Allgood v. Brewer and United States v. School Board of the City of Norfolk, Virginia Petition for a Writ of Certiorari

    Suprem e Court of the United S ta te s

No.

DAVID E. ALLGOOD, et at,

v.
Petitioners,

CARLOTTA MOZELLE BREWER, et al, 

and

UNITED STATES OF AMERICA, 

and

THE SCHOOL BOARD OF THE CITY 
OF NORFOLK, VIRGINIA, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

M. T. Bohannon, jr. 
HERBERT & BOHANNON 
Suite 402, Plaza One 
Norfolk, Virginia 23510

Attorneys for Petitioners



TABLE OF CONTENTS

Page

Opinions Below ......................................................................... 1

Jurisdiction .................   2

Questions Presented.....................................................................2

Constitutional Provisions Involved............................................. 2

Statement of Case .......................................................................2

Reasons for Granting the Writ ....................................................9

Appendix (Opinions of Court Below)..............................App. 1



TABLE OF CITATIONS

Cases PaSe

Brewer, et al. v. School Board o f  the City of Norfolk
397 F.2d 37, 41, 42 (4th Cir. 1 9 6 8 )......... .................... - • 3
302 F.Supp. 18, 27 (1969) ................. ......................... • ■ - • 4
308 F .S u p p .1274, 1303 (1 9 6 8 ) ......................................  3 ,4
444 F.2d 99 (4th Cir. 1971) .......................... .......................5

S wann v. Charlotte-Mecklenburg Board o f  Edu cation
402 U.S. 1 (1971) .....................   5 ,9 ,1 0

Statutes

28 U.S.C. §1254 (1 ) . ............................................. .. • • • ............ 2



Suprem e Court of the United S ta te s

No.

DAVID E. ALLGOOD, et al,
Petitioners,

v.

CARLOTTA MOZELLE BREWER, et al, 

and

UNITED STATES OF AMERICA, 

and

THE SCHOOL BOARD OF THE CITY 
OF NORFOLK, VIRGINIA, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

David E. Allgood, et al, defendant-intervenors in this case 
and petitioners herein, respectfully pray that a writ of certiorari 
issue to review the judgments and opinions of the United States 
Court of Appeals for the Fourth Circuit entered in this 
proceeding on March 7, 1972.

OPINIONS BELOW

The opinions of the Courts below directly preceding this 
petition are as follows:

1. The opinion of the Court of Appeals filed March 7, 
1972, not yet reported (Appendix hereto p. 1).

2. Memorandum opinion of the United States District 
Court for the Eastern District of Virginia, filed July 28, 1971,



not yet reported (App. 24).

A number of prior opinions of the Courts below are also 
relevant to this petition and they are referred to in the 
Statement of the Case.

JURISDICTION

The judgments of the Court of Appeals were entered on 
March 7, 1972, (App. 21 and 23). An order was issued by the 
Court qf Appeals on April 3, 1972, staying the mandates until 
April 18, 1972, in order to permit the defendant, the School 
Board of the City of Norfolk, Virginia, to apply for a writ of 
certiorari or a stay (App. 24). The School Board applied for a 
writ of certiorari on April 13, 1972, and its petition was 
pending as No. 71-1317. The School Board’s petition was 
denied on May 15, 1972. The jurisdiction of this Court is 
invoked under 28 U.S.C. § 1254 (1).

QUESTIONS PRESENTED

1. Does the Constitution require all the schools in the City 
of Norfolk to be racially balanced?

2. Does the Constitution require that Norfolk school 
children be assigned to schools many miles from their homes 
when there are schools within walking distance?

3. Does the Constitution permit the Norfolk public 
schools to operate under a neighborhood school system?

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the equal protection clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

STATEMENT OF THE CASE

The petitioners herein represent a class of white and Negro 
parents and their children who intervened in this Norfolk school

2



desegregation case in 1970 for the purpose of obtaining for 
Norfolk a neighborhood school system and opposing any 
racially-balancing system. The case, however, began in 1956 and 
there have been innumerable hearings in the District Court, 
many appeals to the Court of Appeals (Fourth Circuit) and a 
number of petitions for certiorari filed (and denied). The 
history of the case, from the viewpoint of the plaintiffs 
(NAACP) is found in the appendix to their brief in opposition 
to the Norfolk School Board’s petition for a writ of certiorari 
formerly pending in this case as No. 71-1317. The history 
appears somewhat differently to petitioners herein.

Until about four years ago, the courts and the parties wfere 
concerned with issues relating to speed of desegregation, 
freedom of choice, school boundaries, and teacher assignment. 
In 1968 the Court of Appeals (Fourth Circuit) at 397 F.2d 37, 
in reviewing school boundaries in the plan approved by the 
District Court, found some of them to be drawn along racial 
lines and therefore discriminatory. In remanding the case, the 
Court of Appeals, anticipating that the Norfolk School Board 
would redraw' the boundaries along neighborhood lines, stated 
(at pages 41-42) that in view of the largely segregated housing 
patterns in Norfolk, geographic zoning could not be employed 
if the segregated housing patterns were due to discrimination, 
public or private. The District Court was directed to determine 
whether or not these housing patterns were due to discrimina­
tion. The Norfolk School Board then presented a plan based 
upon the premise that the optimum per cent of Negro pupils in 
any one school was about 30 per cent and any significant 
deviation from this would result in harm to one race or the 
other unless the school was all one race. Geographic or 
nieghborhood zoning wras utilized but this was not the main 
thrust of the plan.

The District Court approved this plan (308 F.Supp. 1274 
(1968)) and disapproved the plan submitted on behalf of the 
plaintiffs by a Dr. Stolee, which would have racially balanced 
the entire school system, as the Court would not find such a

3



plan to be stable, reasonable, educationally sound or in the best 
interest of the children or required by law. This Stolee plan, so 
disapproved by the District Court, is substantially the same plan 
in effect in Norfolk today and which is the subject of this 
petition.

Coincident with the presentation of the School Board’s 
plan and the plaintiff’s plan by Dr. Stolee, extensive hearings 
were held on the issue of whether or not Norfolk’s housing 
patterns were due to discrimination. At 302 F.Supp. 18, 27 
(1969) (Hearing 5/19/69) the District Court found as a fact:

“We think it clear that the planning districts 
throughout Norfolk have primarily grown up as a result 
of de facto segregation, stated otherwise, the desire of 
the Negro to live among Negroes and the desire of the 
white to live among members of the white race.”

After additional evidence, the District Court reaffirmed 
this finding in approving the School Board’s plan and dis­
approving the Stolee plan of the plaintiff’s.

“That Norfolk is now completely free of dis­
criminatory practices in housing and schools is best 
evidenced by the rapidly changing housing patterns 
which, in turn, are leading to resegregated schools.” 308 
F.Supp. 1274, 1303 (1969).
Upon appeal, the Court of Appeals reversed and remanded, 

holding the Norfolk School Board’s plan unconstitutional 
because it did not give to all children the benefit of the 30 per 
cent Negro percentage and also because it did not provide for 
enough mixing of the races as over half the Negro children 
would attend all black schools. No other reasons were given and 
the District Court’s findings of no discrimination in housing 
patterns was not reviewed in remanding the case, the Court of 
Appeals held that the new plan could be based upon the 
“Stolee” plan or any other plan producing a unitary school 
system. It was at this point that the petitioners herein 
intervened in this case.

4



After another round of hearings, the District Court 
approved a plan putting about half of the children in schools 
that were racially balanced, but leaving some one-race schools in 
large areas inhabited by only one race. This plan required 
extensive cross-busing of children solely for racial purposes. All 
parties appealed this plan and the appeal was pending in the 
Court of Appeals when the decision in Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S.l (1971) was 
announced.

The Court of Appeals by per curiam opinion en banc 
disapproved the plan being appealed and remanded this case and 
others, including the Winston-Salem, Forsyth County case, to 
the District Courts with direction to the District Courts to 
approve a plan wrhich would, in effect, racially balance the 
systems (again suggesting the Stolee plan for Norfolk) or to find 
facts making impractical the adoption of such a plan. 444 F.2d 
99 (4th Cir., 1971).

Upon remand, the peititioners moved the District Court to 
approve a neighborhood school plan, based upon the court’s 
previous findings of a lack of discrimination in housing patterns.

The District Court, however, ordered the school board to 
submit a plan in accordance with the directives of the Court of 
Appeals. The school board understood this to mean a plan that 
racially balanced the entire system. The plan presented was 
designed to racially balance each school and it did so with the 
exception of two elementary schools, located in the pre­
dominately Negro area of Berkley. One, Campostella, had 70 
per cent Negro pupils; the other, Tucker, had all Negro pupils. 
The School Board made it quite clear that the plan was designed 
to meet court directives, and was not due to any decision to 
racially balance the schools as an educationally desirable 
approach. The District Court, after considering objections to 
the plan by all other parties, erased all doubts as to its view of 
the present law in its Order of July 19, 1971. This Order 
directed the School Board to amend its elementary school plan

o



so as to eliminate the “uniracial character” of Tucker. This was 
done and the amended elementary school plan was submitted 
July 27, 1971. The entire plan, as amended, though recognized 
by the Court as involving inconvenient, long, tedious and 
expensive busing, was approved by it, over the defendant- 
intervenors’ objection, in its Order of July 28, 1971.

