Objections by Defendants to Award of Attorneys' Fees

     [||b2ad72d6-dbe3-43f8-a533-fc2d5306f6f8||] IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

DELTA DIVISION 

REBECCA E. HENRY, ET AL., 5) 
PLAINTIFFS) 

) 

VS. NO. DC 6428-K 

CLARKSDALE MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET AL., 

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) 
) 
) 
) 
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DEFENDANTS) 

OBJECTIONS BY DEFENDANTS TO AWARD OF 

ATTORNEYS' FEES 

Defendants object to the award of attorneys' fees to 

plaintiffs, and in support thereof say-- 

1) They did not act in an unreasonable and obdurate 

manner during the period beginning with the beginning of 

this litigation to the effective date of Section 718 of the 

Education Amendment Act of 1972, July 1, 1972. In that con- 

nection they show the facts following, to-wit: 

a) Defendants did not contest plaintiffs' right to the 

relief which they sought in their complaint but immediately 

filed with the court a desegregation plan such as was called 

for in plaintiffs' complaint. 

b) The desegregation plan filed by defendants with the 

court in response to plaintiffs' complaint fulfilled every 

requirement set forth in Brown and the cases which up to then 

had been decided by the courts of the United States. 



c) The desegregation plan filed by defendants with 

the court in response to plaintiffs’ complaint was found 

by this court to comply with every requirement of Brown, 

the Constitution of the United States and the decisions of 

the courts of the United States, and was approved by judg- 

ment of this court. 

d) Plaintiffs appealed from the order of this court 

dated August 10, 1965, approving the desegregation plan 

filed by defendants in response to plaintiffs' complaint, 

and such appeal was argued before the Court of Appeals for 

the Fifth Circuit on May 25, 1966. 

e) On March 6, 1969, almost three years after the 

argument of the appeal, the case was remanded to the district 

court by vote of two of the three judges who heard the appeal, 

with this observation: 

"A long time has elapsed since the trial, 

partly because this Court delayed rendering its 

decision in order to obtain further enlightenment 

from the Supreme Court on the subject of attendance 

zones plans as against freedom of choice plans. In 

view of the delay, we believe that the interests of 

justice require that the case be remanded for a 

hearing to determine the effectiveness of the 

Clachzdale plan in today's factual setting and in 

the light of Green and other decisions of the Supreme 

Court and of this Court." 



es — %- PS LS Se “ iy rnp. M-—— re 

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The basis for the court's refusal to affirm the order of 

this court was its conclusion that defendants, in drawing 

up their desegregation plan, had not had in mind the "promo- 

tion of desegregation," which it apparently equated with 

integration. It was on that basis, and on the authority of 

cases decided subsequent ‘to the hearing of such appeal, that 

the Court of Appeals for the Fifth Circuit refused to affirm 

the order of this court approving defendants' desegregation 

plan. 

f) By placing its decision on its conclusion that 

defendants, in drawing up their desegregation plan, had not 

used as a criteria the promotion of desegregation, which it 

equated with integration, and by grounding its decision on 

cases decided subsequent to the hearing of such appeal, the 

Court of Appeals for the Fifth Circuit, in effect, admitted 

that defendants' desegregation plan, at the time it was 

filed with the court, and at the time of this court's order 

of August 10, 1965, and at the time of the argument of the 

appeal on May 25, 1966, met every requirement of Brown, the 

Constitution of the United States, and the decisions of the 

courts of the United States then in existence. For at the 

times mentioned, there was no requirement that desegregation 

plans should be formulated with the idea of promoting integra- 

tion. Plaintiffs themselves had not so contended, as is shown 

by nis paragraph from this court's Memorandum Opinion of 

August 10, 1965: 

"Nor, as it must be noted, do plaintiffs seek 



here a right to require affirmative integration 

in these schools. They clearly so state in their 

brief." 

