text:
    CERTAIN NAMED AND UNNAMED NON-CITIZEN CHILDREN AND THEIR PARENTS v. TEXAS
    No. A-179.
    Decided September 4, 1980
   Mr. Justice Powell, Circuit Justice.

This is an application to vacate an order of the United States Court of Appeals for the Fifth Circuit, staying, pending appeal, an injunction entered by the United States District Court for the Southern District of Texas. The District Court held that § 21.031 of the Texas Education Code (Supp. 1980), which prohibits the use of state funds to educate alien children who are not “legally admitted” to the United States, violates the Equal Protection Clause of the Fourteenth Amendment. The court enjoined state education officials from denying free public education to any child, otherwise eligible, due to the child’s immigration status. The District Court denied the State of Texas’ motion to stay its injunction, because the court found that a stay “would substantially harm the plaintiffs and would not serve the public interest.” The Court of Appeals, upon subsequent motion of the State, stayed the injunction pending appeal without opinion.

Plaintiffs below, and applicants here, are a class of school-age, “undocumented” alien children, who have been denied a free public education by the operation of § 21.031, and their parents. Precise calculation of the number of children in Texas encompassed by this description is impossible. The State estimates that there are 120,000 such children, but the District Court rejected this figure as “untenable” and accepted a more modest estimate of 20,000 children. These undocumented children have not been legally admitted to the United States through established channels of immigration. None, however, is presently the subject of deportation proceedings, and many, the District Court found, are not de-portable under federal immigration laws. The District Court concluded that “the great majority of the undocumented children . . . are or will become permanent residents of this country.”

This case came before the District Court as a result of a consolidation, by the Judicial Panel on Multidistrict Litigation, of lawsuits filed in all federal judicial districts in Texas against the State and state education officials challenging the validity of § 21.031. No other State has a similar statute. The court found that § 21.031 effectively denied an education to the plaintiff children. Although they could attend school upon payment of tuition, the court further found that such payment is beyond the means of their families. It held that the Equal Protection Clause applies to all people residing in the United States, including unlawful aliens. It recognized that no precedent of-this Court directly supports this ruling, and, therefore, relied on analogous rulings of this Court, see, e. g., Mathews v. Diaz, 426 U. S. 67, 77 (1976) (Due Process Clause of the Fifth Amendment applies to aliens unlawfully residing in the United States), and precedents in lower courts, see Bolanos v. Kiley, 509 F. 2d 1023, 1025 (CA2 1975) (dictum). In addition, the court found guidance in the language of the Equal Protection Clause, which extends protection to persons within a State’s jurisdiction, and ruled that a state law which purports to act on any person residing within the State is subject to scrutiny under the Clause.

The District Court then determined that the Texas statute was subject to strict scrutiny because it impaired a fundamental right of access to existing public education. It sought to distinguish San Antonio Independent School District v. Rodriguez, 411 U. S. 1 (1973), which held that the Constitution does not protect a right to education, at least beyond training in the basic skills necessary for the exercise of other fundamental rights such as voting and free expression. Id., at 29-39. The court observed that § 21.031 established a complete bar to any education for the plaintiff children, and thus raised the question reserved in Rodriguez of whether there is a fundamental right under the Constitution to minimal education. It stressed that an affirmative answer to this question would not involve the federal courts in overseeing the quality of education offered by the States, an involvement condemned in Rodriguez. Applying strict scrutiny, the court held the statute violative of the Equal Protection Clause because it was not justified by a compelling state interest. While not explicitly so holding, the court also implied that it would hold the statute unconstitutional even if it applied rational-basis scrutiny or merely required that the law be substantially related to an important state interest.

I

“The power of a Circuit Justice to dissolve a stay is well settled.” New York v. Kleppe, 429 U. S. 1307, 1310 (1976) (Marshall, J., in chambers). See Meredith v. Fair, 83 S. Ct. 10, 9 L. Ed. 2d 43 (1962) (Black, J., in chambers). The well-established principles that guide a Circuit Justice in considering an application to stay a judgment entered below are equally applicable when considering an application to vacate a stay.

“[T]here must be a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court’s decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed.” Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers).

When an application to vacate a stay is considered, this formulation must be modified, of course: there must be a significant possibility that a majority of the Court eventually will agree with the District Court’s decision.

Respect for the judgment of the Court of Appeals dictates that the power to dissolve its stay, entered prior to adjudication of the merits, be exercised with restraint. A Circuit Justice should not disturb, “except upon the weightiest considerations, interim determinations of the Court of Appeals in matters pending before it.” O’Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d 615, 616 (1960) (Harlan, J., in chambers). The reasons supporting this reluctance to overturn interim orders are plain: when a court of appeals has not yet ruled on the merits of a controversy, the vacation of an interim order invades the normal responsibility of that court to provide for the orderly disposition of cases on its docket. Unless there is a reasonable probability that the case will eventually come before this Court for plenary consideration, a Circuit Justice’s interference with an interim order of a court of appeals cannot be justified solely because he disagrees about the harm a party may suffer. The applicants, therefore, bear an augmented burden of showing both that the failure to vacate the stay probably will cause them irreparable harm and that the Court eventually either will grant certiorari or note probable jurisdiction.

