Maxwell v. Davidson County, TN Board of Education Brief of Plaintiffs-Appellants

    UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 72-1065 Nos. 71-2032 and 71-2033
NATHANIEL JAMES, et al., FRANK V. THOMPSON, et al..

Plaintiffs-Appellees, Plaintiffs-Appellants,

V. V.
THE BEAUFORT COUNTY BD. OF EDUC., 

Defendant-Appellant.
THE SCHOOL BD. OF THE CITY 
OF NEWPORT NEWS, VA., et al..

Defendants-Appellees.

Nos. 71-1993 and 71-1994 No. 71-1774
MICHAEL COPELAND, et al.. CAROLYN BRADLEY, et al.,

Plaintiffs-Appellants, Plaintiffs-Appellees,
v. V.

SCHOOL BD. OF THE CITY OF 
PORTSMOUTH, VA., et al..

THE SCHOOL BD. OF THE CITY OF 
RICHMOND, VA., et al.,

Defendants-Appellees. Defendants-Appellants.

JOINT SUPPLEMENTAL BRIEF FOR ALL PLAINTIFFS

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

ADAM STEIN
Chambers, Stein, Ferguson 
& Lanning

157 E. Rosemary Street 
Chapel Hill, North Carolina

Attorneys for All plaintiffs
J. LeVONNE CHAMBERS

Chambers, Stein, Ferguson 
& Lanning

237 West Trade Street 
Charlotte, North Carolina 28202

CONRAD 0. PEARSON
203*5 East Chapel Hill Street 
Durham, North Carolina

Attorneys for Nathaniel James, et al., 
Plaintiffs-Appellees, 72-1065

(listing of attorneys continues on the following page)



S. W. TUCKER JAMES A. OVERTON
HENRY L. MARSH, III 623 Effingham Street
JAMES W. BENTON, JR. Portsmouth, Virginia 23704Hill, Tucker & Marsh 

214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Michael Copeland, et al., 
Plaintiffs-Appellants, Nos. 71-1993, 71-1994

S.W. TUCKER PHILIP S. WALKER
HENRY L. MARSH, III 1715 25th Street
JAMES W. BENTON, JR. Newport News, Va. 23607

Hill, Tucker & Marsh 
214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Frank V. Thompson, et al., 
Plaintiffs-Appellants, Nos. 71-2032, 71-2033

LOUIS R. LUCAS JAMES R. OLPHIN
525 Commerce Title Bldg. 214 East Clay Street
Memphis, Tennessee 38103 Richmond, Virginia 23219

M. RALPH PAGE
420 North First St.
Richmond, Virginia 23219

Attorneys for Carolyn Bradley, et al.,
Plaintiffs-Appellees, No. 71-1774



Page
ISSUES--------------------------------------------------------- ±

STATEMENT -----------------------------------------------------  2
ARGUMENT------------------------------------------------------ --

I. LEGISLATIVE HISTORY OF § 7 1 8 --------------------------H
II. SECTION 718 MUST BE APPLIED TO PENDING

SCHOOL DESEGREGATION CASES --------------------------  14
H I .  SECTION 718 REQUIRES THE APPLICATION OF THE 

"PRIVATE ATTORNEY-GENERAL" STANDARD OF 
NEWMAN V. PIGGIE PARK ENTERPRISES TO THESE
c a s e s ----~---------------- ______  21

IV. THESE PRINCIPLES REQUIRE HOLDINGS THAT COUNSEL
FEES BE ASSESSED IN EACH OF THE PRESENT CASES-----  25

CONCLUSION---------------------------------------------------- - -
CERTIFICATE OF SERVICE ---------------------------------------  28

TABLE OF CASES

Boomer v. Beaufort County Bd. of Ed., 294 F. Supp.
179 (E.D.N.C. 1968) ----------------------------------------  3

Bradley v. School Board of Richmond, 345 F.2d 310
(4th Cir. 1965) ------------------------------------------- 4# 9

Bradley v. School Board of Richmond, 53 F.R.D. 28
(D.C. Va. 1971) ------------------------------------------ 4f 9

Brewer v. School Board of City of Norfolk, 456 F.2d 943
(4th Cir. 1972) -------------------------------------- 4 , 7, 10

Brown v. Gaston County Dyeing Machine Co., 457 F.2d
1377 (4th Cir. 1972) -------------------------------------  3# 5

Buckner v. Goodyear Tire & Rubber Co., 339 F. Supp.
1108 (D.C. Ala. 1972 ) -------------------------------------  5

Carpenter v. Wabash Railway Co., 309 U.S. 23 (1940) --------  16
Citizens to Preserve Overton Park v. Volpe, 401 U.S.402 (1971) ----------------------------------------------- i6, 17
Clark v. American Marine Corp., 320 F. Supp. 709 (E.D.

La. 1970) aff'd, 437 F.2d 959 (5th Cir. 1971) ------------ 22

INDEX



11
Page

Glove v. Housing Authority of City of Bessemer, 444 F.2d 
158 (5th Cir. 1971) ------------------------------------

Green v. County School Board of New Kent, 391 U.S. 430
(1968) ------------------------------------------------------

Greene v. McElroy, 360 U.S. 474 (1959) ----------------------
Greene v. United States, 376 U.S. 149 (1964)------------- 19,
Hall v. Beals, 396 U.S. 45, 48 (1969) -----------------------
Hall v. St. Helena parish School Board, 424 F.2d 320, 322 

(5th Cir. 1970) ---------------------------------------------
Hamm v. City of Rock Hill, 379 U.S. 306 (1964) -------------
Johnson v. United States, 434 F.2d 340 (8th Cir. 1970)------
Lea v. Cone Mills Corp., 438 F.2d 86

(4th Cir. 1971) ---------------------------------- 5, 22, 23,
Lee v. Southern Home Sites Corp., 444 F.2d 143

(5th Cir. 1971) -------------------------------------------5,

6
19
20 

16

16
17
16

24

22
Monroe v. Board of Commissioners, 244 F. Supp. 353

(W.D. Tenn. 1965) ------------------------------------------- 4
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400

(1968)---------------------------------------- 4, 21, 22, 24, 25
Robinson v. Lorillard corp., 444 F.2d 791 (4th Cir. 1971)---  5
Sprague v. Ticonic National Bank, 307 U.S. 161 (1939)--------20
Swann v. charlotte-Mecklenberg Bd. of Ed., 402 U.S. 1