The school opening times and bus schedules, supplement­
ing the approved plan, were introduced on August 24, 1971, by 
the defendant-intervenors as Exhibit No. 1. The schedules 
provide for four separate opening and closing times or shifts for 
the schools. The earliest schedule is from 7:45 a.m. to 2:00 
p.m. and the latest from 9:45 a.m. to 4:00 p.m. Generally, the 
high schools and junior high schools were on the earliest shifts 
and the elementary schools on the latest shifts.

On December 13, 1971, after this case had been appealed 
to the Fourth Circuit the transit company raised its school bus 
fares and increased the bus service. This enabled the Norfolk 
School Board to take a number of elementary schools off the 
late shift but the system is still operating on four shifts, two 
junior high schools and nine elementary schools still operating 
on the latest shift, from 9:45 a.m. to 4:00 p.m.

An examination of the plan (School Board Ex. Nos. 1-7 of 
July 15, 1971, and No. 1 of July 27, 1971), as it is presently 
being implemented, in the light of the evidence relating to the 
character of the various neighborhoods, the nature of traffic on 
the various through streets, and the distances involved, discloses 
that it necessarily imposes upon Norfolk school children and 
their parents (the defendant-intervenors) a number of hardships, 
completely unacceptable to many. A few of the more obvious 
problems follow:

(a) First through fourth graders living in Berkley within 
walking distance of the elementary schools, St. Helena, Gate- 
wood and Lincoln, are assigned to Larrymore Elementary 
School on the opposite side of the city. At present, these 
children board a bus in Berkley at around 9:00 a.m. for the

6



cross-town ride to Larrymore, which opens at 9:40 a.m. They 
will arrive just before school opens. It is about a nine-mile trip. 
This school closes at 4:00 p.m. and the buses return the 
children to the original pick-up points in Berkley, arriving a 
little before 5:00 p.m., after competing with Naval Base and 
Naval Shipyard traffic on the way. These children are involved 
in going to and from and attending school during all the 
daylight hours for much of the year. During the winter months 
it is dark when they are discharged from the buses. Many must 
walk home through high-erime areas.

(b) First through fourth graders living in Ocean View on 
the eastern edge of the city, are assigned to Diggs Park 
Elementary School in Berkley on the western edge of the city. 
At present, these children board a school bus in Ocean View 
around 7:45 a.m. The buses arrive at school just before school 
opens at 8:25 a.m., after competing with the peak morning rush 
hour traffic. School closes at 2:40 p.m. and these children are 
dropped off at the pick-up points about 3:30 p.m. The evening 
rides are during peak rush hours. Many children are discharged 
several blocks from their homes.

(c) Situations similar to the above exist throughout the 
city at the elementary level (1-6 grades). Many of the 
elementary children are involved with school all the daylight 
hours during all of the winter months.

(d) Junior high students, living in Willoughby, the north­
eastern comer of the city, are assigned to Jacox Junior High in 
the western part: of the city over eight miles away. They catch 
their bus around 7:00 a.m., arriving just before school opens at 
7:45 a.m. They face heavy Naval Base and Naval Shipyard 
traffic on the morning run. In the afternoon, they are dropped 
off at the pick-up points, a little after 2:30, to walk home.

(e) Junior high students living near Jacox are assigned to 
Azalea Junior High about eight miles away, and face the same 
situation as the children living in Willoughby ( (d) above).

7



(f) The late opening of two junior high schools and nine 
elementary schools (9:40 a.m.), necessitated by the extensive 
transportation requirements of the plan, means that many 
children with working parents are left home alone for an hour 
or two each morning (most people leave for work between 7:00 
a.m. and 9:30 a.m.). This is a dangerous situation for many 
children and many parents may be contributing to the 
delinquency of their children by leaving them alone.

(g) The great distances between home and school under 
the plan makes it impossible for many parents to arrange to get 
their children home when they become ill in school. These 
distances make it impossible for many parents to have much 
needed consultations with their children’s teachers. These 
distances also make it impossible for many children to arrive 
early or leave late for extra help or extracurricular activities so 
essential to the normal development of children.

(h) According to testimony of the bus company’s repre­
sentative, there was a sharp increase in vandalism last year on 
the school buses, without question the result of additional 
busing inaugurated last year. The substantial increase in busing 
this year indicates another sharp rise in vandalism. The youngest 
school children will be subjected to such conditions.

(i) The loss of afternoon playtime by many elementary 
school children is very detrimental to their well-being and 
progress in school. The retired superintendent of Norfolk 
Schools, J.J. Brewbaker, so testified at the hearing on August 
25, 1971.

(j) The Norfolk School Board is now required to provide 
the extensive transportation which is necessary under this plan. 
This means either additional taxes or a serious curtailment of 
school programs. If a neighborhood plan is inaugurated, most of 
the busing can be eliminated.

The reaction to racial balancing in Norfolk by the white

8



population has been dramatic. When busing was instituted on a 
somewhat limited scale during the 1970-71 school year the 
system lost over 2,000 white students at a time when the white 
population in the Tidewater area was increasing. This year, the 
first with racially-balanced schools, with a still rising white 
population in the area, over 4,000 white children were 
withdrawn from the Norfolk school system. The results are 
shown in the Comparison of Projected and Actual Membership 
and Racial Distribution 1971-72, compiled by the school board 
and filed Oct. 21, 1971.

The pattern in Norfolk is the same as that seen in other 
cities which have attempted racial balancing. There will be no 
white children in Norfolk public schools within the next 5 to 10 
years unless there is a significant change in the present school 
plan.

REASONS FOR GRANTING THE WRIT

In Norfolk all school activities have been completely 
integrated. Teachers have been racially balanced in each school 
and the administrative staff is integrated. The only substantial 
issue remaining is the school attendance plan.

This plan, on its face, appears to be but a little different 
from the plan approved by this Court in Swann. The underlying 
facts in this case, however, are completely different from the 
facts in Swann.

The Norfolk plan was presented by its architect, an 
assistant school superintendent, Dr. McLaurin, who testified on 
July 19, 1971 (Record Vol. XLVI, p. 40) that the basic 
objective of the plan, to which all other objectives were 
subordinated, was to racially balance each school at all levels. 
This use of racial ratios in the Norfolk plan was much more 
than the “starting point” approved by this Court in Swann, it 
was the controlling factor in the assignment of pupils. As such, 
it has been specifically disapproved in Swann.

9



Perhaps the most significant difference between this case 
and Swann is the fact that the findings in this case are exactly 
opposite the findings in Swann upon which the Court’s opinion 
therein rested.

In Swann the Court found that the racial make-up of the 
various neighborhoods was the result of state discrimination. In 
Norfolk the Court found that the racial make-up of its 
neighborhoods, many of which are one-race, and many of which 
have changed from one race to another or are in the process of 
doing so, are not the result of any discrimination, public or 
private.

Most of Norfolk’s children attend schools built before 
1954. Many of these schools served first one race and then the 
other as the make-up of the neighborhoods changed. Many 
schools are now in neighborhoods that are fully integrated. The 
Norfolk maps illustrating the various attendance plans show 
that most of the schools are well spaced and located in well 
defined neighborhoods. If Norfolk’s population had always 
been but of one race, there is little if anything that would have 
been done differently in designing and locating schools.

In spite of these facts, the Norfolk School Board was 
required to present a racially-balanced plan, one that requires 
extensive transportation of pupils, without regard to their age 
or to the inconvenience, hardships and hazards involved, and 
without consideration of the effect of such upon the educa­
tional processes. This is not required by the constitution. Such a 
plan, in imposing substantial hardship and expense, solely to 
achieve a racial balance, in the absence of discrimination, 
tramples upon the constitutional rights of the petitioners.

This Court has never decided whether the remedies, or 
tools of desegregation, approved in Swann, may be applied 
constitutionally where the separation of races in the various 
neighborhoods is de facto. It is critical that this Court decide 
this issue in this case now. Allowing the present plan to

10



continue even one more year may well make the loss of white 
pupils in the school system irreversible.

Respectfully submitted,

M. T. Bohannon, Jr. 
HERBERT & BOHANNON 
Suite 402, Plaza One 
Norfolk, Va. 23510

Attorneys for Petitioners



CERTIFICATE OF SERVICE

I, M. T. Bohannon, Jr., hereby certify that, on the 18th 
day of May, 1972, a copy of the foregoing Petition for a Writ of 
Certiorari was mailed to the following at their respective 
addresses, first class mail, postage prepaid, in accordance with 
Rule 33. I further certify that all parties required to be served 
have been served.

