Bradley v. School Board of the City of Richmond Brief for Appellees

    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