Northcross v. Memphis City Schools Board of Education Petition for Writ of Certiorari

    I k  th e

(tort of %  Imtrfc Stairs
O ctober T erm , 1972 

No.....................

D eborah A. N orth cross, et al.,
Petitioners,

vs.

B oard of E ducation oe th e  M em ph is  
C it y  S chools, et al.

petition  for a  w r it  of certiorari to th e  united  states 
court op appeals for th e  sixth  circuit

PETITION FOR W RIT OF CERTIORARI

J ack  Greenberg 
J ames M. N abrit , III 
N orman  J. C h a c h k in  
E ric S chnapper

10 Columbus Circle 
New York, New York 10019

Louis R . L ucas 
W illiam  E . C aldw ell

Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

Attorney for Petitioners



I N D E X

PAGE

Opinion B elow ......................_........................................ ......  1

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

Question Presented ...................................    2

Statutory Provisions Involved ___________ ___ _____ _ 2

Statement of the Case ............. ......................... ...............  3

Reasons eor Granting the W rit ................................... 5

Conclusion .....................     9

A ppendix.............      la

Table op A uthorities
Cases:

Brown v. Board of Education, 347 U.S. 483 (1954).......  7, 8

Clark v. Board of Education of Little Rock School 
District, 449 F.2d 493 (8th Cir. 1971), 369 F.2d 661
(8th Cir. 1966) ..... ....... ..................... ............. ....... .......  8

Cooper v. A llen ,------ F .2d ------- (5th Cir. 1972).......... . 8

Ford v. White, —— F. Supp.------  (S.D. Miss. 1972).... 8

Johnson v. Coombs,------F .2d -------  (5th Cir. 1972).....  6

Knight v. Auciello,------F .2d -------  (1st Cir. 1972).......  8

La Raza Unida v. V o lp e ,--------F. Supp. ------- (N.D.
Cal. 1972) 8



u

PAGE

Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th 
Cir. 1971) ..........................................................................  8

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970).— 8

N.A.A.C.P. v. Allen, 340 F. Supp. 703 (M.D. Ala. 1972) 8
Newman v. Piggie Park Enterprises, 390 U.S. 400 

(1968) ..................................     6

Ross v. Goshi,------F. Supp.-------- (D. Hawaii 1972).... 8

Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972)____ 8
Swann v. Charlotte-Mecklenburg Board of Education,

402 H.S. 1 (1971) ..............................................    3

Thompson v. School Board of Newport News, ------
F.2d ------  (4th Cir. 1972) ........ ...... ............... .............  6

Thorpe v. Housing Authority of Durham, 393 H.S.
268 (1969) .................................................................... 8

Wyatt v. Stickney, —— F. Supp. ------  (M.D. Ala.
1972) ...............     8

Other Authorities:

28 U.S.C. § 1254 ................................      2

42 H.S.C. § 1983 .................................... .................... .........  8

Federal Rules of Appellate Procedure 39 ..................... 4, 8

Section 718, Emergency School Aid Act of 1972 .....2, 5, 6,
7,8



I k  the

§>upmn? (fetrt of il}£ IHtuteh JitatTB
O ctober T erm , 1972 

No.....................

D eborah A. N orth  cross, et al.,
Petitioners,

vs.

B oard of E ducation of th e  M em ph is  
C ity  S chools, et al.

petition  for a w rit  of certiorari to th e  united  states

COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

The petitioners Deborah Northeross et al. respectfully 
pray that a writ of certiorari issue to review the order 
and judgment of the United States Court of Appeals for 
the Sixth Circuit entered in this proceeding on November 
24, 1972.

Opinion Below

The Court of Appeals issued no opinion in support of 
its order of November 24, 1972. That order appears in 
the Appendix hereto.

The Court of Appeals issued opinions at earlier stages 
in this proceeding on June 7, 1971, which is reported at



2

444 F.2d 1179, and on August 29, 1972, which is reproduced 
in the Appendix to the Petition for a Writ of Certiorari 
filed in No. 72-677. The District Court for the Western 
District of Tennessee issued opinions at earlier stages in 
this proceeding on May 1, 1970, reported at 312 F. Snpp. 
1150, and on December 10, 1971 and April 20, 1972, both 
reproduced in the Appendix to the Petition for a Writ of 
Certiorari filed in No. 72-677.

