Gooden v. Mississippi State University Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

    I n t h e

Bnpxmx GImtrt nf %  luttrd §>tatxa
October Term, 1974 

No................

B e n n ie  S to n e  G ooden, et al.,
Petitioners,

v.

M is s is s ip p i S tate U n iv er sity , et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

J ack  G reenberg  
J am es M. N abrit , III 
C h a r les  S t e p h e n  R alston  
N orman  C h a c h k in  
M elv y n  R . L ev e n t h a l  

10 Columbus Circle 
New York, New York 10019

F red L. B a n k s , J r.
538% North Farish Street 
Jackson, Mississippi 39202

Counsel for Petitioners



I N D E X

Opinions Below .................................     1

Jurisdiction ....................................................................  2

Questions Presented .....................................................  2

Constitutional and Statutory Provisions Involved ......  2

Statement of the Case .................................................  3

Reasons for Granting the Writ—
I. Summary .............................................................. 7

II. Mootness ..............................................................  9
III. Attorneys’ Pees ..................................................... 15

CONCLUSION .......     18

A ppe n d ix —•

Complaint ..............................................................  la
Motion for Preliminary Injunction or in the Al­
ternative for a Temporary Restraining Order .... 6a
Certificate of Service ............................................  7a
Answer .........    8a

Exhibit “A” Annexed to Answer....................  11a
Notice of Motion ......     12a
District Court Findings — Excerpts from Tran­
script ....................................................................... 13a

PAGE



11

Letter to District Court .........................................  19a
Order ............    20a
Appeals Court Opinion .....................................   22a
Judgment ............   28a
Denial of Petition for Rehearing En Banc..........  29a

T able of A u t h o b it ie s

Cases:

Alexander v. Holmes County Board of Education, 396
TT.S. 19 (1969) ................................................. ......... 7

Anderson v. Canton Municipal Separate School Dis­
trict, 5th Cir., No. 28030, Aug. 1973 ........................  12

Barron v. Bellairs, 496 F.2d 1187 (5th Cir. 1974)......  9
Bishop v. Starkville Academy, N.D. Miss. Civil Ac­

tion No. 7497-K ........................................ ................ 13
Blackwell v. Anguilla Line Consolidated School Dis­

trict, 5th Cir. No. 28030, Nov. 24, 1969 ..................... 12
Bradley v. School Board of Richmond, 40 L.Ed. 2d 

476 (1974) ............... .............................. 6,8,14,15,16,17

Coffey v. State Educational Finance Commission, 296
F. Supp. 1389 (S.D. Miss. 1969) ............................ 12

Coffey v. State Educational Finance Commission,
C.A. No. 2906, Sept. 2, 1970 (unreported).............. 12

Cook v. Hudson, 365 F. Supp. 855 (N.D. Miss. 1973) 12
Cypress v. Newport News General & Nonsectarian 

Hospital, 375 F.2d 648, 658 (4th Cir. 1967)............ 13

DeFunis v. Odegaard, 40 L.Ed.2d 164 (1974)............. 8,10
DeSimone v. Linford, 494 F.2d 1186 (5th Cir. 1974).... 9

PAGE



I l l

Driver v. Tunica County School District, 323 F. Supp.
1019 (N.D. Miss. 1970) ............................................  12

Gilmore v. City of Montgomery, 473 F.2d 832 (5th
Cir. 1973) (Alabama) .........................................  13

Gilmore v. City of Montgomery, 41 L.Ed.2d 304, 321
(1974) .........................................................................8,13

Graham v. Evangeline Parish School Board, 484 F.2d
649 (5th Cir. 1973) (Louisiana) .............................  13

Green v. Connally, 330 F.Supp. 1150 (D.D.C. 1970).... 12

Hollon v. Mathis Independent School District, 491 
F.2d 92 (5th Cir. 1974) ..........................................  9

Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966)..5,13

McNeal v. Tate County School District, 460 F.2d 568
(5th Cir. 1972) ........................................................  12

Merkey v. Board of Regents, 493 F.2d 790 (5th Cir.
1974) ..........................................................................  9

Miller v. Amusement Enterprises, Inc., 426 F.2d 534 
(5th Cir. 1970) .....................................    16

National Lawyers Guild v. Board of Regents, 490 F.2d
97 (5th Cir. 1974) .............................      9

Newman v. Piggy Park Enterprises, 390 U.S. 400
(1968) .......................  15,16

Northcross v. Board of Education, 412 U.S. 427
(1973) ....................................................................................................................................... . . . 6,  8,15,17

Norwood v. Harrison, 413 II.S. 455 (1973)..........3, 7,12,13

Roe v. Wade, 410 U.S. 113, 124-25 ...............................  10

Super Tire Engineering Co. v. McCorkle, 40 L,Ed.2d 
1 (1974) ..................................................................... 8,10

PAGE



PAGE

Swann v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1, 15 (1971) ................................................

Taylor v. Coahoma County School District, 345 F. 
Supp. 891 (N.D. Miss., 1972) .......................... ..... .

United States v. Mississippi, 499 F.2d 425 (5th Cir.
1974) ...........................................................................

United States v. Phosphate Export Association, 393
U.S. 199 (1968) ................................................... 8,10,

United States Servicemen’s Fund v. Killen Indepen­
dent School District, 489 F.2d 693 (5th Cir. 1974).... 

United States v. W. T. Grant & Co., — U.S. 629 
(1953) ................................................................... 8,10,

Wright v. Baker County Board of Education, 501 F.2d 
131 (5th Cir. 1974) (Georgia) ...............................

Constitution and Statutes:
20 U.S.C. §1605(d)(l)(A) ...........................................
20 U.S.C. §1617 ....................... .................... 2, 6, 7, 8,15,
28 U.S.C. §1254(1) ......................................................
42 U.S.C. §1983 ............................................................
Miss. Code, 1942 §7931 ................... ............................
Miss. Code, 1972, §37-23-61 (as amended, 1974) .......
Miss. Code, 1972, §47-5-91 ...........................................

Other Authorities:
Cong. Ree. S. 5485 (daily ed. April 22, 1971), 117 

Cong. Rec. 5490-91 ...................................................

15

12

13

11

9

14

13

13
16
2

4
13
13
13

16



I n  t h e

Supreme (Emirt of %  Mutko States
October Term, 1974 

No................

B e n n ie  S tone  G ooden, et al.,
Petitioners,

v.

M is s is s ip p i S tate U n iv er sity , et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners, Bennie Stone Gooden, et al., respectfully 
pray that a Writ of Certiorari issue to review the opinion 
and judgment of the United States Court of Appeals for 
the Fifth Circuit entered in this proceeding on August 19, 
1974.

Opinions Below

The opinion of the Court of Appeals is reported at 499 
F.2d 441 (5th Cir. 1974) and is reprinted in the Appendix 
hereto, pp. 22a-27a. The district court did not enter an 
opinion, but its findings and order, not reported, are re­
printed in the Appendix hereto, pp. 13a-18a, 20a-21a.



2

Jurisdiction

The judgment of the Court of Appeals was entered on 
August 19, 1974 (p. 28a); a petition for rehearing or in the 
alternative for rehearing en banc was denied on October 
16, 1974 (p. 30a). Jurisdiction of this Court is invoked 
pursuant to 28 U.S.C. §1254(1).

Questions Presented

I.
Whether the Court of Appeals erred in directing the dis­

missal of this action as moot and in reversing a district 
court determination that injunctive relief was necessary 
to prevent state defendants from providing material aid to 
Mississippi’s private segregationist academies.

II.
Whether the Court of Appeals erred in holding that the 

alleged cessation of unlawful activity subsequent to service 
upon defendants of the Complaint and Motion for Pre­
liminary Injunction foreclosed an award of attorneys’ fee 
under 20 U.S.C. §1617.

Constitutional and Statutory Provisions Involved

This case involves the Equal Protection Clause of the 
Fourteenth Amendment and 20 U.S.C.A. §1617 (Volume 
20, page 463) which provides as follows:

§1617 Attorneys Fees
Upon the entry of a final order by a court of the United 
States against a local educational agency, a State (or 
any agency thereof), or the United States (or any



3

agency thereof), for failure to comply with any pro­
vision of this chapter or for discrimination on the basis 
of race, color, or national origin in violation of Title 
VI of the Civil Eights Act of 1964, or the fourteenth 
amendment to the Constitution of the United States as 
they pertain to elementary and secondary education, 
the court, in its discretion, upon a finding that the pro­
ceedings were necessary to bring about compliance, 
may allow the prevailing party, other than the United 
States, a reasonable attorney’s fee as part of the costs, 
(emphasis added)

Statement of the Case

Plaintiffs are black children in attendance at Clarksdale, 
Mississippi public schools which, upon desegregation, lost 
the majority of its white students, enrolled in grades 7-12, 
to the Lee Academy, Clarksdale’s segregationist private 
secondary school. All Mississippi private segregationist 
secondary schools with athletic programs, including the 
Lee Academy, are members of the Academy Athletic Con­
ference (also known as the “Academy Activities Commis­
sion of the Mississippi Private School Association).” 1

The Complaint herein charged that defendants, the Board 
of Trustees of Institutions of Higher Learning, Mississippi 
State University, and the President thereof, had granted 
the segregationist Academy Athletic Conference permis­
sion to use the State University’s gymnasium and related 
facilities for the conduct of its annual championship and 
all-star basketball games scheduled for the week of Feb­

1 These facts were established through the record of Norwood 
v. Harrison, 413 TJ.S. 455 (1973), of which the district court took 
judicial notice (pp. 14a-15a). The non-discriminatory counterpart 
to the Academy Athletic Conference is the Mississippi High School 
Activities Commission: all public and non-discriminatory private 
schools are members of that organization.



4

ruary 21 and March, 1972, in violation of the Equal Pro­
tection Clause and 42 U.S.C. §1983, A preliminary injunc­
tion, to prevent the specified use, a permanent injunction 
against the underlying policy authorizing such uses, costs 
and attorneys’ fees were sought (pp. la-6a).

Friday, February 11, 1972, plaintiffs hand delivered to 
the Attorney General of Mississippi, and mailed to each 
of the defendants, a copy of the Complaint and the Mo­
tion for Preliminary Injunction or in the Alternative 
Motion for Temporary Restraining Order which had that 
day been posted to the Clerk of the District Court 
for filing (p. 7a). After receiving those documents, the 
Attorney General’s representative contacted Mississippi 
State University and/or officials of the Academy Athletic 
Conference and arranged for the Athletic Conference to 
withdraw its request to use the state owned facilities (pp. 
9a, 11a, 15a).

On the following Monday—February 14, 1972—the 
Academy Athletic Conference addressed a letter to the 
President of Mississippi State University, with carbon 
copy to the Assistant Attorney General assigned to this 
case. The letter stated that the segregationist athletic con­
ference “wishes to withdraw any and all of its requests to 
hold functions at Mississippi State University as of this 
date, February 14, 1972. We especially wish to withdraw 
the request for hosting the Academies’ . . . championship 
basketball games to be held the weekend of the 24-25-26 of 
February, 1972” (p. lla). The cancellation of the February 
games at Mississippi State made unnecessary further pro­
ceedings on plaintiffs’ motion for preliminary injunctive 
relief and no hearing was held thereon.

March 13, 1973, defendants filed a “Notice of Motion,” 
through which they renewed the motion to dismiss con­
tained in their Answer, alleging that the controversy was



5

moot as a result of the Academy Conference’s February 14, 
1972, letter (p. 12a).

March 22, 1973, the case was called for hearing before 
the District Court (pp. 13a-18a). Defendants declined to 
offer any proof of mootness and rested on the allegations 
contained in their Answer and the February 14, 1972, 
letter. During the hearing the Court, from the bench, made 
the following findings:

(a) The constitutional violation had been established by 
the pleadings: defendants’ Answer admitted that defen­
dants had plenary authority over Mississippi State Uni­
versity and other public institutions of higher learning and 
that they had authorized the segregationist academies to 
conduct their basketball all-star and championship games 
using the gymnasium and supporting facilities of Missis­
sippi State University. Accordingly, the burden of proving 
“mootness” was assigned to defendants (pp. 9a, 16a-18a).

(b) Defendants’ policy of permitting private segrega­
tionist academies use of public facilities was still in effect: 
the Academy Conference (not a party to the action) had 
withdrawn its request to use the facilities; but defendants 
did not withdraw and have never withdrawn permission to 
use facilities2 (p. 16a). In addition, it was clear from the 
pleadings that the cessation of unlawful activity “was 
timed to blunt the force of a lawsuit,” Lankford v. Gelston, 
364 F.2d 197, 203 (4th Cir. 1966), having occurred only 
after the Complaint and Motion for Preliminary Injunction 
or Temporary Restraining Order had been delivered to 
counsel opposite and mailed to the clerk of the Court for 
filing (pp. 6a-7a, 11a).

2 The District Court asked counsel for defendants to provide 
some assurance that the Board of Trustees would adopt a new 
policy meeting constitutional standards; the Assistant Attorney 
General could not provide such assurance (pp. 15a-17a).



6

(c) State officials are urged repeatedly to provide as­
sistance to Mississippi’s private segregationist academies; 
an injunction could be used by defendants as a shield to 
resist such demands:

It would give . . . [defendants] something on which 
they could stand if requests are made in the future by 
racially discriminatory school groups . . . We all know 
that when these requests come . . . from racially dis­
criminatory schools that they are difficult to turn down. 
The Court is not naive. The only way they could be 
turned down effectively and feasibly [by the Board of 
Trustees or Mississippi State] would be to have some­
thing on the books that says . . . [public facilities] can­
not be used (pp. 16a-17a).

The District Court concluded that it “could not say that 
merely because there has been a withdrawal of the request 
. . . that there is no reasonable expectation that the wrong 
will be repeated” (p. 18a). The injunction was issued, but 
plaintiffs’ request for attorneys’ fees was denied without 
opinion or discussion (pp. 20a-21a).3 Defendants appealed 
from the entry of the injunction and plaintiffs cross-ap­
pealed from the denial of attorneys’ fees.

August 19,1974, the Court of Appeals entered its opinion 
directing the district court to vacate the injunction and to 
dismiss the action as moot, and affirming the denial of at­

3 At the conclusion of March 22, 1973 hearing, plaintiffs’ counsel 
requested an award of attorneys’ fees which request was denied by 
the Court without explanation. Plaintiffs renewed their request 
and cited 20 U.S.C. §1617 by letter to the district court dated 
March 29, 1973 (p. 18a). Again, the District Court summarily 
denied the request through its order of April 4, 1973 (pp. 19a). 
However, the district court did not have the benefit of Northeross 
v. Board of Educ., 412 U.S. 427 (1973), decided two months after 
the order denying fees was entered; nor could it anticipate Bradley 
v. School Board of Richmond, 40 L.Ed. 2d 476 (1974).



7

torneys’ fees4 (pp. 22a-27a). It reasoned that plaintiffs 
had the burden of proving that the case was not moot; i.e., 
that plaintiffs were required to establish that permission 
to use Mississippi State had been granted prior to, or dur­
ing the one year following, the unlawful act specified in 
the Complaint (p. 27a). The Court held that the case had 
been rendered moot by the Academy Conference’s decision 
to withdraw its request for Mississippi State facilities 
(p. 27a). It also determined that the cancellation of the 
basketball games at Mississippi State, subsequent to de­
livery of the pleadings to counsel for defendants, fore­
closed an award of attorneys’ fees under 20 IT.S.C. §1617, 
reasoning that “no finding that these proceedings were 
necessary to bring about compliance with statutory or 
constitutional rights was made or could be supported by 
this record” (p. 27a).

Reasons for Granting the Writ

I.

Summary

The Court of Appeals has decided an important question 
of federal law having widespread impact in a way in con­
flict with applicable decisions of this Court. Dismissal of 
this action as moot frustrates the District Court’s efforts 
to establish and maintain only unitary public school sys­
tems in the State of Mississippi.5 Judge Keady, the Dis­
trict Judge, “has lived with this . . . [problem] for so many 
years and . . . has a much better appreciation both of the

4 Plaintiff school children were also taxed with costs (p. 28a).
6 See Alexander v. Holmes County Board of Education, 396 

U.S. 19 (1969) ; Norwood v. Harrison, 413 U.S. 455 (1973).



8

extent to which these . . . matters are actually problems in 
the . . . [State of Mississippi], and of the need for injunc­
tive relief to resolve . . . [them] to the extent they exist.” 
Gilmore v. City of Montgomery, 41 L.Ed.2d 304, 321 (1974) 
(Mr. Justice Marshall, concurring in part and dissenting 
in part). The decision below provides defendant state 
officials with an incentive to engage in “resist and with­
draw” tactics, i.e., to materially assist private segregation­
ist academies unless and until lawsuits are filed challenging 
separately each of their activities, and it imposes upon the 
private bar the duty to enforce the Constitution, acting as 
watchmen on a day-to-day basis to prevent the recurrence 
of unlawful acts.

The decision below also confuses the doctrine of “moot­
ness” arising in the context of a change in the status of the 
parties, with the issue of “mootness” arising in the context 
of the cessation of unlawful activity or the alleged elimina­
tion of a controversy’s subject matter and, in this additional 
respect, departs from controlling decisions of this Court. 
Compare, e.g., DeFunis v. Odegaard, 40 L.Ed.2d 164 (1974); 
Super Tire Engineering Co. v. McCorJcle, 40 L.Ed.2d 1 
(1974), with, e.g., United States v. W. T. Grant & Co., 345 
U.S. 629 (1953); United States v. Phosphate Export As­
sociation, 393 U.S. 199 (1968).

Finally, the Court of Appeals’ sua sponte finding that 
this litigation was not “necessary to bring about compliance 
with . . . constitutional rights,” and its decision to deny 
counsel fees to plaintiffs’ attorneys, is in conflict with 
Congress’ intent in enacting 20 U.S.C. §1617 as definitively 
interpreted by the Court in Bradley v. School Board of 
Richmond, 40 L.Ed.2d 476 (1974), and Northcross v. Board 
of Education, 412 U.S. 427 (1973).

In the face of a clear uncontroverted violation of plain­
tiffs’ constitutional rights, the Court of Appeals has freed



9

defendants from injunctive relief and permitted them to 
avoid any attorneys’ fee liability; the holding even re­
sults in costs being taxed against plaintiff black children 
and parents (p. 29a). And in this manner the “resist and 
withdraw” tactic is established as an effective strategy 
for undermining constitutional rights.

II.

Mootness

The Court of Appeals, in finding this case moot, relies 
upon precedent holding that an intervening change in cir­
cumstances (generally, a change in plaintiffs’ status re­
vealing the absence of “standing”), compels a finding that 
either plaintiffs no longer suffer any injury from the 
policy or practice under challenge or that the Court, for 
practical reasons, is not able to remedy the wrong.6 The

6 The eases cited by the Court of Appeals illustrate the point: 
Barron v. Bellairs, 496 F.2d 1187 (5th Cir. 1974) (new legislation 
removing plaintiff class from purview of the statute under chal­
lenge, rendered controversy, as to plaintiffs, m oot); National 
Lawyers Guild v. Board of Regents, 490 F.2d 97 (5th Cir. 1974) 
(suit to enjoin university to permit a specific meeting of plaintiff 
group, rendered moot when time for meeting had passed) ; Merkey 
v. Board of Regents, 493 F.2d 790 (5th Cir. 1974) (suit to enjoin 
recognition of college club rendered moot after plaintiff student 
left the school) ; DeSimone v. Linford, 494 F.2d 1186 (5th Cir. 
1974) (effort to obtain preliminary injunction ordering reinstate­
ment pending final determination of administrative appeal, ren­
dered moot by the completion of the administrative appeal) ; 
United States Servicemen’s Fund v. Killen Independent School 
District, 489 F.2d 693 (5th Cir. 1974) (suit challenging school- 
district’s refusal to permit school auditorium to be used for anti­
war theatrical production, rendered moot by the cessation of the 
Vietnam War and indication that plaintiffs no longer desired 
facilities) ; Eollon v. Mathis Independent School District, 491 
F.2d 92 (5th Cir. 1974) (plaintiffs’ graduation rendered moot a 
challenge to school regulation).



10

doctrine has recently been applied in DeFunis v. Odegaard, 
40 L.Ed.2d 164, 169 (1974), wherein plaintiff was assured 
the result he sought through his lawsuit—graduation from 
the University of Washington Law School—and a “determi­
nation . . .  of the legal issues . . . [was] no longer necessary 
to compel that result and could not serve to prevent it.” 7 
However, the Court has distinguished the issue of mootness 
as it arises in DeFunis from the issue as it arises when 
defendants claim that the lawsuit’s subject matter has been 
eliminated by their “voluntary cessation of allegedly il­
legal conduct.” United States v. W.T. Grant & Go., 345 
U.S. 629, 632 (1953).8 Generally, the DeFunis issue arises 
through an event affecting plaintiffs while the W.T. Grant 
issue arises through activity initiated by defendants.

The Court of Appeals’ failure to distinguish between 
these two separate and distinct lines of cases is at the 
foundation of its error: the case at bar does not involve 
any claim that petitioners, black children attending Mis­
sissippi public schools, no longer have an interest in, or can 
suffer any injury from, defendants’ policy of assisting the 
State’s segregationist academies; rather, the only issue 
raised is whether the Academy Conference’s decision to 
cancel its 1972 games at Mississippi State offered sufficient

7 See also: Super Tire Engineering Co. v. McCorkle, 40 L.Ed. 
2d 1, 8 (1974) (employers who brought suit challenging a state 
welfare program for striking workers continued to “retain suffi­
cient interest” in lawsuit’s subject matter—the state statute and 
program—after its striking employees returned to work) ; Roe V. 
Wade, 410 U.S. 113, 124-25 (1973) (plaintiff pregnant women 
challenging abortion statutes continued to retain sufficient interest 
in the statutes after the termination of their pregnancies).

8 See, for example, United States v. Phosphate Export Ass’n, 
393 U.S. 199, 202 (1968), wherein defendant association claimed 
it had ceased to exist and that, the allegedly illegal sales could 
not again take place, i.e., that the lawsuit's subject matter—the 
illegal sales—had been eliminated and the case rendered moot.



11

assurance that unlawful practices would not recur, result­
ing in the elimination of the action’s subject matter.

The District Court, but not the Court of Appeals, tested 
defendants’ claim, of mootness, based upon the alleged 
cessation of unlawful activity, by the proper standard re­
cently summarized by the Court:

The test for mootness . . .  is a stringent one. Mere 
voluntary cessation of allegedly illegal conduct does 
not moot a case; if it did, the courts would be compelled 
to leave ‘the defendants . . . free to return to his old 
ways.’ . . .  A case might become moot if subsequent 
events made it absolutely clear that the allegedly 
wrongful behavior could not reasonably be expected 
to recur. . . . [There is] a heavy burden of persuasion 
which we have held rests upon . . . [defendants]. 
[There must be proof] that the likelihood of further 
violations is sufficiently remote to make injunctive re­
lief unnecessary.
United States v. Phosphate Export Ass’n, 393 TI.S. 
199, 203 (1968) (emphasis added).

The District Court determined that defendants had not 
met their “heavy burden of persuasion.” It found of para­
mount importance the absence of any change in defendants’ 
policy toward the use of public facilities by segregationist 
schools: the Academy Conference, not a party to the action, 
had withdrawn its request to use Mississippi State Uni­
versity but defendants continued to authorise such illegal 
use (pp. 15a-18a).

The trial court also recognized that state officials are 
torn between two school systems, one public and integrated, 
a second, private, segregated and owing its existence to the 
desegregation of public schools. Judge Keady, drawing



12

upon his own judicial experience, knew that the potential 
for recurring violations was great since the academies 
could be expected to continue their practice of pressuring 
public officials for support (pp. 17a-18a). He viewed the 
practices under challenge as but a continuation of the long 
history of Mississippi support for segregationist acad­
emies: Coffey v. State Educational Finance Commission, 
296 F. Supp. 1389 (S.D. Miss. 1969) (tuition grants in­
validated) ; Coffey v. State Educational Finance Commis­
sion, C.A. No. 2906, September 2, 1970 (unreported) (tui­
tion loan program invalidated); Green v. Connally, 330 
F. Supp. 1150 (D.D.C. 1970) (tax exemptions invalidated); 
Norwood v. Harrison, 413 U.S. 455 (1973) (text book aid 
invalidated); Driver v. Tunica County School District, 
323 F. Supp. 1019 (N.D. Miss. 1970) (salaries paid to 
academy teachers invalidated); Cook v. Hudson, 365 F. 
Supp. 855 (N.D. Miss. 1973) (public school district regula­
tion prohibiting employment of professionals who enroll 
their own children in segregationist academies upheld); 
McNeal v. Tate County School District, 460 F.2d 568 (5th 
Cir. 1972) (transfer of school building to segregationist 
academy subjected it to restrictions); Taylor v. Coahoma 
County School District, 345 F. Supp. 891 (N.D. Miss., 
1972) (transfer of school property to segregationist acad­
emies enjoined); Anderson v. Canton Municipal Separate 
School District, 5th Cir., No. 28030, August, 1973, (un­
reported) (injunction issued to enjoin transfer of school 
buildings or property to Canton Academy followed by 
Motion for Contempt Judgment and then Consent Order 
directing school officials to assure the return to public 
schools of stadium bleachers and flood lights removed to 
Canton Academy); Blackwell v. Anguilla Line Consoli­
dated School District, 5th Cir., No. 28030, Nov. 24, 1969 
(unreported) (“No abandoned school facility under this 
plan, if any, shall be used for private school purposes”) ;



13

United States v. Mississippi, 499 F.2d 425 (5th Cir. 1974) 
(lease of public school building to private segregationist 
academy voided).9

