Monroe v. City of Jackson, TN Board of Commissioners Brief for Appellants

    r
IN THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT
*

« No. 73-2249

BRENDA K. MONROE, et al.,
Plaintiff s-Appe Hants,

vs.
THE BOARD OF COMMISSIONERS OF THE CITY 
OF JACKSON, TENNESSEE, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Western District of Tennessee 

Eastern Division

BRIEF FOR APPELLANTS

s
* •

Of Counsel:
KENNETH J. DIOUS
10 Columbus Circle
New York, New York 10019

AVON N. WILLIAMS, JR.1414 Parkway Towers404 James Robertson Parkway
Nashville, Tennessee 37219

J. EMMETT BALLARD116 West Lafayette Street 
Jackson, Tennessee 38301.

JACK GREENBERG 
JAMES M. NABRIT, III 
R. SYLVIA DREW 
NORMAN J. CHACHKIN 10 Columbus Circle 

New York, New York 10019
Attorneys for Plaintiffs- 
Appellants



I N D E X
Page

Table of Authorities................................  ii
Issues Presented for Review ........................  1
Statement

A. History of the Case ........................
B. Desegregation of the Jackson Elementary

Schools ....................................  4
1. The 1972-73 Elementary School Zones . . .  6
2. The Board's 1973-74 Proposals ..........  8
3. Plaintiffs' P l a n ......................  10
4. The District Court's Baling ............  12

C. Attorneys' Fees ............................. 15
ARGUMENT

I. The Board Failed To Carry Its Burden Of 
Showing That The Decision To Close South 
Jackson Elementary School Was Based Upon 
Objective, Non-Racial Factors. The Evidence 
Demonstrated Inconsistent Application Of 
Standards To Black And WThite School Facilities
A. Review Of The District Court's Decision 

Permitting The Board To Close South
Jackson Is Not Governed By Rule 52 . . . 16

B. Racial Discrimination In The
Desegregation Process ..................  18

C. Adequate Non-Racial Justification 
For Closing The South Jackson 
Elementary School Was Not Shown By
Defendants............................  21

1. Condition of the facility........  23
2. Location of the school............  25

i



Page

3. Declining enrollment and
uneconomical operation.......... . . 27

4. Segregated neighborhood ..........  30
5. Other f a c t o r s ....................  31
6. Unequal burden....................  32
7. S u m m a r y ..........................  33

II. Whatever The Fate Of South Jackson Elementary 
School, The Case Must Be Returned To The 
District Court To Complete The Process Of 
Desegregating Jackson's Elenentary Schools . . 34

III. The District Court Must Provide An Oppor­
tunity For The Submission Of Evidence And 
Make Finding® In Order To Permit Review Of 
Its Counsel Fqe A w a r d ......................  40

Conclusion.......... ................................  42

Appendix "A" —  Decision of the United States Court of
Appeals for the Fifth Circuit in 
Johnson v. Georgia Highway Express, Inc. 
(January 21, 1974)

Table of Authorities
Cases;

Adams v. School Dist. No. 5, Orangeburg, 444 F.2d
99 (4th Cir. 1971) ............................  40

Alexander v. Holmes County Bd. of Educ., 396
U.S. 19 (19§9)   18n

Bell v. West Point Municipal Separate School Dist.,
446 F.2d 1362 (5th Cir. 1971)..................  20n

Bradley v. Milliken, 484 F.2d 215 (6th Cir.),
cert, granted, 42 U.S.L.W. 3306 (Nov. 19, 1973) . 40n

Bradley v. School Bd. of Richmond, 472 F.2d
318 (4th Cir. 1972)............................  42n

n



Page

Brewer v. School Bd. of Norfolk, 456 F.2d 943
(4th Cir.)/ cert, denied, 406 U.S. 905 (1972) . . 39

t Brice v. Landis, 314 F. Supp. 974 (N.D. Cal. 1969) . . 33
Brown v. Board of Educ. of Bessemer, 464 F.2d 382

(5th Cir.), cert, denied, 409 U.S. 981 (1972) . . 39
» Brown v. Board of Educ. of DeWitt, 263 F. Supp.

734 (E.D. Ark. 1966) ..........................  23
Carr v. Montgomery County Bd. of Educ., 429 F.2d

382 (5th Cir. 1970)............................  23
Chambers v. Iredell County Bd. of Educ., 423

F.2d 613 (4th Cir. 1970) ......................  23
Cisneros v. Corpus Christi Independent School Dist.,

467 F.2d 142 (5th Cir. 1972), cert, denied, 413
U.S. 902, 922 (1973) ...................... . . 38

Clark v. Board of Educ. of Little Rock, 449 F.2d 
493 (8th Cir. 1971), cert, denied, 405 U.S.
936 (1972)   39

Clark v. Board of Educ. of Little Reck, 426 F.2d 
1035 (8th Cir. 1970), cert, denied, 402 U.S.
952 (1971)    39

» Davis v. Beard of School Comm'rs of Mobile, 402
U.S. 33 (1971) ................................  2, 6

Davis v. School Dist. of Pontiac, 443 F.2d 573
(6th Cir.), cert, denied, 404 U.S. 913 (1971) . . 17, 19, 30

Goss v. Board of Educ. of Knoxville, 482 F.2d 1044 
(6th Cir. 1973), cert, denied, 42 U.S.L.W.
3423 (Jan. 21, 1974)   16, 18n

Hall v. St. Helena Parish School Bd., 417 Fi2d 
801 (5th Cir.), cert, denied, 396 U.S. 904
(1969)     39

Haney v. County Bd. of Educ., 429 F.2d 364 (8th
Cir. 1970) ....................................  17n, 20

Hill v. Franklin County Bd. of Educ., 390 F.2d
. 583 (6th Cir. 1968)..............................  20n

Jackson v. Wheatley School Dist., 430 F.2d 1359
(8th Cir. 1970)..................................  23, 30

Johnson v. Georgia Highway Express, Inc., 5th
Cir. No. 72-3294 (Jan. 21, 1974) ..............  41

Kelley v. Guinn, 456 F.2d 100 (9th Cir. 1972),
cert, denied, 413 U.S. 919 (1973)..............  36n

iii



Page

Kelley v. Metropolitan County Bd. of Educ., 463 
F.2d 732 (6th Cir.), cert, denied, 409 '
U.S. 1001 (1972) ..............................  38, 39

Keyes v. School Dist. No. 1, Denver, 413 U.S.
189 (1973) ....................................  18n, 19

Loving v. Virginia, 388 U.S. 1 (1967) ..............  33n
McFerren v. County Bd. of Educ., 455 F.2d 199

(6th Cir.), cert, denied, 407 U.S. 934 (1972) . . 20n, 23
McFerren v. County Bd. of Educ. of Fayette County,

Civ. No. C-65-136 (W.D. Tenn., Aug. 4, 16, 1973). 20, 25
McLaughlin v. Florida, 379 U.S. 184 (1964) . . . . . .  33n
Medley v. School Bd. of Danville, 482 F.2d 1061

(4th Cir. 1973), cert, denied, 42 U.S.L.W. 3423
(Jan. 21, 1974)................................  36n

Mims v. Duval County School Bd., 447 F.2d 1330
(5th Cir. 1971)................................  19

Mims v. Duval County School Bd., 329 F. Supp. 123
(M.D. Fla.), aff'd 447 F.2d 1330 (5th Cir. 1971). 27

Monroe v. Board of Comm'rs, 453 F.2d 259 (6th Cir.),
cert, denied, 406 U.S. 945 (1972)..............  2 , 4-6/ 41

Monroe v. Board of Comm'rs, 427 F.2d 1005 (6th Cir.
1970)..........................................  39

Monroe v. County Bd. of Educ., 439 F.2d 804 (6th
Cir. 1971)   12n

Newburg Area Council, Inc. v. Board of Educ., 6th
Cir. No. 73-1403 (December 28, 1973) ..........  16, 36-37, 39

Northcross v. Board of Educ. of Memphis, 412 U.S.
427 (1973)     15

Northcross v. Board of Educ. of Memphis, 466 F.2d
890 (6th Cir. 1972).............................  37 , 39, 40n

Palmer v. Thompson, 403 U.S. 217 (1971)   18n
Pitts v. Board of Trustees of DeWitt, 84 F. Supp.

975 (E.D. Ark. 1949)   23
Quarles v. Oxford Municipal Separate School Dist.,

Civ. No. WC6962-K (N.D. Miss., Jan. 7, 1970) . . 20
Robinson v. Shelby County Bd. of Educ., 442 F.2d

255 (6th Cir. 1971).............................  2
Rolfe v. County Bd. of Educ., 391 F.2d 77 (6th

Cir. 1968)   20n

IV



Page

Spangler v. Pasadena City Bd. of Educ., 311 F.
Supp. 501 (C.D. Cal. 1970) ....................  17, 30

Sparks v. Griffin, 460 F.2d 433 (5th Cir. 1972) . . .  23
Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971)..............................  2, 6, 35
United States v. Jefferson County Bd. of Educ., 372 

F.2d 836 (1966), aff'd en banc, 380 F.2d 385 
(5th Cir.), cert, denied sub nom. Caddo Parish 
School Bd. v. United States, 389 U.S. 840 (1967)• 23

United States v. Scotland Neck City Bd. of Educ.,
407 U.S. 484 (1972)............................  20n

United States v. Wilcox County Bd. of Educ., 454
F. 2d 1144 (5th Cir. 1972).....................  23

Statutes and Rules:
20 U.S.C. § 1 6 1 7 .................................. - 15, 41
F.R.C.P. 5 2 ........................................  17n

v



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

No. 73-2249

BRENDA K. MONROE, et al.,
Pla.i.ntif fs-Appellants,

vs.
THE BOARD OF COMMISSIONERS OF THE CITY OF JACKSON, TENNESSEE, et al.,

Defendants-Appellees„

/appeal from the United States District Court 
for the Western District of Tennessee 

Eastern Division

BRIEF FOR APPELLANTS

Issues Presented for Review

1. Did the Board of Commissioners carry its burden of 
demonstrating that the proposed closing of formerly black
South J^kson y School was based upon non-racial
grounds?

2. Have the Board of Commissioners and/or the district 
court yet achieved the constitutionally required dismantling 
of Jackson's dual school system when the plan ordered into



effect by the court (a) utilizes limited non-contiguous 
zoning of black students only; and (b) results, in this small 
half-white school system, in the operation of one elementary 
school over 98% black, one 75% black, and two less than 30% 
black?

3. Did the district court commit error in arbitrarily 
fixing an inadequate counsel fee award to plaintiffs, without 
a hearing, opportunity for submission of evidence, or specific 
findings indicating the court's method of computation?

Statement

A . History of the Case

This school desegregation suit, originally commenced in 
1963, appears before this Court for the fourth time. See • 
Monroe v. Board of Comm'rs, 453 F.2d 259 (1972). The detailed
history of the litigation prior to the recent district court 
proceedings is set out in this Court's decision, ibid., 
remanding the matter to the district court for reconsideration 
of the elementary school assignment plan in light of Swann v. 
Charlotte-Mecklenburg Bd. of Educ,, 402 U.S. 1 (1971); Davis
v. Board of School Comm'rs, 402 U.S. 33 (1971); and Robinson
v. Shelby County Bd. of Educ., 442 F.2d 255 (6th Cir. 1971).

Upon receipt of the mandate, the district court held
1/evidentiary hearings commencing August 29, 1972 (see 5a-171a),

T T  Citations to Appendix on these cross-appeals, Nos. 73-2249, 
-2250 and -2251.

-2-



in which the plaintiffs, the Board of Commissioners, and the 
United States, as amicus curiae, participated. The Board of 
Commissioners [which also serves as the Jackson system's 
school board, (257a)] has consistently maintained the position 
that it was operating in conformity to constitutional require­
ments, and the Superintendent testified that no significant 
changes in pupil assignment were contemplated for 1972-73 
(39a).

