Reply Brief

     [||c7f01d8d-8b66-4281-922c-7e9ee1359a97||] IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

vs. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICT, et al., 

Defendants-Appellees. 

Appeal From The United States District Court For The 
Northern District of Mississippi 

Delta Division 

REPLY BRIEF 

JACK GREENBERG 

MELVYN R. LEVENTHAL 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs- 
Appellants 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PIPFTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

vs. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 
DISTRICT, et al,., 

Defendants-Appellees. 

Appeal From The United States District Court For The 
Northern District of Mississippi 

Delta Division 

REPLY BRIEF 

l. Whether defendants' conduct must be held "obdurately 

obstinate." 

The parties apparently agree on the standard control- 

ling the issue of whether defendants' conduct may be found 

"obdurately obstinate." Brief of Appellees, pp. 50-51. 

A summary of Supreme Court precedent has recently been 

undertaken by a district court and confirms that the critical 

question is whether plaintiffs were required to litigate to 



obtain rights plainly due them. Parker v Shonfeld, 409 

F. Supp. 876, 883, n.8 (N.D Cal. 1976). 

A. Pre-Clarksdale I litigation. 

Defendants do not contest that: (a) plaintiffs’ 

petitions to obtain compliance with Brown were ignored by 

defendants thereby necessitating this litigation in the 

first instance; (b) that "a report of the State of 

Mississippi Department of Education indicated that the 

defendant Clarksdale M.S.S.D., expended $146.06 above mini- 

mum appropriations for each white child and only $25.07 for 

each Negro child," (A.282) and that despite this and find- 

ings of the district Court of Plessy violations, defendants 

not only resisted plaintiffs' effort to equalize black and 

white schools but filed a motion to strike our allegations 

of such inequalities; (c¢) Judge Clayton found racial 

gerrymandering in defendants' plan of pupil assignment. 

The only basis for a finding that the foregoing 

blatant violations of entrenched judicial doctrine do not con- 

stitute a clear basis for requiring an award of atttorneys' fees 

is a holding that because all school districts of the region were 

engaged in such recalcitrance each school district may 

be excused; that plaintiffs right to an award of fees is 



1/ 
attenuated by everyone doing wrong. 

B. Post Clarksdale I litigation. 

While defendants repeat their standard 50 page 

lecture on the history of desegregation law to obscure 

their pre-Clarksdale I recalcitrance, this Court should 

carefully note that they offer virtually no defense for 

their adamant refusal to submit a new plan of pupil assign- 

ment after Clarksdale I. They say only that the law was 

"uncertain" and that they were duty bound to resist the HEW 

plan "since disaster was certain to follow [its implementa- 

tion]." Brief of Appellees, p.50. As this Court subsequent- 

ly observed, the "state of the law" in Clarksdale, Mississippi 

was a mandate from this Court with all appeals therefrom 

l/ Defendants self-righteous assertion- made in every 
brief they have ever filed- is that their geographic zoning 
plan distinguished them from their neighbors. We are 
asked to believe that while the entire state of Mississippi 
was up in arms over a single black child attending any 
white school, ( a result not possible under their plan 
except through special transfers), while the Governor of 
Mississippi was standing in the school house door, while 
interposition and nullification resolutions rang through the 
Mississippi legislature and the Congress, while tuition grant 
legislation was enacted (counsel opposite was a leading spokes- 
man for Mississippi's version), Clarksdale defendants "[f]rom 
the very beginning of this litigation ... have tried to respond 
to the requirements of the Constitution and laws of this 
nation, and to meet their responsibilities under the decisions 
of the courts ...." (Brief of Appellees, p.51l.) 

