Beckett v. School Board of the City of Norfolk, Virginia Brief for Appellants

    IN THEJHniieb ̂ States Court of appeals
FOR THE FOURTH CIRCUIT

No. 71-1900

LEOLA PEARL BECKETT, et al,
Appellants,

V.

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

Appellees.

Appeal from the United. States District Court for 
the Eastern District of Virginia at Norfolk

BRIEF FOR APPELLANTS
HENRY L. MARSH,III 
S. W. TUCKER 
JAMES W. BENTON, JR.
HILL, TUCKER & MARSH 

214 East Clay Street 
Richmond, Virginia 23219

VICTOR J. ASHE 
Plaza One
Norfolk, Virginia 23510

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN CHACHKIN

10 Columbus Circle,
Suite 2030
New York, New York

10019



1
TABLE OF CONTENTS

Page

Issues Presented for Review . . . . . . . . . . .
Statement of the Case . . . . . . . . . . . . . .
Statement of the F a c t s ................... ..
Argument .   . . . . . . . . . . . .

I . The Lav; Of The Case Required The
Application Of The Common Fund Doctrine 
With Respect To The Funds The School 
Board Should Have Paid For Transporta­
tion During 1971-72 And With Respect 
To The Funds Thereafter Paid And To Be 
Paid For Such P u r p o s e ................. . 5

II. The Hourly Rate On Which The District 
Court Based The Award Of Attorneys'
Fees Is Inadequate . . . . . . . . . . . . 1 1

Conclusion . . . . . . . . . . . . . . . . . . . . .  14

TABLE OF CITATIONS 
Cases

Brewer v. School Board of the City of Norfolk,
456 F. 2d 943 (4th Cir; cert. den. May
15, 1972, 32 L. Ed 2d 136) . . . . . . . . .  5,7

Derdiarian v. Futterman Corp., 254 F. Supp.
617 (S.D. N. Y. 1966) . . . . . . . . . . . .  8

Fox v. Glickman Corp., 253 F. Supp. 1005
(S.D. N. Y. 1966) . -........... 8

Graham v. Dubuque Specialty Machine Works, 138
Iowa 456, 14 N. W. 619 (1908) . . . . . . . .  8

Lindy Bros. Bldrs., Inc. v. American Radiator,
& Standard Sanitary Corp., 341 F. Supp.
1077 (1972) .............  . . . . . . . . . .  8

Mardel Securities Inc. v. Alexandria Gazette,
278 F. Supp. 1010 (E.D. Va. 1967) ...........8

McKittrick v. Gardner, 378 F. 2d 872 (4th 
Cir. 1967) . 9,10

H (M ro in



11

TABLE OF CITATIONS 
Cases

Page

Newman v. Alabama, 349 F. Supp. 278 (M.D.
Ala. 1 9 7 2 ) ..........     11

Newmark v. RKG General Inc., -332 F. 'Supp. 161
(S.D. N.Y. 1 9 7 1 ) ..................... . . 8

Sprague v. Ticonic Bank, 307 U.S. 161 (1939) . . .  5

Tanzer v. Huffines, 345 F. Supp. 279 (D.C.
Del. 1972) . . . . . . . . . .    8

Wyatt v. Stickney, 344 F. Supp. 387 (M.D.
Ala. 1972) . . . . . . . . .  ..............  11

OTHER AUTHORITIES
18 U.S.C. §3006A(d) , . 11



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 71-1900

CARLOTTA MOZELLE BREWER, et al,

Appellants,

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

Appellees.

Appeal from the United States District Court for 
the Eastern District of Virginia at Norfolk

BRIEF FOR APPELLANTS

ISSUES PRESENTED FOR REVIEW 

I

Does the law of this case require that the 

Counsel fee award be based on the application of the 

common fund doctrine with respect to the funds the 

School Board should have paid for transportation during 

1971-72 and with respect to funds thereafter paid and 

to be paid for such purpose?



2 .

II

If the award should be calculated on an hourly 

rate basis, is the rate employed by the District Court 
inadequate?

STATEMENT OF THE CASE

This action was commenced on May 10, 1956 by 151 

black children and their parents seeking the integration 
of the Norfolk, Virginia public school system. After 
extensive litigation, the school system was finally 
desegregated at the commencement of the 1971-72 school 
year. A statement of the early history of this litigation 
is found in Appendix II herein.

After the March 7, 1972 opinion of this court, 
which required of the school board (1) an amendment of its 
plan of desegregation to provide free transportation for 

students assigned to schools located beyond reasonable 

walking distance of their homes and (2) the payment of 

a reasonable fee to plaintiffs’ attorneys for securing 

such amendment, the school board secured a stay of the 

mandate from this Court and on April 13, 1972 filed a 

petition for a writ of certiorari in the Supreme Court of 

the United States. The petition challenged the free 

transportation and the counsel fee aspects of this Court's 

decision. Plaintiffs’ motion to vacate the stay and brief

in opposition to certiorari were filed on April 19, 1972. 
On May 15, 1972, the Supreme Court vacated the stay and



3.
denied the petition for certiorari.

The March 7, 1972 decision of this Court was 

remanded to the District Court on May 24. 1972. On June 

13, 1972 the Court entered an order joining the Norfolk 
City Council as party defendant.

On June 22, 1972 the school board filed an amend­

ment to its desegregation plan indicating that arrangements 

had been made with the Virginia Transit Company to trans­

port 25,000 school children for the 1972-1973 school year 

at a cost of $1,575,000 and further that the City Council 

had already appropriated and set aside the $1,575,000.

Plaintiffs took no exception to the plan and on 
July 5, 1972 an order, endorsed by all counsel, was 

entered approving the School Board plan for the required 

free transportation for the 1972-73 school year.

A trial was held on the counsel fee question on 

October 25, 1972. On January 24, 1973 the District Court 

entered an order awarding plaintiffs' counsel fees total­

ling $14,301 plus expenses totalling $2,759.86. Plaintiffs' 

Notice of Appeal was filed on February 12, 1973.

STATEMENT OF FACTS

During the 1971-72 school year, the first year of 

operation under the current desegregation plan, Norfolk 

pupils had been transported to school by the Virginia



4 .
Transit Company. To receive this transportation, the 

pupils were required to pay 35ji per day or $6 3 per year 

for the 180-day school year. At least 23,500 pupils paid 

an aggregate exceeding $1,480,500 for transportation 

during 1971-72 (A. 8; XIV Tr. 228-9) .

The amendment to the school board's plan provided 

for the transportation of 25,000 pupils for the 1972-73 

school year by .the Virginia Transit Company at a cost of 

$1,575,000 (A. 8). This figure is based on a cost of 

$63 per pupil. In all other respects the school assign­

ment plan was the same as it had been during the 1971-72 
school year.

The court below found that plaintiffs' counsel 

expended a total of 476.7 hours exclusively on the issueV
of free transportation . That findincr is not challenged

2/
here

1/
The Court declined to credit time spent develop­

ing the issue of transportation and expressly limited the 
time to that involving free transportation.

2/
The District Court held that plaintiffs' counsel 

first participated in the issue of free transportation on 
May 7, 1969 (A. 19). Since that time, plaintiffs' 
counsel have expended 2,553 hours on the instant case. 
Plaintiffs' contention was that all such hours should be 
counted since the free transportation issue was 
inseparably bound to the issue of racially non-discrimina- 
tory assignments. That contention was rejected by the 
District Court.



5 .

ARGUMENT

I

The Law Of This Case Required The Application Of The 
Common Fund Doctrine With Respect To The Funds The 
School Board Should Have Paid For Transportation 

During 1971-72 and With Respect To The Funds 
Thereafter Paid And To Be Paid For Such Purpose

When this case was last here, this Court, in 

unanimous disagreement with the district judge, held 
"that the school district as a part of its plan of 

desegregation, must provide a practical method of provid.- 

ing free busing for students assigned to schools beyond 

normal walking distance of their homes" (456 F. 2d at 

948); and as a corollary to that holding, this Court 

directed the district court "to award reasonable attorneys' 

fees to plaintiffs1 attorney as a part of the taxable 

costs herein for their services in securing an amendment 

in the plan of desegregation to provide such free trans­

portation i: (456 F, 2d at 952; cert den May 15, 1972,

32 L. ed 2d 136). This Court recognized "a unique feature 

of the case, involving at least a quasi-application of the 
'common fund' doctrine" (456 F. 2d at 951) and found 

"'dominating reasons' under the 'exceptional circumstances' 
of this case to award attorneys' fees for the services of 
plaintiffs 1 attorneys in securing for these students this 

pecuniary benefit" (Id. at 952; emphasis by the Court).