This is the exceptional case where it appears, even before decision by the Court of Appeals, that there is a reasonable probability that this Court will grant certiorari or note probable jurisdiction. The District Court’s holding that the Equal Protection Clause applied to unlawful aliens raises a difficult question of constitutional significance. It also involves a pressing national problem: the number of unlawful aliens residing in our country has risen dramatically. In more immediate terms, the case presents a challenge to the administration of Texas public schools of importance to the State’s residents. The decision of the Court of Appeals may resolve satisfactorily the immediate question. But the overarching question of the application of the Equal Protection Clause to unlawful aliens appears likely to remain.

It is more difficult to say whether there is a significant probability that a majority of this Court eventually will agree with the District Court’s decision. Mathews v. Dias upheld the power of the Federal Government to make distinctions between classes of aliens in the provision of Medicare benefits against a claim that the classification violated the Due Process Clause. The Court’s resolution of the case rested, however, on Congress’ necessarily broad power over all aspects of immigration and naturalization, and we specifically stated that “equal protection analysis . . . involves significantly different considerations because it concerns the relationship between aliens and the States rather than between aliens and the Federal Government.” 426 U. S., at 84 — 85. The District Court relied explicitly on this distinction in holding that the Equal Protection Clause applies to the State’s treatment of unlawful aliens. Likewise, as mentioned above, the court relied on a reservation in San Antonio Independent School District v. Rodriguez, supra, to find room for its holding that there is a constitutional right to a minimal level of free public education. Thus, while not finding direct support in our precedents, the court concluded that these holdings are consistent with established constitutional principles.

Although the question is close, it is not unreasonable to believe that five Members of the Court may agree with the decision of the District Court. This is not to suggest that I have reached any decision on the merits of this case or that I think it more probable than not that we will agree with the District Court. Rather, it recognizes that the court’s decision is reasoned, that it presents novel and important issues, and is supported by considerations that may be persuasive to the Court of Appeals or to this Court. Further, it may be possible to accept the District Court’s decision without fully embracing the full sweep of its analysis.

II

Applicants also have presented convincing arguments that they will suffer irreparable harm if the stay is not vacated. The District Court, having before it the voluminous evidence presented during trial, explicitly relied on the probable harm to plaintiffs in denying the State’s motion to stay the injunction. Undocumented alien children have not been able to attend Texas public schools since the challenged statute was enacted in 1975. The harm caused these children by lack of education needs little elucidation. Not only are the children consigned to ignorance and illiteracy; they also are denied the benefits of association in the classroom with students and teachers of diverse backgrounds. Instead, most of the children remain idle, or are subjected prematurely to physical toil, conditions that may lead to emotional and behavioral problems. These observations appear to be supported by findings about the condition of the children in question.

The State argues that the stay works minimal harm on applicants because they have been out of school for five years. Absence for the additional year needed to settle this controversy will not add further irreparable harm. It seems to me that this argument is meritless on its face. Expert testimony presented at trial indicates that delay in entering school will tend to exacerbate the deprivations already suffered and mitigate the efficacy of whatever relief eventually may be deemed appropriate.

The State does not argue that it or the Texas Education Agency will be harmed directly if the stay is vacated. The primary involvement of the State and the Agency is to provide state funds to local, independent school districts. See generally San Antonio Independent School District v. Rodriguez, 411 U. S., at 6-17. Nor does the State allege that it will be compelled to furnish additional funds for the upcoming school year. Rather, it submits that its total expenditure will be “diluted” by $70 per pupil by the addition of the new students. Certainly, this decrease in per pupil expenditure from a current figure of $1,200 is not de minimis. But the core of the State’s argument is that the stay was necessary to avoid irreparable harm to the independent school districts. It contends that the influx of new Spanish-speaking students will strain the abilities of the districts to provide bilingual education, and thus cause the districts to violate existing or pending rules governing the provision of bilingual education. These legal difficulties seem speculative.

Perhaps the greater danger is that the quality of education in some districts would suffer during the coming year. The admission of numbers of illiterate, solely Spanish-speaking children may tax the resources of a school district. The affidavits submitted to the Court of Appeals document the possibility of severe stress only in the Houston Independent School District. Affidavits submitted by the applicants indicate, however, that many school districts are prepared to accept the undocumented children and do not foresee that their assimilation will unduly strain their abilities to provide a customary education to all their pupils.

Under these circumstances, I conclude that the balance of harms weighs heavily on the side of the children, certainly in those school districts where the ability of the local schools to provide education will not be threatened. I therefore will vacate the stay instituted by the Court of Appeals, which applies to all school districts within Texas. This order shall be without prejudice to the ability of an individual school district, or the State on its behalf, to apply for a stay of the District Court’s injunction. If the district can demonstrate that, because of the number of undocumented alien children within its jurisdiction or because of exceptionally limited resources, the operation of the injunction would severely hamper the provision of education to all its students during the coming year, the granting of a stay would be justified.

       Another Federal District Court in Texas had previously held that §21.031 violates the Equal Protection Clause as applied to the Tyler Independent School District. Doe v. Plyler, 458 F. Supp. 569 (ED Tex. 1978), appeal pending, No. 78-3311 (CA5).

       The United States intervened on the side of plaintiffs below and has filed here a statement in support of the application to vacate the stay.

