Bradley v. School Board of the City of Richmond Brief for Appellees
Public Court Documents
January 3, 1972

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Brief Collection, LDF Court Filings. Bradley v. School Board of the City of Richmond Brief for Appellees, 1972. 2557a4a2-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d9cfb4d7-f2f3-4073-a454-2241e621cab1/bradley-v-school-board-of-the-city-of-richmond-brief-for-appellees. Accessed July 10, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NO. 71-1774 CAROLYN BRADLEY and MICHAEL BRADLEY, et al., Appellees, v. THE SCHOOL BOARD OF THE CITY OF RICHMOND, VIRGINIA, et al., Appellants. Appeal from the United States District Court for the Eastern District of Virginia, Richmond Division BRIEF FOR APPELLEES JACK GREENBERG JAMES M. NABRIT, III NORMAN J. CHACHKIN 10 Columbus Circle New York, New York 10019 LOUIS R. LUCAS 525 Commerce Title Building Memphis, Tennessee 38103 JAMES R. OLPHIN 214 East Clay Street Richmond, Virginia 23219 M. RALPH PAGE 420 North First Street Richmond, Virginia 23219 Attorneys for Appellees I N D E X paae Table of Authorities........................... ii Issue Presented for Review .................... 1 Counter Statement of the C a s e .................. 2 ARGUMENT — Introduction ............................ 6 The District Court Properly Awarded Counsel Fees To Effectuate The Purpose Of The Civil Rights A c t s .................. 6 The District Court's Award Of Fees Is Within Its Equitable Discretion . . . . 14 CONCLUSION..................................... 41 Certificate of Service ........................ 42 Appendix A l Table of Authorities pa.ae Cases: Avery v. Midland, 390 U.S. 474 (1968).......... 29 Basista v. Weir, 340 F.2d 74 (3d Cir. 1965) . . . 7n Bell v. Hood, 327 U.S. 678 (1946).............. 11 Bell v. School Bd. of Powhatan County, 321 F. 2d 494 (4th Cir. 1963).................. 15,18,19n, 20n Bradley v. School Bd. of Richmond, 382 U.S. 104 (1965)................................ 3,20 Bradley v. School Bd. of Richmond, 345 F.2d 310 (4th Cir. 1965) ...................... 3,12,16n,18, 19n,2 2 Bradley v. School Bd. of Richmond, 317 F. Supp. 555 (E.D. Va. 1970) ................ 4,25n,28n Bradley v. School Bd. of Richmond, 324 F. Supp. 456 (E.D. Va. 1971) 5,31,32,33 Bradley v. School Bd. of Richmond, 325 F. Supp. 828 (E.D. Va. 1971) ................ 36 Bradley v. School Bd. of Richmond, 53 F.R.D. 28 (E.D. Va. 1971) ........................ 2,6,16n,19,20n 24,25,26,28,31 33,34n,36 Brewer v. School Bd. of Norfolk, 434 F.2d 408 (4th Cir. 1970) .......................... 26 Brewer v. School Bd. of Norfolk, 397 F.2d 37 (4th Cir. 1968) .......................... 25,26 Brotherhood of R. Signalmen v. Southern Ry. Co., 380 F.2d 59 (4th Cir.), cert, denied, 389 U.S. 958 ( 1 9 6 7 ) ....................... 10n,l2n,16n Brown v. Board of Educ., 347 U.S. 483 (1954); 349 U.S. 294 (1955) ...................... 9 Brown v. Earth, Inc., 2 Race Rel. L. Sur. Ill (M.D. Tenn. 1970) ........................ 12n li Table of Authorities (cont'd) Page Brunson v. Board of Trustees, 429 F.2d 820 (4th Cir. 1970) ................. 39 Carlisle, Brown & Carlisle v. Carolina Scenic Stages, 242 F.2d 259 (4th Cir. 1957).......................... .. 15,16n Clark v. American Marine Corp., 304 F. Supp. 603 (E.D. La. 1969) ............ 8n Clark v. Board of Educ. of Little Rock, 449 F. 2d 493 (8th Cir. 1971).............. 19n Clark v. Board of Educ. of Little Rock, 426 F.2d 1035 (8th Cir. 1970), cert, denied, 402 U.S. 952 (1971) ........... 26 Conte v. Glota Mercante del Estado, 277 F.2d 664 (2d Cir. 1960).................... lOn Dobbins v. Local 212, IBEW, 292 F. Supp. 413 (S.D. Ohio 1968)................ .. 8n Dyer v. Love, 307 F. Supp. 974 (N.D. Miss. 1969) ................................ . 29 Farmer v. Arabian American Oil Co., 379 U.S. 227 (1964) .................... .. lOn Felder v. Harnett County Bd. of Educ., 409 F.2d 1070 (4th Cir. 1969) ......... 13n,24 Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967) . . . ., 8,lOn,lln,16n Flemming v. South Carolina Elec. & Gas Co., 239 F.2d 277 (4th Cir. 1956) . . .. 21 Gibbs v. Blackwelder, 346 F.2d 943 (4th Cir. 1965) ............................ , 13 Green v. County School Bd. of New Kent County, 391 U.S. 430 (1968) .........., 20,21,22,23, 24,26 i n Table of Authorities (cont*d) ?.a9e Guardian Trust Co. v. Kansas City Southern Ry. Co., 28 F.2d 233 (8th Cir. 1928) . . 15 Hammond v. Housing Auth. & Urban Renewal Agency, 328 F. Supp. 586 (D. Orel. 1971) .............................. . 9n, 12 Henry v. Clarksdale Municipal Separate School Dist., 409 F.2d 682 (5th Cir.), cert, denied, 396 U.S. 940 (1969) . . . 26 Holley v. City of Portsmouth, 150 F. Supp. 6 (E.D. Va. 1957) ............ . 21 In re Carico, 308 F. Supp. 815 (E.D. Va. 1970) .......................... . lOn James v. Beaufort County Bd. of Educ., Civ. No. 680 (E.D.N.C., Nov. 15, 1971) . 12 Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) .......................... . 7n,8n Kelley v. Altheimer, 297 F. Supp. 753 (E.D. Ark. 1969) .......................... . 21 Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965) lln Lakewood Homes, Inc. v. Board of Adjustment, 23 Ohio Misc. 211, 258 N.E.2d 470 (Ct. Common Pleas 1970) .................. ,. 11 Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971) .................... . 8n,17n Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) ................... 9,11-12 Lightfoot v. Odum, No. 11,647 (N.D. Ga., June 29, 1970) ......................... I2n Local No. 149, Int'l Union v. American Brake Shoe Co., 298 F.2d 212 (4th Cir. 1962)................... . I6n Lyle v. Teresi, 327 F. Supp. 683 (D. Minn. 1971) ........................ , 12 I V Table of Authorities (cont'd) Page McDaniel v. Barresi, 402 U.S. 39 (1971) . • • 39 Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) .................. 8,9n,lln Nesbit v. Statesville City Bd. of Educ., 418 F.2d 1040 (4th Cir. 1969) . . . 13n, 14,21,23n,24 Newbern v. Lake Lorelei, Inc., 308 F. Supp. 407 (S.D. Ohio 1968), Civ. No. 6871 (S.D. Ohio, March 12 and April 1969) ............................ 22, 11 Newman v. Piggie Park Enterprises, Inc., U.S. 400 (1968) .................. 390 8n,10-11,13,14 Newton v. Consolidated Gas Co., 265 U.S. 78 (1924) ........................ 15 North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43 (1971) ........ 39 Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (8th Cir. 1970) .......... 8n People v. Doughtie, Civ. No. 1150-S (M.D. Ala., Nov. 18, 1971) .............. 12n Phillips v. Pinehurst Realty Co., 2 Race Rel. L. Sur. 33 (M.D. Tenn. 1970) • • 12n Pina v. Homsi, Civ. No. 69-666-G (N.D. Mass., July 10, 1969) ............ 12n Research Corp v. Pfister Associated Growers, Inc., 318 F. Supp. 1405 (N.D. 111. 1970) 2 3n Reynolds v. Sims, 377 U.S. 533 (1964) . . • • 29 Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971) .................. 8n,17n Robinson v. Shelby County Bd. of Educ., 429 F„2d 11 (6th Cir. 1970) .............. 37 Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (4th Cir. 1951) .......... lOn,17,18 Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970) .............. 7n, 8n v Table of Authorities (cont'd) Page Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211 (5th Cir. 1969) .......................... . 2 3n Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966) . . 7 Specialty Equipment & Machinery Corp. v. Zell Motor Car Co., 193 F.2d 515 (4th Cir. 1952) .................... . 16n Sperry Rand Corp. v. A-T-0 Corp., 447 F.2d 1387 (4th Cir. 1970) ................ . 16n Sprague v. Ticonic Nat'l Bank, 307 U.S. 161 (1939) .......................... . 15,17 Stanley v. Darlington County School Dist., 424 F.2d 195 (4th Cir. 1970) ........ . 2 3n Sullivan v. Little Hunting Park, Inc., 396 U.S. 299 (1969) ................ . 11 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) ............ . 4-5,30,35,37 Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 138 (4th Cir. 1970) . 26,27,28n Terry v. Elmwood Cemetery, 307 F. Supp. 369 (N.D. Ala. 1969), Civ. No. 69-490 (N.D. Ala., Jan. 29, 1970) .......... . 