6 .
Sharply rejecting this Court's adaptation of the 

“common fund" doctrine and its explanation that "[t]he 

students have secured a right worth approximately $60 per 

year to each of them" (Id. at 9 51) , the district judge 

ruled that "no fund existed before suit, after suit, by 

law, or otherwise" (A. 15) and that "there is no ‘fund’ 

to which the contingency arrangement can be applied”

(A. 14). The thesis of the district judge Is that 

reliance (as this Court relied) on Sprague v. Ticonic 

Bank, 307 U.S. 161 (1939), was misplaced (A. 14).

In Sprague, the fund was the proceeds of sale of 

bonds which had been earmarked and set aside in the trust 

department of the Ticonic National Bank to secure trust 

funds, held for petitioner and similar depositors, await- 

ing investment or disposition. The petitioner asserted 

(and the Court agreed) that "she had established as a 

matter of law the right to recovery in relation to 

fourteen trusts in situations like her own * * * and she 

therefore prayed the court for reasonable counsel fees 

and litigation expenses to be paid out of the proceeds of 

the bonds." (307 U.S. at 163). Here, this Court found 
that the plaintiffs had "secured for the students of 

this school system . . .  a right of direct pecuniary



7 .

benefit * * * worth approximately $60 per year to each 

of them”. (456 F. 2d at 951).

This Court's earlier opinion holds that the school 

district is required "to supplement its provision of free 

transportation with payment of an appropriate attorney1s 

fee to plaintiffs' attorneys for securing the addition of 

such a provision to the plan of desegregation” (456 F. 2d 

at 952). The plaintiffs go further and suggest that 

the affected students clearly have a right to recover 

from the public fisc the expense of transportation 

borne by them or their families during the 1971-72 

school year when the right to free transportation was 

being litigated. As was observed by the Court in 

Sprague, "the formalities of the litigation . . . hardly

touch the power of equity in doing justice as between a 

party and the beneficiaries of his litigation" (307 U .S . 

at 167). The-readily available "fund" from which 

plaintiffs' attorneys can be paid reasonable attorneys’ 

fees is the sum estimated at $1,480,500 for which the 

school board is presently liable for transportation 

during 1971-72. (Refer to Appendix 8, showing that an 

estimated 23,500 children were requiring transportation 

prior to June 22, 1972 and that $1,575,000 was being 

budgeted to provide transportation for 25,000 children 

in 1972-73.)



Holding to his contradiction of this Court's find­

ing that this case required at least a quasi-application 

of the common fund doctrine, the district judge entirely 

avoided the impact of the line of cases wherein the 

fee awarded ranged from 5% to more than 25% of the 
fund, e .g .:

Mardel Securities, Inc. v. Alexandria Gazette 
Corp., 278 F. Supp. 1010 (E.D. Va. 1967)

Lindy Bros. Bldrs. , Inc. v. Airier. Radiator &_ 
Standard Sanitary Corp., 341 F. Supp.
1077 (E.D. Pa. 1972)

Fox v. Glickman Corp., 253 F. Supp. 1005 
(S.D. N. Y. 1966)

Derdiarian v. Futterman Corp., 254 F. Supp.
617 (S.D. N. Y. 1966)

Newmark v. RKO General Inc., 332 F. Supp. 161 
(S.D. N. Y. 1971)

Tanzer v. Huffines, 345 F. Supp. 279 
(D.C, Del. 1972)

Graham v. Dubuque Specialty Machine Works,
138 Iowa 456, 14 N.W. 619 (1908)

Noting that plaintiffs' counsel have received some com­

pensation from a volunteer source for some of the many
3/

aspects of this long protracted litigation , the

3/
Schedules A and A-l reveals that the total 

number of hours rendered by plaintiffs' counsel since 
1953 totalled more than 4,505.