And the Court of Appeals for the Fifth Circuit had held in 

a number of cases that there was no obligation on the part 

of anyone to further the mixing of the races in public in- 

stitutions. 

g) Between this Court's approval of defendants' de- 

segregation plan and the hearing of the appeal therefrom, 

plaintiffs, in September 1965, sought an order requiring 

defendants to grant the transfer application of Bettye Jean 

Yarbrough to attend Clarksdale High School in order to study 

Latin, which was not taught at Higgins High School where she 

was assigned in accordance with said plan. Defendants re- 

sponded to said motion and showed that said transfer applica- 

tion had been made on September 16, 1965, at 1:14 P.M., and 

that the same had been denied because there were no exceptional 

circumstances to justify it, its granting would have been con- 

trary to good educational practices and requirements, and it 

was impermissible under the rules and regulations of the school 

district which provided, in part, as follows: 

"After the first two weeks of school no 

student's schedule of courses will be changed 

except under exceptional circumstances, and 

then only after a conference with teachers in- 

volved, the principal, and the counselor." 



Such rule or regulation was well known to all students of 

Clarksdale High School and Higgins High School, including 

plaintiff Bettye J. Yarbrough. 

In this court's opinion and order granting the relief 

prayed for in said motion, this court recognized the fact 

that defendants were justified in denying said transfer 

application but added: 

"The court also fully recognizes that to 

permit this transfer at this time will, to some 

extent, have an adverse effect on discipline, 

pupil control and staff morale. However, in 

light of the peculiar circumstances which surround 

this situation, and not as precedent to be followed 

by this court in any similar gituation, it is 

considered proper that this pupil be  ermitied 

to transfer as she desires. (However, the court 

strongly advises that serious reconsiderations be 

given by Bettye Jean Yarbrough and her parents, 

or those standing in loco parentis to her, to the 

desirability of making this transfer at this late 

date.)" 

h) When the case again came on for hearing before this 

court, the court had before it defendants' desegregation plan 

and ea developed by the United States Office of Education, 

Department of Health, Education and Welfare, which the court 

had had prepared. After hearing the evidence with respect 



to them, this court was forced to recognize defendants' plan 

as fundamentally sound. 

This court could fault defendants' plan for only one 

thing: it had not produced racially balanced schools. 

"The one defect in that concept is that it 

hasn't produced an acceptable degree of integra- 

tion. If it had, why, that would be an ideal 

plan.” 

In assessing the HEW plan, this court found its proposals 

for the district's elementary schools to border on the indefens- 

ible and beyond the rule of reason. 

"Under the HEW proposal one of the most 

serious objections is that the walking distance 

for children in grades oneto six will be in- 

creased to two miles or more, as against the 

present average of approximately a half a mile. 

That is a serious factor that arises above the 

role of inconvenience and borders almost on the 

indefensible. I am sure that more study could 

improve that situation. The evidence in the case 

is that to recast these grade schools in line with 

the HEW plan would result in great obstacles and 

great discomfort of the children attending school 

from a purely physical standpoint. It would place 

an undue burden on their parents if the grade schools 

were restructured at this time in the light of the 

HEW proposal. It does seem that, while it is necessary 



to achieve desegregation a better plan could be 

devised than one which would make one child go: to 

three schools to get to the sixth grade. That seems 

to be segmenting it beyond the rule of reason." 

This court, apparently being of the opinion that it was 

foreclosed by the appellate court's opinion and order of 

March 6, 1969, from approving defendants' plan in toto, 

thereupon (on January 10, 1970) drew up its ona plan. In 

simple terms, this court consolidated the district's two 

high schools and three junior high schools, with the excep- 

tion of the 9th grade at Clarksdale Junior High School. That 

grade, because there was not sufficient space at Higgins Sr.- 

Jr. High School and Oliver Elementary School complex to 

accommodate all of the district's junior high school pupils, 

had to be left at Clarksdale Sr.-Jr. High School. The Oliver 

Elementary School children, who were dispossessed by the 

consolidation, were assigned to two other elementary schools. 

i) In its order of January 10, 1970, this court, "be- 

cause of the unusual complexities of the Clarksdale school 

situation, particularly due to the location of its various 

elementary schools,” appointed a Special Master "to make full 

study and proper recommendations for student desegregation in 

all grades for the 1970-71 school year as a result of all 

relevant data," and in connection therewith directed the 

Special Master to confer with and consider suggestions by 

the School Board, the United States Office of Education, 



Department of Health, Education and Welfare, and the bi-racial 

advisory committee created by the order. 

