board must explain why it determined to close all-black school
How later courts described this case
- board must explain why it determined to close all-black school
Written by the judges who cited it.
The opinion
SOBELOFF, Circuit Judge,
(with whom WINTER, Circuit Judge, joins) concurring in part, dissenting in part:
The majority opinion has well stated the grounds for dissatisfaction with the School Board’s unparticularized proposals. I concur in the affirmance of the District Court’s order under the circumstances of this case. Of course, on another record, presenting different facts, geographical attendance zones might not be an effective way to accomplish the required result. See, e. g., Brewer v. School Board of City of Norfolk, Va., 397 F.2d 37, 41-42 (4 Cir. 1968).
However, I think it not too harsh to call this a frivolous appeal, and I would therefore award the plaintiffs reasonable counsel fees. 1 As the majority recognizes, citing cases, there is precedent in this circuit and elsewhere for the award of counsel fees in school cases, and the reluctance to award fees in this instance is not justified. Such an award is essential to do full justice. The allowance of reasonable counsel fees, including disbursements, would not only transfer the burdensome cost of the litigation from *1076 those who have been and continue to be deprived of their constitutional rights to those responsible for the deprivation, but it would also provide a suitable and necessary incentive to the school authorities to get on with the task of desegregating.
At the hearing in the District Court the parties had before them the Supreme Court’s decision in Green v. County School Board of New Kent County, 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 , which held a freedom of choice plan constitutionally invalid. In the course of that opinion, the Court discussed the duty of the local boards in terms which demonstrate the frivolity of the present appeal. The Court stated that local boards are
clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch * * *. The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.
The Court went further and placed on the local board the burden of proving its plan constitutionally valid. The Court explicitly added:
It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation.
The facts as to the elementary pupils’ residences have at all times been available to the Board, but it has not even been intimated that the Board ever analyzed the data to determine whether the plan it proposed would eliminate segregation. That inquiry the Board leaves for another day or year. Indeed, it was confessed at the* hearing of the appeal that in the months intervening since the District Court’s order the Board had taken no steps to make this determination. Twice since the trial in the District Court last July the Board has submitted palpably deficient plans, in the teeth of the Green decision. The course followed by the Board, including the taking of this appeal, is hardly consistent with its profession of a desire fully to comply with the requirements of the law.
The overall history of the case, as related in the majority opinion, and the fact that 13 years have now passed since Brown II, strongly suggest that the Board has acted to perform its constitutional duty only when goaded by the courts or the Department of Health, Education and Welfare. Under the circumstances, it appears that the effect, if not the intended role, of this appeal which was doomed from its inception, was merely to retard compliance.
The frivolity of the appeal is further signalled by the appellant’s startling statement at page 8 of its brief that it is proceeding “upon the theory that the Harnett County Board of Education does not have to work toward the objective of the correction of racial imbalance in its various public schools.” This flouts the plain requirements of the law, and it comes too late in the day to be given serious consideration by any court.
I would award reasonable attorney fees to discourage further dilatory tactics.
. Rule 38 of the Federal Rules of Appellate Procedure provides:
If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee.