/69 Plaintiffs' SECOND SUPPLEMENTAL TRIAL BRIEF filed in dup. 59
3/11/69 —ilg.fclon to Dismiss filed in due h-
3/11/6^ In Support of D e f e n d a n t r - - , . „ 1 — 41 1,of Jurisdiction filed In dup



i .

_1

y

■V 1

V 5.

66-G-34
r-.x/.i nnrKPT MILDRED HARKLESS, ET AL VS. THE SWEENY INDEPENDENT SCHOOL__ ________ ■ — ~1~ (™n-- 1 'i —
OAT*

-------- —--- - i J i^ ^ n - L L r ;— rrz h d

FILINGS—PROCEEDINGS

** ' ‘ -
AMOU

REPORTEMOLU
RETU

NT
EO IN 
1CNT 
9N8

» *5 /*5 /^Q to ta l OR CAUSE. 9:00 A.M. Galveston, Texas ----- i_--------- -
2t.JlP-y-- APPEARANCES: MR. Conrad Harper, Mr. W. Haywood Burns, Mr. !

Weldon H. Berry and Mr. Thomas Dent of Counsel for Plaintiffs.
Mr* Arant cook for Defendant. Later Mr. Sauer was co-counsel-----
with Mr. Cook. Jury selected. Testimony started 3 / 4 ---

1 0/4/69 Tn trial second dav. Testimony B e g a n . -------------
1 O/P/D^-

■5/6/69 In trial fourth day.
■5/7/60 Tn trial fifth dav. -----------------

j 3/8/69 In trial sixth day. ------------
1. 3/9/69 Sunday.

• 5 /in/no Tn trial seventh dav. ----- -----------
■5 Zn /nQ Tn trial ei/rhth day. ------ —-------------
3/12/C1 Tn trial ninth day. Both sides rested, arguments of counsel,

1 charge to jury. ’ ---
' 3/13/69 Tn trial tenth day. Case submitted to jury. Verdict

rptiimpd hv 1urv in favor of defendants. Plaint it — ^ake
nothing. --------------------

3/12/69 Defendants Requested General Jury Instructions and Objec-
62.

3/10/60 Plaintiffs’ Requested General Jury Instructions with-------- 63,
Annotations to Appropriate cases, filed.

3/3/69 Amended Pre-Trial Order sinned bv Judne Noel 64.
3/13/60 _£5-
iL/l/L/lrO Plaintiffs' Motion to Amend the Amended Complaint and/ or--X / Amended Pre-Trial Order to Conform to the Evidence, filed. 66.
4/l4/6o Plaintiffs' Motion to Enter Judgment for Plaintiffs; 67.

Motion to"have Verdict' Leu Asiue arm to have juugment■!.. ...-i-f-V. -0 r\r TVreete/1 Vcrd 1 r t - nr-----
Alternatively Motion for a New Trial, filed.

4/14/69 NOTICE of Motions filed. - - - 68.
4/14/69 Plaintiffs' Post-Trial MEMORANDUM OF LAW, filed. 69*
4/l4/6o Defendants' MOTION FOR JUDGMENT, filed. 70.

| 4/14/69 Defendants' BRIEF in support of Motion for Judgment, filed. 71.
1 ‘ 4/28/60 Defendant's Reply to Plaintiffs' Motion for 'Judgment, or 72.

in the alternative. Motion for New Trial £: Post Trial
Memorandum of Low - The Jury's Answer to Question No. 5
Does Not Entitle any of the Plaintiffs to Judgment in Their
Favor, ■r’11cd.

tf. a it*

. t



4 ■

! S6-G-3^ MILDRED HARMLESS, Et A1 -vs'- • •’-The Sweeny Independent School District,
1 Sweeney. Texas, et al.

DATE FILINGS----PROCEEDINGS

■ :i
_ _________________________________________________________________=-Lt-----------------------------------------

AMOt
REPORT
CMOLU

RETU

NT
ED IN 
‘dCNT 
RNS

5-15-6? fJNl Oral Hearing on Motions held.
"6-A-6 <v ( / n i l  "The opinion of the Court and Final Judgment will be

f iled at Galveston. Texas. 9:30 A.M., Friday, June 6,
1069. Conies also will be available for counsel in
ooen court at Houston, Texas, 9:30 A.M.,  Friday,
.Tune 6. 19(59. NOTICE. JT-T" Mtcd. CG.