On March 11, 1970, the Special Master submitted A Plan 

for the Continued Operation of the Clarksdale Municipal 

Separate School District of Clarksdale, Mississippi. Ob- 

jections thereto were he, filed by both plaintiffs 

and defendants. After a Rating the district court, by its 

order of May 8, 1970, overruled such jab tong and incor- 

porated the recommendations of the Special Master into its 

order of that date. By that order, "the prior order of this 

court with respect to public school desegregation entered 

January 10, 1970, (was) supplemented and amended to provide 

for student desegregation to be instituted in all of the 

district schools effective September 1970, and to continue 

thereafter until further order of this court as follows: 

(a) A single senior high school was established. 

(b) A single junior high school was established 

to serve grades 8 and 9. 

¢) A single intermediate school was established 

to serve grade 7. 

(d) "All students enrolled in grades 1-6 shall 

be assigned to elementary schools: Heidelberg, Kirk- 

patrick, Oliver, Oakhurst, Myrtle Hall, Riverton and 

Washington, nearest each student's residence, regardless 

of zone, present or previous racial enrollment of the 



school. In case the capacity of any school is exceded, 

the student shall then attend the school next nearest 

his residence, regardless of any zone lines, present or 

previous racial enrollment; provided, however, that the 

attendance of any child at the school nearest his resi- 

dence is subject to a paramount, absolute right ordered 

for any student transferring in accordance with the 

next paragraph of this order. 

(e) "Any student transferring from an elementary 

school, the majority of whose students are of his same 

race, to another elementary school, the majority of 

whose students are of a different race, shall be granted 

an absolute right for transfers, regardless of space, 

and his right to transfer shall not be dependent upon 

available space. Any student thus displaced from an 

overcrowded school must attend the mext nearest elementary 

school." 

j) The appeals which were taken from this Court's order 

of May 8, 1970, resulted (on August 12, 1970) in the reversal 

of this Court's orders of January 10, 1970, arid May. 83,1970, 

as they applied to elementary schools, and in directions to 

implement the plan developed by the Department of Health, 

Education & Welfare, despite the fact that the district court 

has said that it "bordered almost on the indefensible . . . 

and was beyond the rule of reason.” 

k) By order dated January 19, 1971, this Court ordered , 

on the basis of a plan submitted by plaintiffs: 



"(l1l). That effective for the school year 

beginning in September 1971 all children enrolled 

in elementary grades 1-6 shall be assigned in 

accordance with the following desegregation plan: 

"(a) All pupils residing in the Heidel- 

berg, Kirkpatrick and Riverton zones shall 

attend grades 1 and 2 at Riverton Elementary 

School, grades 3 and 4 at Heidelberg Elementary 

School, and grades 5 and 6 at Kirkpatrick Ele- 

mentary School. 

"(b) All pupils residing in the Myrtle 

Hall, Oakhurst and Booker T. Washington zones 

shall attend grades 1 and 2 at Myrtle Hall 

Elementary School, grades 3 and 4 at Booker T. 

Washington Elementary School, and grades 5 and 

6 at Oakhurst Elementary School. 

"(c) Oliver Elementary School shall be 

reestablished as an elementary school. serving 

grades 1-6 to be attended by all pupils residing 

in the elementary zone heretofore established 

for Oliver Elementary School and such territory 

as may be added thereto to produce a substantial 

biracial assignment of pupils at said school." 