The “resist and withdraw” tactic used by defendants and 
the Academy Athletic Conference has been uniformly re­
jected, until now, as a basis for finding mootness since 
changes “timed to anticipate or blunt the force of a law­
suit offer insufficient assurance” that the practice at issue 
will not be repeated. Lankford v. Gelston, 364 F.2d 197, 
203 (4th Cir. 1966); Cypress v. Newport News General & 
Nonsectarian Hospital, 375 F.2d 648, 658 (4th Cir. 1967). 
The decision below can serve only to encourage state de­
fendants and the Academy Conference to violate constitu­
tional rights until plaintiff class musters the resources 
necessary for cases such as these.10 The tactic promises to

9 At least one case is still pending in Mississippi: Bishop v. 
Starkville Academy, N.D. Miss. Civil Action No. 7497-K, (chal­
lenges Miss. Code, 1972, §37-23-61, as amended 1974, to the extent 
that it authorizes annual tuition grants of $600. to educationally 
disadvantaged or gifted children enrolled in private segregationist 
schools). Other forms of state assistance to Mississippi segrega­
tionist academies persist. See, for example, Miss. Code, 1972, 
§47-5-91 (1964 and 1969 enactments), authorizing tuition and 
transportation payments for state penetentiary employees’ children 
in segregationist academies; statute modified original 1942 enact­
ment (Miss. Code, 1942 §7931), providing for transportation and 
tuition payments for education of penitentiary employees’ chil­
dren in neighboring public school district.

The problem has taxed black students’ resources in other states 
as well: Wright v. Baker County Board of Education, 501 F.2d 
131 (5th Cir. 1974) (Georgia) ; Graham v. Evangeline Parish 
School Board, 484 F.2d 649 (5th Cir. 1973) (Louisiana) ; Gilmore 
v. City of Montgomery, 473 F.2d 832 (5th Cir. 1973) (Alabama).

Two such cases have been resolved in this Court: Norwood v. 
Harrison, supra and Gilmore v. City of Montgomery, 41 L.Ed.2d 
304 (1974).

I t has also been the subject of congressional concern and legisla­
tion, 20 U.S.C. §1605(d) (1) (A).

10 “ [T] his sort of case is an enterprise on which any private 
individual should shudder to embark. . . .  To secure counsel will­
ing to undertake the job of trial . . . necessarily means that some-



u

be most effective in undermining efforts to monitor and 
eliminate state support for segregationist academies since 
black students and their parents are not privy to segrega­
tionist school meetings or policy decisions and cannot 
anticipate requests for and grants of public assistance from 
or to such schools. Indeed, the Academy Conference used 
Mississippi State University for its 1970-71 games, with­
out challenge, because petitioners first learned of these 
events through newspaper accounts the day after they oc­
curred. When the elimination of state support for racially 
discriminatory schools—a matter of high national priority 
—is so readily frustrated, injunctive relief to prevent re­
peated violations is necessary.

These considerations, found compelling by the district 
court, were given no weight on appeal despite the limited 
scope of review authorized in these cases. An appellate 
court can only reverse a district court’s determination on 
the issue of mootness upon finding that “no reasonable 
basis” supports the lower court’s decision: “[t]he Chan­
cellor’s decision is based upon all the circumstances; his 
discretion is necessarily broad and a strong showing of 
abuse must be made to reverse it.” 11 United States v.

one—plaintiff or lawyer—must make a great sacrifice unless equity 
intervenes.” Bradley v. School Board of Richmond, 40 L.Ed.2d 
476, 492, n. 25 (quoting the district court).

11 The Court of Appeals also implies that the burden is upon 
the plaintiffs to prove that recurring violations will occur. It 
determined, from a silent record, that “no proof was made that 
permission of this sort had ever previously been given” (p. 26a). 
Since the burden of proving mootness under W. T. Grant, supra, 
is assigned to defendants, the court should have found that there 
was no proof that permission had ever been denied. Defendants 
declined to offer any proof of mootness (p. 14a), and plaintiffs 
consequently offered no proof of previous violations. [As we note 
in the text, the Academy Conference used Mississippi State during 
the 1970-71 school term, or a full year before the lawsuit was filed. 
This fact, although not in the record, was brought to the attention 
of the Court of Appeals at oral argument and in the petition for 
rehearing].



15

W. T. Grant & Co., 345 U.S. 629, 633-34 (1953). This stan­
dard is particularly appropriate in cases challenging state 
support for racially segregated education. Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 
(1971). The District Court was either clearly correct or it 
was not clearly incorrect in finding the potential for recur­
ring violations, and the Court of Appeals abused its dis­
cretion and misperceived controlling precedent in vacating 
the injunction.

III.

Attorneys’ Fees

The District Court summarily denied attorneys’ fees 
without the benefit of this Court’s decisions in Northcross, 
supra, and Bradley, supra, construing 20 U.S.C. §1617. 
The Court of Appeals should have remanded the case to 
the District Court for reconsideration in light of these 
intervening decisions; instead, it sua sponte foreclosed an 
award of attorneys’ fees.

In Northcross v. Board of Education, 412 U.S. 427, 428 
(1973), the Court held that “plaintiffs in school cases are 
‘private attorneys general’ vindicating national policy in 
the same sense as are plaintiffs in Title II cases.” Ac­
cordingly, it was held that since attorneys’ fees must be 
awarded routinely to prevailing plaintiffs in Title II cases, 
“unless special circumstances would render such an award 
unjust,” [Newman v. Piggy Park Enterprises, 390 U.S. 400, 
(1968)] so must they be awarded under 20 U.S.C. §1617 
in cases charging racial discrimination in education. More­
over, the statutes’ objective of encouraging individuals to 
vindicate Congressional policy against racial discrimina­
tion, has led the court to reject as evidence of “special 
circumstances” a variety of factors including the absence



16

of frivolous defenses, good faith, or that some members of 
the court agreed with defendants, or that plaintiffs were 
not obligated to pay any fees. Newman v. Piggie Park 
Enterprises, 390 TJ.S. 400 (1968); Miller v. Amusement 
Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). Similarly, 
in deciding that under 20 U.S.C. §1617, counsel fees should 
be awarded for services performed prior to the effective 
date of that Act, the Court considered the importance of 
encouraging individuals to vindicate national policy against 
racial discrimination in education. Bradley v. School 
Board of Richmond, 40 L.Ed.2d 476, 491-93, and n. 27 
(1974). Read together, the cases establish the principle 
that limitations upon fee awards to prevailing plaintiffs, 
acting as “private attorneys general,” are disfavored and 
20 TJ.S.C. §1617’s requirement that a fee award is to be 
made “upon finding that the proceedings were necessary 
to bring about compliance,” must be construed in that 
light.

Equally important, much of the debate in the Senate 
leading to the passage of 20 U.S.C. §1617, centered on the 
language of the statute cited by the Court of Appeals to 
deny counsel fees. It is clear that the prerequisite for a 
fee award, a “finding that the proceedings were necessary 
to bring about compliance,” was intended to protect against 
two abuses: the champertous filing of lawsuits to obtain a 
fee and the unnecessary protraction of litigation to trial 
and judgment when defendants have made a bona fide and 
adequate offer of settlement. See Cong. Rec. S. 5485 (daily 
ed. April 22, 1971), (colloquy between Senators Javits 
and Cook), 117 Cong. Rec. 5490-91. Thus the statute would 
bar or limit an attorneys’ fee herein if defendants had been 
willing to enter into a consent order on the merits and to 
an award of attorneys’ fees for services rendered through 
the filing of the Complaint, but plaintiffs had insisted upon 
trial on the merits. However, defendants declined to pur­



17

sue that course and have insisted instead that injunctive 
relief is to be resisted at all costs.

It is uncontroverted that the pleadings were hand de­
livered to counsel for defendants three days before the 
Academy Conference withdrew its request to use Missis­
sippi State University (p. 7a). This fact, when viewed in 
the light of this Court’s decisions in Northcross and Bradley 
and the legislative history, compels a presumption that, in 
this case, “proceedings were necessary to bring about com­
pliance,” with plaintiffs’ constitutional rights under the 
Fourteenth Amendment; the appeals court decision fore­
closing such a finding is simply untenable.

Defendants must be assigned the burden of proving that 
the proceedings were champertous or marked by bona fide 
offers of settlement rejected by plaintiffs. The case should 
be remanded to the district court for reconsideration of the 
attorneys’ fee issue in light of that standard compelled by 
Bradley, Northcross and the legislative history as dis­
cussed above.



18

CONCLUSION

For these reasons a Writ of Certiorari should issue to 
review the judgment and opinion of the United States 
Court of Appeals for the Fifth Circuit.