S. W. Tucker, Esquire 
Henry L. Marsh, III, Esquire 
James W. Benton, Jr., Esquire 
Hill, Tucker and Marsh 
214 East Clay Street 
Richmond, Virginia 23219

Jack Greenberg, Esquire 
James N. Nabrit, III, Esquire 
Norman Chachkin, Esquire 
10 Columbus Circle 
Suite 2030
New York, New York 10019

Victor J. Ashe, Esquire 
Plaza One
Norfolk, Virginia 23510

Solicitor General 
Department of Justice 
Washington, D.C. 20530

Toy D. Savage, Jr., Esquire 
Allan G. Donn, Esquire 
Virginia National Bank Building 
Norfolk, Virginia 23510

Leonard Davis, City Attorney 
City Hall
Norfolk, Virginia 23510

M. T. Bohannon, Jr.

12



A P P E N D I X



TABLE OF CONTENTS

App. Page

Opinion of the United States Court of Appeals for the Fourth 
Circuit .........- ..... ......... ...........................  .........................

Judgment, Entered March 7, 1972 (No, 71-1900) ......... -■ - .......  21

Judgment, Entered March 7, 1972 (No. 17-1901) ------------- ---  2d

Order, Entered April 3, 1972 .......— ....... ......  ................ 24

Memorandum Opinion, Entered July 28, 1971 ............... - ........... 24



OPINION OF THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

Decided March 7, 1972

Nos. 71-1900 and 71-1901

Russell, Circuit Judge

As a result of the decision of the Supreme Court in 
Swann1 and Davis,2 this Court vacated the judgments of the 
District Court in this and four other school desegregation 
cases and remanded the proceedings to the District Courts 
having jurisdiction over such cases, with instructions “to 
receive from the respective school boards new plans (of 
desegregation) which will (would) give effect to Swann and 
Davis,” employing in the development of such plans “the 
use of all techniques for desegregation, including pairing 
or grouping of schools, noncontiguous attendance zones, 
restructuring of grade levels, and the transportation of 
pupils.” Adams v. School District Number 5, Orangeburg 
Co., S. C. (4th Cir. 1971) 444 F.2d 99, 100, 101.

Upon remand, the school board in this case filed a revised 
plan of desegregation. Under the restructuring of the 
schools within the district proposed in such plan, including 
the pairing and clustering of a number of its schools, large 
numbers of students were to be assigned to schools beyond 
normal walking distance from their homes. Objections were 
entered to this plan by the plaintiffs-appellants, as well as 
by certain intervenors-cross-appellants ; and several hearings 
were had. A fter certain changes and modifications had been

1 Szvann v. Board of Education (1971) 402 U.S. 1 and 43, 91 S. Ct. 
1267 and 1284, 28 L. Ed. (2d) 554 and 586.

2 Davis v. School Comm'rs. of Mobile County (1971) 402 U.S. 33, 
91 S. Ct. 1289, 28 L. Ed. 2d 577.



App. 2

made, the District Court approved the plan of desegregation 
and from this approval the plaintiffs and intervenors have 
appealed.

The intervenors object that the plan seeks, contrary, as 
they assert, to the mandate of Swann, to balance racially 
the schools of the defendant district. It is permissible under 
Swann to use racial percentages as a “starting point” for a 
plan of desegregation. Of course, as Swann makes clear 
(402 U.S. 23-5), these percentages, at best, will be regarded 
as mere approximations, for, as the Court in Nonvalk Core 
v. Norwalk Board of Education (2d Cir. 1970) 423 F.2d 
121, at p. 122, said :

“The racial ingredients of schools cannot be pre­
scribed with such certainty of a correct optimum 
result as might be found in a gourmet cook book 
specifying the proper portions for a de luxe casserole.”

And this is all we construe the plan in this case to do. The 
intervenors, also, assert that the plan is unacceptable to a 
large segment of the patrons of the school system and is 
therefore unworkable. Such objection has been repeatedly 
disallowed.3 The last claim raised by the intervenors is that, 
as a result of the plan, pupils are being subjected to unrea­
sonable risks to their health and safety by the assignments 
without their neighborhood. This contention, too, is without 
merit. Even in the illustrations set forth by the intervenors 
in their brief, bus trips required of pupils under the plan 
generally fall within a range of thirty minutes each way. 
This is much less than the three-hour round trip condemned 
in W inston-Salem/Forsyth Bd. o f Ed. v. Scott, 404 U.S. 
1221, 1227, n. 1 (Chief Justice Burger) and found unrea-

3 See Watson v. Memphis (1963) 373 U.S. 526, 536-7, 83 S. Ct. 
1314, 10 L. Ed. 2d 529.



App. 3

sonable in M ims v. Duval County School Board (D.C. Fla. 
1971) 329 F. Supp. 123, 133. Nor is it substantially different 
from the extent of busing required in Swann (402 U.S. 
at p. 30).

A number of the plaintiffs’ objections to the plan, as 
raised in this appeal, are similarly inconsequential and may 
be dismissed. The allowance of the “rising seniors option,” 
which the plaintiffs argue increased the black proportion in 
Booker T. Washington High School, and which permits 
rising seniors, if they so desire, to complete their final year 
at the school they attended the previous years, will only 
be effective during the current school year. Its effect on the 
racial composition of Booker T. Washington High School 
during 1971-72 has not been substantial. Taking into con­
sideration the considerable changes already made in the 
assignment of pupils in this school system, we would not be 
disposed to interfere with this “senior option” plan in the 
midst of the current school year. Cf., The Supreme Court, 
1970, Term, 85 ITar. L. Rev. 3, 79, note 30. The school 
system is, also, moving expeditiously towards a proper racial 
balance in its teaching and administrative staffs. The plain­
tiffs do not seriously contend otherwise. Under these cir­
cumstances, we are inclined to agree with the conclusion of 
the District Court that judicial action in this connection does 
not appear presently required. Finally, the school district 
customarily files regularly with the Court reports of its 
progress in desegregation. The District Court found the 
reports as filed adequate and the plaintiffs have pointed to no 
specific areas in which these reports do not provide sufficient 
information to the Court. We shall not disturb the finding 
of the District Court in this regard.

The primary attack of the plaintiffs on the plan is directed 
at the failure to provide free bus transportation for those



App. 4

pupils of the District who live beyond normal walking dis­
tance from the school to which they are assigned. As pre­
viously observed, the plan contemplates the assignment of 
a substantial number of pupils to schools located beyond 
walking distance of their homes but provides no means of 
transportation for pupils so assigned. The plaintiffs assert 
that, under these circumstances, the maintenance by the 
School District of a busing program for pupils who are not 
within walking distance of their assigned school is a neces­
sary corollary to the assignment itself. They echo the com­
ment of another Court, faced with a similar problem, that, 
it is “ridiculous to assign students to schools which they can­
not reach.” Davis v. Board o f Education o f North Little 
Rock, Ark. (D.C. Ark. 1971) 328 F. Supp. 1197, 1203. 
While conceding that the School District has not heretofore 
operated a bus system or provided free busing,4 they would 
find no more merit in the argument that this justifies failure 
to provide transportation than in the argument in the eariier 
stages of this proceeding against a duty to assign pupils 
outside their neighborhood for purposes of eliminating the 
vestiges of desegregation. They say the two requirements— 
to assign and to provide transportation— go hand-in-hand— 
and one without the other is useless. They dismiss as un­
acceptable the suggestion that the pupils should avail them­
selves at their own expense of the facilities of the local 
private bus transportation system to reach their assigned 
school. They point out that, under the present rates, these 
pupils would be required to pay $45 per school year for 
transportation and, under a set of proposed rates which

4 The same situation prevailed in the school district whose plan of 
desegregation was reviewed in Davis v. Board of Education of North 
Little Rock, Ark., supra. Cf., however, Norwalk Core v. Norwalk 
Board of Education (D.C. Conn. 1969) 298 F. Supp. 213, at p. 224, 
aff. 423 F. 2d 121.



App. 5

will soon become effective, $63 per year. A substantial num­
ber of the students reassigned come from families for whom 
these expenditures could be an unreasonable, if not an in­
tolerable, burden. It was largely to safeguard the constitu­
tional rights of this group of students that the plan of 
desegregation was promulgated. The plaintiffs urge that if 
the Court, after providing for their reassignment, takes no 
steps to make available to them, without cost, busing to the 
schools to which they are assigned, the whole plan of de­
segregation becomes a futile gesture and will represent for 
the disadvantaged child, intended to be protected thereby in 
his constitutional rights, a cruel hoax. This argument per­
suades; it also accords with our understanding of Swann 
and Davis, both of which recognized and enforced “the dis­
trict court’s equity power to require transportation when­
ever and wherever necessary to disestablish a dual school 
system.”5

It is regrettable that the requirement that the School 
District furnish busing for these students assigned beyond 
walking distance from their homes imposes substantial ex­
pense0 upon the District which may force it to curtail some

5 United States v. Watson Chapel School District No. 24 (8th Cir 
1971) 446 F.2d 933,937.

6 This is not to indicate that the expense of busing may never be 
so unreasonably burdensome as to warrant denial of the relief. What 
we conclude is that the cost of busing in this case is not so unreason­
ably burdensome. This we think is evident both from the findings of 
the District Court and from the record. The District Court found the 
cost of installing and operating a transportation system by the school 
district to be $3,600,000. Of this sum, however, approximately 
$3,000,000 represented capital outlays, covering purchases of buses 
and the acquisition and equipping of service yards. These expenditures 
are normally funded and are not considered an operating expense. 
The annual operating expense of the bus system for the school district 
was fixed at about $600,000, of which 47 per cent would be reimburs­
able by the State. It would seem reasonable to assume that an annual 
operating budget of $600,000 by the district (supplemented as it would



App. 6

other worthwhile services, but, if reassignment is mandated 
constitutionally, it must be effective and meaningful and 
“more than a matter of words.”7 To repeat, the Court can­
not compel the student to attend a distant school and then 
fail to provide him with the means to reach that school.

