Motion for Summary Affirmance and Brief for Plaintiffs-Appellees

     [||af671553-8c65-4423-96af-2636f1528417||] "= 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
10 Columbus Circle, New York, N.Y. 10019 « (212) 586-8397 

September 22, 1976 

Honorable Edward W. Wadsworth 

Clerk 

United States Court of Appeals 
for the Pifth Circuit 

600 Camp Street 
New Orleans, Louisiana 70130 

Re: Norwood v. Harrison 

Fifth Circuit No. 76-1865 
  

Dear Mr. Wadsworth: 

Enclosed please find for filing twenty (20) 
copies of Plaintiffs-Appellees Brief with reference 
to the deferred Appendix. I have also modified the 
Rule 13 certificate of counsel to reflect the additional 
parties defendant as requested by a clerk of the Court. 

Sincerely, 

Melvyn R. Leventhal 

cc: Peter M. Stockett, Esq. 

MRL: ja 
Encls. 

Contributions are deductible for U.S. income tax purposes  



IN THE 

  

UNITED STATES COURT OF APPEALS 

FOR THR PIFTH CIRCUIT 

  

No. 76-1865 

  

DELORES NORWOOD, et al., 

Plaintiffs-Appellees, 

V. 

D.L. HARRISON, SR., et al. 

Defendants-Appellants. 

  

On Appeal from the United States District Court 
for the Northern District of Mississippi 

  

MOTION FOR SUMMARY AFFIRMANCE AND 

BRIEF FOR PLAINTIFFS-APPELLEES 

  

JACK GREENBERG 

MELVYN R. LEVENTHAL 

10 Columbus Circle 

. Suite 2030 
- New York, New York 10019 

: FRED L. BANKS, JR. 
538% North Farish Street 
Jackson, Mississippi 39202 

Attorneys for Plaintiffs- 
Appellees 

 



  

  

  

TABLE OF CONTENTS 
  

Page 

Motion For Summary AfLIirmanos ...ceesessnvssssoses ” i 

Certificate of Counsel .....cecscves chaser eae. bie ii 

a Statement of the Case 3aNA FACES .eecovovrosense “oie 1 

ATGUNMBHE (ver eresnersorntrossarnesssees sips Serer eneene 3 

CONCLUSION conv venssironconsnnsmoninse sive ss vs oie vee 8 

 



  

  

  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PF1¥PTH CIRCUIT 

  

No. 76-1865 

  

DELORES NORWOOD, et al. 

Plaintiffs-Appellees, 

Vv. 

D.L,. HARRISON, SR., et al. 

Defendants-Appellants. 

  

On Appeal from the United States District Court 
for the Northern District of Mississippi 

  

MOTION FOR SUMMARY AFFIRMANCE OR, IN THE ALTERNA- 
TIVE, SUGGESTION THAT APPEAL BE ASSIGNED TO 

SUMMARY CALENDAR 

  

Plaintiffs-appellees, black school age children who 

have obtained the termination of textbook aid to private 

schools engaging in racially discriminatory policies and 

practices and who have obtained an award of attorneys’ 

fees and costs below, respectfully move the Court: 

(2) pursuant to Rule 21 of the local rules, to 

summarily affirm the opinion and judgment of the district 

court; in the alterma tive, 

  

A A i BAA LA aa a he ea Sr EA iA SONS ns 8 Bh A BN A SR ES



    

  

  
  

  

(b) pursuant to Rule 18, assign this appeal to 

summary calendar so as to expedite its disposition. 

In support, appellees file herewith their brief 

demonstrating that, in light of recent Supreme Court 

precedent, the appeal is wholly without merit. 

Respectfully submitted, 

   

  

     

  

GREENBERG 

MEL R. LEVENTHAL 

10 Columbus Circle 
Suite 2030 

New York, New York 10019 

FRED L. BANKS, JR. 

| 538% North Farish Street 
Jackson, Mississippi 39202 

Attorneys for Plaintiffs- 
Appellees 

 



  
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IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PIFTH CIRCUIT 

  

No. 76-1865 

  

DELORES NORWOOD, et al., 

Plaintiffs-Appellees, 

VS. 

