Bradley v. School Board of City of Richmond, Va., 71-1774.

Citation472 F.2d 318
Decision Date29 November 1972
Docket NumberNo. 71-1774.,71-1774.
PartiesCarolyn BRADLEY and Michael Bradley, infants, by Minerva Bradley, their mother and next friend, et al., Appellees, v. The SCHOOL BOARD OF the CITY OF RICHMOND, VIRGINIA, et al., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

George B. Little, Richmond, Va. (John H. O'Brion, Jr., James K. Cluverius, and Browder, Russell, Little & Morris, Richmond, Va., and Conrad B. Mattox, Jr., City Atty., for City of Richmond, on brief), for appellant.

Louis R. Lucas, Memphis, Tenn. (Jack Greenberg, James Nabrit, III, Norman J. Chachkin, New York City, James R. Olphin and M. Ralph Page, Richmond, Va., on brief), for appellees.

Section III of the opinion, dealing with the application of Section 718 to the proceedings, before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, RUSSELL and FIELD, Circuit Judges (BUTZNER, Circuit Judge, being disqualified) sitting en banc.

Other parts of the cause before WINTER, CRAVEN and RUSSELL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This appeal challenges an award of attorney's fees made to counsel for plaintiffs in the school desegregation suit filed against the School Board of the City of Richmond, Virginia. Though the action has been pending for a number of years,1 the award covers services only for a period from March, 1970, to January 29, 1971. It is predicated on two grounds: (1) that the actions taken and defenses entered by the defendant School Board during such period represented unreasonable and obdurate refusal to implement clear constitutional standards; and (2) apart from any consideration of obduracy on the part of the defendant School Board since 1970, it is appropriate in school desegregation cases, for policy reasons, to allow counsel for the private parties attorney's fees as an item of costs. The defendant School Board contends that neither ground sustains the award. We agree.

We shall consider the two grounds separately.

I.

This Court has repeatedly declared that only in "the extraordinary case" where it has been "`found that the bringing of the action should have been unnecessary and was compelled by the school board's unreasonable, obdurate obstinacy' or persistent defiance of law", would a court, in the exercise of its equitable powers, award attorney's fees in school desegregation cases. Brewer v. School Board of City of Norfolk, Virginia (4th Cir. 1972) 456 F.2d 943, 949. Whether the conduct of the School Board constitutes "obdurate obstinacy" in a particular case is ordinarily committed to the discretion of the District Judge, to be disturbed only "in the face of compelling circumstances". Bradley v. School Board of City of Richmond, Virginia (4th Cir. 1965) 345 F.2d 310, 321. A finding of obduracy by the District Court, like any other finding of fact made by it, should be reversed, however, if "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Gypsum Co. (1948) 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746; Wright-Miller, Federal Practice and Procedure, Vol. 9, p. 731 (1971). We are convinced that the finding by the District Court of "obdurate obstinacy" on the part of the defendant School Board in this case was error.

Fundamental to the District Court's finding of obduracy is its conclusion that the litigation, during the period for which an allowance was made, was unnecessary and only required because of the unreasonable refusal of the defendant School Board to accept in good faith the clear standards already established for developing a plan for a non-racial unitary school system. This follows from the pointed statements of the Court in the opinion under review that, "Because the relevant legal standards were clear it is not unfair to say that the litigation (in this period) was unnecessary", and that, "When parties must institute litigation to secure what is plainly due them, it is not unfair to characterize a defendant's conduct as obstinate and unreasonable and as a perversion of the purpose of adjudication, which is to settle actual disputes."2 At another point in its opinion, the Court uses similar language, declaring that "the continued litigation herein (has) been precipitated by the defendants' reluctance to accept clear legal direction, * * *."3 It would appear, however, that these criticisms of the conduct of the Board, upon which, to such a large extent, the Court's award rests, represent exercises in hindsight rather than appraisal of the Board's action in the light of the law as it then appeared.4 The District Court itself recognized that, during this very period when it later found the Board to have been unreasonably dilatory, there was considerable uncertainty with reference to the Board's obligation, so much so that the Court had held in denying plaintiffs' request for mid-school year relief in the fall of 1970, that "it would not be reasonable to require further steps to desegregate * * *," giving as its reason: "Because of the nearly universal silence at appellate levels, which the Court interpreted as reflecting its own hope that authoritative Supreme Court rulings concerning the desegregation of schools in major metropolitan systems might bear on the extent of the defendants' duty."5 In fact, in July, 1970, the Court was writing to counsel that, "In spite of the guidelines afforded by our Circuit Court of Appeals and the United States Supreme Court, there are still many practical problems left open, as heretofore stated, including to what extent school districts and zones may or must be altered as a constitutional matter. A study of the cases shows almost limitless facets of study engaged in by the various school authorities throughout the country in attempting to achieve the necessary results."6 The District Court had, also, earlier defended the School Board's request of a stay of an order entered in the proceedings on August 17, 1970, stating: "Their original (the School Board's) requests to the Fourth Circuit that the matter lie in abeyance were undoubtedly based on valid and compelling reasons, and ones which the Court has no doubt were at the time both appropriate and wise, since defendants understandably anticipated a further ruling by the United States Supreme Court in pending cases; * * *."7 Earlier in 1970, too, the Court had taken note of the legal obscurity surrounding what at that time was perhaps the critical issue in the proceeding, centering on the extent of the Board's obligation to implement desegregation with transportation. Quoting from the language of Chief Justice Burger in his concurring opinion in Northcross v. Board of Education of Memphis, Tenn. City Schools, (1970) 397 U.S. 232, 237, 90 S.Ct. 891, 25 L.Ed.2d 426, the District Court observed that there are still practical problems to be determined, not the least of which is "to what extent transportation may or must be provided to achieve the ends sought by prior holdings of the Court."8 In fact, the District Court had during this very period voiced its own perplexity, despairingly commenting that "no real hope for the dismantling of dual school systems (in the Richmond school system) appears to be in the offing unless and until there is a dismantling of the all Black residential areas."9 At this time, too, as the District Court pointed out, there was some difficulty in applying even the term "unitary school system".10 In summary, it was manifest in 1970, as the District Court had repeatedly stated, that, while Brown and other cases had made plain that segregated schools were invalid, and that it was the duty of the School Board to establish a non-racial unitary system, the practical problems involved and the precise standards for establishing such a unitary system, especially for an urbanized school system—which incidentally were the very issues involved in the 1970 proceedings—had been neither resolved nor settled during 1970; in fact, the procedures are still matters of lively controversy.11 It would seem, therefore, manifest that, contrary to the premise on which the District Court proceeded in its opinion, the legal standards to be followed by the Richmond School Board in working out an acceptable plan of desegregation for its system were not clear and plain at any time in 1970 or even 1971.

It is true, as the District Court indicates, that the Supreme Court in 1968 had, in Green v. County School Board (1968) 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, found "freedom-of-choice" plans that were not effective unacceptable instruments of desegregation, and that the defendant Board, following that decision, had taken no affirmative steps on its own to vacate the earlier Court-approved "freedom-of-choice" plan for the Richmond School system, or to submit a new plan to replace it. In Green, the Court had held that, "if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary nonracial school system, `freedom of choice' must be held unacceptable."12 In suggesting zoning, Green offered a ready and easily applied alternative to "freedom-of-choice" for a thinly populated, rural school district such as Old Kent, but other than denying generally legitimacy to freedom-of-choice plans, Green set forth few, if any, standards or benchmarks for fashioning a unitary system in an urbanized school district, with a majority black student constituency, such as the Richmond school system. In fact, a commentator has observed that "Green raises more questions than it answers".13 Perhaps the School Board, despite the obvious difficulties, should have acted promptly after the Green decision to prepare a new plan for submission to the Court. Because of the vexing uncertainties that confronted the School Board in framing a new plan of desegregation, problems which, incidentally, the...

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