The school district has indicated that if the District is 
required to operate a bus system for the transportation of 
its pupils, the loss of revenue thereby occasioned to the local 
private transportation system will render such system un­
profitable and lead to its discontinuance, with resulting in­
convenience to the entire community. The local transporta­
tion system, on the other hand, cannot be, as it were, sub­
sidized at the inconvenience of, and in denial of the consti­
tutional rights of, the students. It is possible, however, as 
we have already indicated, that the school district may find 
it both practical and economical to utilize the services of the
be with State aid) would cover the operating costs of the system and 
provide adequately for normal amortization of the capital expenditures 
required for the purchase of buses and for the acquisition of service 
facilities. Such an expenditure from a school budget of over 35 million 
dollars would be in line with what was considered reasonable in 
Swann, where an increased annual operating expense of $1,000,000, 
imposed on a total school budget of $66,000,000, was held reasonable. 
See 85 Har. L. Rev. 83, note 61. Of course, it might be less expensive 
for the district to make an arrangement with the local bus system. 
Legislation is now being proposed in the Virginia Legislature to pro­
vide State financial support for private bus firms that carry children to 
school. Richmond Times-Dispatch, Section B, p. 1, February 9, 1972. 
The use of the private bus system in this situation may be both a prac­
tical solution for the school’s problem and a means of financial relief 
for the private bus system itself. The relative merits of the two pos­
sibilities, i.e., the operation of its own bus system or the utilization of 
the services of the existing private bus service—are, however, for the 
initial consideration of the trustees of the school district and the 
District Court.

7 See Bradley v. School Board of City of Richmond, Virginia (4th 
Cir. 1965) 345 F.2d 310, 323 (concurring and dissenting opinions of 
Judges Sobelofif and Bell), remanded, 382 U.S. 103, 86 S. Ct. 224, 
15 L. Ed. 2d 187.



App. 7

local bus system in discharging its obligation to provide 
adequate transportation for pupils assigned to schools be­
yond walking distance from their homes.8 Whether this is 
a practical solution is a matter that may be considered by 
the District Court on remand. W hat is determined here is 
that the school district as a part of its plan of desegregation, 
must provide a practical method of affording free busing 
for students assigned to schools beyond normal walking 
distance of their homes; the mechanics of the method to be 
employed by the school district in' discharge of this duty 
are for the District Court.

Finally, the plaintiffs ask that an allowance of attorney’s 
fees be provided as a part of their taxable costs herein. In 
support, they cite Bradley v. School Board of Richmond, 
supra (345 F.2d p. 321). The federal rule, oft repeated, is 
that “attorney’s fees are not ordinarily recoverable in the ab­
sence of a statute or enforceable contract providing there­
for.” Fleischmann Corp v. Maier Brewing (1967) 386 U.S. 
714, 717, 87 S. Ct. 1404, 18 L. Ed. 2d 475; Leary v. United 
States (4th Cir. 1919) 257 Fed. 246, 250, aff. 253 U.S. 94, 
40 S. Ct. 446, 64 L. Ed. 798; McCraw  V. United Ass’n o f 
Journey. & App. of Plumbing, etc. (D.C. Tenn. 1963) 216 
F. Supp. 655, 664, aff. 341 F.2d 705.9 To this rule, courts

8 Actually, the requirement that the school district provide free 
transportation, if complied with through some arrangement with the 
local bus sysem, may be the only means of preserving such system. 
See Richmond Times-Dispatch, Section B, p. 1, February 9, 1971, 
cited in note 6.

9 In Fleischmann the Court observed that one of the reasons for 
the denial is that “the time, expense, and difficulties of proof inherent 
in litigating the question of what constitutes reasonable attorney’s fees 
would pose subsantial burdens for judicial administration.” 386 U.S. 
718. See, also, Lee National Corp. v. Kansas City Southern Industries, 
Inc. (D.C. N.Y. 1970) 50 FRD 412, 414, for a statement of other 
reasons; and Monolith Portland Midwest Co. v. Kaiser Aluminum & 
C. Corp. (9th Cir. 1969) 407 F.2d 288, 293-4.



App. 8

of equity, as Fleischmann adds, have established certain 
limited historic exceptions. These exceptions are confined 
to those unique and special cases involving- “compelling 
circumstances”10 and “ ‘overriding considerations of jus­
tice,’ ”ai where to deny allowance would result in “gross 
injustice.”12 The most frequent exception occurs where “a 
plaintiff has successfully maintained a suit, usually on be­
half of a class, that benefits a group of others in the same 
manner as himself”13 and is usually “one where through the 
complainant’s efforts a fund is recovered in which others 
share.”14 The rationale for this exception is that it is only 
fair that he who creates or conserves a common fund or 
property should be reimbursed for his reasonable expenses, 
including attorney’s fees, for protecting the common fund 
for others having a similar interest with him in that fund. 
Gibbs v. Blackwelder (4th Cir. 1965) 346 F.2d 943, 945; 
United States v. Jacobs (D.C. Md. 1960) 187 F. Supp. 630, 
634, aff. 298 F.2d 469.16 The doctrine extends not only to

10 Bradley v. School Board of Richmond, supra (345 F.2d p. 321).
11 Fleischmann Corp. v. Maier Brewing, supra, p. 718; Siegel v. 

William E. Bookhultz & Sons, Inc. (D.C. Ct. 1969) 419 F 2d 720 
722-3.

12 Monolith Portland Midwest Co. v. Kaiser Aluminum & C. Corp., 
supra,. a.t p. 294; see, also, Rolax v. Atlantic Coast Line R. Co. (4th 
Cir. 1951) 186F.2d473, 481.

13 Mills v. Electric Auto-Lite (1970 ) 396 U.S. 375, 392, 90 S Ct 
616, 24 L. Ed. 2d 593.

14Sprague v. Ticonic Bank (1939) 307 U.S. 161, 166 59 S Ct 
777, 83 L. Ed. 1184.

15 3 Barron & Holtzoff, Federal Practice & Procedure (Rev. Ed. 
1958) p. 67, states the rationale thus:

“The allowance of extraordinary costs ‘as between solicitor 
and client’ rests upon recognized equitable principles and may 
be made whenever the burden of litigation assumed by the pre­
vailing party substantially benefits others who should in equity 
contribute to the expense.”



App. 9

cases in which a fund is either created or protected but also 
“where the effect of the suit is the same as though a fund 
were created.” 6 Moore’s Federal Practice, p. 1351; Sprague 
v. Ticonic Bank, supra (307 U.S. pp. 165-7). The purpose 
of the award in such case, however, is not designed “as an 
additional recovery against the wrongdoers, but as a means 
of ordering compensation to counsel from the class bene­
fited.” Bangor & A . R. Co. v. Brotherhood of Foe. Fire & 
Eng. (D.C. Ct. 1971) 442 F.2d 812, 823. The other normal 
exception to the general rule is illustrated by those “excep­
tional cases” “where the behavior of a litigant has reflected 
a wilful and persistent ‘defiance of the law,’ ”16 or where 
“an unfounded action or defense is brought or maintained 
in bad faith, vexatiously, wantonly, or for oppressive rea­
sons.17 This exception is inapplicable, however, “where 
litigation was pursued on a matter as to which prior deci­
sions left a lingering doubt.”!18 W hether the conduct of the 
party in maintaining his action or defense was in bad faith 
without any basis in law or fact and represented “obdurate 
obstinacy” is ordinarily a matter committed to the discre­
tion of the District Judge, to be disturbed only “in the face 
of compelling circumstances.” Bradley v. School Board of 
City o f Richmond, Virginia, supra (345 F.2d p. 321);

16 Kahan v. Rosenstiel (3d Cir. 1970) 424 F.2d 161, 167, cert. den. 
398 U.S. 950.

17 6 Moore’s Federal Practice, supra, p. 1352; Newman v. Piggie 
Park Enterprises (1968) 390 U.S. 400, 402, note 4, 88 S. Ct. 964, 
19 L. Ed. 2d 1263; Undersea Eng. & Const. Co. v. International Tel. 
& Tel. Corp. (9th Cir. 1970) 429 F.2d 543, 545; Kinnear-Weed 
Corp. v. Humble Oil & Refining Co. (5th Cir. 1971) 441 F.2d 631, 
636-7; Note, 8 L. Ed. 2d 912.

18 Bangor & A. R. Co. v. Brotherhood of Loc. Fire. & Eng., supra, 
at p. 824; Local No. 149 I. U., U.A., A. & A .I.W . v. American Brake 
Shoe Co. (4th Cir. 1962 ) 298 F.2d 212, 216, cert. den. 369 U.S. 873, 
82 S. Ct. 1142, 8 L. Ed. 2d 276.