(1971) ----------------------------------------------------- - 7
Thorpe v. Housing Authority of Durham, 393 U.S. 268

(1969) -------------------------------------------15, 16, 18, 19
United States v. Board of Ed. of Baldwin Co., Ga.,

423 F.2d 1013 (5th Cir. 1970) ------------------------------ 16
United States v. Schooner Peggy, 5 U.S. (1 Cranch 103

(1801) ----------------------------------------- 15, 16, 18, 19
Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538

(1941) ------------------------------------------------------ 16
Ziffrin v. united States, 318 U.S. 73 (1943) ---------------- 16



STATUTES
42 U.S.C. § 1 9 8 1 ------------------------------------------------5
42 U.S.C. § 1982 ------------------------------------------------5
Title II, Civil Rights Act of 1964 --------------------------- 17
Title VII, Civil Rights Act of 1964 ----------------------- 5, 18
§ 204(b), Civil Rights Act of 1964 ----------------------- 21, 22
§ 706, Civil Rights Act of 1964 ----------------------  5, 21, 22
S.659, Education Amendments of 1 9 7 1 -------------------------- 13
§ 718, Education Amendments of 1972 ----------------------  passim
S.1557, Emergency School Aid and Quality Integrated

Education Act of 1971, § 1 1 ----------------------- 11, 12, 18
§ 812, Fair Housing Act of 1968 ----------------------- 5, 21, 22
Fed. Rules Civ. Proc., 54(d) ---------------------------------- 20

OTHER AUTHORITIES

House and Senate Conference Report No. 798, 92d Cong.
2nd Sess. -------------------------------------------------  13

117 Cong. Rec. (daily ed. April 21, 1971) ------------------ 12
117 Cong. Rec. (daily ed. April 22, 1971) ------ 13, 17, 23, 24
117 Cong. Rec. (daily ed. April 23, 1971) ----------- 13, 17, 23
117 Cong. Rec. (daily ed. April 26, 1971) -------------------- 13
Senate Rep. No. 92-61, 92d Cong., 1st Sess. ------------- 11, 12
Senate Rep. No. 92-604, 92d Cong., 2nd Sess. ----------------13
U.S. Code Congressional & Administrative News, 1972,

vol. 6 ----------------------------------------------13, 14, 17

Ill



UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 72-1065
NATHANIEL JAMES, et al.,

Plaintiffs-Appellees, 
v.

THE BEAUFORT COUNTY BD. OF EDUC., 
Defendant-Appellant.

Nos. 71-1993 and 71-1994 
MICHAEL COPELAND, et al.,

Plaintiffs-Appellants, 
v.

SCHOOL BD. OF THE CITY OF 
PORTSMOUTH, VA., et al.,

Defendants-Appellees.

Nos. 71-2032 and 71-2033 
FRANK V. THOMPSON, et al.,

Plaintiffs-Appellants, 
v.

THE SCHOOL BD. OF THE CITY 
OF NEWPORT NEWS, VA., et al.,

Defendants-Appellees. 

No. 71-1774
CAROLYN BRADLEY, et al.,

Plaintiffs-Appellees, 
v.

THE SCHOOL BD. OF THE CITY OF 
RICHMOND, VA., et al.,

Defendants-Appellants.

BRIEF FOR ALL PLAINTIFFS 

ISSUES

On August 1, 1972, this Court entered an order requesting 
further briefing in the above cases. The order said, in pertinent 
part:



On June 23, 1972, the President signed 
into law the Emergency School Aid Act.
Section 718 of this Act is directed to the 
problem of attorneys1 fees in school 
desegregation cases, a question involved in 
each of the above cases. Since these cases 
were all briefed and argued before the 
enactment of § 718, the parties have not 
had an opportunity to present fully their 
views regarding the possible application 
of this provision to their cases. Accord­
ingly, the Court has decided to convene 
en banc for the consideration of this issue 
in’ each of these cases. The parties are 
directed to file briefs, addressing this 
question, giving specific consideration to 
the legislative history of § 718, including 
whether retroactive application was intended 
by the congress and if so, to what extent.

This joint brief filed in behalf of the black plaintiffs in each
of these cases addresses the questions posed by the Court.

STATEMENT

These four cases arose out of claims by black persons that 
school authorities were engaging in racial discrimination in 
violation of the Fourteenth Amendment. In each case the plain­
tiffs established constitutional violations and requested that 
their recoverable costs include an award of reasonable counsel fees. 
In James and Bradley the district court awarded fees and the 
school officials appealed. The district court in Thompson also 
awarded fees from which the defendants appealed. The plaintiffs

1/ The parties filing this brief are: Nathaniel James, et al.,
tlie plaintiffs-appellees in 72-1065? Michael Copeland, et al., 
the plaintiffs-appellants in 71-1993 and the plaintiffs-appellees 
in 71-1994; Frank V. Thompson, et al., the plaintiffs-appellants 
in 71-2032 and plaintiffs-appellees in 71-2033; and Carolyn Bradley, 
et al., the plaintiffs-appellees in No. 71-1774.

2



inadequate
appealed also, challenging the /coverage of the award. in Copeland 
the trial court declined to include fees as a part of costs and 
the plaintiffs appealed.

A brief summary of the four cases follows.

James - No. 72-1065.
Suit was filed on April 18, 1969 by Nathaniel James, Roy

Simpson and the North Carolina Teachers Association against the
2/Beaufort County, North Carolina Board of Education. James, 

a principal, and Simpson, a teacher, claimed that they had been 
dismissed from their positions because of their race. The 
North Carolina Teachers Association (NCTA) supported their claims 
and further asserted that the Board had systematically decimated 
the ranks of black educators following an order fully to desegregate 
its school system for the 1968-69 school year.

The district court found in favor of James and the NCTA; 
it found against Simpson. The court ordered that James be 
reinstated with back pay and directed that remedial action be

2/ Plaintiffs brought suit under Title 42 U.S.C. § 1983 and 
§ 1981. See Brown v. Gaston County Dyeinq Machine Co.. 457 F.2d 
1377 (4th Cir. 1972). --- ------------
3/ Boomer v. Beaufort County Board of Education. 294 F. Supp.
179 (E.D.N.C. 1968); stay denied, F. Supp. (al55); stay
granted, ____  F.2d ____ (4th Cir. August 27, 1968") (al60) ; stay
vacated, ____  u.S. _____  (August 30, 1968) (per Mr. Justice Black)(al61); appeal withdrawn.

