Hill v. Franklin County Board of Education Brief for Intervening Plaintiff-Appellee

    N o. 17,647

In the

Imfrii But?# Court of Appraio
F oe the  S ixth  Circuit

Samuel H ill, et al.,
Plaintiffs,

and

Mrs V irginia S cott,

Intervening Plaintiff-Appellee,

v.

F ranklin County B oard of E ducation, et al.,
Defendants-Appellants.

appeal from the united states district court for the 
EASTERN DISTRICT OF TENNESSEE, WINCHESTER DIVISION

BRIEF FOR INTERVENING PLAINTIFF-APPELLEE

J ack Greenberg 
J ames M. N abrit, III 
Michael J .  H enry

10 Columbus Circle 
New York, N. Y. 10019

A von N. W illiams, Jr.
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Intervening 
Plaintiff-Appellee



I.

Was the trial court justified in concluding that a Negro 
faculty member was wrongfully discharged because of 
race, when she had been assigned to an all-Negro school 
on the basis of race and was discharged in consequence 
of an enrollment loss at that school resulting from the im­
plementation of a plan of desegregation, without compari­
son to other faculty members in the system!

The District Court answered this question “Yes” and 
Appellee agrees that it should have been answered “Yes.”

II.
Was the trial court within its allowable discretion in 

awarding attorneys’ fees to a Negro faculty member who 
had been discharged because of race, where there had been a 
long history of discriminatory conduct on the part of the 
board of education, and the bringing of the action should 
have been unnecessary!

The District Court answered this question “Yes” and 
Appellee agrees that it should have been answered “Yes.”

Counter-Statement o f Questions Involved



I N D E X

PAGE

Counter-Statement of Questions Involved .....   Preface

Counter-Statement of Facts .......................................  1

Argument ....................................................................... 5
Question I ...........................    5
Question II ......................................    13

Belief ........   16

T able op Cases:

Avery v. Georgia, 345 U.S. 559 (1953) ........................  10

Bell v. School Board of Powhatan County, Virginia,
321 F.2d 494 (4th Cir., 1963) ............................... 13,15

Bradley v. School Board of the City of Richmond, 382
U.S. 103 (1965) ........................................................ 8,11

Bradley v. School Board of the City of Richmond, 345
F.2d 310 (4th Cir., 1965) .....................................8,14,15

Brown v. Board of Education, 347 U.S. 483 (1954) .... 9

Chambers v. Hendersonville City Board of Education,
364 F.2d 189 (4th Cir., 1966) ............................. 7, 9,10

Clark et al. v. Board of Education of Little Rock
School District, 369 F.2d 661 (8th Cir., 1966) ........  14

Colorado Anti-Discrimination Comm’n v. Continental 
Air Lines, Inc., 372 U.S. 714 (1963) ......................  11

Eubanks v. Louisiana, 356 U.S. 584 (1958) ...............  10

Franklin v. County School Board of Giles County, 360 
F.2d 325 (4th Cir., 1966) 8,9



11

PAGE

Hill v. County Board of Education of Franklin County, 
Tenn., D.C. Tenn. (1964), 232 F. Supp. 671, 673 ..... 13

Johnson v. Branch, 364 F.2d 177 (4th Cir., 1966) ......  10

Monroe v. Board of Commissioners of the City of Jack- 
son, Tenn., 244 F. Supp. 353 (D.C.W.D., Tenn., 
1965) ..........................................................................  16

Norris v. Alabama, 294 U.S. 587 (1935) .................... 10

Reece v. Georgia, 350 U.S. 85 (1955) ............................  10
Rogers v. Paul, 382 U.S. 198 (1965) ..........................  11
Rolas v. Atlantic Coast Line R. Co., 186 F.2d 473 (4th 

Cir., 1951) .................................................................. 16

Smith v. Board of Education of Morrilton School Dis­
trict No. 32, 365 F.2d 771 (8th Cir., 1966) .............  10

State ex rel Anderson v. Brand, 303 U.S. 95 (1938) .... 8

Todd v. Joint Apprenticeship Committee of the Steel 
Workers of Chicago, 223 F. Supp. 12 (N.D. 111., 
1963) ..........................................................................  8

United Public Workers v. Mitchell, 330 U.S. 75 (1947) 11

Wheeler v. Durham City Board of Education, 346 F.2d 
768 (4th Cir., 1965) ........      9

Wieman v. Updegratf, 344 U.S. 183 (1952) ................ .8,11

Other A uthorities:

6 Moore’s Federal Practice (2nd Ed.) ........
Note, 77 Ilarv. L. Rev. 1135 (1964) ............
1964 Civil Rights Act, 42 U.S.C. §2000 e-5(g)

. 16 

. 15 

.8,11



In the

Initeii Olmurt of Appals
F oe th e  S ixth Ciectjit

No. 17,647

S amuel H ill, et al.,
Plaintiffs,

and

Mbs V irginia S cott,

Intervening Plaintiff-Appellee,

v.

F ranklin County B oard op E ducation, et al.,
Defendants-Appellants.

appeal prom the united states district court for the

EASTERN DISTRICT OP TENNESSEE, WINCHESTER DIVISION

BRIEF FOR INTERVENING PLAINTIFF-APPELLEE

Counter-Statement of Facts*

This is an action in which Mrs. Virginia Scott inter­
vened on behalf of herself and all other persons similarly

* This ease is one of three appeals—Nos. 17,647, 17,648, and 17,649— 
arising from the same Motion for Further Relief and District Court 
opinion. The respective parties have stipulated to file a Joint Appendix 
under this Court’s Rule 16(5), which will not be printed until after 
briefs are filed as provided by that rule. Thus the citations in this State­
ment of Facts are to the typewritten transcript, and other papers in the 
original record on appeal, rather than to the printed record.



2

situated, against the County Board of Education of Frank­
lin County, Tennessee, seeking relief against the hoard’s 
policy and practice of racially discriminatory discharges 
of Negro teachers.

Mrs. Virginia Scott had approximately 29 years of teach­
ing experience, 20 of which were in the Franklin County 
school system (Tr. 13). She had taught at Mr. Zion elemen­
tary school during all those 20 years (Tr. 13). Mt. Zion 
was an all-Negro school, completely segregated as to faculty 
and student body during that entire period (Tr. 14, 138). 
Mrs. Scott was certified to teach grades one through nine 
(Tr. 23). She had never received a reprimand or any other 
such action reflecting on her ability as a teacher during all 
those 20 years (Tr. 17, 136).

The Franklin County school system was ordered to adopt 
a freedom-of-choice desegregation plan by the district court 
in April, 1965. It is incorrect to state, as did appellants in 
their brief, that desegregation was undertaken voluntarily 
by the Franklin County school system. It resulted from 
very long court litigation by plaintiffs in this case. Fur­
thermore, it was the unwavering policy of the Franklin 
County school system to assign Negro teachers only to 
schools with exclusively Negro student bodies, through the 
school year 1965-66, even though required to integrate the 
faculty under the Court-ordered plan of desegregation of 
April, 1965 (Tr. 166).

In August, 1965, when Mt. Zion School opened under 
the new desegregation plan, the enrollment dropped from 
approximately 80 to approximately 40 students, as a num­
ber of the Negro students elected to transfer to the pre­
viously all-white Huntland elementary school, which they 
were now permitted to do under the new desegregation 
plan (Tr. 15-16). Immediately after this enrollment loss



3

became apparent, on August 17, 1965 (Tr. 42) the Super­
intendent sent Mrs. Scott a letter stating that due to the 
drop in enrollment she was discharged (Tr. 17). Mrs. 
Scott lacked the protection of the Tennessee teacher tenure 
law, because she had not completed her higher education. 
The two other teachers at Mt. Zion enjoyed tenure, so that 
when the enrollment dropped the school system determined 
to discharge Mrs. Scott (Tr. 141-142).

At a special session of the board of education immedi­
ately thereafter, on August 23, 1965, the board voted unani­
mously to ratify the Superintendent’s dismissal of Mrs. 
Scott (Tr. 115-116). There was no attempt made at this 
meeting to compare Mrs. Scott’s qualifications with any 
other teachers in the system, except the other two at Mt. 
Zion, before discharging her (Tr. 116-117). The Superin­
tendent admitted that Mrs. Scott was singled out in the 
discussion about teachers who lacked tenure, and that other 
teachers who also lacked tenure were not discussed (Tr. 
117, 137). The system in fact maintained no formalized 
standards for determining which teachers to remove (Tr. 
139).

Mt. Zion and Huntland Schools opened approximately 
two weeks earlier than the other schools in the county 
in order to permit a recess later during the cotton picking 
season (Tr. 16). Thus, at the time that Mrs. Scott was 
discharged, five days after the opening of the Mt. Zion 
School, she could have been considered for any other 
elementary school in the county without interfering with 
an already in-progress session (Tr. 38).

Four other Negro teachers were discharged at approxi­
mately the same time as Mrs. Scott in consequence of 
enrollment losses at Negro schools resulting from the im­
plementation of the plan of desegregation (Tr. 50).



4

At the same time that the Franklin County School Sys­
tem discharged Mrs. Scott in consequence of the imple­
mentation of the desegregation plan, there were 32 white 
teachers in the system who also did not have degrees, as 
Mrs. Scott did not (Tr. 127). Twenty-five of those were 
junior to Mrs. Scott in length of service in the Franklin 
County School System, and 27 of those had less total teach­
ing experience than Mrs. Scott (Tr. 128). Twenty-three of 
the 25 juniors in service to Mrs. Scott also had fewer col­
lege credits than she did (Tr. 128). Four of these teachers 
were employed for elementary positions in 1964-65, just 
the year before Mrs. Scott’s discharge (Tr. 128). One of 
these four teachers had been employed at the Huntland 
Elementary School, the larger and previously all-white 
school near to Mt. Zion (where Mrs. Scott had been teach­
ing) to which the Negro students at Mt. Zion transferred 
(Tr. 133). Mrs. Scott’s qualifications were compared to 
none of these before she was discharged (Tr. 147-149).

Furthermore, just five days before Mrs. Scott was dis­
charged, 15 new white elementary teachers were employed 
by the system. None of these had anywhere near Mrs. 
Scott’s experience (Tr. 150-151, 188-190).

The District Court held a hearing in this case on August 
25, 1966, and filed an opinion on September 30, 1966. 
The court found that the discharge of Mrs. Scott was 
wrongful because based upon race. It is totally inac­
curate to state, as did appellants in their brief, that the 
“Trial Court denied all relief sought” except for a ten- 
day period. The court found for the appellee, Mrs. Scott, 
on the primary issue of wrongful discharge, and then 
simply ruled that she had failed to mitigate her damages 
by not accepting a subsequently offered position.



5

A R G U M E N T

I.

Was the trial court justified in concluding that a 
Negro faculty member was wrongfully discharged be­
cause o f race, when she had been assigned to an all- 
Negro school on the basis o f race and was discharged 
in  consequence o f an enrollment loss at that school re­
sulting from  the im plem entation o f  a plan o f desegre­
gation, without comparison to other faculty members 
in  the system?

The District Court answered this question “ Yes” 
and Appellee agrees that it should have been answered 
“Yes.”

In this case, a board of education which was implement­
ing a Constitutionally required plan of desegregation, uti­
lizing the “freedom of choice” approach, discharged several 
Negro teachers at previously all-Negro schools upon a sub­
stantial drop in enrollment at those schools—without com­
paring the qualifications of the discharged teachers to other 
teachers in the system, and shortly after employing fifteen 
new white elementary teachers for the system.

The “freedom of choice” desegregation plan had been 
adopted under court order in April, 1965. At approxi­
mately the same time, the school system made contracts 
and assignments of faculty members for the following 
(1965-66) school year. In spite of the court-ordered plan 
of desegregation, the school system continued its unwaver­
ing policy of assigning Negro teachers only to schools with 
exclusively Negro student bodies for the 1965-66 school 
year.



6

Appellee Mrs. Virginia Scott had been teaching for 20 
years in the Franklin County school system, and had been 
assigned to the all-Negro Mt. Zion Elementary School dur­
ing that entire period. As the desegregation plan was im­
plemented at the opening of the 1965-66 school year in 
August 1965, an enrollment drop occurred at the Mt. Zion 
School as a substantial number of Negro students trans­
ferred to a nearby previously all-white elementary school. 
Mrs. Scott was discharged from her position as soon as the 
enrollment loss became apparent, since she was the only 
non-tenure teacher at Mr. Zion.

In spite of the fact that Mrs. Scott was certified to teach 
grades one through nine, her qualifications were not com­
pared to those of any other teachers in the system apart 
from the other two teachers at the Mt. Zion School, who 
were both tenure teachers. The Franklin County school 
system had no formal standards at that time for determin­
ing which teachers must be discharged when enrollment 
dropped below the state minimums for financial aid. At 
the time of Mrs. Scott’s discharge, there were 32 white 
teachers in the system who also did not have degrees and 
therefore lacked the protection of the tenure law. Twenty- 
five of these were junior to Mrs. Scott in length of ser­
vice in the system, and 27 had less total teaching experience 
than she did.

Just five days before Mrs. Scott was discharged, 15 new 
white elementary teachers had been employed by the sys­
tem—none of whom had anywhere near Mrs. Scott’s ex­
perience. Furthermore, four other Negro teachers were 
discharged at approximately the same time as Mrs. Scott 
in consequence of enrollment losses at Negro schools result­
ing from the implementation of the plan of desegregation. 
While these teachers eventually obtained other equivalent



7

positions from the system, this was not until after all of 
the discharged teachers had contacted an attorney to un­
dertake litigation, and the State Commissioner of Educa­
tion had intervened on their behalf, since they were tenure 
teachers (Tr. 163-165). The subsequent offer to Mrs. 
Scott, to which appellants refer in their brief, also oc­
curred after these events.

Based upon these facts, the District Court concluded:
However, neither did the defendants have in effect 

any standards of employment and dismissal by which 
it could be properly determined whether Mrs. Scott or 
some other teacher in the system should be discharged. 
The Court finds that Mrs. Scott was dismissed simply 
because she was the only non-tenure teacher at Mt. Zion 
School. She was qualified and certified to teach any 
and all grades one through nine. Five non-tenure 
teachers with less experience than Mrs. Scott were then 
teaching at Huntland School, although two of these 
teachers were college graduates, and Mrs. Scott was 
not. Four of the Huntland teachers were teaching the 
same grades as Mrs. Scott.

Because the defendant Board had no definite ob­
jective standards for the employment and retention 
of teachers which were applied to all teachers alike in 
a manner compatible with the requirements of the due 
process and equal clauses of the Federal Constitution, 
Chambers v. The Hendersonville City Board of Educa­
tion, C.A. 4th (1966), -----  F.(2d) -----  [No. 10,379,
decided on June 10, 1966], and only compared with 
Mrs. Scott’s qualifications those of two other Negro 
teachers at Mt. Zion when deciding which teacher 
should be dismissed, the cancellation of Mrs. Scott’s 
teaching contract was wrongful.



8

The District Court’s decision is clearly in accord with the 
now unarguable proposition that Negro faculty members 
assigned to Negro schools on the basis of race may not be 
dismissed in consequence of enrollment losses resulting 
from the implementation of plans of desegregation, without 
comparison to other faculty members in the system, since 
such dismissals are clearly on the basis of race. In Frank­
lin v. County School Board of Giles County (Va.), 360 F,2d 
325 (4th Cir., 1966), the school board simply closed the 
Negro schools, allowing all of the Negro children to trans­
fer to the formerly white schools, but discharging all of the 
Negro faculty members. The Court of Appeals for the 
Fourth Circuit held that on the record in the Franklin case, 
no comparative evaluation of the discharged teachers with 
the other teachers in the system had apparently been made, 
and that therefore “the plaintiffs were discharged be­
cause of their race.” 360 F.2d at 327. The Court said:

The defendants have conceded that the Fourteenth 
Amendment forbids discrimination on account of race 
by a public school system with respect to the employ­
ment of teachers. Bradley v. School Board, 345 F.2d 
310, 316 (4 Cir. 1965), reversed on other grounds, 382 
U.S. 103 (1965).

Under the circumstances, the plaintiffs are entitled 
to a mandatory injunction requiring their reinstate­
ment. See: State ex rel Anderson v. Brand, 303 U.S. 
95 (1938); Wieman v. Updegraff, 344 U.S. 183 (1952); 
Todd v. Joint Apprenticeship Committee of the Steel 
Workers of Chicago, 223 F.Supp. 12 (N.D. 111. 1963). 
We think the provisions of the 1964 Civil Rights Act 
(42 U.S.C. § 2000 e-5(g)) where the courts are granted 
authority to order reinstatement of discriminitees fur­
ther supports our conclusion. 360 F.2d at 327.



9

In Chambers v. Hendersonville City Board of Education 
(N. Car.), 364 F.2d 189 (4th Cir., 1966), at the end of a 
school year the Negro enrollment in the system dropped 
by 50% because Negro students who had attended the city 
schools from adjoining counties were integrated into their 
respective county schools, and the city board of education 
then integrated its remaining Negro students into its 
system, thereby reducing the number of teaching positions 
by five. Of the 24 Negro teachers in the system, only 
8 were offered re-employment for the following year, 
although every white teacher who indicated the desire was 
re-employed together with 14 new white teachers, all with­
out previous experience. All of the Negro teachers were 
required to stand comparison not only with all of the other 
teachers previously in the system, but with all of the new 
white applicants, before retaining their jobs, while none 
of the white teachers was subjected to this test. The 
Fourth Circuit said:

Patent upon the face of this record is the erroneous 
premise that when the 217 Negro pupils departed 
and the all Negro consolidated school was abolished, 
the Negro teachers lost their jobs and that they, there­
fore, stood in the position of new applicants. The 
Board’s conduct involved four errors of law. First, 
the mandate of Brown v. Board of Education, 347 
U.S. 483 (1954), forbids the consideration of race in 
faculty selection just as it forbids it in pupil place­
ment. See Wheeler v. Durham City Board of Educa­
tion, 346 F.2d 768, 773 (4 Cir. 1965). Thus the reduc­
tion in the number of Negro pupils did not justify a 
corresponding reduction in the number of Negro teach­
ers. Franklin v. County School Board of Giles County, 
360 F.2d 325 (4 Cir. 1966). Second, the Negro school 
teachers were public employes who could not be dis­



10

criminated against on account of their race with respect 
to their retention in the system. Johnson v. Branch, 
364 F.2d 177 (4 Cir. 1966), and cases therein cited, 
wherein the court discussed the North Carolina law 
respecting teacher contracts and the right of renewal. 
White teachers who met the minimum standards and 
desired to retain their jobs were not required to stand 
comparison with new applicants or with other teachers 
in the system. Consequently the Negro teachers who 
desired to remain should not have been put to such 
a test. 364 F.2d at 192.

*  • #

Finally, the test itself was too subjective to with­
stand scrutiny in the face of the long history of racial 
discrimination in the community and the failure of the 
public school system to desegregate in compliance with 
the mandate of Brown until forced to do so by litiga­
tion. In this background, the sudden disproportionate 
decimation in the ranks of the Negro teachers did raise 
an inference of discrimination which thrust upon the 
School Board the burden of justifying its conduct by 
clear and convincing evidence. Innumerable eases have 
clearly established the principle that under circum­
stances such as this where a history of racial discrimi­
nation exists, the burden of proof has been thrown upon 
the party having the power to produce the facts. In the 
field of jury discrimination see: Eubanks v. Louisiana, 
356 U.S. 584 (1958); Reece v. Georgia, 350 U.S. 85 
(1955); Avery v. Georgia, 345 U.S. 559 (1953); Norris 
v. Alabama, 294 U.S. 587 (1935). 364 F.2d at 192-193.

In Smith v. Board of Education of Morrilton School 
District No. 32  (Ark.), 365 F.2d 771 (8th Cir., 1966), the 
school board “re-elected” the Negro faculty members to



11

the Negro school but without signing contracts with them 
at that time, and also adopted a “freedom of choice” de­
segregation plan at about the same time for compliance 
with the Civil Rights Act of 1964. Upon ascertaining that 
the enrollment was going to drop precipitously at the Negro 
school, the board decided to close the Negro school alto­
gether and completely integrate the system, and then in­
formed all of the Negro teachers at the Negro school 
that their jobs were abolished. Shortly thereafter, 13 
teachers resigned or retired during the course of the sum­
mer, and 14 new teachers were hired, 12 of whom were 
white. The Board said that it simply applied its traditional 
policy in cases of the closing of schools due to consolida­
tion, namely, to absorb the teachers of the closed school 
into the remaining schools if this could be done without 
displacement of other teachers and, if not, to dismiss the 
former. The Court of Appeals for the Eighth Circuit said:

It is our firm conclusion that the reach of the Brown 
decisions, although they specifically concerned only 
pupil discrimination, clearly extends to the proscrip­
tion of the employment and assignment of public school 
teachers on a racial basis. Cf. United Public Workers 
v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 91 L.Ed. 754 
(1947); Wiem-an v. Updegraff, 344 U.S. 183, 191-192, 
73 S.Ct. 215, 97 L.Ed. 216 (1952). See Colorado Anti- 
Discrimination Comm’n v. Continental Air Lines, Inc., 
372 U.S. 714, 721, 83 S.Ct. 1022, 10 L.Ed.2d 84 (1963). 
This is particularly evident from the Supreme Court’s 
positive indications that nondiscriminatory allocation 
of faculty is indispensable to the validity of a desegre­
gation plan. Bradley v. School Board, supra; Rogers 
v. Paul, supra. . . .

We recognize the force of the Board’s position 
that the discharge of the Sullivan staff upon the



12

school’s closing was only consistent with the action 
taken by the Board in connection with eleven other 
school consolidations, and consequent closings, in the 
past. This stands in contrast to the past practice 
noted in Franklin v. County School Bd., supra, p. 326 
of 360 F.2d. And we need not now determine whether 
across-the-board staff dismissals in the absence of 
vacancies when a school is closed, and the failure 
comparatively to evaluate the qualifications of those 
dismissed with the qualifications of those retained, 
standing alone and apart from racial considerations, 
amount to an unconstitutional selection method. . . .

But on this record these dismissals do not stand 
alone. This Board maintained a segregated school 
system for more than a decade after its unconstitu­
tionality was known and before it implemented a plan 
to desegregate. The employment and assignment of 
teachers during this period were based on race. . . . 
The use of the freedom-of-choice plan, associated with 
the fact of a new high school plant, produced a result 
which the superintendent must have anticipated, de­
spite his testimony that he “rather guessed” that Sulli­
van would continue to operate; . . .  All this reveals 
that the Sullivan teachers did indeed owe their dis­
missals in a very real sense to improper racial consid­
erations. The dismissals were a foreseeable conse­
quence of the Board’s somewhat belated effort to bring 
the school system into conformity with constitutional 
principles as enunciated by the Supreme Court of the 
United States. 365 F.2d at 778-779.



13

II.
Was the trial court within its allowable discretion in  

awarding attorneys’ fees to a Negro faculty member 
who had been discharged because o f race, where there 
had been a long history o f discriminatory conduct on 
the part o f the board o f education, and the bringing 
o f the action should have been unnecessary?

The District Court answered this question “Yes” 
and Appellee agrees that it should have been answered 
“Yes.”

The District Court said:
The Court further finds and concludes that the de­

fendants have been guilty of “* * * a long-continued 
pattern of evasion and obstruction * * *” of the de­
segregation of the public schools of Franklin County, 
Tennessee. In such event, it is an abuse of judicial 
discretion for this Court not to award attorney’s fees 
as a part of the costs. Bell v. School Board of Pow­
hatan County, Virginia, C.A. 4th (1963), 321 F. (2d) 
494.

