Lee v. Southern Home Sites Corporation Brief for Appellant

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 30738

JOHNNIE RAY LEE,
Appellant,

v.
SOUTHERN HOME SITES CORP., a corporation,

Appellee.

On Appeal from the United States District Court 
For the Southern District of Mississippi

BRIEF FOR APPELLANT

JACK GREENBERG 
JEFFRY A. MINTZ

10 Columbus Circle 
New York, New York 10019

REUBEN V. ANDERSON 
FRED L. BANKS, JR.

538 1/2 North Farish Street 
Jackson, Mississippi

WILLIAM BENNETT TURNER 
1095 Market Street San Francisco, California 94103

Attorneys for Appellant



TABLE OF CONTENTS

paa£

TABLE OF AUTHORITIES i l l

ISSUE PRESENTED

STATEMENT OF THE CASE

STATEMENT OF FACTS

ARGUMENT

II.

The History and the Purpose of Section 
1982 Demonstrate that Attorneys' Fees 
Should Be Awarded to Plaintiffs Who 
Successfully Invoke Its Provisions.
The Explicit Provision for Attorneys' 
Fees in the 1968 Fair Housing Act, A 
Procedural Aspect of the Statute, 
Should Be Applied to This Case. 22

CONCLUSIONS 28

l i



TABLE OF AUTHORITIES

CASES Page

Bradley v. School Board of the City of 
Richmond, 345 F.2d 310 (4th Cir. 1965) 17

Dolgow v. Anderson, 43 F.R.D. 472, (E.D. N.Y. 1968) 22
Eisen v. Carlisle & Jacquelin, 391 F.2d 

555 (2d Cir. 1968) 22
Gilbert v. Hoisting & Portable Engineers, 237 Or. 139, 390 P.2d 320 (1964) 21
Hamm v. City of Rock Hill, 

379 U.S. 306 (1964) 25
Hunter v. Erickson, 393 U.S. 385 (1969) 26
Jenkins v. United Gas Corp., 

400 F.2d 28 (5th Cir. 1968) 16
Jones v. Alfred H. Mayer Co., 

392 U.S. 409 (1968) 4,7,8,9,10,11,
12,13,17,18,23

Kemp v. Beasley, 352 F.2d 14 
(8th Cir. 1965) 17

Lee v. Southern Home Sites Corp., 
429 F .2d 290 (5th Cir. 1970) 2,4,11

Miller v. Amusement Enterprises, Inc. 
426 F .2d 534 (5th Cir. 1970) 14,15,22,2$

Mills v. Electric Autolite Co., 
396 U.S. 375 (1970) 20,22

Newbern v. Lake Lorelei, Inc., 308 F.Supp. 
407; 1 Race Rel. L. Survey 185 
(S.D. Ohio, 1968, 1969) 19

iii



Page

Newman v. Piggie Park Enterprises, Inc., 
390 U.S. 400 (1968) 11,15,16,18,

20,24,25
Oatis v. Crown Zellerbach Corp., 

398 F.2d 496 (5th Cir. 1968) 16
Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969) 16
Pina v. Homsi, 1 Race Rel. L. Survey 18 

(D. Mass. July 10, 1969) 19
Rolax v. Atlantic Coast Line R.R., 

186 F.2d 473 (4th Cir. 1951) 21
Sanders v. Russell, 5th Cir. 1968, 

401 F.2d 241 11
Smoot v. Fox, 353 F.2d 830 

(6th Cir. 1965) 17
Sprague v. Ticonic National Bank, 

307 U.S. 161 (1939) 20
Sullivan v. Little Hunting Park, Inc., 

396 U.S. 229, 239 (1969) 20,27
Terry v. Elmwood Cemetery, 

307 F.Supp. 369 (1969) 18,19
Thorpe v. Housing Authority of the 
City of Durham, 393 U.S. 268 (1969) 26

United States v. Price, 
383 U.S. 787 (1966) 11

United States v. Schooner Peggy, 
1 Cranch 103 (1801) 26

Vandenbark v. Owens Illinois Co., 
311 U.S. 538 (1941) 26



Page

Vaughn v. Atkinson, 369 U.S. 567 (1962) 20
Williams v. Kimbrough, 295 F.Supp. 578, 

aff'd, 415 F.2d 875 (5th Cir. 1969),' 
cert, denied, 396 U.S. 1061 (1970) 17

Ziffrin, Inc. v. United States,
318 U.S. 73 (1943) 26

Brown v. City of Meridian, 356 F.2d 602
(5th Cir. 1966) 27

STATUTES, RULES AND REGULATIONS

Civil Rights Act of 1866, Act of 
April 7, 1866, c. 31, Section 1,
14 Stat. 27, re-enacted by 
Section 18 of the Enforcement Act 
of 1870, Act of May 31, 1870, c. 114,
Section 18, 16 Stat. 140, 144 
codified in Sections 1977 and 1978
of the Revised Statutes of 1874. 9,10,11

18 U.S.C. Section 241 11
18 u. s. c. Section 242 11
42 U.S.C. Section 1981 2
42 U.S.C. Section 1982 1,2,7,8,9,11,

12,15,16,20,21,23
42 U.S.C. Section 1988 27
42 U.S.C. Section 2000a-2 25
42 U.S.C. Section 2000a-3(b) 8,14,25
42 U.S.C. Section 2000a-5(a) 15
42 U.S.C. Section 2000b et seq. 18

v



Page

42 U.S.C. Section 2000c et seq. 18
42 U.S.C. Section 2000e-5(k) 8,25
42 U.S.C. Sections 3601 et seq. 26
42 U.S.C. Section 3603 23
42 U.S.C. Section 3604 (a) , (b) , (c) & (d) 22
42 U.S.C. Section 3612(b) 8
42 U.S.C. Section 3612(c) 18,24,25
Fed. R. Civ. P. 23 (b) (2) 2
Fed. R. Civ. P. 30(g), 37(a), 

37(c) , 54 (d) and 56(g) 25
Fair Housing Act of 1968

Pub. L. 90-284; 82 Stat. 82 18, 23,24

OTHER AUTHORITIES

Cong. Globe, 39th Cong., 1st Sess. 474 10
114 Cong. Rec. S2308 24
Davidson & Turner, Fair Housing and
Federal Law, 1 ABA Human Rights 
(1970)

36
15,23

Gulfport-Biloxi Daily Herald, 
June 18, 1968, p. 1 12

Jackson Clarion-Ledger, 
June 18, 1968, p. 1 12

Mobile Press, June 18, 1968, p. 3 12
Mobile Press Register, 

June 23, 1968, p. 1 12

VI



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 30738

JOHNNIE RAY LEE,
Appellant,

v.
SOUTHERN HOME SITES CORP., a corporation,

Appellee.

On Appeal from the United States District Court 
For the Southern District of Mississippi

BRIEF FOR APPELLANT

ISSUE PRESENTED

Whether, in a class action under 42 U.S.C. Section 
1982 brought by an individual acting as a "private attorney 
general" to eliminate systematic racial discrimination 
practiced by a real estate developer, the court should award 
reasonable attorneys' fees to the prevailing plaintiff.



STATEMENT OF THE CASE

This is the second appeal to this Court in the 
instant case. On the prior appeal (No. 28167), this Court 
remanded for findings of fact to justify the District Court's 
denial of attorneys' fees. Lee v. Southern Home Sites Corp., 
429 F .2d 290 (5th Cir. 1970).

This case was brought pursuant to 42 U.S.C. Sections 
1981 and 1982 and the Thirteenth Amendment to challenge 
systematic racial discrimination practiced by appellee Southern 
Home Sites Corp., a real estate developer. The action was 
brought by appellant Johnnie Ray Lee on his own behalf and, 
pursuant to Fed. R. Civ. P. 23(b)(2), as a class action on 
behalf of similarly situated black citizens who were
discriminated against by Southern Home Sites. The complaint

1/(1.4-9) alleged that appellant had been excluded from buying 
a lot in the Southern Home Sites resort development because 
of his race, and that appellee's refusal to deal with appellant 
was pursuant to a widespread policy and practice of 
discrimination against black citizens. Plaintiff-appellant

1/ Numbered references preceded by "I" are to pages of the 
printed Appendix on the prior appeal, No. 28,167. 
References preceded by "II" are to pages of the printed 
Appendix on the present appeal, No. 30,738. On Nov. 4, 
1970, this Court granted appellant's motion to limit the 
reproduction of the record on this appeal to documents 
filed since the printing of the Appendix on the prior 
appeal. Additional copies of the prior Appendix have 
been filed with the Court together with copies of the 
present Appendix.

-2-



sought injunctive relief, a declaratory judgment, compensatory 
and punitive damages and counsel fees.