9 .
district judge, citing McKittrick v. Gardner, 378 F. 2d 

872 (4th Cir. 196 7) , concluded that "contingent fees are,- 

for the most part, allowed only to counsel who would other 

wise received no compensation unless an appropriate 

pecuniary award ultimately benefits his plaintiff" (A. 15) 

McKittrick does say that "if a lawyer is to receive no 

compensation unless there is an award, his compensation 

is contingent whether or not he has a contract that says 

so" (378 F. 2d at 875). That dictum does not negate the 

contingent nature of the employment when, as here, the 

guaranteed "compensation" is a mere contribution in 

partial reimbursement for overhead and out-of-pocket 

expenses made by an agency which is not a party to the 

litigation.

It would seem that even if there had been "other 

compensation", such defense (with which the district 

court credited the school board) would be allowable only 

if such "other compensation" had been paid by one or 

more of the plaintiffs, or by the school board for them, 

under an agreement with plaintiffs! attorneys that such 

was or would be payment in full. No such contract with 

the plaintiffs or any other person or agency has been 

made or may be inferred here. The original complaint 

prayed and every subsequent motion for further relief 

has prayed for the allowance of a proper fee for 
plaintiffs’ counsel.



10.
In McKittrick, the Secretary of the Department of 

Health, Education and Welfare objected to a routine 

allowance of attorney fees of 25% to lawyers representing 

claimants to social security benefits. Pointing out that 

the judge must approve the reasonableness of the fee in 

every such case even though a contract for twenty-five 

percent of the accrued benefits may have been made between 

the claimant and his attorney, the Court made some general 

observations which are applicable here.

"Availability of lawyers to such claimants 
is of the highest importance, and if a 
lawyer is to receive no compensation 
unless there is an award, his compen­
sation is contingent whether or not he 
has a contract that says so. * * * The 
contingency of compensation, whether it 
stems from an employment contract or 
results from the claimant's indigency, 
is highly relevant In the appraisal of 
the reasonableness of any fee claim.
The effective lawyer will not win all 
of his cases, and any determination of 
the reasonableness of his fees in those 
cases in which his client prevails must 
take account of the lawyer's risk of 
receiving nothing for his services.
Charges on the basis of a minimal 
hourly rate are surely inappropriate 
for a lawyer who has performed creditably 
v/hen payment of any fee Is so uncertain."
(378 F. 2d at 875).



'll.
II

The Hourly Rate On Which The District Court 
Based The Award Of Attorneys1 Fees Is 'Inadequate

Even if charges on the basis of an hourly rate 

had been appropriate here, the rate applied by the district 

court was inadequate. Following the reasoning and 

language of Wyatt v. Stickney, 344 F. Supp. 387, 410 

(M.D. Ala. 1972), and Newman v. Alabama, 349 F. Supp. 278 

(M.D. Ala. 19 72) , and having extended the following 
accolade;

!,The Pro boftQ publico aspects of this 
litigation and its acceptance and prose­
cution on that basis by dedicated 
counsel, devoted to their cause, is 
well known and this court is grateful 
for that service" (A. 27, 28),

the district court adopted the rate of $30 an hour for
all of plaintiffs1 attorneys1 services, that being the

maximum amount allowable under the Criminal Justice Act

unless such maximum be specially waived for "extended

or complex representation" or other cause (18 U.S.C.

§3006A. (d) ) .

In so limiting the rate of compensation t o .that 

which has been recognized by the Congress as being below 
normal levels of compensation in legal practice (A, 27) , 

the district court obviously accorded no weight to 

familiar relevant factors which it recited in its



12 .
opinion and found- to be present in the instant case 

(A. 15, 16), viz: the legal intricacy of the free trans­

portation issue; the degree of competency displayed by 

counsel; the benefit resulting from the decision on 

that issue; and the overall nature of the litigation.

None of these factors served to raise the hourly rate 

above that which the Congress and the courts apolo­

getically admit is inadequate compensation for the burden 

of defending indigents accused of crime which, with some 

degree of uniformity, members of the bar must bear.