* # #
In addition, although there has been marked im­

provement, see memorandum opinion and order of 
April 17, 1965, the Court is not yet convinced that the 
defendants are exercising the desired degree of good 
faith in transforming the Franklin County school sys­
tem from a segregated to a nonsegregated system. Cf. 
Hill v. County Board of Education of Franklin County, 
Tenn., D. C. Tenn. (1964), 232 F. Supp. 671, 673. The 
Court is of the candid opinion that, had it not been 
for the delegation of an important facet of the duties 
of the defendant board to its respective members with­



14

in their districts, and had there been extant the re­
quired good faith implementation of its present deseg­
regation plan, Mrs. Scott would not have been 
compelled to seek relief in the courts. Bradley v. 
School Board of the City of Richmond, C.A. 4th 
(1965), 345 F. (2d) 310.

The District Court’s award is clearly in accord with the 
applicable law. As the Court of Appeals for the Eighth 
Circuit said in Clark et al. v. Board of Education of Little 
Rock School District, 369 F.2d 661 (8th Cir., 1966):

The grant or denial of attorney fees is a matter 
wholly within the sound discretion of the trial court, 
which may be reviewed only for abuses of that dis­
cretion. . . .  We do not exercise discretion in this field, 
we only pass upon abuse.

However, the time has lapsed for experimental pol­
icies proved ineffective. The Board is under an im­
mediate and absolute constitutional duty to afford non- 
racially operated school programs, and it has been 
given judicial and executive guidelines for the per­
formance of that duty. If well known constitutional 
guarantees continue to be ignored or abridged and 
individual pupils are forced to resort to the courts for 
protection, the time is fast approaching when the ad­
ditional sanction of substantial attorney fees should be 
seriously considered by the trial courts. Almost solely 
because of the obstinate, adamant, and open resistance 
to the law, the educational system of Little Bock has 
been embroiled in a decade of costly litigation, while 
constitutionally guaranteed and protected rights were 
collectively and individually violated. The time is com­
ing to an end when recalcitrant state officials can force 
unwilling victims of illegal discrimination to bear the



15

constant and crashing expense of enforcing their con­
stitutionally accorded rights. 369 F.2d at 670-671.

This concurs with the views of Circuit Judges Sobeloff 
and Bell expressed in their dissenting opinion in Bradley 
v. School Board of the City of Richmond, supra:

We also dissent from the allowance of only $75.00 
as counsel fees to the plaintiffs, which we deem egre- 
giously inadequate. It will not stimulate school boards 
to desegregate if they see that they can gain time by 
resisting to the eleventh hour without effective dis­
couragement of these tactics by the courts.

The principle applied by this court in Bell v. School 
Board of Powhatan County, Virginia, 321 F.2d 494 
(4th Cir. 1963), needs to be extended, not narrowed. 
See Note 77 Harv. L. Rev. 1135 (1964). It ought not to 
be reserved for the most extreme cases of official recal­
citrance, but should operate whenever children are 
compelled by deliberate official action or inaction to 
resort to lawyers and courts to vindicate their clearly 
established and indisputable right to a desegregated 
education. Counsel fees are required in simple justice 
to the plaintiffs. The award of fees in this equity suit 
is in the court’s judicial discretion and should be com­
mensurate with the professional effort necessarily ex­
pended. One criterion which may fairly be considered 
is the amounts found reasonable in compensating the 
Board’s attorneys for their services. While public 
monies, aggregating thousands of dollars, are paid de­
fense lawyers, the attorneys for the plaintiffs who 
have prosecuted these cases for two full rounds in the 
District Court and on appeal are put off with a 
miniscule fee of $75.00. 345 F.2d at 324-325.



16

See also Monroe v. Board of Commissioners of the City of 
Jackson, Tenn., 244 F. Supp. 353 (D.C.W.D., Tenn., 1965); 
Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (4th Cir., 
1951); 6 Moore’s Federal Practice (2nd Ed.) 1349, 1352. It 
should be noted that the amount of attorneys’ fees awarded 
($1000) is not particularly large, considering the amount of 
effort which had to be expended in such a complex case.

R elief

For the foregoing reasons, Appellee contends that the 
judgment of the District Court should be affirmed.

Respectfully submitted,

J ack Greenberg

J ames M. N abrit, III
Michael J .  H enry

10 Columbus Circle 
New York, N. Y. 10019

A von N. W illiams, J r.
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Intervening 
Plaintiff-Appellee



MEILEN PRESS INC. —  N. V. C. 219