U.S. v. Board of Ed. of Waterbury, Conn., 1099

• Decision Date: 12 September 1979
• Docket Number: D,No. 1099,1099
• Citation: 605 F.2d 573
• Parties: UNITED STATES of America, Plaintiff, and South End Education Committee et al., Intervening Plaintiffs-Appellants, v. BOARD OF EDUCATION OF WATERBURY, CONNECTICUT, et al., Defendants-Appellees. ocket 79-7143.
• Court: U.S. Court of Appeals — Second Circuit

Page 573

605 F.2d 573

UNITED STATES of America, Plaintiff, and South End Education Committee et al., Intervening Plaintiffs-Appellants, v. BOARD OF EDUCATION OF WATERBURY, CONNECTICUT, et al.,

Defendants-Appellees.

No. 1099, Docket 79-7143.

United States Court of Appeals, Second Circuit.

Argued May 21, 1979.

Decided Sept. 12, 1979.

Kenneth Kimerling, New York City (M. L. Taracido, Puerto Rican Legal Defense & Ed. Fund, Inc., New York City, Bruce Morrison, New Haven Legal Assistance Ass'n, New Haven, Conn., of counsel), for intervening plaintiffs-appellants.

John F. Phelan, Waterbury, Conn. (Carl R. Cicchetti, Corp. Counsel, The City of Waterbury, Waterbury, Conn., of counsel), for defendants-appellees.

Before MANSFIELD and GURFEIN, Circuit Judges, and LEVAL, District Judge. ^*

MANSFIELD, Circuit Judge:

The South End Education Committee appeals from an order of the District Court for the District of Connecticut entered by Judge Thomas F. Murphy on January 2, 1979, denying a request for attorneys' fees under § 718 of Title VII of the Emergency School Aid Act (the "Act"), 20 U.S.C. § 1617. The court, not having the benefit of our later decision in Gagne v. Maher, 594 F.2d 336, 339-40 (2d Cir. 1979), concluded that appellants did not come within the term "prevailing party" as used in that statute and therefore that it had no discretion to award counsel fees. We hold that appellants were a prevailing party in some This case grows out of a lawsuit initiated by the Attorney General of the United States in October, 1969, pursuant to § 407 of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6, alleging racial discrimination in the public schools of Waterbury, Connecticut. The government's complaint charged violations of the Fourteenth Amendment and of Title IV of the Civil Rights Act of 1964. In 1973 the defendants entered into a consent decree with the United States enjoining discrimination on the basis of "race, color, religion, or national origin" and ordering the defendants to devise a desegregation plan that would "achieve the greatest amount of desegregation possible, considering the practicalities . . . in such manner that the burden of desegregation does not fall more heavily upon students of one race or national origin than upon students of another race or national origin."

respects, and therefore that the district court may, in its discretion, make such an award.

In January, 1974, defendants proposed remedial Plan H, which would close a predominantly Hispanic school known as "Maloney" and call for busing 65% Of Waterbury's Hispanic students but only 5% Of its white students, thus placing a disproportionate burden on the former. The South End Education Committee, an organization of Puerto Rican parents and community leaders, along with several individuals, was allowed to intervene in May, 1975, for the limited purpose of protecting the interests of the Hispanic community and participating in the development of remedial measures under the consent decree. The government had not objected to Plan H. Intervenors conducted discovery and insisted on a hearing at which, according to the district court, "the intervenors, and not the Government, pulled the laboring oar." In August, 1976, the court granted intervenors' request for an injunction forbidding the implementation of Plan H as violative of the consent decree and ordered the defendants to submit a new plan.

In December, 1976, defendants emerged with two alternative proposals. The first was essentially the same as Plan H, but would simply transfer less of the predominantly Puerto Rican population of Maloney. However, it continued to impose a disproportionate burden on the Puerto Rican community. The second offered no desegregation whatever, but instead a commitment to make some capital improvements at the Maloney school, which would be retained. When intervenors moved to have defendants held in contempt for submitting these clearly inadequate plans, the plans were withdrawn.

In 1976, intervenors also challenged defendants' plans to transfer a bilingual program out of a middle school despite statements by the school's superintendent and teaching staff that this would have a harmful effect on the students. The court granted a temporary restraining order and a preliminary injunction, finding that the proposal constituted a violation of the consent decree.

The court appointed a special master in January, 1977, to review all plans. A month later the government submitted the "Buford Plan," which would close Barnard school, a predominantly white school; nonminority students would be transferred to Maloney and minority students to Duggan school, another predominantly white school. Intervenors supported this plan with certain provisos because it would not only keep open the Maloney school but distribute the burden of desegregation in a less disproportionate manner.

Also in February, 1977, defendants submitted a "freedom of choice" plan. The special master allowed testing of the defendants' "freedom of choice" plan by preregistration. When the plan proved a failure defendants submitted Plan Z, proposing to bus 25 children from Maloney and 75 children from Barnard and to redraw lines between Barnard and Duggan. Plan Z was rejected by the court.

In April, the Barnard school P.T.A. filed three suggested plans which would avoid closing their school (unlike the Buford Plan). Their Plan C would instead close Duggan. The court approved Amicus Plan C. We affirmed on appeal, United States v. Board of Education of Waterbury, Connecticut, 560 F.2d 1103 (2d Cir. 1977), finding that the plan "would effect desegregation without disproportionately burdening any racial group."

Intervenors then filed a motion for attorneys' fees and costs, both under § 718 of the Emergency School Aid Act of 1972, 20 U.S.C. § 1617, and under common law for successfully coercing compliance with the consent order and their efforts against the alleged bad faith and obstinacy of defendants. The district court ruled only on the statutory claim, denying the motion on the ground that although all other requirements of § 718 had been met, intervenors were not a "prevailing party" because they had not prevailed on the "merits" of the lawsuit. From this order intervenors appeal.

DISCUSSION

At issue is whether intervenors are eligible for an award of attorneys' fees under § 718 of the Act, 20 U.S.C. § 1617, which provides

"Upon the entry of a final order by a court of the United States against a local educational agency, . . . 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."

This provision is the product of what we have termed a consistent program of "fee shifting under the civil rights acts." Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 36 n.2 (1978). Every major civil rights statute enacted by Congress since 1964 has included, or has been amended to include, fee shifting provisions. S.Rep.No.1011, 94th Cong., 2d Sess. 3 (1976), reprinted in (1976) U.S.Code Cong. & Admin.News, p. 5908.

The rationale for the award of attorneys' fees to those who act as private attorneys general in civil rights cases is to aid the vindication of our national policy against discrimination. Congress was well aware that the government lacked the resources to ensure broad compliance with the laws, and therefore sought to facilitate supplementary enforcement by those injured by illegal discrimination. Northcross v. Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-02, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968).

The district court properly ruled that its order approving Amicus Plan C, affirmed by this court on appeal, was a "final order," as was the 1973 consent decree. Moreover, the court was well within its discretion in finding that the proceedings were "necessary to bring about compliance" with the law.

The government's allegation of a Fourteenth Amendment violation brought the lawsuit within the terms of § 718, for the consent order operates as a litigated finding of unconstitutional segregation. United States v. Board of Education of Waterbury, Connecticut, supra, 560 F.2d at 1104. That the consent decree made it unnecessary for the court to rule on whether the constitutional claim was meritorious is of no significance for present purposes. Were such a finding a condition for the award of attorneys' fees, parties would be provided an incentive to spurn reasonable settlements and press on through final judgment. This is contrary both to the intent of Congress, see, e. g., 117 Cong.Rec. 11341 (1971) (remarks of Sen. Cook), and to public policy. See Gagne v. Maher, 594 F.2d 336, 340 (2d Cir. 1979); Aspira of New York Inc. v. Board of Education of the City of New York, 65 F.R.D. 541, 542-43 (S.D.N.Y.1975).

In concluding that intervenors were not a "prevailing party" the district court rested its decision on the grounds that they were not a party when the consent decree was entered, that "in no area of the merits of the lawsuit did (t...