Decision Date25 August 1977
Docket NumberCiv. A. No. C-1499.
Citation439 F. Supp. 393
PartiesWilfred KEYES et al., Plaintiffs, and Congress of Hispanic Educators, et al., Intervenors, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants.
CourtU.S. District Court — District of Colorado



Patrick M. Westfeldt, Holland & Hart, Denver, Colo., for plaintiffs.

Remigio Pete Reyes, Denver, Colo., for intervenors.

William K. Ris, Bruce F. Fest, Wood, Ris & Hames, Denver, Colo., Michael H. Jackson, Denver Public Schools, Administration Dept., Denver, Colo., for defendants.



The issue before the court concerns entitlement to attorneys' fees and costs arising from protracted litigation over segregation in the Denver, Colorado, public school system. The plaintiffs are parents of children attending Denver Public Schools and sue individually and on behalf of their minor children. The Congress of Hispanic Educators, as well as a number of Spanish-surnamed individuals, have been permitted to intervene to represent the particular interest of the Hispano community. Defendants are School District No. 1 (Denver Public Schools or DPS), Denver, Colorado, and individual board members of that school district. As part of our ruling on the fees and costs issue, the court has considered the application for expert witness fees and expenses of Drs. George E. Bardwell and Paul D. Klite.

Plaintiffs and intervenors, after prevailing on the merits of their action, have asked the court to award reasonable fees pursuant to Section 718 of the Emergency School Aid Act of 1972, 20 U.S.C. § 1617, and the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. The claims for costs and other out-of-pocket expenses is based on 28 U.S.C. § 1920, Rule 54 of the Federal Rules of Civil Procedure, and upon the equitable power of the court to award costs incidental to attorneys fees.


The case was filed on June 19, 1969, when plaintiffs requested a preliminary injunction against defendant School District No. 1, claiming de jure segregation within the Denver public school system DPS. The history of the case can be traced through the many published opinions listed in the margin.1 The lawsuit was vigorously litigated at every step, with multiple appeals to the Court of Appeals and the Supreme Court.

Upon remand from the Supreme Court, the trial judge concluded that the DPS was an unlawful dual system and thereby was in violation of the United States Constitution. D.C., 368 F.Supp. 207. After finding unacceptable the desegregation plans submitted by both plaintiffs and defendants, the trial court appointed its own expert, and thereafter approved a desegregation plan. D.C., 380 F.Supp. 673. A "final judgment" adopting a desegregation plan, and imposing a permanent injunction was entered in an unpublished opinion on April 17, 1974. See also, D.C., 380 F.Supp. 673. The plan was reviewed by the Tenth Circuit Court of Appeals, 521 F.2d 465, and certiorari was subsequently denied by the Supreme Court. 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657.

A final judgment on the merits has been entered,2 and plaintiffs and intervenors now seek fees, costs, and expenses as prevailing parties from DPS under the statutes.


Defendants' most vigorous objection to any award of fees is based on the Eleventh Amendment to the Constitution of the United States. Defendants claim that the amendment is a bar to an award of monetary damages against a state or an agency of a state.3 On the authority of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), defendants maintain that any award of attorneys' fees would necessarily come from the revenues of the state and is thus barred.

While the Eleventh Amendment generally prohibits monetary awards against a state, it must be read in a manner consistent with the Constitution as a whole. In certain circumstances, the Constitution permits monetary awards against a state. This is one of those circumstances.

Section 5 of the Fourteenth Amendment provides that Congress shall have power to enforce the substantive clauses of the amendment by appropriate legislation. When acting pursuant to that affirmative grant of power, Congress is permitted to pass legislation which otherwise might run counter to constitutional limitations.

The Supreme Court, in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), considered this issue, albeit in the context of an award of fees in Title VII of the Civil Rights Act of 1964 relating to employment discrimination. There the Court stated, at 456, 96 S.Ct. at 2671:

. . . we think that the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. . . . We think Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts. Congress' exercise of power in this respect allowance of attorneys' fees is also not barred by the Eleventh Amendment.

In finding a constitutional basis for the allowance of attorneys fees against the state, in Fitzpatrick there was agreement among the parties on a preliminary matter which is here contested. In Fitzpatrick, it was stipulated that in enacting the 1972 Amendment to Title VII Congress acted within its power under § 5 of the Fourteenth Amendment.4 Fitzpatrick, supra, 427 U.S. at 453 n. 9, 96 S.Ct. 2666.

Defendants deny that § 718 of the Emergency School Aid Act of 1972, 20 U.S.C. § 1617,5 was enacted pursuant to the enforcement clause of the Fourteenth Amendment. Instead, it is implied that 20 U.S.C. § 1617, as part of the overall 1972 educational amendments, was enacted pursuant to Congress' spending power.

Determining the basis for the enactment of § 1617 is somewhat difficult. While the 1972 Amendments to Title VI (of which § 1617 is a part) have extensive legislative history6 information relating to the Constitutional basis of § 1617 is notably lacking. Even in a section-by-section review of the legislation, any reference to § 1617 is missing. See 2 U.S.Code Cong. & Admin. News at 2563 (1972).

Although Congressional intent may not be revealed in the legislative history, the language of the statute leads to only one conclusion: that Congress based its decision to authorize an award of attorneys' fees against "a local educational agency or state", on the basis of its § 5 enforcement powers under the Fourteenth Amendment. No other construction of the basis for § 1617 is logical, given the precise wording of that section.7 It follows then that the Eleventh Amendment immunity argument is not supportable as an impediment in an award of fees under 20 U.S.C. § 1617. Cunningham v. Grayson, 541 F.2d 538, 543 (6th Cir. 1976).

Moreover, it has been questioned whether an award of attorneys' fees which are taxed as allowable costs, as § 1617 dictates, are a form of monetary award at all. See Dowell v. Board of Education, 71 F.R.D. 49, 57 (W.D.Okl.1976). There is, of course, no recognized immunity from a taxation of costs.


In addition to the Constitutional authority supporting an award of attorneys' fees under 20 U.S.C. § 1617, independent authority exists for fees under 42 U.S.C. § 1988, as amended in 1976 by the Civil Rights Attorney's Fees Awards Act.8 The latter Act was enacted under Congress' Section 5 powers and as such, no serious immunity argument can be raised. See Sen.Rep. No. 94-1011, supra at 5, U.S.Code Cong. & Admin. News 1976, p. 5908; Fitzpatrick v. Bitzer, supra; Finney v. Hutto, 548 F.2d 740 (8th Cir. 1977); Bond v. Stanton, 528 F.2d 688 (7th Cir. 1976). Thus, we find no support for defendants' argument that an award of attorneys' fees is barred by the Eleventh Amendment.


The terms of 20 U.S.C. § 1617 and 42 U.S.C. § 1988 permit attorneys' fees to be awarded to the prevailing party. Plaintiffs prevailed at the preliminary and permanent injunction stages and before the Supreme Court.

We find that plaintiffs were prevailing parties in this lawsuit. They were successful, in the face of extreme opposition, in establishing that DPS constituted and perpetuated an unconstitutional dual educational system.

Defendants note that neither plaintiffs nor the intervenors were successful in having their desegregation plans totally accepted by the court (neither, incidentally, was that of defendants). The fact that plaintiffs and intervenors have not prevailed on all issues does not, in itself, prohibit the award of fees, at least under 42 U.S.C. § 1988. See Sen.Rep. No. 94-1011, 94th Cong., 2d Sess. (June 29, 1976) at 5; Note, The Civil Rights Attorneys' Fees Awards Act of 1976, 34 Wash. & Lee L.Rev. 205, 219 (1977). Prevailing on every issue presented in a complaint is not necessary to enable a litigant to receive an award of attorneys' fees. Cf., Dawson, Lawyers, and Involuntary Clients in Public Interest Litigation, 88 Harv.L.Rev. 849, 893 (1975).9 Indeed, in some cases litigants have been considered prevailing parties where they did not prevail in the lawsuit, but were catalysts which forced defendant to modify its procedures in a manner sought through the litigation. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970). Accord, Reed v. Arlington Hotel Co., Inc., 476 F.2d 721 (8th Cir. 1973), and Bowie v. Weinberger, unpublished, Civ.No. 74-1801 (D.D.C. June 18, 1975).10

Professor Moore notes that in the taxation of costs "although a plaintiff may not sustain his entire claim, if judgment is rendered for him he is the prevailing party." 6 J. Moore, Federal Practice ¶ 54.704 at 1308-9. Elsewhere it is stated that an intervening plaintiff has the same entitlement as the original plaintiff to...

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