Supplemental Brief of Defendants-Appellees

     [||b1e5b332-3c46-4b8c-af8e-83aef7ce2c49||] 76-1207 

United States Gaurt of Appeals 
FOR THE FIFTH CIRCUIT 

NO. 76-1207 

REBECCA E. HENRY, ET AL., 

Plaintiffs-Appellants 

versus 

THE CLARKSDALE MUNICIPAL SEPARATE 
SCHOOL DISTRICT, ET AlL., 

Defendants-Appellees 

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

SUPPLEMENTAL BRIEF OF 
DEFENDANTS ~-APPELLEES 

SEMMES LUCKETT 
121 Yazoo Avenue : 

Clarksdale, Mississippi 38614 

Attorney for Defendants-Appellees 

EE ET 

A B Letter Service, Inc., 327 Chartres S¢t., New Orlecns, La. (504) 581-5558 



Supplemental: Brief — mw mem a mm ———————————— ———— 1 

1. Should Section 718 of the Emergency 
School Act, 20 U.S.C. #1617 (Subp. II 
1972), be Applied Retroactively?—=——=——- 1 

2. 1s the Plaintiff's Request for 
Attorneys' Fees, Initially made in 
their brief on Appeal in Henry v. 
Clarksdale Mun. School Dist., 480 F.2d 
583 (5th Cir. 1973) (Clarksdale 1V), 
Sufficient to put fees incurred prior 
to that time in issue? Do due Process 
Considerations preclude such an appli- 
cation? Does Bradley v. Richmond 
School Bd., 416 U.S. 696 (1974), 
allow it?=——— mmm 3 

3. What Effect Does the Following 
Language in Clarksdale IV have on the 
present litigation: 

The District Court shall also grant 
a hearing to determine whether or not 
the Appellants' actions in this lawsuit 
were carried out in an "unreasonable 
and obdurately obstinate" manner in the 
Years preceding July 1, 1972, so as to 
entitle appellees to be awarded reason- 
able attorneys? fees for services before 
that date. Id. at 585-86w=————emmm—- 5 

4. More specifically, is the finding of 
the District Court that this Litigation 
had come to an end before a request for 
fees had been made precluded by the 
above language?-—-—————— mm mmm 7 

5. Is this case more closely analogous to 
Brewer v. School Bd. of Norfolk, 500 

F.24 1129 (4th Cir. 1974), or Scott v. 
Winston Salem/Forsyth Cty. Bd. of Educ. 
400 F.Supp. 65 (M.D.N.C.), Aff'd 
without opinion, 530 F.2d 969 (4th 
Cir. 1975) === mmm 8 



ii 

— — — — — 

PAGE NO. 

6. Were Brewer and Scott Correctly 
Decided ?===——— mmm _ 10 

The Actions of Defendants-Appellees do not 
Justify a requirement that they pay the 
Attorneys' fees for their Opponentg——-—- 13 

Conclusion——————— mmm __ 22 



LIST OF AUTHORITIES 

Page No. 

Austin Independent School District v. U. S. 
50 L. Ed. 2d 603 === mee 15 

Bradley v. School Board of Richmond, 94 S.Ct. 2006, 
40 L.. Ed. 476 (May 15, 1974) ~~ mrwmceccm eer mm nem 2 

Bradley v. Richmond School Bd., 416 U.S, 696, 40 1... Ed, 
2d 476, 495 mmm 5 

Bradley v. School Board of City of Richmond, Va. 
345 F.2d 310, 32] ————— 12 

Brewer v. School Bd, of Norfolk, 456 F.2d 943 ~————memm—- 8 

Green Vv. School Board of New Kent County, 20 1, Ed, 24 
716 === mm ee 15 

Hills v. Gautereaux, 47 L.Ed. 24 792, S0l —=memmemimm wow. 16 

Horton v. Lawrence County Board of Education, 449 F.2d 
793, 794 —— mmm 5 

Johnson v. Combs, 471 F.2d 84, 86-87 (Dec. 6, 1972) —=w—- 1 

Keyes v. School District No. 1, Denver, Colorado 413 U.S. 
189, 37, L.Ed. 2d 548 —==———— me 15 

Milliken v. Bradley, 41 L.Ed. 1069, 1087 ——=——meemmemem 16 

Milliken v. Bradley, 418 U.S. 717 —————emmmmmmm ee ————— 19 

Pasadena City Board of Education v. Spangler, 49 L.Ed,.24 
599 (June 28, 1976) ==—————— mmm 8 

Scott v. Winston Salem/Forsyth City. Bd. of Educ. 400 
F.Supp, 65 (M.D. N.C.}, aff'd without opinion, 530 7.24 
969 (4th Cir. 1975) ==————m— mm 10 

Spencer v. Rugler, 30 1, Bd, 24 723 aff. 326 FP. Supp. 1235 20 

Spencer v. Kugler, 30 1L..B4, 24 703, 326 FF. Supp. 1235 
(DeNoJ.) === mmm ee ee 21 

Swann v. Charlotte-Mecklenburg Board of Education, 28 

L.Ed.2d 554 —————— mmm 16 

Tasby v. Estes, 416 F.Supp. 644 (D.C.N.D. Texas, July 20, 
1976) === 10 

Texas Educational Agency v. U.S., 467 F.2d at 884 —-—————- 17 



LIST OF AUTHORITIES (continued) 

Page No. 

Thompson v. School Board of City of Newport News, Va., 
472 P.24 177 (Ath Cir, 19727) emma oo mio ——————m i ——— 11 

Thompson v. Madison County Board of Education 496 F.2d 
682 (June 20, 1974) 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR. THE FIFTH CIRCUIT 

REBECCA E. HENRY, ET AL., 

Plaintiffs-Appellants, 

THE CLARKSDALE MUNICIPAL SEPARATE 

) 
) 
) 

) 
VERSUS ) NO. 76-1207 

) 
SCHOOL DISTRICT, ET AL., ) 

) 
) Defendants-Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE NORTHERN DISTRICT OF MISSISSIPPI 

SUPPLEMENTAL BRIEF OF DEFENDANTS-APP ELLEES 

This supplemental brief is submitted pursuant to the 

directions of the Clerk of this Court, contained in his 

letter dated March l6, 1977. 

(1) SHOULD SECTION 718 OF THE EMERGENCY SCHOOL 
ACT, 20 U.S.C. #1617 (SUPP. II 1972), BE APPLIED 
RETROACTIVELY? 

In Johnson v. Combs, 471 F. 2d 84, 86-87 (Dec. 6, 1972), 

this Court held that the statute is not to be applied retro- 

actively to the expenses incurred during the years of litiga- 

tion prior to its enactment, on the ground that "a retroactive 

application of this statute would punish school boards for 



good faith action in seeking the guidance of the courts to 

determine what was required of them," and would not serve the 

purpose of encouraging future legal challenges of segregated 

school systems. 

In Thompson v. Madison County Board of Education, 496 F. 

24 682 (June .20, 1974), this Court, on the basis of the 

decision of the Supreme Court in Bradley v. School Board of 

Richmond, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (May 15, 1974), 

that the statute is applicable to litigation predating, but 

pending on appeal, on the effective date of the statute 

unless the award would cause "manifest injustice,” recognized 

that the retroactive applicability of the statute was con- 

trolled by the decision of the Supreme Court in Bradley. 

Bradley, as recognized in Thompson, requires the conclu- 

sion that Section 718 is applicable to litigation predating 

its effective date, which includes the case before the court, 

if the litigation was pending on appeal on its effective date 

of July 1, 1972, and if circumstances which would render an 

award of attorney's fee unjust. 

This case, as to all of the issues raised by the complaint, 

was terminated by the district court's order of May 27.1971, 

described by the district court as "a terminal plan of pupil 

assignment," from which no appeal was prosecuted by plaintiffs- 

appellants. 



Because the record in this case demonstrates that the 

School Board, from the beginning of this case, has made every 

conceivable effort to operate its schools in conformity with 

the requirements of the Constitution of the United States and 

the decisions of the Supreme Court, and that its plan for the 

operation of the schools of the district, out of which the vast 

majority of the litigation developed, did, in fact, conform to 

the requirements of the Constitution of the United States and 

the decisions of the Supreme Court, as the subsequent decisions 

of that court conclusively show, it would be cruelly unjust to 

require the school district to pay the fee of the attorneys 

who opposed the implementation of the plan. 

Those two facts preclude the retroaction application of 

Section 718 in this case. 

(2) IS THE PLAINTIFF'S REQUEST FOR ATTORNEYS 

FEES, INITIALLY MADE IN THEIR BRIEF ON APPEAL IN 

HENRY V. CLARKSDALE MUN. SCHOOL DIST., 480 F. 2d 583 

(5TH CIR. 1973) (CLARKSDALE IV), SUFFICIENT TO PUT 

FEES INCURRED PRIOR TO THAT TIME IN ISSUE? DO DUE 

PROCESS CONSIDERATIONS PRECLUDE SUCH AN APPLICATION? 

DOES BRADLEY V. RICHMOND SCHOOL BD., 416 U.S. 696 

(1974), ALLOW IT? 

The motion of plaintices for an award of attorney's fee 

mentioned in the question was a request for a fee for services 

rendered in connection with the appeal from the order requiring 

a limited transportation of pupils. It was addressed to this 

Court, was included in the brief filed by them with this Court, 

and was in this language: 



"Plaintiffs respectfully move this Court for 

an award of a reasonable attorney's fee, in the 

amount of $875., to be taxed as costs incident to 

this appeal." 

Such a request, limited as it was to a request for an 

attorney's fee for services in connection with the appeal from 

an order limited to the transportation of pupils, and limited 

as it was to an allowance of $875.00, was not a request for 

fees for services rendered from the beginning of the litiga- 

tion. By no stretch of the imagination can it be so construed. 

Incidentally, the issue raised by that motion of plain- 

tiffs has been passed on by the district court, which awarded 

plaintiffs a fee for such services, and for all other services 

rendered since the effective date of Section 718, and such 

award has been paid to plaintiffs by defendants-appellees. 

When it is remembered that it is the plaintiffs' request 

for an attorney's fee which was made in their brief on appeal 

from the order of the district court on the issue of trans- 

portation of pupils, which is the application being discussed, 

and that such request was limited to an allowance of $875.00 

for services incident to such appeal, it cannot be said that 

due process considerations precluded such an application. 

Had it been a request for an attorney's fee for services 

rendered from the beginning of this litigation, on the ground 

that defendants-appellees' actions in the lawsuit were carried 

4 



out in an "unreasonable and obduratey obstinate manner," or 

on the ground that Section 718 required such an allowance, due 

process considerations would have precluded the filing thereof 

in this court. Horton v. Lawrence County Board of Education, 

449 F. 24 793, 794. 

Bradley v. Richmond School Bd., 416 U.S. 696, 40 L. Ed. 2d 

476, 495, clearly does not allow an application for an award 

of attorney's fees to be addressed to this court, a court of 

appeals, based either on the ground that Section 718 requires 

such an allowance or that the actions of defendants-appellees 

justify it. Bradley held that such an application, based on 

Section 718, must be first passed on by the appropriate district 

court, and it should also be kept in mind that it did not auth- 

orize the allowance of an attorney's fee for services rendered 

prior to the filing of a motion for such award. 

(3) WHAT EFFECT DOES THE FOLLOWING LANGUAGE 

IN CLARKSDALE IV HAVE ON THE PRESENT LITIGATION: 

THE DISTRICT COURT SHALL ALSO GRANT A HEARING 

TO DETERMINE WHETHER OR NOT THE APPELLANTS' ACTIONS 

IN THIS LAWSUIT WERE CARRIED OUT IN AN "UNREASONABLE 

AND OBDURATELY OBSTINATE"' MANNER IN THE YEARS PRECED- 

ING JULY. 1, 1972, SO AS TO ENTITLE APPELLEES TO BE 

AWARDED REASONABLE ATTORNEYS' FEES FOR SERVICES BE- 

FORE THAT DATE, ID. AT 585-86, 

The first motion ever filed by the plaintiffs in the 

district court asking for an award of attorney's fees was 

filed on October 10, 1975. It was, and is, the only motion 



ever filed by them in this case, asking for the allowance 

of an attorney's fee, other than the motion made by them 

in their brief on appeal from the order of the district 

court on the issue of transportation of pupils, which was 

addressed to this court and was limited to a request for an 

attorney's fee of $875.00 for services incident to such 

appeal. 

This is an appellate court. It has no jurisdiction other 

than that conferred upon it by statute, Section 1291 of Title 

28 of U.S.C.A., which is to review and correct final decisions 

of the District Courts of the United States in this circuit. 

Hence it has neither power nor authority to create issues 

between the parties, which it seems to have tried to do when 

it gave voice to the quoted language on June 22, 1973. 

Plaintiffs, prompted by such language of the court, filed 

a motion in accordance therewith on October 12, 1975. 

The district court held the hearing to determine the 

issue enunciated by this court. 

Consequently the quoted language had the effect which 

was apparently intended, i.e., to bring about a hearing in 

the district court to determine whether or not the appellants’ 

actions in this lawsuit were carried out in an "unreasonable 



and obdurately obstinate" manner in the years preceding July 

1, 1972, so as to entitle appellees to be awarded reasonable 

attorneys' fees for services before that date. 

(4) MORE SPECIFICALLY, IS THE FINDING OF 
THE DISTRICT COURT THAT THIS LITIGATION HAD COME 
TO AN END BEFORE A REQUEST FOR FEES HAD BEEN MADE 
PRECLUDED BY THE ABOVE LANGUAGE? 

Any motion for the award of an attorney's fee, whether 

based on Section 718 or on the ground of "unreasonable and 

obdurately obstinate" conduct), had to be addressed to the 

district court and determined by it, after the party asked to 

pay the attorney's fee had had his day in court. On that 

occasion such party had to be accorded his right to show that 

such a motion was not well taken, one ground of which would 

have been that the case had already been concluded by a final 

decree in which all issues originally raised in the case had 

been disposed of. Anything less would be nothing more than 

a Star Chamber proceeding. 

It goes without saying that such language, given the 

fact that it concerned no proceeding which had theretofore 

been heard in the case and was extraneous to the issues before 

the court, could not have foreclosed the right of defendants- 

appellees to present a defense to any motion invited thereby 

and could not have required the district court to deny the 

existence of a plain fact in the case. 



Incidentally, the case itself, at the time the motion 

for an award of attorneys' fees was filed on October 10, 1975, 

was moot. See Pasadena City Board of Education v. Spangler, 

49 IL, Fd. 24 599 (June 28, 1976). 

(5) IS THIS CASE MORE CLOSELY ANALOGOUS TO 
BREWER V. SCHOOL BD. OF NORFOLK, 500 F. 2d 1129 
(4th CIR. 1974), OR SCOTT V. WINSTON SALEM/FORSYTH 
CTY. BD. OF EDUC., 400 F. SUPP. 65 (M.D.N.C.), 
AFF'D WITHOUT OPINION, 530 F. 2d 969 (4th CIR. 1975)? 

Brewer v. School Bd. of Norfolk, 456 F. 2d 943, was 

decided by the Court of Appeals for the Fourth Circuit March 7, 

1972. In it the court held that its direction that the School 

Board be required to provide free transportation to the pupils 

requiring transportation under a court ordered desegregation 

plan conferred an economic benefit upon their parents which 

was somewhat analogous to the creation of a special fund and 

on that basis reversed the District Court and directed it to 

determine and award fees for the plaintiffs' attorneys. 

When the case got back to the District Court, that court 

awarded plaintiffs attorneys' fees but limited it to services 

performed in connection with the free transportation issue. 

Section 718 had become effective July 1, 1972. Accord- 

ingly plaintiffs again appealed the District Court's decision 

on their motion for an award of attorneys' fees, contending 

that their fees should not have been limited to compensation 



for those services rendered in connection with the free 

transportation issue. 

The Court of Appeals again reversed the District Court 

(500 F. 2d 1129); this time "with instructions to determine 

and award to the plaintiffs such reasonable attorneys' fees 

as may be appropriate under #718 as construed by the Supreme 

Court in Bradley." 

been filed with the District Court in an early stage of the 

litigation and requested compensation for services rendered 

long before the free transportation issue arose in the ca 

Brewer and the case at bar differ from each other in 

that the controlling facts in Brewer are similar to those 

in Bradley and the controlling facts in this case are not. 

The distinguishing fact in Brewer is that the motion of 

plaintiffs therein for an award of attorneys' fees for ser- 

vices predating the effective date of Section 718 was before 

the District Court, and hence a live issue in the case, 

prior to the effective date of Section 718. The situation 

of the motion for an award of attorneys' fees in Brewer was 

similar to the situation of such motion in Bradley, in that 

both were unresolved at the time Section 718 became effective. 

In this case no motion for an award of attorneys' fees 

was filed with the District Court by plaintiff until October 

10, 1975, 



The foregoing interpretation of Brewer, i.e., that it 

fell within the purview of Bradley because the propriety of 

the motion therein for the award of attorneys' fees was pending 

before the court when Section 718 became effective, is borne 

out by what was said in Tasby v. Estes, 416 F. Supp. 644 

(D.C. N.D. Texas, July 20, 1976). 

Scott and the case at bar are analogous in that in both 

of them a Circuit Court of Appeals directed that plaintiffs 

should be awarded fees for services since July 1, 1972, that 

the same were thereafter fixed by the district court, and that 

the same were thereafter paid by the School Board. 

They are also analogous in that in both of them there 

was no motion for the allowance of attorneys' fees to 

plaintiffs pending unresolved at the time of the effective 

date of Section 718. 

They are also analogous in that in neither of them was 

an allowance of attorneys' fees to plaintiffs required in 

the interests of justice and fairness. 

The case at bar is, of course, more closely analogous 

to Scott than to Brewer. 

(6) WERE BREWER AND SCOTT CORRECTLY DECIDED? 

In Scott v. Winston Salem/Forsyth Cty. Bd. of Educ., 400 

F. Supp. 65 M,D.N.C.), aff'd without opinion, 530 F. 24 969 

10 



(4th Cir. 1975), the Court of Appeals, in disposing of an 

appeal fromithe District Court's order of July 21, 1972, 

held that the plaintiffs were entitled to an allowance of 

attorneys' fees under #718 of the Emergency School Aid Act 

of 1972 (citing Thompson v. School Board of City of Newport 

News, Virginia, 472 F. 24 177 (4th Cir. 1972)), and remanded 

the case, with directions to make a reasonable allowance of 

attorneys' fees for services rendered therein by plaintiffs 

attorneys subsequent to June 30, 1972. 

On September 19, 1973, the District Court fixed a reason- 

able fee for services performed by the plaintiffs' counsel 

between June 30, 1972, and June 11, 1973 (the date plaintiffs’ 

counsel filed motion for allowance of counsel fees). 

On June 4, 1974, plaintiffs' counsel filed a "Motion for 

Allowance of Counsel Fees from the Initiation of this Action 

until June 30, 1972," some eight and one-half months after 

this matter was considered closed. 

The Court of Appenls was of the opinion (1) that the 

interests of justice did not require it to award attorneys 

fees to the plaintiffs in the exercise of its equitable powers 

powers on the basis of any exceptions to the "traditional 

American rule" which "ordinarily disfavors allowance of 

attorneys' fees in the absence of statutory or contractual 

authorization;" (2) that Bradley should be read not as 

requiring general retroactive application of #718, but rather 

as deciding that #718 is applicable to "a situation where the 

Xl 



propriety of a fee award was pending resolution on appeal 

when the statute became law;" and concluded that to award 

the plaintiffs' attorneys' fees back to 1968 would simply 

apply #718 retroactively to allow attorneys' fees to the 

prevailing party--which is not required by Bradley, nor is 

it in the interests of justice and fairness. 

Scott was correctly decided. Brewer is harder to assess. 

When it was argued before the Court of Appeals (Jan. 5, 1972) 

and when it was decided by the Court of Appeals (March 7, 1972), 

Section 718 had not become effective and the argument that 

attorneys' fees should be allowed was based on what had been 

said in Bradley v. School Board of City of Richmond, Virginia, 

345 P. 24 310, 321, to the effect that attorneys' fees, even 

in the absence of a statute, could be allowed in exceptional 

cases. The Court of Appeals then decided that insofar as the 

attorneys had succeeded in obtaining free transportation for 

their clients, a fee for such services should be awarded on the 

"common fund" doctrine. 

Before the award could be made by the district court, 

Section 718 became effective, and accordingly the basis for 

the argument that a fee should be awarded shifted to a de- 

pendence on it. Since the motion for the attorney's fee had 

been filed in the early stage of the case, and since it was 

not limited to a request for an award in the disposition of 

the free transportation issue, the Court of Appeals, when the 

12 



case again reached it, remanded the case to the district court 

"with instructions to determine and award to the plaintiffs 

such reasonable attorneys' fees as may be appropriate under 

#718 as construed by the Supreme Court in Bradley." 

Since there was a motion in Brewer for an award of 

attorneys' fees for services predating the effective date 

of Section 718, which was unresolved when Section 718 became 

effective, Brewer was correctly decided if its circumstances 

were not such as to make such an award unjust. 

THE ACTIONS OF DEFENDANTS-APPELLEES DO NOT JUSTIFY 

A REQUIREMENT THAT THEY PAY THE ATTORNEYS 'FEES FOR 
THEIR OPPONENTS 

Defendants-appellees, throughout this litigation have 

acted reasonably and responsibly and their desegregation plan 

provided plaintiffs-appellants with all rights vouchsafed to 

them by the Constitution of the United States, as interpreted 

by the Supreme Court of the United States. 

When defendants-appellees were called upon to submit a 

desegregation plan, they did not flinch from obeying the mandate 

of Brown by taking refuge in a freedom-of-choice plan. Instead, 

realizing that Brown required (a) the cessation of the practice 

of segregating pupils solely on the basis of race; (b) the 

revision of attendance areas into compact units; (c) achieving 

a system of determining admissions to public schools on a non- 

racial basis; and (d) the creation of a system not based on 

13 



color distinctions, they formulated and submitted to the dis- 

trict court a plan which met all of those requirements. 

Their plan was approved by the district court on the 

basis of Brown and the prior decisions of this court, despite 

the fact that it produced little integration of the races. 

But that was not the fault of the plan. It required, without 

possibility of avoidance, that every pupil in a zone should 

attend the school in that zone designated to serve the pupils 

in his or her particular grade, regardless of race or color. 

If the integration of the races required by the plan didn't 

occur, it was due to no fault of the plan but to the fact 

that white pupils abandoned the public schools of the district. 

Then, as now, de jure segregation results from two causes: 

(1) State laws which required the separation of the children of 

the two races in the public schools of the state, and (2) State 

action, in the form of affirmative action by a School Board of 

a particular district, which necessarily results in the separa- 

tion of the children of the two races in the public schools of 

that particular district. 

The de jure segregation which existed in the Clarksdale 

Municipal Separate School District was, of course, the result 

of the laws of Mississippi. The School Board has never taken 

any action which resulted in the separation of the children of 

the two races in the schools of the district. 

14 



The fact that Mississippi once had a law which required 

the separation of the children in public schools by race does 

not in itself support an inference that the discrimination 

caused all of the observed racial separation. See Keyes v. 

School District No. 1, Denver, Colorado, 413 U.S. 189, 37 1. 

Ed. 24 548. It does not support a judicial order that a racial 

mix must be produced throughout the school system. See Austin 

Independent School District v. United States, 50 L. Ed. 2d 603. 

The task of an equitable decree is to correct the conditions 

that offends the Constitution. A finding of a violation does 

not set a court at large to produce results that never would 

have occurred if all constitutional provisions had been ob- 

served. The court must instead order whatever steps are 

necessary for "disestablishing state-imposed segregation." 

See Green v. School Board of New Kent County, 20 L. Ed 2d 716. 

Our position is supported not only by the cases from the 

Supreme Court but also by the judgment of Congress. In the 

Equal Educational Opportunities Act of 1974, 88 Stat. 516, 

20 U.8.C, (Supp. V) 1712, Congress provided that "in formu- 

lating a remedy for a denial of equal educational opportunity 

or a denial of the equal protection of the laws, a court * * * 

shall seek or impose only such remedies as are essential to 

correct particular denials of equal educational opportunity 

or equal protection of the laws" (emphasis added). 

15 



The objective of defendants-appellees' plan thus had to 

be the elimination of the effects of the Mississippi laws re- 

quiring the separation of the pupils of the two races in the 

public schools of the district. Thenceforth all children, 

regardless of tnalic race or color, had to attend that school 

which he or she would attend had there never been any such 

laws on the books. Defendants-appellees' desegregation plan 

met such objective. 

Whatever doubt may have existed about the remedy required 

of a school district has been put to rest by several recent 

decisions of the Supreme Court of the United States. 

In the first place, the remedial powers of the federal 

courts to restructure school districts are not plenary but 

can be exercised only on the basis of a constitutional violation. 

Milliken v. Bradley, 41 L, Fd, 1062 1087, quoting Swann v. 

Charlotte-Mecklenburg Board of Education, 28 L. Ed. 24 554. 

Hills v. Gautereaux, 47 1.. Fd. 24 792, 801. 

Secondly, "the nature of the violation determines the 

scope of the remedy." Milliken v. Bradley 41 L. Ed. 2d 1069, 

1087, quoting Swann v. Charlotte-Mecklenburg Board of Education, 

28 L., BA, 554. Once a constitutional violation is found, a 

federal court is required to tailor "the scope of the remedy" 

to fit "the nature and extent of the constitutional violation.” 

Milliken v. Bradley, 41 L. Ed. 2d 1069, Swann, supra, 28 L, Fd. 

2d 554. Hills v. Gautereaux, 47 L. Ed. 24 792, 801. As the 

court said in Milliken v. Bradley, 41 L. Ed. 2d 1069, 1092. 

16 



"The remedy is necessarily designed, as all 

remedies are, to restore the victims of the dis- 

criminatory conduct to the position they would 

have occupied in the absence of such conduct.” 

Since the only constitutional violation with respect to 

the operation of the schools of the district consisted of the 

School Board's obedience to the laws which required the sep- 

aration of the children in the public schools by race, and 

since the remedy was to be tailored to fit the nature and 

extent of the constitutional violation, to the end that the 

victims of such discriminatory laws would be restored to the 

position they would have occupied in the absence of such laws, 

it is submitted that what the School Board was required to do 

was to disregard such state laws and to develop a plan which 

would ensure their victims attendance at such schools as they 

would have attended had there never been any such laws on the 

books. 

What has just been said is exactly what eight judges of 

the en banc court in Texas Educational Agency v. United States 

held (see 467 F. 2d at 884), that the goal of a remedial order 

in a school desegregation case should be to put the school 

system and its students where they would have been but for the 

violation of the Constitution. 

A requirement that a racial mix be produced throughout 

the whole system would be justified only if there would have 

17 



been a racial mix throughout the whole system had there never 

been a Mississippi law requiring the separation of the chil- 

dren of the two races in public schools. But, as we have 

noted, Keyes holds that an inference that all observed 

racial separation cannot be drawn from the fact that there 

were such laws on the books. Only such racial separation as 

was caused by such laws can be the subject of the remedy called 

Sg prior existence of such laws. 

The existence of schools predominantly attended by 

members of one race does not in itself amount to racial dic- 

crimination; if it were otherwise, there would be no meaning 

to the requirement of "state action" as a precondition to a 

violation of the Fourteenth Amendment. The attribute that 

makes a dual system can be eliminated without an insistance 

upon a racial composition in each school that in some degree 

reflects the racial composition of the school district as a 

whole. This is the critical line between racial discrimination 

and its effects, on the one hand, and mere difference of racial 

composition of attendance, on the other. 

So long as school authorities operate "just schools" 

instead of one set of schools for blacks and another set for 

whites, it matters not at all whether one particular school has 

more blacks than whites. The schools of Vermont are not segre- 

gated even though most of them are all white. The Fourteenth 

Amendment does not prefer black schools, white schools, or 

18 



racially balanced schools--it demands, instead, a policy of neutrality 

in which neither merit nor demerit is assigned on the basis of 

color, except insofar as it necessary to rectify the effects of 

past distinctions made on this impermissible basis. Cf. Milliken 

vy. Bradley, 418 U.S. 717. 

But this Court, when it failed to approve defendants- 

appellees' desegregation plan in its opinion of March 6, 

1969 (409 F. 2d 682), was of a different (and erroneous) 

mind. It held that such desegregation plan was defective 

in that it did not have, as one of its objectives, "promotion 

of desegregation." (By "promotion of desegregation," the 

court meant promotion of integration. It had previously 

held the two terms synonymous) It said: 

"But there is a sixth basic criterion the Board 

did not use: promotion of desegregation. . . . In 

Davis v. Board of School Commissioners of Mobile, 

Alabama, 5 Cir. 1968, 393 F. 2d 690, we considered it 

our primary concern 'to see that attendance zones in 

the urban areas * * * (are) devised so as to create 

a unitary racially nondiscriminatory system.' We held: 

We therefore accept the board's policy decision 

in this regard but insist on a survey and new 

effort to draw zone lines on a nonracial basis 

so that the attendance-area plan will promote 

desegregation rather than perpetuate segregation 

19 



It is intended that attendance areas be designed 

according to strictly objective criteria with the 

caveat that a conscious effort should be made to 

move boundary lines and change feeder patterns 

which tend to preserve segregation. 393 F. 2d at 

694." 

it 
The district court, when, on remand, /had to reconsider 

the plan, said: 

"The one defect in that concept is that 

it hadn't produced an acceptable degree of 

integration. If it had, why, that would be an 

ideal plan." 

In so dediding; This Court, it is submitted, erred. 

The Constitution forbids only racial discrimination and its 

effects; it does not prohibit racial imbalance in the schools 

if that imbalance arises from causes other than official 

racial discrimination. This Court's apparent belief that 

racial imbalance, however caused, was a violation of the 

Constitution was contrary to the requirement that the racial 

separation have been caused by acts of the State intended to 

affect the operation of the schools (rather than, for example, 

the acts of private individuals choosing where to live). See 

Reves v., School District No. 1, Denver, Colorado, 413 U.S. 189; 

Spencer v. Kugler, 30 L. Fd, 24 723, affirming 326 FP. Supp. 1235. 

20 



As has been noted, the goal of a remedial order in a 

school desegregation case should be to put the school system 

and its students where they would be but for the violation of 

the Constitution. If, as a result of housing patterns which 

normally and naturally developed from the desires of the 

people of the two races to reside in separate neighborhoods, 

schools attended by pupils of a particular race occurs, no 

Constitutional violation results. Racial discrimination in 

housing, if there be such in a particular community, should 

be attacked directly and eliminated as expeditiously as 

possible. But for this Court to infer intent from effects 

alone in situations like the one which exists in Clarksdale, 

Mississippi, is to abolish the intent requirement and to 

abolish the further requirement that the racial separation 

have been caused by the acts of the State intended to affect 

the operation of the schools (rather than, for example, the 

acts of private individuals choosing where to make their 

homes). See Spencer v. Kugler, 30 L. Ed. 2d 703, 326 PF, 

Supp.” 1235 4D. N.J.). 

This Court's decision would have been correct only if 

a State has an affirmative duty to eliminate racially dis- 

proportionate school populations in different school dis- 

tricts. There is no such duty, however, unless the dispro- 

portion in the racial characteristics of the students of the 

different districts was caused by state action. So long as 

school authorities operate "just schools" instead of one set 

21 



of schools for blacks and another for whites, it matters not 

at all whether one particular school has more blacks than 

whites. The Fourteenth Amendment does not prefer black 

schools, white schools, or mixed schools--it demands, instead, 

a policy of neutrality under which neither merit nor demerit 

is assigned on the basis of color, except insofar as it 

necessary to eradicate the effects of distinctions previously 

made in the operation of the schools on this impermissible 

basis. 

CONCLUSION 

Defendants-appellees' desegregation plan provided a 

facially neutral neighborhood assignment policy which produced 

no more separation than occurs in the residential patterns of 

the community. It should therefore have been affirmed by this 

Court. The school district should not have been required to 

pair zones and transport pupils in an effort to produce a 

racial mix in each of its schools satisfactory to this Court. 

There would have been no racial mix in many of its schools had 

there never been a Jim Crow law in the statutes of Mississippi. 

As the Supreme Court said in Austin Independent School District 

v. United States, 50 L. Ed. 2d 603: 

"The principal cause of racial and ethnic im- 

balance in urban public schools across the country-- 

North and South--is the imbalance in residential 

22 



patterns. Such residential patterns are typically 

beyond the control of school authorities. For ex- 

ample, discrimination in housing--whether public or 

private--cannot be attributed to school authorities, 

Economic pressures and voluntary preferences are the 

primary determinants of residential patterns." 

This Court, in assessing defendants-appellees' desegrega- 

tion plan, should have had in mind what was said in Austin, 

supra. 

"In such cases, this Court has repeatedly empha- 

sized that 

"the task is to correct by a balancing of the 

individual and collective interests, 'the con- 

dition that offends the Constitution.' A federal 

remedial power may be exercised 'only on the basis 

of a constitutional violation' and, '(a)s with any 

equity case, the nature of the violation determines 

the scope of the remedy.'' Milliken v. Bradley, 418 

US 717, 738, 41. L Fd 2d 1069, 94 S Ct 3112 (1974), 

quoting Swann v. Charlotte-Mecklenburg Board of 

Pducation, 402 US 1, 15, 28 L Fd 24 554, 91 8 Ct 

1267, (1971) ." 

Just as in Austin this Court required a plan designed 

to achieve a degree of racial balance in every school in 

Austin, this Court required such a plan in this case. And 

for the same reason as the plan in Austin was held to be too 

23 



sweeping, the plan required in this case was too sweeping. 

"A remedy simply is not equitable if it is disproportionate 

to the wrong." Austin, 50 L. Ed 2d, at page 605. 

In most cases such as this, where an application for an 

award of attorneys' fees is before the court, the defendant 

in the case insists that an award against it would be unjust 

because throughout the litigation it had been trying to comply 

with the shifting decisions of the courts and that its failure 

to comply therewith was due to its inability to discern ex- 

actly what it should have done. In a sense the same thing 

has happened in this case, but to this Court instead of a 

litigant. The Supreme Court simply took too much time in 

deciding that de facto segregation--that which results from 

fortuitous housing patterns--does not offend the Constitution, 

and that racially imbalanced schools are not inherently un- 

equal. 

But in any event, an award of attorneys' fees against 

defendants-appellees would be cruelly unjust, for not only 

have their actions in this lawsuit not been carried out in 

an unreasonable and obdurately obstinate manner in the years 

preceding July 1, 1972, but their actions have been consistent 

with what we now see to have been the requirements of the 

Constitution, as enunciated by the Supreme Court of the 

United States. 

Respectfully submitted, 

SEMMES LUCKETT 
121 YAZOO AVENUE 

CLARKSDALE, MISSISSIPPI 38614 

sa oEnsy for Defendants-Appellees 



CERTIFICATE OF SERVICE 

Copies served on attorneys for opposite party on May 

2, 1977. 

orney for Defendants-Appellees A
 

Printed copies mailed this 

9th day of May, 1977. 

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