12n Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957) ................ . 11 Turner v. Lazarus,d/b/a Johnson & Lazarus, Realtors, No. 50366 (N.D. Cal., Nov. 22, and Dec. 3, 1968) .............. . 12n United States v. Blackwell, 238 F. Supp. 342 (W.D.S.C. 1965) ................ . lOn United States v. Board of Educ. of Bald win County, 423 F.2d 1013 (5th Cir. 1970) .............................. . 2 3n V I Table of Authoities (cont'd) Page Vaughan v. Atkinson, 369 U.S. 527 (1962) . . lOn Vaughn v. Ting Su, No. 49643 (N.D. Cal., July 19 and Dec. 3, 1 9 6 8 ) ............ 12n Walker v. County School Bd. of Brunswick County, 413 F.2d 53 (4th Cir.), cert, denied, 396 U.S. 1061 (1970).......... 13n Wanner v. County School Bd. of Arlington County, 357 F.2d 452 (4th Cir. 1966) . . 39 Williams v. Kimbrough, 415 F.2d 874 (5th Cir.), cert, denied, 396 U.S. 1061 (1970)..................................lln Statutes: 35 U.S.C. §285 ............................ 23n 42 U.S.C. §1981 ........................... 7,11,12 42 U.S.C. §1982 ........................... 7,9,11,12 42 U.S.C. §1983 ........................... 1,6,7,8,9,10,12, 13,14 42 U.S.C. §2000a—3 ........................... 8n 42 U.S.C. §2000a-3(b) ...................... lln 42 U.S.C. §2000c-6....................... 8n 42 U.S.C. §2000c-8 8n,10,lln 42 U.S.C. §3612........................... 8n Other Authority: H.R. Rep. 914, 88th Cong., 2d Sess., 2 U.S. Cong. Code & Adm. News 2 3 94 .......... 10 vii IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NO. 71-1774 CAROLYN BRADLEY and MICHAEL BRADLEY, et al., Appellees, v. THE SCHOOL BOARD OF THE CITY OF RICHMOND, VIRGINIA, et al., Appellants. Appeal from the United States District Court for the Eastern District of Virginia, Richmond Division BRIEF FOR APPELLEES Issue Presented for Review Whether the district court abused its discretion by- awarding counsel fees in a school desegregation action as part of its equity jurisdiction and in furtherance of federal policy in §1983 actions. schools. Although the district court had denied a motion made by plaintiffs after it disapproved the Board's first plan (A. 69-71) by which plaintiffs sought to require the purchase of buses, because of the court's expressed hope and confidence that the Board would act in whatever manner necessary to comply with its constitutional obligations (A. 72-75) , the school board had not made any arrangements to increase its transporta tion capability during the summer. The district court was left with no alternative but to approve the Board's second plan on an interim basis for the 1970-71 school year, while recognizing its constitutional infirmities. 317 F. Supp. 555. The school board was instructed to report by November 15, 1970 what steps would be necessary to convert to a unitary school system and by what date such a system could be implemented, but, on November 15, it merely notified the court that it was preparing plans which it hoped'to file in early January, 1971. Accordingly, the court again entered no specific orders requiring the purchase of transportation facilities, and the school board did nothing to acquire greater transportation capability. Because of this inaction and because appellate courts in the fall of 1971 had deferred pending school cases while awaiting the Supreme Court's decision in Swann v. Charlotte- -4- Mecklenburg Board of Educ.. 402 U.S. 1 (1971), the district court denied plaintiffs' motion (A. 110-12) to have their plan put into effect for the second semester of the 1970-71 school year. 324 F. Supp. 456. In the meantime, however, the school board did seek to vacate an injunction against new construction which had been issued by the district court pending approval of a constitutional plan for the Richmond public schools. Substantial time and energy was expended on this collateral issue, resolved in plaintiffs' favor by the district court, which found that the school authorities had not, despite the explicit language of the injunction ordered and the court's oral opinion from the bench, reconsidered its site locations in light of their effect on desegregation. 324 F. Supp. 461. When the school board finally did propose a new plan in 1971, it submitted three plans: one the same as its rejected first 1970 plan; another the same as its second 1970 plan which had been approved for interim use but specifically held unconstitutional; and a third, a variation on the plan proposed by plaintiffs' expert the previous year. After plaintiffs had responded to each of these and a full day's hearing was held, the district court entered an order on April 5, 1971 requiring that the third plan be implemented effective September, 1971. -5- ARGUMENT Introduction We argue below that the award of counsel fees by the district court was a necessary and proper part of the remedy in §1983 school desegregation suits; that alternatively the court acted within its equitable discretion in making the award; and finally, that appel— lar*ts have demonstrated no abuse of discretion which would require this Court to disturb the ruling below. I The District Court Properly Awarded Counsel Fees To Effectuate The Purpose Of The Civil Rights Acts. The district court awarded counsel fees in this school desegregation action because "the character of school desegregation litigation has become such that full and appropriate relief must include the award of expenses of litigation. This is an alternative ground for today's ruling." Bradley v. School Bd. of Richmond. 53 F.R.D. 28, 41 (E.D. Va. 1971). The defendants do not address themselves to this ground of the district court's holding except to characterize it as a "basic conceptual change" which has never been articulated by this Court and which, they suggest, is implicitly in conflict with earlier decisions of this Circuit. We show below that there is no conflict between this Court and the district - 6 - court, and that the lower court's holding is a fully justified and necessary interpretation of 42 U.S.C. §1983 in school desegregation suits. 2/That statute, like its companion sections 1981 and 3/ 1982, are part of the Civil Rights Acts passed in the decade following the Civil War to guarantee equal treat-1/ment to the freedman. This Court has emphasized, in an action arising (as does this one) under the statute that §1983 authorizes federal courts in civil rights cases to grant broad relief "in equity, or other proper proceeding" and is designed to provide a comprehensive remedy for the deprivation of constitutional rights. Smith v. Hampton Training School for Nurses, 360 F.2d 577, 581 (4th Cir. 1966). In that case, not only were dis charged black nurses ordered reinstated with back pay, but the case was remanded to the district court "to fashion any other appropriate relief in light of this opin ion." Id. at 582. The court below has acted in accord with this Circuit construction of §1983 by awarding counsel fees to the plaintiffs in a school desegregation case. jj/ E.g., Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970); £f. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n. 78 (1968). 2/ Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) 4/ Basista v. Weir, 340 F.2d 74, 86 (3d Cir. 1965) While the statute does not explicitly provide for such an award, neither does it prohibit it nor establish 5/ an intricate remedial scheme from which a Congressional intent to exclude such an award may fairly be implied. Compare Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967) with Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970). Awarding counsel fees in school desegregation cases brought under §1983 will effectuate federal policy. The plaintiffs in such actions are but nominal petitioners 6/ on behalf of all students. They cannot and should not be expected to finance such proceedings from their own The provisions of the 1964 Civil Rights Act regarding school desegregation clearly do not provide an alter native remedy. 