Northcross v. Memphis City Schools Board of Education Motion for Leave to File Petition for Rehearing

    IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 72-1630 and 72-1631

DEBORAH A. NORTHCROSS, et al.,
Plaintiffs-Appellees- 
Cross Appellants,

v .

BOARD OF EDUCATION OF THE MEMPHIS 
CITY SCHOOLS, et al.,

Defendants-Appellants- 
Cross Appellees.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division

MOTION FOR LEAVE TO FILE PETITION FOR REHEARING 
AND SUGGESTION FOR REHEARING EN BANC OUT OF TIME; 

PETITION FOR REHEARING AND SUGGESTION FOR 
REHEARING EN BANC

LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
URAL B. ADAMS, JR.
Ratner, Sugarmon & Lucas 
525 Commerce Title Bldg. 
Memphis, Tennessee 38103

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellees-Cross Appellants



IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 72-1630 and 72-1631

DEBORAH A. NORTHCROSS, et al.,
Plaintiffs-Appellees- 
Cross Appellants,

v.
BOARD OF EDUCATION OF THE MEMPHIS 
CITY SCHOOLS, et al.,

Defendants-Appellants- 
Cross Appellees.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division

MOTION FOR LEAVE TO FILE PETITION 
FOR REHEARING AND SUGGESTION FOR REHEARING 

OUT OF TIME

Plaintiffs-appellees-cross appellants herein, by their 
undersigned counsel, respectfully pray pursuant to Rules 
2, 26(b), and 40(a), F.R.A.P., that this Court enter its 
order permitting the filing of the accompanying Petition for 
Rehearing and Suggestion for Rehearing En Banc out of time, 
said time having elapsed on or about September 12, 1972, for 
the following reasons:



1. The subject of the within Petition for Rehearing is 
the disallowance by this Court in its August 29, 1972 judgment 
on these appeals of the award of costs in favor of plaintiffs- 
appellees-cross appellants.

2. The majority opinion of the panel issued August 29,
1972 contains no reference to the matter of costs. There is 
no indication in the opinion that the Court was exercising its 
power to deny costs. The words "no costs allowed" do appear
at the end of the dissenting opinion, but they are not separately 
paragraphed and plaintiffs did not understand them to describe 
action of the Court; rather we interpreted them consistent 
with other indications within the dissenting opinion that it 
may originally have been prepared as a majority opinion.

3. The transmittal letter from the Clerk of this Court 
dated August 29, 1972, a copy of which is attached hereto as 
Appendix A, likewise contains no indication that costs were 
not to be awarded.

4. Accordingly, plaintiffs on September 7, 1972 filed
a timely Bill of Costs [Rule 39(c) F.R.A.P.] in these appeals.

5. The mandate of this Court issued October 5, 1972, but 
it was not furnished to counsel for the parties.

6. Having had no indication from the Court with respect 
to the disposition of the Bill of Costs, plaintiffs' counsel 
on October 13, 1972 wrote the Clerk of this Court inquiring 
as to the disposition with respect to costs. (A copy of said 
letter is attached hereto as Appendix B.)

-2-



7. On October 18, 1972, the Clerk of this Court responded
giving counsel their first indication that the Court had 
directed that costs not be taxed in favor of plaintiffs on 
these appeals. (A copy of the Clerk's letter is attached 
hereto as Appendix C.)

8. The letter from the clerk was not received by under­
signed counsel until October 25, 1972 at which time counsel 
was engaged in completion of another brief due in this Court 
on October 27, 1972 (Goss v. Board of Education of Knoxville,
Nos. 72-1766 and 72-1767).

9. This Motion for Leave to File a Petition for Rehearing 
and Suggestion for Rehearing En Banc Out of Time is thus being sub­
mitted as soon as possible following the discovery by counsel
that the Court had denied the usual award of costs in favor 
of the prevailing party in these cases.

10. The inability of counsel to determine whether or not 
they were awarded costs without making special inquiry of the 
Clerk of this Court prevented filing of a petition for rehearing 
within the normal time allowed by Rule 40 F.R.A.P.

WHEREFORE, plaintiffs respectfully pray that this Court 
enter its order permitting the filing out of time of the 
accompanying Petition for Rehearing and Suggestion for Rehearing 
En Banc.

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, N.Y. 10019

URAL B. ADAMS, JR.
525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Attorneys for Plaintiffs-Appellees- 
Cross Appellants



J A M E S  A. H IG G IN S  
C L E R K

72 >30-31
O F F I C E  O F  T H E  C L E R K

U n it e d  St a t e s  c o u r t  o f  A p p e a l s
F O R  T H E  S I X T H  C I R C U I T  

C IN C IN N A T I .  O H IO  4 5 2 0 2

August 29, 1972

Mr. Louis R. Lucas
523 Commerce Title Building
Memphis, Tennessee 38103

■v/Mr. Jack Greenberg 
10 Columbus, Circle 
New York, New York 10019
Mr. Jack Petree
900 Memphis Bank Building
Memphis, Tennessee 38103

Re: Case Nos. 72-1630-31Deborah A. Northcross, et al. 
vs.Board of Education, et al.

Gentlemen:
Enclosed is a copy of the Court’s opinion 

which was announced today in the above-styled cases.
Judgments in conformity with the opinion 

have been entered today as required by Rule 36.
Yours very truly,
James A. Higgins, Clerk

Chief Deputy
Enclosure

ftpPerjDw A



October 13, 1972

Hon. James A. Higgins 
ClerkUnited States Court of Appeals 
for the sixth Circuit 

Cincinnati, Ohio 45202
Re: Northcross v. Board of Education,

Nos. 72-1630, 1631
Dear Mr. Higgins:

I wonder if you could tell me whether the man­
date which issued in the above captioned matters 
approved the bill of costs previously submitted by 
the plaintiffs Northcross et al. as appellees and 
cross-appellants.

Ihank you for your assistance.
Very truly yours.

NJ :cc
Norman Chachkin

ftfpa/w &



O F F I C E  O F  T H E  C L E R K

O
j a m e s  a . h i g g i n s  U n it e d  St a t e s  C o u r t  o f  A p p e a l s

C L E R K  F O R  T H E  S I X T H  C I R C U I T

C IN C IN N A T I .  O H IO  4 5 2 0 2

October 18, 1972

Mr. Norman Chachkin
10 Columbus Circle
New York, New York 10019

Re: Case Nos. 72-1630 & 72-1631
Northcross, et al. 
v s .
Board of Education 

Dear Mr. Chachkin:
This is in reference to your letter of October 

13, 1972, concerning the taxation of costs in the above causes.
At the direction of the court the mandate which 

issued in this cause on October 5, 1972, taxed no costs.

JAH:dk

Very^truly yours,

James A. Higgins, Clerk

i



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Nos. 72-1630 and 72-1631

DEBORAH A. NORTHCROSS, et al.#
Plaintiffs-Appellees- 
Cross Appellants,

v.
BOARD OF EDUCATION OF THE MEMPHIS 
CITY SCHOOLS, et al.,

Defendants-Appellants- 
Cross Appellees.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division

PETITION FOR REHEARING

Plaintiffs, by their undersigned counsel, respectfully 
pray pursuant to Rule 40 F.R.A.P. that this Court grant 
rehearing of its August 29, 1972 opinion and judgment in the 
above-captioned matter to the extent that such judgment fails 
to award plaintiffs their costs on appeal in each of these 
cases, and upon such rehearing, amend the judgment and mandate 
of the Court so as to award' plaintiffs their costs and reasonable 
attorneys' fees as part thereof. In support of this Petition, 
plaintiffs would respectfully show this Court as follows:



1. In No. 72-1630, plaintiffs were appellees on the 
school board's appeal contending that the district judge went 
beyond his powers in requiring minimal desegregation of the 
Memphis City school system. Plaintiffs, as appellees, urged 
that "there is no warrant for reversing the judgment below 
on any of the grounds urged by defendants" and sought vacation 
of the previously issued stay by this Court. The judgment 
of the Court affirms the order of the district court and vacates 
the stay.

2. In No. 72-1631, plaintiffs were cross appellants 
attacking the district court's failure to implement a complete 
plan of desegregation for the Memphis City schools by the 
start of the second semester of the current school year. How­
ever, plaintiffs acknowledged that execution of the district 
court's order was the only relief feasible for the second 
semester following disposition of these appeals and their 
brief concluded as follows:

For the foregoing reasons, plaintiffs-cross 
appellants respectfully pray that the stay here­
tofore granted by this Court be immediately 
vacated and that this case be remanded to the 
district court for the establishment and execu­
tion of an expedited schedule of such further 
proceedings as may be necessary to complete the 
desegregation of the Memphis public schools at 
the earliest practicable date, and in no event 
later than the commencement of the 1973-74 
school year.

The opinion of the majority grants the full relief sought by 
the plaintiffs:

Accordingly we affirm the order of the 
District Court in its entirety, but with the 
additional instruction that it prepare a 
definite timetable providing for the estab­
lishment of a fully unitary school system in 
the minimum time required to devise and



implement the necessary desegregation plan.
3. In spite of the fact that these appeals were decided 

fully in favor of the plaintiffs, the Court directed that no 
costs be taxed in their favor. (See generally Motion for
Leave to File Petition for Rehearing and Suggestion for Rehearing 
En Banc Out of Time.)

4. The majority opinion makes reference to the lengthy 
history of the instant litigation, pursued with the aim of 
bringing about constitutional compliance in the Memphis school 
system. The long and arduous history has been doubly difficult 
because, as in other school desegregation cases, private liti­
gants with limited resources are required to bear the burden
of compelling recalcitrant public officials to grant to a 
larger class constitutional rights which should already have 
been theirs to enjoy. In such circumstances it is manifestly 
unjust and unfair to require prevailing plaintiffs in school 
desegregation cases to bear their own costs.

5. Aside from the inherent inequity of denying costs 
to successful plaintiffs in school desegregation cases, the 
federal courts are now required, absent special circumstances 
which would render such an award unjust, to grant costs and 
counsel fees as part of costs to successful litigants in such 
cases. See Section 718, Education Amendments of 1972, P.L. 
92-318. (See attached hereto as Exhibit 1 portions of the 
brief for appellants in Goss v. Board of Education of Knoxville, 
No. 72-1766 and 72-1767, which deal more fully with the 
application and interpretation of Section 718.) Very clearly,

-3-



the statute carries with it the assumption that such costs 
will be awarded as a matter of normal practice, see Newman v. 
Piggie Park Enterprises, 390 U.S. 400 (1968), in school 
desegregation actions.

6. A practice of failing to award costs to black plain­
tiffs who must resist frivolous appeals in school desegregation 
cases from school boards charged with the obligation of 
protecting their constitutional rights would further add to 
the immense burdens of these "private attorneys general."

WHEREFORE, plaintiffs respectfully pray that this Court 
grant rehearing of its August 29, 1972 judgment herein and 
upon such rehearing amend its judgment and mandate to provide 
for the taxation of costs in favor of plaintiffs to include 
a reasonable attorneys' fee.

Respectfully submitted,

Louis R. Luca£
William E. Caldwell 
Ural B. Adams, Jr.

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Jack Greenberg 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellees-Cross Appellants



EXHIBIT 1



B . An Award Is Required By §718, P.L. 92-318

On July 1, 1972, the Education Amendments of 1972, P.L.
92-318, became effective. Section 718 of that Act provides:

Upon the entry of a final order by a court 
of the United States against a local educa­
tional 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 Rights Act of 1964, 
or the Fourteenth Amendment to the Constitution 
of the United States as they pertain to elem­
entary 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.

We believe that §718 must be applied to claims for counsel fees
at the appellate, as well as the trial, level; and that it
enacts the "private attorney-general" standard applicable in
cases brought under Titles II and VII of the Civil Rights Act
of 1964 and Title VIII of the Fair Housing Act of 1968 (see 

36/
§A supra).

This matter is before the Court on direct appeal from the 
district court's failure to award fees prior to the effective 
date of the act, and thus it is clearly controlled by "the 
general rule . . . that an appellate court must apply the law

■v l -̂̂ The detailed legislative history of the act is set out in
Appendix B to this Brief.

-52



in effect at the time it renders its decision." Thorpe v. 
Housing Auth. of Durham, 393 U.S. 268, 281 (1969). That is,
where an issue is before an appellate court concerning the 
propriety of a lower court's decision, and there has been an 
intervening modification of the substantive rule of law 
relating to the issue, that modification is to govern whether 
"the change was constitutional, statutory, or judicial." 393 
U.S. at 282.

This rule has been applied in cases where the change in
law modifies the substantive rights of the parties so as to
either create or destroy rights of recovery. Thus, in the
leading case in the area, United States v. Schooner Peggy, 5
U.S. (1 Cranch) 103 (1801), the question was who was entitled
to possession of a French merchant vessel seized as a prize. At
the time of seizure and the decision of the lower court the law
was in favor of the captor of the vessel. While a writ of
error was pending in the Supreme Court, however, a treaty was
entered into which established the contrary result. The Court
held, in language quoted in Thorpe:

[I]f subsequent to the judgment and before 
the decision of the appellate court, a law 
intervenes and positively changes the rule 
which governs, the law must be obeyed. . . .
If the law be constitutional . . .  I know of 
no court which can contest its obligation.

5 U.S. (1 Cranch) at 110. Accord, Carpenter v. Wabash Ry. Co,,
309 U.S. 23 (1940); Vandenbark v. Owens-Illinois Glass Co.,



311 U.S. 538 (1941); Ziffrin v. United States, 318 U.S. 73,
78 (1943); Hall v. Beals, 396 U.S. 45, 48 (1969)("we review
the judgment below in light of the Colorado statute as it now

22/stands, not as it once did").
Thorpe further establishes that a stated intent by Congress

that §718 apply to pending cases is not necessary. In Thorpe,
no such intent was expressed in the administrative regulation
involved, and the Court in no way intimated that such an

38/
expression was required. Indeed, its description of its
holding as "the general rule," strongly indicates that the 
contrary is required; that is, if a new statute is not to apply 
to pending cases it must affirmatively appear that such was the 
intent of Congress. And it is clear that that is the rule in 
the case of legislation that alters the law as to the criminality 
of conduct. Thus, in Hamm v. City of Rock Hill, 379 U.S. 306 
(1964), the Court held that the passage of Title II of the Civil 
Rights Act of 1964 made non-criminal acts that were trespass 
under state law, in the absence of an expression of Congressional 
intent to the contrary.

2L2/And see, United States v. Board of Educ. of Baldwin County,
423 F.2d 1013, 1014 (5th Cir. 1970); Hall v. St. Helena Parish 
School Bd., 424 F.2d 320, 322 (5th Cir. 1970); Citizens to 
Preserve Overton Park v. Volpe, 401 U.S. 402, 418-20 (1971); 
Johnson v. United States, 434 F.2d 340, 343 (8th Cir. 1970); 
Glover v. Housing Auth. of Bessemer, 444 F.2d 158 (5th Cir. 1971)

3J3/see Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S 
at 418-20, where the Court accepts petitioners' contention that a 
new regulation applies to pending cases even in the absence of 
any intention of a retrospective effect.

54-



Turning to the legislative history of §718, the conclusion 
is inescapable that not only is there no evidence of Congres­
sional intent that it not apply to pending cases, but that the 
contrary inference must be drawn. Neither the text of §718 nor 
the explanatory note of the conference committee report (U.S. 
Code, Cong. & Adm. News, 1972 at 2406) contains any language 
dealing with the question. As noted in Appendix B, the section 
was debated only in the Senate in April, 1971; similarly, in 
that debate, there was no discussion at all of §718's application 
to pending cases, let alone any discussion indicating an inten­
tion that it not be so applied. 117 Cong. Rec. S5483-92 (daily 
ed., April 22, 1971) and S5534-39 (daily ed., April 23, 1971).

Indeed, the only indication as to Congress' intent in 
this matter arises from the fact that §11, the original 
attorneys' fee provision as reported to the Senate as part of 
S. 1557, did expressly provide that it would apply only to 
"services rendered" after the date of enactment of the Act 
(see Appendix B, n.l). Section 11 was rejected by the Senate, 
however, and what is now §718 was enacted two days later with 
the language of limitation deleted. It is clear from this that 
the Senate was aware of the applicability question and chose 
not to include language demonstrating an intent that §718 
should not apply with regard to legal services performed prior

55



*

to the act's passage. Thus, the only possible inference
that may be drawn from the legislative history is that the
provision was meant to govern in all non-final attorneys' fee

40/
cases in accordance with the general rule stated in Thorpe♦

— ^In contrast, see Title VII of the Civil Rights Act of 1964,
42 U.S.C. §>2000e-l, 2000e-16, where Congress made it clear as 
to the prospective effective dates of a statute. Section 2(c)(1) 
and (3) of the Education Amendments of 1972 merely specifies 
that the Act shall be effective as of June 30, 1972 or July 1, 
1972, the end of the fiscal year, rather than on the date the 
President signed the bill. It in no way speaks to the application 
of the act's provisions to litigation pending on that effective 
date.

i^/We recognize, of course, that Thorpe indicates that there are 
certain exceptions to the rule. None of these exceptions are 
applicable in these cases, however. First, the Schooner Peggy 
case states: ". . . in mere private cases between individuals,
a court will and ought to struggle hard against a construction 
which will, by a retrospective operation, affect the rights of 
parties. . . . "  5 U.S. (1 Cranch) at 110, quoted at 393 U.S.
268, 282. This case, of course, is not "private," but on the 
contrary is, in the language of Chief Justice Marshall, one of 
the "great national concerns," and therefore

[T]he court must decide according to existing
laws, and if it be necessary to set aside a .
judgment, rightful when rendered, but which
cannot be affirmed but in violation of law,
the judgment must be set aside. [Ibid.]

Indeed, the present case is precisely the same as Thorpe; that 
is, it is between individuals and governmental agencies, and 
its purpose is to vindicate important constitutional rights. 
Therefore, "the general rule is particularly applicable here."
393 U.S. at 282. I

The second class of exceptions to the general rule mentioned 
in Thorpe is where it is necessary to prevent "manifest injustice. 
(If anything, in this case, the application of §718 will serve 
the cause of justice by reimbursing the private black plaintiffs I 
for taking on the task of correcting deprivations of constitu­
tional rights to the benefit of all society). In Thorpe the 
Court referred specifically to Greene v. United States, 376 U.S.
149 (1964), which was relied upon by the North Carolina Supreme 
Court in holding that the administrative regulation did not

(cont'd)

3 9 /

- 56 ~



§718 applies to this case and there can be no question 
but that it imposes the same standard with regard to the award 
of attorneys' fees as do §204(b) of Title II and §706(k) of 
Title VII of the Civil Rights Act of 1964, and §812(c) of Title 
VIII of the Fair Housing Act of 1968. That is, the standard is 
that established by the Supreme Court in Newman v. Piggie Park 
Enterprises, 390 U.S. 400 (1968).

In Newman the Court held that Title II mandated the award 
of attorneys' fees to a prevailing plaintiff "unless special 
circumstances would render such an award unjust." 390 U.S. at 
402. Thus, ordinarily a fee must be awarded, and the burden is 
on the losing defendant to show why one should not be. The 
reason is that plaintiffs seeking desegregation of public accom­
modations cannot recover damages, and:

If he obtains an injunction, he does so not 
himself alone but also as a "private 

attorney general," vindicating a policy that 
Congress considered of the highest priority.

40/ (cont'd)
eviction of Mrs. Thorpe (271 N.C. 468, 157 S.E.2d 

147 (1967)). Greene, as explained in Thorpe, is clearly not 
applicable to this case. There, the Supreme Court had handed 
down, in a prior case (Greene v. McElroy, 360 U.S. 474 (1959)), 
an order finally disposing of the substantive issue. in 1959 
Greene filed a claim for damages with the government, and when 
i was denied, filed suit. The government argued that the right 
to recover should be governed by a 1960 regulation that set up 
a new bar to his recovery. The Supreme Court rejected this 
argument, holding that this would indeed be the retroactive 
overruling of a case finally disposed of, and hence not permis- 
sibie. This case, of course, does not present such a situation 
as it involves an appeal from a lower court order in a case 
which has not as yet been finally disposed of. In a school

(cont'd)
57-



Ibid. Otherwise, private parties would be discouraged from 
advancing the public interest by going to court. Therefore, 
the Court specifically rejected any requirement that the 
defendants acted in bad faith or were obdurate or obstinate. 
Subsequently, lower courts have applied the same standard in 
cases arising under the attorneys' fee provision of Title VII. 
See, e.q., Clark v. American Marine Corp., 320 F. Supp. 709 
(E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir. 1971); Lea v.
.Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); and see, Lee v. 
Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971).

We submit that §718 enacts the Newman standard for school 
desegregation cases for the following reasons: (1) the relevant
language, with two exceptions that will be discussed below, of 
§718 is the same as that of Title II, Title VII and Title VIII. 
Thus, this case is governed by the general rule that legislative 
use of language previously construed by the courts implies an 
adoption of that judicial construction unless a contrary inten­
tion overwhelmingly appears. E.g., Armstrong Paint & Varnish
Works v. Nu-Enamel Corp., 305 U.S. 315, 332 (1938) ; cf̂ _ Drummond 
40/ (cont'd)
desegregation case that has been finally terminated, whether 
attorneys' fees may still be obtained could be decided by refer­
ence to the ordinary rules as to the time limitations as to when 
costs must be applied for. For a discussion of when it is 
appropriate to seek attorneys' fees, see Sprague v. Ticonic Nat'l 
Bank, 307 U.S. 161 (1939). '

58"



v* Acree, No. A-250 (September 1, 1972)(Mr. Justice Powell,
Circuit Justice). (2) It is absolutely clear from the legislative
history that Congress intended that §718 mean exactly the same 
as Titles II, VII and VIII. Thus, Senator Cook, who introduced 
the provision and was its main sponsor, on no fewer than three 
occasions so stated, and even read into the record the texts 
of those sections to underscore his point. 117 Cong. Record,
S5484, 5490 (daily ed., April 22, 1971), 117 Cong. Record, S5537 
(daily ed., April 23, 1971). (3) Finally, it is clear that §718
fulfills the same purpose as do the counsel fee provisions in 
the earlier acts. Just as in Newman, plaintiffs act as "private

41/
attorneys general" to vindicate and advance broad public policy.

—  As noted above, there are two differences of significance 
in the text of §718 as compared to the earlier statutes. First, 
it refers to the entry of a "final order" as the time at which 
attorneys' fees and costs may be taxed. It is clear that this 
does not mean the final termination of the litigation, but upon 
the entry of a realistic, appealable order and the expiration of 
appeal time or the exhaustion of appeals (see the remarks of 
Sen. Cook at 117 Cong. Rec., S5490 (daily ed., April 22, 1971). 
Second, and more significant, is the language that an award may 
be made upon a finding that the proceedings were necessary to 
bring about compliance" [with the Fourteenth Amendment]. A 
considerable portion of the debate in the Senate deals with this 
language, and it is clear that it is intended to protect against 
two abuses —  the champertous filing of unnecessary lawsuits 
simply to get a fee when a school board is in fact going to comply 
with the law, and the unnecessary protraction of litigation to 
trial and judgment when a school board has made a bona fide and 
adequate offer of settlement. See 117 Cong. Record, S5485 (daily 
ed., April 22, 1971)(colloquy between Senators Javits and Cook)? 
j-d• at S 5490-91. Thus, the language was in no way intended to 
modify the substantive rule of Newman; i.e., if a plaintiff does 
prevail and a court enters an order requiring compliance with 
the Constitution, he must be awarded attorneys' fees except in 
unusual circumstances. Thus, if plaintiffs prevail in this Court 
they will be entitled to an award.

59-



APPENDIX B

LEGISLATIVE HISTORY OF § 718

The provision for attorneys' fees in school desegregation 
cases was first introduced in the Senate as § 11 of the Emergency 
School Aid and Quality Integrated Education Act of 1971, S. 1557. 
The bill was reported to the Senate floor in April of 1971, and 
§ 11 was described in the report of the Senate Committee on 
Labor and Public Welfare. Sen. Rep. No. 92-61, 92d Cong., 1st 
Sess. The report, while not setting out the precise text of 
§ 11, describes it fully. its provisions were substantially 
the same as those of § 718 as it finally passed, with two 
important exceptions.

First, payment of attorneys' fees in school cases was to 
be made by the United States from a special fund established by 
the Act. Second, the section provided that "reasonable counsel 
fees, and costs not otherwise reimbursed for services rendered, 
and costs incurred, after the date of enactment of the Act" were

—  " T 7
to be awarded to a prevailing plaintiff. it should be noted

The description of § l”l in the Senate report is as follows:
This section states that 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 Department of Health, Education, 
and Welfare, for failure to comply with any provision of the Act or of title i of the Elementary and 
Secondary Education Act of 1965, 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 of the Fourteenth Article of amendment to the 
Constitution of the United States as they pertain to



that the quoted language was omitted from § 718.

On April 21, 1971 Senator Dominick of Colorado introduced 
an amendment to delete § 11 in its entirety from the bill. The 
basis for the deletion was that it was not proper that the United 
States should bear the costs of attorneys' fees but rather that 
such costs should be imposed on the school boards responsible 
for the maintenance of unconstitutionally segregated school 
systems. Senator Dominick's amendment passed. 117 Cong. Rec.
S.5324-31 (daily ed. April 21, 1971).

On the next day, Senator Cook of Kentucky, who was also 
opposed to § 11, introduced a new amendment identical to the 
present § 718 and after two days of debate that amendment was 
passed. 117 Cong. Rec. S.5483-92 (daily ed. April 22, 1971) 
and S.5534-39 (daily ed. April 23, 1971). The section as 
passed became § 16 of S.1557, and S.1557 as a whole was passed 
on April 26, 1971 without any further debate of the attorneys' 
fees provision. 117 Cong. Rec. S.5742-47 (daily ed. April 26,

1/ cont'd
elementary and secondary education, such court shall, 
upon a finding that the proceedings were necessary to 
bring about compliance, award, from funds reserved 
pursuant to section 3(b)(3), reasonable counsel fees, 
and costs not otherwise reimbursed for services 
rendered, and costs incurred, after the date of enact­
ment of the Act to the party obtaining such order.
In any case in which a party asserts a right to be 
awarded fees and costs under section 11, the United 
States shall be a party with respect to the appropri­
ateness of such award and the reasonableness of counsel 
fees. The Commissioner is directed to transfer all 
funds reserved pursuant to section 3(b)(3) to the 
Administration Office of the United States Courts for 
the purpose of making payments of fees awarded pursuant to section 11.

Senate Report No. 92-61, 92d Cong., 1st Sess., pp. 55-56.
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1971).

Subsequently, on August 6, 1971, the Senate passed a re­
lated statute, S.659, the Education Amendments of 1971. See,
U.S. Code Congressional and Administrative News, 1971, vol. 6, 
p. 2333. Both Senate bills were then sent to the House. On 
November 5, 1971, the House, in considering a parallel measure, 
H.R.7248, amended S.659. The House struck everything after the 
enactment clause of the Senate bill and substituted a new text 
based substantially on the House bill and in effect combining 
provisions of S.1557 and S.659. Ibid. In so amending the Senate
kill the House omitted the attorneys' fees provision (Id., at 3/
2406) without debate.

The amended Senate bill was then returned to the Senate 
with request for a conference, which request was referred to 
the Senate Committee on Labor and Public Welfare. However, the 
Committee, instead of acceding to the request for a conference, 
reported S.659 back to the Senate floor with amendments to the 
House substitute. Those amendments re—included the counsel fee 
provision of S.1557 in exactly the same form as it had originally 
passed the Senate in April. Id.- at 2333 and 2406. On March 1, 
1972, the Senate passed S.659 as reported to it by the Committee, 
and this amended bill was then sent to conference. The Senate-

— Sen. Rep. No. 92-604, 92d Cong., 2nd Sess., Report of the 
Senate Committee on Labor and Public Welfare on the Message of the House on S.659.
3/ Conference Report No. 798, 92d Cong., 2nd Sess.

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House conference made further amendments and reported the bill 
to both houses with the continued inclusion of the attorneys' 
fees provision exactly as passed by the Senate. 1 6 . at 2406.
The provision was now § 718 of the Education Amendments of 1972. 
The conference bill was passed with no further debate on § 718 
by the senate on May 24, 1972 and by the House on June 8, 1972
(Id. at 2200), and was signed into law by the President on June 
23.

Thus, the only debate concerning § 718 occurred in connec 
tion with its original passage by the Senate in April of 1971. 
As noted above, there was no debate in the House concerning 
its deletion when the House amended S.659 and there was no 
further debate in the Senate or the House with regard to the 
passage of the conference bill.

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IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Nos. 72-1630 and 72-1631

DEBORAH A. NORTHCROSS, et al.f
Plaintiffs-Appellees- 
Cross Appellants,

v.
BOARD OF EDUCATION OF THE MEMPHIS 
CITY SCHOOLS, et al.,

De fendants-Appe Hants- 
Cross Appellees.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division

SUGGESTION FOR REHEARING EN BANC

Plaintiffs, by their undersigned counsel, respectfully 
pray that for the reasons set forth in the petition for Rehear 
ing filed in these appeals, and in addition because the 
decision of the panel to deny taxation of costs in favor of 
plaintiffs conflicts with decisionsof other panels of this 
Court in analogous circumstances, the Court grant rehearing 
en banc in this matter should the panel to whom the Petition 
for Rehearing is addressed in the first instance decline to



disturb its judgment.

Louis R. Lucas 
William E. Caldwell 
Ural B. Adams, Jr.525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Jack Greenberg 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellees-Cross Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of October, 1972,
I served a copy of the foregoing Motion for Leave to File 
Petition for Rehearing snd Suggestion for Rehearing En Banc Out 
of Time; Petition for Rehearing and Suggestion for Rehearing 
En Banc upon counsel of record by United States Mail, postage 
prepaid as follows;

Jack Petree, Esq.
Suite 900
Memphis Bank Building 
Memphis, Tennessee 38103

'V

A'VIa-//
Norman J. Chachkin 
Attorney for Plaintiffs- 
Appellees-Cross Appellants

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