Following that hearing, the district court permitted the 
parties and the amicus curiae to submit proposed Findings of 
Fact and Conclusions of Law, extending the time for this 
purpose in order to allow study of the complete transcript 
of proceedings. On March 15, 1973, the United States filed 
a comprehensive Memorandum recommending, inter alia, that the 
district court require further desegregation of the elementary 
schools (see 188a) . In response thereto, the Board of 
Commissioners again insisted that it was operating in full 
compliance with the Fourteenth Amendment (189a) but proposed 
the closing of the formerly all-black South Jackson Elementary 
School for the following school year with reassignment of 
its remaining students in a manner "which will result in 
greater integration of these schools." (ibid.) .

Plaintiffs objected to the sufficiency of these steps 
to achieve adequate dismantling of Jackson's dual system, 
and to the proposal to close South Jackson School (195a-197a) 
and at the subsequent hearings in May, 1973, presented an

-3-



alternative desegregation plan (527a-530a) developed by their
2/expert witness, Dr. Michael Stolee (520a-526a; 272a-373a).

In a Memorandum Opinion issued July 17, 1973 (597a-625a)
and implementing Order entered nunc pro tunc on August 28,
1973 (632a-633a), the district court allowed the South Jackson
closing, rejected the submissions of both the Board of Commis­
sioners and the plaintiffs, and directed certain modifications
of the Board of Commissioners' plan for the 1973-74 school

3/
year. This appeal and cross-appeals followed.

B. Desegregation of the Jackson Elementary Schools

This appeal questions the adequacy of desegregation in
the Jackson, Tennessee elementary schools. Excerpts from
this Court's 1972 opinion provide the appropriate background:

. . . In August of 1968 . . . [t]he Board
responded by submitting a plan containing 
the identical geographic zones drawn at 
the inception of this litigation . . . .

27 At the May hearings, the Superintendent revealed that a 
contract of sale for the South Jackson school property had 
been executed between the City of Jackson (Board of Commis­
sioners) and the Jackson Housing Authority in March, 1973 and 
a warranty deed of conveyance signed (554a-557a) although 
district court approval of the school's closing had not yet 
been obtained. The plaintiffs thereupon filed a petition for 
contempt, to add the Housing Authority as a party and to issue 
injunctive orders to maintain the status quo pending judicial 
determination of the propriety of the closing and property 
transaction (531a-544a). The Housing Authority was joined 
(578a-580a) and the district court's orders to date have 
preserved the school from destruction pending determination 
of this appeal (ibid.; 632a-633a) .
3/ The district court also awarded plaintiffs' counsel $1,500.00 in attorneys' fees, which had been sought by motion 
during the proceedings (583a); on this appeal plaintiffs con­
test the amount of the award, while on the cross-appeal the 
City of Jackson contests the appropriateness of any such award.

-4-



On May 28, 1969, the District Court ordered 
the elimination of the free transfer provi­
sion, and ordered the revision of school 
zones to accomplish greater desegregation.
Following entry of that order, the Board 
requested a stay with respect to the elim­
ination of the free transfer provision and 
the revision of the zones. The Court granted 
the motion with respect to the zones, but 
refused to stay the elimination of the free 
transfer provision. On June 19, 1970, the
order of the District Court was affirmed by 
this Court. 427 F.2d 1005 (6th Cir. 1970).
One month later, the school board sought 
approval of an amended plan of desegregation 
for the 1970-71 school year which retained 
the identical zones which the District Court 
had ordered altered. . . . [N]o alternative
zones for the elementary grades were pro­
vided . . . .
. . . [T]he litle IV Center . . . concluded
that geographic factors and residential 
housing patterns were such that no other 
zoning patterns "would be likely" to signif­
icantly alter the existing racial imbalance 
. . . it proposed some adjustments or
alterations in the existing zones which admittedly differed very little from those 
then in use. The report then suggested two 
further alternative plans: (1) non-contiguous
zoning might be utilized if school supported 
transportation could be instituted, or (2) 
adjacent schools might be paired and the 
boundary zones enlarged to encompass the new 
area. Several pairings were suggested, any 
of which would result in greater integration 
than is possible with the present method of 
zoning.
. . . [T]he District Court ordered that theproposed zone changes be adopted. . . . The
plaintiffs contend that the District Court 
was obligated to adopt either the pairing or 
the non-contiguous zoning proposal of the 
Title IV Center because these alternative 
plans provided for greater desegregation than 
the zones adopted by the Court . . . .
. . . [F]our of the nine elementary schools
are integrated in ratios similar to those 
just cited for the junior high schools; but

-5-



. . .  in the five remaining elementary schools, 
three are over 90% black and two are over 90% white. Integration in these five schools is 
minimal because the location in the city is 
such that no conceivable zoning change would 
produce any substantially greater integration.
Regardless, however, of these salutary evidences 
of accomplishment, the possibility exists that 
even greater accomplishment might result from a 
further study of the situation in the light of 
Swann, and of Robinson and Davis. The cause will therefore be remanded to give the District 
Court opportunity for such consideration.

(453 F.2d, at 261-62). The district court did reassess the 
matter in light of Swann and Davis; it accepted the use of 
pupil transportation as an essential tool which had to be 
used in Jackson to bring about what it considered a constitu­
tionally adequate measure of desegregation (613a-619a). In 
our view, however, the district court stopped short of requiring 
that the tool be used in an effective manner; the continued 
retention of even one all-black school in this small system, 
together with three other facilities which we submit are • 
racially identifiable in the context of the entire plan, is 
constitutionally unacceptable.

1. The 1972-73 elementary school zones

As this Court noted in its 1972 opinion, Jackson's 
elementary school zones had remained virtually intact from the 
inception of the litigation and the implementation of the 
Title IV Center's rezoning recommendations in 1971-72 made 
only minimal changes. This conclusion was substantiated at 
the August, 1972 hearings before the district court (18a-19a,

-6-



22a, 30a, 54a). The only appreciable effect of the Center's 
recommendations shifted approximately fifty black students 
from South Jackson Elementary School to West Jackson Elementary 
School (52a-53a). And the October, 1972 enrollment report 
filed by the Board of Commissioners demonstrated little prog­
ress in eradicating the vestiges of Jackson's dual elementary 
system: three schools were more than 99% black and two were
more than 95% white (185a).

The Superintendent of Schools testified, however, that 
no further desegregation steps were contemplated by the Board 
of Commissioners (39a). He had studied the non-contiguous 
zoning and contiguous pairing alternatives discussed in. the 
Title IV Center report but concluded they were impracticable 
of execution in Jackson because they would lead only to reseg­
regation within the school system and/or white flight from • 
the district (58a-64a, 84a, 89a, 101a, 106a-108a, 114a-115a).
He admitted that one-race schools remained in Jackson because 
residential patterns were segregated and schools had been 
located within one-race neighborhoods (44a); and that the 
schools had been designed and located to accommodate children 
in one-race neighborhoods (72a-76a); but he expressed the view
that eventual housing integration was the only method of1/desegregating the Jackson public schools (96a). His testimony

The Superintendent admitted, however, that housing segre­
gation was not lessening, but remaining at the same level, in 
Jackson (103a). See also, 132a (Mayor believes housing 
integration will occur in future, even though it has not yet taken place).

-7-



also demonstrated that such elementary school desegregation 
as existed in Jackson in 1972-73 resulted from changing 
residential patterns in school zones which were formerly 
white and into which blacks now were able to move (46a-48a). 
This major population shift coincided with the opening of 
7\ndrew Jackson Elementary School in the extreme northwest 
portion of the City and the elimination of the free transfer 
option (136a-138a, 143a, 171a).

2. The Board's 1973-74 proposals

After the transcript of the August, 1972 hearings became 
available, the United States submitted a Memorandum in which 
it urged that further desegregation of Jackson's elementary 
schools was required (see 188a). The Board's response con­
tended that it was already operating a unitary system (189a) 
but added that the Board now found it necessary to close the 
South Jackson Elementary School and that the student reassign­
ments which would thereby be necessitated would improve ele­
mentary school integration (ibid.). Treating this Response 
as the equivalent of submission of a new plan, plaintiffs 
filed Objections thereto, which stated in part as follows:

1. Defendants have not and cannot carry their 
burden of establishing that the closing of the 
formerly all-black South Jackson Elementary 
School is related solely to non-racial objec­
tive criteria as required by law.
2. Closing of said South Jackson Elementary 
School places an unwarranted, unfair and 
unequal burden of school desegregation upon 
black school children and causes school deseg­
regation in the City of Jackson to operate 
unequally as to them.

-8-



3. The revised geographic zones proposed by- 
defendants will result in the continued mainte­
nance of one virtually all black elementary 
school (Lincoln), one virtually all white elementary school (Andrew Jackson) and will substantially increase the degree of segregation 
in two other elementary schools (Alexander and 
parkview). . . .

(195a). Plaintiffs also engaged the services of an expert 
witness in educational administration and desegregation, Dr. 
Michael Stolee (520a-526a), who prepared an alternative plan 
of desegregation (527a-530a). Hearings were held May 10 and 
May 22-23, 1973.

At these hearings, the Superintendent testified in
support of the Board" contention that it was operating a
unitary system and was in compliance with constitutional
requirements; he said the proposed attendance zone changes were
not part of a desegregation effort but were necessitated only
because the Board found it otherwise necessary to close the

5/ . .South Jackson School (386a). While black students living 
within the former South Jackson zone would be dispersed among 
the remaining eight elementary schools under the Board s 
proposal, zone changes were basically contiguous (218a-219a, 
224a-227a) and would not have altered the continued operation 
of Andrew Jackson and Lincoln schools as virtually all-white 
and all-black schools, respectively (191a).

W ~  Because consideration of the legality of the Board's decision to close South Jackson requires detailed evaluation 
of the evidence, the testimony and exhibits will not be 
summarized here but will be discussed in the course of the 
Argument, infra.

-9-



The Board did not propose to provide transportation for 
the reassigned black students; neither the Superintendent nor 
any of the Commissioners had investigated the cost of providing 
buses or utilizing the city—owned public bus system (265a, 271a, 
412a; see 117a-118a).

3. Plaintiffs' Plan

When the May, 1973 hearings resumed, plaintiffs presented
the plan of desegregation developed by Dr. Stolee for the
Jackson elementary schools (527a-530a). Unlike the Board, Dr.
Stolee proposed the retention of South Jackson because it
was, in his opinion, educationally adequate (284a-286a, 29ja)
and because the move to close it seemed to him not coincidental
but typical of the national pattern of discrimination among
school districts required to desegregate (277a). Using one
non-contiguous pairing (309a) and one non-contiguous clustering

6/
(310a) requiring the transportation of 925 students (312a),
Dr. Stolee proposed to eliminate all racially identifiable
schools and thus to desegregate the entire system (319a). The
attendance zones for schools not involved in the pair and

7/
cluster would remain unchanged (306a).

6/ There are approximately 7500 students in the system (644a). 
Slightly more than half this number are in the elementary grades 
(ibid. ) .
7/ Dr. Stolee explained that he considered these schools 
adequately desegregated, in the context, of the Jackson system, 
with their 1972-73 zone lines in effect. (306a). He recognized, 
however, that enrollments at these schools were affected by the 
existing majority-to-minority transfers, and suggested an amend­
ment to his plan altering a line between Lincoln and Whitehall 
should the number of black students transferring into Whitehall 
drop significantly (308a).