In fact, over the years Clarksdale has had one of the 
strongest civil rights movements in the State it being the home 
of Aaron Henry, head of the NAACP in Mississippi and a national 
figure in human rights. Freedom of choice in Clarksdale would 
undoubtedly have resulted in more desegregation than geographic 
zoning. See footnote 6, page 12 of Brief for Appellants. In 
a comparable community, Holmes County, Mississippi, 200 black 
children enrolled in white schools in 1965 under freedom of 
choice,or fully 20% of all such black children in the State of 

Mississippi during that year. 



exhausted by defendants. Clarksdale III, 433 F.3d at 388-89. 

As to white flight which, we are told, proved the unwork- 

ability of the HEW plan and defendants' duty to resist, the 

Court should note that under such reasoning the defendants’ 

geographic zoning plan fares much worse. All whites south 

of the railroad tracks assigned to the one black elementary 

~ school withdrew therefrom upon implementation of defendants’ 

plan. We must ask these sanctimonious defendants how they 

defend their plan in light of the "disaster" it accordingly 

Sonsad is Moreover, if the Court accepts defendants’ 

rationale, every school district experiencing white flight 

may defend its contempt of judicial orders and standards on 

the basis of a "duty" to resist. 

Defendants also remind us in their brief that 

although they admitted to this Court at oral argument in 

April, 1966 that faculty desegregation was required (Brief 

of Appellees, p.34, bottom), they took no action to remedy 

such deficiencies as late as January, 1970. (A.216-17) 

Defendants also fail to offer any response to 

plaintiffs’ need to file and litigate a Motion for Supple- 

mental Relief (in effect, for contempt judgment), arising 

2/ Of course, white flight has little to do with the 
educational soundness of a plan. See, Fulfilling the Letter 
and Spirit of the Law, Desegregation of the Nation's Public 
Schools, A Report of the United States Commission on Civil 
Rights, August, 1976. 



from defendants' failure to comply with Singleton faculty 

requirements, which motion was granted by the district court. 

(A.225, 228, Brief for Appellants, n.8, p.1l3) 

Defendants argue that Rule 52(a) requires affirmance. 

Of course, our principle argument here is that the court 

below applied the wrong standard. In addition, the litmus 

test for appellate review under Rule 52 (a) should be whether 

the reviewing court is able, under any reasonable review of 

all the facts and the full record, to write an opinion up- 

holding the trial court. Plaintiffs challenge this Court 

to write such an opinion here; it cannot be done. 

2. Whether plaintiffs must be awarded attorneys' fees 

under §1617 for time expended prior to the effec- 

tive date of that statute. 

Defendants argue that Bradley can be read as autho- 

rizing a fee award only where, first, "the propriety of the 

... award was pending on appeal when the statute boosie law, " 

and, second, only for "services performed subsequent to the 

date of the filing of the motion for ... fees." Brief of 

Appellees, pp. 26-27. 

Such a reading of Bradley is unreasonably restrictive. 

First, when the Court recites that on the effective date of 

§1617 the propriety of a fee award was pending on appeal, it 

obviously is merely reasoning therefrom that the litigation 



was "active" on that critical date. Defendants cannot 

seriously argue that a motion for fees pending in a district 

court at the time of §1617's enactment or subsequent thereto 

is distinguishable from Bradley. Secondly, Bradley does not 

hold or even suggest that a request for fees must be entered 

prior to the substantive litigation. Rather, while an 

inquiry into "timeliness" may be appropriate (see discussion 

below, p. O ), such particular notice to defendants in 

anticipation of litigation on the merits was held unnecessary. 

416 U.S. at 720 (last paragraph) - 721. 

The "anchor" of Bradley is that a court must "apply 

the law in effect at the time it renders its decision, un- 

less doing so would result in manifest injustice or there 

is statutory direction or legislative history to the con- 

trary.” “4le U.S. 8t 711, The Court reviewed the legis- 

lative history of §1617 and found that, if anything, it 

supports the application of the statute to actions pending 

on its effective date. 416 U.S. 716 n.23. And in school 

desegregation cases, compelling reasons require a holding 

that no "manifest injustice" results from applying the 

statute to pending cases. 416 U.S. at 716-22. It concluded 

that §1617 was controlling and fees recoverable for pre-Act 

services as long as the given case was "pending on [its 

effective] date." 416 U.S. at 721. In addition to this 

"pendency" requirement, it is reasonable to construe Bradley 

as requiring that the motion seeking fees be "timely" 

presented and advanced. 