Respectfully submitted,

J ack  G reenberg  
J am es M . N abrit , I I I  
N orm an  C h a c h k in  
C h a rles  S t e p h e n  R alston  
M elv y n  R . L ev e n t h a l  

10 Columbus Circle 
New York, New York 10019

F red L . B a n k s , J r .
538% North Farish Street 
Jackson, Mississippi 39202

Counsel for Petitioners



APPENDIX



Complaint
(Filed February 14, 1972)

I n t h e  U n ited  S tates D istrict  C ourt 

F or t h e  N o rth ern  D istrict  oe .Mis s is s ip p i 

E astern  D iv isio n  

C iv il  A ction  N o. EC72-12K

B e n n ie  S tone  G ooden , J r ., by bis father, Bennie Stone 
Gooden, Sr.; J o h n  W esley  L ong and L a w ren ce  L ong, 
by tbeir mother, Mrs. Herbie Cannon Long,

vs.
Plaintiffs,

M is s is s ip p i S tate U n iv e r s it y ; Dr. W illia m  L . G il e s , Pres­
ident o f Mississippi State University; T h e  B oard of 
T ru stees  oe I n st it u t io n s  of H ig h er  L ea r n in g ,

Defendants.

1. Jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §1343(3) and (4). This is a suit in Equity 
authorized by 42 U.S.C. §1983, which seeks to redress the 
deprivation of rights assured and protected by the Four­
teenth Amendment to the Constitution of the United States.

2. Plaintiffs seek a preliminary and permanent injunc­
tion enjoining defendants from affording The Academy 
Athletic Conference of Mississippi, and its member schools, 
the use of athletic and other facilities at Mississippi State 
University and other state owned institutions of higher 
learning.

la



2a

II
3. Plaintiffs Bennie Stone Gooden, Jr., John Wesley 

Long and Lawrence Long are black citizens of the United 
States residing in Clarksdale, Mississippi. They are stu­
dents in attendance at the public schools of the Clarksdale 
Municipal Separate School District. Their right to a ra­
cially integrated and otherwise non-discriminatory public 
school system, and their right to the elimination of all 
state support for racially segregated schools, have been 
frustrated and/or abridged by the creation of the racially 
segregated Lee Academy of Clarksdale, Mississippi, the 
formation of The Academy Athletic Conference of Missis­
sippi, and the policies and practices of defendants as set 
forth below. The named plaintiffs are minors and are repre­
sented by their parents, Bennie Stone Gooden, Sr. and Mrs. 
Herbie Cannon Long.

4. The named plaintiffs bring this action as a class ac­
tion pursuant to Rule 23 of the Federal Rules of Civil 
Procedure. They sue in their own behalf and in behalf of 
students throughout the state of Mississippi who are ag­
grieved by the policies and practices of defendants com­
plained of herein. The members of the class on whose behalf 
plaintiffs sue are so numerous so as to make it impractica­
ble to bring them all individually before the Court, but 
there are common questions of law and fact involved and 
common grievances arising out of common wrongs. A com­
mon relief is sought for plaintiffs and all members of the 
class. The plaintiffs fairly and adequately represent the 
interests of the class. The policies and practices of defen­
dants complained of herein are applicable to the plaintiff 
class generally. Moreover, the questions of law and fact 
common to the members of the class predominate over any

Complaint



3a

question affecting only individual members and a class 
action is superior to other available methods for adjudica­
tion of the controversy.

5. Defendant Mississippi State University is an institu­
tion of higher learning owned, supported and operated by 
the State of Mississippi. Defendant William L. Giles, is 
the President, the chief executive officer and administrator, 
of Mississippi State University. Defendant, The Board of 
Trustees of Institutions of Higher Learning governs, and 
has plenary authority and control over, all state owned in­
stitutions of higher learning in the state of Mississippi.

I l l
6. a) Beginning with the 1964-65 school year—when the 

first public school districts in Mississippi were required to 
integrate under freedom of choice—and through the pres­
ent, numerous private racially segregated schools and 
academies have been either formed or enlarged, which 
schools have established as their objective and/or have had 
the effect of affording white children of the state of Mis­
sissippi racially segregated elementary and secondary 
schools as an alternative to racially integrated and other­
wise nondiscriminatory public schools.

b) These private racially segregated schools have formed 
and are members of The Academy Athletic Conference 
which Conference sponsors and conducts athletic programs 
and events for the racially segregated private schools of 
the State.

7. Defendant Mississippi State University has granted 
The Academy Athletic Conference permission to use the

Complaint



4a

University’s gymnasium and campus facilities for the pur­
pose of holding an overall conference championship in 
basketball; these playoff games are scheduled to be held 
during the week of February 21-26, 1972.

8. Defendant Mississippi State University has granted 
The Academy Athletic Conference permission to use the 
University’s gymnasium and campus facilities for the pur­
pose of holding Academy Conference all-star games in 
basketball; these all-star games are scheduled to be held 
during the second week of March, 1972.

9. Defendants, in permitting The Academy Athletic Con­
ference the use of state owned gymnasiums and facilities, 
have provided state aid and encouragement to racially seg­
regated education and have thereby impeded the achieve­
ment of racially integrated public schools in violation of 
plaintiffs’ rights assured and protected by the Fourteenth 
Amendment to the Constitution of the United States.

W h e r e fo r e , plaintiffs respectfully pray that this Court;
1. Enter a preliminary injunction enjoining defendants 

to deny The Academy Athletic Conference and its member 
schools the use of Mississippi State University’s gymnasium 
and facilities for the conduct of basketball playoffs, tourna­
ments and all-star games, scheduled for February and 
March, 1972.

2. Enter a permanent injunction enjoining defendants 
to deny The Academy Athletic Conference and its members 
schools the use of all facilities subject to the control of the 
Board of Trustees of Institutions of Higher Learning.

Complaint



5a

3. Grant plaintiffs their costs herein including reason­
able attorney’s fees.

4. Grant such additional or alternative relief as the 
Court deems just and equitable.

February 11, 1972

Complaint

Respectfully submitted,

M elvyn  R. L ev e n t h a l  
A nderson , B a n k s , N ic h o ls  
& L ev e n t h a l

538% North Farish Street 
Jackson, Mississippi 39202

F r a n k  R. P arker

233 North Farish Street 
Jackson, Mississippi 39202

J ack  G reenberg  
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Plaintiffs



6a

Motion for Preliminary Injunction or in the 
Alternative for a Temporary Restraining Order

(Title Omitted)

Plaintiffs respectfully move this Court to enter an order 
preliminarily enjoining Mississippi State University, its 
President, Dr. William L. Giles and the Board of Trustees 
of Institutions of Higher Learning from affording The 
Academy Athletic Conference of Mississippi and/or its 
member schools the use of Mississippi State University’s 
gymnasium and other facilities for the conduct of Academy 
Athletic Conference basketball play-offs, tournaments and 
all-star games or other programs pending full hearing on 
plaintiffs’ Complaint and Motion for Permanent Injunction.

Unless the Court grants the relief prayed for herein 
plaintiffs will be irreparably injured: The Academy
Athletic Conference has scheduled basketball play-offs at 
Mississippi State University beginning February 21, 1972.
February 11, 1972

Respectfully submitted,

M elvyn  R. L e v e n t h a l

A nderson , B a n k s , N ich o ls

&  L ev e n t h a l

538% North Farish Street 
Jackson, Mississippi 39202

F r a n k  R. P arker

233 North Farish Street 
Jackson, Mississippi 39202

J ack  Greenberg  
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Plaintiffs



7a

Certificate of Service

I hereby certify that on this 11th day of February, 1972, 
I caused to be served by personal delivery upon Honorable 
William Allain, Assistant Attorney General, State of Mis­
sissippi, New Capitol Building, Jackson, Mississippi and 
by United States mail, postage prepaid, upon Dr. William 
L. Giles, President, Mississippi State University, Stark- 
ville, Mississippi and Mr. W. 0. Stone, President, Board 
of Trustees, Institutions of Higher Learning, Post Office 
Box 1491, Jackson, Mississippi, copies of a Complaint, 
Motion For Preliminary Injunction Or In The Alternative 
For A Temporary Restraining Order and Notice of Motion.

M elvyst R. L e v ek th a l



8a

Answer
(Title Omitted)

Come now the Defendants, Mississippi State University, 
Dr. William L. Giles, President, Mississippi State Uni­
versity, and the Board of Directors of the State Institutions 
of Higher Learning, and answer the Complaint filed herein 
as follows:

F irst  D e f e n s e

This Court lacks jurisdiction of any of the defendants or 
the subject matter in this cause.

S econd  D e fe n se

The Complaint fails to state a claim against the defen­
dants upon which relief can be granted.

T h ir d  D e fe n se

The Complaint filed herein fails to satisfy the prerequi­
site to a class action pursuant to Rule 23 of Federal Rules 
of Civil Procedure.