-10-



Dr. Stolee testified that he found the Board's proposal 
unacceptable as a desegregation measure since it failed'to 
eliminate racially identifiable schools (276a-277a); that is, 
schools attended by proportions of black and white students 
which differed significantly from the system-wide ratio (302a). 
Under cross-examination, he denied that he had attempted to 
achieve "racial balance," but stated that he was particularly 
concerned with the five racially identifiable elementary 
schools noted by this Court in 1972, and that he had sought 
a method of effectively desegregating each with the least pupil 
transportation (356a-358a; see also, 318a). The greatest 
distance between any of the paired or clustered schools was 
determined by the Board to be between 4.2 and 5.0 miles (183a); 
Dr. Stolee testified that he drove between the schools, 
following posted limits, along a 4.9-mile route and covered 
the distance in thirteen minutes (314a). He recommended school 
to-school busing and estimated that by staggering school 
opening hours, the plan could be implemented with the purchase 
of only five school buses, including one for a spare (319a).

The Superintendent of Schools testified in rebuttal
that he was opposed to a plan requiring the expenditure of
funds for pupil transportation (383a), which was not a priority

8/of the Jackson school system (413a-414a). He summarized his 
grounds for rejecting Dr. Stolee's proposals as concern for

K7 The Board's annual budget is approximately $4 million, of 
which the Stolee plan might require slightly less than $50,000 
for initial capital expenditure (to purchase buses) (325a-326a)

-11-



"community acceptance and cost" (409a). However, he had
2/investigated neither the Madison County busing plan nor the 

amount of State reimbursement for operating expenses to which 
Jackson might be entitled (416a-417a). Rather, despite his 
recognition that some of the "school neighborhoods" defined 
by Jackson's attendance areas were very extensive (400a-401a), 
that "residential neighborhoods" reflect social and economic 
homogeneity (402a), and that more black than white families 
in Jackson are below the poverty line (425a), the Superintendent 
nonetheless sought to preserve the "neighborhood school" 
concept because it would encourage parental allegiance and 
support of particular -schools (403a).

4. The District Court's ruling

On July 17, 1973, the district court filed a Memorandum 
Opinion (597a-625a) which approved the Board's request to close 
South Jackson Elementary School (606a-612a) but found the 
Board's proposal for elementary student assignment inadequate 
because it "does not sufficiently meet the requirement of ful­
filling its affirmative duty to eliminate discriminatory effects 
of the past. Green v. New Kent County School Board, 391 U.S. 
430, 438 (1968)." (616a). The district court also rejected
plaintiffs' plan/ both because as drafted it contemplated the

w ~  Monroe v. County Bd. of Educ. of Madison County, 439 F.2d 
804 (6th Cir. 1971). Jackson is located within Madison County, 
Tennessee. See also, Seals v. Quarterly Court of Madison 
County, No. 73-1673 (pending).

-12-



, 10/ .continued use of the South Jackson facility (ibid.) and 
because it required greater pupil transportation than the 
court felt necessary (cf. 617a). Instead, without directing 
further submission of plans by any party, the district court 
undertook to

prescrib[e] a plan involving a minimum of 
transportation and some elementary school 
zone or district changes which this Court 
believes will meet constitutional require­ments with the least disruptive effects.
This plan has been fashioned in recognition 
of the -fact, among others alluded to, that 
the defendants in making the progress here­
tofore noted have not totally defaulted in 
their duty to submit an acceptable plan, and because it has never before operated a 
bus system as was the case in Swann, supra, and to some degree in Davis, supra (both in 
Mobile and in Pontiac), and because sub­
stantial progress has already heretofore 
been made.

(617a). The rudiments of the district court's plan are as 
follows: the remaining students residing within the former
South Jackson Elementary School zone, rather than being 
reassigned to contiguous elementary schools, would be trans­
ported to Highland Park and Andrew Jackson Schools, as well

11/as to Washington-Douglas; and certain other boundary lines 
would be altered. The following table compares the racial 
composition of each elementary school's student body as pro-

10/ nr.stolee testified that closure of South Jackson would require the drafting of a new plan but that it could be based 
upon the same principles as his plan: effective desegregation
(346a).
11/ The district court's plan contemplated assignment of additional black students from the former South Jackson zone 
to Highland Park and Andrew Jackson on a rigid, mathematical 
basis (618a).

-13-



jected under the various plans, and as actually resulted in 
both 1972-73 and 1973-74:

School
% Black, Actual 
1972-73— -/

Projected 
% Black, Board 1s Plan 13/

Projected 
% Black, 

Plaintiffs 1 
Plan 14/

Proj ected 
% Black,

• Court1s 
Plan 15/

% Black, Actual 1973-74 i§/
Alexander 36 % 27 % 36 % 40 % 45 %
Andrew Jackson 5 % 4 % 55 % 21 % 28 %
Highland Park 3 % 24 % 50 % 18 % 24 %
Lincoln 99 % 99 % 59 % 98 % 98 %
Parkview 46 % 70 % 46 % 53 % 60 %
South Jackson 98 % — 54 % — —

Washington-
Douglass 98 % 48 % 53 % 79 % 75 %

West Jackson 42 % 52 % 42 % 39 % 43 %
Whitehall 58 % 62 % 58 / 57 % 56 %

The district court's plan requires the transportation of 
approximately 200 students (618a-619a, 626a-627a) from the former 
South Jackson zone to Andrew Jackson and Highland Park Schools, 
a distance of up to 5.9 miles (183a).

/ (185a). includes majority-to-minority transfers.
13/ (191a) . Projections do not anticipate majority-to-minority transfers.
14/ (527a-529a). Projections anticipate continued majority-to- 
minority transfers to Whitehall sufficient to maintain ratio.See note 7 supra.
15/ (G2la). Pro jections anticipate majority-to-minority 
transfers into Alexander from Lincoln and Whitehall.
16/ (644a). Includes majority-to-minority transfers.

-14-



C . Attorneys 1 Fees

After the May, 1973 evidentiary hearings, plaintiffs 
moved for an award of counsel fees and litigation expenses 
(583a) based in part upon Section 718 of the Education Amend­
ments of 1972, 20 U.S.C. § 1617 (584a-585a). (See Northcross 
v. Board of Educ. of Memphis, 412 U.S. 427 (1973)). The memo­
randum incorporated by reference in the motion asked the 
district court "to fix a date for hearing thereon or otherwise 
designate appropriate procedure for determination of said 
Motion" (585a). Without receiving evidence or argument, or 
holding a hearing, the district court'disposed of the prayer 
for a counsel fee award in its July 17, 1973 Memorandum Opinion 
(624a-625a). Expressing doubt whether § 718 authorized an 
award in the circumstances of this case, the court nonetheless 
determined to make an award "in the exercise of equitable 
discretion" (625a). Although it had no information concerning 
the amount of fees requested or the time invested in the -case 
by plaintiffs' counsel, the district court fixed the award at 
$1500.00 (625a, 633a).

Following entry of an Order on the opinion (632a-633a), 
these appeals and cross-appeals followed.

15-



ARGUMENT

I.
The Board Failed To Carry Its Burden Of.Showing 
That The Decision To Close South Jackson 
Elementary School Was Based Upon Objective, Non- 
Racial Factors. The Evidence Demonstrated 
Inconsistent Application Of Standards To Black 
And White School Facilities.

A. Review of the District Court's Decision Permitting TheBoard to Close South Jackson Is Not Governed By Rule 52.

This Court has demonstrated a very substantial disinclina­
tion, in school desegregation cases, to substitute its judgment 
for that of the district courts in assaying factual determina­
tions. E.g., Goss v. Board of Educ. of Knoxville, 482 F.2d 1044 
(6th Cir. 1973), cert, denied, 42 U.S.L.W. 3423 (Jan. 21, 1974); 
Robinson v. Shelby County Bd. of Educ., 467 F.2d 1187 (6th Cir.
1972) . Compare Newburg Area Council,_Inc. v. Board of Educ.,
6th Cir. No. 73-1403 (December 28, 1973). For that reason, 
it is important to recognize, as the Court reviews this matter,
that the district court's decision to permit the closing of

11/Jackson's historically black South Jackson School does not 
rest upon factual findings which must be accepted as presump- i

i 7 7 Although presently used as an elementary school, South 
Jackson was the city's only black secondary school from 1936 
to 1957 (255a); its opening may well have marked the first
time the city provided any secondary education to black 
students.

-16-



tively correct. There are no-contested factual issues, for 
example, on whose resolution this matter conclusively turns. 
Plaintiffs challenge not the verity of the "factors" listed 
in support of the district court's determination, but the legal 
significance to be accorded them in light of the other, equally 
uncontested, facts of record. When all the evidence is con­
sidered, the inconsistent approach of the school authorities 
with respect to every factor by which the South Jackson closing 
is sought to be justified is readily apparent and it becomes 
impossible to hold as a matter of law that a non-racial basis 
therefor has been demonstrated. Cf. Davis v. School pist, of 
Pontiac^ 443 F.2d 573, 576 (6th Cir.), cert. denied, 404 U.S.
913 (1971); Spangler v. Pasadena City Bd. of Educ.. 311 F. Supp. 
501 (C.D. Cal. 1970).

The essential matter to be established here, however, 'is 
simply that the ultimate determination of the district court,
i.e., that

the closing [is not] . . . associated with
unconstitutional racial overtones. See 
Robinson v. Shelby County, supra. The

18/

.We do not mean to suggest that cases in which black school closings are challenged may never turn upon clearly factual 
determinations. For example, if a school system contends that 
a school facility is irreparably deteriorated and structurally 
unsound or otherwise clearly unusable for educational purposes, 
c_f. Hanev v. County Bd, of Educ.. 429 F.2d 364 (8th Cir. 1970), 
then the existence of that condition vel non may foreclose any' 
further inquiry into possible racial motivation, and a lower 
court finding that the condition exists might properly be 
reviewed in accordance with F.R.C.P. 52. In this case, no such 
contentions were made by the Board (cf. 285a), and the district 
court's "findings" are all qualified, relative statements (see 606a-611a) . --------  ---

-17-



defendant has carried its burden in this par­
ticular. Haney v. Sevier County Board of • 
Education, 429 F.2d 364 (8th Cir. 1970).
[612a]

represents a legal determination fully reviewable by this
Court, rather than a factual finding as to which plaintiffs19/
bear some extra special burden of persuasion on appeal.

B. Racial Discrimination in the Desegregation Process

The district court correctly recognized (612a) that 
because the Board of Commissioners had not sought to close the 
South Jackson School until confronted with the necessity of 
desegregating its system, the burden of demonstrating that 
the move was grounded upon non-racial factors was upon the 
school board (612a). This'is appropriate, because —  absent 
some dramatic testimonial recantation of the kind which occurs 
far more frequently on the television screen than in the 
courtroom —  a finding that the actions of an official body 
were motivated by race rests upon inferences drawn by the

20/
trier of fact from a multitude of circumstances and events.

Thus we do not ask this Court on this appeal, as it has 
apparently been asked in other cases, to depart from its traditional role ws a reviewing tribunal because of the nature 
of the litigation and the special responsibilities which argu­
ably were imposed upon all federal courts by Supreme Court 
decisions such as Alexander v. Holmes County Bd. of Educ., 396 
U.S. 19 (1969). See Goss v. Board of Educ. of Knoxville, supra,
482 F.2d, at 1047.
20/ Indeed, the difficulty of determining the motivation of 
an agency of government, see Palmer v. Thompson, 403 U.S. 217 
(1971), is one of the primary justifications for application of 
the burden-shifting principle. See Keyes v. School Dist. No.
1, Denver, 413 U.S. 189, 261-62 (1973) (Rehnquist, J., dissent­
ing) .

-18-



For example, this Court approved such a finding in a case in
■which the plaintiffs bore the burden of proof:

Although, as the District Court stated, each 
decision considered alone might not compel 
the conclusion that the Board of Education 
intended to foster segregation, taken together, 
they support the conclusion that a purposeful 
pattern of racial discrimination has existed in the Pontiac school system for at least 15 years.

Davis v. School Dist. of Pontiac, 443 F.2d 573, 476 (6th Cir.), 
cert, denied, 404 U.S. 913 (1971), cited with approval in 
Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 210 (1973).