3



taken to counteract the discriminatory employment practices which 
had resulted in the drastic reduction of black teachers and principals 
immediately prior to the 1968-69 school year. The court also 
directed that counsel fees be taxed as part of the costs to be 
recovered by plaintiffs Simpson and the NCTA. The School Board 
appealed from all portions of the orders of the district court.

The plaintiffs have previously urged affirmance of the 
counsel fee award on the following grounds. First, fees should 
be awarded to prevailing plaintiffs in cases involving racial 
discrimination in public education because they act as private 
attorneys general vindicating important national policy. Newman 
v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968); Bradley v.
School Board of the City of Richmond, 53 F.R.D. 28 (D.C. Va. 1971).

Second, the record supports the court's award because of 
"the School Board's unreasonable obdurate obstinacy." Bradley v.
The School Board of the City of Richmond. 345 F.2d 310 (4th Cir.
1965).

Third, fees were appropriately awarded because the trial 
court found that the discrimination complained of was done in 
violation of a previous court order. Monroe v. Board of 
Commissioners, 244 F. Supp. 353 (W.D. Tenn. 1965).

Fourth, it was proper for the court to award fees because 
plaintiffs had secured relief in the form of a "pecuniary benefit" 
for themselves and other black educators. Brewer v. School Board of 
the City of Norfolk, 456 F.2d 943 (4th Cir. 1972).

4



Finally, fees are required because plaintiffs were successful 
in asserting claims of employment discrimination under 42 U.S.C.
§ 1981. Counsel fee standards for cases brought under Title VII 
of the Civil Rights Act of 1964, § 706, 42 U.S.C. § 2000e-5k,
Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971), Robinson v. 
Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), apply fully to 
employment discrimination cases brought under 42 U.S.C. § 1981. 
Brown v. Gaston County Dyeing Machine Co.. 457 F.2d 1377 (4th Cir. 
1972)* Buckner v. Goodyear Tire & Rubber Co.. 339 F. Supp. 1108 
(D.C. Ala. 1972). Fee awards in employment discrimination cases 
under § 1981 has resulted from a process of construing the old
statute, under which the courts are to fashion appropriate remedies

±/"interstitially" with the new (Title VII of the Civil Rights Act 
of 1964) which contains fairly detailed remedial provisions.
Indeed, including counsel fees as a part of the remedy in teacher 
discrimination cases, as was done by the court below, merely 
anticipated congressional action because the 1972 amendments to 
Title VII repealed provisions which had previously exempted 
educational institutions and public employers from coverage. 
Therefore, the fee award in this case must be affirmed on the 
basis of the amendments to Title VII adopted during the pendency 
of this appeal for all of the reasons we show that § 718 is now 
fully applicable.

4/ The Fifth circuit has construed 42 U.S.C. § 1982 "intersti- 
tially" with the counsel fee provision of the Fair Housing Act of 
1968, § 812, 42 U.S.C. § 3612(c) requiring an award for prevailing 
plaintiffs absent special circumstances. Lee v. Southern Home Sites 
Corp. . 444 F.2d 143 (5th Cir. 1971). — -------------'-----

5



Copeland - Nos. 71-1993, 71-1994
Black children and their parents commenced this action in 

April, 1965, seeking the elimination of racial discrimination in 
the public schools of the city of Portsmouth, Virginia.

Ihe school authorities responded to the suit by adopting 
a freedom of choice plan. Thereafter the plaintiffs objected to 
freedom of choice as being inadequate to eliminate segregation. 
Following Green v. The County School Board of New Kent County,
391 U.S. 430 (1968), the district court agreed that free choice 
was insufficient and required a new plan. A zoning plan was then 
approved by the court and again plaintiffs objected. During the 
summer of 1971, after the Supreme Court's decision in Swann v. 
Charlotte-Mecklenberg Board of Education, 402 U.S. 1 (1971), 
further hearings were held which resulted in a rejection of the 
neighborhood zoning plan then in effect and a new plan. These 
appeals followed.

On August 2, 1972, this Court decided the issues relating 
to the desegregation plan which had been approved by the court.
The court reserved decision of plaintiffs' claim that they should 
have been awarded counsel fees. The court has decided that the 
failure of the plan to provide for free transportation was improper; 
that the plan should be amended to include a "majority to minority" 
transfer provision; that further inquiry should be made by the 
district court to determine whether tests used to assign children 
to two formerly black schools which are used as special schools 
are "relevant, reliable and free of discrimination"; that the failure

6



to allow plaintiffs' expert a fee was not clearly erroneous; and 
that the basic provisions of the desegregation plan required by 
the district court, to which the defendants objected, were clearly 
warranted.

Ibe plaintiffs have previously urged that the district court 
should have awarded fees because they had acted as "private 
attorneys general," because of the School Board's obstinacy and 
because they had sought and were entitled to a ruling that the 
schoolchildren must be provided free transportation.

Since the August 2 decision holds that the plaintiffs were 
entitled to an order requiring free transportation for pupils 
assigned outside of their neighborhoods, plaintiffs are therefore 
entitled to counsel fees. Brewer v. The School Board of the city 
of Norfolk, supra .

Thompson - Nos. 71-2032, 71-2033
Suit was commenced in this school desegregation case on 

July 23, 1970 seeking elimination of segregation in the public 
schools operated by the School Board of the City of Newport News, 
Virginia. The Board was then assigning students under a freedom 
of choice plan. Proceedings in the case were stayed during the 
pendency of Swann v. Charlotte-Mecklenberg Board of Education in 
the Supreme Court. After that decision, hearings were held in 
August, 1971, and a desegregation order was entered. The court 
also awarded counsel fees to plaintiffs in the amount of $750.00, 
limiting the award to cover counsel's services in connection with 
a hearing on August 12, 1971.

7



The School Board appealed from the desegregation order and 
the counsel fee award. Plaintiffs also appealed, objecting to the 
plan because it left all first and second graders in segregated 
neighborhood schools and contending that the fee award should have 
covered plaintiffs' attorneys services for the entire case.