       The State argues here that serious difficulties can be expected in the Dallas and Brownsville School Districts as well.

       Applicants indicate that the District Court already has expressed a willingness to consider staying its injunction in those school districts that can demonstrate exceptional difficulty in admitting the children this fall.


source: Caselaw Access Project

author: Mr. Justice Powell, Circuit Justice.

license: Public Domain

text:
    MOORE et al. v. BROWN et al.
    No. A-195.
    Decided September 5, 1980
   Mr. Justice Powell, Circuit Justice.

The applicants, the Mobile County School Board and its Commissioners, request that I stay a preliminary injunction entered by the District Court in another phase of the litigation over the composition of the Board. The injunction ordered Alabama election officials to conduct district rather than at-large voting to fill School Board vacancies.

This Term, in City of Mobile v. Bolden, 446 U. S. 55 (1980), this Court considered a constitutional challenge to Mobile’s system of at-large elections for City Commissioners. Mr. Justice Stewart wrote for a plurality of four Justices and concluded that the plaintiffs were required to prove a racially discriminatory purpose to show that Mobile’s at-large voting system violated the Fourteenth Amendment. The District Court, by contrast, had thought it sufficient to show that the existing election system had the effect of impeding the election of blacks. The Court of Appeals for the Fifth Cir-euit had affirmed. Because we disagreed with the analysis of the District Court and Court of Appeals, we reversed and remanded for further proceedings.

Bolden’s companion case, Williams v. Brown, 446 U. S. 236 (1980) (Brown I), involved at-large elections for the School Board. In that case as well, the District Court and Fifth Circuit had held unconstitutional a system of at-large elections, relying on analysis similar to that used by them in Bolden. We therefore vacated the judgment and remanded for further proceedings in light of Bolden. Approximately 11 weeks later, the Court of Appeals in turn vacated the decision of the District Court and remanded the case to it.

I

The Alabama Legislature created the Mobile County Board of School Commissioners in 1826. Commissioners then were elected at large. That practice has continued to the present day. Under current law, the Board is composed of five persons who serve staggered 6-year terms. The at-large election system contains no obstacle to ballot access by blacks. In Brown 1, however, the District Court nevertheless concluded that the system of at-large elections “diluted” the effectiveness of black votes. The court ordered a phased-in system of district elections to increase the likelihood that blacks would be elected to the Board. Under the District Court’s plan, Mobile County was divided into five districts. Two of the district seats were filled in elections in 1978. Another district seat was scheduled to be filled in an election this fall. The two remaining district seats were to be filled in 1982.

Under the District Court’s original plan, however, the introduction of district seats did not necessarily correspond to the expiration of incumbents’ terms of office. Only one at-large seat expired in 1978, but two new district seats were added that year. Thus, since 1978 the Board has operated with six members rather than five. The District Court therefore ordered one of the at-large Commissioners whose term is to expire in 1980 to act as the nonvoting “chairman” of the Board during the remainder of his term.

In sum, at the time we vacated the District Court’s original plan, the Board contained six members, two of whom had been elected from districts pursuant to the plan. Two at-large seats were due to expire this fall, and one new district member would be elected. Thus, the coming election would have resulted in a return to a five-member Board, three of whom would have been elected from districts.

II

Controversy has followed our decision vacating the District Court’s original district election plan. At least some of the at-large Commissioners thought that our decision in effect invalidated the election of the two district Commissioners chosen in 1978. Accordingly, some persons refused to acknowledge the legitimacy of the votes of the district members. Under these circumstances, the Board is reported to have been paralyzed since April.

The District Court reassumed jurisdiction over the case on July 11, 1980. Two primary issues confronted the court. First, as I have noted, substantial dispute had arisen over the legitimacy of the two 1978 district elections. Board members disagreed with one another, not only substantively, but also on the threshold question of whether two of their number were even official Board members at all. In sum, the Board could not function. The District Court resolved the deadlock by holding that the 1978 winners remained the official Board members.

The second issue concerned future elections. Under the District Court’s original plan, one district election was to have been held in 1980, and two at-large seats were to expire. The district primary was scheduled for Tuesday, September 2, and the general election for November 4. Without taking evidence or making findings of fact, the District Court on July 25 entered a preliminary injunction that would, as the court characterized it, “preserv[e] the status quo pending a decision on remand.” The injunction reinstated the district election plan that we had vacated in April. The injunction was appropriate, according to the District Court, because plaintiffs would be irreparably harmed if the at-large election were held. Holding the district election, by contrast, would not impose significant harm on defendants or on the public interest. Finally, the court thought that the plaintiffs had “a substantial likelihood” of eventually prevailing on the merits.

Defendants — applicants here — sought a stay of the injunction pending appeal. Specifically, they asked that the District Court enjoin the district election scheduled for this fall, and permit the two at-large members now on the Board to continue to serve past the normal expiration of their terms. The District Court denied the requested stay on August 19. Defendants next asked the Fifth Circuit to stay the preliminary injunction. On August 26, that court denied the stay without opinion. Late Thursday, August 28, defendants applied to me to stay the preliminary injunction.