The notion retains importance even where the burden rests 
upon the school authorities. See Keyes, supra. For where 
school orficials must establish that their decisions were not 
based on impermissible racial considerations, it follows that 
they ought to be able to show a consistency of decision-making 
unrelated to race; and further, that ostensibly neutral prin­
ciples which coincide with racially differentiating factors 
when applied to a particular system, do not serve to meet the 
school authorities' burden of proof. See generally, Mims v. 
Duval County School Bd., 447 F.2d 1330 (5th Cir. 1971). Thus, 
a proposal to close black schools because of their physical 
condition, when the school system also seeks to maintain white 
schools in worse condition, could hardly meet the school board's 
burden of proof, no matter what the condition of the black 
schools was. Likewise, a school system's request to close a 
black school despite its patent inability to house the students 
in other facilities, would clearly indicate a racial purpose.

-19-



E.q-/ Quarles v. Oxford Municipal Separate School Dist., Civ.
No. WC6962-K (N.D. Miss., Jan. 7, 1970) (oral opinion). Or
where school authorities are themselves responsible, through
discrimination, for the very conditions by which they seek to
justify the closing of black schools, such conditions hardly
constitute "non-racial" factors. E,g,, McFerren v. County Bd.
of Educ. of Fayette County, Civ. No. C-65-136 (W.D. Tenn., Aug.

21 /4, 16, 1973).

Proposals to close black schools which coincide with
implementation of constitutionally required desegregation,
then, place the burden on school authorities to demonstrate
that racial considerations did not result in the decision to
cease operation of these facilities. If that burden is not met,
then such closings are presumptively discriminatory and imper-

22/missible. Haney v. County Bd. of Educ., supra. And the

21/ . ~— f ^Occasionally, school authorities seek to justify the 
extinction of black schools on outright racial grounds which 
they relate to the success of any desegregation program: i.e., 
that white students will flee the system rather than attend 
formerly black facilities. E_.f[. > Bell v. West Point Municipal 
Separate School Dist.. 446 F.2d 1362 (5th Cir.‘ 1971) . Where that is the sole reason offered for closing a school, it is 
clearly unacceptable. Bell, supra. However, where it is claimed 
to be one factor among others, it often masquerades as a legit­
imate concern for achieving the most effective desegregation.
Cf. United States v. Scotland Neck City Bd. of Educ., 407 U.S. 
484^ (19/2). In such a situation, the courts must weigh the claim to determine whether it reflects sincere effort or 
Pptense and the persuasiveness of the other rationales for the school closing is determinative.
2/// Similar buiden—shifting and presumption principles have been 
applied to teacher terminations during the desegregation process See McFerren v. County Bd. of Educ.. 455 F.2d 199 (6th Cir.) 
cert, denied, 407 U.S. 934 (1972); Ilill v. Franklin County Bd. 
o_f—Educ. , 390 F. 2d 583 (6th Cir. 1968);- Rolfe v. Countv Bd. of Educ., 391 F.2d 77 (6th Cir. 1968). -------------

-20-



presumption cannot be met by identifying characteristics of 
black schools which, if they require discontinuance of the 
black facilities, would also mandate closing white schools 
which are no different, or by listing deficiencies which exist 
only because of conscious policies carried out in the past by 
the school authorities. (See 292a). We now examine the record 
in this case in light of these principles.

C. Adequate Non-Raclal Justification For Closing The South 
Jackson Elementary School Was Not Shown By Defendants

On April 9, 1973, while the issue of what additional 
elementary school desegregation was constitutionally required 
lay before the district court, the Board of Commissioners first 
sought permission to close the South Jackson Elementary School, 
which had always been a black school (e,g., 174a). The appli­
cation, filed in response to a memorandum submitted by amicus 
curiae United States of America urging new initiatives to 
desegregate the elementary schools, listed the following reasons

1. The South Jackson School is in the urban 
renewal area and the school property has been 
acquired by the Jackson Housing Authority in 
furtherance of its urban renewal project.
2. Student enrollment at the South Jackson 
School has been declining for the past five 
years. This has been due principally because 
of the removal of families from the urban 
renewal area. 3
3. The South Jackson School building is anti­quated, being the oldest building now being 
used as a public school in the City of Jackson.
The building is no longer adequate from an 
educational standpoint.

-21-



4. It is not economically sound to continue 
to operate the South Jackson School.

(190a). The obligation of the district court was to evaluate 
these grounds in the light of the evidence developed at the 
hearing, to determine whether they were the real reasons for 
closing the facility or merely a screen to mask racial motiva­
tions. We review accordingly not merely the district court's 
ultimate conclusions, but also the evidence in the record whi 
supports or contradicts those conclusions.

The district court's opinion contains a lengthy discursive 
section relating in part to the Board's proposal to close 
South Jackson (602a-6l2a). The court summarizes its conclusions, 
however, as follows (611a-6l2a):

Because (1) it is a comparatively inferior 
facility due to its age and state of repair,
(2) it is located in the midst of a designated 
and rapidly changing urban renewed 1 commercial 
area with little nearby present residential 
potential, (3) the steady decline in attendance 
of elementary school children there makes it 
impractical and unduly burdensome for its 
continued operation, and (4) there is no 
prospect of racial mixture in the school through 
changes in neighborhood residential patterns, the Court approves the requested closure of 
South Jackson Elementary School . . . [subject
to mandatory assignment changes required by the Court, see Argument II, infra).

We respectfully submit that none of these factors, singly or 
in conjunction, establishes (in the context of the entire record) 
that the Board's proposal is not racially motivated; and for 
that reason, the district court should have required the 
continued use of the South Jackson facility.

-22-



1. condition of the facility. Plaintiffs do not suggest
that white children must be assigned to ramshackle, deteriorat­
ing, structurally unsound, formerly black schools for the sake 
of some abstract principle. See, e.g., Carr v. Montgomery 
County Bd. of Educ., 429 F.2d 382 (5th Cir. 1970); Chambers v. 
Iredell County Bd. of Educ., 423 F.2d 613 (4th Cir. 1970).
Black students should never have been required to attend such 
schools either, but racism often kept them there. See, e.g., 
Pitts v. Board of Trustees of DeWitt, 84 F. Supp. 975 (E.D. Ark.
1949) , Brown v. Board of Educ. of Dewitt, 263 F. Supp. 734 
(E.D. Ark. 1966); United States v. Jefferson County Bd. of Educ., 
372 F.2d 836, 891-92 (1966), aff'd en banc, 380 F.2d 385 (5th 
Cir.), cert., denied sub nom. Caddo parish School Bd. v. United 
States, 389 U.S. 840 (1967); United States v. Wilcox County 
Bd. of Educ., 454 F.2d 1144, 1145 (5th Cir. 1972).

The question which must be answered when a school board 
seeks to close a black facility during the desegregation'process, 
and advances justifications related to physical condition, is 
whether the building is in fact beyond salvageable use for 
educational purposes, or whether the defects noticed only when 
white student occupancy is contemplated are more presumed than 
real. Cf. McFerren v. County Bd. of Educ., supra, 455 F.2d 199; 
Sparks v. Griffin, 460 F.2d 433 (5th Cir. 1972); Jackson v. 
Wheatley School Dist., 430 F.2d 1359 (8th Cir. 1970). As Dr. 
Stolee put it in his testimony [discussing another ground 
offered by the Board]: "As long as the school stays all black,
we are willing to do it, but then, as soon as it appears that

-23-



we are going to have to desegregate the school, then, and at 
that point, [we have these other concerns]" (289a-290a).

The South Jackson Elementary School is not, as the Board 
stated in its written submission (190a), "the oldest building 
now being used as a public school in the City of Jackson," 
although it is the oldest elementary facility (200a). it is 
instructive to consider the fact that the original (white) 
Jackson High School, although built eight years earlier (173a), 
is still in use as the west campus of the system's consolidated 
high school (241a-242a). The difference in present physical 
condition of the two plants is directly traceable to the 
discriminatory practices of the defendants: the white school
had several additions over the years, including $250,000.00 
worth of renovations in the last two years (242a) but according 
to the Superintendent, there were no improvements to South 
Jackson during the 21 years it served as the only secondary 
school for black students, or thereafter (257a). To offer its 
relative standing in relation to other schools operated by the 
Board as a justification for closing it, then, is to offer only 
the past discrimination as a reason for working a new discrimi­
nation.

The building is in eminently useable shape. The Board 
has made no contention of structural weakness which would pose 
a safety hazard, as Dr. Stolee noted (285a). He found the 
building adequate, although in need of regular maintenance 
(284a-286a, 291a). The Superintendent testified that the South

-24-



Jackson plant could be improved with renovation just as Jackson 
High had been (242a) and agreed that its facilities were 
entirely adequate (e.g., 253a-256a; 431a-433a). The 1970 Title 
XV Center study, although it contained the comments of the 
Superintendent noted by the district court (604a), did not 
suggest that the school ought to be closed. And while the 
Superintendent testified in 1969 that there was capacity to 
absorb South Jackson's students in other elementary schools 
(see 611a), the Board never voiced the proposal until desegre­
gation at the elementary level was imminent.

in summary, we believe that a fair reading of the evidence 
shows that the South Jackson facility is sound and useable, 
and that any relative disrepair is readily curable and related 
to defendants' past discrimination— and cannot therefore 
support a proposal to close the school. McForren, supra (W.D. 
Tenn., Aug. 4, 16, 1973).

2. Location of the school. The district court noted that
the South Jackson School is presently located in a commercial
area without immediately surrounding residential development.
This is the result of an urban renewal program carried out by
the City of Jackson, which has substituted commercial usage
of cleared property for an area of former black residences23/
within the South Jackson zone (499a—502a). The character of

23/ sinCe the Board of Commissioners serves as both the school 
board for the system and as the general governing body of the 
city, supervising the urban renewal program (257a) and passing 
upon zoning classifications (442a), here again the defendants 
have by conscious design brought about conditions by which the 
closure of the school is sought to be justified.

-25-

L



the immediate neighborhood which presently abuts the South 
Jackson property is not detrimental to an educational atmosphere, 
however. The school is not hemmed in by industrial or commer­
cial establishments, but lies within an area of new public 
buildings: a law enforcement building, fire station and
civic center (213a, 516a). There was flat disagreement between 
the Superintendent and the City Planning Director, on the one 
hand, and plaintiffs' witness Dr. Michael Stolee, on the other,
about the appropriateness of this setting for an elementary24/
school, but. little elaboration. However, the South Jackson 
school zone was larger than the urban renewal area and still 
contains many residences, including a housing project (208a, 
243a-246a, 266a-267a, 283a-284a). The students in these resi­
dences happen to be black; although South Jackson has always 
been the school closest to the most commercial part of the City 
of Jackson, the commercial character did not move the city to
close it prior to the time when desegregation was likely.to 

25/
occur (437a).
W ~  Dr. Stolee found it a considerable improvement (279a-280a); 
Superintendent Standley dismissed it as "one of the worst 
locations in town" (441a) and the City Planning Director also 
did not favor it because he wanted "neighborhood schools" (516a, 
519a).
25/ The Superintendent said he had known since the formal approval 
of the uarban renewal project that South Jackson Elementary School would eventually be closed (215a; see also, 211a), and the Board 
claimed at the hearings that elimination of the facility had 
always been a part of the urban renewal program, which neverthe­
less received the affirmative vote of black Jackson residents 
(e.g., 459a). We do not agree that such a fact, even if clearly 
established, would have eliminated the constitutional question; 
but in any event, it is clear from the record that the ballot for 
the urban renewal program did not contain a diagram or description of the project sufficient to indicate the proposed discontinuance 
of the school (507a) and the small diagram on the newspaper notice 
did not indicate the fate of any existing buildings (520a).

-26-



We submit tbat the showing with respect to the location
of the school falls so far short of that in, for example, Mims
v. Duval County School Bd., 329 F. Supp. 123, 132 (M.D. Fla.),26/
aff»d 447 F.2d 1330 (5th Cir. 1971), “ that this is no proper
ground upon which to close this black school and to require only
black students in the system to be transported outside their 

27/
neighborhoods.

3. Declining enrollment and uneconomical operation. It
was not disputed at the hearings that over the past several years,

2 8/
the enrollment at South Jackson Elementary School had declined.
The Superintendent, contended that reduced enrollment made the. 
facility so expensive to operate because of fixed costs (e»g• , 
201a) that it would be more economical to the system to close it. 
He pointed out, for example, that the low daily attendance dis­
qualified the school from receiving State supplementary aid

26/ indeed. the urban renewal program has removed the conditions 
which the district court in the Mims case held justified the 
closing of black schools when the school system desegregated.
27/ We do not endorse "neighborhood schools" nor resist "busing" 
to bring about desegregation, nor do the vast majority of black 
citizens in this Nation. We do recognize that pupil transporta­tion is widely regarded as an inconvenience, and that feelings 
and affections can be bound up with local schools. If these 
are to be interrupted, or if children and their parents are to 
be inconvenienced in the name of desegregation, then blacks ought 
not bear the sole, or the disproportionate share, of those burdens.
28/ The major cause of the enrollment decline was, of course, 
the clearance of large residential areas for urban renewal (200a), 
although the school also lost students as the result of imple­
menting a Title IV Center-recommended zone line change in 1971 
(53a, 204a) and through majority-to-minority transfers (see 
282a-283a).

-27-



toward a principal's salary (218a). The district court 
apparently accepted these assertions as sufficient evidence of 
a non-racial justification for closing the facility (611a).

This is a perfect example of the district court's failure
to evaluate the stated reasons for the closing to determine
whether they did, in fact, represent non-racial judgments. A
reduction in enrollment at South Jackson of some size was
educationally advantageous; although it once housed over five
hundred black school children (174a), a smaller attendance
allowed the school system to make, more efficient use of its
moderately sized classrooms (247a-248a). Superintendent
Standley agreed that the total number of students coming from
the South Jackson zone as it existed in 1972-73 was important2 9/
only if assignments were limited to contiguous zoning: if
elementary students were to be transported to the facility, the 
declining residential use of the immediate neighborhood was 
not important (441a; see also, 519a).

Likewise, the conditions which purportedly resulted in a 
disproportionately expensive cost of operation at South Jackson 
were common to other elementary schools in the system: several
other facilities had low enrollments which barred State salary 
supplements for their principals (251a, 392a-396a); other

/ 11: has been apparent since 1970 that such assignment 
constraints make complete desegregation of the system impos­
sible. See p. 5 supra.

-28-



schools had vacant spaces and were similarly "uneconomical"
30/to operate (252a-253a, 397a). These conditions had existed 

for some time, but the school system had not complained of them 
prior to the time when desegregation of elementary schools 
became imminent (396a). As Dr. Stolee put it:

Well, as far as the State not paying ADA for 
a full-time principal, I have to lump a number 
of these things together with my first, and 
I think is my —  and my first, I think, is 
almost an overriding thought on this, and that 
is that the statements that I read, the 
statement I read on item four, page four, of 
the document referred.to is one that once 
again we see in many, many communities, that 
is that for years, and years, and years, we find it economically feasible to operate a 
smaller school to, in this case, pay a full­
time principal, while the proportion of of 
(sic] state aid for that principal might be lesser than some other school to have a custo­
dian. As long as the school stays all black, we are willing to do it, but then, as soon as 
it appears that we are going to have to 
desegregate the school, then, and at that, point, 
it becomes economically unfeasible.

(289a-290a) (emphasis supplied). The Superintendent admitted 
that no educational considerations compelled the closing of 
South Jackson (black) rather than West Jackson (white) (251a).

The claimed diseconomies of scale at South Jackson, then, 
were no different in nature or degree from those found in other, 
white, elementary schools in the system, and they do not amount

2Q7 vacant spaces in the system in the past had not caused the 
closure of facilities. For example, there were many vacant 
spaces throughout the district in 1969-70 when the new Andrew 
Jackson Elementary School was opened; yet the Board had chosen 
to relieve overcrowding at Highland Park by this new construction 
rather than by reassigning white students to existing vacancies 
in black schools (246a-249a).

-29-



to objective, non-racial grounds for the Board's proposal to 
close the South Jackson facility. Cf. Davis v. School Dist. 
of Pontiac, supra. This is all the more so since the conditions 
were willingly tolerated by school officials until desegregation 
of South Jackson was likely to be required by the district 
court. Cf. Jackson v. Wheatley School Dist., supra.

4. Segregated neighborhood. The final concern listed by 
the district court was the unlikeliness that the South Jackson 
school zone would become residentially integrated (611a-612a).
As noted in the discussion of the preceding ground, this is 
relevant only on the assumption that "neighborhood school zones" 
will continue. The identical argument for closing a black school 
was rejected in Spangler v. Pasadena City Bd. of Educ., supra,
311 F. Supp., at 517:

Defendants' plan at the time of trial for deseg­
regation of the junior high schools would, if 
implemented, impose burdens on black students 
to a greater extent than on white students. 
Defendants plan to close Washington Junior High 
School, principally because, "It is impossible 
without a great deal of bussing to create any 
kind of integration at that particular school." 
This is a non sequitur, as closing Washington 
would require transportation of all the students 
normally assigned to that school. . . . What
defendants oppose is transporting white pupils 
to school in a black neighborhood.

The same is true in this case, where the closing of South 
Jackson has resulted in the transportation of black students 
only (c_f. 259a-262a) . The rationale proposed by the district
court would be equally applicable to Andrew Jackson or Highland

-30-



(

Park (white) Elementary Schools, neither of which can be sub­

stantially desegregated without transportation; it clearly 
does not constitute a non—racial ground for selection of the 

black facility for closing.

5. Other factors. The district court's opinion makes 
mention of several other factors it considered in approving the 
proposal to close the South Jackson School, although these are 
not repeated in its summary holding; they bear brief mention 
here.

Snippets of past testimony about South Jackson, to which 
the district court refers (604a, 606a, 611a), for example, 
hardly support a finding that the 1973 move to close the school 
was based on non-racial grounds. Rather, they indicate the 
consistent willingness of the Board to bear the "burdens" or 
"diseconomies" associated with the school so long as it remained 
segregated.

The district court's statement that "[t]he closing is part 

of a long range plan to eliminate this oldest operating school 

which is not directly related to racial motivation but rather 

the intent, largely unfulfilled, to upgrade slum housing 

occupied for the most part by blacks" (609a-610a), is simply 
the court's own construction; for not even the Superintendent 

attempted to fit the South Jackson closing into some long-range 

scheme designed to benefit Jackson's black population!

-31-



A more accurate reflection of the district court's real
concern is its statement, describing Dr. Stolee's plan for 
grouping South Jackson, Highland Park and Washington-Douglass 
Schools, that "[t]his assumes that the whites would voluntarily 
comply with bussing arrangement fsic] and attend this school, 
an assumption not borne out by past experience . . . "  (610a).
Not only is the court's supposition totally dehors the record, 
since no one was ever transported to achieve desegregation in 
the Jackson system prior to the order appealed, from., but it 
represents precisely the speculative apprehension of white 
flight which was rejected in. this very case in 1968 and 1970.

6. Unequal burden. The Board of Commissioners' plan for 
reassignment of the former South Jackson pupils admittedly 
placed the burden of desegregating Jackson's elementary schools 
entirely upon black students (259a-262a) (Superintendent 
Standley). This disproportionate sharing of inconvenience and 
disruption was not mitigated by the alterations mandated by the 
district court (618a-619a). Under the decree, black children 
become the only Jackson students transported outside their 
residential areas, rather than the only Jackson students who 
must walk long distances outside their residential areas.

The district court gave lip service to the principle that 
the burdens of desegregation must be equally shared by the black 
and white communities (623a-624a); but it erred by equating 
the contiguous reassignment of white students with the arbitrary 
closure of a sound and useable black school and the reassignment

-32-



of the black children who would attend that school to schools 
in white neighborhoods. See Brice v. Landis, 314 F. Supp. 974 
(N.D. Cal. 1969).

7. Summary. We submit that the "objective and non-racial 
grounds" offered by the Board of Commissioners to justify the 
closing of the South Jackson School are shown on this record 
either to relate directly to past discriminatory actions of the 
school authorities or to apply with equal force to white facili­
ties which defendants propose to maintain. Under these circum­
stances, the district court erred as a matter of law in holding
that the Board of Commissioners met its burden of proof to

31/justify the closing of the school.

31/—  The error is not cured by the vague and precatory direction 
in the district court's order requiring that . '

The defendants will study the need and feasibility 
of construction of a new elementary school in the 
southwest area of Jackson to serve the general 
South Jackson and West Jackson Elementary School 
sections as a priority before the construction of 
new schools or substantial elementary facilities in the system in the future.

(633a). if the direction is prompted by the court's recognition 
that the closing of South Jackson is indeed discriminatory, 
then the remedy is insufficient, especially since the West Jackson School is still in a white neighborhood (450a). If the 
district court contemplates subsequent closing of the West 
Jackson School to "balance the burdens," then it has merely 
compounded the legal error. Disabilities imposed upon whites 
and blacks because of race still violate the equal protection 
clause although each may suffer "equally." Loving v. Virginia, 
380 U.S. 1 (1967); McLauoh]in v. Florida, 379 U.S. 184 (1964).

-33-



II-.
Whatever The Fate Of South Jackson Elementary- School, The Case Must Be Returned To The District 
Court To Complete The Process Of Desegregating 

Jackson's Elementary Schools

Whether this Court holds that the South Jackson Elementary 
School should continue in use or not, it must return this 
case to the district court with instructions to complete the 
desegregation process. For, while the case is not as shocking 
as it was when black and white high schools existed across the 
street from each other, it is yet remarkable that the best 
efforts of the parties and the district court have not been 
sufficient to eliminate all-black schools from this small 
district.

We refer the Court again to the table at p. 14, supra, 
indicating the results of the desegregation plans before the 
district court, and actually implemented during the current 
school year. The district court rejected the Board's plan 
on the ground that

[It] does not sufficiently meet the requirement 
of fulfilling its affirmative duty to eliminate 
discriminatory effects of the past. [616a] 32/

Yet the only difference between the Board's plan and the court's
plan is the increase in the number of black students attending
Andrew Jackson Elementary School. The all-black identity of

2̂l7 The district court earlier noted that "[t]he Board's plan 
would leave two of the eight elementary schools racially identi-. 
fiable by very large majorities of white in one school and black 
students in the other" (613a).

-34-



the Lincoln School— the outstanding vestige of segregation—  

remained.

The district court also rejected the plan offered by 
plaintiffs and developed by Dr. Stolee, not only because it 
proposed the use of the South Jackson facility (616a) but also 
because

two of the schools would continue to operate at 
material undercapacity, and would involve trans­
porting a large proportion of students attending 
these two schools from other areas. . . . Exten­
sive, multi-school bussing also involves other serious financial and administrative difficulties 
the solutions to which have not been presented in 
the several hearings herein. [613a-614a]

Yet, again, the district court's own plan requires the busing 
of nearly 230 students to two different schools, although it 
does not achieve as much desegregation as would the plaintiffs' 
plan.

It is perhaps tempting to attribute the wisdom of Solomon 

to the district court merely because it "cut the baby in half"

(by requiring more than the Board proposed but less than the 

plaintiffs sought). However, that is not the standard by which 

the adequacy of desegregation decrees are measured. Swann 

directs district courts and school boards to "make every effort 

to achieve the greatest possible degree of actual desegregation 

. . . ." 402 U.S., at 26. The district court overlooked this

prescription, which appears in the sentence immediately following 

that which it quoted in its opinion (614a): "It should be clear

that the existence of some small number of one-race or virtually

-35-



one-race schools within a district is not in and of itself ttie 
mark of a system that still practices segregation by law."