• 6-6-69 fJin MEMORANDUM OPINION AMD ORDER, siyr.cd by Judy.e Noel 73
t.. 6. 1969. hold!nr that, this does have subject-------------------

matter iurisdiction of this cause,buF the second
amended coir.olaint must b e  dismissed for failure to
state a claim noon which relief can be yranted under
H s  U.S.C. §1933. and directinr that conies be furnishc 1

to counsel of record, filed.
6-6-6° ■ r.TNl JUDGMENT dirminsinr Plaintiffs' second amended ______i L

complaint at plaintiffs costs, sinned by Judr.e Noel,
ente red and filed. -------------------------------------------------------— -----------

Conics of Opinion and Judgment mailed to Conrad Hamer and
to Mr. Thor . Dent. Cony delivered to Mr. Vfeldon Derry..

Grant Cook furnished a copy. -------------------------------------------------------------------------------

6-16-6° SECOND AMFirOFD COMPIAIHT,. fil.od, . , ,  . . ...„ ..............— _
&

• f e # T Vj"M '  Second. Amended, ooisrolairif and'the par1.: cs
i. ■joint amendment to the Pretrial Order, which have
! ■been submitted pursuant to this Court's order of

6/6/6n are hereby annrovea by the Court and ordered
! filed by the Clerk, such filinc beiny deemed to have

occurred concurrently with the entry of said order of_
: ------------------------------ 6/6/69 as provided for therein. Notice. JN Ntcd. CG —

' 7-1-69 Plaintiffs' NOTICE OF APPEAL,  filed. 77-
... . ......................................................................... ....... .....................

: 7-11-69 Plaintiffs' $250.00 APPEAL BOND FOR COSTS, filed. 78.
8-R-6Q Original TRANSCRIPT OF PROCEEDINGS- filed: (3/9/69— 3/1Q/6.9I

Volumes I, II, III. IV. V, VI, I'll, VIII, IX, X and 79 tl ru
■ ------------------------------
l Court's Champ to ,Tnrv nn 3-12-69. ----- -— _— ,. . . P.oFlax I I I  s l-OV-iCmto Exl.cnl-i Time 1 or'Filina Record on appeal Partial Record on Anneal nailed to Cl err.. 5th Circuit Court

1  x.le*

of Anneals in Mew Orleans. La. (Pleadlny.s .Exhibit; h  .Da Mens.)-
; 0-8-69 Atm! order Extending Time to File Record in the United—S/tc-tc,

~  '  »  y .  . r _
( ^ e r

s 8 - 1 R - 6 o
ordinal Order extending time mailed to Clerk, 5th Circuit, dew OyleA............

i

VOO
.



Of
V.: ■v 7-

CIVIL D- C. 1W»A
CnrMTRXK DOCKET

MILDRED HARKLESS, et al vs The Sweeny Independent 
School Dist.,et alCA 66-0-3A

•**#
8/20/69

8-18-69
8-20-69

1/19/71

1/19/71:

1 /i 0/71 r ''o.i a,-i :

*. ! "r./o/yj."

/• /

.9/8/71:

pnocuzxNcs
-4i-

page - 4 -

Supplemental Record on Appeal mailed to Clerk, 5bh Cir., New
Orleans, partios ntfd. eg

Clerk’s copy of Reporter's TRANSCRIPT OF PROCEEDINGS 3*11*69
Volume 11 (pages 1276 thru 1366) filed. (Orig. also filed)

Clerk's cony of Reporter's TRANSCRIPT OF PROCEEDINGS 5~15*o9 
Volume III (pages 1 thru 97) filed. (Orig. also filed)

Clerk's copy of Reporter's Transcript of COURT'S CHARGE, etc.
(pages 82 thru 91 received (date ?) (Orig. also received)

Certified Copy of JUDGMENT issued as and for a MANDATE on 92.
1/18/71 by Judges Jones, Bell and Godbold, Circuit Judges, 
filed. "it is now here ordered and adjudged by this Court 
that the judgment of the said District Court in this cause 
be, and the same is hereby, reversed; and that this cause 
be, and the same is hereby remanded to the said District 
Court for further proceedings not inconsistent with the 
opinion of this Court. It is further ordered that defendant- 
appellees pay to plaintiffs-appelleants, the costs on appeal to be taxed by the Clerk of this Court." JONES, Circuit 
Judge, dissenting.

OPINION of 5th Circuit, before Judges Jones, Bell and Godbold, 93. 
filed. "REVERSED and REMANDED for further proceedings not 
inconsistent herewith" JONES, Circuit Judge, dissenting.

CASE REOPENED.
Copy of Order and Opinion from 5th Circuit Court of Appeals in qA .

U.S.A vs State ofToxas, et al and Dr. J. W Edgar,
Commissioner of Education.■ Et Al, filed.

