Memorandum Opinion

     [||5ae6d643-a3f5-40a8-b136-836bca2c55fa||] IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

WESTERN DIVISION 

DELORES NORWOOD, ET AL, Plaintiffs 

Vv. NO. WC 70-53-K 

D. L. HARRISON, SR., ET AL, Defendants 

MEMORANDUM OPINION   

Today we write a postlude to this protracted litigation 

involving Mississippi's program of furnishing state-owned text- 

books to private as well as public schools by ruling on plaintiffs’ 

motion for an award of attorneys' fees for legal services rendered 

since commencement of the case almost six years ago. We hold that 

an award is mandated here by § 718 of the Emergency School Aid Act, 

20 USC § 1617, and also that the Eleventh Amendment, as explicated 

in Edelman v. Jordan, 41508 651, 39 L ed 24 662 (1974), and other 

cases, does not require us to declare unconstitutional this Act of 

Congress. 

This case began as a class action challenge by black 

citizens, as parents of public school students in Tunica County, 

Mississippi, to the constitutionality of Miss. Code Ann. § 6634 

et seq. (1942), a statute providing for the State's distribution 

of free state-owned textbooks to all schoolchildren in all element- 

ary and secondary grades in Mississippi, whether attending public 

or private schools. Named as defendants were the executive | 

secretary and members of the Mississippi State Textbook Purchasing 

Board. The complaint was addressed particularly to the statute's 

effect in providing state-owned textbooks to students attending 

schools alleged to be all-white or academies having racially dis- 

criminatory admission policies. Since the complaint sought to 

enjoin enforcement of a statute of apparent statewide application, 

 



  

a three-judge court was convened which upheld the Act's constitu- 

tionality. Norwood v. Harrison, 340 FP. Supp. 1003 (NN. D. Miss. 

1972) (three-judge court). 

On appeal, the Supreme Court of the United States reversed, 

holding that the Equal Protection Clause forbade direct or indirect 

state aid to private segregated schools, irrespective of the pur- 

pose of the assistance or whether the state aid gave any appreciable 

support to the maintenance of segregated education. Norwood v. 

Harrison, 413 US 455, 37 L ed 24 723. (1973). Recognizing that all 

private schools in Mississippi could not be presumed guilty of 

racial discrimination, the Court remanded with instructions to 

the district court to determine, on a school-by-school basis, the 

eligibility vel non of private schools in the State to receive 

continued state textbook aid. 

After remand, the three-judge court was dissolved and the 

case remanded to this court to establish an appropriate certifica- 

tion procedure. Pursuant to the Supreme Court's directive, we 

conducted a school-by-school eligibility examination, completing 

the process in Norwood v. Harrison, 382 ¥. Supp. 921" (N. D. Miss. 

1974). Immediately thereafter, plaintiffs filed their motion for 

an attorneys' fee award and submitted their itemized cost bill. 

Since the motion and cost bill sought an assessment against defend- 

ant state officials which, if granted, would almost surely be sat- 

isfied with state funds, serious Eleventh Amendment questions were 

presented. Aware that the constitutionality of a similar award 

was pending before the Court of Appeals for the Fifth Circuit, sit- 

ting en banc in another case from this court, Gates v. Collier, 

371. FP. Supp. 1368 (NN. D. Miss.) aff'd, 4839'F. 24298 U5 Cir. 1973), 

pet. for reh. en banc granted, 500 ¥. 24 1382 (5 Cir. 1975), we 

delayed our ruling here, hoping that the difficult constitutional 

issues would be resolved by the higher court. Instead, the Fifth 

Circuit chose not to dispose of the Eleventh Amendment question 

 



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and remanded Gates for further consideration in light of Edelman 

and Alyeska Pipeline Service Co. v. The Wilderness Society, —--- 

Us =~=--, 44 1, ed 24 141 (1975). Gates v. Collier, 522 F. 24 31 

{5 Cir. 1075) (en banc). 

Without reason for further delay, we proceed now to a 

ruling, conscious of two major issues which demand resolution. 

The first is, of course, whether the Eleventh Amendment to the 

United States Constitution bars federal courts from making assess- 

ments of attorneys' fees and costs against an unconsenting state 

defendant in litigation which seeks injunctive and declaratory 

relief from unconstitutional state action. If the Eleventh Admend- 

ment is not found to present a bar to the award of attorney fees 

and taxable costs here, we must confront the problem presented by 

Alyeska. There, the Supreme Court invalidated the "private attor- 

ney general" concept for the award of attorneys' fees and gave 

notice that, except in limited circumstances, no award of attor- 

neys' fees to prevailing litigants is proper in the federal courts 

without express congressional authorization. Thus, before an award 

may be made in this case, the legal services rendered by plain- 

tiffs' counsel must be compensable under an Act of Congress or fall 

within one of the narrow exceptions to the general rule enu- 

merated in Alyeska. 

The Eleventh Amendment Issue 
  

On its face, the Eleventh Amendment appears to present a 

barrier to any award of attorneys' fees (or for that matter court 

costs) which will ultimately be paid from the coffers of a state 

treasury: 

"The judicial power of the United States 
shall not be construed to extend to any suit 
in law or equity, commenced or prosecuted 

against one of the United States by Citizens 
of another State, or by Citizens or Subjects 

of any Foreign State.” 

 



  

This Amendment has received increased attention since the 

Supreme Court, in Edelman, held that a retroactive award of 

wrongfully withheld state welfare benefits could not be made 

by the federal courts, since "a suit by private parties seeking 

to impose a liability which must be paid from public funds in 

the state treasury is barred by the Eleventh Amendment." Edel- 

man, supra, 415 US at 663. Whether an attorney fee or-cést award, 

liability for which accrues incidental to legitimate federal 

court litigation, may be imposed against the state treasury is 

a question which has split the courts of appeals 1/ and has 

not been finally answered by the Supreme Court. 

Only recently we addressed this important question 

and concluded that 

"where, as here, an action is brought seeking 
prospective injunctive and declaratory relief 
which has only the 'ancillary effect on the 
state treasury' permitted by Ex parte Young and 
expressly approved in Edelman, expenses incident 
to and arising from the prosecution of such liti- 
gation, including attorneys' fees and costs, may 

  

  

l/ The First, Second and Fourth Circuits have concluded that 
attorney fee awards payable from state funds are permis- 
sible under Edelman and the Eleventh Amendment. Boston 
Chapter NAACP, Inc. v. Beecher, 504 F. 24 1017 (1 Cir. 
1974); Fitzpatrick v. Bitzer, 519 F, 24 559 (2 Cir. 1975); 
Class v. Norton, 505 F. 24 123 (2 Cir. 1974); Jordan v. 
Pusari, 496 F. 24 646 (2 Cir. 1974); Thonen v. Jenkins, 
517 ¥.. 26 3 (4 Cir. 1975¥: the Third and Sixth Circuits 
have held the Eleventh Amendment to bar such awards, Skehan 
v. Board of Trustees of Bloomsburg State College, 501 F. 24 
21 {3 Cir, 1974); Jordon Vv, Gilligan, 500. ¥. 24 701 (6 Cir. 
1974). Our own Fifth Circuit, which has considered the 
matter no less than four times, has not yet adopted a final 
position. Compare Gates v. Collier, 489 ¥. 24 298 (5 Cir. 
1974), with Named Individual Members of the San Antonio 
Conservation Society v. The Texas Highway Dept., 496 F. 2d 
1017 (5 Cir. 1974): and Gates v. Collier, 522 7. 24 '81 
{5 Cir. 1975) (en banc); Newman v. State of Alabama, 522 

FP. 24.71 (5: Cir. 1975) {en banc). 

 



  

constitutionally be assessed against state 
defendants. Such awards are essential to the 
proper functioning of the federal judicial 
process and ensure that the protection of the 
constitutional rights afforded by EX parte 
Young and its progeny does not become illusory." 
(Footnote omitted). Gates v. Collier, --- 

P. Supp. ~~—i(R. D. Miss. Peb. 3, 1976). 

  

It is unnecessary to here repeat the rationale set forth in our 

Gates opinion, a copy of which is hereto appended, but until 

the Fifth Circuit speaks otherwise, we adhere to the view that 

attorneys' fee and cost awards are both "ancillary" and 

"prospective" within Edelman's meaning and are not within the 

bar of the Eleventh Anendient. of 

The Applicability of § 718 of the 
Emergency School Aid Act 
  

As noted, Alyeska has sharply restricted the bases 

upon which awards of attorneys' fees can be made to prevailing 

litigants in constitutional litigation by eliminating the 

"private attorney general" concept for attorney fee grants. 

Plaintiffs urge alternate rationales upon which an award can 

be premised in this case without violating the directive of 

the Supreme Court in Alyeska. 

First, it is contended that the defendants' conduct 

of this litigation fits within the "bad faith, vexatiously, 

wantonly, or for oppressive reasons" exception recognized by 

Alyeska, supra, 44 L ed 24d at 154, as a case in which an attor- 

neys' fee is allowable by a federal court even without express 

  

2/ As noted in Gates, we can find no rational basis on which 
to distinguish between attorneys' fees and costs for 
Eleventh Amendment purposes. Here, substantial court costs 
were timely taxed by the plaintiffs, an assessment to which 
defendants interposed no objection. We have examined plain- 
tiffs' cost bill and find the items therein listed fully 
authorized to the extent of $4,999.44, which we tax as 
costs as a matter of course pursuant to Rule 54(d), F. R. 

Civ. P. 

 



  

statutory authorization. This argument 1s patently without 

merit, however, and must be rejected. As exemplified by the 

first holding of the three-judge district court, this case, on 

its merits, was not one in which well-settled constitutional 

principles pointed unmistakably to only one sure result which 

defendants unreasonably resisted. To be sure, a vigorous 

defense was presented in favor of the challenged statute, and 

the State's administration of textbook aid, but the mere fact 

that textbook aid, as officially administered under the Act, 

was ultimately adjudged to be unconstitutional as applied to 

segregated, private schools with racially discriminatory admis- 

sion policies does not bring the defendants' defense within the 

"bad faith" exception recognized by Alyeska. Moreover, once 

the Supreme Court spoke, the defendants posed no resistance 

whatever to the implementation of the Court's decree or to the 

case-by-case evaluation which this court subsequently made. 

Neither do we perceive that any other judicial exception 

recognized in Alyeska pertains here to authorize the imposition 

of an attorney fee upon the opposing litigant. 

Alternatively, plaintiffs urge an attorneys' fee award 

in this case under § 718 of the Emergency School Aid Act of 

972, 20 USC § 1617, which provides: 

"Upon 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 chapter or for 
discrimination on the basis of race, color, or 
national origin in violation of Title VI of the 
Civil Rights Act of 1964, or the Fourteenth 
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.” 

 



  

To qualify under the terms of $ 718, plaintiffs must satisfy 

each Of the criteria “set out by the Act. To begin with, unques- 

tionably a final order has been entered in this case within the 

statute's meaning. As the Supreme Court has said in this 

connection: 

"To delay a fee award until the entire 
litigation is concluded would work substantial 
hardship on plaintiffs and their counsel, and 
discourage the institution of actions, despite 
the clear congressional intent to the contrary 
evidenced by the passage of § 718. A district 
court must have discretion to award fees and 
costs incident to the final disposition of 
interim matters." Bradley v. Richmond School 
Board, 416 US 696, 723, 40 L ed 2d 476 (1974). 

Our comprehensive order of July 12, 1974, which finally disposed 

of the substantive issues and settled the eligibility of text- 

book aid for almost all private schools in the State, clearly 

meets this definition of finality, though continuing juris- 

diction was retained over the case. Nor can there be any doubt 

that this action against the members and executive secretary of 

the Mississippi State Textbook Purchasing Board qualifies as 

one against a state agency. 

Moreover, it is manifestly clear that the suit was 

necessary to end the practice of providing state textbook aid 

to racially segregated private schools in violation of the 

Fourteenth Amendment and therefore essential to bring into 

constitutional compliance the defendants' administration of the 

free textbook program. Section 6634 et seq. of the Mississippi 

Code had been on the books almost 30 years when this suit was 

instituted, some 16 years after Brown I. Neither the officials 

charged with administering the state textbook program nor state 

lawmakers evinced concern that practices antedating Brown I needed 

alteration in view of the dramatic development of private 

academies in the State during the era of public school desegregation. 

 



  

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Hence, after the present suit was filed and until the Supreme 

Court's ruling, defendants asserted the constitutionality, not 

to mention the social desirability, of providing textbook aid 

to all students, including those enrolled in schools maintain- 

ing racially discriminatory admission policies. This practice 

of supplying textbooks indiscriminately would, no doubt, have 

not been abated but for the successful prosecution of this 

sui. 

The remaining question of § 718 applicability is 

whether this suit, brought to prevent state aid to racially 

discriminatory all-white private schools, is one arising under 

the Fourteenth Amendment as it pertains to elementary and 

secondary education. Defendants suggest that § 718 was intended 

  

3/ In our earlier opinion, we outlined the considerable im- 
pact of plaintiffs' success in this litigation vis-a-vis 
Mississippi's private academies: 

"Before Norwood, 107 private academies received 
[textbook] aid; after Norwood, 33 academies applied 
for state textbooks in accordance with certifica- 
tion procedure established by this court upon remand. 
Of this number, the Board at the administrative level 
found 5 ineligible and approved 28. Plaintiffs filed 
objections to 24 schools approved by the Board. Pend- 
ing appeal to this federal district court, 13 private 
academies were able to satisfy, by stipulation, chal- 
lenges raised by plaintiffs. As previously stated, 
4 academies voluntarily withdrew their requests for 
textbooks after challenge; and we have herein found 4 
more academies ineligible, 2 qualified, and one 
approved only conditionally for one year [which 
elected to surrender textbooks at year's end rather 
than submit to further evidentiary hearing]." Norwood 
v. Harrison, supra, 382 FP. Supp. at 935. 

Thus, 88 of 107 private schools now extant in Mississippi 
lost state textbook aid as a direct result of this action. 
Furthermore, at least 13 private academies elected to 
change their procedures in order to satisfy the private 
plaintiffs that they were no longer guilty of racial 
discrimination. The relief secured by the plaintiffs 
has an additional, continuing impact, in that henceforth 
no private school in Mississippi may receive, ab initio, 
state textbook aid without the prior approval of this 
court. 382 PF. Supp. at 935, 

 



  

to apply only to actions brought to eradicate racial segrega- 

tion in the public schools, and not to cases such as this, 

which arguably might have little nexus with the desegregation 

process. 2 

We disagree. Our first point of reference is the 

literal terms of § 718. This suit, and our final order, were 

occasioned by the State's failure to comply with the Equal 

Protection Clause of the Fourteenth Amendment by impermissibly 

extending state aid for the support of segregated elementary 

and secondary education. Section 718 speaks to cases where 

"discrimination on the basis of race, color, or national origin 

in violation of . . . the Fourteenth Amendment" occurs and is 

overthrown by the prevailing party in a court of the United 

States. That such discrimination existed may not be open to 

doubt after the Supreme Court's holding. "[I]f the school 

engages in discriminatory practices the State by tangible aid 

in the form of textbooks thereby gives support to such discrimi- 

nation." Norwood v. Harrison, supra, 413 US at 464-65. Indeed, 

if there were no acts of racial discrimination by the defendant 

state officials in this case, no supportable basis for the 

Court's holding could be gleaned from its opinion. 

The legislative history of § 718 also provides a measure 

of support, albeit marginal. The House version of the Emergency 

  

4/ It is true that the effect of textbook aid to segregated 
private schools on the desegregation process in the 
public sector is problematical. Even at this late date, 
the Supreme Court's admission rings true: 

"We cannot and do not know, on this record at 
least, whether state textbook assistance is 

the determinative factor in the enrollment 
of any students in any of the private schools 
in Mississippi." Norwood v. Harrison, supra, 
413 US at 465. 

 



  

School Aid Act contained no attorney fee provisions. 1972 U. S. 

Code Cong. & Admin. News 2668. In the Senate, where the Act was 

first designated as the Emergency School Aid and Quality 

Integrated Education Act of 1971, § 718's attorney fee pro- 

visions were adopted, and thereafter incorporated into the 

final version approved by the House-Senate Conference Committee. 

Although the Senate Report makes no direct mention of attorneys’ 

fees, it does suggest that Congress intended § 718 to apply in 

litigation other than public school desegregation suits by 

stating that the Act "prohibits funding [school] districts which, 

after enactment . . . have engaged in the following practices: 

(a) Aid to segregated private academies; . . ." 1972 U. S. Code 

Cong. & Admin. News 2603. 

In the Senate debate over whether a provision ought to 

be made to pay counsel of prevailing parties in lawsuits affect- 

ing secondary and elementary education,’ Senator Mondale 

articulated the need which attorney fee awards would fill: 

  
oe 

5/ After hearings by the Senate Select Committee on Equal 
Educational Opportunity on the progress of desegregation 
in public education, Senator Mondale, as chairman, 
sponsored a bill which would have created a $15 million 
congressional fund out of which prevailing attorneys 
would be paid. This provision was defeated by the full 
Senate, which then approved the alternate method pro- 
vided by § 718 for attorney fee awards in these cases. 

. Although the quoted remarks by Senator Mondale were 
delivered in support of the unsuccessful $15 million 
fund proposal, they clearly apply with equal force to 
§ 718, which simply shifted attorney fee responsibility 
from the United States to the defaulting defendants. 

"The difference between this amendment today [§718] 
and Section XI originally in the bill, which was 
defeated yesterday, was the very issue of assessing 
attorneys' fees and costs at the discretion of the 
court against the defendant, and not against the 
Federal Government." 117 Cong. Rec. 11,521 (1971) 
(remarks by Senator Cook). 

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a m——_—_———_—" "~~ CE GT i TE er Ra SEE Ny or 2 OR Py 03, SATE ARN GAL a a EE 3 TE BT Ts TB     
 



  

"There have been allegations by the National 
Education Association that several thousand 
black teachers have been fired in the South, or 

demoted. I would like to see lawsuits brought 
on that. There has been testimony that some 
schools have taken public property and given it 
away to segregated private academies. I would 
like to see some lawsuits on that . . . . 
Unfortunately they have not been forthcoming." 
117 Cong. Rec. 10,762 (1971). 

"[T]lhe transfer of public school property to 
segregation academies . . . in my opinion, 
clearly violate[s] the proscription of the 14th 
Amendment. And what this bill does, in essence, 
is that it says a party is entitled to pursue 
his remedy [of an attorney's fee] if there is a 
violation of . . . the 14th Amendment to the 
Constitution of the United States." 117 Cong. 
Rec. 11,339 :{1971). 

6/ Thus, although the legislative history — is somewhat 

meager, it does tend to affirm that in enacting § 718 as a 

component of the Emergency School Aid Act, Congress was con- 

cerned with the impact of private, segregated academies on the 

public school desegregation process, and with the attempted 

diversion of state resources to support such private institutions.-— 

  

6/ Although "[s]tatements by individual members of the legis- 

lature as to the meaning of provisions in a bill subse- 
quently enacted into law, made during the general debate 
on the bill on the floor of each legislative house follow- 
ing its presentation by a standing committee, are generally 
held not to be admissible as aids in construing the statute 
. «. « [tlhis rule has been modified to permit consideration 
of explanatory statements by the sponsor of a bill, or by 
the member of the standing committee who is in charge of 
its presentation to the legislative house and leads the 
debate thereon. . . . Statements made by individual 
legislators during floor debates are also considered, along 
with information about contemporary conditions and events, 
when they tend to establish what problems or evils the 
legislature was undertaking to remedy by the statute being 
construed." 2A Sands, Statutes and Statutory Construction 

§:.48.13 at 216-17 {4th ed. 1973). 

7/ Events accompanying public school desegregation in Miss- 
- issippi furnish concrete support for this congressional 

concern and provide evidence for the intended purpose of 
§ 718 to reach state activity of the sort present here. 
We cannot blink the historical fact that in a number of 
instances, public school property found its way into the 

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Finally, at least two district courts have held, as we 

do, that § 718 applies to a wider range of cases than straight- 

line school desegregation actions. In Aspira of New York, Inc. 

Vv. Board of EQucation of City of New York, 65 FRD 541 (8. D. 

N. Y. 1975), the plaintiffs sought and won bilingual classroom 

instruction in the New York City schools on behalf of a class 

of Spanish-speaking Puerto Rican citizens as to whom English 

language instruction was discriminatory. The court allowed 

plaintiffs' application for an attorney fee award under § 718, 

even though the case was a far cry from a school desegregation 

suit. 

"It is urged, for one thing, that § 718 
applies only to school desegregation cases. 
This is at odds with the statute's plain 
language, which we are permitted to consult. 
This is, tracking the words of 8 718, an action 
for discrimination on the basis of . . . 
national origin in violation of title VI of 
the Civil Rights Act. of 1964 . .. .: .' Lau 
v. Nichols, 414 US 563, 94 8. Ct. 786, 39 
L ed 2d 1 (1974). The word 'discrimination' 
is obviously broader than 'segregation'. 
There is not the slightest justification for 
narrowing it as defendants propose." 65 FRD 
at 543. : 

  

7/ continued: 

hands of private segregated schools during unitization of 
Mississippi school districts. See, e.g., United States v. 
State of Mississippi, 499 F. 24 425 (5 Cir. 1974) (en banc) 
(sublease of publi school facility to private segregated’ 
school); McNeal v. Tate County School District, 460 F. 24 
568 (5 Cir. 1972) {Public school facility sold to segregated 
academy); United States v. Tunica County School District, - 
323 F. Supp. 1019 (NN. D. Miss.) , aff'd, 440'FP. 24 377 
(5 Cir. 1970) (payment of one semester's salary in advance 
to white public schoolteachers withdrawing to segregated 
academies immediately upon entry of public school desegre- 
gation order, and transfer of state-owned textbooks to 
white students enrolling in segregated schools which sprang 
up overnight); Coffey v. State Educational Finance Commis- 
sion, 296 F. Supp. 1389 (S. D. Miss. 1969) (three-judge 
court) (statute providing for payment of state tuition 
grants to children attending private, non-sectarian schools). 
Nor was this phenomenon restricted to Mississippi. Gilmore 
v. Montgomery, 417 US 556, 41 L ed 2d 304 (1974); Wright wv. 
City of Brighton, 441 ¥. 24 447 (5 Cir. 1971). Poindexter 
v. Louisiana Fin. Assistance Com'n, 296 F. Supp. 686 (E.D. 
La.) {three-judge court), aff'd mem., 393 U.S. 17, 21 L ed 24 

16 (1968); Brown v. South Carolina State Bd. of Educ., 296 

PF. Supp. 199 (D. S.C. 1968) (three-judge court). 

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More persuasively, in Brumfield v. Dodd, --- F. Supp. 

-~- (E. D. La. 1975) (three-judge court), a case legally indis- 

tinguishable from ours, plaintiffs sued to enjoin defendant 

state officials from furnishing textbooks, library books, school 

supplies, educational materials and bus transportation to 

students attending segregated private schools. The three-judge 

court, Judges Wisdom, Heebe and Gordon, struck the offending 

Louisiana statute and enjoined further aid, citing Norwood Vv. 
  

Harrison. The court then allowed plaintiffs an attorneys' fee 
  

under § 718, without extended discussion. 

From our reading of the literal terms of the statute 

and its legislative history, and following the lead of Aspira 

and Brumfield, we hold that this is a proper case for applica- 
  

tion of § 718, and an attorney fee award can be made under the 

statute in the court's discretion. 

Our discretion in this regard is limited by Northcross 

v. Board of Education, 412 US 427, 428, 37 L ed 24 48 (1973), 

which held that "if other requirements of § 718 are satisfied, 

the successful plaintiff 'should ordinarily recover an attorney's 

fee unless special circumstances would render such an award 

unjust.'" Our examination of the record does not disclose any 

special circumstances of the kind described in Northcross. We 
  

so hold despite defendants' protestations that they should not 

be here taxed with a fee award because they did not know that 

state textbook aid to segregated schools was unconstitutional 

until the Supreme Court said so. We find nowhere that Congress 

intended the application of § 718 to turn on the defendants’ 

intent or purpose. Good faith does not remove a case from its 

scope. It is conceded that plaintiffs did not, in one stroke, 

obtain a blanket injunction against textbook aid to all private 

schools in Mississippi, segregated and otherwise, though that 

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was originally prayed for. But the clear gravamen of plaintiffs’ 

complaint was directed to the numerous all-white segregated 

schools created in the wake of public school desegregation 

mandated by the federal courts of Mississippi. As to these 

institutions plaintiffs' requested injunctive relief was, for 

all practical purposes, granted in its entirety. Thus, plain- 

tiffs are clearly the prevailing party, and we exercise our 

discretion to allow them a reasonable attorneys' fee as part of 

9/ the costs in this action. 

The Amount of the Fee 

We need now to determine what constitutes a reasonable 

attorneys' fee for professional services rendered from the com- 

mencement of this case in 1970 to our July 12, 1974, judgment 

and order. Plaintiffs' counsel have supplied the court with 

affidavits itemizing elements of work and time expended in the 

case, requesting total compensation of $31,379; of this sum, 

$2,400 is claimed by James M. Nabrit, III, for work performed 

before the Supreme Court, nd $28,979 by Melvyn R. Leventhal, 

trial counsel, for his services throughout the case. Although 

we granted defendants an opportunity to submit counter- 

affidavits or otherwise contest the reasonableness of the fees 

claimed, no challenge has in fact been interposed. Even so, ‘it 

is our duty to undertake an independent examination of the 

  

8/ See also note 3, supra, for a brief summary of the relief 
won by plaintiffs on the merits. 

9/ Although § 718 became law only on July 1, 1972, while the 
4 action was commenced two years earlier, this case was in 

active pendency on the date of § 718's enactment. There- 
fore, we are empowered by Bradley v. School Board of City 
of Richmond, 416 US 696, 40 L. ed 24 476 (1974), to allow 

an award for all legal services performed by plaintiffs’ 
counsel since the beginning of this action, and not merely 
for those rendered since passage of § 718. 

wl 

 



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reasonableness of plaintiffs’ request, considering our familiarity 

with the evidence and the nature of the case, and by utilizing 

our expertise as a trial judge in determining the worth of 

counsel's services. In making our determination, we are mindful 

of the pertinent factors enumerated in Johnson v. Georgia Highway 

Express, Inc., 438 FP, 24 714, 117-19 (5 Cir. 1974). 

As to the services rendered by Mr. Leventhal, several 

distinctive elements may properly be taken into account. First, 

it is significant that much of his service was rendered in the 

1970-71 period of this litigation -- prior to the substantial 

inflationary trend and at a time when prevailing fee rates among 

Mississippi practitioners were less than current charges. 

Also, we note that at the outset of this case, Mr. 

Leventhal, though not a veteran at the bar, nevertheless had 

achieved expertise in civil rights litigation, having experienced 

a solid record of victories in hard-fought civil rights actions 

in Mississippi. The case sub judice was, by any standard, one 

of difficulty, involving delicate concepts of constitutional law 

in the interaction of the Fourteenth Amendment and a statewide 

benevolent program of assisting schoolchildren. 

Although the case was, to say the least, quite unpopular 

with the white citizenry of Mississippi, it seems unlikely that 

Leventhal's participation in the suit either cost Alm other 

clients or precluded other remunerative employment. Instead, 

his prestige as a successful advocate in the civil rights field 

was, in no small measure, enhanced by the successful outcome of 

this action. 

At all stages in the district court, Mr. Leventhal was 

lead counsel for plaintiffs and acted in accordance with the best 

traditions of the legal profession. His legal representation was, 

without question, of the highest calibre, exhibiting thoroughness 

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LJ ’ Ld 

  

and skill in factual development as well as legal argument. 

These efforts produced a signal victory from a unanimous Supreme 

Court. Considering these factors, we fix Leventhal's fee at 

$22,102. We believe a reasonable fee for Mr. Nabrit's services 

in the Supreme Court appeal to be $1,750. 10/ 

  

10/ Por that period of the litigation conducted in the district 

court before appeal to the Supreme Court, Leventhal itemizes 

406.85 hours of legal service at $35 per hour. We dis- 
allow the 37 hours assigned for travel to depositions. 

With respect to the remaining hours, we must reduce counsel's 

claimed rate for some items, simply because of the nature 
of some of the work rendered. For that time claimed for 

writing letters, participating in conferences, filing 
routine motions, preparing exhibits and the like (116.35 

i hours), we believe a reasonable fee under all the circum- 

i stances would be $20 per hour. For the 101.5 hours 
i assigned to depositions, $30 per hour seems reasonable. 

; For the remaining 152 hours, which were spent in drafting 
the complaint, legal research, brief-writing, and courtroom 

appearances, the full $35 per hour should be allowed. 

: 

| 

After the case was remanded to the district court, Leventhal 
worked diligently to develop the certification procedure 
mandated by the Supreme Court, and to ascertain the 

eligibility vel non of each of the private schools seeking 

] continuing textbook aid. The value of these contributions 

| to the court and to his clients cannot be overstated. His 

| 141.5 claimed hours for this period are fully deserved and 
| will be remunerated at $40 per hour. 

In the Supreme Court, both Leventhal and Nabrit claim 

significant amounts of time, at $50 per hour, which total 

231 hours spent in prosecuting the appeal. While $50 per 
hour is clearly not unreasonble for advocacy before the 
Supreme Court of the United States, wé cannot believe that 
all the time spent in preparation there was reasonably 

necessary. Consequently, we reduce Nabrit's claimed hours 

| from 48 to 35, and Leventhal's from 183 to 115. This 

: reduction reflects our opinion of the amount of time neces- 

sary to properly prepare this case for appellate review. 

Our final award to plaintiffs' counsel, then is as follows: 

  

: Leventhal 

| 116.35 hours x $20 '= $2,327 
101.50 hours =. 830. = 3,045 
152.00 hours x $35 = 5.320 

141.50 hours x $40 = 5,660 
115.00 hours x» $50 = 5,750 

$22,102 

Nabrit 
35 hours = $50 = $1,750 

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» 

. . 
. 

  

Finally, we should perhaps consider the question of 

against whom the attorneys' fee and cost award ought to be 

assessed. The nominal defendants -- the members and executive 

secretary of the Mississippi State Textbook Purchasing Board 

(Board) -- are obvious candidates to bear the loss, but in our 

opinion it would be grossly inequitable to impose a personal 

liability on them. This inequity becomes quite apparent upon 

an examination of applicable state law relating to the distri- 

bution of state-owned textbooks. 

The five-person Board, under state law, consists of the 

governor and the state superintendent of education, who serve 

without pay; and three professional educators appointed by the 

governor, who receive only nominal compensation. Miss. Code 

Ann. § 6634, 6639 (1942). The executive secretary, an appointee 

of the Board, is an administrative officer, without policy-making 

powers and carries out only such ministerial duties as may be 

specified by the Board. Miss. Code Ann. § 6634 (1942). 

It must be emphasized that all individual defendants, 

the Board members as well as the executive secretary, acted 

pursuant to the mandate of state law. Miss. Code Ann. § 6656 

(1942) commanded: 

"The books herein provided by the state 
textbook purchasing board shall be distributed 
and loaned free of cost to the children of the 
free public schools of the state and of all 
other schools located in the state, which main- 
tain educational standards equivalent to the 
standards established by the state department 
-0f education for the state schools." (Emphasis 
added) 

  

  

  

  

This statutory imperative removed any room for the 

exercise of discretion by the defendants, for all schools within 

the state meeting the educational standards prescribed by the 

State Board of Education -- standards over which the defendants 

had no control -- were required to be supplied books for the 

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benefit of their students. Thus, in order for the individual 

defendants to have conformed to Fourteenth Amendment standards, 

they would have been required to radically depart from the 

clear words of the statute. Of course, while contrary state 

law cannot permit state officials to trample federal requirements, 

the long-unchallenged existence of this state arrangement regard- 

ing supplying all children with free state textbooks, when 

questioned in a case of first impression, clearly provides 

"special circumstances" which would render inequitable the 

assessment of an award against these individuals in their per- 

11/ 
sonal capacities.— The realities of this case, it must be 

said, impel a conclusion that the Board members, when the law- 

suit assailed their conduct, were simply carrying on a state 

practice which had been popularly accepted for almost 30 years. 

Although this action, first begun under the aegis of 

42 U.S.C. § 1983, was not maintainable against the Board as a 

state agency, since it was not a "person" within the meaning 

of the statote ,32/   the continuation of the unconstitutional 

practice of extending state textbooks to segregated academies 

is a reflection of deliberate state policy, undertaken despite 

the strictures of the Fourteenth Amendment. It was so treated 

  

11/ This result dictates that, if we are mistaken in our 
~~ Eleventh Amendment analysis, we would refrain from any 

imposition of personal liability against the individual 
defendants, convinced as we are that, under Northcross, 

supra, recovery from them should not be had under § 718, 

because of unique circumstances. Our conclusion that no 
award would be proper agsinst the individual defendants 
in this action under § 718 also pretermits any problems 
posed by Wood v. Strickland, === US =---, 43 1 ed 24 214 
(1975), and the immunity possessed by public officials. 

  

12/ See City of Kenosha v. Bruno, 412 US 507, 37 L ed 24 10° 

41973); Cason v. City of Jacksonville, 497:F.28 949 (5th 

Cir. 1974); Weathers v. West Yuma County School District 
R~JI~1, 387 PF. Supp. 552 {D.. Colo. 1274). 

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by the Supreme Court in its unanimous opinion on the merits, 

and no good reason exists to change the cast of this action at 

this late date. Section 718 is aimed at racial discrimination 

practiced in the state's name, and the fact that the century-old 

language of § 1983 limits its effect to a "person" is what can 

only be regarded as a fiction which Congress unmistakably chose 

to abandon in the enactment of § 718 as a specific remedy to 

achieve Fourteenth Amendment compliance in the field of elemen- 

tary and secondary education. We therefore, as § 718 requires, 

place liability on the Mississippi State Textbook Purchasing 

Board as a state agency, in its official capacity, for the 

amount of the attorney's fees and costs herein adjudged to be 

owing. 

An order will be entered accordingly. 

This, 2nd day of March, 1976. 

nn Hii & 7%; Kea ds 
Chief Judge 

United States District ciple 

  

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