This Court decided all issues except for counsel fees in 
an opinion filed on August 2, 1972. Defendants' appeals were 
disallowed. With respect to the first and second grades, the 
case was "remanded to the District Court to consider any 
alternate plans that may be presented by the plaintiffs and 
others and to determine whether, on the basis of specific 
findings of fact, there is any practical or feasible alternative, 
promising greater racial balance in these two grades, to the 
neighborhood plan proposed by the school district, and, if there 
is, to amend the desegregation plan accordingly."

As to plaintiffs' attorneys' fee claim, the Court said:
It would seem inappropriate, however, to 
consider this claim until the District Court 
has resolved the issues, which on remand, it 
is hereby mandated to consider. In connection 
with its final order on those issues, it may 
make such allowances of attorney's fees as 
it finds proper under the terms of Section 
718, Higher Education Act of 1972.

Plaintiffs have urged that they are entitled to counsel fees 
for all of the proceedings below because they acted as private 
attorneys general and because the Board was obstinate in its 
refusal to adopt a constitutional desegregation plan.

8



This is an appeal by the School Board of the City of Richmond, 
Virginia, from an order entered by the district court on May 26,
1971 awarding the black plaintiffs counsel fees for the period of 
school desegregation litigation from March, 1970 until February, 
1971. The litigation for which fees were awarded involved the 
Richmond, Virginia public schools; it did not involve any of the 
litigation leading to the "metropolitan desegregation" order 
which was reversed by this Court on June 5, 1972. (Nos. 72-1058, 
1059, 1060, 1150.) The protracted and complex proceedings for which 
fees were awarded are described in plaintiffs-appellees1 main brief.

Plaintiffs had renewed their request that counsel fees be 
taxed as a part of their recoverable costs following the entry 
of the order on April 5, 1971 directing the implementation of a 
specific plan. Counsel fees were then separately considered by 
the district court. The propriety of the award is the only matter 
at issue in this appeal.

The court below held that fees should be awarded on two 
grounds. It held that in school desegregation cases complete 
relief requires such an award to prevailing private plaintiffs. 
Bradley v. School Bd. of Richmond, 53 F.R.D. 28, 41 (E.D. Va.
1971). It also awarded fees in its traditional equitable discretion 
because of the defendants1 resistance to constitutional mandates 
during the course of the litigation. In January, 1972 plaintiffs

Bradley - No. 71-1774

9



filed a detailed brief in this Court urging affirmance of the order 
on both grounds.

Following the initial argument, they filed a supplemental brief 
referring to certain matters mentioned in argument but not pre­
viously briefed and discussing the applicability of Brewer v.
School Board of the City of Norfolk, 456 F.2d 943 (4th Cir. 1972),

6/
which had been decided on the day of argument.

ARGUMENT

In summary, the position of the plaintiffs in these four 
actions is: (1) § 718 of the Education Amendments of 1972, which
provides for the award of counsel fees to prevailing plaintiffs

1/
in school desegregation cases, must be applied to claims 
for counsel fees at the appellate as well as the trial level; and 
(2) § 718 enacts the "private attorney-general" standard applicable 
in cases brought under Titles II and VII of the Civil Rights Act

6/ Brewer is also discussed in the plaintiffs' main briefs in 
Copeland and Thompson.
7/ Section 718 states:

SEC. 718. Upon the entry of a final order by 
a court of the United States against a local educa­
tional agency, a State (or any agency thereof), or the 
United States (or any agency thereof), for failure to 
comply with any provision of this title or for 
discrimination on the basis of race, color, or national 
origin in violation of title VI of the Civil Rights Act 
of 1964, or the fourteenth amendment to the Constitution 
of the United States as they pertain to elementary and 
secondary education, the court, in its discretion, upon 
a finding that the proceedings were necessary to bring 
about compliance, may allow the prevailing party, other 
than the United States, a reasonable attorney's fee as 
part of the costs.

10



of 1964 and Title VIII of the Housing Act of 1968. Therefore, this 
Court should decide the issue of counsel fees in these cases by 
reference to § 718, and affirm the awards in Nos. 72-1065 and 71- 
1774, and reverse the denial in Nos. 71-1993 and 71-1994. In Nos. 
71-2032, 71-2033, the partial award should be affirmed and the 
case remanded for award of the full counsel fees requested.

Before discussing the reasons why § 718 is applicable to 
the present cases, however, we will first set out in some detail 
the history of the enactment of the section.

I
LEGISLATIVE HISTORY OF § 718

The provision for attorneys' fees in school desegregation 
cases was first introduced in the Senate as § 11 of the Emergency 
School Aid and Quality Integrated Education Act of 1971, S. 1557.
The bill was reported to the Senate floor in April of 1971, and 
§ 11 was described in the report of the Senate Committee on Labor 
and Public Welfare. Sen. Rep. No. 92-61, 92d Cong., 1st Sess.
The report, while not setting out the precise text of § 11, describes 
it fully. Its provisions were substantially the same as those of 
§ 718 as it finally passed, with two important exceptions.

First, payment of attorneys' fees in school cases was to be 
made by the United States from a special fund established by the 
Act. Second, the section provided that "reasonable counsel fees, 
and costs not otherwise reimbursed for services rendered, and 
costs incurred, after the date of enactment of the Act" were to be

11



awarded to a prevailing plaintiff. It should be noted that the 
quoted language was omitted from § 718.

On April 21, 1971 Senator Dominick of Colorado introduced 
an amendment to delete § 11 in its entirety from the bill. The 
basis for the deletion was that it was not proper that the United 
States should bear the costs of attorneys1 fees but rather that 
such costs should be imposed on the school boards responsible for 
the maintenance of unconstitutionally segregated school systems. 
Senator Dominick's amendment passed. 117 Cong. Rec. S.5324-31 
(daily ed. April 21, 1971).

On the next day. Senator Cook of Kentucky, who was also 
opposed to § 11, introduced a new amendment identical to the

8/

8/ The description of § 11 in the Senate report is as follows:
This section states that upon the entry of a 

final order by a court of the United States against 
a local educational agency, a State (or any agency 
thereof), or the Department of Health, Education, 
and Welfare, for failure to comply with any provision 
of the Act or of title I of the Elementary and 
Secondary Education Act of 1965, or for discrimination 
on the basis of race, color, or national origin in 
violation of title VI of the Civil Rights Act of 1964 
or of the Fourteenth Article of amendment to the 
Constitution of the United States as they pertain to 
elementary and secondary education, such court shall, 
upon a finding that the proceedings were necessary to 
bring about compliance, award, from funds reserved 
pursuant to section 3(b)(3), reasonable counsel fees, 
and costs not otherwise reimbursed for services 
rendered, and costs incurred, after the date of 
enactment of the Act to the party obtaining such 
order. In any case in which a party asserts a right 
to be awarded fees and costs under section 11, the 
United States shall be a party with respect to the 
appropriateness of such award and the reasonableness 
of counsel fees. The Commissioner is directed to 
transfer all funds reserved pursuant to section 3 (b)
(3) to the Administration Office of the United States 
Courts for the purpose of making payments of fees 
awarded pursuant to section 11.