App. 10

Williams v. Kimbrough (5th Cir. 1969) 415 F.2d 874, 875, 
cert. den. 396 U.S. 1061; Cappel v. Adams (5th Cir. 1970) 
434 F.2d 1278, 1279-80; Sim lerv. Conner (10th Cir. 1965) 
352 F.2d 138, 140-1, cert. den. 383 U.S. 928; Lucerne In ­
vestment Company v. Estate Belvedere, Inc. (3d Cir. 1969) 
411 F.2d 1205, 1207.

This Court was the first Circuit to approve the grant of 
attorney’s fees in school desegregation cases. Bell v. School 
Board of Powhatan County, Virginia (4th Cir. 1963) 321 
F.2d 494, 500,19 and Bradley v. School Board o f City o f 
Richmond, Virginia, supra. In so doing, we laid down the 
rule that such award was warranted under the exception 
that permitted such allowance where an unfounded action 
is brought or maintained in bad fa ith ; specifically, we held 
that the right was limited to “the extraordinary case” and 
was “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,”20 
or persistent defiance of law.21 This doctrine, thus enun­
ciated by this Court, has been uniformly followed in the 
other Circuits where an award has been considered; and 
allowances have been made only where there has been a 
finding of “unreasonable, obdurate obstinacy” or persistent 
“defiance of law.” Accordingly, in Felder v. Harnett County 
Board of Education (4th Cir. 1969) 409 F.2d 1070, 1075; 
Kemp v. Beasley (8th Cir. 1965) 352 F.2d 14, 23; Williams 
v. Kimbrough (D.C. La. 1969) 295 F. Supp. 578, 587, aff. 
415 F.2d 874, cert. den. 396 U.S. 1061; Rogers v. Paul 
(D.C. Ark. 1964) 232 F. Supp. 833, 843, aff. 345 F.2d 117, 
remanded on other grounds, 382 U.S. 198; Stacy v. Wil-

19 Bell is favorably commented on in 77 Har. L. Rev. 1135 (1964).
20 345 F.2d at p. 321.
21 321 F.2d at p. 500.



App. 11

liams (D.C. Miss. 3-Judge Court, 1970) 50 FRD 52, 55, 
aff. 446 F.2d 1366; Haining v. Roberts (D.C. Miss. 3-Judge 
Court, 1970) 320 F. Supp. 1054, 1063; W right v. County 
School Board o f Greensville County, Va. (D.C. Va. 1966) 
252 F. Supp. 378, 385, remanded on other grounds 442 
F.2d 570; Brown  v. County School Board of Frederick 
County, Va. (D.C. Va. 1964) 234 F. Supp. 808, 811, re­
manded on other grounds, 346 F.2d 22; Betts v. County 
School Board of H alifax County, Virginia (D.C. Va. 1967) 
269 F. Supp. 593, 604, and Franklin v. County School Board 
of Giles County (D.C. Va. 1965) 242 F. Supp. 371, 377-8, 
rev. on other grounds, 360 F.2d 325, the Court, applying 
Bell and Bradley, found that the action of the school boards 
did not amount to “unreasonable, obdurate obstinacy” or 
persistent “defiance of law” and denied attorney’s fees.22

22 These cases were summarized in Haining v. Roberts, supra, at p. 
1063, thus:

“In the exercise of this equitable discretion (to allow at­
torney’s fees) in civil rights cases, courts have generally denied 
the extraordinary reief of awarding attorney’s fees absent a 
finding of ‘unreasonable, obdurate obstinacy’ on the part of the 
defendant.”

It has been suggested that in certain civil rights cases, counsel 
really act as “private attorneys general” and, though there is no statu­
tory provision for an award of counsel fees, such award is within the 
discretion of the Court. This was the basis of the decision in Lee v. 
Southern Home Sites Corp. (5th Cir. 1971) 444 F.2d 143, 147-8, 
where an award of counsel fees was authorized in a suit under Sec­
tion 1982, 42 U.S.C. The reason for such ruling was that the right 
asserted by the complainant, though involving public policy, “under 
present judicial development, depends entirely on private enforce­
ment.” (Italics added.) A similar conclusion was reached in Miller v. 
Amusement Enterprises, Inc. (5th Cir. 1970) 426 F.2d 534, 537-8, 
where, in justifying an award in a Title II action of counsel fees to 
“private Attorneys General,” the Court said that the “effectuation of 
this policy (of the Act) was primarily to be achieved through private 
suits by individuals. This flowed to a large extent from one of the 
great compromises in this and related legislation. The role of the 
Attorney General as the chief legal officer was markedly curtailed.



App. 12

On the other hand, again applying the rule enunciated in 
Bell and Bradley, the following decisions found either a 
“long continued pattern of evasion and obstruction” as 
found in Bell or “unreasonable, obdurate obstinacy” as 
found in Bradley, and, based on such finding, made an award 
of attorney’s fees: Nesbit v. Statesville City Board of Edu­
cation (4th Cir. 1969) 418 F.2d 1040, 1043; Brown  v. 
County School Board of Frederick County, Virginia (4th 
Cir. 1964) 327 F.2d 655 (remanded for consideration of al­
lowance of attorney’s fees in light of Bradley and Bell) ; 
Griffin v. Board o f Supervisors o f Prince Edward County 
(4th Cir. 1964) 339 F.2d 486, 493, reversed on other 
grounds, 377 U.S. 218, 84 S. Ct. 1226, 12 L. Ed 2d 256 
(where action was “taken to evade and defeat” the mandate 
of the Court) ; Clark v. Board of Education of Little Rock 
School District (8th Cir. 1966) 369 F.2d 661, 670-1 and

True, he may bring suit, but only under the limiting circumstances of 
a ‘pattern of practice’ of discrimination. And the right of intervention, 
which is ordinarily accorded under liberalized circumstances, is con­
fined to cases which the Attorney General certifies as being of ‘general 
public importance’—the same added factor which can trigger a three- 
judge court suit.” It is doubtful that the same reasoning would apply 
to school desegregation actions. To achieve school desegregation, the 
Attorney General, in any “meritorious” case, upon receipt of a written 
complaint, is authorized to sue on behalf of any person unable, in his 
opinion, “to bear the expense of the litigation.” Section 2000c-6(b), 
42 U.S.C. In addition, the Department of Health, Education and 
Welfare has a responsibility to see that every school receiving any 
federal assistance (and, for practical purposes, it may be assumed all 
do) is desegregated. Section 2000-d, 42 U.S.C. These several pro­
visions of the Civil Rights Act of 1964 mean, as one commentator has 
phrased it, that, “Every federal agency is instructed to act to imple­
ment this pronouncement” against school discrimination and HEW 
specifically is directed “to assume responsibility for seeing that every 
school in the United States was (is ) desegregated.” Note, The Courts, 
H E W , and Southern School Desegregation, 77 Yale L. j. 321, at p. 
322 (1967). But, cf., Bradlcv v. School Board of City of Richmond, 
Virginia (D.C. Va. 1971) 53 FRD 28, 41.



App. 13

449 F.2d 493, 499 (where the Court found in earlier case 
“obstinate, adamant, and open resistance to the law” on the 
part of the school board) ; Hill v. Franklin County Board of 
Education (6th Cir. 1968) 390 F.2d 583, 585; Monroe v. 
Board of Com., City of Jackson (D.C. Tenn. 1965 ) 244 F. 
Supp. 353, 365-6, rev. on other grounds, 380 F.2d 955, and 
391 U.S. 450, 88 S. Ct. 1700, 20 L. Ed. 2d 733; Rolfe v. 
County Board o f Education o f Lincoln Co., Tenn. (D.C. 
Tenn. 1966) 282 F. Supp. 192, 201, aff. 391 F.2d 77, 81; 
Cato v. Parham  (D.C. Ark. 1968) 293 F. Supp. 1375, 
1378, aff. 403 F.2d 12, further proceedings, 302 F. Supp. 
129, 136 and 316 F. Supp. 678, 685; Kelly v. Altheimer, 
Arkansas Public School Dist. Aro. 22 (D.C. Ark. 1969) 297 
F. Supp. 753, 758-9, rev. and remanded on other grounds 
378 F.2d 483; Pettaway v. County School Board of Surry 
County, Va. (D.C. Va. 1964) 230 F. Supp. 480, 487 (citing 
and following Bell), remanded on other grounds 339 F.2d 
486.23 It would seem clear, then, that the award of attorney’s 
fees in school desegregation cases is normally governed by 
the rules enunciated in Bell and Bradley and only if the facts 
in the case accord with the test enunciated in those cases is 
an award generally permissible.

The District Court in this case made a specific finding 
that there had been “a good faith effort at desegregation on 
the part of responsible school officials and local government” 
and, applying the rule stated in Bradley, denied relief. We 
find no “compelling circumstances” for disturbing this find­
ing of good faith. The mere fact that the school district’s 
plans, as developed in hearings before the District Court,

23 Cf., Dyer v. Love (D.C. Miss. 1969) 307 F. Supp. 974, 987, 
which relied on Bell and Bradley to support award of attorney’s fees 
in an apportionment case where the conduct of the defendants had been 
found to represent “unreasonable, obdurate obstinacy.”



