Gooden v. Mississippi State University Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit
Public Court Documents
January 1, 1974

Cite this item
-
Brief Collection, LDF Court Filings. Gooden v. Mississippi State University Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit, 1974. 144996ad-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/81080d4a-a290-41f2-92be-befd230c5aca/gooden-v-mississippi-state-university-petition-for-a-writ-of-certiorari-to-the-united-states-court-of-appeals-for-the-fifth-circuit. Accessed July 12, 2025.
Copied!
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 MEILEN PRESS INC. — N . V C. 219