Senate Report No. 92-61, 92d Cong., 1st Sess., pp. 55-56.

12



present § 718, and after two days of debate that amendment was
passed. 117 Cong. Rec. S.5483-92 (daily ed. April 22, 1971) and
S.5534-39 (daily ed. April 23, 1971). The section as passed
became § 16 of S.1557, and S.1557 as a whole was passed on April 26,
1971, without any further debate of the attorneys' fees provision.
117 Cong. Rec. S.5742-47 (daily ed. April 26, 1971).

Subsequently, on August 6, 1971, the Senate passed a related
statute, S.659, the Education Amendments of 1971. See, U.S. Code2/Congressional and Administrative News, 1972, vol. 6, p. 2333.
Both Senate bills were then sent to the House. On November 5, 1971,
the House, in considering a parallel measure, H.R.7248, amended S.659.
The House struck everything after the enactment clause of the
Senate bill and substituted a new text based substantially on the
House bill and in effect combining provisions of S.1557 and S.659.
Ibid. In so amending the Senate bill the House omitted the attorneys1

10/
fees provision (Id., at 2406) without debate.

The amended Senate bill was then returned to the Senate with 
request for a conference, which request was referred to the Senate 
Committee on Labor and Public Welfare. However, the Committee, 
instead of acceding to the request for a conference, reported 
S.659 back to the Senate floor with amendments to the House 
substitute. Those amendments re-included the counsel fee provision 
of S.1557 in exactly the same form as it had originally passed the

9/ Sen. Rep. No. 92-604, 92d Cong., 2nd Sess., Report of the 
Senate Committee on Labor and Public Welfare on the Message of the 
House on S.659.
10/ Conference Report No. 798, 92d Cong., 2nd Sess.

13



Senate in April. Id. at 2333 and 2406. On March 1, 1972, the 
Senate passed S.659 as reported to it by the Committee, and this 
amended bill was then sent to conference. The Senate-House conference 
made further amendments and reported the bill to both houses with 
the continued inclusion of the attorneys' fees provision exactly 
as passed by the Senate. Id. at 2406. The provision was now 
§ 718 of the Education Amendments of 1972. The conference bill 
was passed with no further debate on § 718 by the Senate on May 24, 
1972 and by the House on June 8, 1972 (Id. at 2200), and was signed 
into law by the President on June 23.

Thus, the only debate concerning § 718 that our research 
has disclosed occurred in connection with its original passage 
by the Senate in April of 1971. As noted above, there was no 
debate in the House concerning its deletion when the House amended 
S.659 and there was no further debate in the Senate or the House 
with regard to the passage of the conference bill.

II
SECTION 718 MUST BE APPLIED TO 
PENDING SCHOOL DESEGREGATION 
CASES.

In its order of August 1, 1972, this Court refers at one 
point to possible "retroactive application" of § 718. We will 
discuss, infra, the extent to which the legislative history of 
§ 718 casts light on the intention of Congress as to this matter. 
Initially, however, we respectfully urge that in these cases, at 
least, the issue posed by § 718 is not retroactivity in the technical 
sense.

14



That is, the issue in these cases is whether, in deciding what 
is the governing legal standard with regard to the award of attorneys' 
fees in school desegregation cases, this Court should apply § 718 
to orders that were entered by district courts prior to the enactment 
of the section and which are presently on appeal. Plaintiffs' 
contention is that these cases are clearly controlled by "the 
general rule . . . that an appellate court must apply the law in 
effect at the time it renders its decision." Thorpe v. Housing 
Authority of Durham. 393 U.S. 268, 281 (1969). That is, where an 
issue is before an appellate court concerning the propriety of a 
lower court's decision, and there has been an intervening modi­
fication of the substantive rule of law relating to the issue,
that modification is to govern whether "the change was constitutional,

10a/
statutory, or judicial." 393 U.S. at 282.

This rule has been applied in cases where the change in law 
modifies the substantive rights of the parties so as either to 
create or to destroy rights of recovery. Thus, in the leading case 
in the area, United States v. Schooner Peggy. 5 U.S. (1 Cranch)
103 (1801), the question was who was entitled to possession of 
a French merchant vessel seized as a prize. At the time of seizure 
and the decision of the lower court the law was in favor of the 
captor of the vessel. While a writ of error was pending in the 
Supreme Court, however, a treaty was entered into which established

10a/ Retroactivity, as such, would only be an issue in a school case 
that had been finally disposed of with a prior disposition of a claim 
for attorneys' fees. Whether § 718 would apply in such a case is a 
question that need not be reached in these cases.

15



the contrary result. The Court held, in language quoted in Thorpe:
[I]f subsequent to the judgment and before 
the decision of the appellate court, a law 
intervenes and positively changes the rule 
which governs, the law must be obeyed. . . .
If the law be constitutional . . .  I know of 
no court which can contest its obligation.
5 U.S. (1 Cranch) at 110.

Similarly, in carpenter v. Wabash Railway Co., 309 U.S. 23
(1940) (also cited in Thorpe), pending disposition of a petition
for writ of certiorari, Congress modified the bankruptcy laws to
give equity receiverships in railroad corporations a preferred
status not theretofore enjoyed. The Court applied the statute, even
though it substantially modified the legal rights of creditors,
and reversed the lower court. See also, vandenbark v. Owens-Illinois
Glass Co., 311 U.S. 538 (1941) (intervening decision of state
court in diversity case creating new cause of action applied on
appeal from dismissal of case); ziffrin v. United States, 318 U.S.
73, 78 (1943); Hall v. Beals, 396 U.S. 45, 48 (1969) ("we review
the judgment below in light of the Colorado statute as it now stands,

11/not as it once did").
Thorpe further establishes that a stated intent by Congress 

that § 718 apply to pending cases is not necessary. In Thorpe, 
no such intent was expressed in the administrative regulation

11/ And see, united States v. Board of Education of Baldwin Co., Ga., 
423 F .2d 1013,1014 (5tVTcTr. 1970); Hall v. St. Helena parTsTTSchool 
Board, 424 F.2d 320, 322 (5th Cir. 1970); Citizens To Preserve 
Overton Park v. Volpe, 401 U.S. 402, 418-4T5 (1971); Johnson v.
United States, 434 F.2d 340, 343 (8th Cir. 1970); and Glove v.
Housing Authority of City of Bessemer, Ala., 444 F.2d T5§ [5th Cir. 
1971).