1) Defendants, subjected to the requirements of such 

order, and a provision in the district court's order of 

January 19, 1971, requiring them to "file with this court in 



art PTE athe at Gl el a hs “ N pm a —__ i adi a oa 

writing its views and recommendations for the Oliver atten- 

dance zone lines and such other zone line changes as it deems 

are in order to promote desegregation,” and chained to the 

absurdities of the HEW plan, proceeded to file with the court 

six separate proposals for pairing or clustering the district's 

elementary school zones, -supplemented with (1) their views 

about the best method for the operation of the schools of the 

district, (2) a recital of the unfortunate results from the 

changes in the operation of the schools of the district imposed 

in response to the directions of this court, and (3) a sugges- 

tion that further unfortunate results could be expected from 

additional changes in the operation of the schools of the dis- 

trict. (Over twelve hundred white children had been driven 

from the schools of the district by the changes already made 

and it was clearly apparent that further changes in the opera- 

tion of the schools of the district would aly compound those 

difficulties.) In addition, defendants stated to the court: 

What defendants, and particularly the Clarksdale 

Municipal Separate School District, now desperately 

need, are directions from this Court for the future 

operations of the schools of the district, coupled 

with a judicial determination that the schools of 

the district, operated in conformity with such direc- 

tions, provide a "unitary" school system, This school 

aistrict, if it is to provide the pupils of the 

district with the education they deserve, must attain 

that point spoken of in Swann: 



"At some point, these school authorities and 

others like them should have achieved full compliance 

with this Court's decision in Brown I. The system 

will then be 'unitary' in the sense required by our 

decisions in Green and Alexander." 

And because every proposal they had heretofore made, 

regardless of its reasonableness and its conformity with the 

requirements of the decisions of the Supréme Court of the 

United States, had been rejected out of hand, defendants 

added: 

In order to eliminate the possibility that the 

school system which will result from the order of 

the court which will be entered herein, will not be 

accepted as a "unitary" system, defendants ask that 

the court make clear in its order that its arrange- 

ments for the future operation of the schools of 

this school district did not originate with any 

suggestions by defendants. 

m) Then, when the cause came on for hearing on May 27, 

1971, defendants stated that they would implement that one 

of the plans which the plaintiffs might select and the court 

approve, or any different plan devised by plaintiffs and 

approved by the court, in order to bring an end to the con- 

tinual disruptions in the operations of the schools of the 

district and so that plaintiffs could no longer contend that 

defendants were not operating a "unitary" school system. 



 —— 

Upon the making of such announcement by defendants, 

plaintiffs advised the court their desires in the matter, 

and the same being agreeable to the court, the following 

"terminal plan of pupil assignment" was instituted, to begin 

with the school year 1971-72: 

(a) All pupils in grades 10, 11 and 12 shall 

be assigned to Clarksdale High School, which shall 

be housed in the building complex consisting of the 

Bobo, Elizabeth Dorr, and Annex buildings, located 

at 100 West Second Street. 

(b) All pupils in grades 8 and 9 shall be 

assigned to Clarksdale Junior High School, which 

shall be housed in the buildings formerly used by 

the Higgins Senior-Junior High Schools. 

(c) All pupils in grade 7 shall be assigned 

to the Clarksdale Intermediate School, which shall 

be housed in the building formerly used by the 

Riverton Junior High School. This school shall be 

a part, and subject to the administration of, the 

Clarksdale Junior High School. 

(4d) all elementary pupils residing in the 

Heidelberg, Kirkpatrick, and Riverton Elementary 

Zones shall be assigned to the Heidelberg, Kirkpatrick 

and Riverton Elementary Schools. Grades 1 and 2 shall 

be assigned to Riverton, grades 3 and 4 shall be 

assigned to Heidelberg, and grades 5 and 6 shall be 

assigned to Kirkpatrick. 

LD 



(e) All elementary pupils residing in the 

Myrtle Hall, Booker T. Washington and Oakhurst 

Elementary Zones shall be assigned to Myrtle Hall, 

Booker T. Washington and Oakhurst Elementary Schools. 

Grades 1 and 2 shall be assigned to Myrtle Hall, 

grades 3 and 4 to Booker T. Washington, and grades 

5 and 6 to Oakhurst. 