Jurisdiction

The judgment of the Court of Appeals for the Sixth 
Circuit was entered on November 24, 1972. This petition 
is filed within 90 days of that date. This Court’s juris­
diction is invoked under 28 U.S.C. § 1254(1).

Question Presented

Did the Court of Appeals err in denying plaintiffs costs 
and attorneys fees?

Statutory Provisions Involved

Section 718 of the Emergency School Aid Act of 1972, 
86 Stat. 235, provides:

S ec . 718. Upon the entry of a final order by a 
court of the United States against a local educational 
agency, a State (or any agency thereof) or the United 
States (or any agency thereof), for failure to comply 
with any provision of this title or for discrimination 
on the basis of race, color, or national origin in viola­
tion of title VI of the Civil Eights Act of 1964, or the 
fourteenth amendment to the Constitution of the 
United States as they pertain to elementary and sec­



3

ondary education, the court, in its discretion, upon a 
finding that the proceedings were necessary to bring 
about compliance, may allow the prevailing party, 
other than the United States, a reasonable attorney’s 
fee as part of the costs.

Statement o f the Case

This case was commenced over a decade ago to desegre­
gate the public schools of Memphis. The latest round of 
litigation derives from the decision of the Sixth Circuit 
Court of Appeals in 1971 directing the District Court to 
reconsider the desegregation plans for the Memphis public 
schools in the light of this Court’s decision in Swann v. 
Charlotte-MecldenVurg Board of Education, 402 U.S. 1 
(1971).

In April, 1972, after extensive hearings, the District 
Court ordered into effect a new desegregation plan to 
eliminate the vestiges of the dual school system in Memphis. 
Both plaintiffs and defendants appealed from the order of 
the District Court. On August 29, 1972 the Sixth Circuit 
ruled in favor of the plaintiffs on all questions, granting 
plaintiffs’ request for an order directing the District Court 
to prepare a timetable for further desegregation, and af­
firming over defendants’ objections the District Court’s 
order for the 1972-1973 school year. On February 20, 1973, 
this Court denied the school board’s petition for a writ 
of certiorari to review the decision of August 29, 1972. 
Board of Education of Memphis City Schools v. North- 
cross, No. 72-677.

Plaintiffs’ complaint, filed on March 31, 1960, expressly 
sought costs as part of the relief prayed for. On Sep­
tember 7, 1972, plaintiffs filed a timely Bill of Costs in



4

connection with the August 29 decision, pursuant to Fed­
eral Rule of Appellate Procedure 39(c). On October 25, 
1972, counsel for plaintiffs were first notified by the Clerk 
of the Sixth Circuit that the court had directed that costs 
not be taxed in favor of plaintiffs.1 On November 3, 1972, 
plaintiffs petitioned the Sixth Circuit for rehearing, and 
urged that the judgment and mandate of the court be 
amended to award plaintiffs their costs, including a reason­
able attorneys fee as part thereof.2 On November 24, 1972, 
the Court of Appeals denied the petition for rehearing 
and separately and expressly denied plaintiffs’ requests for 
costs and attorneys fees.

1 The majority opinion of the panel issued August 29, 1972, con­
tains no reference to the matter of costs. The words “no costs 
allowed” appeared at the end of the dissenting opinion and were 
not separately paragraphed. The transmittal letter of the Clerk 
of the Sixth Circuit, dated August 29, 1972, contained no mention 
of costs. The mandate of the Sixth Circuit, issued October 5, 1972, 
was not furnished to counsel for the parties. On October 13, 1972, 
plaintiffs’ counsel wrote to the clerk of the Sixth Circuit inquiring 
as to the disposition with respect to costs. On October 25, 1972, 
counsel for plaintiffs received a letter from the clerk stating that, 
“at the direction of the court,” no costs had been taxed in the 
mandate of October 5. Whether the clerk found this direction in 
the August 29 opinion or received it at some later time was not 
disclosed.

2 Because of the delay in notification the petition was accom­
panied by a motion for leave to file petition out of time. Defendants 
opposed the petition for rehearing on the merits thereof but did 
not question its timeliness.