D.L. HARRISON, et al., 

Defendants-Appellants. 

  

CERTIFICATE OF COUNSEL 
  

The undersigned counsel of record for appellees 

certifies that the following listed parties have an 

interest in the outcome of this case. These representa- 

tions are made in order that Judges of this Court may 

evaluate possible disqualification or recusal pursuant 

to Local Rule 13(a). 

1. The N.A.A.C.P. Legal Defense Fund; 

2. Anderson, Banks, Nichols and tential 

3. The Mississippi Textbook Purchasing Board; 

4. In their official capacity, defendant members of 

the Mississippi State Textbook pl Board. 

  

MELVYN R. LEVENTHAL 

Attorney of Record for 

Appellees. 
  

1/ Neither attorneys' fees nor costs were paid by any of 
the plaintiffs. 

wile 

SRER AGE BA CY SE 

 



  

  

  

  

    

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PIFTH CIRCUIT 

  

No. 76-1865 

  

DELORES NORWOOD, et al., 

Plaintiffs-Appellees, 

V. 

D.L. HARRISON, SR., et al. 

Defendants-Appellants. 

  

On Appeal from the United States District Court 
for the Northern District of Mississippi 

  

BRIEF FOR PLAINTIFFS-APPELLEES 

  

Statement of the Case and Facts 
  

I. 

This action, now six years old, successfully 

challenged a Mississippi statute providing textbook 

assistance to schools engaging in racially discrim- 

inatory policies and practices. In summary, a 

three-judge district court upheld the statute, the 

Supreme Court reversed, on remand the three-judge 

 



  

  

  
  

district court was dissolved, and Judge Keady entered 

orders effectively terminating state textbook assistance 

to private segregationist academies; the final order 

from which defendants now appeal, reported at 410 F.Supp. 

133, awarded plaintiffs' costs of $4999.44 and attorneys 

fees of 82,000 5 The fee award was based upon §718 of 

the Emergency School Aid Act [20 U.S.C. §1617].410 F.Supp. 

at 137. 

Ii. 

Immediately following the hearings in the district 

court through which each private academy seeking textbook 

aid was evaluated, plaintiffs filed a motion for an award 

of attorneys' fees, two affidavits of counsel in support 

thereof, and a bill of costs. (A. 47-67) The 

district court granted plaintiffs motion for fees, in an 
: 2/ 

amount somewhat less than what plaintiffs sought, and 

costs. 410 F.Supp. at 141-42, and n.10; at p.137 n.2. 

Defendant state officials appeal seeking relief from this 

judgment. 

1x1. 

Significantly, but predictably, defendants do not 

contest the amount of the award. Rather they argue, 

  

1l/ The reported decisions tell the whole story: 340 
F.Supp. 1003 (three-judge district court) (N.D. Miss.1972); 
vacated, 413 U.S. 455 (1973); on remand, 382 F.Supp. 921 
(N.D. Miss. 1974); 410 F.Supp. 133 (N.D. Miss. 1976). 

  

2/ Through affidavits of counsel plaintiff sought $31,379. 
in fees; the district court awarded only $23,852. 

  

a A Bl ae al Ts Am i SA RA aE a aN Le Gh RAE a Sa lm RR Es ait A ES



  

  

in effect, that state agencies have the right to collect 

costs and money judgments when they prevail but are 

ng from such judgments, under the Eleventh Amendment, 

when they lose; _i.e,, §718 is unconstitutional. 

(Heads-I-Win Tails-You-Lose). In addition, they argue 

that §718 [20 U.8.C. $1617] of the Emergency School Act 

of 1972, does not apply to cases wherein defendants acted 

in "good faith" and merely enforced a state statute 

defining their duties. Finally, they argue that the 

State of Mississippi is a necessary party to the judgment 

- an issue raised for the first time on this appeal. 

All of these arguments are frivilous. 

ARGUMENT I 
  

Defendants have properly noted in their brief: 

On April 20 and 21, 1976, the Supreme 

Court heard oral argument in Bitzer wv. 

Matthews .... The principal issue 

in that case is whether the Eleventh 

Amendment prohibits an award of 

attorneys' fees against the defendant 

state officials because those fees 

are to be paid out of the state 

treasury. The decision of the Supreme 

Court in Bitzer will be relevant to 

the merits of this appeal and may be 

dispositive thereof. (Brief for 
Defendants-Appellants, p.18). 

  

  

Bitzer v. Matthews [under the caption, Fitzpatrick v. 
  

  

Bitzer] has been decided, 44 L.W. 5120 (June 28, 1976), 

and is, indeed, dispositive. There a federal district 

 



  

court found violations of Title VII [42 U.S.C. §2000e] by 

the State of Connecticut, but felt impelled by the 

Eleventh Amendment, as construed in Edelman v. Jordan, to 
  

deny compensatory damages and attorneys' fees. The 

Second Circuit Court of Appeals agreed that the Eleventh 

Amendment precluded compensatory damages but reasoned, as 

did Judge Keady here, that attorneys' fees had only an 

"ancillary effect" upon the state treasury and hence could 

be awarded. The Supreme Court stated the issue thusly: 

whether as against the shield of 

sovereign immunity afforded the 

State by the Eleventh Amendment, 

Edelman v. Jordan. . ., Congress 

has the power to authorize 

federal courts to enter such an 

award [money damages and 

attorneys' fees] against the 
State as a means of enforcing 

the substantive guarantees of the 

Fourteenth Amendment. 

  

The Court answered unanimously in the affirmative: 

Title VII entails a congressional intent to "abrogate the 

immunity conferred by the Eleventh Amendment;" (44 LW at 

5122) the power to so abrogate derives from the Fourteenth 

Amendment which implicitly provided for the "diminution of 

state sovereignty," theretofore assured by the Eleventh 

Amendment. (44 LW at 5122-23) Title VII's provision for 

awards of back pay and attorneys' fees against state 

 



agencies is therefore constitutional. 

  

Fitzpatrick is not distinguishable from the instant 
  

| case. 20 U.S.C. §1617 (§718 of the Emergency School Aid 

| Act of 1972) provides for awards of attorneys' fees when 

proceedings are brought to enforce the guarantees of the 

Fourteenth Amendment; that's the exact kind of statute 
| 3/ 

- upheld in Fitzpatrick. 
  

  

3/ Although Fitzpatrick is more than enough for plaintiffs- 

appellees to prevail in this appeal, it should be noted 

that any other result leads to state agencies, upon 

prevailing, recovering costs without having to concern them- 

selves with comparable judgments when they lose. This and 

other considerations lead Judge Keady to conclude that the 
| "proper functioning of the judicial process" is gravely 

threatened by the spectre of state agencies claiming 

| immunity from judgments vindicating constitutional rights. 

; 410 F. Supp. at 136-37. Mr. Justice Stevens has "great 

| difficulty" with such a result. 44 LW at 5124. Mr. Justice 

; Brennan wonders why we find ourselves in this quagmire in 

light of the clear language of the Eleventh Amendment exclud- 

ing from its coverage suits brought by citizens against their 

own state. 44 LW at 5123. See also, Gates v. Collier, 522 

F. 2d 81, 83-84 (Judge Tutle, dissenting). 

  

  

It should also be noted that the issue of whether an 

award of fees may be upheld under the "ancillary effect" 
principle has not been:resolved in this Circuit. See, 410 

F. Supp. at 136, n.l. The Supreme Court pretermitted this 

issue in Fitzpatrick. 44 IW at 5123. 
  