42 U.S.C. §2000c-6 permits suits by the Attorney General of the United States against local school districts maintaining segregated schools, upon complaint to him, but no new cause of action or even administrative remedy is made available to private parties, as is true of the Public Accommodations Act (Title II, 42 U.S.C. §2000a-3) or the 1968 Fair Housing Act (Title VIII, 42 U.S.C. §3612). In fact, the 1964 Civil Rights Act specifically pre serves the existing remedy, 42 U.S.C. §2000c-8, indica ting a Congressional intention that its policies be implemented through privately initiated litigation as well as suits by the United States. (Even if a new enforcement mechanism had been established, no repeal of §1983 could have been implied. See Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968); Sanders v. Dobbs Houses, Inc,, 431 F.2d 1097 (5th Cir. 1970)). 6/ The plaintiffs in desegregation suits are truly "private attorney[s] general," Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n. 4, who perform valuable public services. See Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 429-30 (8th Cir. 1970); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971); Clark v. American Marine Corp., 304 F. Supp. 603, 611 (E.D. La. 1969); Dobbins - 8 - resources. The investigation, research and presentation of expert and fact witnesses require the expenditure of tremendous amounts of time by capable counsel, aside from the actual trial hearings. To undertake to pay the reasonable value of such services is only within the financial ability of the rich. School boards, on the other hand, have at their command in their defense able and experienced lawyers compensated from public funds, as well as their own staffs— the very persons enjoined by law to render and perform the duties sought to be enforced in such litigation. Just as courts have looked to more recently enacted statutes in determining the remedial scope of 42 U.S.C. §1982, Lee v. Southern Home Sites Corp., 444 F.2d 143, 146 (5th Cir. 1971), so too does the Civil Rights Act of 1964 support the declaration of a vigorous enforcement policy under §1983. The basis for the enactment of the provisions regarding school desegregation in the Civil Rights Act of 1964 was Congressional dissatisfaction with the slow pace of implementing the Constitutional principles of Brown v. Board of Educ., 347 U.S. 483 (1954); 349 U.S. 294 6/ cont'd v. Local 212, IBEW, 292 F. Supp. 413 (S.D. Ohio 1968); Hammond v. Housing Auth. & Urban Renewal Agency, 328 F. Supp. 586 (D. Ore. 1971) ; cf_. Mills v. Electric Auto- Lite Co., 396 U.S. 375, 396 (1970). -9- (1955). See, e.g., H.R. Rep. 914, 88th Cong., 2d Sess., 2 U.S. Cong. Code & Adm. News 2394. As noted above (n. 5), Congress specifically recognized that privately initiated litigation (brought under §1983), as well as suits initiated by the United States, would serve to vindicate its policy. 42 U.S.C. §2000c-8. In these circumstances it is entirely appropriate that the federal courts award counsel fees 7/ in §1983 school desegregation lawsuits to "encourage individuals injured by racial discrimination to seek judicial relief . . . " Newman v. Piggie Park Enterprises, . . . As pointed out in Goodhart, Costs, 38 Yale L.J. 849, 872-77 (1929), the American practice of generally not inclu ding counsel fees in costs was deliberate departure from the English practice, stemming initially from the colonies' dis trust of lawyers and continued because of a belief that the English system favored the wealthy and unduly penalized the losing party. Conte v. Glota Mercante del Estado, 277 F.2d 664, 672 (2d Cir. 1960) ; see also, Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964). The general practice ought not to apply where litigation is brought to implement important federal public policy. E.g., Vaughan v. Atkinson, 369 U.S. 527 (1962); Rolax v. Atlantic Coast Line R. Co.. 186 F.2d 473, 481 (4th Cir. 1951); Brotherhood of R. Signalmen v. Southern Ry, Co., 380 F.2d 59, 68 (4th Cir.), cert. denied, 389 U.S. 958 (1967); In re Carico, 308 F. Supp. 815 (E.D. Va. 1970); United States v. Blackwell, 238 F. Supp. 342 (W.D. S.C. 1965); but cf. Fleischmann Distilling Co. v. Maier Brewing Co., 386 U.S. 714 (1967). - 1 0 - 8/ Inc.. 390 U.S. 400, 402 (1968). Such a policy is consistent with the general approach of federal courts in construing federal statutes. "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); 11 v. Hood, 327 U.S. 678 (1946) ; cf. Textile Workers Union v. Lincoln Mills. 353 U.S. 448 (1957); accord. Lakewood Homes, Inc, v. Board of Adjustment, 23 Ohio Misc. 211, 258 N.E.2d 470, 502-04 (ct. Common Pleas 1970). Other courts have held counsel fees appropriate under this rationale. E.g., Newbern v. Lake Lorelei. Inc., Civ. No. 6871 (S.D. Ohio, March 12 and April 22, 1969), see 308 F. Supp. 407 (S.D. Ohio 1968) (§§1981, 1982); Lee v. Southern Home Sites Corp.. 444 F.2d 143, 147-48 87— The fact that Congress did not add a counsel fee award provision, as in Title II, 42 U.S.C. §2000a-3(b), is not dispositive since in the 1964 Civil Rights Act, Congress did not create a new enforcement scheme fen private litigants but rather specifically approved of the old. 42 U.S.C. §2000c-8. Compare Fleischmann Distilling Co. v. Maier Brewing Co,. 386 U.S. 714 (1967). Language to the contrary in Williams v. Kim brough, 415 F.2d 874, 875 n. 1, cert, denied. 396 U.S. 1061 (1970) and Kemp v. Beasley, 352 F.2d 14, 23 (8th Cir. 1965) rests upon the sort of strict Fleischmann- like analysis of statutes which the Supreme Court disavowed in Mills v. Electric Auto-Lite Co.. 396 U.S. 375 (1970). - 1 1 - 1/(5th Cir. 1971) (§1982); Lyle v. Teresi, 327 F. Supp. 683, 686 (D. Minn. 1971) (§1983); Hammond v. Housing Auth. & Urban Renewal Agency. 328 F. Supp. 586 (D. Ore. 1971) (by implication) (§1983); James v. Beaufort County Bd, of Educ.. Civ. No. 680 (E.D. N.C., Nov. 15, 1971) (§§1981, 1983). Affirmance of the ruling below would not be incon sistent with this Court's own decisions. There is dicta in an earlier opinion in this case, Bradley v. School Bd. of Richmond, 345 F.2d 310, 321 (4th Cir. 1965) that an award of attorneys' fees in a school desegregation case should be made only "when it is found that the bringing of the action should have been unnecessary and was compelled by the school board's unreasonable, obdurate obstinacy" 10/ but there the issue was the adequacy of an award, not 0/ Unreported actions involving discrimination in the sale or leasing of property in which attorneys' fees have been awarded include: Turner v. Lazarus, d/b/a Johnson & Lazarus, Realtors, No. 50366 (N.D. Cal., Nov. 22 and Dec. 3, 1968); Vaughn v. Ting Su. No. 49643 (N.D. Cal., July 19 and Dec. 3, 1968); Lightfoot v. Odum, No. 11,647 (N.D. Ga., June 29, 1970); Brown v. Earth, Inc., 2 Race Rel. L. Sur. Ill (M.D. Tenn. 1970); Phillips v. Pinehurst Realty Co., 2 Race Rel. L. Sur. 33 (M.D. Tenn. 1970); Pina v. Homsi, Civ. No. 69-666-G (N.D. Mass., July 10, 1969); Terry v. Elmwood Cemetery, Civ. No. 69-490 (N.D. Ala., Jan. 29, 1970), see 307 F. Supp. 369 (N.D. Ala. 1969); People v. Doughtie, Civ. No. 1150-S (M.D. Ala., Nov. 18, 1971). 10/ The Richmond School Board does not challenge on this appeal the amounts awarded by the district court. (See A. 146-51); Brotherhood of R. Signalmen v. Southern Ry. Co., 380 F.2d 59, 69 (4th Cir.), cert, denied, 389 U.S. 958 (1967). - 12- I whether any award at all should have been made: We can find no abuse of the District Court's discretion in refusing to allow attorneys' fees in a larger amount than it did. Id. at 322. This Court has not had occasion to consider whether, apart from traditional discretionary equitable principles, e.g,, Gibbs v. Blackwelder, 346 F.2d 943 (4th Cir. 1965), fees should normally be awarded in school 11/desegregation cases brought pursuant to 42 U.S.C. §1983. Nor will an affirmance here mean, as appellants suggest, that "all school boards within this Circuit would of necessity be obligated to pay attorneys' fees to counsel for Plaintiffs in all desegregation cases irrespective of their particular conduct." The Supreme Court has enunciated the rule applicable where counsel fees are to be awarded in furtherance of statutory policy: . . . one who succeeds in obtaining an injunction . . . should ordinarily recover an attorney's fee unless special circum stances would render such an award unjust. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968). llAn Felder v. Harnett County Bd. of Educ. , 409 F.2d 1070 (4th Cir. 1969), this Court declined to award attorneys' fees on an appeal pursuant to F.R.A.P. 38, a rule of general application in non-civil rights as well as desegregation cases, which requires a finding that the appeal is frivolous. The same result was reached in Walker v. County School Bd, of Brunswick County, 413 F.2d 53 (4th Cir. 1969), cert, denied, 396 U.S. 1061 (1970). However, in Nesbit v. Statesville City Bd. of Educ., 418 F.2d 1040, 1043 (4th Cir. 1969), this Court directed that plaintiffs-appellees in the Halifax and Amherst County cases recover "their costs and reasonable counsel fees, including reasonable out- of-pocket expenses, to be determined by the district judge." -13- Thus, it might be that plaintiffs might not be entitled to counsel fees had they obtained an injunction in January, 1970 requiring a school district which had already achieved desegregation of all its schools' stu dent bodies, to complete an already substantial faculty desegregation program by reassigning faculty for the second semester in accordance with the system-wide ratio, as announced by this Court in December, 1969, Nesbit v. Statesville City Bd. of Educ., 418 F.2d 1040 (4th Cir. 1969). That is not this case (see II infra). Such a rule would substantially further suits by "private attorneyfs] general," Newman v. Piggie Park Enterprises, Inc., id. at 402 n. 4. It will encourage speedy resolution of school desegregation cases in which school boards now gain premiums by delay, see Swann, 402 U.S. at 13-14, and it should help reduce the burden of school litigation in the federal courts in the future. The judgment below should be affirmed on the district court's opinion. II The District Court's Award of Fees Is Within Its Equitable Discretion Apart from the necessity of counsel fee awards in actions brought pursuant to 42 U.S.C. §1983 to protect the constitutional rights of black students, the judgment below is a proper exercise of the "historic equity juris- -14- diction of the federal courts," Sprague v. Ticonic Nat11 Bank, 307 U.S. 161, 164 (1939); see also. Guardian Trust Co. v. Kansas City Southern Ry. Co., 28 F.2d 233, 243-44 (8th Cir. 1928). Such awards are discretionary, and the basis for appellate review is a narrow one. "Questions of cost in admiralty and equity are discretionary, and the action of the Court is presumptively correct. United States v. [Brig Malik) Adhel. 2 How. [(43 U.S.)] 210 [,237], 11 L.Ed. 237, 250." Newton v. Consolidated Gas Co.. 265 U.S. 78, 83 (1924). See also, Carlisle, Brown & Carlisle v. , . 12/Carolina Scenic Stages. 242 F.2d 259, 260 (4th Cir. 1957). It is significant that in the only instance in which this Court has overturned a district court's dis cretion as to such a matter, it directed that counsel fees be awarded where they had been denied by the lower court. Bell v. School Bd. of Powhatan County, 321 F.2d 494 (4th Cir. 1963). in several cases this Court has set H 7 Even m Sprague, the Supreme Court implied that, had the lower courts recognized their power to award fees and costs but denied them in light of the particular circumstances, the action would not have been an appropriate one for review by the high court. 307 U.S. at 164, 170. -15- 13/ aside awards of fees or costs on other grounds, and it has also routinely affirmed lower court discretionary 11/denials of fee awards, but it has generally declined to substitute its own judgment for that of the trial court. 11/Nor should it here. 13/in Specialty Equipment & Machinery Corp. v. Zell Motor Car Co., 193 F.2d 515 (4th Cir. 1952), this Court antic ipated the Supreme Court1s reasoning in Fleischmann Distilling Co. v. Maier Brewing Co., supra, in reversing the award of non-statutorily-taxable costs in a patent case. In Sperry Rand Corp. v. A-T-0 Corp., 447 F.2d 1387 (4th Cir. 1970), this Court reversed a counsel fee award in a trade secrets action, holding that the Court's power to award fees was governed not by federal law but by state law, which did not allow it. 14/E.g., Local No. 149, Int'l Union v. American Brake Shoe Co., 298 F.2d 212 (4th Cir. 1962); Carlisle, Brown & Carlisle v. Carolina Scenic Stages, 242 F.2d 259 (4th Cir. 1957); cf. Bradley v. School Bd. of Richmond, 345 F.2d 310 (4th Cir. 1965) (discretionary award of fees affirmed but not raised in amount on appeal). 15/While the amount of the award here is larger than has been taxed in some school desegregation cases, it is not attacked by appellants; furthermore, in this action involving "a long and complex set of hearings," Bradley v. School Bd. of Richmond, 53 F.R.D. 28, 40 (E.D. Va. 1971), the award is consistent with the standards approved by this Court: In determining reasonable attorneys' fees, factors to be taken into account are the importance and complexity of the issue being litigated, the quality of the legal services, and the time required for prepara tion and court appearances. The standards applied in compensating attorneys for the opposing party in litigating the self-same issue give some indication of the importance of the case and are a relevant consideration in fixing the fee. Brotherhood of R. Signalmen v. Southern Ry. Co., 380 F.2d 59, 69 (4th Cir.), cert, denied, 389 U.S. 958 (1967). (See A. 146-51, 155). -16- In general, an equity court will exercise its dis cretion to award counsel fees "for dominating reasons of justice," Sprague v. Ticonic Nat'l Bank, supra, 307 U.S. at 167. Civil rights cases in this and other Circuits indicate that such litigation, brought to enforce rights of individuals against the governmental bodies legally obligated to protect those rights, will ordinarily call for such an award, in the discretion of the lower court, to do justice— but that appellate courts will interfere with the district court's discretion only in the most extreme circumstances. In Rolax v. Atlantic Coast Line R. Co.. 186 F.2d 473, 481 (4th Cir. 1951), a pre-Title VII employment discrimi- 16/ nation suit, the lower court found for the plaintiffs and awarded them counsel fees. This Court upheld the action as consistent with the Sprague principles: . . .Ordinarily, of course, attorneys' fees, except as fixed by statute, should not be taxed as part of the costs recovered by the prevailing party, but in a suit in equity where the taxation of such costs is essential to the doing of justice, they may be allowed in exceptional cases. The justification here is that plaintiffs of small means have been subjected to discriminatory and oppres sive conduct by a powerful labor organization which was required, as bargaining agent, to protect their interests. The vindication of their rights necessarily involves greater expense in the employment of counsel to insti- 16/Compare Lea v. Cone~Mills Corp., 438 F.2d 86 (4th Cir. 1971); Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971). -17- tute and carry on important litigation than the amount involved to the individual plaintiffs would justify their paying. In such situation, we think that the allow- ance of counsel fees in a reasonable amount as a_ part of the recoverable costs of the case is a matter resting in the sound discretion of the trial judge . . . . (em phasis supplied) Rolax gave this Circuit's imprimatur to counsel fee awards by district court in cases of great public im portance involving discrimination; in Bell v. School Bd. of Powhatan County, supra, 321 F.2d at 500, this Court announced that in such cases, where the circumstances were extreme, it would itself direct lower courts to exercise their discretion to award fees. Even in the dicta from Bradley v. School Bd. of Richmond, 345 F.2d 310, 321 (4th Cir. 1965) so heavily relied upon by appellants, this Court indicated it would act to disturb a lower court's action only in compelling instances: It is only in the extraordinary case that such an award of attorneys' fees is requi site. In school cases throughout the country, plaintiffs have been obtaining very substantial relief, but the only case in which an appellate court has directed an award of attorneys' fees is the Bell case in this Circuit. Such an award is not commanded by the fact that substantial relief is obtained. Attorneys' fees are appropriate only when it is found that the bringing of the action should have been unnecessary and was compelled by the school board's unreasonable, obdurate obstinacy. Whether or not the board's prior conduct was so unreasonable in that sense was -18- initially for the District Judge to deter mine. Undoubtedly he has large discretion in that area, which an appellate court ought to overturn only in the face of ̂ • • 1 1 7 / 1 ft /compelling circumstances. ±JJ> ±3/ No compelling circumstances are present here. Rather, the history of this case would justify direction 19/of an award by this Court had none been made below. — ' We do not wish to duplicate the district court's compre hensive opinion in this matter, 53 F.R.D. 28 (E.D. Va. 1971), but in light of the representations of appellants' brief, 17/1t is significant to recall that in Bradley this Court merely declined to increase the amount of attorneys' fees awarded by the district court. It did not over turn the award which was made by the lower court even though it found some of the School Board's conduct at that time was "commendable and exemplary," see Brief for Appellants herein, p. 30 n.10. 18/Since 1965, the award of counsel fees in school desegregation cases has become much more common; the Bell case no longer stands alone. E.g., Clark v. Board of Educ. of Little Rock, 449 F.2d 493, 499 (8th Cir. 1971). 19/ln Powhatan County— a rural school system in which complete desegregation was relatively sir pie to achieve— it was of course unreasonably obstinate for the county school board to take no steps whatsoever toward desegregation for as long as it did after Brown. In Richmond, on the other hand— a large school system in which complete desegregation would require considerable planning and detail of execution— the school authorities could avoid any real desegregation without appearing so obstinate merely by tolerating token desegregation and failing to take meaningful steps toward eventual elimination of the dual system. -19- 2 0/ we highlight below some of the events of this case, indicating our differing viewpoints: 1966-70 On March 30, 1966, following remand from the Supreme Court of the United States on the issue of faculty desegre gation, Bradley v. School Bd. of City of Richmond, 382 U.S. 104 (1965), a consent decree was entered calling initially for freedom of choice in Richmond. The school board retained this method of student assignment until 1970 in spite of its lack of significant results (see S.A. "B"), and despite the Supreme Court's ruling in Green v. County School Bd. of New Kent County, 391 U.S. 430 (1968). In its opinion awarding counsel fees, the district court noted -i-2/Unlike appellants, who hypothesize four or five distinct occurrences upon which the district court is said to have "principally relied" (Brief, p. 19), the court below did not purport to do more than set forth a "few points relevant to the present motion. . ." it generally summarized the Board's conduct as follows: At each stage of the proceedings the School Board's position has been that, given the choice between desegregating the schools and committing a contempt of court, they would choose the first, but that in any event desegregation would only come about by court order. 53 F.R.D. at 30, 39. The lower court thus awarded fees in consideration of all the circumstances, Bell v. County School Bd. of Powhatan County, 321 F.2d at 500. In contrast, appellants' approach seems to be to suggest that each individual occurrence, considered alone, would not warrant an award of counsel fees because some other court had permitted some other school board to escape paying counsel fees after having done something analogous. - 2 0 - that " . . . since 1968 at the latest the School Board was clearly in default of its constitutional duty." 53 F.R.D. at 39. Appellants argue that their adherence to free choice could not support a counsel fee award for two reasons: First, the plan had been entered pursuant to a consent decree which plaintiffs had not sought to modify until 1970 (Brief, p. 20) and second, a 1969 decision of this Court establishes that counsel fees are not to be awarded for failure to eliminate free choice plans after Green. The Board's first argument was presented to, and rejected by, the district court (8/7/70 Tr. 18-19). Similar arguments have been rejected by this and other courts. Flemming v. South Carolina Elec. & Gas Co., 239 F.2d 277 (4th Cir. 1956); Hoiley v. City of Portsmouth, 150 F. Supp. 6, 7 (E.D. Va. 1957) ("Merely because the City was acting in compliance with the prior order of this Court affords no protection after the United States Supreme Court placed a contrary interpretation on the validity of the separate-but-equal doctrine. . . .") And contrary to the suggestion of appellants, counsel fees have been awarded where school boards sought to maintain freedom-of-choice plans after their invalidity was made clear by Green. E.g., Nesbit v. Statesville City Bd. of Educ., supra; Kelley v. Altheimer, 297 F. Supp. 753, 758- 59 (E.D. Ark. 1969). Furthermore, it is hard to understand - 21 - how the School Board could believe the plaintiffs would support free choice after Green since they had attacked its sufficiency in the 1965 appeal to this Court! Bradley v. School Bd. of Richmond, 345 F.2d 310 (4th Cir. 1965). What made the 1966 plan acceptable to plaintiffs at the time it was entered by consent decree was its affirmative provisions concerning both student and faculty desegregation (A. 4-8): . . . PROFESSIONAL PERSONNEL 3. In the recruitment and employment of teachers and other professional personnel, all applicants and other prospective employees will be informed that the City of Richmond operates a racially integrated school system and that the teachers and other pro fessional personnel are subject to assignment in the best interest of the school system and without regard to their race or color. PUPILS 2. The pattern of assignment of teachers and other professional staff among the various schools will not be such that schools are identifiable as intended for students of a particular race, color, or national origin; or such that teachers or other professional staff of a particular race are concentrated in those schools where al1 or the majority of the students are of that race. 4. If the steps taken by the School Board do not produce significant results during the 1966-67 school year, it is recognized that the freedom of choice plan will have to be modified with consideration given to other pro cedures such as boundary lines in certain areas. - 22- Thus, even before the Green decision, the Richmond School Board consented to the entry of a decree which obligated it to meaningfully desegregate its faculties and student bodies— and to replace freedom of choice if that method did not work. Both before and after Green, desegregation was minimal (see S.A. "A" and "B"). Yet the School Board made no move to adequately desegregate ( A. 46) . The school system had never made assign ment across racial lines a condition of faculty employment (A. 45). Of course, the fact that plaintiffs did not move for further relief or to modify the outstanding decree between May, 1968 and March, 1970 hardly relieved the School Board of the responsibility to comply with both the consent 22/, 23/ decree and supervening law. jl/Cf. Research Corp. v7 Pfister Associated Growers, Inc., 318 F. Supp. 1405, 1407 (N.D. 111. 1970) (awarding fees in patent action pursuant to 35 U.S.C. §285, permitting awards in "exceptional cases," where party did not observe consent decree but collaterally attacked it). 22/The School Board was aware that plaintiffs' attorney, who had been elected to the Richmond City Council in the interim (A. 158-59), had a potential conflict of interest which required his withdrawal (see A. 8) ; it was not until counsel experienced in these matters, with time to devote to this cause could be found, that plaintiffs were able to proceed in court to protect their interests. ■23/Nesbit v. Statesville City Bd. of Educ. , supra; Stanley v. barlingt'on County School Dist.. 424 F. 2d 195 (4th Cir. 1970); Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211, 1216 (5th Cir. 1969); United States v. Board of Educ. of Baldwin County, 423 F.2d 1013 1014 (5th Cir. 1970). -23- Finally, the appellants' construction and applica tion of Felder v. Harnett County Bd. of Educ., 409 F.2d 1070 (4th Cir. 1969) (Brief, p. 21) must also fail. Felder is distinguishable for two reasons: first, this Court was construing F.R.A.P. 38, authorizing the award of counsel fees and double costs in "frivolous" appeals, rather than prescribing the limits of a district court's equity jurisdiction; second, Felder would not be control ling where a school board had, as Richmond had, committed itself to give up free choice if it did not produce significant results. In any event, Felder should be con trasted with Nesbit, supra. As the district court here put it, the Richmond School Board's conduct must be measured against judicial standards in early 1970 (post-Nesbit), not early 1969 (post-Felder). The 1970 Plans After the Motion for Further Relief was filed, according to appellants the school board "voluntarily abandoned" free choice (Brief, p. 30). In fact, the Board said only that it had "been advised" that its free- choice plan would not comply with Green (see A. 9-11). Only when pressed by the court at a March 31, 1970 pre-trial conference did the Board's attorneys concede, "reluctantly" (53 F.R.D. at 30), that -24- it would be futile to litigate the validity of free choice. At the hearing on the first 1970 plan submitted by the school board, the Associate Superintendent testified that under free choice, most students attended schools located near their homes (A. 34-35), but in response to an inquiry from the court, the Board's attorneys would not concede that the failure of free choice had any relationship to discriminatory housing patterns. Cf. Brewer v. School Board of Norfolk, 397 F.2d 37 (4th Cir. 1968) (A. 47). The initial 1970 plan submitted by the Board followed Richmond residential patterns with negligible improvement over free choice and plaintiffs, therefore, had to formally prove segregated 24/ housing patterns in Richmond (53 F.R.D. at 30). The first plan proposed by the Board in 1970 was drafted at its request by the Department of Health, Educa tion and Welfare, another step which appellants declare showed their good faith (Brief at pp. 31-32). In fact, the School Board looked to HEW only in order to relieve itself of any responsibility ( see A. 45) for bringing about desegregation; it gave no instructions to HEW ( A. 43) , -25/The"-Board^s attorneys refused to agree to stipulations tendered by plaintiffs (see Appendix A to this brief) which would have obviated much of this proof. Compare 317 F. Supp. at 561-63. -25- it weakened the already ineffective MEW plan ( A. 43-45) which had been drawn without using the tools (A. 40-42) which the school authori ties themselves knew would be necessary to desegregate their system (A. 60-63), and the Board itself never even considered the use of such tools ( A. 46) . The district court very properly disapproved a plan which was so ineffectual (see A. 18-30) that it should never have been submitted ( A. 63-69; 53 F.R.D. at 31). While appellants now claim the plan is inadequate only by hindsight (Brief at page 32) and make much of this Court's Spring, 1970 decisions in Swann v. Charlotte- Mecklenburg Bd. of Educ.. 431 F.2d 138, and Brewer v. School Bd. of Norfolk. 434 F.2d 408 (Brief, pp. 22-24), the invalidity of the "HEW" plan was already clear under Brewer v. School Bd. of Norfolk. 397 F.2d 37 (4th Cir. 1968) and Green v. County School Bd. of New Kent County. 391 U.S. 430 (1968). See, e.g., Henry v. Clarksdale Municipal Separate School Dist.. 409 F.2d 682 (5th Cir.), cert- denied, 396 U.S. 940 (1969); Clark v. Board of Educ. of Little Rock. 426 F.2d 1035 (8th Cir. 1970), cert. denied. 402 U.S. 952 (1971). -26- The Board's discussion of its second 1970 plan (Brief, pp. 24-26) is illustrative of the manner in which appel lants have distorted the history of this case. The Brief states that "[i]n retrospect the District Court has characterized the Interim Plan as being glaringly inade quate in that it left substantial numbers of students in virtually all-white or all-black elementary schools," but it suggests that the plan must have been acceptable at the time it was submitted because this Court, in its 1970 Swann opinions, had not required the elimination of every all-black school. In fact, the second 1970 plan left 12 elementary schools more than 90% black and 7 ele mentary schools more than 90% white (A. 88) even though with the use of transportation, specifically endorsed by this Court in Swann (431 F.2d at 144-45), all could have been desegregated (a . 91) (see A. 83-85). The plan did not receive the support of the black school board members because of this inade quacy ( A. 89-90) . There is no inconsistency in the district court's action, as the appellants imply in these two sentences (Brief for Appellants, p. 24): The District Court found that the plan submitted by the School Board in July, 1970, was further evidence of its intransigency. However, this same plan was ordered for implementation on an interim basis for the 1970-71 school year. -27- The plan was ordered implemented for the 1970-71 school year only because the school district did not have sufficient transportation resources to implement, by September, 1970, the plaintiffs' plan (found fully 25/ constitutional by the district court). The lower court found the school system's stubborn refusal to take steps toward acquiring transportation capability, a refusal which directly resulted in the necessity of implementing a less than constitutional plan for 1970-71, to be the more remarkable in light of the school administrators' consensus that an adequate desegregation plan for Richmond would require busing (53 F.R.D. at 32). The confusion and uncertainty touted by appellants was nothing less than a vain hope that the federal courts would turn their backs upon black citizens, and halt the desegregation process. If integration of the schools was to become a reality, there could be no doubt that the Supreme Court would authorize the use of such a traditional educational tool as busing. In similar circumstances. -̂ -5/it was in this sense only that the district court considered the plan "reasonable" under Swann: for without additional transportation resources (which could not be purchased by September), implementation of plaintiffs' plan would have required, for example, "unreasonable" staggering of opening hours. The district court's opinion specifically held the Board's plan did not meet existing constitutional standards, 317 F. Supp. at 574-75. Compare the Board's Brief at p.32 Regardless of how the District Court viewed the conduct of the School Board in proposing this Interim Plan, the fact remains that the plan was approved for use in the 1970-71 school year on an interim basis because it fulfilled the test of reasonableness under Swann. -28- a Mississippi district court awarded attorneys' fees in a reapportionment suit against county officials who insisted upon waiting from Reynolds v. Sims, 377 U.S. 533 (1964) until Avery v. Midland, 390 U.S. 474 (1968) to end malapportionment in local representation. Dyer v. Love, 307 F. Supp. 974, 986-87 (N.D. Miss. 1969). -29- School Construction After the Motion for Further Relief was filed, discovery- revealed an ongoing construction program (S.A. "D"); because of the long-range effects of school construction upon desegregation, Swann, 402 U.S. at 20-21, plaintiffs sought reexamination of the program after a desegregation plan had been approved. (A. 31-33). The testimony showed that school sites in question were selected without regard to race or effect upon desegregation (A. 34, 37, 39-40) even though school authorities were aware that in fact the new schools were planned in areas of racial concentrations and would probably be one-race schools (A. 38-39). The district court enjoined all new construction pending a convincing demonstration by the school board that it would further integration rather than perpetuating segregation (A. 47-59). Following the hearings in the summer of 1970, after which the board's second 1970 plan was approved for implementation only for the 1970-71 school year and the board directed to prepare a fully constitutional plan, 30 counsel for plaintiffs were notified that the board wished to proceed with some nine school construction projects, and an oral motion to lift the injunction was made. The parties agreed to submit evidence by deposition. As the lower court has put it, The evidence disclosed that the School Board had not seriously reviewed the site and capacity decisions which it had made, according to earlier testimony, without consideration of their impact on efforts to desegregate. 53 F.R.D. at 32; see 324 F. Supp. 461. Plaintiffs expert witness, m fact, performed such a review and based upon his conclusion plaintiffs offered no objection to three sites. (see A. 95-96, 108-10). The district court formalized the agreement by lifting the injunction. But the implications of the Board's Brief are decidedly misleading. At pp. 7-8 they fail to mention that the construction permitted was that to which plain tiffs agreed and for which an explanation that desegre gation would not thereby be impeded was offered by plain- ^ ffs' expert witness. At p. 28 they state: "The fact remains that portions of the injunction were vacated." 31 But this had little to do with the conduct of the Board or school authorities; appellants' misleading descriptions of the entire adventure in their Brief are a notable example why deference is given lower court findings. The 1971 Plans The district court's order, approving the Board's second 1970 plan for that school year only, required the Board to propose the additional steps needed to completely desegregate the Richmond schools, and the earliest possible date for their implementation, by November 15, 1970 (A. 93-94; S.A. "E"). On that date, the Board's counsel advised the Court by letter that plans would not be ready until January, 1971 (A. 103-08). Accordingly, plaintiffs sought to have their plan implemented for the second semester of the 1970-71 school year (A. 110-12). The district court denied that motion on January 29, 1971. 324 F. Supp. 456. It noted that although the Board was aware that it would need buses for eventual complete desegregation, it had taken no steps to acquire them (The court recognized that it had not ordered the Board to do so). Thus second-semester 32 implementation of plaintiffs' plan was still fraught with the same difficulties as it had been in August, and the question came down to whether the court should order the Board to purchase buses for second-semester implementation of plaintiffs'plan. The district court ruled that it would not require this. It noted that since its August ruling, the Swann cases had been argued before the Supreme Court and the Courts of Appeals had postponed disposition of all pending appeals in school desegregation cases in anticipation of a Supreme Court ruling. Under these circumstances, the court declined to require purchase of buses (324 F. Supp. 456). However, with respect to this episode, the court noted in its opinion awarding fees (53 F.R.D. at 33): The fact remains, nonetheless, that the School Board had made effective and immediate further relief nearly impossible because it had not taken the specific step of seeking to acquire buses. This policy of inaction, until faced with a court order, is especially puzzling in view of represen tations later made by counsel for the School Board to the effect that at least fifty- six bus units would have to be bought, in the Board's view, in order to operate under nearly any possible plan during the 1971-72 , school year. — / pr / — ' Appellants make far too much of this comment (Brief, pp. 26-27). The district court did not award plaintiffs counsel fees because the Board failed to buy buses during 33 Thereafter, the Board filed a new plan in conformity with the August 17, 1970 order. It submitted three plans one, based upon contiguous geographic zoning only, was similar in operation and effect (no desegregation) to the 26/ (Cont'd) 1970. This example, and others like it, demonstrate the district court's basic point that the Board's consistent approach was an extremely reluctant one: it would do nothing unless specifically ordered. See n.20 supra. While some of the Board's reticence was arguably justi fiable (such as its failure to purchase buses in time for second-semester implementation of plaintiffs1 plan), much of it is not (such as its reliance upon the 1966 decree to support continued adherence to a totally in effective freedom-of-choice plan). But the Board liti gated arguable points and settled law with equal vigor. As the lower court said (53 F.R.D. at 39) (emphasis supplied): It is no argument to the contrary that political realities may compel school administrators to insist on integration by judicial decree and that this is the ordinary, usual means of achieving com pliance with constitutional desegregation standards. If such considerations lead parties to mount defenses without hope of success, the judicial process is none theless imposed upon and the plaintiffs are callously put to unreasonable and unnecessary expense. 34 Board's first 1970 plan. The Board was aware that it was unacceptable under settled legal principles. The second plan was similar to the one implemented in 1970-71, which the district court had already ruled would be insufficient for 1971-72. But the Board sought approval of this plan on the ground that it had appealed to this Court, the district court's August, 1970 order rejecting it for permanent use--despite the fact that the Board itself had then sought to delay disposition of that appeal, over plaintiffs' objection, until the Supreme Court announced its Swann decision ( A. 137). Thus, had the district court approved that plan on these grounds, the Board would have succeeded in post poning desegregation again as a result of its own delay and inaction. The third plan, now in effect in Richmond, utilized all the techniques recommended by plaintiffs' expert to completely desegregate the schools. The Board did not, however, support adoption of this plan and plaintiffs were required to respond to all the plans (A. 138-40). After a full hearing March 4, 1971 at which plaintiffs’ 35 counsel elicited testimony, the district court rejected the first two plans submitted by the Board and ordered the third into effect for the 1971-72 school — including the requirement that the Board acquire sufficient pupil transportation capability to effectuate the plan at that time (325 F. Supp. 828). Appellate Proceedings Appellants claim they have been very restrained in using appellate processes for delay (Brief, pp. 35-36). The argument seems to be that the Board could have been even more obstructive and delay-seeking than it was. We bring a few points to the Court's attention. First, the appellants state that "[wjhile justifiably appealing the District Court's decision to the effect that its Interim Plan was a nonunitary one, the School Board nevertheless declined to seek any stay . . . ." it did not have to do so, for the Richmond City Council and the City of Richmond (which had been added as defendants upon motion of plain tiffs to insure effective implementation of any plan) did so — carrying their request to the Supreme Court of the United States, where it was denied. (The district court explicitly did not award fees for this part of the litigation, 53 F.R.D. at 43 n.8). The School Board, which 36 now claims to have been so solicitous of plaintiffs' rights, did not