5

REASONS FOR GRANTING THE WRIT

This is the first case to reach this Court arising under 
section 718 of the Emergency School Aid Act of 1972. 
Section 718 expressly authorizes the federal courts to 
award a reasonable attorney’s fee as part of costs to the 
prevailing party in school desegregation cases. The statute 
provides:

Upon the entry of a final order by a court of the 
United States against a local educational agency, a 
State (or any agency thereof) or the United States 
(or any agency thereof), for failure to comply with 
any provision of this title or for discrimination on the 
basis of race, color, or national origin in violation of 
title VI of the Civil Eights Act of 1964, or the four­
teenth amendment to the Constitution of the United 
States as they pertain to elementary and secondary 
education, the court, in its discretion, upon a finding 
that the proceedings were necessary to bring about 
compliance, may allow the prevailing* party, other than 
the United States, a reasonable attorney’s fee as part 
of the costs.

Section 718 became law on July 1, 1972.

In their petition for rehearing in the Court of Appeals 
seeking costs including a reasonable attorney’s fee, peti­
tioners explicitly called the court’s attention to section 718. 
Petitioners urged that the section clearly applied to the 
instant case, and that under the facts an award of legal 
fees was mandatorju The Sixth Circuit denied both costs 
and legal fees without opinion.

The decision reached by the Sixth Circuit in this case is 
at odds with contemporaneous decisions handed down in



6

Section 718 cases by the Fourth and Fifth Circuit Courts 
of Appeals. The opinions of those courts in Johnson v. 
Coombs and Thompson v. School Board of Newport News 
are reproduced in the Appendix hereto.

Both the Fourth and Fifth Circuits would require the 
award of attorney’s fees for services rendered after the 
effective date of the Act, regardless of when the action 
involved was commenced. Johnson v. Coombs, p. 2a; 
Thompson v. School Board of Newport News, p. 6a. In 
this case substantial services were rendered after the 
enactment of the statute on July 1, 1972; the appeal itself 
was argued on July 16, 1972.

While section 718 states that the federal courts “may” 
award attorney’s fees under the circumstances described, 
the Fifth Circuit correctly construed the statute to re­
quire the award of such fees in the absence of special cir­
cumstances rendering such an award unjust. In Johnson 
the court, noting the similarity of language and purpose 
between section 718 and Title II of the 1964 Civil Rights 
Act, explicitly adopted this Court’s standard announced 
in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 
(1968), p. 9a. In the instant case the Sixth Circuit did 
not find any circumstances rendering the award of attor­
ney’s fees unjust, and none exist.

The result reached by the Sixth Circuit in this case is 
entirely inconsistent with that reached by the Fifth Cir­
cuit in Johnson under virtually identical circumstances. 
Here, as in Johnson, legal fees were sought, inter alia, for 
services rendered in prosecuting an appeal after the effec­
tive date of the Act in an action commenced before that 
date. Here, as in Johnson, there were no special circum­
stances found, shown, or even argued which would have 
made an award unjust. Here, as in Johnson, the plaintiffs 
had succeeded in compelling the defendant school board



7

to abolish a de jure dual school system. Yet here, unlike 
Johnson, attorneys’ fees were denied.

The Sixth Circuit’s failure to explain its denial of costs 
and attorney’s fees obscures the exact nature of its dis­
agreement with the interpretation of section 718 adopted 
by the Fourth and Fifth Circuits. But the rule adopted 
in this case, however unclear its rationale, is of course 
binding upon the district courts in the Sixth Circuit. Con­
flicts between the circuits regarding a plaintiff’s rights to 
attorney’s fees in school desegregation cases should not be 
countenanced merely because one of the appellate courts 
involved declines to enunciate the basis of its decisions.

It is particularly important that this Court clarify the 
meaning of section 718 because of its impact on private 
parties seeking to enforce the commands of Brown v. 
Board of Education, 347 U.S. 483 (1954), and its progeny. 
Since this Court’s decision in Brown, Negro school chil­
dren and their parents have been responsible for the bulk 
of the school desegregation litigation in the United States. 
That litigation has often proved lengthy and complicated; 
the instant plaintiffs have been pursuing this case in the 
Federal courts for 13 years. Yet while the public officials 
opposing them were able to draw upon tax dollars to fight 
the integration of the public schools, private citizens have 
all too often been forced to bear their own expenses. It was 
to end this obvious injustice that Congress enacted section 
718, and a writ of certiorari is necessary to assure that 
Congress’ desires are not frustrated in the Sixth Circuit.

The result reached by the Sixth Circuit in this case is 
inconsistent with a number of decisions in other circuits 
awarding attorney’s fees to plaintiffs suing to enforce 
important congressional or constitutional policies even in 
the absence of an express statutory authorization of such 
fees. Lee v. Southern Home Sites Corp., 444 F.2d 143



8

(5th. Cir. 1971); Knight v. Auciello, ------  F.2d ------  (1st
Cir. 1972); N.A.A.C.P. v. Allen, 340 F. Supp. 703 (M.D. 
Ala. 1972); Sims v. Amos, 340 F. Supp. 691 (M.D. Ala.
1972); Cooper v. Allen, ------  F.2d ------  (5th Cir. 1972);
Wyatt v. Stickney,------ F. Supp. -------- (M.D. Ala. 1972);
Ford v. White, —*—■ F. Supp. ------  (S.D. Miss. 1972);
La Rasa Unida v. Volpe, ------  F. Supp. ------  (N.D. Cal.
1972); Ross v. Goshi,------ F. Supp. —-—  (D. Hawaii 1972).
Litigation such as this benefits all students, black and 
white, and imposing plaintiff’s legal fees on the defendant 
school board effectively transfers that expense to the entire 
class benefiting from it. Mills v. Electric Auto-Lite Co., 
396 U.S. 375 (1970). After almost two decades of litiga­
tion under Brown, full relief under 42 TJ.S.C. § 1983 re­
quires that the victims of discrimination no longer be 
forced to bear the constant and crushing burden of enforc­
ing their constitutionally accorded rights. Clark v. Board 
of Education of Little Rock School District, 449 F.2d 493 
(8th Cir. 1971), 369 F.2d 661 (8th Cir. 1966). Petitioners 
submit that the award of legal fees under section 718 
should not be limited to fees for services rendered after 
July 1, 1972, but should extend to all cases still pending 
on that date. Thorpe v. Housing Authority of Durham, 
393 U.S. 268 (1969). Certainly in a case such as this the 
Court of Appeals was unjustified in denying to plaintiffs 
as the prevailing party on appeal the costs authorized by 
Rule 39, Federal Rules of Appellate Procedure.



9

CONCLUSION

For these reasons, a writ of certiorari should issue to 
review the judgment and opinion of the Sixth Circuit.

J ack  Gbeenbebg 
J ames M. N abbit , III 
N obm ax  J . C h a c h k ik  
E bic S chnappee

10 Columbus Circle 
New York, New York 10019

Lotus E. L ucas 
W illiam  E. C aldwell

Eatner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

Attorney for Petitioners



APPENDIX



la

APPENDIX

Order 

I n  th e

U nited  S tates C ourt of A ppeals 

F or th e  S ix t h  C ircuit  

(Filed November 24, 1972)

D eborah A. N qrthcross, et al.,

Plaintiffs-Appellees- 
Cross Appellants,

B oard of E ducation  of th e  M em ph is  
C ity  S chools, et al.,

Defendants-Appellants- 
Cross Appellees.

Before:
W eick , Celebrezze and P eck ,

Circuit Judges.

Upon due consideration, Plaintiffs-Appellees and Cross- 
Appellants’ motion to file petition for rehearing and sug­
gestion for rehearing en banc out of time is hereby denied.

Plaintiffs-Appellees’ request for costs and attorneys’ 
fees is hereby denied.

So o r d e r e d .

E ntered b y  Order o f  th e  C ourt

J ames A. H iggins

Clerk



2a

Appendix

I n  th e

U nited  S tates C ourt of A ppeals 

F or th e  F ourth  C ircuit

Nos. 71-2032 and 71-2033 

F r a n k  V . T hom pson , et al.,
Appellants,

v.

S chool B oard of th e  C ity  of N ew port N ew s , et al.,

\ Appellees.

Nos. 71-1993 and 71-1994 

M ichael  Copeland, et al.,
Appellants,

v.

S chool B oard of th e  C it y  of P ortsm outh , et al.,
Appellees.

No. 72-1065

N ath an iel  J am es, et al.,
Appellees,

v.

B eaufort C ou nty  B oard of E ducation ,
Appellant.

(Decided November 29, 1972)



3a

Appendix

Before

H ayn sw o bth , Chief Judge,
W in ter , ■Craven , B urzn er , R ussell and  F ield ,

Circuit Judges, sitting en banc.

P er Cu r ia m :

We ordered en banc consideration of lawyer fee claims 
in these school cases to consider the extent of the ap­
plicability of § 718 of the Emergency School Aid Act of 
1972. In the City of Portsmouth and the Beaufort County 
cases, however, apparently adequate fees are allowable on 
other bases. The precise extent of the reach of § 718 in 
those cases, therefore, now appears academic.

In the Newport News case, most of the legal services 
are yet to be rendered, and we are unanimously of the 
view that, if relief is granted, fees will be allowable under 
§ 718 for those future services. The division within the 
Court as to the application of § 718 will have some bearing 
upon any ultimate allowance of fees in that case, though 
less than was supposed when reargument was requested.

The Court is unanimously of the view that it should 
apply § 718 to any case pending before it after the Sec­
tion’s enactment. This is consistent with the principle of 
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 
most recently enunciated in the Supreme Court in Thorpe 
vi Housing Authority of Durham, 393 U.S. 268.

A  majority of the Court, however, is of the view that 
only legal services rendered after the effective date of 
§ 718 are compensable under it. Those members of the 
Court invoke the principle that legislation is not to be 
given retrospective effect to prior events unless Congress 
has clearly indicated an intention to have the statute ap­
plied in that manner. They do not find such an intention



4a

from the omission of a provision in an earlier draft ex­
pressly limiting its application to services rendered after 
its enactment, when the earlier draft was extensively re­
vised and there is no affirmative expression by any member 
of Congress of an intention that it should be applied to 
services rendered prior to its enactment.

A minority of the Court would apply § 718 to legal 
services, whenever rendered, in connection with school liti­
gation culminating in an order entered after June 30, 
1972. In their view, someone must pay the fee, and a 
statutory placement of the burden of payment on school 
boards is not a retroactive application of the statute, though 
some of the services may have been rendered before its 
enactment as long as an order awarding relief, the fruit of 
the services, is entered afterwards.

The cases will be remanded for such further proceedings 
in the District Court as may be necessary in accordance 
with the views of the majority, applying § 718, when it 
may otherwise be applicable, only to services rendered 
after June 30, 1972.*

In the Portsmouth case, the District Court will award 
reasonable attorneys’ fees on the principle of Brewer v. 
The School Board of the City of Norfolk, 4 Cir., 456 F.2d 
943 (1972). In the Beaufort County case, the award here­
tofore made by the District Court is approved.

Remanded.

Appendix

'* In the Newport News case, on a completely different basis, the 
District Court made an award of attorneys’ fees of $750.00 in 
connection with services and events occurring before June 30, 1972. 
Since that award was not dependent upon § 718, nothing we say 
here should be construed to disturb it.



5a

W in ter , Circuit Judge, con cu rr in g  sp ec ia lly :

I concur in the judgment of the court to the extent that it 
directs the allowance of attorneys fees in the City of 
Portsmouth, Beaufort County and Newport News cases. 
For the reasons set forth in my separate opinion in Bradley
v. School Board of Richmond, — — F .2d ------  (4 Cir., No.
71-1774, decided ), I would direct the
allowance in all three cases on the basis that § 718 of the 
Emergency School Aid Act of 1972 applies to leg*al services 
rendered before the effective date of that enactment in 
cases pending* on that date.

Appendix



6a

Appendix 

I n t h e

U nited  S tates C ourt of A ppeals 

F or th e  F if t h  Circuit

No. 72-3030

P rincess E anola J ohn son , E tc ., et  al .,

Plaintiffs- Appellees,
versus

M. B row n ing  C ombs, Superintendent,
Grand Prairie Independent School District, et a l .,

Defendants-Appellants.

Appeal from the United States District Court for the 
Northern District of Texas

(December 6, 1972)

Before T hornberry , M organ and Clark ,
Circuit Judges.

Clark , Circuit Judge: On the merits, the judgment ap­
pealed from is due to be affirmed. Weaver v. Board of
Public Education of Brevard County, Florida, ------  F.2d
—— • (5th Cir. 1972) [No. 71-3465, September 6, 1972], 

The collateral question as to plaintiffs’ entitlement to 
attorneys’ fees below and on this appeal raises a novel 
issue. The law of the circuit prior to the passage of Sec­



7a

tion 718 of the Education Amendments Act of 19721 made 
it clear that in school desegregation cases attorneys’ fees 
would be awarded only if the school board was found to 
have acted in an “unreasonable and obdurately obstinate” 
manner. See Williams v. Kimbrough, 415 F.2d 874 (5th 
Cir. 1969), cert, denied 396 IT.S. 1061, 90 S.Ct. 753, 24 
L.Ed.2d 755 (1970) [citing Kemp v. Beasley, 352 F.2d 14 
(8th Cir. 1965)], and Horton v. Lawrence County Board 
of Education, 449 F.2d 793 (5th Cir. 1971). The same rule 
has been applied in actions under 42 U.S.C.A. § 1982 (which, 
like Williams and Horton, were not governed by a statutory 
provision for attorneys’ fees), Lee v. Southern Homesites 
Corporation, 429 F.2d 290 (5th Cir. 1969).

However, the enactment of Section 718 of the Education 
Amendments Act of 1972 requires that we answer three 
questions on this appeal: first, does the statute merely 
codify the existing “unreasonable and obdurately obstinate” 
standard, or does it set new parameters within which the 
district court must exercise its discretion; second, if the 
statute does create a new legal standard, to what degree 
should that standard be applied retroactively; and third, 
when is an order a “final order” within the meaning of the 
statute ?

Appendix

1 Upon the entry of a final order by a court of the United States 
against a local educational agency, a State (or any agency thereof), 
or the United States (or any agency thereof), for failure to comply 
with any provision of this title or for discrimination on the basis 
of race, color, or national origin in violation of title VI of the 
Civil Eights Act of 1964, or the fourteenth amendment to the Con­
stitution of the United States as they pertain to elementary and 
secondary education, the court, in its discretion, upon a finding 
that the proceedings were necessary to bring about compliance, 
may allow the prevailing party, other than the United States, a 
reasonable attorneys’ fee as part of the costs.



8a

We note at the outset that Section 718 is similar, though 
not identical,2 3 * * * * to the provision allowing attorneys’ fees to 
the successful party in an action based on Title II of the 
1964 Civil Rights Act.8 In the leading case interpreting 
that provision, Newman v. Piggie Park Enterprises, Inc., 
390 U.S. 400, 401 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), 
the Supreme Court held that attorneys’ fees must be 
awarded “unless special circumstances would render such 
an award unjust.” Rejecting “good faith” as a defense, 
the Court reasoned that,

If Congress’ objective had been to authorize the 
assessment of attorneys’ fees against defendants who 
make completely groundless contentions for purposes 
of delay, no new statutory provision would have been 
necessary, for it has long been held that a federal 
court may award counsel fees to a successful plaintiff 
where a defense has been maintained “ in bad faith, 
vexatiously, wantonly, or for oppressive reasons.” 6 
Moore’s Federal Practice, 1352 (1966 ed.).

390 U.S. at 403 n. 4, 88 S.Ct. at 966 n. 4.

Newman has been applied by this Court in Miller v. 
Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 
1970), where we concluded in another Title II action that 
neither the fact that a non-frivolous controversy existed 
nor the fact that the defendants acted in good faith con-

Appendix

2 Section 718 requires a threshold finding by the trial court that 
the proceedings were necessary to enforce compliance.

3 In any action commenced pursuant to this subehapter, the court,
in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorneys’ fee as part of the costs, and
the United States shall be liable for costs the same as a private
person, 42 U.S.C. § 2000a-3(b).



9a

stituted the “ special circumstances” contemplated by the 
Supreme Court. Thus, the standard ajjplied under the 
statutory language in Title II actions diverged somewhat 
from the standard applied in school desegregation cases 
by this Court and other Circuit Courts which have con­
sidered the question. See Brewer v. School Board of City 
of Norfolk, Virginia, 456 F.2d 943, 949 (4th Cir.), cert.
denied ------  U.S. ------ , 92 S.Ct. 1778, ------ - L.Ed.2d ------
(1972). That Congress chose to structure Section 718 in 
language similar to that interpreted by the Supreme Court 
in Neivman is a strong factor indicating that the two 
statutes should be interpreted pari passu.

Moreover, in addition to the similarity of the language 
used in Section 718 and its Title II analogue, the two pro­
visions share a common raison d’etre. The plaintiffs in 
school cases are “private attorneys general” vindicating 
national policy in the same sense as are plaintiffs in Title 
II actions. The enactment of both provisions was for the 
same purpose— “to encourage individuals injured by racial 
discrimination to seek judicial relief . . .” See Newman, 
supra, 390 TJ.S. at 402, 88 S.Ct. at 966. We hold that if the 
court finds that the proceedings were necessary to bring 
about compliance, then Section 718 must be applied in 
accordance with the test enunciated in Newman, i.e., in 
the absence of special circumstances attorneys’ fees are 
to be awarded.