Ill

I have serious concerns about the process and reasoning underlying the District Court’s entry of a preliminary injunction. The District Court and the Court of Appeals in Brown I had invalidated the at-large election law and imposed a system of district elections. We vacated their judgment, and remanded the case for further proceedings. On remand, the District Court purportedly acted to preserve the status quo pendente lite, but did so by reinstating its own election plan that we had vacated. After our remand, I would have thought that the slate was wiped clean until there had been further evidence, or at least fresh findings of fact. Until then, the status quo was the presumptively valid election system provided by Alabama law — not the judge-made election plan that we had vacated.

I also was troubled by two additional elements of the District Court’s analysis. First, it concluded that the balance of harms heavily favored entering the preliminary injunction. The court seemed to perceive little or no harm to the defendants, and to the public interest, resulting from reinstatement of the judge-created election plan, The court’s injunction, however, imposes on Mobile County a method of selecting its School Board members that had not been enacted by state or local elected representatives. While the preliminary injunction is in effect, district elections will be held. These elections may produce — indeed, the District Court intended that they produce — Commissioners who would not have been elected under the longstanding system of at-large elections. As Me. Justice Stevens observed, “the responsibility for drawing political boundaries is generally committed to the legislative process.” City of Mobile v. Bolden, 446 U. S., at 91 (concurring opinion). The District Court appeared to ignore the fact that altering the voting system established by Alabama law more than a century ago, and since maintained, is a substantial intrusion on local self-government.

Second, the court concluded that plaintiffs had “a substantial likelihood” of success on the merits. Yet, the court made no finding of fact, nor indeed alluded to any fact known to it, to justify that conclusion. Compare Fed. Rule Civ. Proc. 52 (a) (“in granting or refusing interlocutory injunctions the court shall ... set forth the findings of fact and conclusions of law which constitute the grounds of its action”). Nor did the District Court explain how the plaintiffs would prove a purposeful violation of constitutional rights as required by the plurality’s decision in Bolden. Indeed, although we had directed that proceedings on remand be conducted in light of this Court’s decision in Bolden, our opinion in that case was not mentioned in the District Court’s opinion.

IV

It may well be, for the reasons stated above, that the District Court erred in entering the preliminary injunction. The court at least offered unsatisfactory reasons for its decision. Yet, I am reluctant to stay the effect of the injunction. The parties agree that, at this late date, if an election is to occur this fall at all, it must be the district election ordered by the District Court. The applicants therefore urge me to grant a stay that would prevent holding any election at all, and to keep in office, until an at-large election can be held, the incumbents whose terms are due to expire. In Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J.. in chambers), I summarized the principles that normally guide a Circuit Justice in considering a request for a stay. Although applicants here forcefully argue that the Times-Picayune requirements are fully met, I have concluded not to stay the injunction. A Circuit Justice should exercise restraint before staying an interim order entered by a District Court and affirmed by a Court of Appeals. This caution seems especially pertinent where a scheduled election would be enjoined. Thus, in the posture in which this case now comes to me — and in light of the unacceptable alternative of enjoining the fall election and retaining in office incumbents whose terms have expired — I decline to stay the preliminary injunction.

       Although recognizing that a discriminatory purpose had to be proved, the Court of Appeals had thought that the “aggregate” of discriminatory effects was sufficient to establish a discriminatory purpose.

       In 1975, after this suit was filed, the state legislature passed a local Act restructuring the Board into five single-member districts. A state court subsequently held that the Act violated the Alabama Constitution because of a defect in its publication.

       On August 29, 1978,1 denied an application to stay the District Court’s plan pending review by this Court.

       A black was elected to each district seat in 1978.

       The nonvoting “chairman” did have the power to break ties.

       Moreover, in Brown I, the District Court itself had recognized that, in general, it is “a difficult task” to prove “overt racial considerations in the actions of government officials.” App., O. T. 1979, No. 78-357, p. 30a.

       This opinion is not intended to convey any doubt about the legitimacy of the status of the two Commissioners elected in 1978 pursuant to the District Court’s then-operative district election plan. The applicants do not challenge that aspect of the District Court’s order.

       As often happens (and for reasons that rarely are explained) emergency applications with respect to elections reach us on the eve of the weekend before the election. This places the Court, or the Circuit Justice (as is usually the case), in the unwelcome position of ruling under serious time constraints on the validity of an election that has been planned for months. This is an example. The application was presented to me less than five full days (including the Labor Day weekend) before the scheduled primary election. Had proceedings on remand moved more expeditiously, it might have been possible to hold this fall the at-large elections envisioned by Alabama law.

       Just recently, I commented:
      “A Circuit Justice should not disturb, 'except upon the weightiest considerations, interim determinations of the Court of Appeals in matters pending before it.’ O’Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d 615, 616 (1960) (Harlan, J., in chambers). The reasons supporting this reluctance to overturn interim orders are plain: when a court of appeals has not yet ruled on the merits of a controversy, the vacation of an interim order invades the normal responsibility of that court to provide for orderly disposition of cases on its docket.” Certain Named and Unnamed Noncitizen Children v. Texas, ante, at 1330-1331 (in chambers).