 



  

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II 

Defendants also assert that 20 U.S.C. §l617 should not 

apply unless defendants have engaged in "purposeful action 

with actual or constructive knowledge of its discriminatory 

impact;" they argue that Senator Mondale's reference to the 

transfer of textbooks to private schools "nicely illustrate(s) 

this key distinction," since he was referring to "to cases 

in which local school officials transferred state owned 

textbooks to private schools . . . established to avoid the 

desegregation process. Such action(s] by local school 

officials were in violation of state law or regulation, and 

the persons who committed such acts were chargeable with 

knowledge of their illegal and discriminatory effects." 

Brief for Defendants-Appellants, pp. 28-29. 

Although this distinction was properly rejected as a 

matter of law by the district court, relying upon Northcross 
  

v. Board of Education, 412 U.S. 427, 428 (1973), 410 F. Supp.   

at 141, defendants were infact, active participants in the 

transfer of textbooks to private academies. The following 

memorandum to all Superintendents of Education was circulated 

by defendant Executive Secretary of the Textbook Board on 

December 4, 1969: 

 



  

Subject: Textbooks for Private Schools. 

We have many disturbed parents since the 
Court decisions. Many of them are going 
to organize private schools, and they 
are going to need books. 

Since all the money has been allotted for 
this year, it will be necessary for the 
superintendents to transfer books with 
the student as he transfers to the 
private school. . . . 

We appreciate your cooperation in this 
difficult situation. (Snowden Deposi- 
tion, June 28, 197), Bxhibit 1) 4/ 

As a result of this memorandum the textbooks used by white 

students fleeing public integrated education throughout the 

State were transferred from public schools to private segre- 

gationist academies in January, 1970. It follows that de- 

fendants herein, not local school officials, effected the 

unlawful result of concern to Senator Mondale and the subject 

of §1617. 

  

4/ This deposition and exhibit were a part of the record 
in the district court and Supreme Court; they have been 
omitted from the record on this appeal. 

 



  

te dt Ee 8 som ot A MH A rl lt he AEE mt nl a WA AEE Si i 

Ii 

Defendants also argue that the State of Mississippi 

is an indispensable party to these proceedings, an issue 

raised for the first time on this appeal, but, in any event, 

without merit. 

Defendants are the members of the Mississippi 

Textbook Purchasing Board and their executive secretary. The 

Board was established by state law to in all respects ad- 

minister and control the state's textbook program. The Board, 

inter alia, enters into contracts for the purchase of textbooks 
  

and is responsible for a "State Textbook Fund," which includes 

all monies appropriated by the legislature for the textbook 

program. §37-43-19, §37-43-41, Miss. Code, 1942. The award 

made by the district court will derive from this defendant 

controlled fund. 

Of course, all of the cases cited by defendant in 

support of the notion that the State of Mississippi is an 

indispensable party included neither the relevant state nor 

any of its agencies as parties defendant. Such cases are 
  

therefore inapposite. 

CONCLUSION 
  

For the foregoing reasons the district court's 

judgment of March 2, 1976 (A. 107) should be summarily 

affirmed on the basis of the district court opinion reported 

 



    

at 410 F.Supp. 133 and the decision of the Supreme Court 

in Pitzpatrick v. Bitzer, 44 IW 5120. 
  

Respectfully submitted, 

gra! 0 36 a 
~ JACK \GREENBERG 
MELVYN R. LEVENTHAL 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

  

FRED L. BANKS, JR. 

538% North Farish Street 
Jackson, Mississippi 39202 

Attorneys for Plaintiffs- 
Appellees 

CERTIFICATE OF SERVICE 
  

The undersigned certifies that copies of the foregoing 

Motion For Summary Affirmance and Brief for Plaintiffs- 

Appellees was served on counsel for Appellants by United States 

mail, postage prepaid, this 22nd day of September, 1976 as follows: 

Peter M. Stockett 
Assistant Attorney General 
Department of Justice 
Office of the Attorney General 
Jackson, Mississippi 39205 

  

gi R. LEVENTHAL [||af671553-8c65-4423-96af-2636f1528417||]