(£) All elementary pupils attending grades 1 

to 6 residing in the Oliver Elementary Zone and 

Zones E3-A shall be assigned to Oliver Elementary 

School. 

n) When defendants were called on in 1964 to desegregate 

the schools of the district, they did not seek to avoid their 

responsibilities under Brown v. Board of Education, 347 U.S. 

483, 98 L. Ed. .873; 349 U.S. 294, 99 L. zd. 1083. by taking 

refuge in the "freedom-of-choice" approach then being utilized 

almost universally throughout the South but which was clearly 

not the method for operating schools called for by Brown. 

Instead, they faced up to their responsibilities under Brown 

by, first, abolishing their dual zone lines, and then by 

adopting a desegregation plan which called for compact atten- 

dance areas or zones, with reasonable, rational and natural 

boundaries, and which included the requirement that all pupils, 

without exception, attend the school in the zone wherein he or 

she lived--thus basing their admission policy on residence and 

not on race. By their plan every white pupil in a racially 



residence to a formerly all-black school. The Clarksdale 

Municipal Separate School District is the only school dis- 

trict in the South known to have complied with the require- 

ments of Brown when making the initive effort to reconstitute 

its school system. 

It is true that little racial mixing in the schools 

of the district resulted from the operation of defendants’ 

desegregation plan. Two reasons, for neither of which are 

defendants responsible, brought about that result. The 

first, of course, is the housing patterns which exist in 

the community. The second was the refusal of the white 

pupils who lived in our racially mixed neighborhoods to 

continue in our schools after they had been assigned, by 

reason of their residences, to formerly all-black schools. 

As the Supreme Court recognized in Swann, we live in 

a pluralistic society. Our communities are as diverse as 

the races and the ethnic groups which populate them. All- 

white communities abound in sections outside the South. A 

few all-Negro communities can be found in the South. Towns 

made up of French-speaking citizens exist in Louisiana. 

Scandinavian groups compose communities located in the Mid- 

West. Perhaps the same can be said about German and Italian 

groups. For this country has provided a refuge for those of 

every race and nationality, with no restrictions on where 

they should settle. And since like attracts like, our various 

racial and ethnic groups have inevitably moved into those 

communities which numbered among their inhabitants those of 



tt ct ne nA er ren AAR rb he ri we etc Eel A pap — 

their own group and have shunned those communities which do 

not have those of their background. For instance, while 

Mississippi has, along with its many Anglo-Saxons, those of 

German and Italian stock, it has no Scandinavians or Poles. 

It has Chinese but not Japanese. And other illustrations 

could be given. 

Where communities have sizable racial or ethnic groups, 

those groups tend to congregate in identifiable sections of 

their community. In parts of Boston, none but Irish can be 

found. The same can be said of New York, which also includes 

sections composed exclusively of Italians. In San Francisco, 

Chinese have their own part of the city. Those are but ex- 

amples of a phenomena well known to those familiar with 

American communities. Other such examples can easily be 

given. 

Negroes have the same tendencies as the white groups. 

Where they form a sizable proportion of the population, 

whether it be in the South, North, East or West, they 

naturally, and of their own volition, create their own 

neighborhood. It can be safely said that there is not a 

community in this country where Negroes, if there are enough 

of them, do not congregate into a particular section of their 

community. The instincts which motivate their white counter- 

parts: to do so, also impel Negroes to live together. 

There is de facto segregation in Clarksdale, just as 

there is in every community in this nation where there is a 



8
 

wv
 

sizable proportion of Negro population. Given the housing 

patterns which prevail in towns and cities throughout the 

country, any other result would be inconceivable. But the 

de facto segregation found in Clarksdale is fortuitous de 

facto segregation and not the result of any law or ordinance. 

2) When this court entered its order of May 27, 1971, 

by which it established a "terminal plan of pupil assignment" 

--from which no appeal was taken by either party--this case, 

as a case for compliance with the fourteenth amendment to the 

Constitution of the United States as it pertains to elementary 

and secondary education, was terminated, and this case, within 

the purview of 20 USCS #1617, was not a pending case on its 

effective date, July 1, 1972. 

3) Since July 1, 1972, the effective date of Section 

718 of the Education Amendment Act of 1972, there has been 

but one significant proceeding in this case. It was instituted 

on July 31, 1972, when plaintiffs moved for an order requiring 

defendants to prepare a plan for the transportation of all 

the elementary pupils of the district who are assigned to 

schools more than a mile and a half from their homes. 

Defendants did not object to the entry of an order 

requiring them to furnish transportation to all pupils 

entitled thereto under Swann and the decisions of this 

court. All they asked was that the order conform to the 

directions of Cisneros v. Corpus Christi Independent School 

District, 467 F. 24 142, in which the Court of Appeals for 

the Fifth Circuit held that in the conversion of a school 



i el a SAM IS. rt di 8 S—_— - rte i A Nb: SA A AP IA ll 0 ti 

system from a nontransportation to a transportation basis, 

transportation requirements should be minimized as much as 

possible and should be formulated in the light of the Swann 

holding that the requirement of any particular degree of 

racial balance or mixing is beyond the power of the courts. 

After a hearing, this court denied defendants' request, 

on the ground that the issue raised by plaintiffs' motion was 

not an open one and was foreclosed by United States v. Green- 

wood Municipal Separate School District. 

In the brief filed by plaintiffs with the Court of 

Appeals for the Fifth Circuit, it was argued that defendants’ 

proposal would result in the resegregation of the school 

district. In response defendants stated in their reply 

brief that if it was true that the reassignment of 115 blacks 

who reside in the Riverton zone but who were then assigned to 

Kirkpatrick, to Oakhurst, would change the ratio in Kirkpatrick 

to 90 whites and 3 blacks, and if that was objectionable, their 

motion could be considered as amended so as to ask for permis- 

sion to reassign 55 blacks who resided in the Riverton zone 

but who were then assigned to Kirkpatrick, to Oakhurst, and 

to reassign 60 blacks who resided in the Riverton zone but 

who were then assigned to Heidelberg, to Oakhurst. If that 

was done, the ratio in Kirkpatrick would be 90 whites and 63 

blacks, and in Heidelberg, 82 whites and 62 blacks. 

Without referring to defendants’ suggestion the Court 

of Appeals for the Fifth Circuit affirmed this court's order 

of September 25, 1972. 



It is pertinent to point out that the proceeding for 

the transportation of all the elementary pupils of the dis- 

trict who are assigned to schools more than a mile and a 

half from their homes did not result in any additional 

mixing of the races in the schools of the district. All it 

did was to relieve some of the elementary pupils of the 

inconveniences they had been forced to undergo because of 

the invalidation of defendants' neighborhood school plan. 

4) No motion for the allowance of an attorneys' fee 

was filed in this court prior to the decision of the Court 

of Appeals for the Fifth Circuit which appears in 480 F. 2d, 

at page 583, and this is the first time that defendants have 

had an opportunity to respond to such a motion and to show 

the foregoing special circumstances which makes such an award 

unjust. 

5) This action was brought under 42 USC #1983, which 

includes no language which could possibly justify an award 

of attorneys' fees, and not under the Civil Rights Act of 

1964, which includes a provision for attorneys' fees. 

6) An award of attorneys' fees to plaintiffs is pro- 

hibited by the Eleventh Amendment to the Constitution of the 

United States. 

Respectfully submitted, 

2 
Attorney for Defendants 



CERTIFICATE OF SERVICE 

A copy of the foregoing objections to award of attor- 

neys' fees was served on Hon. Melvyn R. Leventhal by mailing 

a copy to him, postage prepaid, at Suite 2030 10 Columbus 

Circle, New York, N. Y., 10019 and 538% North Farish Street, 

Jackson, Mississippi, 39202, on this 5th day of November, 

1975. : 

(Coo Attorney for Defendants [||b2ad72d6-dbe3-43f8-a533-fc2d5306f6f8||]