Limiting our concern for the moment to the all black
34/ . _ ,Lincoln School~ it is quite clear in this Circuit that even

one such all-black facility may be too many. The language of
Newburg Area Council, Inc, v. Board of Educ_. , 6th Cir. No.
73-1403 (Dec. 28, 1973), is so apposite that we quote relevant
portions at some length:

The district court held that the existence of 
an all black school, Newburg, in the Jefferson County School District was not unconstitutional. 
The Supreme Court stated in Swann v. Charlotte 
Mecklenburg School District, 402 U.S. 1/26 (1 9 7 D f that the "existence of some small number 
of virtually one race schools within a district 
is not in and of itself the mark of a system 
that still practices segregation."
As this Court noted in Northcross v. Board of 
Education of Memphis City Schools, 466 F.2d 890, 
893 (6th Cir. 1972), this language in Swann xs "obviously designed to insure that tolerances 
are allowed for practical problems of desegre­
gation where an otherwise effective plan for 
dismantlement of the school system has been  ̂
adopted." The Jefferson County School Distract 
thus has three elementary schools that either 
are or are rapidly becoming "racially identifi­
able." As stated, Newburg School, a pre-Brown 
black school, is racially identifiable, while 
Price and C an[eJ Run Schools are rapidly becoming 
racially identifiable as black schools. The

33/ At least one Court of Appeals has suggested that the sentence 
quoted by the district court reflects upon the proof necessary to establish a violation, while the following sentence articulates 
the remedial standard. See Kelley v. Guinn, 456 F.2d 100, 109 10
(9th Cir. 1972), cert, denied, 413 919 (1973)
34/ Swann further cautioned against "substantially dispropor 
tlonate "'“schools, and we submit that Andrew Jackson, Highland Park, and Washington-Douglass are properly considered m  this 
category. Such a classification does not mean that a racial balance must be attained. Medley v. School Bd. of Danville, ‘*82 
F.2d 1061 (4th Cir.
21, 1974).

t in e a .  in eux^y v . ^1973), cert, denied, 42 U.S.L.W. 3423 (Jan.

-36-



duty of the school district is to "eliminate 
from the public schools all vestiges of state- 
imposed segregation." Swann, supra, 402 U.S. 
at 15.
Until the dual system is eliminated "root and 
branch," Green v. County School Board of New 
Kent County, 391 U.S. 430 (1968), the school 
district has not conformed to the constitutional 
standard set forth by Brown nearly 19 years ago.

. . . All vestiges of state-imposed segregation
have not been eliminated so long as Newburg remains an all black school. Where a school 
district has not yet fully converted to a unitary 
system, the validity of its actions must be 
judged according to whether they hinder or further 
the process of school desegregation. The School 
Board is required to take affirmative action not only to eliminate the effects of the past but 
also to bar future discrimination. Green, supra, 
391 U.S. 438 n. 4; Robinson v. Shelby County Board of Education, 442 F.2d 2 55, 2 58 (6th c"ir. 
1971). Since the Jefferson County Board has not 
eliminated all vestiges of state-imposed segre­
gation from the system, it had the affirmative 
responsibility to see that no other school in 
addition to Newburg would become a racially 
identifiable black school. It could not be 
"neutral" with respect to student assignments at 
Price or Cane Run. It was required to insure 
that neither school would become racially identi­
fiable. [slip op. at pp. 3-5] 35/

In this case, the district court's retention of Lincoln as 
an all-black school was not responsive to specific "practical 
problems of desegregation where an otherwise effective plan 
for dismantlement of the school system has been adopted," 
Northcross v. Board of Educ. of Memphis, 466 F.2d, at 893. The

35/
and

Seeeast-
resulted

note 34 supra. And see 308a (black Jackson, together with construction 
in migration of whites to northwest

schools in south of Andrew Jackson, ); 136a-138a, 143a,
171a.

-37-



plan drawn by Dr. Stolee provided a practical and feasible 
method for desegregating both Lincoln and Andrew Jackson 
Schools, by pairing and exchanging a total of 453 students 
between the facilities (529a). The distance, of 4.9 miles, 
took thirteen minutes (314a); the plan ordered into effect by 
the district court buses children a similar distance (183a) 
but leaves Lincoln all-black, and Andrew Jackson disproportion­
ately white in the context of the system-wide ratio.

The factors mentioned by 
setting out its "plan" (617a) 
justify the results achieved.

the district court just prior to 
are all legally insufficient to 
The court states:

. . . [W]e have prescribed a plan involving
a minimum of transportation and some elementary 
school zone or district changes which this Court 
believes will meet constitutional requirements 
with the least disruptive effects. This plan 
has been fashioned in recognition of the fact, 
among others alluded to, that the defendants 
in making the progress heretofore noted have 
not totally defaulted in their duty to submit an acceptable plan, and because it has never 
before operated a bus system as v/as the case in 
Swann, supra, and to some degree in Davis, 
supra (both in Mobile and in Pontiac), and 
because substantial progress has already here­
tofore been made.

It is doubtless desirable that desegregation plans involve the 
minimum of pupil transportation necessary, e.q., Cisneros v. 
Corpus Christi Independent. School Dist., 467 F.2d 142 (5th Cir. 
1972), cert. denied, 413 U.S. 920, 922 (1973); Kelley v. Metro­
politan County Bd. of Educ., 463 F.2d 732 (6th Cir.), cert. 
denied, 409 U.S. 1001 (1972). But the plans must be sufficient 
to disestablish all vestiges of the dual system. Kelley, supra

-38-



Newburg Area Council, supra; Northcross, supra. The district 

court's personal preference in this case for "a minimum of 

transportation" is inexplicable in light of the failure of its 

decree to desegregate the Lincoln Elementary School.

Likewise, the fact that the Board has "not totally defaulted" 

or is in "good faith" may be laudable, but "[t]he good faith 

of a school board in acting to desegregate its schools is a 

necessary concomitant to the achievement of a unitary school 

system, but it is not itself the yardstick of effectiveness.'

I-Ia 11 v. St. Helena Parish School Bd. , 417 F.2d 801, 807 (5th 
Cir.), cert, denied, 396 U.S. 904 (1969). Accord, Kelley, supra,
463 F.2d, at 744.

The fact that Jackson did not previously operate a pupil 

transportation system similarly does not excuse the inadequacy 

of the district court's remedial decree. Northcross v. Board 

of Educ. of Memphis, supra; Brown v. Board of Educ. of Bessemer,

464 F.2d 382 (5th Cir.), cert, denied, 409 U.S. 981 (1972);
Brewer v. School Bd. of Norfolk, 456 F.2d 943 (4th Cir.), cert. 
denied, 406 U.S. 905 (1972) ; Clark v. Board of Educ.. of Little 
Rock, 426 F.2d 1035 (8th Cir. 1970), cert. denied, 402 U.S. 952
(1971) , 449 F.2d 493 (8th Cir. 1971), cert, denied, 409 U.S. 981
(1972) .

Finally, the progress already made in Jackson does not 

justify a failure of will to take the last steps required to 

finally terminate all vestiges of the dual school system. Cf. 

Monroe v. Board of Comro'rs, 427 F.2d 1005, 1009 (6th Cir. 1970).
-39-



In this exceedingly small school system (183a), there is
simply no reason why desegregation cannot extend to all schools.
The Board's major objection to that result is a continuation of
its past "white flight" position (e.g., 409a). The district

36/
court cites no practical difficulties of any substance. Thus, 
this matter should be remanded to the district court with 
instructions to desegregate all of Jackson's elementary schools.
If this Court agrees that the closing of South Jackson was 
improper, then of course an appropriate desegregation plan 
would be Dr. Stolee's, or one similar to it. Even if the 
school is allowed to remain closed, the techniques and results 
of the plaintiffs' plan furnish a model for the goal to be 
achieved on remand. Cf. Adams v. School Dist. No. 5, Orangeburg, 
444 F.2d 99 (4th Cir. 1971).

III.
The District Court Must Provide An Opportunity 
For The Submission Of Evidence And Make Findings 
In Order To Permit Review Of Its Counsel Fee Award

As noted above, plaintiffs in this action seasonably sought 
an award of reasonable attorneys 1 fees in connection with the 
proceedings on remand of this Court's 1972 decision, and 
requested the opportunity to submit evidence for the Court's 
consideration (583a-585a). But without holding a hearing or 
otherwise affording the parties an opportunity to tender evidence, 
the district court simply fixed a counsel fee award in the sum
JL6/ Compare the practicalities faced by district courts fashioning 
desegregation decrees in Memphis, see Northcross, supra, and 
Detroit, see Brad ley v. Milliken, 484 F.2d 215 (6th Cir.), cert. 
granted, 42 U.S.L.W. 3306 (Nov. 19, 1973).

-40-



of $1500.00 (625a).

That sum bears no relation either to the time and effort 
of counsel in connection with the remand proceedings, or to 
any other relevant considerations which ought to govern the 
exercise of the district court's discretion in setting the 
amount of an award. That discretion is, of course, not bound­
less but is subject to review by this Court. E.g., Monroe v. 
Board of Comm'rs, 453 F.2d 259 (6th Cir.), cert, denied, 406 
U.S. 945 (1972). But the failure of the district court to 
articulate the basis for its award, or to permit the introduction 
of evidence by the parties on the subject, makes such review 
impossible at this stage. A remand for the purpose of permitting 
the parties to tender evidence, and requiring the district court 
to make findings in support of any amount whxch it thereafter 
determines to award, is required. Johnson v. Georgia Highway 
Express, Inc., 5th Cir. No. 72-3294 (Jan. 21, 1974) (attached 
hereto as Appendix "A").

In seeking such a remand, we do not mean to intimate any 
agreement whatsoever with the district court's approach to the 
question of the appropriateness of a counsel fee award in this 
case. YJe believe, for example, that the court has completely 
misconstrued the "final order" language of 42 U.S.C. § 1617; 
and that its suggestion that the proceedings were not "necessary 
to bring about compliance" because plaintiffs' proposed plan 
was not adopted is ludicrous. There can be no question at all 
about the fact that, but for the continued maintenance of this

-41-



lawsuit, the Board of Commissioners of Jackson would never 
have voluntarily taken a single step, and would not now do so, 
to desegregate its school system.

There is no necessity for this Court to pass upon these 
issues at. this time, however. The court below did make an award 
in what it termed "the exercise of equitable discretion," and 
the sufficiency of that award (the subject of our concern) ^
simply cannot be reviewed without a hearing and findings below.

It would be appropriate at this juncture, however, for 
this Court to give general guidance to the court below and to 
other district courts throughout the Circuit, by outlining the 
factors to be considered in making counsel fee awards in school 
desegregation cases, as the Fifth Circuit has done in similar 
circumstances. Johnson v. Georgia Highway Express, Inĉ _, £££££• 
Such guidance at this time might well obviate future appeals.

CONCLUSION

WHEREFORE, for all the foregoing reasons, plaintiffs- 
appeHants respectfully pray that the judgment of the district 
court be reversed insofar as it approved the Board of Commis­
sioners’ request to close South Jackson Elementary School, and

37/ A“ remand for this purpose may also delay determination of the 
issues which may be raised on the Board's cross appeal over the 
counsel fee award; in the interim, the Supreme Court may provide 
additional guidance in the interpretation of § 718 m  Bradley 
v. School Bd. of Richmond, No. 73-1322 (472 F.2d 318 below),
which has been argued and is presently awaiting decision.

-42-



vacated insofar as it prescribed a final plan of desegregation 
for the Jackson Elementary Schools and fixed a counsel fee 
award in the sum of $1500.00; and that the matter be remanded 
to the district court with instructions to complete the desegre­
gation of all Jackson elementary schools, to afford the parties 
an opportunity to introduce evidence (whether testimonial or 
documentary) on the subject of an appropriate counsel fee 
award, and to make findings articulating the basis for computation 
of such counsel fee award as it may make on the remand.