(JN) "A pre-trial hearing in this cause is set for 9/8/71,
9:30 a.m., at Galveston. Counsel shall be prepared 
to discuss the nature of further proceedings required 
by the mandate of the Fifth C'rcuit Court of Appeals 
issued January 13, 1971.' In view of the fact that a 

. complete evidentiary record was made as a result of 
the previous ten-day trial, counsel are invited to 
explore any feasible procedural alternative to a 
second trial. Notice. JN." Htcd. ely.

(JN) at Galveston: PRETRIAL HELD: Parties have agreed to
rely on present record. Mr. Cook moved Court"to consider 
v?+fict °{ jUry bn Prcyi°us trial, as advisory and then enter Its own independent findings and conclusions. Mr. Eerry 
did not agree except on using testimony. Court advised 
parties to review record to be certain nothing has been 
overlooked, and requested information as to number of 
semester hours of academic training which each plaintiff 
* sub-lect matter which he or she was teaching

of 1  ”S ut severance. Timetable; 60 days on review of record. 45 days for briefing.

N



0 1 * -
. •-'V ■ s-i

i,

66-G-34 Mildred Harkless, et al -vs- The Sweeny Independent School Dist., Et Ai1

jll/9/71

11/22/7:

11/22/7:

jll/24/73 
112/15/7

1/7/72:
113/18/72

1/20/72

1/21/72:

'4/5/72 
4/5/72

SUPPLEMENTAL DATA'REQUESTED BY THE COURT, submitted by 9 5 .
Plaintiffs, filed. .

INFORMATION PERTAINING TO PLAINTIFFS, submitted by 96.
Defendants, filed. •

(JN) ORDER setting evidentiary hearing for 1/19/72, 9:30, 9 7 .
Galveston; cutoff date for discovery relative to this 
hearing is 1/10/72, stating that a briefing schedule, 
if necessary, will be set at the termination of this 
hearing; and directing the Clerk, to send copies of 
this order to all counsel, signed by Judge Noel on 
11/19/71, filed.

Parties notified pursuant to Rule 77(d).
: PLAINTIFFS*FIRST INTERROGATORIES To Defendant Sweeny Indepen- 99.

dent School District, filed.
Defendant's Answer To Plaintiffs* First Interrogatories, filed. 99.

' (JN) "in response to informal request and recommendation of I
plaintiffs' counsel, Sanford D. Bishop. Jr.. Esq. will
be permitted to act as a counsel in this case, subject .'
to any good cause to the contrary which might be brought . j
to the attention of this Court at trial. N tice. JN."

(JN) at Galveston- FIRST DAY'S TRIAL BEFORE THE COURT. 3:10 P.M.
Appearances-Gabriell.e McDonald and Sanford D. Bisnon introduced

by Mrs. McDonald and admitted for this case. (For Plaintiffs) 
Messrs. Grant Cook and Mike Swan for defendants. 
Superintendent Miller also present.
Defendant rerruested that rule be invoked. Plaintiff stated that Dean Simmons & Prof. Rcutter are their exnert witnesses ■* and need to be present to comment on testimony. Court
stated in this instance they would be allowed to remain. 
Witnesses sworn. Testimony heard. Court Adjourned 5:30 ?.M. 

(JN) at Galveston- SECOND DAY'S TRIAL BEFORE THE COURT. 9:30 A.M.
Testimony resumed. Deft, offered Pltf's Exhibit 390.
Deft, granted nernv.s- u'on.'o tate,witness on .voir, dire as bo ", 1'A ilb if i:s Erhioi.t List, f lj.ed.sard exhib.it. /Plaintirfs rest. / Unfmisned. kesuae on

. . 2-2-72, 9:30, Galveston, unless parties otherwise notified.
C W h ° atP£ a £ v l s V o l u m e s "  ld an'd°°7 P'rom 1/20/72, filed.at Galveston _  c o n t i r u , c d  f r o ; n  January 7 1 , 1 9 7 2 j

THIRD DAY IN TRIAL EEFORE THE COURT 9:45 A.M.
Testimony resumed. Court's letter (cony) dated 3-17-72 t° 
all counsel re material oresented to Court Reporter to be 
placed into record. Court to resume at 10:00 A.M. Mrs. 
McDonald will be excused. Record open for exhibits.
Court Adjourned: 5:30 P.M.

(continued to next cage).

