Bradley v. School Board

1 See 317 F. 2d 429 (CA4 1963). Before trial, one pupil-plaintiff was admitted to the school of his choice, and the court ordered admission of- the remaining 10. The District Court found that; in general, during the 1961-1962 school year, pupil assignments in Richmond were being made on the basis of dual attendance zones; •that promotions .were controlled, by. a “feeder” system whereby pupils initially .assigned to Negro schools were promoted routinely only to Negro. schools; and that, in the handling of some transfer requests from Negro pupils, the' studénts were required to meet criteria to which white students of the same scholastic aptitude were not. subject. The court declined, however, to grant general injunctive relief and ordered only the admission of the 10 pupils. The Court of Appeals reversed in part. It held that not only were the individual minor plaintiffs entitled to relief, but that they were entitled to an injünction, on behalf of others of the class they represented and whó weré similarly situated, against the continuation of the discriminatory system, and practices that were found to exist. Id., at 438 .

2 Under the approved plan, the Board undertook steps “to eliminate a dual school system in the assignment of pupils” and to assure that opportunities wére provided “for white children and Negro children to associate on equal terms in the public schools.” App. 21a-22a, Generally, the plan permittéd any child to attend, any school in the city at his proper grade. The specific steps to be taken included (a) action to correct inequality in enrollment in relationship .to capacity where schools in close proximity to each other had significant enrollment differences, (b) efforts to acquaint pupils in all- schools with opportunities in other schools, and' (c) the planning and creation of citywide centers, including workshops, institutes, and seminars, serving pupils from all areas of the city. Id., at 22a-23a. In addition, the Board undertook to insure that the “pattern of assignment of teachers and other professional staff among the various schools of the system will not be such that schools are identifiable as intended for students of a particular race, color *701 or national origin, or such that ‘teachers or other professional staff of a particular race are.-concentrated' in those schools where all, or the majority, of the students are of that race.” Id,., at 20a. Finally, the Board undertook to insure that the program for constriction of new schools' or additions to existing schools would “not be designed to perpetuate, maintain, or support racial segregation.” Id., at 23a.

3 The court rejected the- petitioners’ plan for utilizing contiguous zoning and pairing, satellite .zoning,' and noncontiguous pairing, *703 together with the use of school and public transportation, because it felt that the lack of immediately available transportation facilities would preclude the plan’s operation for the opening of the 1970-1971 school year. It noted that it otherwise found the plan to be reasonable and, if adopted, that it would result in a unitary system. 317 F. Supp. 655 , 572 and 576 (ED Va. 1970). The court suggested that Richmond could not be desegregated without employment of techniques suggested by the petitioners and observed, “It would seem to the Court highly reasonable to require that the defendant school board take reasonably immediate steps toward this end.” Id., at 575.

4 The interim plan included contiguous and satellite Zoning, pairing, and some public transportation, principally of those pupils who were indigent. The problems that continued to concern the court were, most importantly, thg fact that under the plan a large number of the district’s elementary, students would continue .to attend schools that-would be 90% or more Negro, while at the same time four elementary schools 'Would remain all -white; in addition, twchigh) schools and certain secondary schools would continue to be racially-identifiable. Id., at 572-576.

5 Under Plan I only proximal geographic zoning was to be used in making pupil assignments. This meant simply that a pupil would be assigned to the school nearest his home without regard to the resulting racial composition of that school. Although recognizing the desirability of neighborhood schools, the court rejected this plan *704 in view of the existence of Richmond housing patterns previously determined to have been fostered by governmental. action. At the elementary and middle levels, this would have resulted in over half the students being assigned to schools that were racially identifiable; at the high school level almost 39% of the district’s white pupils would have been isolated in one 97% white school. 325 F. Supp. 828 , 833 (ED Va. 1971). Plan II, which the Board most 'actively supported, was held unacceptable in that.it embraced a continuation of'the 1970-1971 interim plan and did little to integrate the elementary schools. The plan .involved the use of zoning, as did Plan I, and contiguous pairing whereby schools in adjoining zones -Would have been consolidated. Id., at 834 . Plan III, which the court ordered into effect, called for extensive busing of students, proximal geographic zoning, clusters, satellites, and faculty racial balance. In addition, the elementary, middle and high schools were to have a minority-majority student ratio under whioh each group’s projected enrollment in a particular school was to be at least half of the- group’s projected citywide ratio. . Id., at 834-844 . The court also rejected the petitioners’ plan, finding that "Plan III resulted'in “a narrower:spread” cff minority-majority student ratios in the various schools. Id:, at 844-846.

6 Meanwhile, th.e District Court' (a) on January 8, 1971, denied a motion made by some of the defendants that the judge disqualify himself because of personal bias, 324 F. Supp. 439 (ED Va. 1971); (b) on January 29 denied the petitioners’ motion to order implementation-of their proposed plan-and also the Board’s motion to modify the existing injunction restraining it from undertaking any new construction planning,. 324 F. Supp. 456 (ED Va. 1971); and (c) on February 10 denied a motion for summary- judgment as to certain defendants with respect to costs, fees, and damages, 324 F. Supp. 401 (ED Va. 1971). See also 315 F. Supp. 325 (ED Va 1970); 51 F. R. D. 139 (ED Va. 1970).

7 Petitipners initially suggested $46,820 in fees and $13,327.56 in expenses, a total of $60,147.56. App. 94a-95a.

8 The court discussed, 53 F. R. D. 28 , 34-36 (ED Va. 1971), but did not rely on,, the "common fund” theory under which an individual litigant's success confers a substantial benefit on an ascertainable class and the exercise of the court’s equitable discretion to allow a fee. results in spreading the cost the litigant has incurred among those who have benefited by his efforts. See Trustees v. Greenough, 105 U. S. 527 (1882); Sprague v. Ticonic National Bank, 307 U. S. 161 (1939). The court felt, however, that there were other grounds on which an award" of counsel fees could be’based. It referred to Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970), where this Court, recognizing the rule that attorneys’ fees are not ordinarily recoverable as costs, nonetheless noted that exceptions to this rule existed “for situations in which' overriding considerations indicate the need for such a recovery.” Id., at 391-392 .. There the Court approved an award of fees to successful shareholder plaintiffs in a suit to set aside a corporate merger accomplished through the use of a misleading proxy statement, in violation of § 14 (a) of the Securities Exchange Act. of 1934, 15 U. S. C. §78n (a). It was said: “The fact that this suit has not yet produced, and may never produce, a monetary recovery from which the .fees could be paid does not preclude an award based on this rationale.” 396 U. S., at 392. See also Hall v. Cole, 412 U. S. 1 (1973).

9 See Brewer v. School Board of the City of Norfolk, 456 F. 2d 943 , 951-952 (CA4), cert. denied, 406 U. S. 933 (1972); Nesbit v. Statesville City Board of Education, 418 F. 2d 1040 , 1043 *707 (CA4 1969); Williams v. Kimbrough, 415 F. 2d 874 , 875 (CA5 1969), cert. denied, 396 U. S. 1061 (1970); Rolfe v. County Board of Education of Lincoln County, 391 F. 2d 77 , 81 (CA6 1968); Clark v. Board of Education of Little Rock School District, 369 F. 2d 661 , 670-671 (CA8 1966); Griffin v. County School Board of Prince Edward County, 363 F. 2d 206 (CA4), cert. denied, 385 U. S. 960 (1966); Bell v. School Board of Powhatan County, 321 F. 2d 494 , 500 (CA4 1963).

10 The District Court stated: “At each stage of the proceedings the School Board’s position has been that, given the choice between desegregating the schopls and committing a contempt of court, they would choose the first, 'but that in any event desegregation would only come about by court order. “It is no argument to the contrary that political realities may compel school administrators to insist on integration by judicial decree and that this is the ordinary, usual means of achieving compliance with constitutional desegregation standards. If such considerations lead parties to mount defenses without hope of success, the judicial process is nonetheless imposed upon and the plaintiffs are callously put to unreasonable and unnecessary 'expense.” 53 F. R. D., at 39 .

11 Title 42 U. S. C. § 2000a-3 (b) authorizes an allowance of a reasonable attorney’s fee to a prevailing party, other than the United States, in an action under the public accommodation subchapter of the Civil Rights Act. of 1964. Similarly, 42. U. S. C. §2OO0e-5 (k) authorizes an allowance of a reasonable attorney’s fee to a prevailing party, other than the Equal Employment Opportunity Commission or. the United States, in an action under the equal employment, opportunity subchapter of- that Act.

12 “§ 1617. Attorney fees. “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 United States (or any agency thereof), 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.”

13 The fee issue had been argued in the Court of Appeals on March 7, 1972. The Education Amendments of 1972 were approved by the President on June 23. The argument before the en banc court took place on October 2.

14 By final judgment we mean one where “the availability of appeal” has been exhausted or has lapsed, and the time to petition for certiorari has passed. Linkletter v. Walker, 381 U. S. 618 , 622 n. 5 (1965).

15 In Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371 , 374 (1940), the Court noted that the effect of a subsequent ruling of invalidity on a prior final judgment under collateral attack is subject to no fixed “principle of absolute retroactive invalidity” but depends upon consideration of “particular relations . . and particular conduct.” Questions "of rights claimed to have become vested, of status, of prior determinations deemed to have finahty and acted upon accordingly, of public policy in the light of Ihe nature both of the statute and of its previous application, demand examination.” Ibid: And in Linkletter it was observed: “Once tlie premise is accepted that we are neither required to apply,-nor prohibited from applying, a decision retrospectively, we' must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and. whether retrospective operation will further or retard its operation.” 381 U. S., at 629 . See Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L. J. 907 (1962); Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va. L. Rev. 201 (1965).

16 Schooner Peggy concerned a condemnation following the seizure of a French vessel by an American ship. The trial court found that the vessel was within French territorial waters at the time of seizure and, hence, was not a lawful prize. On appeal, the Circuit Court reversed, holding that the vessel in fact was on the high seas. A decree was entered accordingly. While the case was pending on •appeal to this Court, a convention with France was entered into providing in‘part: “Property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications' . . , shall be mutuary restored.” 1 Cranch, at 107. This Court reversed, holding that it must apply the terms of the convention despite the propriety of the Circuit Court’s decision when it was rendered, and that the vessel was to be restored since, by virtue of the pending appeal, it hard not'been “definitively condemned,” id., at 108.

17 In United States v. Chambers, 291 U. S. 217 (1934), the Court held that pending prosecutions, including those on appeal, brought pursuant to the National Prohibition A.ct were to-be dismissed in view of the interim ratification of the Twenty-first Amendment, absent inclusion of a saving clause. In Carpenter v. Wabash R. Co., 309 U. S. 23 (1940), the Court, in reliance on Schooner Peggy, held that an amendment .to the Bankruptcy Act, effected while 'the case was pending on petition for writ of certiorari, was to be given effect. The amendment, however, provided explicitly that it was applicable to railroad receiverships then pending in any United States. court. In Vandenbark v. Owens-Illinois Glass Co., 311 U. S. 538 (1941), again in reliance, on Schooner Peggy, it was held, that a federal appellate court, in diversity jurisdiction, must follow a state' supreme court decision changing, the applicable state law subsequent to the decision in the federal trial court. In Ziffrin, Inc. v. United States, 318 U. S. 73 (1943), the Court held that an amendment to the Interstate Commerce Act, made after the hearing upon an application for a permit to continue contract carrier operations, was to be -given effect. “A change in the law between a nisi priús and an appellate decision requires the appellate court to apply-the changed law.” Id., at 78 . In United States v. Alabama, 362 U. S. 602 (1960), the District Court had dismissed'an action under the Civil Rights Act of 1957, 42 U. S. C. § 1971 (c), brought by the United States against the State of Alabama and others, and did so with respect to Alabama on ’the ground that the Act did not authorize the action against the State. While the case was pending after a grant of certiorari, the Civil Rights Act of 1960, 74 Stat. 86 , was passed, expressly authorizing an action'of that kind , against a State. The Court applied the new statute without discussion of the legislative history and remanded the ease with instructions to reinstate the action. See also Freeborn v. Smith, 2 Wall. 160 (1865); Moores v. National Bank, 104 U. S. 625 (1882), where- a state statute of limitations was construed by the State Supreme Court in a way contrary to the construction given theretofore by the lower federal court, and this Court followed the later construction; Stephens v. *714 Cherokee Nation, 174 U. S. 445 (1899), where the Court upheld a federal statute, containing retrospectivity language and conferring jurisdiction upon this Court over cases on review" of actions of the Dawes Commission, enacted after rulings below that decrees of the courts in the Indian territories were final; Dinsmore v. Southern Express Co., 183 U. S. 115 (1901), where the Court, relying upon Schooner Peggy, applied a statute, enacted while |he case was pending on certiorari, to affirm the judgment of the lower court; Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9 (1918); Dorchy v. Kansas, 264 U. S. 286 , 289 (1924); Missouri ex rel. Wabash R. Co. v. Public Service Comm’n, 273 U. S. 126 (1927); Sioux County v. National Surety Co., 276 U. S. 238 , 240 (1928); Patterson v. Alabama, 294 U. S. 600 , 607 (1935).

18 The Supreme Court of North Carolina held that since all “critical events” had occurred prior-to the date of the circular, “[t]he rights of the parties had matured and had been determined before the directive was issued.” 271 N. C., at 470 , 157 S. E. 2d, at 149

19 In our first Thorpe opinion, however, we did note: “While the directive provides that certain records shall be kept commencing with the date of its issuance, there is no suggestion that the basic procedure it prescribes is not to be followed in all eviction proceedings that have not become final.” Thorpe v. Housing Authority of the City of Durham, 386 U. S. 670 , 673 (1967).

20 The Fourth Circuit has declined to apply § 718 to services rendered prior to its enactment on the ground that "legislation is not to be given retrospective effect to prior events unless Congress has clearly indicated an intention to have the statute applied in that manner.” Thompson v. School Board of the City of Newport News, 472 F. 2d 177 , 178 (1972). The Fifth Circuit has done the same. Johnson v. Combs, 471 F. 2d 84 , 86 (1972); Henry v. Clarksdale Municipal Separate School Dist., 480 F. 2d 583 , 585 (1973).

21 Where Congress has expressly provided, or the legislative history had indicated, that legislation was to be given only prospective *716 effect, the courts, in the absence of any attendant constitutional problem, generally have followed that lead. See, for example, Goldstein v. California, 412 U. S. 546 , 551-552 (1973); United States v. Thompson, 356 F. 2d 216 , 227 n. 12 (CA2 1965), cert. denied, 384 U.S. 964 (1966).

22 In Johnson v. Combs, the Fifth Circuit characterized the legislative history of § 718 as “inconclusive,” ‘ 471 F. 2d, at 87 . In Thompson v. School Board of the City of Newport News, the Fourth Circuit'rejected the view that the legislative history could be read to support the applicability of §718 to services rendered prior to its effective date, but did not find any explicitly stated legislative intent to the contrary. 472 F. 2d, at 178.

23 The legislation that ultimately resulted in the passage of § 718 grew out of a bill that'would have provided for the establishment of a $15 million federal fund from which successful litigants in school discrimination cases would be paid a reasonable fee “for services rendered, and costs incurred, after the date of enactment of this Act.” S. 683,- §11 (a), 92d Cong., 1st Sess. (1971) (emphasis supplied). The bill was reported out of the Senate Com-N mittee on Labor and Public Welfare as S. 1557, with the relevant clause intact .ip § 11. See S. Rep. No. 92-61, pp. 55-56 (1971). The section, however, was stricken in the Senate, 117 Cong. Rec. 11338-11345 (1971), and the present language of § 718 took its place. Id., at 11521-11529 and 11724-11726. The House, among other amendments, delated all mention of counsel fees. In conference, the fee provision was restored. S. Rep. No. 92-798, p. 143 (1972). ■ Thus, while there is. no explicit statement that § 718 may be applied to services rendered prior te enactment,, we are reluctant specifically to read into the statute the very fee limitation th$t Congress, eliminated.

24 In Greene, the Court held .that a claimant’s right to recover lost earnings had become final as a result of the prior decision that-the claimant had been wrongfully discharged, Greene v. McElroy, 360 U. S. 474 (1959), and of the District Court’s order on remand. .Accordingly, the Court ruled that his rights had matured under an earlier Department, of Defense regulation, and declined to give retroactive effect to a new regulation that took effect while the claim was being processed.. The inequity of a contrary holding was stressed by the Court: “In a case such'as the present, where the Government has acted without authority in causing 'the discharge of an employee without providing adequate procedural safeguards, We should be reluctant to conclude that a regulation, not explicitly so requiring, conditions restitution on a retrospective determination of the validity of the substantive reasons for the Government action — reasons which the employee was not afforded an adequate opportunity to meet or rebut at the time of his discharge.” 376 U. S., at 162 . As noted, the Court, in Thorpe v. Housing Authority of the City of Durham, 393 U. 268 (1969), characterized Greene as an exception to the general rule of Schooner Peggy, “made to prevent manifest injustice.” Id., at 282 , and n. 43.

25 “[F]rom the beginning the resources of opposing parties have been disproportionate. Ranged against the plaintiffs have been the legal staff of the City Attorney’s office and retained counsel highly experienced in trial work. . . . New litigants — even the wealthiest— come into court with resources at once so formidable and so suited to the litigation task at hand. . . . “Moreover, this sort of case is an enterprise on which any private individual should shudder to embark. . .-. To secure counsel willing to undertake the job of trial . . . necessarily means that someone— plaintiff or lawyer — must make a great sacrifice unless equity intervenes.” 53 F. R. D., at 40 .

26 See Dept. of Health, Education, and Welfare, J. Coleman et al., Equality of Educational Opportunity (1966); United States Commission on Civil Rights, Racial Isolation in the Public Schools (1967). See also Trafficante v. Metropolitan Life Insurance Co., 409 U. S. 205 (1972).

27 It is particularly in the area of desegregation that this Court in Newman and in Northcross recognized that, by their suit, plain *720 tiffs vindicated a national policy of high priority. Other courts have given explicit and implicit recognition to the priority placed on desegregation litigation by the Congress. See Knight v. Auciello, 453 F. 2d 852 , 853 (CA1 1972) and Lee v. Southern Home Sites Corp., 444 F. 2d 143 , 145 (CA5 1971) (housing); Johnson v. Combs, 471 F. 2d, at 86 (schools); Miller v. Amusement Enterprises, Inc., 426 F. 2d 534 , 537-538 (CA5 1970) (public accommodation); Cooper v. Allen, 467 F. 2d 836 , 841 (CA5 1972) (employment).

28 Since the finality of these orders is not contested, we are not called upon to construe the finality language as it appears in § 718. The only court that has dealt with the issue under this statute has held that the most suitable test for determining finality is appeal-ability under 28 U. S. C. § 1291 . See Johnson v. Combs, 471 F. 2d, at 87 . This Court has been inclined to follow a “pragmatic approach” to *723 the question of finality. Brown Shoe Co. v. United States, 370 U. S. 294 , 306 (1962). And we have said that a final decision, within the meaning of § 1291, “does not necessarily mean the last order possible to be made in a case.” Gillespie v. United States Steel Corp., 379 U. S. 148 , 152 (1964); see Cohen v. Beneficial Loan Corp., 337 U. S. 541 , 545 (1949). Without wishing affirmatively to construe the statute in detail in the absence of consideration of the issue by the lower courts, we venture to say only that the entry of any order that determines substantial rights of the parties may be an appropriate occasion up cm which to consider the propriety of an award of counsel fees m/school desegregation cases. See C. Wright, Federal Courts § 101 (2d ed. 1970).