The only reasons given by the court, for its 

failure to give effect to these relevant factors by 

appropriately increasing the acknowledged sub-minimal 

stipend, appear to be counsel’s admission that if 

necessary they would handle such cases on a gratis 

basis (A. 28) and the court’s conclusion that compensation 

here is to be gauged by the original nature of the. cs.se 

(Id); "original" being read as used with reference to 

the original fee arrangement. These considerations 
resulted in the court's transferring the plaintiffs' 

attorneys' compassion for their oppressed clients into an 
enforced compassion for the oppressors and, in effect,



13 .
imposed on plaintiffs' attorneys a penalty for their

4/
empathy toward the plaintiff class

The district court expressed its: gratitude for the 

dedication of the plaintiffs' attorneys to "their" cause 

and rewarded them at a rate admittedly below normal levels 

of compensation in legal practice. The tangible expression 

of gratitude may have been in greater measure had the 

court viewed the "cause" for which the plaintiffs ' 

attorneys had manifest their dedication as the "cause" 

of the Nation and of all of its ministers of justice who 

guard the Constitution. This is not to argue that the 

defendants should pay at a rate exceeding that normally 

charged in.the profession. Counsel employed by the

4/
"THE COURT: I think that is to your credit.

I think it is magnificent that you do things like that. 
Everybody knows that you have to do it. I would think 
in connection with your representation of people in the 
area of civil rights and whatnot it is a known fact that 
many people you represent don't have the money to apply 
to pay fees, and it has to be on the basis of a great 
deal of charitable endeavor. I am not going to charge 
you with a charitable endeavor in this case.

"MR. MARSH: We object because his argument is 
going to be that since our -- we customarily represent 
poor people we should be held to the rate we normally 
get.

"MR. DONN: That is not going to be our argument.

"THE COURT; If he wants to argue that, I am not 
going to pay any attention to it. * * *"
(Tr. October 26, 1972, pp. 35-36)



14.
5 /

defendants for this case showed that they reduced their

customary charge to commercial clients for comparable6/
services to $35 or $40 an hour . The plaintiffs' 

attorneys showed that in cases similar to the instant one 

they had billed school boards and defendant companies in 

Title VII and housing litigation at rates ranging from 
$50 to $100 an hour. Here we argue that if an hourly 

rate should govern, the rate should be that normally 

charged by the profession with full consideration given to 
all of the relevant factors.

CONCLUSION

The plaintiffs seek an award of reasonable 

attorneys' fees pursuant to this Court's March 7, 1972 

holding that the case involves at least quasi-application

5 /
Defendants' Exhibit No. 2 (Memorandum Re;

Counsel Fees, pp. 9, 10).

6/
Letter of September 21, 1972 to District Judge 

marked "Personal and Confidential" and captioned "Response 
to Supplemental Answer to Interrogatory No. 4"; the perti­
nent part of which reads; "At the August 1, 1972 hearing, 
counsel for the School Board agreed to stipulate that the ‘ 
hourly rate charged by them for their services in this 
case was a fair and reasonable rate. For the information 
of the Court, Mr. Toy D. Savage, Jr’s, charges, to the 
Board were at the basic rate of $35 per hour for out of 
court work and $40 per hour for court work. During the 
initial months, he charged $25 per hour for a substantial 
amount of research time."



15.
of the “common fund" doctrine and this Court's finding 

that the students have secured a right worth approximately 

$60 per year to each of them. The Court is asked to con­

sider the fact that in 1971-72 students spent nearly one 

and one-half million dollars for transportation costs 

which the school board should have paid. The plaintiffs 

urge the Court to make or insure an award bearing a ratio 

to the total pecuniary benefit here which will be com­

parable to that generally found in cases where the “common 

fund" doctrine mandates awards of attorneys' fees.

Respectfully submitted,

May 7, 1973.