Respectfully submitted

AVON N. WILLIAMS, JR.1414 Parkway Towers
404 James Robertson ParkwayNashville, Tennessee 37219

J. EMMETT BALLARD
116 West Lafayette Street 
Jackson, Tennessee 38301

Of Counsel:
KENNETH J. DIOUS10 Columbus circle
New York, New York 10019

JACK GREENBERG 
JAMES M. NABRIT, III 
R. SYLVIA DREW 
NORMAN J. CHACHKIN

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs- Appellants

-43-



INDEXED
Richard JOHNSON, Jr., and Frank Hill, 

Plaintiffs-Appellants-Cross Appellees,

v.
GEORGIA HIGHWAY EXPRESS, INC., 

Defendant-Appellee-Cross Appellant.

No. 72-3294.

United States Court of Appeals, 
Fifth Circuit.

Jan. 21, 1974.

Plaintiff brought action for damages and a class action 
for injunctive relief by reason of his discharge from employ­
ment allegedly because of race or color. From the action of 
the District Court, 47 F.R.I). 327, an interlocutory appeal was 
taken and sustained, 417 F.2d 1122. After remand, the Unit­
ed States District Court for the Northern District of Georgia 
at Atlanta, Charles A. Move, Jr., J., entered a final order and 
made an award of attorneys’ fees. Plaintiffs appealed, chal­
lenging the award as inadequate. The Court of Appeals, 
Roney, Circuit Judge, held that where the award did not 
elucidate factors upon which it was based and showed no 
correlation to facts and figures submitted by plaintiff and 
where no differentiation was made between experienced and 
nonexperienced attorneys representing plaintiff and disallow­
ance of 239.5 to 299.5 of 659.5 hours claimed was unexplained, 
the case would lie remanded lor reconsideration in light ol 
guidelines, which the Court promulgated.

Vacated and remanded.
Synopses. Syllabi and Key Number Classification 

C O m iK .H T  vC 1971, by WKST PUBLISHING CO.
The Synopses, Syllabi and Key Number Classifi­

cation constitute no part of the opinion of the court. 451



I

JOHNSON v. GEORGIA HIGHWAY EXPRESS, INC. 453

6. Civil Rights c=46
Statute authorizing attorney’s fee award in equal employ­

ment opportunities case was not passed for benefit of attor­
neys but to enable litigants to obtain competent counsel 
worthy of contest with caliber of counsel available to their 
opposition and to fairly place economic burden of such litiga­
tion, and balance is to be achieved in determining amount 18
U S C.A. § 3006A(d)(l); Civil Rights Act ol 1964, §§ -01 et 
see., 706(g, k), 42 U.S.C.A. §§ 2000a et seq., 2000e-5(g, k).
7. Civil Rights c^43

Plaintiff in equal employment opportunities case has bur­
den of proving his entitlement to award for attorney’s fees.

°  - ______ , . ^  TT n  f ' s  K C O A A A n r /  l - \
Civil Rights-Apt of 1964, § 706(k), 42 U.S.C.A. § 2000e-5(k).

Appeals from the United States District Court for the 
Northern District ol Georgia.

Before THORN BERRY, AINSWORTH and RONEY, Cir­
cuit Judges.

RONEY, Circuit Judge:
The question on this appeal concerns the adequacy of attor­

neys’ fees awarded by the District Court in a Title VII class 
action Plaintiffs challenge as inadequate the $13,500.00 
awarded for their alleged 659.5 billable hours accrued during 
more than four years of litigation. We are called upon to 
review the award and set appropriate standards to better 
enable District Courts to arrive at just compensation.

This “across-the-board” action to remedy employment dis­
crimination made unlawful by Title VII of the Civil Rights 
Act of 1061, 42 U.S.C.A. § 2000e et seep, was filed February 
27, 1968. On June 24, 1968, the District Court entered an 
order holding that the action could not be maintained as a 
class action, and upholding defendant’s jury demand. Plain­
tiff took an interlocutory appeal, resulting in this Court s 
reversing the District Court on both issues. 417 F.2d 1122 
(5th Cir. 1969).



454 JOHNSON v. GEORGIA HIGHWAY EXPRESS, INC.
On remand, the case proceeded to trial on the merits. After 

a three-day trial (Jan. 31-Feb. 3, 1972) the District Court 
entered a final order on March 2, 1972, finding a variety of 
discriminatory practices by defendant and granting class re­
lief to plaintiffs. In that order, the court provided that an 
application for an award of attorneys’ fees and costs pursuant 
to Section 706(k) of Title VII of the Civil Rights Act of 1964 
would be entertained.

Pursuant to this ruling, plaintiffs requested an award of 
<j;30 145.50. In support of their request they submitted: (1) a 
schedule of fees based on the affidavits of counsel as to their 
ume spent on this matter, in all 659.5 hours exclusive of trial 
time; 1 (2) six affidavits from the five attorneys employed by- 
plaintiffs in this action; (3) three exhibits showing in chrono­
logical order the daily time spent by three of the plaintiffs 
attorneys; and (4) a memorandum of law in support of the 
motion.

After an appropriate hearing, the District Court lded its 
order on August 8, 1972, and made the following findings of 
fact with respect to attorneys’ fees:

“1. A hearing on the matter of attorneys’ fees in the 
primary action in this case was held, and evidence presented 
by both parties, on June 9, 1972.

“2. With respect to the question of attorneys’ fees in the 
primary action, I find that reasonable attorneys’ fees, in the 
Atlanta, Georgia area, for the job performed for the plain-

1. The hours allocated for each plaintiff’s a tto rney  w ere

Howard Moore, Jr. 303 hollrs

C harles S. Ralston 29 hours

Cabrielle K. M cDonald 228 hours

Elizabeth R. R indskopf 38 hours

M orris J. Bailer 61 5 hours
There w ere th ree days of trial attended  by Mr. Ralston, Mis. 
Rindskopf, and Mr. Bailer.



JOHNSON v. GEORGIA HIGHWAY EXPRESS, INC. 455

tiffs RICHARD JOHNSON, JR. find FRANK HILL, are 
Thirteen Thousand Five Hundred Dollars ($13,500.00). The 
above amount in this finding is based, generally, on six y 
(GO) man days of work at Two Hundred Dollars ($200 00) 
per dav, generally considered to consist of from six (G o 
seven (7) productive hours, which amounts to Twelve Thou­
sand Dollars ($12,000.00), and three (3) trial days for two 
i ' e v '  .1 Two Hundred Fifty Dollar. ($250.00) per tna 
day per attorney, or One Thousand Five Hundred Dollais
($1,500.00).”

The iudgment of the District Court stated that

-The Defendant GEORGIA HIGHWAY EXPRESS. INC., 
shall pav to th. Plaintiffs in the primary action m the 
,resent case reasonable attorneys' fees in the amount of

L utuun  Thnurnnd i n r  Hundred DuHovs « « « « .  
on what this Court has determined is reasonable in this 
locality for the job performed by legal counsel on behall ol 
the Plaintiffs. Given the experience ol counsel, ioi he. 
Plaintiffs at the time these services were performed, the 
award of this Court is based on sixty (60) man days at he 
rate 0f Two Hundred Dollars ($200.00) per day, or Twelve 
Thousand Dollars ($12,000.00), and three (3) trial days for 
two (2) attorneys at the rate of Two Hundred Fifty Dollars 
($250.00) per day per attorney, or One Thousand Fi\e Hun­
dred Dollars ($1,500.00).

“In making this award of reasonable attorneys fees to 
the Plaintiffs, 1 further note that I am aware ol the 
accomplishments of some of the attorneys for the Plaintiff 
At the time when some of these services were rendered 
however, thev were rendered by attorneys who had been at 
the bar for only a relatively few years, and there is a 
relatively standard practice within the Atlanta, Georgia 
community with respect to the age and experience of attor­
neys and the compensation involved therein.’



4„  JOHNSON v. GF.OKGIA HIGHWAY EXI’HHSS, INC.

, , rom thia judgment. Defendant cross-ap- 
plaintiffs appeal from tins J

f Title VII of the Civil RiRhts Act of

m  «“l: „ , tta
1 ,n' any action or proceeding

£ « ' * * * ' *
the litigation. effectuate the congressional

The purpose of this provision - da rk  v. American Ma-
policy against racial d . s c n n n m ^  ^  437 W l  M

ri”° « ■ * £ *  f S'discns'sing a similar provision m Title ,
the1 Unittal Stales Supreme Court

- . . •, H,netion he does so not ioi
If [the plaintiff] obtains an i-o;. ‘ ^  ovneral,’
himself alone but ^  £  Consi<leml of the highest
vindicating a pohc> lhf  , n ',ffs were routinely inreed to 
priority. If successful plamuf ^ . . g w e d  parties would 
Hear their own attorneys J W .  ■ ,,y invoking
he in a position to adtanv 1 ^ ^ ,  courls. Congress ■
the injunctive powus • • for counsel fees—not simplj 
therefore enacted the pro\ s. j jJ  ltclv advance arguments 
l0 penalize litigants who more‘l>r(«ully. t» encourage
they know to be untenaW ' inuli„n to seek judicial 
individuals injured b\ tacia

reliL'f ' . . ;'<)() li.S. 400, 401-
Ncwman v. (1%8>. This Court, as
402. 88 S.Ct. 064 , 960, 19 h.h■ ^  TiUo VH works,
part of its obligation to ^  , fecs j)roVision of Title M l,
has liberally applied the attorn > ■ c,nf()1-cement of civil
recognizing the importance 1 Ameri, ;in Marine Corp., 
rights legMation^ ^ ^  ^  F , (1 :, lg (5th Cir. 1972);
r:,p!::rv. — . C h C ,

1970).



Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 1972); Lee v. 
Southern Home Sites Co., 444 F.2d 143 (5th Cir. 1971).

[2] We are mindful that it is within the discretion of the 
District Court whether to award attorney’s fees against a 
party. Weeks v. Southern Bell Tel. & Tel., 467 F.2d 95 (5th 
Cir. 1972); Culpepper v. Reynolds Metals Co., 442 F.2d 10(8 
(5th Cir. 1971). See 6 Moore, Federal Practice *i 54.77. This 
Court, however, may review the District Court’s determina­
tion as to a reasonable fee. B-M-G Investment Co. v. Conti- 
nental/Moss Gordin, Inc., 437 F.2d 892, 893 (5th Cir. 1971). It 
is under this authority that we undertake to review the award 
in this case.

[3] The reasonableness of the award is to be judged by the 
abuse of discretion standard of review. Weeks v. Southern 
Bell Tel. & Tel. Co., supra; Culpepper v. Reynolds Metals Co., 
supra. But in utilizing this .standard we must carefulh ie- 
vievv the basis upon which the District Court made its award.

[4, 5] It is at this juncture that we have difficulty with the 
District Court order. The judgment does not elucidate the 
factors which contributed to the decision and upon which it 
was based. No correlation to the facts and figures submitted 
by the plaintiff is visible. Sixty work days were allotted by 
the Court with six to seven productive hours per day as the 
standard. Compensation was computed at $200 per day which 
averages out to between $28.57 and $33.33 per hour depending 
on which productivity scale is used. Neither of these figures 
match the minimum fee scale in Atlanta, Georgia. 1 uithet-
3 The Am erican Bar A ssociation has recently  recom m ended th a t 

’ st ue and local associations abandon ' ‘m inim um ” or “ suggested tee 
schedules which are under a ttack  from the Justice D epartm ent as 
violations of the an titru st law s. See  59 A.B.A.J. p. 1435 (1973),- 
reporting  the adoption of the following resolution by the Associa- 
tion s Board oi Governors;

In order to avoid possible fu tu re  dispute or litigation, and

(a) W ithout the expression of any opinion upon questions of 
existing legal right or obligation, and

JOHNSON v. GEORGIA HIGHWAY EXPRESS, INC. 457



I

more, no differentiation was made by the District Court 
between the experienced and the non-experienced attorneys 
representing plaintiff. Yet, the award was supposedly con­
sidered in light of the Atlanta community practices. The 
District Court order leaves unexplained the disallowance of 
between 239.5 to 299.5 of the 659.5 hours claimed. Whether 
they reflected duplicated effort among the attorneys, im­
properly charged hours, time deemed unessential, or were 
merely overlooked is not answered in the order.