       Because of the time constraints that I have mentioned, see n. 8, supra, I issued an order denying the stay on Friday, August 29, reserving the right subsequently to file this opinion.


author: Mr. Justice Rehnquist.

text:
    GREGORY-PORTLAND INDEPENDENT SCHOOL DISTRICT v. UNITED STATES et al.
    No. A-203.
    Decided September 8, 1980
   Mr. Justice Rehnquist.

Applicants have requested me to grant a stay pending appeal to the Court of Appeals for the Fifth Circuit of a decision by the District Court ordering the busing of students within the applicant district. The application, as was proper, was first submitted to Mr. Justice Powell, the Circuit Justice for the Fifth Circuit, and denied by him. It has now been resubmitted to me. As indicated by the cases discussed in the application for stay, e. g., Columbus Board of Education v. Penick, 439 U. S. 1348 (1978), this Court has been divided for a number of years as to the constitutional propriety of busing orders. If I were casting my vote as a single Justice of this Court, rather than as an individual Justice empowered to grant a stay, I would in all likelihood not only vote to grant certiorari in the case if the Court of Appeals for the Fifth Circuit affirmed it, but would also give the most serious consideration to voting on the merits to reverse that decision. However, as has been frequently pointed out, that is not the role of an individual or Circuit Justice in a case such as this. That obligation is to determine whether four Justices would vote to grant certiorari, to balance the so-called “stay equities,” and to give some consideration as to predicting the final outcome of the case in this Court.

For these reasons, and because Mr. Justice Powell is the Circuit Justice for the Fifth Circuit, and more familiar with the situation of any case in it than I could be, I am unwilling to “second-guess” his own denial of the application in this case. I accordingly deny the reapplication for a stay.


author: Mr. Justice Rehnquist, Circuit Justice.

text:
    BOARD OF EDUCATION OF CITY OF LOS ANGELES v. SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES (CRAWFORD et al., real parties in interest)
    No. A-214.
    Decided September 12, 1980
   Mr. Justice Rehnquist, Circuit Justice.

The Board of Education of the Los Angeles Unified School District requests that I stay an order of the California Supreme Court, dated August 27, 1980, which left standing an order of the Superior Court of the State of California for Los Angeles County requiring mandatory reassignment of between 80,000 and 100,000 first- through ninth-grade students attending approximately 165 elementary and junior high schools pending consideration by this Court of its petition for certiorari. On July 7, 1980, the Superior Court entered its final remedial order in this action, finding that the Board had participated in racial discriminatory practices which led to the segregation in the school district and requiring the Board to implement a mandatory busing plan pursuant to guidelines contained in the order. The Board applied to the Court of Appeal of California to stay the Superior Court’s order and, on August 6, 1980, that court partially stayed the order insofar as it relied on a definition of a desegregated school as one where there is a plurality of white students not in excess of 5% over the next largest ethnic group in the school and insofar as it required mandatory busing of students currently attending substantially desegregated schools. The Court of Appeal, however, in all other respects denied the Board’s petition for a stay, thus precipitating the current situation where upwards of 80,000 pupils will be bused at the start of school on Monday, September 16, 1980. The court also accelerated the date of oral argument so that the appeal could be heard in January 1981. On August 27, 1980, the California Supreme Court denied, without opinion, the Board’s application for a writ of mandamus and/or prohibition to stay in its entirety the order of the Superior Court and recommended that the Court of Appeal accelerate oral argument even further. The California Supreme Court also denied a motion by the original plaintiffs in this action, minority schoolchildren, to vacate the partial stay entered by the Court of Appeal.

This case comes to me after extensive and complicated litigation. Briefly stated, in 1970, the Superior Court issued an opinion finding that the segregation in the school district was de jure in nature and that the Board had taken “affirmative” steps which it “knew or should have known” would perpetuate segregation in the district. The specific items detailed in the court’s findings included the Board’s adoption of (1) a neighborhood school policy, (2) an “open transfer” policy, (3) a “feeder school” policy, and (4) “mandatory attendance areas.” In Crawford v. Board of Education, 17 Cal. 3d 280, 551 P. 2d 28 (1976), the California Supreme Court accepted the finding of de jure segregation, but did not base its affirmance of the Superior Court’s order of mandatory busing on that ground, holding instead that the California Constitution permitted busing to be ordered regardless of the cause of segregation. On September 8, 1978, I denied a stay for this reason. Bustop, Inc. v. Los Angeles Board of Education, 439 U. S. 1380 (in chambers).

During remand, the California Constitution was amended by way of a state referendum, Proposition I, adopted in November 1979 to eliminate state independent grounds as a basis for court-ordered busing, and the Board contended that the Superior Court’s 10-year-old findings did not justify a finding of a federal constitutional violation or the system-wide remedy of mandatory assignment of children by race. In its July 7, 1980, order, the Superior Court apparently rejected that argument, reasoning that the California Supreme Court, in Crawford, affirmed the finding of de jure segregation. Contrary to the assertions of the respondents, it seems to me that this application necessarily turns on a question of federal constitutional law, as other courts have held. Indeed, I find myself unable to articulate the point better than Judge Cohn of the Superior Court of San Mateo County in Tinsley v. Palo Alto Unified School District, No. 206010 (July 10, 1980):

“Turning to the argument that Proposition I violates the 14th Amendment of the TJ. S. Constitution, inasmuch as it merely limits California courts to what the federal courts can do under the federal constitution, it is indeed difficult to accept the contention that by limiting a state court’s jurisdiction to that of the federal courts, there is somehow a violation of [the] federal constitution.”