S. W. TUCKER 
HENRY L. MARSH, III 
JAMES W. BENTON, JR.
HILL, TUCKER & MARSH 

214 East Clay Street 
Richmond, Virginia 23219

VICTOR J. ASHE
Suite 704 - Plaza One
St. Paul's Boulevard & Plume Street
Norfolk, Virginia 23510

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN CHACHKIN

10 Columbus Circle, Suite 2030 
New York, New York 10019

Counsel for Appellants



A P P E N D I X  II



App. 1

The History Of This Litigation

In this seventeen-year-old litigation to 

desegregate the Norfolk, Virginia public schools, the 

reported opinions are numerous. Nearly every conceiv­

able tactic to delay, frustrate or avoid the mandate of

Brown Board of Education, 347 U.S. 483 (1954) has 
been raised.

After uhe complaint was filed in 1956, all action 
was deferred pending the holding of a planned special 

session of the Virginia Legislature on the subject of 

school integration, and then again pending the effective 

date of the massive resistance" legislation passed at 

the special sessIon. Oil January 11, 1957 , the district 

court denied the school board's motion to dismiss, and 

on February 12, 1957, the district court entered an 

injunction against the school authorities restraining 
them from:

"refusing, solely on account of race or 
color, to admit to, or enroll or educate 
in, any school under their operation, 
control, direction or supervision, directly 
or indirectly, any child otherwise quali­
fied for admission to, and enrollment and 
education in such school."

Beckett v. School Board of City of Norfolk, 148 F. Supp. 

430, 2 Race Rel. L. Rep. 336 (E.D.Va.), both aff'd sub 
nom. School Bd. of City of Newport News v. Adkins, 246



App. 2

F„ 2d 325 (4th Cir.), cert, denied, 355 U.S. 855 (1957),

However; all proceedings ware again stayed pending dis­

position of appeals and petitions for certiorari. It 

was not until July, 1958 that the school board adopted 

pupil placement criteria and procedures. The board 

thereupon denied all 151 applications filed by black 

students to attend previously all-white facilities during 

.the 1958-59 school year. 3 Race Rel. L. Rep. 945 (1958). 

The district court ordered the board to reconsider and 

on August 29, 19o8, the board announced that seventeen 

of the transfer requests would be granted. 3 Race Rel.

L. Rep. 955 (1958). The board sought an additional 

delay in admitting the seventeen black students, but 
the district court denied it and the court of appeals 

affirmed, Beckett v. School Bd. of City of Norfolk,

3 Race Rel. Rep. 1155 (E.D. Va.) , aff’d 260 F.2d 18 

(4th Cir. 1958). On plaintiff's cross-appeal from the 

district court's refusal to order the admission of the 

remaining 134 students, the matter was remanded since 

the district court had indicated he would consider 

separately the validity and application of the criteria 

under which the applications were denied. The schools 

to which the seventeen black students were assigned, how­

ever, were closed, pursuant to Virginia's "school closing"



App. 3.
laws, rrom the fall of 1958 until February, 1959, when 
the laws and similar Norfolk City ordinances were 
declared unconstitutional in James v. Almond, 170 F. Supp. 
331 (E.D. Va. 1959; 3-judge court); Harrison v. Day, 200 
Va< 106 S .E .2d 636 (1959); James v, Duckworth, 170 F.
Supp. 342 (E.D. Va.), aff'd 267 F.2d 244 (4th Cir.), cert 
denied, 361 U.S. 835 (1959). At that time plaintiffs' 

supplemental 3-judge court complaint was dismissed as moot 
and late in the 1958-59 school year, the district court 
refused to overturn the board's denial of the 134 trans­
fer applications, holding its placement principles 
facially constitutional. Beckett v. School Bd. of City 
^Norfolk, 181 F. Supp. 870, 870-81 (E.D. Va. 1959), 
a'L d sub nom. Hill v. School Bd. of City of Norfolk, 2 82 
F.2d 473 (4th Cir. 1960). The district court subsequently 

permitted the board to assign pupils by these principles, 
although holding that the board need not utilize the pro­

cedures of the Virginia Pupil Placement Board in view of 

that agency's policy of not granting any transfer requests. 
Beckett v. School Bd. of City of Norfolk, 185 F. Supp.