•I 1



I4

• l

MILMRKL) DARKLESS# ET AL vs. THE SWEENY INDEPENDENT SCHOOL DISTRICT, G6-G-3^t
naj'i “ 5-

ra-INOS-PROCEEDINOS CLERK'S FEES AMOUNT 
nr.porrrt o  i n  

| EMOLUMENT 
DVCNO*NT I HtTUHNS

4/C/7?

4/1.0/72:

.n/.17A'2:

5/1/72:

"5/5/72 F

6/1/72:
0/1/72:

' 6/12/72;
a/21/73:

12/19/73

32/10/73;
32/10/73;

(JN) at Galveston;
FOURTH DAY IN TRIAL BEFORE TIE COURT. 10: 
Testimony resumed. Both sides rest and

10 A M.
close.

Defendant moved Court to consider jury verdict 
an an advisory verdict- to file written motion 
relative to same within 3days. Plaintiff to 

• respond within 5 days. Oral arguments led. 
Counsel to file written supnort of argument. 
Timetable on briefs: Plaintiff=Mny 20, 1972,
Defendant=June 3, 1972. Exhibit List of 
Defendants filed.
Court adjourned: 1:15 P.M.

MOTION of Defendants TO CONSIDER VERDICT AS ADVISORY, 
filed.

Plaintiffs' MEMORANDUM OF TAN IN OPPOSITION to 
defendants' motion to consider verdict.as ad 

Original Proceedings-Voluir.cs III and IVfrom Ao. Conv of Proceedinqs-Volumes III and IV from An Letter dated 4/20/72 from Mr. Sanford D. Bisho
garding transcriDt of hearings, filed.

visojjy, tjici.- j.1 5 ll 5 
Jr.

V-lp7? r,
W / r . t i
re

Snt

:?s

ir a
Keno naa ij>f a 
ve positions entered.

STOTOSn5F,T t ^ i IDA ?F Arm ijoUiiORT OF Its foouion to Dismiss for Faili J2;lnrc Action or Clr\±m under h 2  • 1 lmr “erfff l'*"’ «-i > . * m ----------—  ' *JuiCC CIj xtrxet

•atq a 
n which

Defendants « MOTION TO DISMISS FOR Failure to 
Claim or Cause of Action under t2:1983 uno can be Granted, filed. ^
Dcfcndanto' NOTICE OF SUBMISSION UPON MOTION DOCK!

:red.

(JN) "The Court has read the letter to the Clerk from 
counsel for plaintiffs dated April 28th, 197fe, ard 
the reporter's letter of response to the Clerk dated 
May 3rd, 1972. The briefing schedule set by the Court 
will date from April 28th, 1972, the date certified ry 
counsel for Plaintiffs as that upon which tha transcript of testimony was received by him: Notice. (JN.Ntcd; ely.
PLAINTIFFS'POST TRIAL BRIEF..filed.
PLAINTIFFS' PROPOSED FINDINGS OF FACT & CONCiUSIO OF LAW. filed.
Defendants' POST TRIAL BRIEF, filed.

(JN) MINUTE ENTRY directing counsel to turn the 
to the scope and applicability of City of 
submit within thirty days briefs or memors 
rities delineating their present, respect 
•signed by Judge Noel 11/20/73, filed and Attys. ntfd.

100

101
euGO
.02

ntion
and

hutho-

:.03
104

105.
1C 6

RIEF IN :re to state - n which iRel-ir

Relief 

T,f il

1C
MD
ed.

12/3
108

109. 
f

/73



J.

cn,. 10

66-G-34 MILDRED HARKLESS, ET AL vs.
Page 5 DIST., ET AL THE SWEENY INDEPENDENT SCHOOL

F U J N O S —  P R O C E E D IN G S
C U E R K 'S  F E E S

DEFENDANT

AMOUNT 
REPORTi:n IN 
CMOLUMF.NT 

RETURNS

12/21/73

12/21/73
12/21/73
12/21/73

1/15/74

1/17/74: 
’ 1/17/74:

1/54/7''
1/28/74

2/1/74;

3/27/74:

5/20/74:

10/4/74:

1/10/75

1/10/75

Plaintiffs ' MOTION FOR LEAVE TO AMEND SECO 
COMPLAINT, Ciled.
Plaintiffs' MOTION FOR IMMEDIATE DECISION, 
Plaintiffs' NOTICE OF MOTION, filed. 
Plaintiffs' SUPPLEMENTARY BRIEF AND POINTS:

:JD A1

filed.