16



involved, and the Court in no way intimated that such an expression
12/

was required. Indeed, its description of its holding as "the
general rule," strongly indicates that the contrary is required; 
that is, if a new statute is not to apply to pending cases it must 
affirmatively appear that such was the intent of Congress. And it 
is clear that that is the rule in the case of legislation that 
alters the law as to the criminality of conduct. Thus, in Hamm v. 
City of Rock Hill, 379 U.S. 306 (1964), the Court held that the 
passage of Title II of the Civil Rights Act of 1964 made non­
criminal acts that were trespass under state law in the absence of 
an expression of Congressional intent to the contrary.

Turning to the legislative history of § 718, the conclusion 
is inescapable that not only is there no evidence of Congressional 
intent that it not apply to pending cases, but that the contrary 
inference must be drawn. Neither the text of § 718 itself nor the 
explanatory note of the conference committee report (U.S. Code and 
Adm. News, 1972, vol. 6, p. 2406) contains any language dealing 
with the issue. As noted above in part I, the section was debated 
only in the Senate in April, 1971; similarly, in that debate, there 
was no discussion at all of § 718’s application to pending cases, 
let alone any indicating an intention that it not be so applied.
117 Cong. Rec. S.5483-92 (daily ed. April 22, 1971) and S.5534-39 
(daily ed. April 23, 1971).

12/ See, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 
418-20 (1971), where the Court accepts petitioners' contention that 
a new regulation applies to pending cases even in the absence of any 
intention of a retrospective effect.

17



Indeed, the only indication as to Congress' intent in this
matter arises from the fact that § 11, the original attorneys' fee
provision as reported to the Senate as part of S.1557, did expressly
provide that it would apply only to "services rendered" after the
date of enactment of the Act (see n. 8, supra, and accompanying 

13/
text). Section 11 was rejected by the Senate, however, and
what is now § 718 was enacted two days later with the language of
limitation deleted. it is clear from this that the Senate was aware
of the applicability question and chose not to include language
demonstrating an intent that § 718 should not apply with regard to

14/legal services performed prior to the Act's passage. Thus, the
only possible inference that may be drawn from the legislative 
history is that the provision was meant to govern in all non-final 
attorneys' fee cases in accordance with the general rule stated 
in Thorpe.

We recognize, of course, that Thorpe indicates that there are 
certain exceptions to the rule. None of these exceptions are 
applicable in these cases, however. First, the Schooner Peggy case 
states:

It is true that in mere private cases between 
individuals, a court will and ought to struggle 
hard against a construction which will, by a 
retrospective operation, affect the rights of 
parties. . . .  5 U.S. (1 Cranch) at 110, quoted 
at 393 U.S. 268, 282.

13/ The language of § 11, it may be noted, indicates that it was to 
apply in cases filed before the Act's passage, but only to work done 
after that date.
14/ in contrast, see Title VII of the Civil Rights Act of 1964, 42 
U.S.C. §§ 2000e-l, 2000e-16, where Congress made it clear as to the 
prospective effective dates of a statute. Section 2(c)(1) and (3)

18



These cases, of course, are not "private," but on the contrary
are, in the language of Chief Justice Marshall, "great national
concerns," and therefore:

[T]he court must decide according to existing 
laws, and if it be necessary to set aside a 
judgment, rightful when rendered, but which 
cannot be affirmed but in violation of law, 
the judgment must be set aside. Ibid.

Indeed, the present cases are precisely the same as Thorpe.
That is, they are between individuals and governmental agencies,
and their purpose is to vindicate important constitutional rights.
Therefore, "the general rule is particularly applicable here."
393 U.S. at 282.

The second class of exceptions to the general rule mentioned
15/

in Thorpe is where it is necessary to prevent "manifest injustice."
The Court referred specifically to Greene v. United States, 376 U.S. 
149 (1964), which was relied upon by the North Carolina Supreme 
Court in holding that the administrative regulation did not apply 
to the eviction of Mrs. Thorpe (271 N.C. 468, 157 S.E.2d 147 
(1967)).

14/ (cont.)
of the Education Amendments of 1972 merely specifies that the Act 
shall be effective as of June 30, 1972 or July 1, 1972, the end of 
the fiscal year 1972, rather than on the date the President signed 
the bill. It in no way speaks to the application of the Act's 
provisions to litigation pending on that effective date.
15/ If anything, in these cases, the application cf § 718 will 
serve the cause of justice by reimbursing the private black plaintiffs 
for taking on the task of correcting deprivations of constitutional 
rights to the benefit of all society.

19



Greene, as explained in Thorpe, is clearly not applicable to 
these cases. There, the Supreme Court had handed down, in a prior 
case (Greene v. McElroy. 360 U.S. 474 (1959)), an order finally 
disposing of the substantive issues. in 1959 Greene filed a claim 
for damages with the government, and when it was denied, filed 
suit. The government argued that the right to recover should be 
governed by a 1960 regulation that set up a new bar to his recovery. 
The Supreme Court rejected this argument, holding that this would 
indeed be the retroactive overruling of a case finally disposed of, 
and hence not permissible.

None of the present cases, of course, present such a situation 
since, as pointed out above, they all involve appeals from lower
court orders in cases which have not as yet been finally disposed

16/of.

15/ In a school desegregation case that has been finally terminated, 
whether attorneys' fees may still be obtained could be decided by 
reference to the ordinary rules as to the time limitations as to 
when costs must be applied for. Thus, although F.R.C.P. 54(d) 
does not contain specific time limitations, many district courts 
have rules requiring that costs be requested within a reasonable 
time or "as soon as possible" after judgment. See, e_.£., Rule 11(c), 
E.D. North Carolina. For a discussion of when it is appropriate 
to seek attorneys' fees, see, Spraque v. Ticonic National Bank,
307 U.S. 161 (1939). ----------------------

20



Therefor©, for ell of the above reasons, the general rule enunciated 
in Thorpe applies and these cases should be decided on the basis of 
the legal standard established by § 718.