oppose such a stay. Second, appellants point to their withdrawal, after Swann, of their appeal from the August, 1970 decree (Brief, p. 35). In fact, that appeal would have been moot in light of the district court's April 5, 1971 Order approving a new plan, Robinson v. Shelby County Bd. of Educ., 429 F.2d 11 (6th Cir. 1970), and no benign or malevolent pur pose can be read into the dismissal. Third, the modification of the lower court's April 5, 1971 Order sought by the Board would have had exactly the same effect as a stay; its motion was pending when Swann was decided. In any event, the district court's order had not required anything but orderly implementation of Plan III. Once again, the Board's conduct could only serve to delay. Joinder of Surrounding Counties Finally, we add a word about the Board's action in seeking to consolidate Richmond with suburban county school systems (Brief, pp. 36-37). Appellants venture that it is probable that no other urban school board has expended such effort to bring fulfillment to its belief as to the promises of Brown I and II. 37 Of course, a school system so dedicated to the constitutional rights of all its schoolchildren need not have waited for court orders to desegregate its schools. E.g., McDaniel v. Barresi, 402 U.S. 39 (1971); cf. North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43 (1971); and see Wanner v. County School Bd. of Arlington County, 357 F.2d 452 (4th Cir. 1966). The district's interest in consolidation is but a continuation of its course of attitude and conduct since the inception of this lawsuit. Having delayed and resisted integration as long as it could, the Board realized when the HEW plan was rejected that school integration in Richmond would be a reality. It then sought immediately to blunt what it considered to be the unfavorable impact of integration by bringing more white students into the system--all the while denying that plaintiffs' constitutional rights were or had been abridged (see A. 76-78). The Board's interest in consolidation is because of its fear of white flight and its dislike of an integrated but majority-black school system. See Brunson v. Board of 27/Trustees, 429 F. 2d 820 (4th Cir. 1970) (concurring opinion) .— The "delay" referred to in n. 16 of the appellants' Brief was due to the involvement of counsel for plaintiffs in another case. The trial was ultimately postponed from 39 From the outset of this case appellants have represented and protected their perceived social interests of Richmond's white population, not the constitutional rights of all its citizens. Thus as late as January, 1971, the Board still denied it had ever done any constitutional wrong (A. 124-28). A perusal of the Amended Complaint filed by the plaintiffs against the adjoining county school systems (A. 113-23) will reveal that plaintiffs 1 claims are far broader than the Board's. Plaintiffs have no objection to an integrated majority-black school system but are concerned with pal pable constitutional violations in the maintenance of the separate school systems around Richmond. The coincidence that both plaintiffs and the Board now support some form of merged school system in the Richmond area does not in any way imply that the Board's interest is the protection 27/ (Cont'd) the end of April, 1971 until the middle of August, 1971. Plaintiffs sought the additional time so that they might adequately present their case. The Board sought a quick trial in the hope that it could avoid implementing the desegregation plan for Richmond City at all. The case has not yet been decided by the lower court. 40 of the constitutional rights of black school children. CONCLUSION We invite this Court to carefully study the entire, voluminous record in this matter. Such a review will reveal no compelling circumstances for overturning the lower court’s counsel fee award in this case or for con eluding that the award was unjust. We respectfully pray that the lower court's decree be affirmed and plaintiffs awarded their costs and reasonable counsel fees on this appeal. Respectfully ̂ bmitted, JACK GREENBERG JAMES M. NAB^IT, III NORMAN J. CHACHKIN 10 Columbus Circle New York, New York 10019 LOUIS R. LUCAS 525 Commerce Title Building Memphis, Tennessee 38103 JAMES R. OLPHIN 214 East Clay Street Richmond, Virginia 23219 M. RALPH PAGE 420 North First Street Richmond, Virginia 23219 41 CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of January, 1972, two copies of the foregoing Brief for Appellees were served upon counsel for the appellants herein, by mailing a copy of same via United States mail, first class postage prepaid, to: George B. Little John H. O'Brion, Jr. James K. Cluverius Browder, Russell, Little and Morris 1510 Ross Building Richmond, Virginia 23219 and to: Conard B. Mattox City Attorney 402 City Hall Richmond, Virginia 23219 Following preparation of the deferred appendix, two copies of this Brief with altered citations to the Appendix and Supplemental Appendix, see n. 1 supra, were served upon counsel above the 23rd day^pf February, 1972. -42- Iff TulS UNITCl) B 'i 'A T ,lU 'R T lilC T COURT l1 Oi{ TilJi iSACTBRH DISTRICT OF V I I iCJINIA RICHMOND D I. VIRION CAROLYN BRADLEY and MICJALL UiiiVDLUY, infants, et ul. e tc ., C IV IL ACTION NO. 3353 STIPULATION ON COIINgKL HO. 1 I t Is hereby agreed by and between counsel for the parties herein, that the following facts are true: Restrictive covenants in the deeds for residentia l property including subdivision tracts continued to be recorded in the City of Richmond for a number of years a fte r they were struck down by the Supreme Court in Shelley v. Kraomer. 334 U.S. 1 (1943). Many of the deeds to residentia l property in the City of Richmond contain rac ia l re s tr ic tive covenants. Some of these covenants contain a reverter condition which requires a release from a trustee, and some of the restric tions w il l not expire u n til 1997. The extra expense of securing Q release ranges from $20. to $73- per deed. U n til 1967 , rea l estate sales in the Richmond dally newspapers were lis ted separately for whites and blacks. Black real estate brokers could not advertise any property for sale except in a column designated, "For Bale to Colored." Black real estate brokers were not permitted to advertise property in white neighborhoods for sale in the "For Sale to Colored" column even though the owner may have requested them to s e ll to colored. Black brokers are further lim ited in t; '' t-Ncy can offer for sale because U,.„ nave not been permitted to become members of the Richmond BoarJ of Realtors and thus to have access to multiple l is t in g services, e tc .. * _- / Attorney for Plaintiffs f\ PPfT/lL> (y Attorney tor Defendants U U . i l i , . .■ r.: . . . J > o l t - * . - 1C - * * C O i t . i . i U-?» V ’ ", A •! s' - ... hi.;... ...) CP O.1 /.I i -j I X A RTC;!i-:o:.D t>tv.tg ic :j ca .g l . b ■;/ cudfile LV. .1, jj-U .AT , ii i C;:u L;>, etc., et Jil. ve. TIU SCHOOL. LO.Y.'J) OP T.Vi CXTI OF RICilMOMD, V3 dUIMJA, c t a l . CIVIL ACTIOiJ XTO. 33f>3 STIPUT.Yi’T0*.T OF OOIFt.S: - h 'TO. 2 Xt ic hereby agreed by arid between conned lo r the pr.rti.eo herein, that the following facts are true: Uegro residences arc concentrated in particu lar eectlone of the City of Rich;.and ca a resu lt of both public r,,r private actions. City zoning ordinances d ifferentiate between Mae it ar/1 white residentia l areas. Zones for black areas generally permit denser occupancy, while most white areas are zones for restricted land usage. Urban renewal projects, supported by heavy federal financing and the active participation of local government, contributed substantially to the c ity 's ra c ia lly segregated housing patterns., line R ich u L i City School Roar.:, pursuant to Sts to-re nulled legal cegregat’. on and policy, practice, custom and usage located and expanded -drools in black residentia l areas and fixed the size of the sc1k >1» to accommodate these areas of rac ia l concentration. Predominantly black schools were the inevitable resu lt. Attorney for P la in t if fs Attorn / for Defendants