Commentary: Paying the fee for the damage done: Student plaintiffs

Daily Record (Rochester, NY), Oct 1, 2008 by Scott Forsyth

In my last column, I told you how an obscure school district outside Pine Bluff, Ark., banned students from wearing black armbands to protest a new dress code policy.

The district did not think 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 district from disciplining any student who wore a black armband. Lowry v. Watson Chapel Sch. Dist., no. 073437P (Eighth Cir. 2008).

The courts then awarded the student plaintiffs attorney fees in the amount of $37,500 (50 percent of the total incurred) and disbursements of $8,101 (100 percent of the total incurred). They did so pursuant to a special federal statute that grants the courts discretion to allow the prevailing party in any civil rights action "a reasonable attorney's fee." 42 U.S.C. [section] 1988(b).

At common law in the United States, litigants bear their own legal expenses. Sect. 1988 represents a major deviation from common law. In 1976, Congress adopted the statute to encourage persons to act as their own attorneys 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).

The Watson Chapel School District seized on the benefit language to argue 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 district would have been correct; but the focus was different. The plaintiffs sought, and obtained, an injunction that benefited 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."

Watson Chapel quibbled over the amount of the fees. The plaintiffs only prevailed on one of their four counts, and the district wanted the courts to reduce the award to a quarter of the total incurred. The appeals court replied that "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." When the success is mixed, the court has the discretion to 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 a 50 percent 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 the plaintiffs, the plaintiffs promised to turn any fees awarded over to the ACLU. Other governments, but not Watson Chapel, have argued such an arrangement disqualifies ACLU clients from receiving a fee award. The courts consistently have rejected that argument.

Having prevailed on the appeal, the students now can return to the trial court and seek an additional fees award. Since their success was total, the court should not reduce the additional fee by a percentage.

Watson Chapel has learned an expensive lesson. Hopefully our school districts will not follow in its footsteps.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@ forsythlawfirm.com.