F o u r th  D e f e n s e

1. Defendants deny that this court has jurisdiction un­
der any of the constitutional amendments or statutes set 
out in Paragraph 1 of the Complaint.

2. Defendants deny the allegations contained in Para­
graph 2 of the Complaint.



9a

Answer

3. Defendants lack information sufficient to form a belief 
as to the truth of the averments of the first, second and last 
sentences of Paragraph 3 of the Complaint and deny the 
remaining portion of Paragraph 3.

4. Defendants deny the allegations contained in Para­
graph 4 of the Complaint.

5. Defendants admit the allegations of Paragraph 5 of 
the Complaint.

6. Defendants deny the allegations contained in Para­
graph 6 of the Complaint, including subparagraphs a and b 
therein.

7. Defendants admit the allegations of Paragraph 7 of 
the Complaint, but would further state that upon initiation 
of said Academy Activities Commission of the Mississippi 
Private School Association, the acceptance and/or permis­
sion of said commission to use the facilities of Mississippi 
State University was withdrawn effective February 14, 
1972. (Ex. “A”)

8. Defendants admit the allegations contained in Para­
graph 8 of the Complaint, but would further state that the 
Academy Activities Commission of the Mississippi Private 
School Association has withdrawn its request to hold its 
championship games in the facilities at Mississippi State 
University on February 24, 25, and 26, 1972. (Ex. “A”)

9. Defendants deny the allegations contained in Para­
graph 9 of the Complaint.



10a

Answer

W h e r e fo r e , Defendants deny that p la in t i f f s  are entitled 
to any relief in this action and pray that the action he dis­
missed at plaintiffs’ cost.

Respectfully submitted,

A. F. S u m m e r , Attorney General 
of the State of Mississippi

W illia m  A. A l l a in , First Assistant 
Attorney General of Mississippi

E d D avis N oble, J r ., Special Assistant 
Attorney General of Mississippi

By: E d D avis N oble, J r .



11a

Exhibit “A” Annexed to Answer

February 14, 1972

Dr. W. L. Giles, President 
Mississippi State University 
State College, Mississippi

Dear Dr. Giles:
The Academy Activities Commission of the Mississippi 
Private School Association wishes to withdraw any and all 
of its requests to hold functions at Mississippi State Uni­
versity as of this date, February 14,1972.
We especially wish to withdraw the request for hosting the 
Academy Activities Commission’s championship basketball 
games to be held the weekend of the 24-25-26th of February, 
1972.
With very best regards, I am

Sincerely yours,

/ s /  Gleitk A. Caih 
Glenn A. Cain 
Executive Secretary

GAC :lkt

cc: Mr. Charles Shira, Athletic Director,
Miss. State University
Mr. Ed. Nobles, State Attorney General’s Office



12a

Notice of Motion

[M otion  to D is m is s ]

Please take notice that the undersigned will bring the 
attached Motion to Dismiss [Answer, pp. 8a-lla] or in the 
alternative Summary Judgment which is contained in De­
fendants’ answer pursuant to Rule 12 (b), F.R.C.P., on for 
hearing before this Court at the United States Courthouse 
in the City of Greenville, State of Mississippi, on Thurs­
day, the 22nd day of March, 1973, at 1 :30 P.M. or as soon 
thereafter as counsel may be heard.

A.F. S u m m e r  
Attorney General of 
the State of Mississippi

B y: E d D avis N oble , J r.



13a

Note: The following are all of the district court’s findings 
entered during the March 22, 1972 hearing and relating to 
the issue of mootness.

No. EC-72-12-K

The following proceedings were had in the United States 
District Court, Northern District of Mississippi, on 
March 22, 1973, before the Honorable William C. Keady, 
Chief Judge, at Greenville, Mississippi.

A ppe a r a n c e s :

For the Plaintiffs:
The Honorable Melvyn Leventhal

For the Defendants:
The Honorable Ed Davis Noble, Jr.

The Court: The Court will call EC-72-12, Bennie Stone 
Gooden, Jr., and others versus Mississippi State University 
and others, defendants, pursuant to notice of the Court 
to set this matter down at this time for final hearing or 
other disposition that may be appropriate.

Are the plaintiffs ready!
Mr. Leventhal: Yes, your Honor.
The Court: Are the defendants ready!
Mr. Noble: Yes, Your Honor.
The Court: All right, Mr. Leventhal—
Mr. Noble: May it please the Court, preliminarily, I 

believe we noticed that we would bring forward—
The Court: A motion to dismiss!

District Court Findings— Excerpts from Transcript



14a

Mr. Noble: —a motion to dismiss and in the alternative 
summary judgment, Your Honor.

The Court: All right. Do you wish to present that?
Mr. Noble: Your Honor—
The Court: Let’s see first for the record whether there 

is any evidence to be taken. Do you have any evidence in 
connection with your motion or otherwise?

Mr. Noble: No, sir. The only thing we have, Your 
Honor, of course, is the memorandum with the attached 
exhibit. [Letter from Academy Conference, February 14, 
1972, attached to Answer]

The Court: Well, the exhibit . . . will be considered as 
offered in evidence. [It is] . . .  attached to the memoran­
dum?

Mr. Noble: Yes, sir, that was mailed to you.
The Court: Let’s get [it] . . . and mark . . . [it].
The Clerk: That will be Exhibit One for the Defendant.
Mr. Leventhal: I ’m familiar with it, Your Honor.
The Court: All right.
Now, before proceeding further, Mr. Leventhal, for the 

record, do you have any evidence to present at this time?
Mr. Leventhal: No, Your Honor.
The Court: All right.
Mr. Leventhal: However, we would ask the Court to 

take judicial notice of the record presented to this Court 
in Norwood v. Harrison and we ask the Court to take 
judicial notice of the fact that we have a private academy 
string in the state and secondly establish by Norwood v. 
Harrison that all senior academies conducting junior or 
senior high athletic programs are members of the con­
ference and sought and obtained permission to use Missis­
sippi State University facilities.

The Court: All right.

District Court Findings



15a

Does the state have any objection to the Court taking 
such judicial notice?

Mr. Noble: We would object, Your Honor, of course, to 
the extent that since we consider the case moot that it is 
unnecessary for the Court to take judicial notice at this 
time of the existence of the private schools or of any 
academy athletic conference.

The Court: Well, the Court does take judicial notice 
of that because, of information contained in its own records. 
What it may be worth for the purpose of the present hear­
ing is another question.

You may proceed with your motion to dismiss . . . .

# # *

The Court: Was this matter ever brought before the 
board of trustees and did they adopt a resolution as a 
matter of policy?

Mr. Noble: No, Your Honor, it was never brought before 
the board because it was not necessary, for the simple 
reason that as soon as the Complaint was tiled it was 
brought to my attention and as a. result I personally 
represented to Mississippi State that at that time the—

The Court: But this suit has been pending against the 
board for over a year. They have not adopted any official 
policy regarding the use of public facilities ?

Mr. Noble: No, sir, as far as I know, they haven’t. As 
far as my office is concerned, Your Honor, we are only 
subject to call by the board. We might add that taking the 
Complaint at face value, Your Honor, there is only repre­
sentation there as to Mississippi State, one, that the plain­
tiffs themselves are only students at the Coahoma County 
public school system and that any sort of support that

District Court Findings



16a

would have accrued that might injure these plaintiffs would 
come to Lee Academy. That is the only locale that would 
injure these particular plaintiffs. Mr. Leventhal, I would 
assume, in his drawing the Complaint, did not represent 
or has not offered any other particular evidence to show 
that there is any damage as related to any activity held at 
the University of Mississippi, Mississippi State College for 
Women or any other representation to any of the other 
institutions. . . .

# *  #

The Court: Well, it would be easy enough to settle it if 
the board of trustees would adopt a resolution declaring 
the policy. That would be easy enough. They have had a 
year. And if they will do it, I am willing to give them 
another opportunity and hold up. But it is the fact they 
have not adopted a policy. And as Mr. Leventhal points 
out, the only reason this matter was not brought into the 
Court was the decision of one not a defendant to withdraw 
his request. There was no request by the college officials.

Mr. Noble: The request was made by the Academy 
Athletic Conference.

The Court: And permission was granted. But permis­
sion was not withdrawn. Had permission been withdrawn 
by the state university people—

Mr. Noble: Your Honor, if I  may, I would like to state 
to you that I attempted to reach Hr. Giles and get the 
letter of transmittal back that the request was accepted 
and permission therefor withdrawn.

The Court: I  understand. Your clients have been sued 
in federal court and extraordinary injunctive relief asked. 
Now, you have had over a year, you might say, to prepare 
your record for defense. There has been no record made

District Court Findings



17a

that would put this case on ice, so to speak, as far as you 
are concerned. Now, very clearly had the board of trustees 
adopted a resolution saying that they would not permit 
the exclusive use of any of the state university and college 
facilities by private, racially discriminatory academies, I 
would regard it as moot, even though they have fixed terms 
and are subject to going out of office in the future. I think 
that is getting into speculation. But they have not as of 
now taken any position. I do not, know what their view is. 
They may think there is nothing wrong . . . .

#  *  #

The Court: But that is what is bothering the Court. 
There has been no declaration of policy that would inform 
this Federal Court that there is no need to issue.

Mr. Noble: Your Honor, again the representation of 
Mr. Leventhal was that these children in Coahoma County 
—have they been injured? Have they been injured in 
Clarksdale? Has there been any benefit derived from it at 
all to Lee Academy which is represented in the Complaint? 
Has there? Mr. Leventhal has not presented any statistics 
that one white child has withdrawn from the black schools 
over there because of it.

The Court: [I]f I thought holding the case open for 30 
days would cause the board of trustees to adopt a resolu­
tion satisfactory to this Court, I would do so. But there is 
no indication that would be forthcoming. It has not been 
forthcoming. And I think that with the law being settled as 
it is the injunction would possibly be a useful thing not 
only to members of the plaintiff class but also to the board 
and to college administrators. It would give them some­
thing on which they could stand if requests are made in the

District Court Findings



18a

future by racially discriminatory school groups. So I can­
not say that merely because there has been a withdrawal 
of the request by one or the other defendant that there is 
no reasonable expectation that the wrong will not be 
repeated. We all know that when these requests come 
from—if they do come from racially discriminatory schools 
that they are difficult to turn down. The Court is not naive. 
The only way they could be turned down effectively and 
feasibly would be to have something on the books that says 
they cannot be used.

So I am going to grant the permanent injunction on the 
basis of this jacket file and the statement made by counsel 
today.

District Court Findings



19a

March 29, 1973

Honorable William C. Keady 
United States District Judge 
Post Office Box 190 
Greenville, Mississippi 38701

Be: Bennie Stone Gooden, et al. 
v. Mississippi State 
University, et al.,
Civil Action No. EC72-12(K)

Letter to District Court

Dear Judge Keady:
In accordance with your instructions, I enclose a proposed 
order. I have attempted to set forth the standard adopted 
by the Fifth Circuit in Gilmore v. City of Montgomery. . . . 
3. In accordance with your instructions, I have included a 
paragraph denying plaintiffs an award of attorney’s fees. 
However, I  enclose a copy of a recent Fifth Circuit opinion 
{Johnson v. Combs, 471 F.2d 84 (5th Cir. 1972)), which 
makes an award of such fees mandatory in a case such as 
this.
I  respectfully ask the Court to reconsider its denial of a 
fee in light of Combs.

Sincerely,

Melvyn R. Leventhal

MRL :msc 
Enclosures

cc: Ed Davis Noble, Jr., Esquire



20a

Order
(Title Omitted)

This cause having been heard on March 22, 1973, on 
plaintiffs’ motion for a permanent injunction, and the court 
having considered memorandum briefs, and the contents 
of the jacket file and having taken judicial notice of certain 
facts recorded in the court reporter’s notes of these pro­
ceedings; it is

Ordered

(1) Defendant, Board of Trustees of Institutions of 
Higher Learning, is permanently enjoined from allowing 
or permitting gymnasiums, athletic fields, and other school 
facilities of all colleges and universities subject to its 
control or jurisdiction to be used for the holding of con­
tests, activities and programs sponsored by Academy 
Athletic Conference (also known as Academy Activities 
Commission of the Mississippi Private School Associa­
tion), or its member schools, or any other private school 
which does not enroll black students; provided, however, 
that this shall not preclude any student, or group of stu­
dents attending any private school from access to such 
facilities under defendants’ control when such facilities 
are open to the general public on a nonexclusive, com­
munal basis. Gilmore v. City of Montgomery, Fifth Circuit 
Court of Appeals No. 72-1610, Slip Opinion February 9, 
1973.

(2) The defendant, Board of Trustees of Institutions of 
Higher Learning, shall notify the president, chancellor or 
executive head of each college or university subject to its 
jurisdiction of the requirements of this order.

(3) Plaintiffs’ motion for an award of attorney’s fees is 
hereby denied.



21a

Order

The clerk of this court is directed to serve a copy of this 
order by certified mail upon Dr. E. E. Thrash, Executive 
Secretary and Director of the Board of Trustees of Insti­
tutions of Higher Learning, Jackson, Mississippi.

This, 4th day of April, 1973.

W illia m  C. K eady 
Chief Judge

United States District Court



22a

Appeals Court Opinion
Gooden, et al. v. Mississippi State University, et al., 

5th Cir. No. 73-2108
E n tered  A ug u st  19, 1974

Appeals from the United States District for the Northern 
District of Mississippi.

B e f o r e  :

B e l l , D yeb  a n d  Cla rk ,

Circuit Judges.
P er  C ubiam  :

Plaintiffs, three black students attending public school 
in Clarksdale, Mississippi, sued on behalf of a class com­
prised of “students throughout the State of Mississippi 
who are aggrieved by the policies and practices of the 
defendants complained of herein.” The complaint, filed 
February 14, 1972, alleged that “numerous private racially 
segregated schools and academies,” as members of the 
Academy Athletic Conference, had been granted permission 
by Mississippi State University to use the University’s 
gymnasium and facilities to hold basketball games on Feb­
ruary 21-26, 1972. It was further asserted that this action 
provided state aid and encouragement to such member 
schools and thereby impeded the achievement of racially 
integrated public schools. Preliminary injunctive relief 
was sought to stop Mississippi State from allowing the 
tournament, and permanent injunctive relief was requested 
denying the Academy Athletic Conference the use of all 
facilities controlled by the Board of Trustees of Institu­
tions of Higher Learning, which oversees the eight public 
four-year collegiate institutions in the state. The defen­



23a

dants were the president of Mississippi State University 
and the Trustees of the Institutions of Higher Learning. 
They answered admitting that permission had been given 
for the use of Mississippi State’s facilities on February 
21-26, but alleged that on the same day the complaint had 
been filed the Academy Athletic Conference withdrew its 
request, and the games had not been played on state 
property. A hearing consisting solely of statements and 
arguments of counsel, was held in February of the follow­
ing year. The district judge made no findings of fact but 
issued this injunction on April 4,1973:

Defendant, Board of Trustees of Institutions of Higher 
Learning, is permanently enjoined from allowing or 
permitting gymnasiums, athletic fields, and other 
school facilities of all colleges and universities subject 
to its control or jurisdiction to be used for the holding 
of contests, activities and programs sponsored by 
Academy Athletic Conference (also known as Academy 
Activities Commission of the Mississippi Private 
School Association), or its member schools, or any 
other private school which does not enroll black stu­
dents; provided, however, that this shall not preclude 
any student, or group of students attending any private 
school from access to such facilities under defendants’ 
control when such facilities are open to the general 
public on a nonexclusive, communal basis. Gilmore v. 
City of Montgomery, [473 F.2d 832 (CA 5, 1973) 1973],

Both parties appeal. Defendants seek to vacate the in­
junction. Plaintiffs protest the court’s failure to award 
them attorneys’ fees. Defendants protest the issuance of 
the injunction as an imprudent exercise of the court’s 
equitable power because (1) none of the circumstances

Appeals Court Opinion



24a

present in Gilmore was shown to be present in this ease, 
(2) no threat of similar requests or approvals in the future 
was shown, and (3) at the time of issuance the cause was 
moot. Plaintiffs contend that the court’s action must be 
judged in light of its knowledge of the existence of a wide­
spread network of private schools that pose a threat to the 
success of public school integration—knowledge which was 
gained from taking judicial notice of its own records in 
Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 
L.Ed.2d 723 (1973). They reason from this that it was 
permissible for the court to conclude that the Board of 
Trustees of Institutions of Higher Learning had an affir­
mative duty to adopt a negative policy forbidding use of 
all facilities under their supervision in the manner en­
joined. Plaintiffs’ cross-appeal claims that Section 718 of 
Title VTI, 20 U.S.C. § 1617,1 applies and, coupled with the 
decisions in Newman v. Piggie Park Enterprises, 390 IT.S. 
400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) and Johnson v. 
Combs, 471 F.2d 84 (5th Cir. 1972), mandates the award 
of attorneys’ fees in this case.

Because the Supreme Court granted certiorari in Gil­
more, supra, 414 U.S. 907, 94 S.Ct. 215, 38 L.Ed.2d 145 
(1973), and Bradley v. Richmond School Board, 412 U.S. 
937, 93 S.Ct. 2773, 37 L.Ed.2d 396 (1973), the latter case 
relating to the applicability of Section 718, we withheld

1 Upon the entry of a final order by a court of the United States 
against a local educational agency, a State (or any agency thereof), 
or the United States (or any agency thereof), for failure to comply 
with any provision of this chapter or for discrimination on the 
basis of race, color, or national origin in violation of title YI of 
the Civil Rights Act of 1964, or the fourteenth amendment to the 
Constitution of the United States as they pertain to elementary 
and secondary education, the court, in its discretion, upon a finding 
that the proceedings were necessary to bring about compliance, 
may allow the prevailing party, other than the United States, a 
reasonable attorney’s fee as part of the costs.

Appeals Court Opinion



25a

the disposition of the instant appeal pending its decisions 
in those cases, which have now been handed down. Gilmore
v. Montgomery, -----  U.S. ----- , 94 S.Ct. 2416, 41 L.Ed.2d
-—— (1974); Bradley v. Richmond School Board,-----U.S.
— , 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). Even with the 
guidance provided, the central issue in this cause continues 
to be whether a controversy which would support injunctive 
relief remained after the withdrawal of the single private 
school request for use of public facilities.

Although the question for resolution on this appeal might 
be posed in terms of standing, i.e., did plaintiffs show an 
injury to themselves resulting from defendants’ action;2 * 
or in terms of ripeness, i.e., did plaintiffs demonstrate a 
realistic possibility that the actions of defendants would 
injure them;8 or in terms of abuse of discretion, i.e-., was 
the injunction unsupported or overbroad,4 * the issue here

2 In Pevsner v. Eastern Air Lines, 493 F.2d 916 (5th Cir. 1974), 
we affirmed the dismissal for lack of standing of a class action 
claim by one who had been overcharged for an air line ticket, 
because the initial overcharge was placed on a Bank Americard 
form and somehow got reduced to a proper charge before being 
billed to Pevsner.

8 In International Tape Manufacturers Association v. Gerstein, 
494 F.2d 25 (5th Cir. 1974), an injunction against enforcement 
of a Florida tape piracy statute was vacated as granted in a con­
troversy lacking ripeness where the proof failed to disclose how 
plaintiffs’ members would be affected by the law or that any 
prosecution had been had or threatened under the law. See n. 8 
comparing the doctrines of “standing”, “ripeness” and “mootness”.

4 Only Mississippi State University was shown to have acted, 
yet the injunction controlled the actions of the Board of Trustees 
at all eight collegiate institutions under their control which were 
located throughout the state. Its single action was a year prior to 
our decision in Gilmore. The district court never entered any 
order on the maintainability of this action as a class suit. Fed.R.
Civ.P. 23(c). The effect on Clarksdale high school students of the 
proposed but aborted Starkville basketball tournament was not 
demonstrated except by the unarticulated inferences which might

Appeals Court Opinion



26a

is most properly classified as raising the question of moot­
ness, i.e., does the cause lack the concrete adverseness nec­
essary to an Article III case or controversy?

This court has on several occasions this year held causes 
moot—when the allegedly offending action was rescinded, 
see Barron v. Bellairs, 5 Cir., 496 F.2d 1187 [1974] (new 
Georgia welfare statute enacted prior to entry of injunc­
tive relief),—when the proof failed to show the complain­
ing party was or would be injured by the challenged actions 
of the defendant, see National Lawyers Guild v. Board of 
Regents, 5 Cir., 490 F.2d 97 (injunction requiring use of 
college facility for meeting held moot -where meeting date 
set had long gone by and no showing was made that re­
quired co-sponsorship by college dean had been sought or 
refused); and Merkey v. Board of Regents, 5 Cir., 493 F.2d 
790 (where plaintiff was a non-student at the time of 
appeal and no student was shown to seek recognition for 
a college club, the action demanding recognition was moot 
—Judge Goldberg dissented),—and when the matter in 
controversy has become passe, see De Simone v. Lindford, 
5 Cir. 494 F.2d 1186 (request for injunctive relief pending 
completion of administrative review held moot upon final 
agency decision); United States Servicemen’s Fund v. Kil­
leen Independent School District, 5 Cir., 489 F.2d 693 (right 
to use a high school auditorium for a “Counter-USO Show” 
by Viet Nam war protesters held moot after the conflict 
ended); and Hollon v. Mathis Independent School District, 
5 Cir., 491 F.2d 92 (injunction suspending a school rule 
against married athletes mooted by plaintiff’s graduation).

Appeals Court Opinion

be drawn from facts established in the record from Norwood v. 
Harrison, supra. The asserted affirmative duty of the Board to 
adopt a policy forbidding the grant of exclusive use of facilities 
to private school students is devoid of support in the record. See 
n. 10 to Gilmore, supra,----- U.S. a t -------, 94 S.Ct. 2416.



Reference to these holdings and the authorities they cite 
suffices for articulation of the underlying legal principles.

[1] Assuming, without deciding, that the single instance 
of collegiate level action which never came to fruition may 
have supported an injunction against the officials of that 
college prior to the withdrawal of the private school re­
quest, or that other instances of aid or support to private 
schools in violation of plaintiffs’ rights might have been 
proven and supported injunctive relief, a full year inter­
vened without any indication of similar subsequent actions 
or threats to act by any of the defendants. No proof was 
made that permission of this sort had ever previously been 
given. No controversy between adverse interests was de­
monstrated to exist.5

[2] Assuming, again without deciding, that Section 718 
may be applicable in a moot case, no finding that these 
proceedings were necessary to bring about compliance with 
statutory or constitutional rights was made or could be 
supported by this record.6 Without such a finding, Section 
718 affords no basis for a fee award. The cross-appeal is 
without merit.

The injunction order appealed from is vacated and the 
cause is remanded with directions to the court below to 
dismiss the action as moot.

Vacated and remanded.

6 Time may alter any relationship. Hence even permanent in­
junctive orders must continue to find justification in present 
conditions. Today, the Supreme Court’s decision in Gilmore has 
so far clarified the law in this area that if any particle of the 
subject matter of the present action, which we hold became moot 
long ago, did remain justiciable, it has become moot now.

6 As a part of the permanent injunction order the district court 
simply recited, “Plaintiffs’ motion for an award of attorneys’ fees 
is hereby denied.”

Appeals Court Opinion



28a

Judgment

UNITED STATES COURT OF APPEALS 
F oe t h e  F if t h  C ir c u it  

O ctober  T e r m , 1973 
No. 73-2108

D. C. Docket No. CA EC 7212-K

B e n n ie  S to n e  G ooden , J r., etc., et al.,
Plaintiff s-Appellees- 

Cross Appellants,
versus

M is s is s ip p i S tate U n iv er sity , etc., et al.,
D efendants-Appellants- 

Cross Appellees.

appeals from the united states district court for the 
northern DISTRICT OF MISSISSIPPI

Before
B e l l , D yer a n d  Cla rk ,

Circuit Judges.

This cause came on to be heard on the transcript of the 
record from the United States District Court for the North­
ern District of Mississippi, and was argued by counsel;

On Consideration W hereof, It is now here ordered and 
adjudged by this Court that the order of the District Court 
appealed from, in this cause be, and the same is hereby,



29a

J  udgment

vacated; and that this cause he, and the same is remanded 
to the said District Court with directions in accordance with 
the opinion of this Court;

It is further ordered that plaintiffs-appellees-cross ap­
pellants pay to defendants-appellants-cross appellees, the 
costs on appeal to be taxed by the Clerk of this Court.

August 19, 1974

Issued as Mandate:



30a

Denial of Petition for Rehearing En Bane

UNITED STATES COURT OF APPEALS 
F if t h  C ir c u it  

O f f ic e  of t h e  Cler k

600 C a m p  S t r eet  N ew  O rlea n s , L a . 70130

E dward W . W adsw orth , Cl e r k

To A l l  C o u n se l  of R ecord 
73-2108

October 16, 1974

R e :  G ooden v . M is s is s ip p i S tate U niv ersity

Dear Counsel:
This is to advise that an order has this day been entered 
denying the petition (x) for rehearing, and no member of 
the panel nor Judge in regular active service on the Court 
having requested that the Court be polled on rehearing 
en banc (Rule 35, Federal Rules of Appellate Procedure; 
Local Fifth Circuit Rule 12) the petition (x) for rehearing 
en banc has also been denied.
See Rule 41, Federal Rules of Appellate Procedure for 
issuance and stay of the mandate.

Very truly yours,
E dward W . W adsw orth  

Cleric
By A n n e  G. P arent

Deputy Clerkcc: Mr. A.F. Summer 
Mr. Wm. A. Allain 
Mr. Ed Davis Noble, Jr. 
Mr. Melvvn R. Leventhal 
Mr. Jack Greenberg



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