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Paying The Fee For The Damage Done


By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on October 1, 2008. In my last column I told you how an obscure school district outside Pine Bluff, Arkansas, banned students from wearing black armbands to protest a new dress code policy. The school district did not think that the landmark decision on the subject, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), applied to it for several reasons. A federal trial court and a federal appeals court held that Tinker did apply and enjoined the school district from disciplining any student who wore a black armband. Lowry v. Watson Chapel Sch. Dist., no. 073437P (8th Cir. 2008). The courts then awarded the student plaintiffs attorney fees in the amount of $37,500 (50% of the total incurred) and disbursements of $8,101 (100% of the total incurred). They did so pursuant to a special federal statute, which grants the courts the “discretion” to allow “the prevailing party” in any civil rights action “a reasonable attorney’s fee.” 42 U.S.C. § 1988(b). At common law in the United States litigants bear their own legal expenses. Section 1988 represents a major deviation from common law. In 1976 Congress adopted the statute to encourage persons to act as their own attorney general to right wrongs committed by government, wrongs that usually involve significant constitutional issues or impact many persons. To qualify for a fee award, a plaintiff must obtain at least some relief on the merits of his or her claim. The relief can come in the form of a judgment or a consent decree or settlement. The defendant’s behavior must be modified in a material way to the benefit of the plaintiff. Farrar v. Hobby, 506 U.S. 103, 111-112 (1992). Watson Chapel seized on the benefit language to argue that the students were not entitled to attorney fees. A jury had awarded them nominal damages of $1. If private damages had been the purpose of the students’ litigation, the school district would have been correct. But the focus of the litigation was different. The plaintiffs sought and obtained an injunction, which benefitted all students wanting to wear a black armband on school property. In the words of the appeals court, vindicating the free speech right “was not readily reducible to a sum of money.” Next Watson Chapel quibbled over the amount of the fees. The plaintiffs only prevailed on one of their four counts. The district wanted the courts to reduce the award to one-quarter of the total incurred. The appeals court replied “there is no precise rule or formula for making these determinations.” In the typical situation, the claims of a prevailing party arise out of a common core of facts and involve related legal theories. “(T)he most critical factor is the degree of success obtained.” Where the success is mixed, the court in its discretion can eliminate specific hours or simply reduce the final award. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789-790 (1989). In this case the courts held that a 50% reduction in the total fees incurred was reasonable. The ACLU represented the student plaintiffs on a pro bono basis. As part of its standard retainer agreement with plaintiffs, plaintiffs promise to turnover to the ACLU any fees awarded. Other governments, but not Watson Chapel, have argued that this arrangement disqualifies clients of the ACLU from receiving a fee award. The courts have consistently rejected this argument. Having prevailed on the appeal, the student plaintiffs can now return to the trial court and seek an additional award of fees. Since their success was total, the court should not reduce the additional fee by a percentage. Watson Chapel has learned an expensive lesson. Hopefully other school districts will not follow in its footsteps.

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