(A) Was the Clarksdale case "pending" on the effective 

date of §1617? It was, given the nature of school desegre- 

gation cases generally and events in this litigation. 

"School desegregation cases can be expected to 

involve relief of an injunctive nature that must prove its 

efficacy only over a period of time and often with frequent 

modifications...." Bradley, supra, 416 U.S. at 722-23. 

Thus, a school desegregation case remains "pending" through 

stages of litigation and is not brought to an end, as defen- 

dants argue, upon the entry of an order attempting to estab- 

lish a unitary system. For this reason this Court has spoken 

of a period of three years following the entry of a "terminal 

plan," during which jurisdiction is retained, periodic reports 

are received and evaluated, and modifications to the plan and 

unanticipated issues are considered and resolved, i.e., during 
3/ 

which the case remains pending. Brown, Green, Swann, Steele 

v. Board of Public Instruction of Leon County, Florida, 488 

F.2d 767 (5th Cir. 1971); Wright v. Board of Public Instruc- 

tion of Alachua County, Florida, 445 F.2d 1397 (5th Cir. 1971). 

Youngblood v. Board of Public Instruction of Bay County, Florida, 

448 P.24 770 (5th Cir. 1971). 

The instant litigation was in the midst of precisely 

this process when §1617 became law. The case proceeded 

3/ A Motion to dismiss this case was filed by defendants, 
not after the district court entered an order approving a 
terminal plan, but after this appeal was perfected. That Motion 
is pending in the district court. 



through a "terminal plan" entered by the district court on 

May 27, 1971, (A.230); through a modification thereto on 

September 7, 1971 (A.231); through defendants' February 16, 

1972 petition to sell lands (A.232), which was successfully 

resisted by plaintiffs and denied by the district court on 

March 31, 1972 as "contrary to the affirmative duty of the 

Board of Trustees to select future school sites in such 

manner as to prevent the recurrence of one-race schools" 

(A.240); through reconsideration of that petition to sell 

lands after the effective date of §l6l17, (A.250-51), which 

reconsideration was agreed to by plaintiffs under certain 

conditions which resulted in an August 9, 1972 order autho- 

rizing the sale of lands (A.252-53); through plaintiffs’ 

August 1, 1972, motion to obtain transportation (A.256), 

which was resisted by defendants who, the district court and 

this Court found, sought to reinstate the dual system under 

the guise of a defense thereto (A.274); Clarksdale IV, 480 

F.2d at 585 (first full paragraph). 

In summary, this case was "pending" on July 2, 1972, 

because the court had properly retained jurisdiction through 

that date and the critical issues of new construction and 

pupil transportation arose and were litigated after July 2, 
4/ 

1972. 

4/ The district court reasoned that if new construction 
and pupil transportation issues are grounds for holding a case 
"pending" then "it would be a very simple matter for plaintiffs 
to re-activate post-school desegregation cases on the filing of 
motions relating to the unlawful discharge of a single teacher, 
or a bus driver, or racially-motivated discharge of students in 
disciplinary actions." (A307-08) The district court's quoted 



B. Timeliness. 

It is true that plaintiffs' first motion for 

fees was addressed to this Court in Clarksdale IV. IL 

is also true that all we sought from this Court, at that 

time, was an interim award for services performed in the 

context of that appeal. (Brief for Appellees, pp. 2-3) 

