Ayers v. Thompson

United States Court of Appeals

Fifth Circuit

F I L E D

REVISED FEBRUARY 11, 2004 January 27, 2004

IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III

Clerk

FOR THE FIFTH CIRCUIT

No. 02-60493

JAKE AYERS, JR, Private Plaintiffs;

Plaintiff - Appellant

LILLIE B AYERS; LEOLA BLACKMON; RANDOLPH WALKER; HENRY BERNARD

AYERS; IVORY PHILLIPS, Dr; VERNON ARCHER, Dr; DOROTHY WALLS;

FRANCIS OLADELESHOWL, Dr; ALEX D ACHOLONU, Dr

Appellants

v.

BENNIE G THOMPSON, United States Congressman, Second

Congressional District Mississippi

Plaintiff - Appellee

and

PLAINTIFF/INTERVENORS (GOVERNMENT)

Intervenor Plaintiff - Appellee

v.

HALEY BARBOUR, Etc.; ET AL

Defendants

HALEY BARBOUR, Governor, State of Mississippi

Defendant - Appellee

BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING

Appellee

v.

LOUIS ARMSTRONG

Movant - Appellant

Appeal from the United States District Court for the

Northern District of Mississippi, Greenville

Before KING, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

KING, Chief Judge:

African-American citizens of Mississippi, on behalf of

themselves and all others similarly situated (“the Private

Plaintiffs” or “the Private-Plaintiff class”), filed this class-

action lawsuit in 1975, seeking to compel the desegregation of

Mississippi’s system of higher education. After nearly thirty

years of litigation, a settlement agreement has been reached

between the Private Plaintiffs, the United States (which

intervened in this action in support of the Private Plaintiffs),

and the State of Mississippi. Among other obligations, the

agreement promises approximately $500 million in funding over

seventeen years to remedy the present effects of Mississippi’s

past policies of de jure segregation. After conducting a hearing

on the fairness of the proposed settlement agreement and

receiving a concurrent resolution from the Mississippi

Legislature supporting the proposal and agreeing to fund it, the

district court approved the settlement.

Dissatisfied with the relief provided for in the agreement,

2

several of the Private Plaintiffs (“Appellants”) appeal to this

court, asking us to reverse the district court’s decision and,

thereby, to invalidate the settlement. Appellants also desire to

opt out of this class action and, thus, to continue litigating

this controversy. Finally, Appellants’ attorney, who represented

the Private-Plaintiff class for many years, contends that he must

be permitted to proceed separately regarding his fees, even

though the settlement agreement provides a lump sum for the fees

of all the attorneys who have represented the Private Plaintiffs.

We have reviewed Appellants’ objections to the settlement

agreement, and we hold that the district court did not abuse its

discretion in approving it. In addition, we conclude that the

district court correctly denied Appellants’ motion to opt out of

the Private-Plaintiff class. Finally, we reject the assertion of

Appellants’ attorney that he is entitled to proceed separately

regarding attorneys’ fees. Accordingly, we affirm.

I. Background

A. Procedural History1

1

The procedural history of this litigation has been

chronicled in several prior court opinions. Except to the extent

that it is relevant to this appeal, we do not repeat that history

here. For proceedings regarding the first trial in this case,

see Ayers v. Allain, 674 F. Supp. 1523 (N.D. Miss. 1987); Ayers

v. Allain, 893 F.2d 732 (5th Cir. 1990); Ayers v. Allain, 914

F.2d 676 (5th Cir. 1990) (en banc); United States v. Fordice, 505

U.S. 717 (1992). For proceedings concerning the second trial,

see Ayers v. Fordice, 879 F. Supp. 1419 (N.D. Miss. 1995); Ayers

v. Fordice, 111 F.3d 1183 (5th Cir. 1997).

3

1. Proceedings Through the First Appeal

The Private Plaintiffs2 filed suit against, among others,

the Governor of Mississippi and the Board of Trustees of State

Institutions of Higher Learning (“the Board”). The United States

subsequently intervened as a plaintiff. In their complaints, the

Private Plaintiffs and the United States alleged, inter alia,

that the Defendants had not satisfied their affirmative

obligation under the Equal Protection Clause and Title VI to

disestablish the State’s racially dual system of higher

education.3 After conducting a trial, the district court ruled

that the State——by adopting race-neutral policies and procedures

and taking certain affirmative actions——had satisfied its duty to

reform the former de jure segregated state-university system.

Ayers v. Allain, 674 F. Supp. 1523, 1564 (N.D. Miss. 1987). We

affirmed. Ayers v. Allain, 914 F.2d 676, 692 (5th Cir. 1990) (en

2

In September 1975, the district court certified, under

Rule 23(b)(2), the following class:

[A]ll black citizens residing in Mississippi, whether

students, former students, parents, employees, or

taxpayers, who have been, are, or will be discriminated

against on account of race in receiving equal educational

opportunity and/or equal employment opportunity in the

universities operated by [the] Board . . . .

3

Mississippi’s state-university system consists of eight

schools——five historically white universities and three

historically black universities. The historically white

universities are the University of Mississippi, Mississippi State

University, Mississippi University for Women, the University of

Southern Mississippi, and Delta State University. The

historically black universities are Jackson State University,

Mississippi Valley State University, and Alcorn State University.

4

banc).

2. The Supreme Court’s Decision

Reversing, the Supreme Court held that both this court and

the district court had applied an incorrect legal standard. See

United States v. Fordice, 505 U.S. 717, 729-32 (1992). According

to the Court’s opinion,

If the State perpetuates policies and practices traceable

to its prior system that continue to have segregative

effects——whether by influencing student enrollment

decisions or by fostering segregation in other facets of

the university system——and such policies are without

sound educational justification and can be practicably

eliminated, the State has not satisfied its burden of

proving that it has dismantled its prior system. Such

policies run afoul of the Equal Protection Clause, even

though the State has abolished the legal requirement that

whites and blacks be educated separately and has

established racially neutral policies not animated by a

discriminatory purpose.

Id. at 731-32. In other words, the Court ruled that the Equal

Protection Clause and Title VI4 require Mississippi to abolish

any policy or practice that (1) is traceable to de jure

segregation, (2) continues to have segregative effects, (3) is

without sound educational justification, and (4) can be

practicably eliminated.

Having articulated the legal standard to be applied on

remand, the Court closed with an important clarification:

4

The Supreme Court opined that “the reach of Title VI’s

protection extends no further than the Fourteenth Amendment,”

thereby obviating the need to engage in distinct analyses.

Fordice, 505 U.S. at 732 n.7; accord Ayers, 111 F.3d at 1191 n.5.

5

If we understand [the Private Plaintiffs] to press us to

order the upgrading of Jackson State, Alcorn State, and

Mississippi Valley State solely so that they may be

publicly financed, exclusively black enclaves by private

choice, we reject that request. The State provides these

facilities for all its citizens and it has not met its

burden under Brown to take affirmative steps to dismantle

its prior de jure system . . . .

Id. at 743. Thus, the Court affirmed that this litigation

concerns eliminating the effects of prior legal segregation, not

mandating equality among Mississippi’s publicly funded

educational institutions. Cf. Missouri ex rel. Gaines v. Canada,

305 U.S. 337, 351 (1938) (explaining that the Fourteenth

Amendment guarantees to individuals the equal protection of the

laws).

3. The Second Trial and the Remedial Order

On remand, the district court applied the legal standard

articulated by the Supreme Court and found vestiges of

segregation with continued segregative effects in several areas

of Mississippi’s higher-education system. See Ayers v. Fordice,

879 F. Supp. 1419, 1477 (N.D. Miss. 1995). To reform these

areas, consistent with the Supreme Court’s emphasis on

educational soundness and practicability, the district court

issued a remedial decree, id. at 1494-96, and it ordered the

establishment of a three-person committee to monitor the

implementation of its decree. Id. at 1494. We describe below

only those provisions of the decree that bear on this appeal.

Regarding admissions standards, the court accepted the

6

Board’s proposed admissions policy, which remains in place today.

Id. at 1494 (accepting the Board’s proposed admissions policy);

id. at 1477-79 (describing that policy). Previously, admissions

standards were stricter at the historically white universities

than at the historically black universities, and the standards

were based almost exclusively on an applicant’s performance on

the American College Test (ACT). See Fordice, 505 U.S. at 734-

35. The prior admissions standards were a vestige of de jure

segregation that continued to have segregative effects: Because

African-American applicants as a class scored lower on the ACT

than white applicants, the standards effectively channeled black

students to the historically black universities. See Fordice,

505 U.S. at 734-35. Under the Board’s current policy, however,

uniform standards govern admission to all of the State’s

universities. Ayers, 879 F. Supp. at 1477-78. Also, rather than

being based almost entirely on ACT scores, the current admissions

standards also take into account high school grades. Id.

Further, applicants who do not meet the regular admissions

criteria can still gain admission through completion of a spring

screening process, which for some students leads to participation

in a summer remedial program and further remedial instruction

during the regular academic year. Id. at 1478-79.

The decree directed the implementation of the Board’s

proposals for the development of additional academic programs at

7

Jackson State, including programs in the field of allied health

and graduate degrees in social work, urban planning, and

business. Id. at 1494. The court further instructed the Board

to conduct an institutional study of Jackson State, involving

examination of the feasibility and educational soundness of

providing additional academic offerings there, such as an

engineering school, a law school, and a pharmacy program. Id. at

1494-95. Regarding Alcorn State, the district court ordered the

establishment of an MBA program at the school’s Natchez Center.

Id. Additionally, the court ordered the Board to study whether

desegregation in the two state universities in the Mississippi

Delta region——Delta State and Mississippi Valley State——could

only be achieved through consolidating the two institutions. Id.

The remedial decree also directed the State to submit to the

monitoring committee a report addressing the practicability of

having the State assume control over the facilities-maintenance

funds then controlled individually by each of the eight state

universities. Id. The district court further instructed the

Board “to study the feasibility of establishing system-wide

coordination of the community colleges in the State in the areas

of admissions standards and articulation procedures, and report

to the Monitoring Committee” regarding its findings.5 Id. at

5

Although a separate lawsuit was underway regarding

Mississippi’s community-college system, the district court issued

these directions respecting the community colleges because

8

1496.

4. This Court’s 1997 Opinion

On appeal, while upholding most of the district court’s

decision, this court rejected a few of its conclusions, and we

set forth several instructions to be followed on remand. We

focus here only on those aspects of our 1997 opinion that are

relevant to this appeal. We concluded that the district court

erred in finding that the use of ACT cutoffs to award

scholarships was not traceable to the de jure system and that

this policy did not continue to foster segregation. Ayers v.

Fordice, 111 F.3d 1183, 1209 (5th Cir. 1997), cert. denied, 522

U.S. 1084 (1998). Thus, we remanded for consideration of the

practicability and educational soundness of reforming this aspect

of the undergraduate scholarship policies at the historically

white universities and of implementing, if necessary, appropriate

policies at those colleges impact access to the state-university

system. See Ayers, 879 F. Supp. at 1474-75. Specifically, the

district court observed that the community colleges are in a

position to take students——who, upon graduation from high school,

are not capable of succeeding at a four-year university——and to

prepare them to transfer to a university and, thereby, to obtain

a four-year degree. Id. Because these under-prepared students

were often African-American, the court suggested that the

community colleges were a valuable resource for integrating the

four-year universities and for serving as an alternative route to

a bachelors degree for black students. Id. Finding that the

community colleges were not performing this task “to any great

degree,” the court therefore ordered the Board to study whether

the universities and the community colleges should coordinate

their admissions requirements and remedial programs. Id. at

1475.

9

remedial relief. Id. at 1209, 1228. In addition, we directed

the district court to investigate the status of the Board’s

proposal to consolidate Mississippi Valley State and Delta State.

Id. at 1214, 1228. If the district court determined that the

Board planned not to merge the two schools, we instructed the

court to order the Board to study other methods of desegregating

Mississippi Valley State, including adding academic programs at

that school. Id. We also concluded that the Board should report

to the monitoring committee on new academic and land-grant

programs that would have a reasonable chance of increasing the

number of non-African-American students attending Alcorn State.

Id. at 1214, 1228. Additionally, we remanded the issue of

equipment funding, asking the district court to investigate the

cause and segregative effect of disparities between the money

received by the historically white universities and the

historically black universities and, if necessary, to implement

appropriate relief. Id. at 1225, 1228. Finally, we instructed

the district court to monitor closely the effectiveness of the

summer remedial program. Id. at 1228-29. We indicated that the

program should be reformed as necessary to achieve the objective

of identifying and admitting students who are capable——with

reasonable remediation——of performing at the university level,

but who fail to qualify for regular admission. Id.

5. Proceedings on Remand From Our 1997 Decision

10

Below we briefly review the aspects of the proceedings

conducted and the orders issued by the district court on remand

from our 1997 decision in this case that are relevant to this

appeal.

In June 1998, the district court ruled that it would no

longer consider the consolidation of Mississippi Valley State and

Delta State, since the Board had concluded that the merger was

not practical. Thus, as we instructed it to do in our 1997

opinion, the court directed the Board to study programs that

could be implemented at Mississippi Valley State to attract non-

African-American students. Next, the district court found that

the Board was in the process of implementing a Ph.D. program in

social work at Jackson State. After observing that, in response

to our 1997 decision, the Board had ceased using ACT scores as

the sole criterion for awarding scholarships, the district court

instructed the Board to submit information to the court and to

the Plaintiffs regarding the educational soundness of using ACT

scores as one aspect of the scholarship-award criteria.

In August 1998, the district court appointed a monitor to

aid the court and the parties in implementing the remedial

decree: Dr. Jerry Boone, a former state university administrator

from Tennessee.6

6

The court amended its previous order that had provided

for a three-person monitoring committee. To the extent that

Appellants now contend that either the district court’s selection

11

In October 1999, the district court ruled that the Board had

fully complied with several of its obligations concerning Jackson

State. After considering the monitor’s status report, the court

concluded that the Board had implemented academic programs in

allied health, social work (Ph.D.), urban planning (masters and

Ph.D.), and business (Ph.D.) at Jackson State. The court also

noted that the Board had conducted an institutional study of

Jackson State and had prepared to establish an engineering school

at the university. Accordingly, the court stated that the Board

of a sole monitor or the identity of the individual selected to

serve as the monitor requires us to invalidate the parties’

settlement, we reject their contention. Approximately six months

after we handed down our 1997 decision in this case, the district

court ordered each side to submit six names from which the court

would select the monitoring committee. In the opinion

accompanying its order, the court noted that the parties’ failure

to agree on the membership of the monitoring committee was

delaying the implementation of the remedial decree. At that

time, the Private Plaintiffs, who were represented by Alvin

Chambliss (attorney for Appellants here), were busy seeking

Supreme Court review of our 1997 decision. Consequently, counsel

for the Private Plaintiffs chose not to address the issues then

pending in the trial court, such as the composition of the

monitoring committee. At the district court’s direction, the

United States submitted names of candidates for the monitoring

committee on behalf of both itself and the Private Plaintiffs.

Approximately two-and-a-half months after the district court’s

deadline for the submission of candidates had passed, the Private

Plaintiffs filed a motion requesting access to the list of

candidates submitted by the Defendants, but it does not appear

that the Private Plaintiffs ever sought to submit their own list

of candidates. While the record does not reflect precisely why

the district court——faced with the parties’ inability to agree on

the committee’s composition——eventually decided to appoint only

one monitor, we cannot conclude that the court’s action requires

us to invalidate the present settlement. Further, we reject

Appellants’ unsupported attacks on Dr. Boone’s qualifications to

serve as the court-appointed monitor.

12

had complied with most of its duties regarding new academic

programs at Jackson State.

In July 1999, the district court ruled that the Board had

complied with the paragraph of the remedial decree concerning

coordination of admissions standards and establishment of

articulation agreements between the State’s community colleges

and its universities. The court found that Mississippi’s

community colleges had approved an open-admissions policy.

Further, the court observed that the Board had standardized “an

alternative procedure for students to qualify for university

admission by completing specified requirements at a community

college.” The court also noted that, under the Board’s policy,

students who unsuccessfully attempt the summer remedial program

are counseled regarding community-college enrollment.

In July 2000, the district court approved the Mississippi

Legislature’s appropriation of funds to construct a facility to

house the court-ordered MBA program at Alcorn State’s Natchez

campus. See Ayers v. Fordice, No. 4:75CV009-B-D, 2000 U.S. Dist.

LEXIS 9877, at *9 (N.D. Miss. July 6, 2000).

In January 2001, the district court issued an order

regarding legal and pharmacy education at Jackson State. Finding

no unmet demand for legal education in the Jackson area, the

court concluded that the Board need not establish a law school at

Jackson State for the purpose of desegregating that institution.

13

The district court also found that the existing pharmacy program

at the University of Mississippi was meeting the State’s need for

pharmacy education. It further ruled that the creation of either

a law school or a pharmacy school at Jackson State was neither

feasible nor educationally sound.7 The district court then

announced that “[w]ith these issues resolved, the court finds

that all elements of the Ayers Remedial Decree having to do with

Jackson State University and involving significant expenditures

of funds have now been completed.”

In February 2001, the district court concluded that the

Board’s proposal regarding facilities-maintenance funds

essentially satisfied this aspect of the remedial decree.

To summarize the status of this litigation when the district

court was presented with the proposed settlement agreement, most

of both the district court’s remedial decree and our instructions

on remand had been implemented. Thus, only the following issues

remained to some extent unresolved: (1) further review of the

uniform admissions standards;8 (2) continued evaluation of the

7

But, while noting that such a program was not required

by the court’s remedial decree, the district court approved the

Board’s proposal for an inter-institutional pharmacy program,

jointly controlled by Jackson State, the University of

Mississippi, and the University of Mississippi Medical Center.

8

In June 1998, the district court ordered the Board to

monitor freshman enrollment statewide to assess the impact of the

uniform admissions standards. The district court had scheduled a

hearing on the admissions standards, but it was postponed pending

settlement negotiations. In his analysis of enrollment data from

1993-1998, the monitor reported “a substantial and fairly steady

14

summer remedial program;9 (3) investigation of potential new

academic programs that might help to desegregate Mississippi

Valley State and Alcorn State; (4) assessment of equipment

funding; and (5) consideration of the use of ACT scores as a

component of the criteria for awarding scholarships.

B. Proceedings Concerning the Settlement Agreement

1. The Settlement Agreement

After lengthy negotiations, all of the Defendants, the

increase in total freshmen enrollments, universities and

community colleges combined, among resident black students.” But

he also noted that African-American freshmen were “drift[ing]

away from the universities and toward the community colleges.”

In addition, the monitor cautioned against placing too much

weight on the data, pointing out that his analysis dealt only

with numbers from three years before and three years after the

uniform admissions standards were instituted.

9

The monitor also reported to the district court on the

effectiveness of the summer remedial program. The monitor’s

assessment of the program was quite positive; he concluded:

“Overall, I believe the spring screening and summer remedial

program should be regarded as a success for those who attend the

summer program. Most of the students who go through it complete

it successfully and go on to attend one of the universities in

the fall.” Further, he noted that there had been “no reduction

in black students attending college since the summer program was

initiated, although a larger proportion are choosing to attend a

community college,” a result which did not trouble the monitor

“because transfer arrangements between the universities and the

community colleges make initial enrollment in a community college

a clear alternative for university-bound students who prefer not

to go through the summer program.” Noting that many of the

rejected applicants who did not participate in the spring

screening process and the summer remedial program were apparently

unaware of the programs’ existence, the monitor recommended that

the Board should be required to ensure that students who do not

qualify for regular admission are adequately informed about the

spring screening process and the summer remedial program,

including the availability of financial aid for participants.

15

United States, and the lead Private Plaintiff (Congressman Bennie

Thompson),10 on behalf of both himself and the Private-Plaintiff

class, reached a settlement agreement. By its terms, “[j]udicial

approval of [the] Agreement is to relieve the Board, and all

other defendants, of any further obligations under the remedial

decree.” Further, the “only obligations of the Board, and other

defendants, arising out of or related to the Ayers litigation

will be those specified in [the] Agreement.” We describe below

the major obligations contained in the Agreement.

a. Financial Assistance for the Summer Remedial

Program

Under the agreement, the State will provide special funding

in the amount of $500,000 annually for five years (from 2002-

2006) and $750,000 annually for five additional years (from 2007-

2011) to supplement the need-based financial aid presently

available to summer program participants.11 Further, the

agreement obligates the Board to “widely” publicize both the

opportunity to enroll in the summer remedial program and the

10

Congressman Thompson is one of the twenty-one original

named plaintiffs in this suit, and in March 2000, the district

court designated——for “purposes of efficient communications and

organization”——Congressman Thompson as the “lead plaintiff” in

this action.

11

The Board, however, “specifically reserves the right to

no longer provide the summer program at certain Mississippi

universities should future circumstances so warrant.”

16

availability of financial aid for program participants.12

b. Academic Programs

The agreement provides for the establishment, continuation,

or enhancement of a variety of academic programs at Alcorn State,

Jackson State, and Mississippi Valley State.13 Further,

12

This provision is directly responsive to the monitor’s

recommendation that the Board adequately inform students who are

denied regular admission about the summer program and the

financial aid available to those who participate in it.

13

The specific programs or program areas named in the

agreement are detailed below. When a particular program is being

or will be provided at a branch campus, that information is

indicated parenthetically.

Alcorn State: (1) business administration, masters (Natchez

campus); (2) accounting, masters (Natchez campus); (3) finance,

bachelors (Lorman campus) and masters (Natchez campus);

(4) physician assistants, masters (Natchez campus or Vicksburg

campus); (5) biotechnology, masters (Lorman campus); (6) computer

networking, bachelors (Vicksburg campus); (7) environmental

science, bachelors (Lorman campus); (8) nursing; (9) teacher

education; (10) mathematics and sciences (biology, chemistry,

physics); and (11) computer science.

Jackson State: (1) business, Ph.D.; (2) urban planning,

masters and Ph.D.; (3) social work, Ph.D.; (4) civil engineering,

bachelors; (5) computer engineering, bachelors;

(6) telecommunications engineering, bachelors; (7) public health,

masters; (8) health care administration, bachelors;

(9) communicative disorders, masters; (10) higher education,

Ph.D.; (11) public health, Ph.D.; (12) Mississippi

Interinstitutional Pharmacy Initiative; (13) school of allied

health; (14) school of public health; (15) school of engineering

(graduate programs in civil, computer, and telecommunications

engineering will be considered for implementation upon

accreditation of the baccalaureate engineering programs);

(16) business; and (17) education.

Mississippi Valley State: (1) history, bachelors;

(2) special education, masters and bachelors; (3) computer

science, masters; (4) bioinformatics, masters; (5) leadership

administration, masters; (6) business administration, masters;

(7) biology; (8) chemistry; (9) computer science;

(10) mathematics; and (11) special education.

17

beginning with fiscal year 2002, annual appropriations are to be

provided to the historically black universities for seventeen

years, in the total amount of $245,880,000, to fund the numerous

academic programs detailed in the agreement.14

c. Endowments

The agreement establishes both a publicly funded and a

privately funded endowment for the benefit of Alcorn State,

Jackson State, and Mississippi Valley State. Mississippi will

create the public endowment, which will consist of $70 million,

over the course of fourteen years. Additionally, the agreement

requires the Board to use its best efforts over a seven-year

period to raise $35 million for the privately funded endowment.

Initially, the endowments will be managed by a seven-person

committee composed of the presidents of the historically black

universities, the Commissioner of Higher Education, two members

of the Board, and a member to be agreed on by the other members.

14

The agreement also states that,

The Board will maintain the right to evaluate program

implementation in light of program objectives including

reservation of the right to direct reallocation of

monies, in consultation with the presidents of the

historically black universities, to other academic

programs and other-race endeavors identified in this

Agreement. Given the considerable period of time covered

by this Agreement, the Board further reserves the right

to substitute academic programs, in consultation with the

presidents of the historically black universities, for

those presently identified should future circumstances so

warrant.

18

The income from both endowments will be allocated 28.3% to Alcorn

State, 43.4% to Jackson State, and 28.3% to Mississippi Valley

State, with the schools being required to use the funds for

other-race15 marketing and recruitment, including the employment

of other-race recruiting personnel and the award of other-race

student scholarships. The schools may also expend the endowment

income on the academic programs provided for in the agreement.

Alcorn State, Jackson State, and Mississippi Valley State

will each receive its pro rata share of the endowments when the

institution attains a total other-race enrollment of ten percent

and sustains that enrollment for three consecutive years. After

obtaining full control over the endowment funds, the historically

black universities may use the income for “sound academic

purposes such as faculty compensation, academic program

enhancements and student scholarships.”

d. Capital Improvements

The agreement authorizes various capital improvements, at a

total cost of up to $75 million, at Alcorn State, Jackson State,

and Mississippi Valley State.

e. Funding

According to the agreement, the funding necessary to

implement the agreement’s provisions supplements the usual

15

The agreement defines “other-race” as non-African-

American.

19

appropriations made to the state-university system and does not

supplant normal funding for Alcorn State, Jackson State, and

Mississippi Valley State.

f. Recognition of Jackson State as a Comprehensive

University

Acknowledging that Jackson State presently offers a broad

array of academic programs and that its service area extends

beyond the Jackson, Mississippi, metropolitan area, the Board

agrees that Jackson State should be “recognized as a

comprehensive university.” The additional programs, facilities,

and other resources to which comprehensive recognition entitles

Jackson State are those provided for in the agreement.

g. Attorneys’ Fees

Under the agreement, the attorneys for the Private

Plaintiffs will receive a total of $2.5 million for fees, costs,

and expenses. Additionally, the agreement states that

The class representative (Congressman Thompson) and Class

counsel Byrd, Derfner and Pressman specifically represent

that North Mississippi Rural Legal Services, The Center

for Law and Education, and Alvin O. Chambliss, Jr. have

knowledge of these provisions (i) that the Ayers

defendants’ obligations for attorneys’ fees, costs and

expenses will be fully satisfied on payment of $2,500,000

. . . and (ii) that no present or former counsel for the

Class, or member of the Class, may seek attorneys’ fees,

costs and expenses other than as set forth in this

Agreement.

h. Settlement Implementation

The agreement obligates the Board to report annually to lead

counsel for the Private Plaintiffs and counsel for the United

20

States on the agreement’s implementation. In addition, it

expresses the parties’ decision to submit to the exclusive

jurisdiction of the district court any dispute relating to the

agreement. Also, the agreement will not become final until its

approval is no longer subject to further appeal or judicial

review.

2. Appellants’ Motion to Opt Out

Unhappy with the relief provided for in the agreement,

Appellants filed a motion to opt out of the Private-Plaintiff

class. After holding a two-day evidentiary hearing, the district

court denied their motion. See Ayers v. Musgrove, No. 4:75CV009-

B-D, 2001 U.S. Dist. LEXIS 19730, at *1, *18 (N.D. Miss. Nov. 26,

2001).

3. The District Court’s Approval of the Settlement

Agreement

Several months after it ordered that notice of the proposed

settlement be published in newspapers throughout Mississippi, the

district court conducted a fairness hearing, receiving testimony

from proponents of and objectors to the settlement. See Ayers v.

Musgrove, No. 4:75CV009-B-D, 2002 WL 91895 (N.D. Miss. Jan. 2,

2002). The district court acknowledged that it had heard

persuasive arguments both for and against approving the

settlement. Id. at *3.16 Despite having concerns about the

16

In its opinion, the court summarized the most weighty

contentions on each side. See Ayers, 2002 WL 91895, at *3-4.

21

proposed settlement, including its high cost and long duration,

the district court expressed a preference for ending this case

through agreement of the parties. Id. at *4. But it worried

that none of the parties involved had the authority to

appropriate the substantial sum necessary to fund the proposal.

Id. at *4. Accordingly, the district court stated that——if the

Mississippi Legislature would endorse the agreement and agree to

fund it——the court would approve the settlement. Id. at *5.

After the district court received a concurrent resolution

evidencing the Legislature’s support for and agreement to fund

the settlement, the court issued a final judgment approving the

settlement. According to the district court,

[I]f the State of Mississippi through its elected

representatives, the policymakers of the State, wants to

go further in the enhancements to the historically black

institutions than called for by the court——and they have

advised the court they do——then their actions will be

given precedence. It is not illegal to do more than that

required by the Constitution.

Ayers v. Musgrove, No. 4:75CV009-B-D, slip op. at 2 (N.D. Miss.

Feb. 15, 2002). The court’s decision, inter alia, specified that

(1) this suit is a class action certified under Rule 23(b)(2);

(2) the settlement agreement is incorporated by reference into

the final judgment; (3) the agreement “affords the Class Members

considerable relief in light of the established law of this case,

the present stage of these proceedings and the range of possible

recovery through further litigation, and is, in all respects,

22

fair, reasonable, adequate and in the best interest of the

Class”; and (4) all claims relating to this controversy are

dismissed with prejudice.17 Id. at 2-4. In addition to

appealing the district court’s final judgment approving the

settlement, Appellants challenge the district court’s denial of

their motion to opt out of the Private-Plaintiff class.18

II. Standard of Review

A district court’s findings of fact must be accepted unless

those findings are clearly erroneous, but we review de novo a

district court’s conclusions of law. See Prudhomme v. Tenneco

Oil Co., 955 F.2d 390, 392 (5th Cir. 1992). In addition, “[o]ur

appellate review of the district court’s approval of a settlement

is limited; an approved settlement will not be upset unless the

court clearly abused its discretion.” Parker v. Anderson, 667

F.2d 1204, 1209 (5th Cir. Unit A 1982) (citing Young v. Katz, 447

17

Before turning to the merits of Appellants’

contentions, we briefly observe that the funding provided for in

the settlement agreement is apparently being withheld, pending

final judicial approval of the parties’ settlement. At oral

argument, counsel for the State explained that, while the Board

continues to fulfill its obligations under the district court’s

remedial decree, implementation of the additional commitments

contained in the agreement awaits final court approval of the

settlement.

18

Below we address those of Appellants’ contentions that

we can adequately discern from the briefing. Several of

Appellants’ arguments are insufficiently developed and are,

therefore, waived. See FED. R. APP. P. 28(a)(9)(A); L & A

Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113

(5th Cir. 1994).

23

F.2d 431, 432 (5th Cir. 1971)); accord Reed v. Gen. Motors Corp.,

703 F.2d 170, 172 (5th Cir. 1983). Finally, a district court’s

denial of a motion to opt out of a class certified under Rule

23(b)(2) is reviewed for abuse of discretion. See Penson v.

Terminal Transp. Co., 634 F.2d 989, 994 (5th Cir. Unit B Jan.

1981).

III. Discussion

A. The District Court’s Approval of the Settlement Agreement

A district court has discretion to approve a class-action

settlement under Rule 23(e) if the settlement is fair, adequate,

and reasonable. Parker, 667 F.2d at 1208-09. Our cases instruct

that the district court’s “exercise of discretion is to be tested

by inquiries that ‘ensure that the settlement is in the interest

of the class, does not unfairly impinge on the rights and

interests of dissenters, and does not merely mantle oppression.’”

Reed, 703 F.2d at 172 (quoting Pettway v. Am. Cast Iron Pipe Co.,

576 F.2d 1157, 1214 (5th Cir. 1978)). Further, six factors guide

our review of a decision to approve a settlement agreement

resolving a class-action suit:

(1) the existence of fraud or collusion behind the

settlement; (2) the complexity, expense and likely

duration of the litigation; (3) the stage of the

proceedings and the amount of discovery completed;

(4) the probability of plaintiffs’ success on the merits;

(5) the range of possible recovery; and (6) the opinions

of the class counsel, class representatives, and absent

class members.

Id. (citing Parker, 667 F.2d at 1209). Accordingly, we focus

24

below on the Parker factors, and we also address both Appellants’

inadequate-representation contention and their challenge to the

agreement’s provision regarding attorneys’ fees.

1. Fraud or Collusion

Appellants’ brief contains several vague assertions of

collusion. Primarily, Appellants claim that they had

insufficient access to and participation in the settlement

negotiations. Further, they suggest that collusion occurred in

the negotiation of attorneys’ fees.

It is unclear why Appellants’ attorney, Alvin Chambliss (who

represented the Private-Plaintiff class for many years), did not

participate in the settlement negotiations. The lead Private

Plaintiff, Congressman Thompson, testified at the fairness

hearing that every effort was made to keep Mr. Chambliss informed

regarding the negotiations. Further, letters and

facsimiles——indicating correspondence between lead counsel for

the class and Mr. Chambliss concerning the settlement talks——were

presented as exhibits at the fairness hearing. Regardless, the

district court found Appellants’ allegations of collusion to be

unsupported. Ayers, 2001 U.S. Dist. LEXIS 19730, at *16.

Because Appellants have pointed to no record evidence that

contradicts this finding——let alone evidence showing it to be

clearly erroneous——we reject their contention that collusion was

present in the settlement negotiations.

25

2. The Complexity, Expense, and Likely Duration of the

Suit and the Stage of the Proceedings

The second and third Parker factors——the complexity,

expense, and likely duration of the litigation and the stage of

the proceedings and the amount of discovery completed——weigh in

favor of affirming the district court’s decision. First,

regarding the second factor, settling now avoids the risks and

burdens of potentially protracted litigation concerning several

aspects of our remand instructions and the district court’s

remedial decree. See supra notes 8-9 and accompanying text

(describing five issues that were not fully resolved when the

parties reached their agreement). Specifically, settlement

eliminates the transaction costs that further proceedings would

impose on the process of desegregating Mississippi’s state-

university system. The agreement also provides relief for the

class sooner than continued litigation would.

Second, examination of the stage of the proceedings and the

amount of discovery completed weighs in favor of upholding the

settlement. The several trials and appeals that have already

occurred in this case have largely resolved the controlling legal

issues. Thus, the parties and the district court possess ample

information with which to evaluate the merits of the competing

positions.

3. Likelihood of Success on the Merits and Range of

Possible Recovery

26

Because two trials and several appeals have already occurred

in this case, the probability of the Plaintiffs’ success on the

merits and the range of possible recovery have largely been

resolved. Our 1997 opinion conclusively determined nearly all of

the State’s obligations.19 Most of our instructions to the

district court in that opinion concerned the remedial decree, see

Ayers, 111 F.3d at 1228-29, and as discussed above, the district

court concluded——before the parties reached their

settlement——that much of the remedial decree had been

satisfied.20

Nevertheless, aside from their allegations of collusion,

Appellants’ main objections to the settlement agreement center on

their view that the relief it provides is inadequate. Appellants

primarily seek more money for academic programs and facilities at

the historically black universities and lower admissions

standards. But they also object to the requirement that the

19

Appellants claim that Mississippi, in dismantling its

former system of de jure segregation, has not complied with Title

VI and several regulations and policies promulgated in accordance

with that statute. But their reliance on Title VI and its

implementing regulations is unavailing because Mississippi’s

obligations have been determined under the Fourteenth Amendment;

both the Supreme Court and this court have stated that the

requirements of Title VI extend no further than those of the

Fourteenth Amendment. Fordice, 505 U.S. at 732 n.7; Ayers, 111

F.3d at 1191 n.5.

20

To the extent that Appellants allege that the district

court disregarded our 1997 remand instructions, we reject their

contention. Appellants do not direct us to anything in the

record that would support such an assertion.

27

historically black universities reach and sustain an other-race

enrollment of ten percent before gaining full control over the

endowments created by the settlement agreement. Additionally,

Appellants assert that the agreement does not adequately address

institutional mission designations,21 faculty

salaries, governance, accreditation, and the allocation of land-

grant functions between Alcorn State and Mississippi State

University. We address each of Appellants’ specific contentions

in turn below and explain why Appellants are unlikely to achieve

greater relief through further litigation.

Concerning Appellants’ desire for more funding for and

21

In 1981, the Board assigned missions to the state

universities in Mississippi. Ayers, 674 F. Supp. at 1539. A

university’s “mission” defines the institution’s “role and scope”

relative to the other institutions within the system. Id. The

Board designated the University of Mississippi, Mississippi

State, and the University of Southern Mississippi as

“comprehensive” universities. Id. This designation indicates

that these institutions offered a greater number and higher level

of degree programs than did the remaining universities and that

these schools were expected to offer a number of doctoral

programs, but not in the same disciplines. Id. Jackson State

was classified as an “urban” university, indicating that its role

was to serve the urban community of Jackson, Mississippi. Id. at

1539-40. Mississippi Valley State, Alcorn State, Mississippi

University for Women, and Delta State received the designation of

“regional” university. Id. at 1540. The regional designation

signifies that these institutions were expected to focus on the

provision of undergraduate education. Id.

While the agreement provides for the recognition of Jackson

State as a comprehensive university, it also states that Jackson

State’s “use of the comprehensive description does not imply any

change in [its] institutional mission classification.

Institutional mission designations are not being addressed by

this Agreement.”

28

programs at the historically black universities, our 1997

decision affirmed the district court’s finding that “merely

adding programs and increasing budgets is not likely to

desegregate” a historically black university. Ayers, 111 F.3d at

1213 (citation and internal quotation marks omitted).

Additionally, we upheld the district court’s determination that

the State’s funding formula is not traceable to de jure

segregation. Id. at 1224-25. While we did instruct the district

court to investigate potential programmatic enhancements at

Alcorn State and Mississippi Valley State for the purpose of

desegregating those schools, id. at 1228, the settlement

agreement makes ample provision for academic offerings at both

universities. Further, testimony of the Board’s witnesses at the

fairness hearing indicates that many of these programs were

selected in accordance with our guidance that “well-planned

programs that respond to the particular needs and interests of

local populations can help to desegregate historically black

institutions.” Id. at 1213-14.

As discussed above, several new academic programs have also

been added at Jackson State, and the settlement agreement

provides for the continuation of these programs in addition to

the implementation of several new programs. Appellants

nonetheless assert that the settlement should be invalidated

because programs in law, pharmacy, engineering, and public health

29

have not been established at Jackson State. Further, they

contend that Jackson State should have partial control over the

University of Mississippi Medical Center, located in Jackson,

Mississippi.

Each of Appellants’ contentions has been addressed by prior

court rulings. First, the district court found, in its January

2001 order discussed above, that placing either a law school or a

pharmacy school at Jackson State was neither feasible nor

educationally sound; moreover, no party even sought such steps at

the time of the district court’s ruling.22 Second, in the same

order, the district court noted that an engineering school and a

masters in public health program have already been implemented at

Jackson State, and the settlement agreement provides continued

funding for these offerings as well as funding for a school of

public health at Jackson State. Third, regarding the University

of Mississippi Medical Center, our 1997 decision affirmed the

district court’s finding that institutional affiliation between

Jackson State and the Medical Center had no desegregative

potential. Id. at 1211, 1215.

Regarding facilities at the historically black universities,

our 1997 opinion also rejected “Plaintiffs’ argument for general

22

An inter-institutional pharmacy program, over which

Jackson State has partial control, was developed, however, and

the settlement agreement provides for the continuation of that

program.

30

funds to enhance facilities” at these schools. Id. at 1224.

Still, the settlement agreement provides up to $75 million for

capital improvements at the historically black universities,

including acquisition of property, construction of new buildings

and repairs and renovation of existing ones, purchase of

additional equipment, and landscaping and drainage installation.

In addition, in its February 2001 order discussed above, the

district court concluded that the Board had essentially satisfied

its obligation under the remedial decree to assume greater

control over funds for facilities maintenance.

Turning to Appellants’ contentions respecting the current

admissions policy, their hope for lower admissions standards also

cannot be reconciled with our 1997 opinion, which specifically

approved the district court’s adoption of uniform admissions

standards that are rigorous enough to exclude students incapable

of succeeding at the university level. See id. at 1198-1200. In

particular, we affirmed the district court’s finding that the

open admissions component of the standards then (and, apparently,

again now) sought by the Private Plaintiffs was educationally

unsound.23 Id. at 1199. We did, however, instruct the district

23

At oral argument, Appellants advocated a return to

tiered admissions standards, with the historically white

universities employing stricter admissions criteria than the

historically black universities. Appellants fail to recognize,

however, that the Supreme Court condemned that prior policy as a

vestige of de jure segregation with continued discriminatory

effects. See Fordice, 505 U.S. at 734-35.

31

court to review the efficacy of the spring screening process and

the summer remedial program. See id. at 1201, 1228-29. As

discussed above, the court-appointed monitor’s reports indicate

that the summer program has been a success. Further, the

settlement agreement responds to the monitor’s primary

recommendation regarding the summer program——i.e., that the

program, and the availability of financial aid for participants,

should be adequately publicized by the Board.

We also reject Appellants’ objection to the requirement that

each of the historically black universities achieve and maintain

ten-percent other-race enrollment before receiving its share of

the endowments. As the United States explains in its brief, the

ten-percent threshold seeks to ensure that the historically black

universities devote the endowment funds to promoting the

desegregation of their schools, not to upgrading them “so that

they may be publicly financed, exclusively black enclaves by

private choice.” Fordice, 505 U.S. at 743. This provision will

not encourage the historically black universities to discriminate

in admitting students because the current admissions standards

are uniform across the state-university system; the schools lack

discretion to deny entry to those applicants who meet the uniform

criteria. Instead, the ten-percent threshold will provide the

historically black universities with a legitimate incentive to

32

recruit and to attract other-race students.24

In addition, Appellants’ complaint that institutional

mission designations should have been addressed in the agreement

is not well taken. In our 1997 opinion we observed that the

district court’s remedial decree “does not order any alteration

of the mission designations,” and we further noted that “[n]o

party appeals retention of the mission designations per se.”

Ayers, 111 F.3d at 1211. But, even if we were to reconsider this

issue now, the extensive programmatic enhancements at the

historically black universities that have been implemented thus

far and will be established as a result of the agreement are

intended to remedy the present segregative effects of this

particular vestige of de jure segregation. Cf. id. at 1213 (“The

issue of programmatic enhancement directly implicates policies

governing institutional missions, which the district court found

to be traceable to the de jure system and to have current

segregative effects.”).

Finally, turning to Appellants’ last four areas of concern,

our 1997 decision affirmed the district court’s 1995 rulings that

no relief was warranted to remedy disparities in the salaries,

the hiring, or the promotion of African-American faculty, id. at

24

Moreover, we note that the ten-percent threshold

responds to the monitor’s observation that the historically white

universities have been desegregating faster than the historically

black universities.

33

1226-27; to modify the composition of the Board or its staff, id.

at 1227-28; to address the Board’s efforts regarding the

accreditation of academic programs at the historically black

universities,25 id. at 1214-15; or to re-allocate land-grant

responsibilities between Alcorn State and Mississippi State

University, id. at 1217.

Accordingly, both the probability of the Plaintiffs’ success

on the merits and the range of possible recovery point strongly

in favor of affirming. Rejection of the settlement and further

litigation is unlikely to lead to greater relief for the Private-

Plaintiff class, particularly since most of the relief sought by

Appellants has been foreclosed by our 1997 decision in this case.

The settlement agreement provides meaningful relief; in

particular, it contains generous funding for (1) a variety of new

and enhanced academic programs at the historically black

universities and (2) financial aid for participants in the summer

remedial program——a program lauded by the court-appointed

monitor——to assist those denied admission under the current

uniform standards. Further, we reiterate that the targeted

programmatic enhancements provided for in the agreement are

intended to promote desegregation at the historically black

25

We did, however, instruct the district court to ensure

that the then-existing business programs at Jackson State

received accreditation. In June 1998, the district court

determined that this step had been achieved.

34

universities. To the extent that Appellants “press us to order

the upgrading of Jackson State, Alcorn State, and Mississippi

Valley State solely so that they may be publicly financed,

exclusively black enclaves by private choice,” the Supreme Court

has rejected their contention. Fordice, 505 U.S. at 743.

4. The Opinions of the Class Counsel, Class

Representatives, and Absent Class Members

Appellants also assert that reversal is required because

many class members oppose the settlement agreement.26 Our

jurisprudence, however, makes clear that a settlement can be

approved despite opposition from class members, including named

plaintiffs. See Reed, 703 F.2d at 174-75 (affirming the district

court’s approval of a settlement despite “the objections of

twenty-three of twenty-seven named plaintiffs and nearly forty

percent of the 1,517 member class”); Parker, 667 F.2d at 1207-08,

1214 (affirming a district court’s approval of a settlement of a

class-action suit even though nine of the eleven named plaintiffs

opposed the settlement); Cotton v. Hinton, 559 F.2d 1326, 1331

(5th Cir. 1977) (“A settlement can be fair notwithstanding a

large number of class members who oppose it.”). That several

26

Appellants claim that approximately 4,000 class

members, including more than half of the original named

plaintiffs, do not support the settlement agreement. But, while

the record indicates that several class members oppose the

settlement, the number does not appear to be anywhere near 4,000.

According to the district court’s opinion regarding Appellants’

motion to opt out of the class, ninety-nine Private Plaintiffs

sought to opt out. Ayers, 2001 U.S. Dist. LEXIS 19730, at *1.

35

class members desire broader relief, which has been foreclosed by

prior court rulings, does not prevent judicial approval of this

settlement agreement, which promises substantial relief to the

class.

5. Inadequate Representation

Appellants also argue that the district court erred in

approving the settlement because the class was not adequately

represented during the settlement negotiations. Mr. Chambliss,

Robert Pressman, and Armand Derfner have represented the Private

Plaintiffs for many years. In March 2000, attorneys from the law

firm of Byrd and Associates entered an appearance on behalf of

the Private Plaintiffs, which was “acknowledged and agreed to” by

Mr. Chambliss. Later that month, the district court designated

Congressman Thompson as the lead plaintiff. In May 2000, in

response to an order from the district court, Congressman

Thompson named Isaac Byrd and Byrd’s law firm as lead counsel for

the Private Plaintiffs. Still, Mr. Chambliss, Mr. Pressman, and

Mr. Derfner continued to represent the Private-Plaintiff class.27

It appears that Mr. Byrd and his firm took the lead in

negotiating the settlement agreement on behalf of the Private

Plaintiffs. In their brief, Appellants criticize Congressman

Thompson’s and Mr. Byrd’s representation of the class during the

27

Mr. Pressman and Mr. Derfner, in addition to Mr. Byrd,

currently represent the Private-Plaintiff Appellees in this

appeal.

36

settlement negotiations. In particular, Appellants note that Mr.

Byrd is primarily a plaintiffs’ personal-injury lawyer and is

inexperienced in civil-rights litigation.

In Reed, this court noted that “adequacy of representation

and adequacy of settlement are different sides of the same

question.”28 703 F.2d at 175. Further, we stated that “the

settlement itself provides insight into adequacy of

representation.” Id.; accord Parker, 667 F.2d at 1211 (stating

that “generally an attorney who secures and submits a fair and

adequate settlement has represented the client class fairly and

adequately”). Here, the district court concluded that the

settlement agreement is fair, adequate, and reasonable, and our

analysis of the agreement in the context of the Parker factors

reveals no abuse of discretion by the district judge. We also

observed in Reed that “it is the trial judge who can best know

how well the class was represented.” 703 F.2d at 175. Here, the

district court found “the allegations of inadequate

representation of class members wholly unsubstantiated.”29

28

Indeed, Appellants’ complaints about the representation

provided by Congressman Thompson center on their disagreement

with his view that the settlement agreement is satisfactory.

29

In its order naming Thompson lead plaintiff, the

district court remarked that he “is one of the original named

plaintiffs who brought this suit against the defendants herein

and has been more active than any other plaintiff in pursuing

this case, having appeared before the court on several occasions

as a witness and representative of the plaintiff class and also

at conferences.”

Regarding the attorneys who negotiated the settlement

37

Ayers, 2001 U.S. Dist. LEXIS 19730, at *16. Accordingly, because

the agreement provides ample relief to the class and Appellants

have not shown that any record evidence supports their

inadequate-representation allegation, we refuse to invalidate the

settlement on this ground.

6. Attorneys’ Fees

Appellants also contend that the settlement should be

rejected because the amount of attorneys’ fees was negotiated

along with the rest of the agreement. But they fail to cite any

authority for the proposition that a district court abuses its

discretion when it approves a settlement agreement that contains

a provision for attorneys’ fees. On the contrary, the Supreme

Court has stated that, “[i]deally, of course, litigants will

settle the amount of a fee.” Hensley v. Eckerhart, 461 U.S. 424,

agreement, the district court stated,

Mr. Byrd, retained and named by Mr. Thompson, the lead

private plaintiff, as lead counsel for the class, is a

competent attorney whose co-counsel, Mr. Pressman and Mr.

Derfner, undisputedly competent and long-time attorneys

for the class, actively participated in the settlement

negotiation process, along with the independent

participation of the United States Department of Justice

attorneys, whose competent representation of the United

States for more than twenty-five years is undisputed.

Ayers, 2001 U.S. Dist. LEXIS 19730, at *16. That counsel for the

United States was personally involved in the settlement

negotiations gives us an additional reason to conclude that the

class was adequately represented. Cf. United States v. City of

Miami, 614 F.2d 1322, 1332 (5th Cir. 1980) (stating that, when

approving a consent decree in a case in which the United States

was the plaintiff, a court “can safely assume that the interests

of all affected have been considered”).

38

437 (1983). True, the Court has suggested that, in cases where

the plaintiffs request damages and the defendant offers to settle

for a lump sum covering both damages and attorneys’ fees,

negotiating the allocation may present a conflict of interest for

the plaintiffs’ attorney. But even in such cases, the Court has

declined to prohibit simultaneous negotiation of liability and

fees, stating that “a defendant may have good reason to demand to

know his total liability.” White v. N.H. Dep’t of Employment

Sec., 455 U.S. 445, 454 n.15 (1982). Indeed, in the context of

civil-rights litigation seeking injunctive relief, the Court has

opined that prohibiting agreement between the parties on

attorneys’ fees “might well preclude the settlement of a

substantial number of cases.” Evans v. Jeff D., 475 U.S. 717,

733 (1986); cf. Armstrong v. Bd. of Sch. Dirs., 616 F.2d 305,

312, 326-27 (7th Cir. 1980) (affirming the district court’s

approval of a settlement agreement that resolved a public-school-

desegregation class action and that provided for the attorneys’

fees of both counsel for the named plaintiffs and counsel for the

absent class members). The provision for attorneys’ fees

therefore does not cause us to conclude that the district court

abused its discretion in approving the settlement agreement.

7. Conclusion

We have analyzed the agreement in the context of the Parker

factors, and we hold that the district court did not abuse its

39

discretion in approving the settlement agreement. Further, we

agree with the district court that Appellants’ inadequate-

representation argument fails, and we reject Appellants’

assertion that the agreement’s clause regarding attorneys’ fees

renders the settlement invalid.

B. The District Court’s Denial of Appellants’ Motion to Opt Out

of the Class

Appellants assert that they should have been permitted to

opt out of the class because it does not satisfy the requirements

of Rule 23(a). Alternatively, they claim that Rule 23 cannot be

applied to deny them the opportunity to litigate their claims in

a separate proceeding. Appellants raise two arguments in support

of this alterative contention. First, they maintain that

Mississippi state law affords them the right to proceed with a

separate action30 and that Erie Railroad Co. v. Tompkins, 304

U.S. 64 (1938), requires us to apply state law rather than Rule

23. Second, Appellants suggest that refusing to permit them to

opt out impinges on their First Amendment rights.

We have held that “a member of a class certified under Rule

23(b)(2) has no absolute right to opt out of the class.” Penson,

634 F.2d at 994. Rather, a “district court . . . acting under

its Rule 23(d)(2) discretionary power, may require that an opt-

out right and notice thereof be given should it believe that such

30

See MISS. CONST. art. 3, § 24.

40

a right is desirable to protect the interests of the absent class

members.” Id. Typically, such cases involve “hybrid” Rule

23(b)(2) class actions, in which individual monetary relief for

certain class members is sought in addition to class-wide

injunctive or declaratory relief. Id. “Such a class action, at

least in the relief stage, begins to resemble a 23(b)(3) action,

and there has been more concern with protecting the due process

rights of the individual class members to ensure they are aware

of the opportunity to receive the monetary relief to which they

are entitled.” Id.

Here, the class was certified under Rule 23(b)(2) because

Mississippi, in maintaining vestiges of its prior de jure system

of higher education, had “acted [and] refused to act on grounds

generally applicable to the class, thereby making appropriate

final injunctive relief or corresponding declaratory relief with

respect to the class as a whole.” FED. R. CIV. P. 23(b)(2). This

case is not a hybrid class action; the Private Plaintiffs have

sought solely injunctive and declaratory relief throughout the

litigation. Even in their briefs to this court,

Appellants——while expressing their dissatisfaction with the

extent of the relief provided for in the settlement agreement——do

not request any individual relief, whether monetary or otherwise.

Appellants’ interests do not diverge from those of the Private

Plaintiffs who support the settlement, except to the extent that

41

Appellants believe that they are entitled to greater class-wide

injunctive relief. Accordingly, since Appellants have failed to

show the existence of individual claims that are separate and

distinct from the claims for class-wide relief, the district

court correctly concluded that no basis existed for it to

exercise its discretion to allow Appellants to opt out.

Additionally, we reject Appellants’ assertion that the

requisites of Rule 23(a) have not been met here. As discussed

above, the district court confirmed class certification in its

final judgment. Aside from their allegation of inadequate

representation, Appellants do not specify why——after nearly

thirty years of litigation——they now feel that class

certification was improper in this case. Further, Appellants’

inadequate-representation argument fails in this context for the

same reason that this contention did not cause us to reverse the

district court’s approval of the settlement: Appellants provide

nothing to contradict the district court’s finding that class

counsel and Congressman Thompson adequately represented the

Private-Plaintiff class.

Finally, Appellants’ contentions based on Erie and the First

Amendment lack merit. First, this is not a diversity case; thus,

Erie is inapplicable. Erie, 304 U.S. at 78 (“Except in matters

governed by the Federal Constitution or by Acts of Congress, the

law to be applied in any case is the law of the State.” (emphasis

42

added)). Moreover, Erie does not affect the application of a

Federal Rule of Civil Procedure, such as Rule 23, in federal

court. See Hanna v. Plumer, 380 U.S. 460, 470 (1965) (“The Erie

rule has never been invoked to void a Federal Rule.”). Second,

Appellants provide no authority for the proposition that denying

them the right to opt out of a Rule 23(b)(2) class violates the

First Amendment.

Appellants fail to articulate a viable ground for opting out

of the class. Consequently, we hold that the district court did

not abuse its discretion in denying Appellants’ motion.

C. Attorneys’ Fees

Finally, Mr. Chambliss asserts that he is not bound by the

provision for attorneys’ fees in the settlement agreement. He

insists that he is entitled to have his fee determined by the

district court. Further, he claims that he should be compensated

at the same level as the lawyers who represented Mississippi in

its tobacco litigation.

Mr. Chambliss’s contention lacks merit. First, to the

extent that Mr. Chambliss challenges the distribution of the sum

provided in the settlement agreement for attorneys’ fees, there

is no order for us to review because the district court has yet

to rule on the allocation of the attorneys’-fees money.31

31

The district court directed the Private Plaintiffs’

attorneys to agree on the allocation of the funds provided in the

agreement for attorneys’ fees, or the court stated that it would

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Second, if one reads Appellants’ brief as arguing that the

settlement agreement should not have been approved because the

provision for attorneys’ fees was improper, that contention is

unavailing, as explained above. Third, Mr. Chambliss provides no

authority for the proposition that he should be allowed to file a

subsequent claim for attorneys’ fees when the district court has

approved a settlement that contains an agreement as to fees. The

preferred view seems to be that a claim for attorneys’ fees in a

civil-rights action, which is authorized by 42 U.S.C. § 1988(b),

is a single claim possessed by the client. See Evans, 475 U.S.

at 730 & n.19; Richards v. Reed, 611 F.2d 545, 546 & n.2 (5th

Cir. 1980). Here, the parties settled the class’s attorneys’-

fees claim along with the rest of this case. We therefore reject

Mr. Chambliss’s assertion that he is entitled to proceed

separately regarding attorneys’ fees. Further, until the

district court approves an allocation of the funds provided in

the settlement agreement for attorneys’ fees, we cannot review

whether Mr. Chambliss has received an appropriate share.

IV. Conclusion

determine the allocation. Class counsel has proposed a division

of the funds, which was negotiated and agreed to by five of the

six lawyers and firms that have represented the Private-Plaintiff

class. Only Mr. Chambliss neither participated in the

discussions nor approved class counsel’s proposal, even though he

was repeatedly invited to participate in the negotiations.

Nevertheless, the proposed division includes a significant share

for Mr. Chambliss. It does not appear from the record that the

district court has ruled on the proposed allocation.

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Accordingly, we AFFIRM the judgment of the district court.

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