459 (E.D. Va. 1959) , aff1d 181 F.2d 131 (4th Cir. I960)

During 1961 and 1962, the district court had occasion 

to review and overturn school board denials of black 

students1 transfer requests (unreported opinions) 

although there was no across-the-board attack on



App. 4.
assignment procedures. However, when in 1963 the 

plaintiffs filed a motion for further relief, the board 

discarded pupil placement and proposed what has come to 

be known as the "Norfolk choice" plan— transfer between 

blacjc and white schools located within the same attendance 

area. This plan vras approved by the district court and 

on plaintiffs’ appeal the court of appeals reversed and 

remanded for reconsideration in light of its then recent 
decisions in this field. The district court was specifi­

cally instructed to consider the legality or proprietv 

of superimposing a city-wide zone for all-black Booker 

T. Washington High School on all other city high school 

zones. Beckett v. School Bd. of city of Norfolk, 9 Race 

Rel. L. Rep. 1315 (E.D. Va. 1964), vacated and remanded 

sub norn. Brewer v. School Bd. of City of Norfolk, 349 

F.2d 414 (4th Cir. 1965). Proceedings subsequent to that 

remand and negotiations between the parties resulted in 

the entry of a consent order on March 17, 1966, approv­

ing a new desegregation plan. Beckett v. School Bd, of 

City of Norfolk, 11 Race Rel. L. Rep. 1278 (E.D. Va.
1966). Under that plan, reluctantly approved by the 

district court, there were multiple-school zones but at 
the high school level transfers between the three white 

high schools and Booker T. Washington High were permitted 
only to facilitate integration. The following year,



App. 5.

completion of Lake Taylor High School necessitated the

filing of an amended plan by the school board, proposing 

five high school zones, and allowing only Booker T. 

Washington students to transfer to schools outside their 

zone of residence. The district court reguired that 

transfer privileges be extended to all high school 

students but rejected plaintiffs' attacks upon the zone 

lines and upon the proposed replacement of Booker T. 

Washington High School on the same site. The court 

of appeals reversed and remanded, 'directing the district 

court to consider, with respect to both issues, whether 

segregated neighborhood patterns in Norfolk resulted 

from racial discrimination, of which the board was 

seeking advantage in its zone lines. Beckett v. School 

Bd. of City of Norfolk, 269 F. Supp. 118 (E.D. V a . 1967) , 

rev1 d sub nom. Brewer v. School Bd. of_ City of Norfolk, 

397 F.2d 37 (4th Cir. 1968) The district court found the 

appellate court's decision "vague and confusing." 302 F. 

Supp. at 20. Negotiations between the parties following 

the remand failed to produce agreement. As an interim 

plan for 1969-70 the school board proposed zone line 

changes between Lake Taylor and Booker T. Washington 

to increase integration, and similar changes between 

Maury and Granby. After hearings in the Spring of 1969, 

the district court approved the interim plan for 1969-70 .



App. 6.

Beckett v. School Bd. of City of Norfolk, 302P. Supp.

18 (E.D. Va. 1969). After extensive hearings in the Fall 

of 1969 on the long-range plan of desegregation for 

1970-71 and thereafter, the district court approved the 

school board's submission. Beckett v. School Bd. of 

City of Norfolk, 308 F. Supp. 1274 (E.D. Va. 1969). The 

court of appeals reversed and remanded stating that the 

plan, whereby 76% of the black elementary pupils would 

be assigned to 19 all-black schools, 40% of the white 

elementary pupils would be assigned to 11 white schools, 

57% of the black junior high pupils would be assigned to 

3 black schools, one all-white junior high school would 
remain, and segregated high schools would remain, was 

constitutionally impermissible. Brewer v. School Bd. 
of City of Norfolk, 434 F„2d 408 (4th Cir. 1970) . On 

remand the school board submitted a plan with results 

similar to those rejected by the court of appeals. The 

district court accepted the plan with certain modifi­

cations. Beckett v. School Bd. of City of Norfolk,

Civ. Action #2214 (E.D. Va. August 14, 1970). All 

parties except the United States appealed from the 

district court’s decision. The court of appeals delayed 

its consideration of the case pending this Court's 

decision in Swann v. Charlatte-Mecklenburg Board of 

Education, 401 U.S. 1 (1971) and companion cases.



App. 7.

