Allgood v. Brewer and United States v. School Board of the City of Norfolk, Virginia Petition for a Writ of Certiorari
Public Court Documents
May 18, 1972

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Brief Collection, LDF Court Filings. Allgood v. Brewer and United States v. School Board of the City of Norfolk, Virginia Petition for a Writ of Certiorari, 1972. 00e9979e-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/db5ae879-519a-47d1-8f7a-6050a1d396f7/allgood-v-brewer-and-united-states-v-school-board-of-the-city-of-norfolk-virginia-petition-for-a-writ-of-certiorari. Accessed July 11, 2025.
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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