We decline to apply § 718 retroactively to the expenses 
incurred during the years of litigation prior to its enact­
ment. This interpretation of the neutral language of the 
statute is compelled both by the long-established presump­
tion against retrospective application in the absence of a 
clear legislative intent and the clear precedents of this 
Circuit governing such litigation. School desegregation

Appendix



Appendix

litigation has produced precedents which have been some­
what less than clear and explicit. Even when plaintiff and 
defendant were in agreement about the end to be reached, 
the means and the timing which would accomplish the goal 
often remained in bitter dispute. There was a necessity 
that the demands of the aggrieved plaintiffs be harmonized 
with legitimate educational interests of the school authori­
ties and the community as a whole in the smooth and un­
eventful transition to a unitary school system. Many 
school districts have been litigating in this field filled with 
fast changing precedents and guidelines for a number of 
years; to apply this statute retroactively would place a 
wholly unexpected and unwarranted burden on these dis­
tricts who have done no more than litigate what they, in 
good faith, believed to be demands which exceeded the 
Constitution’s demand.4

Under these circumstances, a retroactive application of 
this statute would punish school boards for good faith ac­
tion in seeking the guidance of the courts to determine 
what was required of them. Furthermore, retroactive 
awards of attorneys’ fees for these past years of litiga­
tion would not serve the purpose of encouraging future 
legal challenges of segregated school systems. The incon­
clusive legislative history of Section 718 furnishes no 
basis for inferring that Congress intended this provision 
to be given such a sweeping effect.

Thus, as to legal services awarded prior to July 1, 1972, 
the effective date of the Education Amendments Act of 
1972, we hold that the award of attorneys’ fees is to be

4 Of course if the litigation could be characterized as unreason­
able and obdurately obstinate, then by the same reasoning as ad­
vanced in Newman, supra, Section 718 would be surplusage under 
the existing rule of Williams and Morton.



11a

Appendix

governed by the standard enunciated by this court in Wil- 
liams and Horton. Awards for legal services rendered on 
or after that date are governed by the statute.

The brief order of the trial court indicates that the single 
standard applied there was the one set out in Bradley v. 
School Board of City of Richmond, Virginia, 53 F.R.D. 
28 (E.D. Va. 1971). Without deciding whether the stan­
dard enunciated in Bradley is consistent with Section 718, 
we rule that Bradley, at least insofar as it holds that full 
and appropriate relief in school desegregation cases must 
include the award of expenses of litigation, 53 F.R.D. at 
41, is inconsistent with the standard of this circuit ap­
plicable to legal services rendered prior to the effective 
date of the statute. Since the record indicates that some 
part of the legal services in this case may have been ren­
dered prior to that date, we vacate the award of attorneys’ 
fees and remand to the district court for further proceed­
ings in accord herewith.

Section 718 expressly allows attorneys’ fee awards only 
upon “the entry of a final order.”  The most suitable test 
for such finality exists in the body of law which has been 
developed in determining appealability under 28 U.S.C.A. 
§ 1291. In general, this means a judgment or order which 
ends the litigation on the merits and comprehends only 
the execution of the court’s decree. See C. Wright, Federal 
Courts § 101 (2d ed. 1970). Since most school cases in­
volve relief of an injunctive nature which must prove its 
efficacy over a period of time, it is obvious that many sig­
nificant and appealable decrees will occur in the course of 
litigation which should not qualify as final in the sense 
of determining the issues in controversy. The ultimate 
approach to finality must be an individual and pragmatic 
one. Such a matter should be committed to the deter­
mination of the trial court.



12a

For the district court’s guidance at the appropriate time, 
we now hold that plaintiffs are entitled to a reasonable at­
torneys’ fee for prosecuting this present appeal, in the 
amount of 1,250 dollars. See Meeks v. State Farm Mut.
Ins. C o.,------ F. 2d ——  (5th Cir. 1972) [No. 71-2137, No.
2293, May 22, 1972]; Campbell v. Green, 112 F.2d 143 (5th 
Cir. 1940).

Appendix

A eeibmed in  part, 
V acated in  p art and 
R emanded.



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