ANDTIES IN SUPPORT OF Accompanying Motions, filed.
(JN) MINUTE ENTRY Giving each party 10 days within whic 

file a responsive brief; and, the Court rqques^s t 
Defendants file a response with accompanying brieJ

END

AUT I0RI-

h to 
hat o

Plaintiffs' Motion to Amend, within said »Ciruo 
signed by Judge Noel 1/15/74, filed and entered ntfd
Defendants' MOTION FOR EXTENSION OF TIME,
Defendants' NOTICE OF SUBMISSION UPON MOTION DOCKET, filed.
Resnonsive Brief of Plaintiffs, filed.

(JN) ORDER granting Plaintiffs' and Defendants until
February.1, 1974 to file the Briefs and other hatters 
directed in the Minute Entry of this Cour+

en-day period,

filed.

ttys

Judge Noel 1/25/74, filed and entered. Atpys. ntfd.

Defendants' RESPONSE To Plaintiffs' Motion 
Amend Second Amended Complaint And Nemora 
ities In Support Thereof, filed.
Defendants' SUPPLEMENTAL MEMORANDA, filed. 

Defendants' SUPPLEMENTAL MEMORANDUM, filed.

For Leave To 
ndum pf Author-

signed by

110.
MD 1
111.
MD 1112.
113.

114.

Defendants' AMENDED NOTION TO DISMISS and THIRD SUPPLEMENTAL 
MEMORANDA, filed. 1 r

(JN) MEI-ORANDUM OPINION AND ORDER constituting the
findings of fact and/conclusions of law that plaintiffs

W°re ba7cd u?on non-discriminatoryfstandards pplied in a non-discriminatory manner and that race ' 
played no part, directly or remotely, in the Board's 
determination not to continue plaintiffs' sed/icds and 
directing the Clerk to file this memorandum oRn
f?1pria*CSPy coun3el» signed bv Judge NcUlfiled and entered on January 14. 1 9 7 5 y 1

(JN)

: Court's 
plaintiffs'

on and 
1/10/75,

1/17/VST

r j  1 - j  _ '-w u j i o c x , o i u n e a  o vfiled and entered on January 14, 1975.

signed by oudge Noel 1/10/75. filed and chterJd oh I/t j M
- i u . - i — Lo=rV1rtrcrrTiOvru ' -o -I—  n g cgrd-~.=-' -- -■

115.
116.

117.
118.

119.

120.

121.

122

123.

15/74

15/74

MD 1/2



J.

Or 11

66-C-34 MILDRED IIARKLESS, ET AL vs. THE SWEENY INDEPENDENT SCHOOL 66-G-34 
i ' DIST.. ETAL Page -6-

Instrument Ho3.
C ivil D ocket Continuetton ___________________________  *

DATS PRO CEED IN G S
Ord*r or3CWfiuicaiIiiot6SC

■& y  /

1/16/75; •(JN) ORDER AMENDING nunc pro tunc. Memorandum Opinion and
Order of the Court filed on January 10, 1975 and 
directing the Clerk to file this Order and send a 
copy to all counsel signed hv Judge Noel on 1/16/75 
to take effect as of 1/10/75 filed, and entered on 
1/21/75.
Certified Copies mailed to Attorneys of Record.
Plaintiffs' NOTICE OF APPEAL, filed.
Certified copy of Notice of Appeal and Docket 
Sheet nailed to Clerk, fifth Circuit Court of 
Appeals, at New Orleans,

Copy of letter of transmittal to 5th Circuit, 
certified copies of Docket Sheet, literature 
re appeal mailed to Attorney; of Record and to 
Kay Lcacli.

Record on Appeal, consisting of Volumes X, II, III 
and IV, the Reporter's Transcript of Proceedings, 
Volumes V and VI, the Original INSTRUMENTS and a 
box with Exhibits mailed to Clerk, U. S. Court of 
Appeals, 5th Circuit, New Orleans. Copy of letter 
and certified copy of docket sheet nailed to Weldon 
S. ^erry, Gabrielle K. McDonald, Sandford D. Bishop, 
Jr., Jack Greenberg, Norman Chachkin, James C. Gray, 
Jr. and Grant Cook.

2/20/75: Plaintiffs' $250.00 BOND FOR COSTS ON APPEAL, filed.
3/3/75j Supplemental Rcocrd on Appeal mailed to Clerk, U. S.

Court of Appeals, 5th Circuit, New Orleans. Messrs. 
Weldon S. iicrry, Sandford D. Bishop, Jr., Jack 
Greenberg, Norman Chachkin, James C. Gray, Jr.,Grant 
Cook and Mrs. Gabrielle K. McDonald notified.

1/21/75: 
2/4/75; 
2/4/75:

2/4/75: 

2/20/75;

125.

126.

1 2 1 .S

\

<