Ill
SECTION 718 REQUIRES THE APPLICATION OF 
THE "PRIVATE ATTORNEY-GENERAL" STANDARD 
OF NEWMAN v. PIGGIE PARK ENTERPRISES TO 
THESE CASES. ~~

Once it has been decided that § 718 applies to these cases, 
there can be no question but that it imposes the same standard 
with regard to the award of attorneys' fees as do § 204(b) of 
Title II and § 706 (k) of Title VII of the Civil Rights Act of 1964 
and § 812(c) of Title VIII of the Civil Rights Act of 1968. That 
is, the standard is that established by the Supreme Court in Newman 
v. Piggie Park Enterprises, 390 U.S. 400 (1968).

In Newman the Court held that Title II mandated the award of 
attorneys' fees to a prevailing plaintiff "unless special circum­
stances would render such an award unjust." 390 U.S. at 402. Thus, 
ordinarily a fee must be awarded, and the burden is on the losing 
defendant to show why one should not be. The reason is that 
plaintiffs seeking the desegregation of public accommodations 
cannot recover damages, and:

If he obtains an injunction, he does so not for 
himself alone but also as a "private attorney 
general," vindicating a policy that Congress 
considered of the highest priority. ibid.

Otherwise, private parties would be discouraged from advancing the
public interest by going to court. Therefore, the Court specifically

21



rejected any requirement that the defendants acted in bad faith 
or were obdurate or obstinate. Subsequently, lower courts have 
applied the same standard in cases arising under the attorneys' 
fee provision of Title VII. See, e_.c[_., Lea v. Cone Mills Corp.,
438 F.2d 86 (4th Cir. 1971); Clark v. American Marine Corp., 320 
F. Supp. 709 (E.D. La. 1970), aff'd, 437 F.2d 959 (5th Cir. 1971).
And see, Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 
1971).

We urge that § 718 enacts the Newman standard for school 
desegregation cases for the following reasons;

1. The relevant language, with two exceptions that will be 
discussed below, of § 718 is the same as that of Title II, Title VII, 
and Title VIII. Thus:

Title II, § 204(b). In any action. . . 
the court, in its discretion, may allow the 
prevailing party . . .  a reasonable attorney's 
fee as part of the costs. . . .

Title VII, § 706(k). In any action . . . 
the court, in its discretion, may allow the 
prevailing party, . . .  a reasonable attorney's 
fee as part of the costs . . . .

Title VIII, § 812(c). The court may . . . 
award . . . court costs and reasonable attorneys 
fees in the case of a prevailing plaintiff . . .

Section 718. Upon the entry of a final 
order by a court . . . the Court, in its 
discretion, upon a finding that the pro­
ceedings were necessary to bring about 
compliance, may allow the prevailing party 
. . .  a reasonable attorney's fee as part of 
the costs.

Thus, these cases are governed by the general rule that legislative 
use of language previously construed by the courts implies an 
adoption of that judicial construction unless a contrary intention

22



overwhelmingly appears. See, e_.c£., Armstrong Paint & Varnish Works 
v. Nu-Enamel Corp., 305 U.S. 315, 332 (1938).

2 . It is absolutely clear from the legislative history that 
Congress intended that § 718 mean exactly the same as Titles II, 
VII, and VIII. Thus, Senator Cook, who introduced the provision 
and was its main sponsor, on no fewer than three occasions so 
stated, and even read into the record the texts of those sections
to underscore his point. 117 Cong. Record, S.5484, 5490 (daily ed.

17/
April 22, 1971), 117 Cong. Record S.5537 (daily ed. April 23,
1971).

3. Finally, it is clear that § 718 fulfills the same purpose
as do the counsel fee provisions in the earlier acts. Just as in
Newman, plaintiffs act as "private attorneys-general" to vindicate
and advance broad public policy. And, just as this Court held as
to the Title VII attorneys' fee provision in Lea v. cone Mills,
supra, there is no reason not to conclude that precisely the

18/
same standard now applies in school cases.

17/ Thus:
This amendment is very simple. This amendment 
conforms with the language of the Civil Rights 
Act of 1964, it complies with Title VII of the 
Equal Employment Opportunities Act, and it 
complies with the civil Rights Act of 1968.
Id. at 5490.

18/ It may be noted, in reference to No. 72-1065, the James case, 
that this conclusion is further buttressed by the fact that teacher 
dismissal cases now may be brought under Title VII as amended in 
1972. Such an action would be governed by the Title VII attorneys' 
fee provision and hence by Newman and Lea.

23



As noted above, however, there are two differences of signi­
ficance in the text of § 718 as compared to the earlier statutes.
First, it refers to the entry of a "final order" as the time at 
which attorneys' fees and costs may be taxed. It is clear that
this does not mean the final termination of the litigation, but

19/
upon the entry of a realistic, appealable order and the expiration 
of appeal time or the exhaustion of appeals (see, the Remarks 
of Sen. Cook at 117 Cong. Rec. S.5490 (daily ed. April 22, 1971).

Second, and more significant, is the language that an award 
may be made "upon a finding that the proceedings were necessary 
to bring about compliance" [with the Fourteenth Amendment]. A 
considerable portion of the debate in the Senate deals with this 
language, and it is clear that it is intended to protect against 
two abuses, the champertous filing of unnecessary lawsuits simply 
to get a fee when a school board is in fact going to comply with 
the law, and the unnecessary protraction of litigation to trial 
and judgment when a school board has made a bona fide and adequate 
offer of settlement. See, 117 Cong. Rec. S.5485 (daily ed. April 22, 
1971) (colloquy between Senators Javits and Cook), Id. at S.5490-91). 
Thus, the language was in no way intended to modify the substantive 
rule of Newman; i_.e_., if a plaintiff does prevail and a court 
enters an order requiring compliance with the Constitution, he 
must be awarded attorneys' fees except in unusual circumstances.

To summarize, we urge that the result in these cases should 
be the same as in Lea v. cone Mills, supra, viz., just as in the

19/ Totally or substantially achieving "compliance ... with the 
fourteenth amendment." See Green v. County School Board of New Kent 
County, supra. See also, Thompson as quoted page 8, supra. Of course, 
the litigation would not be terminated until a reasonable period for 
monitoring had expired.