App. 14

may have been invalidated by subsequent clarifying deci­
sions of the Supreme Court is insufficient to establish bad 
faith on the part of the school board. Cf., Local No. 149, 
I. U., U. A ., A . & A . I. W . v. American Brake Shoe Co., 
supra, at p. 216; Rogers v. Paul (8th Cir. 1965) 345 F.2d 
117, 125-6. This Court itself did not anticipate the subse­
quent rulings of the Supreme Court in this area of school 
desegregation on a number of occasions.24 We cannot fault 
the school board because it did not demonstrate greater 
powers of clairvoyance than either the District Court or 
this Court in anticipating the extrapolations of Brown by 
the Supreme Court. This conclusion disposes of the plain­
tiffs’ claim for the allowance of attorney’s fees based on any 
claim under Bradley.

There is, however, a unique feature of this case, involving 
at least a quasi-application of the “common fund” doctrine. 
It relates to the special relief granted by this decision and 
denied by the District Court. The plaintiffs have by this 
appeal secured for the students of this school system an 
additional right, a right of direct pecuniary benefit for all 
students assigned to schools without their neighborhood, a 
right not given them under the plan approved by the Dis­
trict Court. It is true the right is not represented by a “com­
mon fund” and has not resulted in a monetary recovery, 
against wdiich attorney’s fees may be charged but, so far as 
the students affected are concerned, “the effect * * * is the 
same as though a fund were created.” 6 Moore’s Federal 
Practice, supra: Sprague v. Ticonic Bank, supra. The stu­
dents have secured a right worth approximately $60 per 
year to each of them. This pecuniary benefit to the students

24 See Green v. County School Board (1968) 391 U.S. 430, 88 
S. Ct. 1689, 20 L. Ed. 2d 716, and Swann v. Board of Education 
(1971) 402 U.S. 1, and 43. 91 S. Ct. 1267 and 1284, 28 1.. Ed. (2d) 
554 and 586.



App. IS

involved would under normal circumstances, warrant the 
imposition of a charge against them for their proportionate 
share of a reasonable attorney’s fee incurred in securing 
such pecuniary benefit for them. It is not practical, how­
ever, to do this in this case and, too, to do so would defeat 
the basic purpose of the relief provided by the amendment 
in the decree, which was to secure for the student con­
cerned transportation without cost or deduction. The only 
feasible solution in this peculiar situation would seem to lie 
in requiring the school district itself to supplement its pro­
vision of free transportation with payment of an appro­
priate attorney’s fee to plaintiffs’ attorneys for securing the 
addition of such a provision to the plan of desegregation. 
There are thus “dominating reasons” under the “exceptional 
circumstances” of this case to award attorney’s fees for the 
services of plaintiffs’ attorneys in securing for these stu­
dents this pecuniary benefit. Cf., Sprague v. Ticonic Bank, 
supra.

In keeping with the foregoing conclusions, this cause is 
remanded to the District Court with direction (1) to amend 
the plan of desegregation for the defendant school district 
by requiring the school district to provide, either by the 
operation of a bus system of its own or by an acceptable 
arrangement with the private bus system now operating in 
the school district, free transportation for all students of the 
school system assigned to schools located beyond reasonable 
walking distance of their homes, and (2) to award reason­
able attorney’s fees to plaintiffs’ attorneys as a part of the 
taxable costs herein for their services in securing an amend­
ment in the plan of desegregation to provide for such free 
transportation.

Remanded W ith Directions.



App. 16

Winter, Circuit Judge, concurring specially:

I concur in the majority’s opinion except in regard to 
what is said with respect to the allowance of counsel fees. 
I would direct the allowance of counsel fees—and hence I 
also concur in this part of the judgment—but I would do 
so on a basis different from that expressed by the majority.

For a circuit which has been the leader in the allowance 
of counsel fees in school desegregation cases, Bell v. School 
Board of Powhatan County, Virginia, 321 F.2d 494 (4 Cir. 
1963) ; Brown v. County School Board of Frederick County, 
Virginia, 327 F.2d 655 (4 Cir. 1964) ; Griffin v. Board of 
Supervisors of Prince Edward County, 339 F.2d 486 (4 
Cir. 1964), reversed on other grounds, 377 U.S. 218 
(1964) ; Nesbit v. Statesville City Board of Education, 418 
F.2d 1040 (4 Cir. 1969), I think that the court takes a false 
turn when it rests the allowance in this case on a quasi-ap­
plication of the “common fund” doctrine. Sprague v. Ticonic 
Bank, 307 U.S. 166 (1939), in which this doctrine was 
announced, gives little support to the majority’s result. 
There, there was a fund, and the fund was more than suf­
ficient to pay all claims. The allowance was prayed to be 
paid out of the fund. Presumably, therefore, recovery on 
the claim would not be diminished by the allowance. 307 U.S. 
at 163. The only question was whether an allowance from 
the fund was proper when there was not a true class suit. 
It was held that since plaintiff’s recovery was res judicata 
of the claims of other potential plaintiffs similarly situated, 
the allowance could properly be made. Here, as the majority 
recognizes, there is no fund and it is necessary for the 
majority in effect to create one so that plaintiffs’ lawyers 
can be compensated.

Conceptually, I see grave difficulties with correlating the 
award of counsel fees to pecuniary benefits to plaintiffs. The



App. 17

objective in a school desegregation case is the vindication of 
human rights and human rights are rarely translatable into 
dollar values. Of course, in this case it can be said that 
plaintiffs will be granted something having a measurable, 
pecuniary benefit, but in other cases where the right vin­
dicated is not just lack of transportation, which carries a 
price tag, I can visualize substantial problems in determining 
whether the vindicated right has an ascertainable monetary 
value. And even in this case I am left in doubt of the extent 
to which, if any, the aggregate pecuniary benefit to all of 
the plaintiffs is to be considered in determining the amount 
of the allowance to their attorneys. Ordinarily, aggregate 
monetary recovery is a substantial factor in fixing a fee 
for legal services. And if difficult here, assuming that total 
recovery is an element to be considered, what difficulties will 
arise in future cases where such a convenient measure of 
the pecuniary benefit is not at hand ?

W here the court goes wrong is in its failure forthrightly 
to recognize that the decisions in the area of school desegre­
gation subsequent to Brown v. Board of Education, 347 
U.S. 483 (1954) ( Brown I ) ,  all hold that Brown I  means 
just what it says and that beginning in 1964 the Supreme 
Court has said repeatedly that further delay in its full 
implementation will not be tolerated. Griffin v. School Board, 
supra; Green v. County School Board of New Kent County, 
391 U.S. 430 (1968); Alexander v. Holmes County Board 
of Education, 396 U.S. 19 (1969) ; Carter v. West Feliciana 
Parish School Board, 396 U.S. 226 (1969). I find quite 
unpersuasive the implied assertion that Brown 1 required, 
or was afforded, subsequent clarification, or that clair­
voyance was required to foresee the result in Green v. 
County School Board, supra, and Swann v. Board of Educa­
tion, 402 U.S. 1 (1971). The only change in the course of



App. 18

direction of Brown I  that I have been able to perceive is 
abandonment of the mandate of “all deliberate speed,’ as 
announced in Brown v. Board of Education, 349 U.S. 294, 
301 (1955) (Brown I I ) ,  and the substitution of “at once’’ 
and “now,” as announced in Griffin, Green, Holmes and 
Carter. This change of direction in the immediacy of the 
application of Brown I does not dilute, modify or alter its 
substance, but I think it requires an extension of the rule 
we initially announced in Bell.

In Newman v. Piggie Park Enterprises, 390 U.S. 400 
(1968), it was held, in a suit brought under Title 11 of the 
Civil Rights Act of 1964 to enjoin racial discrimination at 
five drive-in restaurants and a sandwich shop, that “one 
who succeeds in obtaining an injunction under that Title 
should ordinarily recover an attorney’s fee unless special 
circumstances would render such an award unjust.” 390 
U.S. 402. The rationale of the holding- was “ [i]f successful 
plaintiffs were routinely forced to bear their own attorneys’ 
fees, few aggrieved parties would be in a position to advance 
the public interest by invoking the injunctive powers of the 
federal courts.”

Of course, in Ncivilian there was a statute authorizing 
an award of counsel fees in a suit brought under Title II  of 
the Act, and, strictly read, Newman simply decided how the 
statute should be applied. But the lesson to be learned from 
Newman is directly applicable here. We have the authority 
to award counsel fees in this equitable action; no statute is 
required. True, up to now, we have awarded them only 
“when it is found that the bringing of the action | to de­
segregate effectively] should have been unnecessary and was 
compelled by the school board’s unreasonable, obdurate 
obstinacy.” Bradley v. School Board of City of Richmond, 
Virginia, 345 F.2d 310, 321 (4 Cir. 1965). Such an applica-



App. 19

tion was proper in the context of “all deliberate speed” be­
cause, there, there was room for legitimate debate as to the 
period of time within which the conflicting demands of 
aggrieved plaintiffs and the community interest in a smooth, 
uneventful transition to a unitary system of public educa­
tion were to be accommodated. But Griffin, Green, A lex­
ander and Carter have created a different context. By now 
the transition should have been accomplished. If it has not, 
the burden of persuasion to explain the delay should rest 
on those who have the power to accomplish the objective but 
who have failed to achieve it, and not on those whose rights 
continue to be violated. It seems to me, therefore, to be ap­
propriate now to hold, in the light of those cases, that rea­
sonable and adequate counsel fees should be awarded as of 
course unless special circumstances would render an award 
unjust.

There is every reason to arrive at this result. Despite the 
extensive enforcement responsibilities the statutes place on 
the Departments of Justice and Health, Education and Wel­
fare and their immense resources, we know from the cases 
which come before us that they have been unable to shoulder 
the entire burden of litigation to make Brown I  fully effec­
tive. The Department of Justice has not appeared in this 
stage of this very case. Indeed, it has appeared at only one 
stage of the tortuous history of the desegregation of the 
Norfolk schools. Brewer v. School Board of City of Nor­
folk, Virginia, 434 F.2d 408 (4 Cir. 1970). Almost all of the 
burden of litigation has been upon the aggrieved plaintiffs 
and those non-profit organizations which have provided 
them with representation. The time is now when those who 
vindicate these civil rights should receive fair and equitable 
compensation from the sources which have denied them, 
even in the absence of any showing of “unreasonable, 
obdurate obstinacy.”



App. 20

If we were to adopt the rule I champion, I could not find 
in the light of Swann and Davis v. School Comm’rs. of 
Mobile County, 402 U.S. 33 (1971), that there are any 
special circumstances rendering an award of counsel fees 
unjust. Hence, I join in directing that counsel fees be 
awarded.



JUDGMENT 

Entered March 7, 1972

United States Court of Appeals 
for the

Fourth Circuit 

No. 71-1900

Carlotta Mozelle Brewer and Demetria Yvonne Brewer, 
infants by Oner Brewer, their father and next friend, et al.,

Appellants,
vs.

The School Board of the City of Norfolk, Virginia, et al.,
Appellees.

Appeal from the United States District Court fo r the 
Eastern District o f Virginia.

This cause came on to be heard on the record from  the 
United States District Court for the Eastern District o f 
Virginia, and was argued by counsel.

On consideration whereof, I t is now here ordered and 
adjudged by this Court that the judgment o f the said 
District Court appealed from, and this cause, be, and the 
same is hereby, remanded to the United States District 
Court for the Eastern District of Virginia, at Norfolk 
with directions (1) to amend the plan of desegregation 
for the defendant school district by requiring the school 
district to provide, either by the operation of a bus system 
of its own or by an acceptable arrangement with the private 
bus system now operating in the school district, free trans­
portation for all students of the school system assigned to 
schools located beyond reasonable walking distance of their 
homes, and (2) to award reasonable attorney’s fees to



App. 22

plaintiffs’ attorneys as a part of the taxable costs herein 
for their services in securing an amendment in the plan of 
desegregation to provide for such free transportation.

Samuel W. Phillips 
Clerk



App. 23

JUDGMENT 

Entered March 7, 1972

United States Court of Appeals 

for the

Fourth Circuit 

No. 71-1901

Carlotta Mozelle Brewer and Demetria Yvonne Brewer, 
infants by Oner Brewer, their father and next friend, et al.,

Appellees,
vs.

David E. Allgood, infant, etc., et al.,
Appellants.

Appeal from the United States District Court fo r the 
Eastern District of Virginia.

This cause came on to be heard on the record from  the 
United States District Court fo r the Eastern District of 
Virginia, and was argued by counsel.

On consideration whereof, I t is now here ordered and 
adjudged by this Court that the judgment o f the said Dis­
trict Court appealed from, in this cause, be, and the same 
is hereby, remanded to the United States District Court for 
the Eastern District of Virginia, at Norfolk with direc­
tions (1) to amend the plan of desegregation for the de­
fendant school district by requiring the school district to 
provide, either by the operation of a bus system of its 
own or by an acceptable arrangement with the private bus 
system now operating in the school district, free transporta­
tion for all students of the school system assigned to schools 
located beyond reasonable walking distance of their homes,



App. 24

and (2) to award reasonable attorney’s fees to plaintiffs’ 
attorneys as a part of the taxable costs herein for their 
services in securing an amendment in the plan of desegrega­
tion to provide for such free transportation.

Samuel W. Phillips 
Clerk

Nos. 71-1900 and 71-1901 
ORDER

Entered April 3, 1972

A fter due consideration of the motion for stay of man­
date herein and after consultation with all members of the 
Court,

It Is Hereby Ordered, That the mandate of this Court 
in the above case be stayed until April 18, 1972, in order to 
permit the defendants to apply to the Supreme Court for 
a writ of certiorari, or to apply to that Court for a stay.

MEMORANDUM OPINION

Entered July 28, 1971

Encouraged by the patent spirit of cooperation mani­
fested in the recent hearings in this case, we are happily 
optimistic that Beckett, et al. v. The School Board of 
the City of Norfolk, et al., filed in. May, 1956 may be 
progressing to a belated but final conclusion.

Under the mandate of Swann v. Charlotte-Mecklenberg
Co. Board of Education, __  U.S. ----  (April 20, 1971),
and the directions issued on remand of that case from the 
United States Court of Appeals for the Fourth Circuit, on 
June 6, 1971, the School Board of the City of Norfolk has



App. 25

proposed its plan for the operation of its schools for the 
year 1971-1972, a plan which uses single school attendance 
areas, pairings and groupings of schools in both contiguous 
and non-contiguous attendance zones and extensive bus 
transportation to achieve the greatest possible degree of 
actual desegregation.

The Plan, to be successful in its operation, will require 
the maximum collective efforts of the School Board, school 
administrators, school teachers, parents of both races, the 
affected children and the public at large. To augment those 
efforts, this court here demonstrates its confidence and sup­
port of the proposed Plan and urges cooperation of the 
citizens of Norfolk.

The Plan as submitted and amended by the Norfolk 
School Board, attached hereto as Appendix “A ,” is ap­
proved.

In general profile, the Plan will require that many thou­
sands of students will be involved in mass busing. Often 
the trips will be long and tedious for children of tender age. 
Parents of both races have expressed their opposition, but, 
always in good grace and to date, always within the posture 
of proper legal proceedings. It is hopeful that the incon­
venience, expense and the magnitude of the busing can be 
appropriately reduced in time, but under the course pres­
ently prescribed by appellate courts, the School Board has 
been wise in its proposal. In my judgment, never has a 
more dedicated School Board struggled with a more com­
plex problem.

The School Board Plan for Norfolk encompasses 54,000 
students in five high schools, ten junior high schools and 
fifty-four (54) elementary schools, a total of sixty-nine 
(69) schools.



App. 26

The plaintiffs originally raised objections to the Plan as 
to pupil attendance in only two schools, Tucker 'Elementary 
and Campostella Heights Elementary. Tucker, under the 
original plan, remained 100% black and arguably with some 
valid reasoning. Nevertheless this court was constrained to 
reject the plan as to this single uniracial school as not meet­
ing the tests recently announced in Swann  v. Charlotte-
Mecklenburg County Board of Education, .....  U.S. ___
(April 20, 1971). As a result, complying with the order of 
this court dated July 19, 1971, the School Board submitted 
an amended plan. Under the amendment Tucker is paired 
with Norview Elementary. Prior to its pairing with Tucker 
Elementary, Norview Elementary with 750 students, as a 
single attendance area school, represented a racial ratio of 
63% white, 37% black. Tucker Elementary, with 460 stu­
dents as stated, was 100% black. Under the amended plan 
and the pairing of these two schools, Norview Elementary 
with grades 1-3, will present a racial ratio of 41% white, 
59% black. Tucker’s racial ratio, in grades 4-6, will be 
52% white, 48% black. The uniracial status of Tucker 
Elementary is thus removed.

Campostella Elementary, with an enrollment of 175 car­
ries a racial ratio of 70% black and 30% white. There is, 
therefore, a departure from the plan of 60% white, 40% 
black, the city-wide racial ratio the School Board has con­
scientiously tried to apply but which cannot always be 
adhered to. Dr. Stolee, plaintiffs’ expert witness, whose 
“Plan C” has previously been viewed with favor by the 
Fourth Circuit, had previously advocated leaving this school 
untouched under that “Plan C.” The evidence shows that 
the area surrounding Campostella Elementary is integrated 
in fact and is stable in terms of acceptance by those in the 
the neighborhood itself. Statistics reveal that the Negro 
majority in the school has decreased about 5% in the last



App. 27

20 months. No change in attitude or result, other than 
continued quiet integration of the neighborhood, is fore­
seen. To attempt to pair this school and reduce its black- 
white ratio would at the same time change the delicately 
balanced and acceptable ratio in one or more other schools, 
and at great disruptive cost. In leaving the racial composi­
tion of Campostella and its 70% black, 30% white enroll­
ment as it is, the court is convinced that such composition 
is not representative of discrimination and is balancing 
itself in a stabilized community. The United States had no 
objection to the Campostella Heights plan of the Board.

This court is of the opinion that the School Board in its 
amended plan for racial distribution of student enrollment 
has made every effort to achieve the greatest possible degree 
of actual desegregation under the tests of Swann, supra. 
The objections of the plaintiffs are Denied. The objections, 
on other grounds, of both sets of intervenors, are likewise 
Denied.

The plaintiffs’ exception to the Norfolk Plan for its 
failure to provide for a reporting procedure is premature. 
All of the evidence, which plaintiffs cannot counter, is that 
regular reports are now, and have been promptly made by 
the School Board as soon after the opening of schools as 
the appurtenant statistics are available.

There has been no showing of any failure to report or of 
any failure to provide information requested.

The general rule is that there is no duty to provide free 
transportation of children to a public school system absent 
a statute which requires this activity. 79 C.J.S., Schools 
and School Districts, §475(2).



App. 28

Virginia, by statute, leaves transportation of school 
children, in its cities, to the discretion of the City School 
Boards:

“City School Boards may provide for the transporta­
tion of pupils; but nothing herein contained shall be 
construed as requiring such transportation. . . Va. 
Code Ann. § 22-97.1.

No attack is here mounted against this statute. No dis­
crimination in its origin or effect is here evident. It applies 
to all cities and their populations without regard to race 
and is in accord with generally accepted legal principles.

Quite properly, the matter should be left with the School 
Board and the City of Norfolk. Funding of such a project 
would be most difficult. In  this case, the credible evidence 
places the initial cost at more than $3,600,000.00. For the 
School Board to request and the City to raise such a sum 
would be primarily a matter of an increase in taxes or a 
bond issue, peculiarly a City problem to be considered in 
the light of all of its other financial affairs. In short, free 
school transportation is a legislative prerogative and not 
the proper subject of judicial fiat on the strength of the 
facts of this case. The suggestion by plaintiffs made in 
argument that the white flight which might flow from the 
execution of the proposed Norfolk Plan may so materially 
reduce the number of teachers as to thus make funds for 
pupil transportation available to the School Board within 
its present budget, is in reality a better ground to refuse 
the Plan than to provide free transportation.

The only Cities in Virginia which have exercised their 
discretion in favor of free school transportation (and 
usually only in a segment of such city, newly annexed) have 
done so under the impact of annexation decrees or merger



App. 29

agreements in which sizeable portions of rural, former 
county areas, theretofore serviced by school buses, have 
been joined to cities. Such is the case in Chesapeake, created 
by the merger of Norfolk County and the City of South 
Norfolk; Virginia Beach as the result of its merger with 
Princess Anne County; the Henrico County, Chesterfield 
County and the City of Richmond annexation decree.

Swann, supra, is not authoritative in this field. No spe­
cific language therein directs free transportation in the 
busing which it says is to be employed as a tool of de­
segregation. On page 26 of the slip opinion in Swann, a 
footnote carefully points out that North Carolina, by 
statute, requires the busing of students who live more than 
lRs miles from the school they attend. N.C. Gen. Statute 
115-186(b). In Virginia the law as to cities is to the con­
trary.

Manifestly, enforced busing does work a hardship on 
indigent students. The Chairman of the Norfolk School 
Board indicated every effort was being made to find a solu­
tion to offer free transportation in this limited field, but 
like school lunches and free text books, the ultimate decision 
in such economic matters is for the School Board of the 
City, not the courts.

Amidst the efforts towards legal and mechanical com­
pliance with judicial desegregation edicts, the “rising 
senior option” provision of the Norfolk Plan is the only 
bright spark of humanism. A  student completing his 
junior year has the option to remain in the same school to 
complete his senior year. The provision applies alike to 
black and white and could be hardly less discriminatory. 
The plaintiffs in argument, freely admit that it is a rule of 
great benefit to students of both races. As a matter of fact,



App. 30

the only objection raised by the plaintiffs is over the possi­
bility of a swing of less than 10 percentage points in the 
black-white ratio in one high school, Booker T. W ashing­
ton.

When one compares this picayune exception with the 
mammoth good the senior option offers, this court un­
equivocally approves the provision. In the first place, seniors 
represent the leadership in high schools. It is this group 
that encompasses most of the elective officers positions of 
prominence in school organizations, choral groups, bands, 
marching corps, and officers in reserve groups. Of great 
importance, also, the outstanding members of athletic 
teams, are usually seniors. Having progressed to these 
positions of prominence, academic, extra-curricular and 
athletic, the importance of giving these students, black or 
white, their great day in the sun becomes obvious. For 
many, it will be their last days of education and a chance to 
develop the leadership and responsibility which maturing 
years have thrust their way and which they have evidenced 
their acceptance. For many others, it will be the sole oppor­
tunity to secure scholarships by academic excellence and 
through athletic prowess in an atmosphere to which they 
have grown accustomed and which would most successfully 
foster their talents. For many it is a continuation, to an 
apex, of a relationship with dedicated guidance counsellors 
who have been mapping student careers towards college 
attendance, or employment after graduation. This is a 
program in which carefully nurtured mutual understanding 
and confidence would be totally destroyed were the counsel­
ling relationship to be broken and the student summarily 
directed to another school. And of great importance, as 
pointed out by Norfolk’s enligihtened Chairman of the 
School Board, in previous hours of strain in the fields of



App. 31

school discipline and other social problems, student leader­
ship and assistance administered by those mature seniors 
who have acquired status and to whom their juniors look 
for guidance on a day-to-day basis has been a significant 
aid.

To disturb all of this over the possibility of a swing of 
a few ratio percentage points in one school in sixty-nine is 
a course this court would not choose to follow.

A majority-minority transfer provision, with attendant 
transportation costs borne by the School Board, recognized 
as a necessary adjunct to desegregation in Swann, supra, 
will be retained in the Norfolk Plan. If  it is not now lit­
erally written therein, it will be so considered by virtue of 
this Opinion and subsequent Order. Only forty-eight (48) 
students availed themselves thereunder in 1970-1971.

A specific provision in the Plan to call for a minimum 
number of black administrators and teachers in the system 
is not necessary, as no problem in that field has been pre­
sented or suggested. The evidence before the court is that 
the number of black teachers and black supervisors has 
been increasing year by year in the Norfolk system. Efforts 
in this direction by the Norfolk School Board are not criti­
cized by any of the parties to this suit. The minimum levels, 
and a provision therefor, are here suggested only as safe­
guards. There being no necessity shown for such provision, 
this court chooses not to move in an area where no relief 
is required.

Finally, on the point of plaintiffs’ attorneys fees, the 
Fourth, Sixth and Eighth Circuits have enunciated their 
views, all three following the same line of reasoning.



App. 32

The Fourth Circuit in Bradley v. School Board of City 
o f Richmond, 345 F.2d 310 (4th Cir. 1965), established 
four basic criteria relating to the problem: (1) only in 
the extraordinary desegregation case, one of purposeful 
opposition to desegregation by school officials, should an 
award be granted, (2) the fact that substantial relief is 
granted petitioners is not in itself justification for an 
award, (3) an award should be granted only when the 
bringing of the litigation should have been unnecessary but 
for the opposition by the school officials and finally, (4) the 
District Judge is granted wide discretion in deciding 
whether conduct of school officials has been so unreason­
able as to justify an award.

The Eighth Circuit, citing Bradley, in Kemp v. Beasley, 
352 F.2d 14 (8th Cir. 1965), upheld a denial of attorney’s 
fees to those challenging a school board desegregation plan. 
The court stressed the wide discretion accorded the court 
in deciding the question and endorsed the proposition that 
only cases of extraordinary opposition to desegregation by 
school officials would justify awards of fees.

Fees were awarded in a Fourth Circuit case, Bell v. 
School Bd. Powhatan County', Va., 321 F.2d 494 (4th Cir. 
1963). The facts indicate an extreme case in which no steps 
had been taken to desegregate, and there was evidence of 
concerted efforts by school officials to impede attempts of 
blacks to transfer to the white school. Even there, however, 
two judges of the Fourth Circuit felt the District Judge’s 
denial of fees was within his broad discretion. Bradley, 
supra. Another Fourth Circuit case, Griffin v. County 
School Bd. Prince Edw., 363 F.2d 206 (4th Cir. 1966) al­
lowed an award of fees. Here again the circumstances were 
extreme. The County Board of Supervisors, having dis­
bursed public school funds to maintain private segregated



App. 33

schools, were held in contempt of court for their extreme 
opposition to desegregation efforts.

In Rolfe v. County Board, Ed., Lincoln County, Tenn 
391 h.2d 77 (6th Cir. 1968) an award of attorney’s fees 
was ordered where the court found that there had been a 
long, continuing obstruction of desegregation by the de­
fendant school officials and government.

Only in cases of obvious failure by the school officials 
to make good faith efforts to desegregate, or where pro­
longed and concerted efforts to impede desegregation are 
evidenced, is an award of attorney’s fees justified. We 
make a factual determination in this case that there has 
been, in fact, a good faith effort at desegregation on the 
part of responsible school officials and local government.

In light of the present Norfolk School Plan of the pre­
ceding litigation herein and the totality of the circumstances 
of this case, attorney’s fees for plaintiffs’ counsel as an 
item chargeable to the School Board, is Denied.

An order in keeping with the tenor of this Memorandum 
Opinion is entered this day.

John A. MacKenzie 
United States District Judge

Norfolk, Virginia 
July 28, 1971