It is for these reasons that we must remand to the District 
Court for reconsideration in light of the following guidelines:

458 JOHNSON v. GEORGIA HIGHWAY EXPRESS, INC.

0) The time, and labor required. Although hours claimed 
or spent on a case should not be the sole basis for determining 
a fee, Electronics Capital Corp. v. Sbeperd, 439 F.2d 692 (5th 
Cir. 1971), they are a necessary ingredient to be considered. 
The trial judge should weigh the hours claimed against his 
own knowledge, experience, and expertise ol the time re­
quired to complete similar activities. If more than one attor­
ney is involved, the possibility of duplication oi effort along 
with the proper utilization of time should be scrutinized. The 
time of two or three lawyers in a courtroom or conference 
when one would do, may obviously be discounted. It is 
appropriate to distinguish between legal work, in the strict 
sense, and investigation, clerical work, compilation of facts 
and statistics and other work which can often be accomplished 
by non-lawvcrs but which a lawyer may do because he has no 
other help available. Such non-legal work may command a

(b) N otw ithstanding the  m ost recent opinion issued by this A sso­
ciation’s Com m ittee on Ethics and  Professional Responsibility with 
regard  to  ethical p ropriety  of the voluntary  consideration by law yers 
of fees custom arily charged for particu lar legal services in given 
localities;

The Am erican Bar A ssociation recom m ends that s ta te  and local 
b ar associations that have not already done so give serious consider­
ation to w ithdraw al or cancellation of all schedules of fees, w hether 
or not designated as “m inim um ” or “ suggested” tee schedules.



JOHNSON v. GEORGIA HIGHWAY EXPRESS, INC. 459

lesser rate. Its dollar value is not enhanced just because a 
lawyer does it.

(2) The novelty and difficulty of the questions. Cases of 
first impression generally require more time and effort on the 
attorney’s part. Although this greater expenditure of time m 
research and preparation is an investment by counsel in 
obtaining knowledge which can be used in similar latei cases 
he should not be penalized for undertaking a case which may 
“make new law." Instead, he should be appropriately com­
pensated for accepting the challenge.

(31 The skill requisite to perform the legal service properly. 
Tlie ti-iul iutlsv W j  otaerve th* attorneys work
product. his |ire|,a,-alien, ami general ability before the court 
The trial U,.foe's espertise gained from past experience as a 
law>vr . pg observation from the bench ot lawyers at uoik
become highly import in this consideration.

(4) The preclusion of other employment by the attorney due 
to acceptance of the case. This guideline involves the dual 
consideration of otherwise available business winch is foreclos- 
c,l because el' conflicts of interest winch occur from the 
representation, ami the fact that once the employment is 
undertake, the attorney is not free to use the time spent on 
the client's behalf for other purposes.

(5) The customarv fee. The customary fee for similar work 
in the comm unitv should be considered. It is open know edge 
that various types of legal work command differing scales ot 
compensation. At no time, however, should the fee for strict­
ly le-ral work fall below the *20 per hour prescribed by the 
Criminal Justice Act. IS U.S.C.A. § 3006A(dl(l). and awarded 
t<> appointed counsel for criminal defendants. As long as 
minimum fe e  schedules are in existence and are customarily 
followed by the lawyers in a given community, they should be 
taken into consideration.

4. See n.3, supra.



4G0 JOHNSON v. GEORGIA HIGHWAY EXPRESS, INC.
(G) Whether the fee is fixed or contingent. The fee quoted 

to the client or the percentage of the recovery agreed to is 
helpful in demonstrating the attorney’s fee expectations when 
he accepted the case. But as pointed out in Clark v. American 
Marine, supra,

[t]he statute does not prescribe the payment of fees to the 
lawyers. It allows the award to be made to the prevailing 
party. Whether or not he agreed to pay a fee and in what 
amount is not decisive. Conceivably, a litigant might agree 
to pay his counsel a fixed dollar fee. This might be even 
more than the fee eventually allowed by the court. Or he 
might agree to pay his lawyer a percentage contingent fee 
that would be greater than the fee the court might ulti­
mately set. Such arrangements should not determine the 
court’s decision. The criterion for the court is not what the 
parties agreed but what is reasonable.

d20 F.Supp. at 711. In no event, however, should the litigant 
be awarded a fee greater than he is contractually bound to 
Pay, if indeed the attorneys have contracted as to amount.

(7) Time limitations imposed by the client or the circum­
stances. Priority work that delays the lawyer’s other legal 
work is entitled to some premium. This factor is particularly 
important when a new counsel is called in to prosecute the 
appeal or handle other matters at a late stage in the proceed­
ings.

(8) The amount involved and the results obtained. Title 
\11, -12 L.S.C.A. § 2000e-5(g), permits the recovery of dam­
ages in addition to injunctive relief. Although the Court 
should consider the amount of damages, or back pay awarded, 
that consideration should not obviate court scrutiny of the 
decisions eflect on the law. If the decision corrects across- 
the-board discrimination affecting a large class of an employ­
er’s employees, the attorney’s fee award should reflect the 
relief granted.



JOHNSON v. GEORGIA HIGHWAY EXPRESS, INC. 461

(9) The experience, reputation, and ability o ftto * U a ™ y*~ tr n̂ n
« U - < *  * *  h» expcriovc.

» S  £  sl-M -■ fur
onlv mount, lv being admitted to the bai.

, • i -r t.” tho r->w Civil rights attorneysn m  T h r  '*!] n dcsirub in i \ oJ tlic c<- -• ® 1 . .
f ,  .. Lr,Mu,,S in their communities because of them ttetre to1 ( . . • • n • KAACP v. Button, 3(1 tJ.b.
1U1‘1’ ^ ' s  c fd V b L .E d .2 d  405 (1963); Sanders v. Russell,
m r £ » M  b>-H Cir. 1908). by Ac.1 ii-1’ u di'erinvnation is not pieasantl\ a a n u i  J _ 
eonimunitv -r hie contemporaries. This can have an economic 

.;,.n '(.o %vhich can bo considered b> the Couit.
' . TK. „ .;ure a n d  length of the relationship

; . ( 0  . A iatvver in private practice may vary las ice 
sim ilarWork in the light of the professional relaltonsh.p of 

,|-c elant with his office. The Court may appropriately 
consider this factor in determining the amount that would 
reasonable.

1 wards in similar eases. The reasonableness of a 
mav'also Iw considered in the light of awards made 
litigation within and without the courts circuit. 1 or - ^
assistance as it mav he, we note in the margin a list of l ie 
Vu c a s e -  in this and other Circuits reviewed in the considua-
lion ot lms appeal.
,  r a ta  < rvi.il. Peters v. M issouri Pacif icM eg C w 483 F.2d W W

C n-. 1973); U l‘ekcS MS cot?pern457 F 2d 348 (5th Cir. 1972); Long v. 1972); Rowe \ .  G. M. C °rp .. ■*■>< . C ulpepper v.

Am erican Marine C arp  320 F 'Su '3L r t v 9M utual”lns Co’ . ^ O  F.2d 
F >d 959 (5th Cir. 1971); D rew  v. Liberty ) ; n r  ]une 29
CiT(5th Cir. 1973); F ranks v. B o w ,m  T ransp . Co. (N.D.Ga. June ,



These guidelines are consistent with those recommended by 
the American Bar Association's Cod* of Professional Response 
bilily, Ethical Consideration M S , Drac.pl.nary R»lc 2-10S. 
They also reflect the considerations approved by us in Uni k . 
American Marine Co., supra.

r6l To put these guidelines into perspective and as a 
caveat to their application, courts must remember that they 
do not have a mandate under Section 706(k) to make the 
prevailing counsel rich. Concomitantly, the Section should 
not be implemented in a manner to make the private at oine> 
general’s position so lucrative as to ridicule the public attoi- 
ney general. The statute was not passed for the benefit o 
attorneys but to enable litigants to obtain compettm counse 
worthy of a Contest with the caliber of counsel .oailable to 
their opposition and to fairly place the economical burden of 
Title VI1 litigation. Adequate compensation is 
however, to enable an attorney to serve his client ellectiw. >

1972); B in , v. R oadw ay
485 F.2d 441 (5th Car. 1973)J V J t  U .UialK: v. Southern
Refining Corp.. 35° F-Supp^ 139 C>- • Q ^  j um phrey v .
Bell Tel. & Tel.. 333 KSupp. O.Tex.1973)..
Southw estern Portland Cem ent, 5 F.E.P. C ases 89 / (w .
first Circuit: United S tates v. Gray, 319 F.Supp. 87, (D.K F1970).

Fourth Circuit: Lea v Cone Mills, Inc 407 F ;2d 277 ( U M  1972).
Robinson v. l.on llard  Corp., 444 1 .2d i .n  t««"
Sixth Circuit: M anning v. In ternational Union. 406 F._d 812 (6th

S i - B a S e v .

f f i ' a f S i S i :  ̂ X VTSWUr ^ ‘l
Ninth Circuit: Schaeffer v. 1 ^ 7 7 9
1002 (9th Cir. 1972); Ma one v N ; A. R ° ckw fu V 1 \ , ,  ( ;a hf. Dec.
(9th c ir . 1972); Rosenfield v. Southern P ac ila  C -  <•

Tenth Circuit: Barela v. United . w p c ’ D C  Dec 27, 1972);
Cir 1972); Evans v. S heraton Park  Hotel, (D.C.u.w.
Brito v. Zia Co. (D.C.N.M. 1972).

162 JOHNSON v. GEORGIA HIGHWAY EXPRESS, INC.



JOHNSON v. GEORGIA HIGHWAY EXPRESS, INC. 463

and to preserve the integrity and independence of the profes­
sion. The guidelines contained herein are merely an attempt 
to assist in this balancing process.

17] We are mindful of the difficult job of the trial judge in 
cases of this kind, and that in all probability his decision will 
be totally satisfactory to no one. The cross-appeals taken in 
this case' are witness to the usual view of parties litigant to 
such an award. The trial judge is necessarily called upon to 
question the time, expertise, and professional work of a law­
yer which is always difficult and sometimes distasteful, hut 
that is the task, and it must be kept in mind that the plaintiff 
has the burden of proving his entitlement to an award lor 
attorney’s fees just as he would bear the burden of proving a 
claim for any other money judgment.

k cases of this kind, we.encourage counsel on both sides to 
uuk/e tluir best efforts to understand mgiv. sympathetically, 
and professionally arrive at a settlement as to attorney’s fees. 
Although a settlement generally leaves every litigant partia y 
dissatisfied, so does a judicial award for attorneys fees.

By this discussion we do not attempt to reduce the calcula­
tion of a reasonable fee to mathematical precision. Nor do we 
indicate that we should enter the discretionary area which the 
law consigns to the trial judge.

By remand of this case, we voice no observation or intima­
tion'as to the correctness of the amount awarded. We merely 
vacate the award and remand for reconsideration in the lipht 
<>f this opinion, and for the entry of an ordei fixing a 
reasonable fee which reflects the considerations which led to 
it. In sum, we hold it to lie an abuse of discretion not to 
consider the factors we approved in Clark v. American Marine 
Co., and which we amplify here, and that a meaningful review 
requires a record that reflects such consideration.

Vacated and remanded.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn