Metropolitan News-Enterprise


Tuesday, April 2, 2002


Page 3


Ninth Circuit Rejects NAACP Bid for Lawyer Fees in Desegregation Case


By a MetNews Staff Writer


The NAACP is not entitled to attorney fees it sought from the state and San Francisco Unified School District in litigation concerning the district’s school desegregation decree, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed an order by U.S. District Judge William Orrick, who said the organization should not receive any fees because it was largely unsuccessful in its defense of the decree.

The fee dispute arose from a successful challenge to the decree brought by parents of students of Chinese descent, who claimed they were being discriminated against on the basis of race. Their challenge resulted in modifications of the decree and an agreement among all parties, including the NAACP, that the decree will be terminated at the end of this year unless the court orders otherwise.

The consent decree was entered to in 1983 as a result of a suit brought by the NAACP five years earlier. It provided wide-ranging remedies for school desegregation, including a race-based assignment system.

Orrick has monitored compliance with the decree throughout the years, awarding costs and attorney fees to the NAACP, paid by the state and the district, at various stages of the process.

In 1994, a group of parents challenged the continued implementation of the decree on equal protection grounds, filing what came to be known as the Ho action. The action was assigned to Orrick, who ruled that the NAACP was a necessary party and had to be added as a defendant.

On the day the case was to be tried, the parties settled. In addition to setting a termination date for the entire decree, the settlement provided that no child would be assigned to a particular school or program on the basis of race or ethnicity, except as required by language needs or in order to comply with state or federal law.

The parties also agreed that henceforth, parents and students would not be required to identify themselves by race on any district document, except as required by state or federal law, and that any document requesting such information would include a “decline to state” option.

Orrick awarded the attorneys for the Ho plaintiffs $1.2 million in attorney fees, payable only by the state and the district. The NAACP then moved for nearly $1 million in fees and costs, contending that its defense of the Ho action was essential to its role in the original litigation and thus qualified for an award under the Civil Rights Attorney Fees Awards Act.

Orrick ruled that the NAACP was eligible for fees under the act, but exercised his discretion to deny them. He explained that since it was forced to accept significant modifications of the decree, it did not qualify for a fee award under the principles laid out in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986).

Delaware Valley held that plaintiffs who participated as amicus in litigation in state court, in order to defend against what the court said was a collateral attack on a consent decree won earlier in federal court, could then return to federal court and seek a supplemental award of attorney fees.

Senior Judge Dorothy Nelson, writing yesterday for the Ninth Circuit, said Orrick acted within his discretion in denying fees for the NAACP’s defense of the consent decree against the Ho action.

Nelson agreed that it would be “patently unfair” to require the state and district to pay the NAACP’s attorney fees, especially since it was required to pay the plaintiffs’ fees. Delaware Valley, she noted, invested the district court with a “zone of discretion” when it comes to fee awards.

The case is San Francisco NAACP v. San Francisco Unified School District, 00-16864.


Copyright 2002, Metropolitan News Company