The case was tried without a jury on March 18, 1969. 
On April 7, 1969, the court below (Nixon, J.) rendered an 
opinion (1.42-45) finding that Southern Home Sites had engaged 
in racially discriminatory conduct in violation of 42 U.S.C. 
Section 1982. On May 14, 1969, the District Court entered 
judgment (1.54-56) generally enjoining appellee from 
discriminating against black people seeking to purchase lots 
in appellee's development, directing Southern Home Sites to 
offer appellant Lee a lot and defining the class on whose 
behalf the action was maintained. The judgment denied 
appellant's claims for money damages and counsel fees. The 
court below retained jurisdiction until the judgment would 
be fully complied with.

Appellant then sought an order requiring Southern 
Home Sites to notify members of the class of their rights 
under the court's judgment and to offer lots to members of 
the class on the same terms as lots were to be offered to 
appellant and as lots had been conveyed to white persons 
(1.60-64). On August 6, 1969, the court below denied this 
relief. Appellant then appealed to this Court from the 
judgment of May 14, 1969, and the order of August 6, 1969.

-3-



On July 13, 1970, this Court (Coleman, Goldberg 
and Morgan, JJ.) upheld the District Court's denial of money 
damages but remanded with instructions to require Southern 
Home Sites to notify class members of their rights under the 
judgment, including their right to purchase lots on the same 
terms as appellant. This Court also directed the District 
Court to make findings of fact "sufficient to enable this 
court to review the denial of attorneys' fees." Lee v.
Southern Home Sites Corp., 429 F.2d 296 (5th Cir. 1970).

On July 20, 1970, the court below ordered the clerk 
of the court to publish notices in two Mississippi newspapers 
informing class members of their rights under the judgment 
(11.5-6). On August 11, 1970, the court below made findings 
of fact regarding its denial of attorneys' fees (II.6-9).
The court found that appellant had failed to prove that 
Southern Home Sites had knowledge or notice of the Supreme 
Court's decision in Jones v. Alfred H. Mayer Co., 392 U.S.
409 (1968) and that, therefore, appellee's discriminatory
conduct was not "malicious, oppressive or so 'unreasonable 
and obdurately obstinate' as to warrant an award for attorneys' 
fees" (II.8). The District Court thereupon entered a 
supplemental decree (August 13, 1970) denying an award of 
attorneys' fees (II.9). This appeal followed.

-4-



STATEMENT OF FACTS

Appellant Johnnie Ray Lee is a black citizen who 
resides in Columbia, Mississippi. Appellee Southern Home 
Sites Corp. is a Mississippi corporation which is in the 
business of developing resort areas and selling lots or 
interests in real estate (1.6,17). It owns and operates a 
development called Ocean Beach Estates, located near Ocean 
Springs and Pascagoula, Mississippi (Id.).

The development at Ocean Beach Estates contains a 
total of 1,653 lots (1.27,33,43). As of the time of trial, 
1,206 of the lots had been sold (Id.). Thus, more than 400 
lots remained available (1.96-97). At that time, appellee 
was holding lots off the market, because developments on 
adjacent property were causing Southern Home Sites lots to 
increase in value (1.114,43).

On July 30, 1968, appellee sent a form letter to 
appellant offering him a lot stated to be worth $600 for 
$49.50 in cash (1.6,17,42). In 1968 alone, Southern Home 
Sites sent probably more than a thousand such letters to 
persons throughout the State of Mississippi and outside 
Mississippi (1.86-87). The letters were sent as a promotional 
venture, with the idea that persons sold lots at bargain 
prices would tell their friends and thus increase appellee's

-5-



sales (1.113,43). At the time of trial, Southern Home Sites 
had conveyed 119 lots on the $49.50 terms set forth in the 
letter to appellant (1.93,25,31-32,27,33).

Appellee's agents collected names for the promotional 
mailing list at boat shows, county fairs, etc. (1.87,32). In 
mailing the letters containing the promotional offers, appellee 
made no effort whatever to ascertain the race of persons to 
whom the letters were sent (1.26,32). Thus, thousands of 
letters were sent indiscriminately to both black and white 
persons.

The letters sent to citizens throughout the area 
stated baldly that in order for the recipient to take advantage 
of the offer, "you must be a member of the white race" (1.42, 
6,17). Although Southern Home Sites pretended to justify this 
condition on the ground that "only the white race" would help 
appellee advertise its development (1.32), white purchasers 
of lots pursuant to the promotional scheme were never asked 
to advertise and no such condition was ever demanded by 
Southern Home Sites (1.104-105,108).

Shortly after receiving his letter from appellee, 
Johnnie Ray Lee traveled to appellee's office at Ocean Springs 
(1.42-43,6-7,12,13-14,18). He took with him the letter and 
$50 in cash and was ready, willing and able to purchase a lot

-6-



on the terms set forth in the letter, except for the racial 
limitation (1.43,74,76). However, at the Southern Home Sites 
office he was bluntly told by appellee's agent that the 
development "wasn't for Negroes," and the agent refused to 
j o business with him (1.75,82,43). At Ocean Beach Estates, 
black people were not permitted to buy lots (1.26,33). Not 
only was Ocean Beach Estates maintained as a lily-white 
preserve, but appellee planned a separate, all-black 
development, and kept a waiting list of black applicants for 
that development (1.75,76,82; Plaintiff's Exhs. 2 and 3).

On October 15, 1968, appellant Lee brought this
class action in the court below. He obtained a broad 
injunction prohibiting Southern Home Sites from discriminating 
against black citizens on the ground of race. The action was 
based primarily on 42 U.S.C. Section 1982, which was interpreted 
by the Supreme Court to bar all racial discrimination in the 
sale of real estate. Jones v. Alfred H. Mayer Co., 392 U.S.
409 (1968). The letter to appellant Lee was sent by Southern 
Home Sites about six weeks after the Jones decision, and 
appellant was excluded from the resort development about two 
months after the decision. At trial, appellant made no attempt 
to show that Southern Home Sites had actual knowledge of the 
Jones decision at the time of its discriminatory conduct; nor 
did the developer seek to show its ignorance of the decision.

-7-



On August 11, 1970, the District Court found as a fact that 
because of appellant's failure to prove appellee's knowledge 
or notice of Jones, appellee's conduct was not "malicious, 
oppressive or so 'unreasonable and obdurately obstinate' as 
to warrant an award for attorneys' fees" (II.8). Appellant 
here maintains that the denial of attorneys' fees was 
erroneous as a matter of law.

ARGUMENT

I. The History and the Purpose of Section 1982 Demonstrate 
That Attorneys' Fees Should Be Awarded to Plaintiffs 
Who Successfully Invoke Its Provisions.

Unlike many of the recent statutes authorizing
2/

private suits to vindicate denials of equal rights, 42 U.S.C.
Section 1982 does not expressly authorize the granting of
attorneys' fees to successful plaintiffs. An analysis of the
history and purpose of Section 1982 readily demonstrates,
however, that the allowance of attorneys' fees to successful
plaintiffs invoking its provisions is a proper means of

3/
"fashioning an effective equitable remedy" for its enforcement

2/ See 42 U.S.C. Section 2000a-3(b) (public accommodations);
42 U.S.C. Section 2000e-5(k) (equal employment); 42 U.S.C. 
Section 3612(b) (fair housing).

3/ Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414, n.13 (1968)

-8-



Section 1982 is derived from Section 1 of the Civil 
4/

Rights Act of 1866. The history and meaning of the statute
are discussed at length in the opinion of the Supreme Court
in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420-444 (1968).
There, the Court held that (1) the statute was intended to bar
all racial discrimination, private as well as public, in the
sale or rental of property, and (2) as thus construed, it was
a valid exercise of the power of Congress to enforce the

5/
Thirteenth Amendment.

£/As originally enacted, the Civil Rights Act of 1866 
was to be enforced primarily through criminal prosecutions 
brought by federal district attorneys against persons who 
violated its provisions. The sponsors of the bill feared that 
permitting only a private right of action would be insufficient 
to eradicate either the racial wrongs being perpetrated or the

4/ Act of April 7, 1866, c. 31, Section 1, 14 Stat. 27,
re-enacted by Section 18 of the Enforcement Act of 1870,
Act of May 31, 1870, c. 114, Section 18, 16 Stat. 140, 144, 
codified in Sections 1977 and 1978 of the Revised Statutes 
of 1874.

5/ It was the Jones decision which led the District Court to
hold on the merits that Southern Home Sites' discrimination 
violated Section 1982 and to issue the injunction barring 
future discrimination and ordering the sale of a lot to 
Lee (1.44).

6/ See n.4, supra.

-9-



temper which gave rise to and sustained them. They expressed
particular concern about the likelihood that those persons
whom the Act sought to protect could not bear the expense of
enforcing their rights if they were not assisted by the

8/
federal attorneys.

In the intervening reenactments of the Act of 1866, 
the penal provisions which originally accompanied it have been

V

7/ Introducing the bill on January 5, 1866, Senator Trumbull 
stated its objective was to give effect to the declaration 
contained in the Thirteenth Amendment and to secure to all 
persons within the United States practical freedom. "There 
is very little importance in the general declaration of 
abstract truths and principles unless they can be carried 
into effect, unless the persons who are to be affected by 
them have some means of availing themselves of their 
benefits." Cong. Globe, 39th Cong., 1st Sess. 474, quoted 
in Jones v. Alfred H. Mayer Co., supra, at 431-32.

8/ /James Wilson, who introduced the bill into the House,
expressed in greater detail the legislative intention as 
he responded to Ohio Congressman Bingham's motion to 
recommit and to "strike out all parts of the bill which 
are penal and authorize criminal proceedings and in lieu 
thereof to give injured citizens a civil action in the 
United States Courts..." Id. at 1293. Between the two,
Mr. Wilson said, "There is no difference in the principle 
involved...There is a difference in regard to the expense 
of protection. There is also a difference as to the 
effectiveness of the two modes...This bill proposes that 
the humblest citizen shall have full and ample protection 
at the cost of the Government, whose duty it is to protect 
him. The Amendment of the gentleman recognizes the principle 
involved, but it says that the citizen despoiled of his 
rights... must press his own way through the courts and pay 
the costs attendant thereon. This may do for the rich, but 
to the poor, who need protection, it is mockery. . . " Ici. at 
1295 (emphasis added).

-10-



separated or eliminated, so that today Section 1982 is 
"enforceable only by private parties acting on their own 
initiative." Jones v. Alfred H. Mayer Co., supra, at 417. 
However, as the Court noted in Jones, "The fact that 42 U.S.C. 
Section 1982 is couched in declaratory terms and provides no 
explicit method of enforcement does not, of course, prevent 
a federal court from fashioning an effective equitable remedy." 
Id. at 414, n.13. And as this Court stated in its previous 
opinion in the instant case:

"In the area of civil rights, many cases have 
either allowed or implicitly recognized the 
discretionary power of a district judge to 
award attorneys 1 fees in a proper case in 
the absence of express statutory provision 
icitations omitted] and especially so when 
one considers that much of the elimination 
of unlawful racial discrimination necessarily 
devolves upon private litigants and their 
attorneys, cf. Newman v. Piggie Park 
Enterprises, Inc., 390 U.S. 400, 402 (1968),
and the general problems of representation in 
civil rights cases. See Sanders v. Russell,
5th Cir. 1968, 401 F.2d 241." Lee v. Southern 
Home Sites Corp., 429 F.2d 290, 295 (5th Cir.
1970). * 18

9/

9/ The only remaining criminal statute derived from the Act 
is 18 U.S.C. Section 242. See United States v. Price,
383 U.S. 787, 801-02 (1966). While Section 242 is limited
to actions taken "under color of law," it may well be that
18 U.S.C. Section 241, derived from the Enforcement Act of 
1870 (the reenactment of Section 1982, see n.4, supra) 
would permit criminal prosecutions against persons who 
conspire to interfere with the rights guaranteed by 
Section 1982.

-11-



In Jones, the Supreme Court resurrected Section 1982
and held that it operated as a fair housing statute to outlaw

10/
all racial discrimination in the sale of real property.
We submit that the effectiveness of Section 1982 as a guarantee
of equal housing opportunity would be vastly diminished by
limiting the availability of attorneys' fees under the standard
followed by the court below. The District Court here denied
fees on the around that appellant failed to prove that Southern
Home Sites had actual knowledge or notice of the Supreme
Court's decision in Jones and that, accordingly, appellee's
discriminatory conduct was not "malicious, oppressive or so
'unreasonable and obdurately obstinate' as to warrant an award

11/for attorneys' fees" (1.8) . The District Court did not

10/ The Court noted and agreed with the statement of the
Attorney General at oral argument: "The fact that the
statute lay partially dormant for many years cannot be 
held to diminish its force today." 392 U.S. at 437.

11/ The court went further to find that in the absence of 
such proof, Southern Home Sites did not in fact have 
notice of the Jones decision (II. 7). This inference is 
without any evidentiary support whatever and is clearly 
erroneous. It might be noted that the Jones decision 
made headlines in every newspaper in the South. See, 
e.g., the Jackson Clarion-Ledger, June 18, 1968, p. 1; 
the Gulfport-Biloxi Daily Herald, June 18, 1968, p. 1? 
the Mobile Press, June 18, 1968, p. 3; the Mobile Press 
Register, June 23, 1968, p. 1. It seems exceedingly 
unlikely that a large real estate developer like Southern 
Home Sites would remain wholly ignorant of a landmark 
decision directly affecting its business. In any event, 
as will be demonstrated below, an award of attorneys fees 
cannot be conditioned on proof that the defendant actually 
knew the law condemning its racially discriminatory practices.

-12-



mention the facts that (1) six weeks after the Jones decision,
Southern Home Sites distributed thousands of racially insulting
letters, with no attempt whatever to determine the race of
addressees and thus with callous disregard for the feelings
of black recipients; (2) appellee's policy was not only to
keep Ocean Beach Estates a lily-white preserve, but it planned
a wholly segregated all-black development; and (3) appellee's
defense in the trial court was frivolous— appellee contended
that the promotional offers were for a "gift" and that under
Mississippi law the donor had complete discretion to select
his donees (1.32-34,37; defendant's response to motion for

12/summary judgment).

The reason for the District Court's denial of 
counsel fees —  that appellee did not "know" of the Jones 
decision— might be appropriate if the question were whether 
to impose punitive damages and if some showing of willful or 
malicious conduct were required. But here we are dealing with 
whether counsel fees may be awarded, and the District Court's 
approach seems wholly inappropriate. Indeed, the approach of

12/ Appellant proved at trial that the transactions could in 
no way be considered "gifts." Recipients of promotional 
offers were required to pay $49.50 in cash to obtain a 
lot (1.93,25,31-32,27,33). All 119 of these transactions 
were accounted for on Southern Home Sites' books in 
exactly the same manner as all cash purchases of lots 
(1.94-95,118). Appellee introduced no evidence of 
donative intent.

-13-



the court below has already been rejected by this Court in 
the analogous case of Miller v. Amusement Enterprises, Inc.,
426 F.2d 534 (5th Cir. 1970). In Miller, the district court 
had denied attorneys1 fees to a successful plaintiff in a suit 
challenging racial discrimination under Title II of the Civil 
Rights Act of 1964. The reason for the denial was that at 
the time of the discriminatory act (and, indeed, even up to 
and after the decision of a panel of this Court), the defendant 
company was not deemed in violation of the law; not until the 
en banc decision of this Court was the defendant held to be 
covered by Title II. This Court reversed the denial of fees, 
stating that the defendant

". . .became subject to the prescribed
judicial relief not because the Court said 
so, but rather because the Court said--even 
perhaps for the very first time— that the 
Congress said so." 426 F.2d at 536.

The Court also ruled that the defendant's subjective "good
faith" was not to be considered as a justification for denying
counsel fees. Even though the defendant in Miller, unlike
appellee here, advanced no frivolous defenses, and even though
several judges agreed with its position, this Court directed
an award of attorneys' fees.

To be sure, Miller involved a statute containing an 
express provision for attorneys' fees. See 42 U.S.C. Section 
2000a-3 (b) (fees may be granted in the "discretion" of the

-14-



court). But this Court's reasoning applies equally to 
Section 1982:

"Congress did not intend that vindication of 
statutorily guaranteed rights would depend 
on the rare likelihood of economic resources 
in the private party (or class members) or 
the availability of legal assistance from 
charity--individual, collective or organized.
An enactment aimed at legislatively enhancing 
human rights and the dignity of man through 
equality of treatment would hardly be served 
by compelling victims to seek out charitable 
help." 426 F.2d at 539.

Miller relied on the Supreme Court's decision in Newman v. 
Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). In 
Piggie Park, the Court noted that since the statute, like 
Section 1982, provides no administrative agency or criminal 
prosecutions to enforce its mandate, its effectiveness depends

13/
on the ability of private litigants to maintain civil suits. 
Said the Court:

"If [the plaintiff] 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. If successful plaintiffs 
were routinely forced to bear their own 
attorneys' fees, few aggrieved parties would 
be in a position to advance the public 
interest by invoking the injunctive powers 
of the federal courts." 390 U.S. at 402 
(footnote omitted).

13/ The Attorney General of the United States is empowered to 
bring suit to enforce Title II. See 42 U.S.C. Section 
2000a-5(a). But Section 1982 has no such provision and 
its enforcement depends wholly on private civil actions.
See generally, on the need for counsel fee awards to 
enforce fair housing statutes, Davidson and Turner, Fair 
Housing and Federal Law, 1 ABA Human Rights 36, 49-50 T1970).

-15-



This Court has subsequently applied the "private attorney 
general" doctrine not only in Mi Her but also in cases arising 
under the fair employment provisions of the Civil Rights Act 
of 1964. See Pettway v. American Cast Iron Pipe Co., 411 
F.2d 998, 1005 (5th Cir. 1969); Jenkins v. United Gas Corp., 
400 F .2d 28, 32-33 (5th Cir. 1968); Oatis v. Crown Zellerbach 
Corp., 398 F.2d 496, 499 (5th Cir. 1968).

The teaching of Piggie Park and its progeny is that 
counsel fees should be awarded to the successful plaintiff 
unless "special circumstances render such an award unjust."
390 U.S. at 402. It is irrelevant whether the defenses 
advanced by the discriminating party were frivolous or 
plausible. And it is perfectly clear under Miller that the 
test cannot be whether the defendant had actual knowledge of 

the law.

The fact that Section 1982, unlike more recently
14/

enacted civil rights statutes, does not explicitly provide 
for attorneys' fees should not justify deviation from the 
Piggie Park standard. First, as demonstrated above, Congress 
originally provided that the enforcement of the rights 
guaranteed by Section 1982 should be undertaken by government 
attorneys for the very reason that the persons aggrieved could

14/ See n.2, supra.

-16-



Nothing in the subsequentnot bear the cost of litigation.
revisions which have made those rights "enforceable only by

16/
private parties acting on their own initiative" indicates 
that Congress intended to limit their availability to those 
few who could bear the cost of litigation. The allowance of 
attorneys 1 fees under the Piggie Park standard clearly would 
serve Lo fulfill the legislative intent and to effectuate 
the Congressional policy expressed in Section 1982.

Second, the cases relied on by the District Court
to support its standard of requiring "unreasonable, obdurate 

17/
obstinacy" by a defendant before attorneys’ fees can be 
allowed were all in the context of school desegregation suits, 
where the plaintiffs sought to enforce rights which were 
judicially declared and which were not an explicit statutory

15/

15/ See nn. 6 and 7 and accompanying text, supra.
16/ Jones v. Alfred H. Mayer Co., supra, at 417.
17/ Bradley v. School Board of the City of Richmond, 345 F .2d 

310, 321 (4th Cir. 1965); cf. Id. at 324-5 (Sobeloff and 
Bell, JJ. dissenting); Kemp v. Beasley, 352 F .2d 14 (8th 
Cir. 1965); Williams v. Kimbrough, 295 F.Supp. 578, 587, 
aff'd, 415 F.2d 875 (5th Cir. 1969), cert, denied, 396 
U.S. 1061 (1970). Smoot v. Fox, 353 F.2d 830 (6th Cir. 
1965), also cited by the District Court, was a common 
law libel action and is in no way relevant to this case.

-17-



18/
"policy that Congress considered of the highest priority." 
Moreover, the defendant here is a profit-making corporation 
engaged in racial discrimination as part of its business, not 
a school board composed of unpaid public servants. Whatever 
may be the policy for denying counsel fees in school cases, 
the policy does not apply here. Indeed, the explicit 19/
provision for counsel fees in the Fair Housing Act of 1968#
establishes a Congressional policy strongly favoring counsel 
fee awards in housing discrimination cases.

Other district courts granting injunctive relief 
in suits under Section 1982 have awarded attorneys' fees. In 
Terry v. Elmwood Cemetery, 307 F.Supp. 369 (1969), suit was
brought to compel the defendant cemetery to sell a burial plot 
to a black mother for the grave of her son, who was killed in 
action in Viet Nam. The cemetery refused to sell the plot

18/ Newman v. Piggie Park Enterprises, supra, at 402. See
Cong. Globe, 39th Cong., 1st Sess., 474, quoted in Jones 
v. Alfred H. Mayer Co., supra, at 431-32. Also, Congress 
has now authorized the Attorney General to file suits on 
behalf of the United States to desegregate schools. See 
Title IV of the Civil Rights Act of 1964, 42 U.S.C. 
Section 2000c et. seq. See also Title III, 42 U.S.C. 
Section 2000b ejt seq. , authorizing the Attorney General 
to sue to challenge discriminatory practices in state 
owned or operated facilities. Much of the cost of 
litigation to desegregate schools is thus borne by the 
federal government.

19/ 42 U.S.C. Section 3612(c).

-18-



solely because of the race of the deceased. Chief Judge Lynne
carefully analyzed the Jones decision and the lower court
cases which followed it and held that the refusal to sell the
burial plot was a violation of Section 1982. In the final
judgment (which followed the reported opinion), attorneys'

20/
fees in the amount of $2500 were awarded.

Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407;
1 Race Re1. L. Survey 185 (S.D. Ohio, 1968, 1969), which was
relied upon in Terry, is very similar to the instant case in
that it involved a large real estate development from which
blacks were excluded. The case was brought as a class action
by an individual who had been refused a lot in the development.
The court defined the class as "members of the Negro race" who
had been similarly excluded, Id., at 417, the same delimitation
of the class made by the lower court in this case (1.49). By
a supplemental order, the court in Newbern awarded attorneys

21/
fees in the amount of $1000 . Also, in Pina v. Homsi, 1 Race
Rel. L. Survey 18 (D. Mass. July 10, 1969), the plaintiffs were

20/ Terry v. Elmwood Cemetery, N.D. Ala. Civ. No. 69-490, 
order of January 29, 1970. Terry is a particularly 
significant case in this regard as the property there 
involved is not covered by the provisions of the 1968 
Fair Housing Act and suit, even today, could be 
maintained only under the provisions of Section 1982.

21/ Newbern v. Lake Lorelei, Inc., 1 Race Rel. L. Survey 185 
(S.D. Ohio, March 12, 1969).

-19-



refused an apartment because the husband was black. Under 
Section 1982, the court awarded compensatory damages and 
attorneys' fees.

These cases under Section 1982 follow the well 
established principle that federal courts have equitable power 
to award counsel fees in appropriate cases even in the absence 
of statutory authorization. See Mills v. Electric Autolite Co., 
396 U.S. 375 (1970); Vaughn v. Atkinson, 369 U.S. 567 (1962);
Sprague v. Ticonic National Bank, 307 U.S. 161 (1939); Newman
v. Piggie Park Enterprises, Inc., supra, 390 U.S. at 402, n.4. 
The instant case presents special reasons supporting an award 
of counsel fees:

(1) Section 1982 expresses a national policy of
the highest priority —  the eradication of racial discrimination 
in housing. Therefore, appellant acts here as a "private 
attorney general" in vindicating the statutory right to equal 
housing opportunity. Cf. Newman v. Piggie Park Enterprises, 
Inc., supra, 390 U.S. at 402. And as the Supreme Court said 
of Section 1982, "The existence of a statutory right implies 
the existence of all necessary and appropriate remedies." 
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969). 2

(2) The discrimination involved here was systematic 
and deliberate; it was not isolated or accidental. Appellant 
Lee challenged not only the refusal to sell him a lot but also

-20-



the policy of (a) distributing offers addressed to the general
public but acceptable only by "a member of the white race,"
and (b) creating a wholly segregated all-black development.
This kind of action ought to be encouraged by an award of
counsel fees under Section 1982, so that neither aggrieved
parties nor their attorneys need subsidize from their own
pockets the essentially public activity of correcting

22/
systematic racial discrimination.

(3) This is a class action on behalf of all blacks 
discriminated against by Southern Home Sites. If the action 
had not been brought, the rights of class members would never 
have been vindicated, because their claims are too small to * * * * * * * *

22/ Awarding counsel fees to encourage "public" litigation 
by private parties is an accepted device. For example, 
in Oregon, union members who succeed in suing union 
officers guilty of wrongdoing are entitled to counsel 
fees both at the trial level and on appeal, because they 
are protecting an interest of the general public:

If those who wish to preserve the internal 
democracy of the union are required to pay 
out of their own pockets the cost of employing 
counsel, they are not apt to take legal action
to correct the abuse. . . . The allowance ofattorneys1 fees both in the trial court and 
on appeal will tend to encourage union members
to bring into court their complaints of union 
mis-management and thus the public interest as 
well as the interest of the union will be
served.

Gilbert v. Hoisting & Portable Engineers, 237 Or. 139, 
390 P.2d 320 (1964). See also Rolax v. Atlantic Coast
Line R.R., 186 F.2d 473 (4th Cir. 1951).

-21-



justify individual litigation. Cf. Eisen v. Carlisle &
Jacquelin, 391 F.2d 555, 560 (2d Cir. 1968); Dolgow v.
Anderson, 43 F.R.D. 472, 484-87 (E.D. N.Y. 1968). And since 
individual suits would not have been brought, the statute 
outlawing appellee's conduct would have gone unenforced. As 
the Supreme Court said in granting fees in Mills v. Electric 
Autolite Co., supra, "private. . .actions of this sort. . .
furnish a benefit to all. . .by providing an important means 
of enforcement of the. . .statute." 396 U.S. at 396.

Therefore, it was error for the court below to 
withhold counsel fees on the ground that appellee was not 
on notice of the Jones decision and did not act maliciously 
or obstinately. The case should be remanded with instructions 
to award reasonable attorneys 1 fees covering all proceedings 
in the District Court and on both appeals. See Miller v. 
Amusement Enterprises, Inc., 426 F.2d 534, 539 (5th Cir. 1970). II.

II. The Explicit Provision For Attorneys' Fees In The 1968 
Fair Housing Act, A Procedural Aspect of the Statute, Should Be Applied to This Case.

The discriminatory acts of Southern Home Sites 
would clearly have been covered by specific provisions of the 
Fair Housing Act of 1968 had they taken place after 
December 31, 1968. See 42 U.S.C. Section 3604 (a), (b), (c) and 
(d). Because they occurred during 1968 and related to housing

-22-



substantive prohibitions of the Act did not cover them.
Appellant Lee was thus compelled, in this action filed
October 15, 1968, to base his substantive claim that the acts
were illegal on Section 1982. But invoking the procedural
and remedial provisions of the 1968 Act would not run counter
to Congressional intention. Indeed, the legislative history
of the Act indicates that Congress had in mind as one of its
purposes the effectuation of Section 1982:

[T]he Senate Subcommittee on Housing and 
Urban Affairs was informed in hearings held 
after the Court of Appeals had rendered its 
decision in the case that Section 1982 might 
well be "a presently valid federal statutory 
ban against discrimination by private persons 
in the sale or lease of real property." The 
Subcommittee was told, however, that even if 
this Court should so construe Section 1982, 
the existence of that statute would not 
"eliminate the need for congressional action" 
to spell out "responsibility on the part of 
the federal government to enforce the rights 
it protects." The point was made that, in 
light of the many difficulties confronted by 
private litigants seeking to enforce such 
rights on their own, legislation is needed 
to establish federal machinery for enforcement 
of the rights guaranteed under Section 1982...." 
quoted in Jones v. Alfred H, Mayer Co., 392 U.S. 
at 415-16 (emphasis added; footnotes omitted).

not owned or financed by the federal government, the
23/

23/ 42 U.S.C. Section 3603. The substantive prohibitions
covered only housing owned or financed by the federal 
government during 1968. Id. It might be noted that the 
1968 Act even now covers only "dwellings" and does not cover 
personal, commercial, or industrial property. Of course, 
Section 1982 covers all property. Jones v. Alfred H. Mayer 
Co., 392 U.S. 409, 413 (1968); see generally, on the coverage
of the respective statutes, Davidson and Turner, Fair Housing 
and Federal Law, 1 ABA Human Rights 36 (1970).

-23-



Thus, it seems entirely appropriate to apply the "machinery" 
of the Fair Housing Act--in this context, its provision for 
attorneys' fees--to assist in the enforcement of the Section 
1982 rights which were violated here.

The 1968 Fair Housing Act explicitly provides for
the allowance of "reasonable attorney fees in the case of a
prevailing plaintiff" suing under its provisions. 42 U.S.C.

24/Section 3612(c). Since attorneys' fees are universally

24/ The provision is phrased in stronger language than the 
analogous provision in Title II of the Civil Rights Act 
of 1964, which authorizes attorneys' fees in the 
"discretion" of the court. The Title II provision has 
been interpreted to mean that fees must be awarded in 
virtually every successful case. Newman v. Piggie Park 
Enterprises, Inc., 390 U.S. 400 (1968). Thus the Fair
Housing Act should be interpreted to confer a right to 
recover fees, except where the plaintiff is wealthy 
enough to afford easily the expense of litigation.
Also, the legislative history indicates that successful 
plaintiffs who are not even obligated to pay their 
lawyers— for example, persons represented by legal 
services offices or private legal associations— are entitled to recover fees, on the Piggie Park theory that 
"private attorneys general" play an important role in 
vindicating constitutional rights. See remarks of 
Senator Hart (floor manager of the bill), 114 Cong. Rec. 
S2308 (daily ed. March 6, 1968).

-24-



we submit that thisconsidered a procedural matter, 
provision of the Act should be applied to the instant case.

This type of application of new Congressional policy 
to prior conduct in the civil rights field was seen in Hamm v.
City of Rock Hill, 379 U.S. 306 (1964), where the Court held

26/
that the statutory prohibition of interference with equal 
access to public accommodations abated all pending criminal 
prosecutions of persons who had sought such access prior to 
the passage of the Act. Here, an appreciably less significant 
retrospective application is sought, since the Fair Housing

25/

25/ Rules governing the retrospective application of the
substantive portions of a statute need not be discussed 
here. Provisions for attorneys' fees are without a doubt 
procedural. In the cases and statutes pertinent hereto, 
counsel fees are awarded as part of the costs. Provisions 
which govern their allowance are found in the procedural 
sections of the Fair Housing and other Civil Rights Acts. 
42 U.S.C. Section 3612(c); 42 U.S.C. Section 2000a-3(b);
42 U.S.C. Section 2000e-5 (k) .
In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 
403 (1968), the Supreme Court ordered the district court 
on remand to "include reasonable counsel fees as part of 
the costs to be assessed against the respondents." This 
Court in Miller v. Amusement Enterprises, Inc., 426 F.2d 
534, 539 (5th Cir. 1970), recognized that "The Newman 
rule. . .calls for the allowance of attorney fees as part 
of the costs." (emphasis added)
See also Rules 30 (g) , 37 (a), 37 (c) , 54 (d) and 56 (g) of the 
Federal Rules of Civil Procedure. All refer to attorneys' 
fees as an element of costs or expenses.

26/ Title II of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000a-2.

-25-



Act was enacted well before Southern Home Sites engaged in
27/its discriminatory conduct and the conduct was in any event 

illegal under Section 1982.

Also relevant is the principle of Thorpe v. Housing
Authority of the City of Durham, 393 U.S. 268 (1969), that
when there is a change in the law while a case is pending in
the courts, the court should generally apply the law in effect

28/
at the time of its decision. Here, the 1968 law was fully
applicable prior to the first judicial opinion in this case 
(the District Court's opinion of April 7, 1969), and it 
seems quite proper to apply its procedural devices here.

Finally, the Supreme Court has recently said of 
Section 1982 and the Fair Housing Act that "the 1866 Civil 
Rights Act considered in Jones should be read together with
the later statute on the same subject. . . . "  Hunter v.

29/
Erickson, 393 U.S. 385, 388 (1969). Moreover, there is

27/ The law was enacted on April 11, 1968, Pub. L. 90-284;
82 Stat. 82; 42 U.S.C. Sections 3601 et_ seq.

28/ See also, United States v. Schooner Peggy, 1 Cranch 103, 
110 (1801); Vandenbark v. Owens Illinois Co., 311 U.S.
538 (1941); Ziffrin, Inc. v. United States, 318 U.S. 73 
(1943).

29/ The Court was there discussing whether the earlier lawshould be read so as to incorporate the provision of the 
1968 statute preserving local fair housing laws, and held 
that it should.

-26-



the mandate of 42 U.S.C. Section 1988, requiring that the 
federal courts, in proceedings to protect and enforce civil 
rights, be guided not only by the particular statute in 
question; the courts are directed also to draw from other laws 
to assure effective remedies for the wrongs involved. The 
Supreme Court has invoked this provision specifically to 
supply appropriate remedies under Section 1982. See Sullivan 
v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969). And
this Court has said of Section 1988 that "In civil rights 
cases, federal courts should use that combination of federal 
law, common law and state law as will be best adapted to the 
object of the civil rights laws. . ." Brown v. City of
Meridian, 356 F.2d 602, 605 (5th Cir. 1966). Therefore, the 
1968 Fair Housing Act should be read harmoniously with Section 
1982 to provide a single set of effective remedies under these 
statutes, and the attorneys' fees provision of the 1968 Act 
should be applied in this case.

-27-



CONCLUSION

For the reasons stated, the case should be remanded 
to the District Court with instructions to award reasonable 
attorneys' fees covering all proceedings in that court and 
on both appeals of this case.

Respectfully submitted,

JACK GREENBERG 
JEFFRY A. MINTZ

10 Columbus Circle
New York, New York 10019

REUBEN V . ANDERSON 
FRED L. BANKS, JR.538 1/2 North Farish Street 

Jackson, Mississippi
WILLIAM BENNETT TURNER 

1095 Market Street 
San Francisco, California 94103

Attorneys for Appellant

-28-



II

The District Court Erred In Dismissing These Cases 
Without Finding That the School Districts Had Eliminated All 
Vestiges of Their Racially Dual and Unequal School Systems

These cases were dismissed without any finding that the
school districts had achieved and maintained unitary status. The
district court did not state that the school districts had
achieved "unitary status," nor did it state that the districts
had eliminated all the vestiges of their racially dual and
unequal school systems. The district court's opinions provide
only, with respect to Etowah County and Sylacauga City, that they
"operated a unitary system over the past several years" (R2-25-
8; R3-24-12); the courc is completely silent on this issue with
respect to Talladega City. (R4-26.)

In Georgia State Conference of Branches of NAACP v. Georgia.
775 F.2d 1403 (11th Cir. 1985), this Court recognized the
confusion over the meaning of the terms "unitary" and "unitary
status." The Court explained the difference in a footnote:

Some confusion has been generated by the failure to 
adequately distinguish the definition of a "unitary" 
school system from that of a school district which has 
achieved "unitary status." As used in this opinion, a 
unitary school system is one which has not operated 
segregated schools as proscribed by cases such as Swann 
and Green for a period of several years. A school 
system which has achieved unitary status is one which 
is not only unitary but has eliminated the vestiges of 
its prior discrimination and has been adjudicated as 
such through the proper judicial procedures. 
Unfortunately, the terminology used to refer to these 
concepts is not universal. See. e". a . . Castaneda Tv.
Pickard! . 648 F.2d [989,] at 996-97 [(5th Cir.
1981)](referring to a school district which does not

25



operate a dual system as having achieved "unitary 
status").

Id. at 1413 n.12.33
The district court embraced these definitions in its

opinions in each of these cases by specifically "adopt[ing] and
reiterat [ ing]" the rationale of its opinion in Lee v. Macon
County Board of Education (Nunnelley State Technical College).
681 F. Supp. 730, where the court stated:

"Unitary status" is a term of nouveau art. The fact 
that a school district or institution has ceased to 
operate in a racially segregated fashion, and is, 
therefore, "unitary" in that limited sense, is not 
synonymous with a finding that the entity is "fully 
unitary" or has achieved "unitary, status."

Id. at 736 (thereafter citing Georgia State Conference of
Branches. and quoting most of the passage set out above.) In
light of the district court's acknowledgement that the two terms
have different meanings, it cannot be argued that the findings
made by the district court are equivalent to findings of
"unitary status."34

Indeed, it is difficult to discern why the district court 
decided to dismiss these cases without making specific "unitary 
status" findings. Although the court described "unitariness" as 
a "will-o-the-wisp" concept at one point in its Nunnelley 
opinion, it concluded that an ad hoc. case-by-case approach to

33 See Monteilh v. St. Landrv Parish School Board. 848 
F.2d 625, 629 (5th Cir. 1988).

34 Even if the district court's opinion could somehow be 
construed to have concluded that all vestiges of the dual systems 
had been eliminated, such a finding would be clearly erroneous 
based upon the undisputed facts alleged by plaintiffs.

26



e the issue was "not only unavoidable, but wise." 681 F. Supp. at 
730. Nevertheless the court failed to address the question 
squarely in these cases. This may well have been because of its 
recognition that even on the facts produced through limited 
discovery and without the hearing that plaintiffs sought, 
findings of "unitary status" —  which the court at one point in 
its Nunnellev opinion appears to have equated with unattainable 
"perfection," see 631 F. Supp. at 739 —  could not be justified.

Because a finding that a school district has eliminated all 
vestiges of its racially dual system and thus has achieved 
"unitary status" must be made before a court can conclude a 
school desegregation case, Georgia State Conference of Branches. 
775 F.2d 1403 ; Pitts v. Freeman. 755 F.2d 1426,35 the district 
court erred in concluding these cases without making such a 
finding and the judgment below should be reversed.

Ill
The District Court Erred In Vacating The Permanent 
Injunctions Without Finding That They Had Become 

Burdensome Or Oppressive And That The Dangers Prevented 
By The Injunctions Had Become Attenuated To A Shadow

We have argued above that it was error for the district 
court to dismiss these cases without holding a hearing and 
without making a finding of "unitary status." Reversal of the 
judgment below on either or both of these grounds would

35 See also Lee Macon
(Nunnellev State Technical College),

County Board of Education 
681 F. Supp. at 736.

27



necessarily mean that the portion of the district court's orders 
vacating all injunctive relief previously granted in these cases 
also could not stand, inasmuch as the fact of dismissal was the 
basis for the district court's dissolution of its decrees.

We deal in this section of the brief with the separate 
question whether, even if these school systems have achieved 
"unitary status" and the cases are properly dismissed, all prior 
injunctive orders entered in the lawsuits should be vacated.36 
There are two aspects of this question: (a) does the achievement 
of unitary status require dissolution of all prior remedial 
decrees? (we contend that it does not) , and (b) what is the 
correct legal standard for determining whether to vacate or 
modify injunctive relief in a case?

The district court dissolved the permanent injunctions 
entered in these cases because it concluded that defendants have 
complied with the provisions of the injunctions and, at least as 
to Sylacauga and Etowah County, have "operated a unitary system 
over the past several years."37 Equating the determination of 
unitary status38 with the decision whether to dissolve

36 Thus, even if the Court rejects our earlier arguments, 
it should reverse so much of the orders below as vacated all 
prior injunctive decrees in these cases. If the Court agrees 
with us as to the error of dismissing these cases, it may 
nevertheless wish to decide the questions addressed in this 
section of the brief in order to provide appropriate guidance to 
the district court on remand.

37 See supra note 25.
38 As we have shown in § II above, the district court did 

not in fact make findings of "unitary status" in this case.
(continued...)

28



outstanding permanent injunctive relief, however, conflates the 
separate substantive issues faced by a court in concluding a 
school desegregation case —  retention of active supervision and 
dissolution of all injunctive remedies —  and displaces the 
established body of equitable principles applicable to the second 
inquiry. The fact that a school district has complied with the 
court's injunctive orders, and perhaps thereby attained "unitary 
status," does not provide a basis for the conclusion that the 
injunctions should be dissolved.38 39 In order to afford complete 
relief, school authorities should be prohibited from taking 
action that results in the loss of the benefits gained in the 
litigation; if school authorities' decisions result in 
reestablishment of the dual system, plaintiffs ought to be able 
to return to court to protect the relief they obtained, by 
enforcing the permanent injunction.40 See Keves v. School

38(...continued)
However, it purported to apply a legal rule dependent upon such a 
finding. The discussion in text assumes arguendo that there has 
been a predicate finding of "unitary status" in a case.

39 In fact this Circuit has never held that a finding of 
"unitariness" or "unitary status," should be equated with 
dissolution of all permanent injunctive relief. See Youngblood. 
Lee v. Macon County (Baldwin County). United States v. Hinds 
County. United States v. Texas Education Agency. Steele v. Board 
of Pubic Instruction. Wright v. Board of Public Instruction. 
Georgia State Conference of Branches. Pitts v. Freeman. United 
States v. Jackson County cited supra at 19-24 and United States 
v. Georgia. 691 F. Supp. 1440 (M.D. Ga. 1988).

40 As the Tenth Circuit put it in Dowell v. Board of 
Education of Oklahoma Citv. 795 F.2d 1516, 1520, 1521 (10th
Cir.), cert. denied. 107 S. Ct. 420 (1986), rejecting, the
position of the government and the Fourth Circuit in Riddick v.

(continued...)
29



District No. 1. Denver. 653 F. Supp. 1536, 1541-42 (D. Colo.
1987) .40 41

The district court relied upon Judge Higginbotham's opinion 
in United States v. Overton. 843 F.2d 1171 (5th Cir. 
1987) (dictum),42 for the proposition "that a finding of

40(...continued)
School Board of Norfolk. 784 F.2d 521 (4th Cir.), cert, denied. 
107 S. Ct. 420 (1986), "the parties cannot be thrust back to the 
proverbial first square just because the Court previously ceased 
active supervision over the operation of the [desegregation 
p]lan;" in order "[t]o make the remedy meaningful, the injunctive 
order must survive beyond the procedural life of the litigation."

41 A rather pedestrian example underlines the point. If 
the plaintiff in a nuisance action obtains an injunction to 
prevent his neighbor from burning tires in his yard, spreading 
fumes and particulate matter onto the plaintiff's property, the 
fact that the neighbor complies with that order for five or ten 
years does not provide a basis for the court to vacate the 
injunctive decree and force the plaintiff to file a new lawsuit 
if the neighbor resumes the practice. In no other area of the 
law have plaintiffs found any cases where a defendant, after 
having been found to have violated the law and being enjoined 
from continuing that violation, is released from all restraint 
based merely upon a showing that the injunction has not been 
violated during its continuance, or based upon a finding that the defendant's current behavior conforms to legal requirements.

42 In Overton. a consent decree provided that the plan 
which it embodied was to be implemented for a period of three 
years, at the end of which time, "unless there is objection by 
the parties," the school district "shall be declared to be a 
unitary school system and this case shall be dismissed." 834 
F.2d at 1173. After three years, an objection was made by one of 
the parties but withdrawn by a further stipulation. After the 
stipulation expired, the school district adopted a new pupil 
assignment plan which the original plaintiffs sought to attack as 
a violation of the consent decree. The district court held that 
the consent decree was no longer enforceable and the Fifth 
Circuit agreed, interpreting the decree itself to have terminated 
at the end of the three-year period. Id. at 1174.

Once the panel concluded that the decree was "unenforceable" 
because it had "expired by its own terms," there was no need to 
decide any other issue in the case, especially an issue of the

(continued...)
30



unitariness calls for the dissolution of permanent injunctive 
relief previously granted." (R2-25-15; R3-24-15; R4-26-15.)42 43 
In so doing, the court below ignored the clear statement of this 
Court: "That school districts have become unitary, however, does
not inevitably require the courts to vacate the orders upon which 
the parties have relied in reaching that state." United States 
v. Board of Education of Jackson County. 794 F.2d at 1543 (per
curiam). Unless Jackson County is to be overruled, therefore, 
the trial court's justification for vacating the injunctive 
decrees in these cases cannot be accepted.44

42(...continued'
scope or duration of constitutionally required relief. See 
United States v. Henry. 709 F.2d 298, 310 (5th Cir. 1983); accord 
United States v. Stuebben. 799 F.2d 225 (5th Cir. 1986).

43 See Lee v. Macon County (Nunnellev) . 681 F. Supp. at 737.
44 The district court attempted to distinguish Jackson 

County. stating that the facts underlying that decision are 
"inapposite" to these cases where "plaintiffs have had [many] 
years under the benefit of the injunction in which to call to 
this court's attention any failures on the [School] Board's part 
to comply with the explicit terms of the permanent injunction." 
R2-25-15; R3-24-15; R4-26-15. In Jackson County. however, this 
Court's statement was a necessary rejection of an across-the- 
board rule advanced by the United States and was not limited to 
the facts of that suit; rather, it came in response to the 
argument of the United States "that all orders flowing from 
desegregation suits must be vacated with the dismissal of the 
suits and that the unitary nature of the school districts removes 
any basis for continuing jurisdiction," 794 F.2d at 1543.

What was fact-bound about this Court's Jackson County 
decision was its affirmance of the district court's order there 
vacating a 1970 decree because it had been complied with, had 
achieved the purposes for which it was entered, and was no longer 
necessary:

[T]he district court apparently accepted the resolution.
modifying the contract as fulfilling the 1970 order.

(continued...)
- 31



In Swann v. Charlotte-Mecklenburg Board of Education. 402
U.S. 1, 12-16 (1971), the Supreme Court emphasized the holding of
Brown v. Board of Education. 349 U.S. 294, 299-300 (1955) (Brown
II) that traditional equitable principles would apply in
desegregation suits. The traditional equitable principle to be
applied in considering a request for modification or dissolution
of injunctive relief, once granted, is set forth in United States
v. Swift & Company. 286 U.S. 106 (1932), and its progeny:

The inquiry for us is whether the changes [in 
circumstances] are so important that dangers, once 
substantial, have become attenuated to a shadow. No 
doubt the defendants will be better off if the 
injunction is relaxed, but they are not suffering 
hardship so extreme and unexpected as to justify us in 
saying that they are victims of oppression. Nothing 
less than a clear showing of grievous wrong evoked by 
new circumstances should lead us to change what was 
decreed after years of litigation with the consent of 
all concerned.

286 U.S. at 119.44 45 Accord Dowell v. Board of Education of

44(...continued)This contract sufficed to obtain the state assistance 
that the 1970 order was meant to obtain.

Id. This analysis is consistent with the Swift standards, see 
infra at 32-33. (In Jackson County this Court was not asked to 
consider the propriety of the district court's vacating the more 
general 1969 desegregation order. 794 F.2d at 1543.)

45 In Swift. the Supreme Court rejected a request to 
modify a decree enjoining the continuance of a combination of 
meatpackers in restraint of trade. At another stage in the Swift 
litigation, the district court denied a new request for 
modification of the decree, rejecting the companies' argument 
that the public would be adequately protected by the ability of 
the parties to file new lawsuits:

It is of no avail to argue, as they have, that the 
anti-trust laws . . . now provide ample remedies for
future violations. The public now enjoys the specific

(continued...)
- 32



Oklahoma City. 795 F.2d at 1521; Paradise v Prescott. 767 F.2d
1514 n.13 (11th Cir. 1985), aff'd. 107 S.Ct. 1053 (1987) 
(employment discrimination claim under the Fourteenth Amendment); 
Cable Holdings of Battlefield. Inc, v. Cooke, 764 F.2d 1466, 1474 
n.19 (11th Cir. 1985) (contract, anti-trust, and securities law 
claims).45 46

The fundamental misconception of the Overton dictum is, we 
believe, its creation of a remedial jurisprudence in school 
desegregation cases which is wholly separate and different from 
these equitable principles, which the Overton panel itself

45(...continued)
protections of a decree. The defendants' contention 
that the general law also forbids the conduct would be 
equally available to prevent the issuance of any 
injunction against future conduct, and would render the 
equitable remedy nugatory.

United States v. Swift & Company. 189 F. Supp. 885, 906 (N.D. 
111. 1960), aff'd per curiam. 367 U.S. 909 (1961). Accord 
Securities & Exchange Commission v. Jan-dal Oil & Gas, Inc., 433 
F. 2d 304 , 305 (10th Cir. 1970) (rejecting argument that 
continuance of injunction was unnecessary because it did not 
"gran[t] the S.E.C. any power that was not contained within the 
act itself"); United States v. Western Electric Company, Inc. . 
592 F. Supp. 846, 854-55 (D.D.C. 1984), appeal dismissed. 777 
F.2d 23 (D.C. Cir. 1985).

46 Converting the "unitary status" determination into a 
decision on dissolution or modification of injunctive relief 
puts school desegregation cases into a category of their own and 
affords plaintiffs in these suits less protection from future 
injury to their constitutional rights than litigants whose claims 
are purely economic. This is particularly inappropriate, given 
that the right to be free from discrimination in education is one 
of the most fundamental constitutional rights. Bob Jones 
University v. United States. 461 U.S. 574, 592-93 (1983); Brown 
v. Board of Education. 347 U.S. 483 (1954)(Brown I).

33



recognized were applicable "in other civil litigation, including 
antitrust and securities cases," 834 F.2d at 1174.47

47 Overton is not persuasive for other reasons. For
example, the panel there misconstrued the language of Swann v. 
Charlotte-Mecklenburg Board of Education. 402 U.S. 1 (1971),
upon which it sought to rely. See Overton. 834 F.2d at 1175, 
text at n.ll. At the end of its opinion, the Supreme Court 
indicated that following unitariness, in the face of demographic 
change unaccompanied by school district actions, "a showing that 
either the school authorities or some other agency of the State 
has deliberately attempted to fix or alter demographic patterns 
to affect the racial composition of the schools," id. at 32, 
would be required to justify further judicial relief in a 
desegregation suit.

The Overton panel quoted this passage with an ellipsis that 
uprooted the Supreme Court's language from its context and 
implied that conduct by school officials which brought about a 
recurrence of the dual system following "unitariness" could be 
remedied only upon the showing necessary in a new lawsuit—  
intentional discrimination —  and that school authorities had no 
continuing obligations after "unitariness":

[I]n the absence of a showing that either the school 
authorities or some other agency of the State has 
deliberately attempted to fix or alter . . . the racial 
composition of the schools, further intervention by a 
district court should not be necessary.

834 F.2d at 1175 (emphasis and ellipsis added by panel). But see 
the Supreme Court's language, 402 U.S. at 21, discussed below.

The Overton panel also erred in attempting to distinguish 
the Lee v. Macon County (Baldwin County) ruling cited above, 584 
F.2d 78 (5th Cir. 1981), which upheld the continuing jurisdiction 
of the court following "unitariness."

The Overton opinion asserted that the statements in the 
Baldwin County case "that a unitary district is 'bound to take no 
actions which would reinstitute a dual school system' and that 
school districts should maintain unitary status once achieved" 
were made in "reli[ance] upon" the passage it quoted from Swann 
and were therefore limited to the circumstances of deliberate 
conduct emphasized by the Overton panel. In fact, the Baldwin 
County decision cited an entirely different passage from the 
Swann opinion for its conclusion:

In devising remedies where legally imposed segregation
(continued...)

34



Plaintiffs-appellants submit that consistent with this 
Court's decision in Jackson County, the reasoned decision in 
Dowell. harmonizing remedial principles in school desegregation 
cases with those in other equitable suits in the federal courts, 
rather than the mechanical rule espoused by the Overton panel, 
should govern the issue of modification or dissolution of 
injunctive relief in school desegregation suits in this Circuit. 
The court below, however, made no attempt to determine either 
that all vestiges of the discriminatory conduct by which the dual 
system was maintained had been removed, or that the possibility 
that such discriminatory conduct would recur had become 
"attenuated to a shadow." Its ruling that the prior orders in 
these cases should be vacated must therefore be reversed.

In sum, the district court erred in vacating the permanent 
injunctions in these cases based on its conclusion that where 
injunctions have been complied with and the court concludes that 
the school district is unitary, those injunctions are to be 
dissolved with dismissal of the case. 47

47(...continued)
has been established, it is the responsibility of local 
authorities and district courts to see to it that 
future school construction and abandonment are not used 
and do not serve to perpetuate or re-establish the dual 
system.

402 U.S. at 21; see 584 F.2d at 81. Lee v. Macon County (Baldwin 
County), correctly construed and unaffected by the erroneous 
characterization of the Overton panel, is controlling here. . See 
Bonner v. City of Prichard. 661 F.2d 1206, 1209-11 (11th Cir. 
1981)(en banc).

35



Conclusion
For the reasons stated above, plaintiffs-appellants 

respectfully request that this Court reverse the final judgments 
of the district court entered on July 8, 1988, with respect to 
the Etowah County Board of Education, Sylacauga City Board of 
Education, and Talladega City Board of Education, dismissing 
these cases, dissolving all injunctive relief, and terminating
jurisdiction.

December 16, 1988

Respectfully submitted,

SALOMON S. SEAY, JW.
IP.O. Box 6215 
''Montgomery, AL 3 6106 
(205) 834-2000

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
JANELL M. BYRD

99 Hudson Street, 16th FI. 
New York, New York 10013 
(212) 219-1900

Counsel for Plaintiffs- 
Appellants

36



Certificate of Service

copies of the Plaintiff-Appellants' Brief on Appeal from the 
Northern District of Alabama was served by first class U.S. mail, 
postage prepaid on the following individuals:

Cleophus Thomas, Jr., Esq.
P. 0. Box 2303 
Anniston, AL 36202
Ralph Gaines, Jr., Esq.
Gaines, Gaines & Gaines, P.C. 
Attorneys at Law 
127 North Street Talladega, Alabama 35106
James R. Turnbach, Esq.
Pruitt, Turnbach & Warren 
P.O. Box 29
Gadsden, Alabama 35902
Donald B. Sweeney, Jr. Esq.
Rives & Peterson 
1700 Financial Center 
Birmingham, A l a b a m a 35203
Dennis J. Dimsey, Esq.
Thomas E. Chandler, Esq.
Department of Justice 
Civil Rights Division 
Appellate Section 
P.O. Box 66078
Washington, D.C. 20035-6078
Frank Donaldson, Esq.
Caryl Privett, Esq.
Office of the United States Attorney 
1800 Fifth Avenue North 
Birmingham, Alabama 35203
Jim R. Ippolito, Jr., Esq.
609 State Office Building 
Montgomery, Alabama 36130

37



IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

ANTHONY T. LEE, ET AL., )
Plaintiffs, )

)vs. )
)UNITED STATES OF AMERICA, )

Plaintiff-Intervenor )
and Amicus Curiae, )

)NATIONAL EDUCATIONAL )
ASSOCIATION, INC., )

Plaintiff-Intervenor, )
)vs. )
)MACON COUNTY BOARD OF )

EDUCATION ET AL., )
Defendants. )

____________________________________ )

UNITED STATES' MOTION AND SUPPORTING 
MEMORANDUM REQUESTING FURTHER RELIEF

On August 8, 1988 the Shelby County Board of Education 
(Shelby County), in compliance with this Court's order granting 
the United States' motion to compel, filed its response to 
objections raised by the United States and private plaintiffs to 
a finding that Shelby County has achieved unitary status. The 
United States filed its objections on April 12, 1988, stating 
that prior to a declaration of unitary status and dismissal, the 
Shelby County School District (Shelby County) should be required 
to produce evidence that it has continued to comply with this 
Court's orders in the area of faculty hiring and promotion.

On July 8, 1988, prior to receiving Shelby County's response 
to the objections filed by the United States and private

CIVIL ACTION NO. 
7 0-AR-251-S
(SHELBY COUNTY)



plaintiffs, this Court concluded that a hearing was appropriate 
to allow the parties to present additional evidence on whether 
the school district has reached and maintained unitary status 
sufficiently to allow the action to be dismissed. The defendant 
school districts were given the option of proceeding to hearing 
on the question of unitary status and dismissal or of taking nine 
months to come into compliance. Shelby County chose to proceed 
to hearing, apparently believing that they are entitled to a 
finding of unitary status and dismissal of their case. The 
hearing is currently set for August 31, 1988.

In responding to the concerns raised by the United States 
regarding faculty hiring and promotion, Shelby County admits in 
its response filed on August 8, 1988 (filed following an order 
granting the United States' motion to compel such a response), 
that it hires faculty so that the ratio of black faculty is the 
same as the ratio of black students in the district.
Accordingly, the percentage of black faculty has decreased over 
time as has the percentage of black students.

Such a standard for hiring faculty members is clearly 
discriminatory, is in violation of this Court's orders,^- and

1 The permanent injunction entered on July 25, 1974 enjoins 
the school district from operating a dual school system and 
requires that:

Staff members who work directly with children, and 
professional staff who work on the administrative 
level, will be hired, assigned, promoted, paid, 
demoted, dismissed, and otherwise treated without 
regard to race, color, or national origin.

2



precludes a finding that Shelby County has attained unitary 
status. The admitted practices of Shelby County of hiring and 
assigning faculty in accordance with the racial composition of 
the student enrollment represent, indeed, affirmative, 
intentional discrimination by the school district. See generally 
Wyqant v. Jackson Board of Education. 476 U.S. 267 (1986.)2 We 
note further that the proper standard for faculty assignment 
within a school district is to assign faculty and staff to 
district schools so that the ratio of white to black faculty is 
substantially the same at each school in the district, i.e.. 
reflects the overall district-wide percentage of faculty. 
Singleton v. Jackson Municipal Separate School District. 419 F.2d 
1211 (5th Cir. 1969), cert, denied, 396 U.S. 1032 (1970).

The United States respectfully requests that the Shelby 
County Board of Education be ordered to cease its current 
employment practices, and to develop within 60 days a plan for 
implementing employment procedures which will ensure 
nondiscriminatory policies and practices in the area of 
recruitment, hiring, assignment, promotion demotion and 
termination.

2 The United States does not believe that analysis of 
statistical evidence is necessary since defendants have admitted 
on the record that they engage in discriminatory employment 
practices. We do note that if such statistical evidence were 
shown, the relevant labor pool would be the Birmingham 
metropolitan area. In determining whether actual discrimination 
has occurred, the proper comparison is "between the racial 
composition of [the school's] teaching staff and the racial 
composition of the qualified public school teacher population in 
the relevant labor market." Wyqant v. Jackson Board of 
Education. 476 U.S. 267, 275 (1986); citing, Hazlewood School District v. United States. 433 U.S. 299, 308 (1977).

3



The United States would propose that the parties enter into 
a consent decree which would commit the defendants to correcting 
the faculty violation and to continuing to follow the other 
orders already in place. If this decree is followed for a period 
of two years, the United States would then join defendants in a 
motion to dismiss the case.

Respectfully submitted
FRANK W. DONALDSON 
United States Attorney

WM. BRADFORD REYNOLDS 
Assistant Attorney General

CARYL P. PRIVETT 
Assistant United

States Attorney PAULINE A. MILLER 
Attorneys
Civil Rights Division 
Department of Justice 
Washington, D.C. 20035-5958 
(202) 633-4092



CERTIFICATE OF SERVICE
I hereby certify that on this day of August 25, 1988,

I served copies of the foregoing pleading to counsel of 
record, by depositing copies of said documents in the United 
States mail, postage prepaid, addressed to:

Martin Ray/Raymond Ward Ray, Oliver, Ward & Parsons 
2020 University Boulevard 
P.O. Box 65 
Tuscaloosa, A1 35402

James E. Turnbach 
Pruett, Turnbach & Warren P.O. Box 29 
Gadsden, A1 35902

Larry H. Keener 
Floyd, Keener, Cusimano & 
Roberts, P.C.
816 Chestnut Street 
Gadsden, A1 35999-2701

Donald B. Sweeney, Jr.
Rives & Peterson 
1700 Financial Center 
Birmingham, A1 35203
Ralph D. Gaines, III 
Gaines, Gaines & Barnett, P.C. 
127 North Street Talladega, Al 35160

Donald Watkins 
Watkins Carter & Knight 
1120 South Court Street 
Montgomery, Al 36104

Oliver P. Head 
Wallace, Ellis, Head & 
Fowler

Attorneys at Law 
P.O. Box 587 
Columbiana, Al 35051
H.C. Conwill 
Conwill & Justice 
P.O. Box 557 
Columbiana, Al 35051
Jim R. Ippolito, Jr.
State Department of 
Education

609 State Office Building 
Montgomery, Al 36103
Thomas W. Thagard 
David R. Boyd 
Balch & Bingham 
P.O. Box 78 
Montgomery, Al 36101

Janell M. Byrd 
NAACP-LDF 
99 Hudson Street 
16th Floor
New York, New York 10013

Solomon Seay
732 Carter Hill Road
P.O. Box 6215 
Montgomery, Al 36106

Pauline A. Miller 
Attorney
Civil Rights Division 
Department of Justice 
Washington, D.C. 20035-5958