24



case of the counsel fee provision of Title VII, § 718 must be
20/

given the interpretation and effect mandated by Newman.

IV
THESE PRINCIPLES REQUIRE HOLDINGS THAT 
COUNSEL FEES BE ASSESSED IN EACH OF THE 
PRESENT CASES.

Only a brief discussion is required to show that in each of 
the cases before the Court § 718 requires the award of counsel fees. 
As to all of them, the general Newman standard was met. Plaintiffs 
prevailed in each, either at trial or on appeal, and the lower 
court entered appropriate orders. Thus, the "private attorneys- 
general" role was fulfilled, and attorneys' fees are mandated.
On the other hand, there is nothing in the record of any of these 
cases to support the conclusion that there are any special circum­
stances present that would militate against the award.

With regard to the specific requirement of § 718, that the 
order was necessary for compliance, a case-by-case analysis also 
demonstrates that awards are required.

1. James - No. 72-1065
Plaintiff James was demoted by the defendant school 

board in violation, as the lower court found, of a previous court 
order. Such a demotion and refusal to reappoint clearly necessitated

20/ Thus, it is clear from both the language and legislative 
hTstory of § 718, together with the extension of Title VII to public 
employment, that Congress has rejected any notion that there is 
somehow an impropriety in assessing attorneys' fees against public 
agencies.

25



a court proceeding. That the order reinstating James was necessary 
is conclusively demonstrated by the board's appeal of it; obviously 
the defendant has no intention of complying with the Fourteenth 
Amendment unless so ordered by a court.

2. Copeland - Nos. 71-1993, 71-1994
In this case, this Court, by its order of August 2, has already 

held that plaintiffs are entitled to certain orders by the district 
court. Thus, it affirmed the entry of the order appealed from by 
the appellant school board as "clearly warranted" and sent the case 
back down with instructions to enter a further order. From this, 
it is clear that not only the proceeding but the entry of the orders 
involved were necessary to achieve compliance.

3. Thompson - Nos. 71-2032, 71-2033
Again, the school board defendant has appealed and urged that 

the order of the district court was unwarranted. This Court, in 
its order of August 2, however, rejected that argument and held 
that the "objections of the school district are without merit."
This affirmance of the district court's action clearly establishes 
here also that both the proceeding and the court's order were 
necessary.

4. Bradley - No. 71-1774
Here, the only issue on appeal is a counsel fee award. In 

essence, the court below has already made the finding required by 
§ 718 by its holding that the school board resisted constitutional 
mandates, hence necessitating both the proceeding and the order of 
April 5, 1971, that resulted therefrom.

26



In conclusion, two observations can be made about the appli­
cation of the "necessary proceeding" clause in these cases.
Clearly, the first concern of Congress is met in all of them; 
since at the time the proceedings were commenced there was no 
clear entitlement to counsel fees, they could not have been brought 
for the purpose of obtaining them. As to the second concern, there 
is no basis for concluding that the school boards involved were 
ever willing voluntarily to comply with constitutional mandates.
No offers of adequate settlement were made, and the relief sought 
was resisted in the court below in every instance.

CONCLUSION

For the foregoing reasons, the awards of counsel fees in 
Nos. 71-1774, 71-1065, and 71-2032, 71-2033, should be affirmed, 
and the denials of fees in Nos. 71-2032, 71-2033 and 71-1993, 
71-1994 should be reversed and the cases remanded.

Respectfully submitted,

■ / *■
JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

ADAM STEIN
Chambers, Stein, Ferguson & 

Lanning
157 E. Rosemary Street 
Chapel Hill, North Carolina

Attorneys for All Plaintiffs

27



J. LeVONNE CHAMBERS CONRAD O. PEARSON
Chambers, Stein, Ferguson 203^ East Chapel Hill St.

& Lanning Durham, North Carolina237 West Trade Street 
Charlotte, North Carolina 28202

Attorneys for Nathaniel James, et al.,
Plaintiffs-Appellees, 72-1065

S.W. TUCKER JAMES A. OVERTON
HENRY L. MARSH, III 623 Effingham Street
JAMES W. BENTON, JR. Portsmouth, Virginia 23704

Hill, Tucker & Marsh 
214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Michael Copeland, et al.,
Plaintiffs-Appellants, Nos. 71-1993, 71-1994

S.W. TUCKER
HENRY L. MARSH, III
JAMES W. BENTON, JR.

Hill, Tucker & Marsh 
214 East Clay Street 
Richmond, Virginia 23219

PHILIP S. WALKER 
1715 25th Street 
Newport News, Va. 23607

Attorneys for Frank V. Thompson, et al.. 
Plaintiffs-Appellants, Nos. 71-2032, 71-2033

LOUIS R. LUCAS JAMES R. OLPHIN
525 Commerce Title Bldg. 214 East Clay Street
Memphis, Tennessee 38103 Richmond, Virginia 23219

W. RALPH PAIGE
420 North First St.
Richmond, Virginia 23219

Attorneys for Carolyn Bradley, et al., 
Plaintiffs-Appellees, No. 71-1774

28



Certificate of Service

I hereby certify that on this 26th day of August, 1972,
I served a copy of the foregoing Joint Supplemental Brief for All 
Plaintiffs on counsel for defendants by depositing the same in 
the United States mail, air mail postage prepaid, addressed as 
follows:

Mssrs. McMullan, Knott and Carter
Beaufort County Bd. of Education
P.0. Box 1148
Washington, North Carolina 27889

Attorneys for Defendant-Appellant in No. 72-1065
Mr. Michael A. Korb, Jr.

224 Pembroke One Building 
281 Independence Boulevard 
Virginia Beach, va. 23462

Counsel for Defendants-Appellees in Nos.
71-1993, 71-1994

Mr. Robert V. Beale
Bateman, West & Beale 
11048 Warwick Boulevard 
Newport News, Va. 23601

Mr. P. A. Yeapanis 
118 Main Street 
Newport News, Va. 23601

Counsel for Defendants-Appellees in 
Nos. 71-2032, 71-2033

Mr. George B . Little
Browder, Russell, Little & Morris 
1510 Ross Building 
Richmond, Va. 23219

Counsel for Defendants-Appellants in No. 71-1774.

29