Proceeding Subsequent To Swann

The court of appeals delayed consideration of 

the appeals from the district court's opinion of 

August 14, 1970 until the Supreme Court had rendered 

its opinion in the then pending case of Swann v. 

Charlotte-Mecklenburg Board of Education, 401 U.S. 1 

(1971). On June 10, 1971, sub nom. Adams v. School 

District No. 5 , 444 F.2d 99 (4th Cir. 1971) the court 

of appeals remanded to the district court with instruc­

tions to receive from the school board a new plan which 

would give effect to this Court's decision in Swann, 

supra, and Davis v. Board of School Commissioners of 
Mobile County, 401 U.S. 333 (1971).

On remand the school board's proposed new plan 

was approved, as modified, by order of July 28, 1971.

On August 25, 1971, in an order indefinitely staying 

its order of July 28, 1971, the district court allowed 

the school system to commence the 1971-72 school year 

under the 1970-71 plan on the ground that Executive 

Order No. 11615 (the "price freeze" order) "impeded" the 

undertaking of the Virginia Transit Company to transport 
children to school. On September 2, 1971, the court 

of appeals vacated the stay on the ground that "the 

School Board cannot avoid its constitutional duty to



App. 8.

desegregate the schools by pleading that the bus company 

might lose money because of the price freeze."

On September 5, 1971 the Chief Justice denied the 

school board’s application for a stay of the mandate of 

the court of appeals.

On September 27, 1971 the defendant-intervenors 

filed a motion in the Supreme Court of the United States 

for a stay of the order of the district court and the 

mandate of this Court. That motion was also denied by 

the Supreme Court.

On March 7, 1972, the Court of Appeals decided 

the appeals of the black plaintiffs and the white 

intervenors and held that the district court had properly 

approved the plan. The Court also held that the Board 

was required to provide free transportation to pupils 

who live beyond normal walking distance of their 

assigned schools and that the board must pay fees to 

the plaintiffs' attorneys for their service in securing 

free transportation for the students. Brewer v. The 

School Board of the City of Norfolk, 456 F .2d 943 (4th 

Cir. 1972).
On April 3, 1972, the United States Court of 

Appeals for the Fourth Circuit granted the school board's 

motion of March 22, 1972 to stay the mandate from this



App . 9 .

Court. On April 13, 1972 the school board filed with 

the Supreme Court of the United States a petition for 

a writ of certiorari which challenged the free trans­

portation and counsel fee aspects of this Court's 

March 7, 1972 decision. Plaintiffs' brief in opposition 

to certiorari, and motion to vacate the stay were filed 

on April 19, 1972. On May 15, 1972, the Supreme Court 

of the United States vacated the stay and denied the 
petition for certiorari.

After the case was remanded to it, the district 

court on June 13, 1972 granted plaintiffs' renewed 
motion to join the Norfolk City Council as a party 
defendant.

The school board on June 22, 1972 filed an amend­

ment to its desegregation plan indicating that arrange­

ments had been made with the Virginia Transit Company 

to transport to and from school 25,000 school children 

for the 1972-73 school year at a cost of $1,575,000 

which had already been appropriated by the Norfolk City 

Council. Plaintiffs took no exception to the plan, and 

on July 5, 1972 an order, endorsed by all counsel, was 

entered approving the amended plan to operate the Norfolk 
Public Schools for the 1972-73 school year.

The exception which plaintiffs on June 16, 1972 

had reserved was filed on July 20, 1972 when plaintiffs



App. 10-

objected to the school board's proposal to convert 

Goode School to a transition school- A hearing on the 

proposal was held in the United States District Court 

in Norfolk on August 3, 1972 and was concluded by the 

Court's ruling which approved the conversion of Goode 
School.

On October 26, 1972, a hearing was held in the 

district court on the question of an award of counsel 

fee to plaintiffs' counsel. The district court's 

Opinion and Order, which awarded plaintiffs’ counsel 

fees totalling $14,301.00 and expenses amounting to 

$2,759.86, was filed on January 24, 1973. Plaintiffs 
on February 12, 1973 filed an appeal from that order. 

On February 16, 1973 the school board, pursuant to the 
Court's January 24, 1973 order, deposited into the 

registry of the district court $17,060.86.