In plaintiffs' judgment a motion for fees would have been 

most timely after a decision of this Court on transporta- 

tion and defendants' request for modifications to their 

plan of pupil assignment, i.e., after Clarksdale IV. The 

mandate of Clarksdale IV, however, shifted responsibility 

for implementation of plaintiffs' entitlement to fees to 

the district court. And the district court evidently 

aware of the pendency of Bradley deferred action on the 

issue until September 18, 1974, when it called for a motion 

4/ contd. 

misgivings relate to timeliness, discussed below p.9, 

and not to Bradley's pendency requirement. Moreover, 
the analogy between the issues litigated here and those 
suggested by the district court is tenuous. Pupil 
transportation and new construction are issues vital to 
the creation and perpetuation of a unitary system while 
litigation by individuals charging invidious discrimini- 
nation is somewhat remote. Swann v. Charlotte Mecklenburg 
Board of Education, 402 U.S.L, 20-21 (1971) (on the importance 
of school site selection), and United States v. Greenwood 
M.§.S.D,, 460 P.24 1205. 1207 (5th Cir. 1973) (on the impor- 
tance of transportation for children assigned to schools out- 
side their neighborhoods). Finally, there is no suggestion 
anywhere by anyone that plaintiffs contrived to keep this 
case active to recover attorneys' fees. 



2/ 
and affidavits from plaintiffs.” (A.280) 

We cannot quarrel with the district court's asser- 

tion that a motion for fees must be "timely" and that a 

request cannot be entered many years after the litigation 

has ended; nor can plaintiffs contrive to reactivate a 

closed case, under the guise of some minor violation of the 

final order and then seek attorneys' fees for all time ex- 

pended throughout the history of the litigation. See foot- 

note 4, above. But that's not this case. 

We have already demonstrated that this litigation 

was not merely pending but that it was active through 

Clarksdale IV. A motion seeking attorneys' fees at each 

stage of the litigation would have periodically diverted the 

court's and the parties attention from the critical and 

sensitive substantive issues attending school desegregation. 

A motion for fees at each point along the long way of these 

proceedings would have proved "unmanageable," and it would 

have been "undesirable" to "delay the implementation of a 

desegregation plan in order to resolve the question of fees 

5/ After obtaining extension of time, plaintiffs duly 
filed their affidavits. Defendants assertion that we did 
not file a motion until October 10, 1975 is grossly mislead- 
ing. On that date we filed a motion stating that we had 
"inadvertently" failed to file a motion coincidentally with 
the filing of affidavits in support (O.R. Vol. IV, p.5). 
The affidavits filed in response to the court's direction 
on January 10, 1975, are styled "Affidavit in Support of Motion 
for Award of Attorney's Fees." (A.281) 

- 10 = 



simultaneously." Bradley, 416 U.S. 722-23. Only after 

the Clarksdale IV opinion quieted this litigation could 

the parties properly address the ancillary question of attorneys’ 

fees. Although §1617, does not require indefinite delays in 

the awarding of fees, Bradley, 416 U.S. at 421-24, that statute 

by calling for an award to the "prevailing party," upon the 

entry of a "final order," suggests that the approach taken by 

plaintiffs was proper. 

Accordingly, the requirement of "timeliness" must 

here respond to the nature of school desegregation litigation 

generally, the fact that the Clarksdale litigation was a 

continuum without significant breach prior to the request for 

fees and finally, it must respond to the language of §l617. 

And we are entitled to fees both under traditional 

equity principles and 20 U.S.C. §l6l7. 

Respectfully submitted, 

JACK, GREENBERG 

MELVYN R. LEVENTHAL 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs- 
Appellents. 

- 11 



CERTIFICATE OF SERVICE 

The undersigned certifies that copies of the 

foregoing Reply Brief was served on counsel for 

the defendants by United States mail, postage pre- 

paid, this 27th day of August, 1976, as follows: 

Semmes Luckett, Esq. 
121 Yazoo Avenue 

Clarksdale, Mississippi 38614 

\ . ‘ IN - 

Attorney for Plaintiffs [||c7f01d8d-8b66-4281-922c-7e9ee1359a97||]