MICHIE, District Judge.
This suit was instituted by Brenda Elaine Brown, an infant, and other infants by their father as next friend and by their father also as an individual plaintiff against the County School Board of Frederick County, Virginia, and the Division Superintendent of Schools of Frederick County as well as the State Pupil Placement Board.
While the cause was pending the Pupil Placement Board assigned all of the infant plaintiffs to the schools to which they desired to go so the case appeared moot to this court and was ordered stricken from the docket. This order was appealed and the Court of Appeals, in a brief per curiam opinion decided January 27, 1964, 4 Cir., 327 F.2d 655 (1963), held that, since the record disclosed the existence of a bi-racial system of schools, the matter should be remanded for further consideration of plaintiffs' prayers for an injunction and counsel fees in the light of the opinions of the Fourth Circuit Court of Appeals in Bradley v. School Board of the City of Richmond, 4 Cir., 317 F.2d 429, and Bell v. School Board of Powhatan County, Virginia, 4 Cir., 321 F.2d 494 (1963).
Subsequent to the handing down of the per curiam opinion, a further hearing was held in this court and evidence taken.
The injunction was previously denied by this court on the theory that the question
Turning first to the question of an injunction, it appears from evidence taken subsequent to the handing down of the opinion by the Court of Appeals that the County is still making initial assignments on a racial basis though transfers have been freely granted upon request. The resolution filed with this court by the defendant School Board makes no provision for a termination of this policy.
In a very recent case, Buckner v. County School Board of Greene County, 332 F.2d 452, decided May 25, 1964, the Fourth Circuit Court of Appeals has expressly stated that, "If, as alleged in the complaint, students were initially being assigned to schools in a racially discriminatory manner, `the School Board is actively engaged in perpetuating segregation.'" In the light of this opinion, I feel compelled to enter an injunction against any racial discrimination whatsoever on the part of the defendants in this case. However, as was done in Bell v. School Board of Powhatan County, supra, I will provide in the injunction order that the School Board may within 60 days file with the court a plan to provide for immediate steps to terminate discriminatory practices with respect to the operation of the public schools and, if a plan is submitted and approved, the injunction will be suspended and the operation of the schools shall thereafter be in accordance with the plan.
The Court of Appeals in its brief per curiam opinion in this case suggested that counsel fees be considered in the light of the court's opinion in Bell v. School Board of Powhatan County, supra. In that case the court said:
The instant case bears no resemblance to that described in the foregoing quotation. This suit was filed on September 18, 1962. Shortly after the suit was filed, a conference between the court and attorneys, at which some evidence was also taken, was held and on October 16 the court wrote attorneys a letter in which the following statement was made:
On October 17 Mr. Massie, counsel for the School Board, wrote Mr. Tucker, counsel for the complainants, that the
Mr. Massie apparently wrote Mr. Tucker again on February 21, 1963 but I do not have a copy of that letter. Not having heard anything further from the matter, I again raised the question of the status of the case by letter dated April 18, 1963 and Mr. Massie replied that he had never had an answer to his letter of February 21 to Mr. Tucker. I then wrote to Mr. Massie, with copy to Mr. Tucker, that, unless I heard from Mr. Tucker within the next ten days, I would dismiss the case for want of prosecution. I got a prompt reply from Mr. Tucker which asked that a date for trial be set, apparently abandoning any idea of an amicable settlement — which perhaps was understandable in view of Mr. Tucker's failure to respond to suggestions for a conference made throughout the preceding six months. Nevertheless, still trying, Mr. Massie wrote again to Mr. Tucker on April 29 to tell him that the School Board was meeting on May 7 and also May 20 and that they would be delighted to talk the situation over with him. Mr. Tucker, in a letter to me of May 1, stated that at the time he asked me for a trial date he had suggested to Mr. Massie that he was still ready to attempt to avoid trial by negotiation. But Mr. Tucker did not accept Mr. Massie's invitation to attend either of the May meetings of the School Board. On May 6, 1963 I wrote Mr. Tucker, reviewing the correspondence and his various failures to reply, and stating as follows:
On May 8 I wrote to Mr. Massie that I had had no reply from Mr. Tucker but I did feel very strongly that the two of them should get together to discuss the matter.
On May 27 Mr. Tucker wrote that he had concluded that no further hearing in the matter would be necessary. Shortly thereafter, the Pupil Placement Board granted the transfers requested by the children involved in the suit. Shortly thereafter this court entered the order which was subsequently appealed from. That order struck the cause from the docket but expressly provided that it
The situation here is therefore clearly distinguishable from that in Bell v. School Board of Powhatan County, Virginia. There is here no "long continued pattern of evasion and obstruction" nor a refusal to take the initiative. On the contrary, the County has consistently understood that segregation cannot be maintained and has consistently pleaded for a conference at which a program could be agreed upon. It is the belief of the court that much of this litigation could have been avoided had counsel for the plaintiffs been willing to sit down and discuss the situation with counsel for the defendants. There has been here no long continued pattern of evasion and obstruction and the interposition of a variety of administrative obstacles such as was found in the Powhatan County case and was referred to by the Court of Appeals as a basis for awarding counsel fees. Consequently, I find in this case that no counsel fees should be awarded.
An order will be entered accordingly.