There is an initial question as to whether this Court would have jurisdiction over the present action if a petition for writ of certiorari were filed. In Fisher v. District Court, 424 U. S. 382, 385, n. 7 (1976), this Court stated:

“The writ of supervisory control issued by the Montana Supreme Court is a final judgment within our jurisdiction under 28 U. S. C. 1 1257 (3). It is available only in original proceedings- of the Montana Supreme Court . . . and although it may issue in a broad range of circumstances, it is not equivalent to an appeal. . . . A judgment that terminates original proceedings in a state appellate court, in which the only issue decided concerns the jurisdiction of a lower state court, is final, even if further proceedings are to be had in the lower court. Madruga v. Superior Court, 346 U. S. 556, 557 n. 1 (1954). . . .”

In this action, the Board’s petition for a writ of mandamus and/or prohibition was a distinct lawsuit which was fully and finally determined by the California Supreme Court’s judgment of August 27, 1980. I am thus persuaded that this Court would in all probability have jurisdiction over the present action should a petition for certiorari be filed by the Board.

There is no question here as to the standing of the Board, since it is a party to an action which has been required by the Superior Court (respondent) to mandatorily reassign an extraordinarily large number of students in what the Board claims is the largest school district in the Nation. There might be some question of “standing” if the petitioners were a group of whites, “Anglos,” or whatever the current terminology used to describe them is, for if the latest 1979 school census submitted by the Board in its application is to be credited, they themselves would be a “minority.” That census indicates that in kindergarten and the first three grades of the school affected by the busing order, students classified as “white” ranged from 17.9% to 21.9% of the school population, those classified as “black” ranged from 18.3% to 22.1%, and those classified as “Hispanic” ranged from 57.8% to 48.9%. Application, at 18 (compiled from trial exhibit 11B).

As seems typical with school cases, applications for stay are presented to a Circuit Justice of this Court close to the opening of school. It appears that the process leading to the formulation of a mandatory busing plan, and the inevitable challenge to it, takes time which apparently is devoted in sufficient amount only as the deadline of school opening approaches. And as has been noted before in many Circuit Justices’ opinions, the Circuit Justice faces a difficult problem in acting on a stay. The Justice is not to determine how he would vote on the merits, but rather forecast whether four Justices would vote to grant certiorari when the petition is presented, predict the probable outcome of the case if certio-rari were granted, and balance the traditional stay equities. All of this requires that a Justice cultivate some skill in the reading of tea leaves as well as in the process of legal reasoning.

The thrust of the Board’s petition is that the Superior Court, by relying on the 1970 finding of de jure segregation, erroneously found that the Board had violated the Fourteenth Amendment. The Board contends that the Superior Court was required to conduct a hearing as to the existence of a federal constitutional violation rather than rely on 10-year-old findings, ■ since the case law as to what constitutes de jure segregation has changed in those years. Were this case presently before the entire Court on certiorari, I would in all probability vote to grant certiorari, since it seems to me that on the basis of the application the findings are even less supportive of a constitutional violation than were those upheld in Columbus Board of Education v. Penick, 443 U. S. 449 (1979), and Dayton Board of Education v. Brinkman, 443 U. S. 526 (1979). But that is not the question before a Circuit Justice, and I do not think I in good conscience could say that four Justices of this Court would vote to grant certiorari in this case. One factor militating against the granting of certiorari here is that the Court of Appeal has recognized that the significance of the Crawford court’s "affirmance” of the finding of de jure segregation is ambiguous and it has indicated that it will carefully review the Superior Court’s findings of a constitutional -violation on review this fall or early-next year.

Because the merits of the Board’s argument are not free from doubt, the proper disposition of this application for a stay turns on the equities. The Board’s primary contention here is that “white flight,” which all parties concede has taken place in the school district, will accelerate if this plan is put into effect. Not only will increased “white flight” injure the Board in financial terms, such as in reduced pupil reimbursement from the State, but also a reduction in the number of white students in the district will defeat any hope of further desegregating the schools in the district. Indeed, the Superior Court found that over the past two years, when a mandatory busing plan has been in effect, the district has lost 50,000 white students and that 25,000 of those students withdrew from the district to avoid mandatory reassignment. Because projections indicated that the school district in 1987 will consist of only 14% white students, the Superior Court asserted that its task was to achieve the optimal use of white students in the schools so that the maximum number of schools may be desegregated.

I find this analysis somewhat troublesome, since it puts “white” students much in the position of textbooks, visual aids, and the like — an element that every good school should have. And it appears clear that this Court, sooner or later, will have to confront the issue of “white flight” by whatever term it is denominated, Estes v. Metropolitan Branches of Dallas NAACP, 444 U. S. 437, 438 (1980) (Powell, J., dissenting from the dismissal of a writ of certiorari as improvidently granted). As Mr. Justice Powell has observed: “A desegregation remedy that does not take account of the social and educational consequences of extensive student transportation can be neither fair nor effective.” Id., at 452.

The Court of Appeal here has partially mitigated the potential harm to the Board resulting from “white flight” by rejecting the Superior Court’s rigid definition of a desegregated school as one in which there is a plurality of white pupils not in excess of 5% over the next largest ethnic group in the school and by prohibiting mandatory reassignment of students to or from a school which is substantially desegregated. Nonetheless, upwards of 80,000 students will still be bused, although even with school to begin on September 16th it appears from the Board’s own application to this Court that the “exact number and identity of all participating schools have not been finalized.” I think that a stay granted less than a week before the scheduled opening of school, when school officials and state courts are still trying to put in place the final pieces of a plan, would not be a proper exercise of my function as a Circuit Justice, even though were I voting on the merits of a petition for certiorari challenging the plan I would, as presently advised, feel differently. The application for a stay is accordingly

Denied.


author: Per Curiam.

text:
    COLORADO v. BANNISTER
    No. 79-1901.
    Decided October 20, 1980
   Per Curiam.

In the early morning of October 15, 1979, an officer of the Colorado Springs Police Department observed a blue 1967 Pontiac GTO automobile moving along a road at a speed above the legal limit. Before the officer could pursue the vehicle, it disappeared from his sight. Shortly thereafter, the officer heard a police radio dispatch reporting that a theft of motor vehicle parts had occurred in the area he was patrolling in his car. The radio dispatch announced that a number of chrome lug nuts were among the items stolen, and provided a description of two suspects. A few minutes after hearing the report, the officer spotted the same automobile he had seen earlier, still speeding. He saw the car enter a service station, and followed it there for the purpose of issuing a traffic citation to its driver.

As the officer approached the car, both of its occupants, including the respondent, stepped out of it. A conversation between the officer and the respondent ensued, just outside the closed front door of the automobile. At this time, the officer observed chrome lug nuts in an open glove compartment located between the vehicle’s front bucket seats, as well as two lug wrenches on the floorboard of the back seat. These items were in plain view, illuminated by the lights of the service station. Recognizing that the respondent and his companion met the description of those suspected of stealing motor vehicle parts, the officer immediately arrested both of them. He then seized the lug nuts and wrenches.

Before the date scheduled for his trial on charges of stealing motor vehicle parts, the respondent moved to suppress the items that the arresting officer had seized. The trial court granted the motion, and its decision was affirmed by the Supreme Court of Colorado. The State subsequently filed a petition for certiorari in this Court.

The provisions of the Fourth Amendment are enforceable against the States through the Fourteenth, and it is axiomatic that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 (1967). One of these exceptions, recognized at least since Carroll v. United States, 267 U. S. 132 (1925), exists when an automobile or other vehicle is stopped and the police have probable cause to believe it contains evidence of a crime. See Arkansas v. Sanders, 442 U. S. 753, 760 (1979). Carroll upheld the legality of a search that was conducted immediately after a vehicle was stopped. Since Carroll, warrantless searches have been found permissible even when a car was searched after being seized and moved to a police station. Texas v. White, 423 U. S. 67 (1975); Chambers v. Maroney, 399 U. S. 42 (1970). In each of these latter cases, the search was constitutionally permissible because an immediate, on-the-scene search would have been permissible. Texas v. White, supra, at 68; Chambers v. Maroney, supra, at 52.

At issue in the present case is a seizure that occurred on the scene shortly after a speeding car was stopped. Thus, if there was probable cause “that the contents of the automobile offend against the law,” Carroll, supra, at 159, the warrantless seizure was permissible.

Probable cause in this case is self-evident. Indeed, the Supreme Court of Colorado acknowledged that there was probable cause, but mistakenly concluded that a warrant was required to open the car door and seize the items within.

The officer could not stop the vehicle the first time he detected it speeding, but he accosted it at his next opportunity, when it entered the service station. His subsequent approach to the side of the automobile in order to issue a traffic citation to its driver was entirely legitimate. Standing by the front door of the car, the officer happened to see items matching the description of some of those recently stolen in the vicinity, and observed that the occupants of the car met the description of those suspected of the crime. These circumstances provided not only probable cause to arrest, but also under Carroll and Chambers, probable cause to seize the incriminating items without a warrant.

The petition for certiorari and the respondent’s motion for leave to proceed in forma pauperis are granted, the judgment of the Supreme Court of Colorado is vacated, and the ease is remanded to that court for proceedings not inconsistent with this opinion.

It is so ordered.

       199 Colo. 281, 607 P. 2d 987 (1980).

       Another factor that contributes to the justification for the absence of a warrant in such a situation is that “the circumstances that furnish probable cause to search a particular auto for particular articles are most, often unforeseeable.” Chambers, 399 U. S., at 50-51. See also Cardwell v. Lewis, 417 U. S. 583, 595 (1974). This factor applies with particular force in this case. As the reason for the . stop was wholly unconnected with the reason for the subsequent seizure, it would be especially unreasonable to require a detour to a magistrate before the unanticipated evidence could be lawfully seized.

       There can be no question that the stopping of a vehicle and the detention of its occupants constitute a “seizure” within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U. S. 648, 653 (1979); United States v. Martinez-Fuerte, 428 U. S. 543, 556-558 (1976); United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975).

       The respondent does not dispute that the items seized were illuminated by the lights of the service station, or that they were in the plain view of the officer as he spoke to him beside the front door of the car. There was no evidence whatsoever that the officer’s presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants.


author: Per Curiam. Justice White, Justice Rehnquist,

text:
    HUGHES v. ROWE et al.
    No. 79-6000.
    Decided November 10, 1980
   Per Curiam.

Petitioner, an inmate of the Illinois State Penitentiary, asks us to review an order dismissing his civil rights action against the respondent corrections officers and directing him to pay counsel fees of $400 for services rendered by the Attorney General of Illinois in representing the respondents in that action.

After granting a motion to dismiss the complaint for failure to state a constitutional violation, the District Court ordered petitioner to show cause why fees of $400 should not be taxed against him under 42 U. S. C. § 1988. Because he did not respond to that order, the fee award was entered. A motion to reconsider was later denied on the ground that petitioner’s suit was “meritless.” The Court of Appeals disposed of the novel question presented by petitioner by affirming the fee award in an unpublished order. We now grant the motion for leave to proceed in forma pauperis and the petition for certiorari and reverse the judgment of the Court of Appeals.

I

On September 20, 1977, petitioner was charged with a violation of prison regulations and placed in segregation. At a disciplinary hearing two days later, petitioner admitted that he and two other inmates had consumed a homemade alcoholic beverage; his punishment was confinement to segregation for 10 days, demotion to C-grade, and loss of 30 days’ statutory good time.

Petitioner exhausted his administrative remedies and then filed a complaint under 42 U. S. C. § 1983 in the United States District Court for the Northern District of Illinois on the form used by prisoners who are not represented by counsel. The facts stated on the form raised two federal questions of arguable merit: (1) the decision to place petitioner in a segregation cell on September 20, 1977, was not preceded by a hearing and was not justified by any emergency or other necessity; (2) two of the officers who conducted the disciplinary hearing after petitioner had been in segregation for two days were biased against him. Respondents, represented by the State Attorney General’s Office, moved to dismiss the complaint, but filed no affidavits denying or explaining the facts alleged by petitioner. After allowing petitioner to file various amendments and additional papers, the District Court dismissed the complaint without taking any evidence. Thereafter the fee award was made.

In its order affirming the action of the District Court, the Court of Appeals correctly noted that the Due Process Clause of the Fourteenth Amendment affords a prisoner certain minimum procedural safeguards before disciplinary action may be taken against him. Because the record did not reveal a violation of those safeguards at the hearing on September 22, the Court of Appeals concluded that the complaint had been properly dismissed. However, the Court of Appeals seems to have overlooked the fact, clearly stated in petitioner's brief on appeal, that the disciplinary hearing did not take place until two days after petitioner was placed in segregation on September 20. Nothing in the papers filed on behalf of the respondents purports to justify or explain the segregation of petitioner for two days in advance of the disciplinary hearing.

II

Petitioner's complaint, like most prisoner complaints filed in the Northern District of Illinois, was not prepared by counsel. It is settled law that the allegations of such a complaint, “however inartfully pleaded'' are held “to less stringent standards than formal pleadings drafted by lawyers ....'' Haines v. Kerner, 404 U. S. 519, 520 (1972). See also Maclin v. Paulson, 627 F. 2d 83, 86 (CA7 1980); French v. Heyne, 547 F. 2d 994, 996 (CA7 1976). Such a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines, supra, at 520-521. And, of course, the allegations of the complaint are generally taken as true for purposes of a motion to dismiss. Cruz v. Beto, 405 U. S. 319, 322 (1972).

Applying these principles to petitioner’s amended complaint, we conclude that all but one of its allegations were properly dismissed for failure to state a claim. Petitioner’s allegations of bias and procedural irregularities in the September 22 hearing, unequal treatment, and cruel and unusual punishment, even when liberally construed, were insufficient to require any further proceedings in the District Court. We therefore affirm the dismissal of these claims.

Petitioner’s allegation that he had been confined unnecessarily to segregation is of a different character. It can be construed as a contention that his confinement to segregation violated due process because it took place without a prior hearing. It is clear from the facts alleged in the amended complaint that petitioner was confined in segregation for two days before a hearing was held. Indeed, petitioner expressly stated this claim in procedural due process terms in his response to the defendants’ motion to dismiss the amended complaint.

Segregation of a prisoner without a prior hearing may violate due process if the postponement of procedural protections is not justified by apprehended emergency conditions. See Hayes v. Walker, 555 F. 2d 625, 633 (CA7), cert. denied, 434 U. S. 959 (1977). The amended complaint alleged that segregation was unnecessary in petitioner’s case because his offense did not involve violence and he did not present a “clear and present danger.” There is no suggestion in the record that immediate segregation was necessitated by emergency conditions. Defendants did make the unsworn assertion that petitioner was placed in segregation on “temporary investigative status,” but the significance of this designation is unclear and it does not, without more, dispose of petitioner’s procedural due process claim. The District Court, in dismissing the amended complaint, merely concluded that temporary segregation pending investigation was not actionable. The court cited an Illinois Department of Corrections Administrative Regulation which authorized segregation of prisoners pending investigation of disciplinary matters, where required “in the interest of institutional security and safety.” In the absence of any showing that concern for institutional security and safety was the basis for immediate segregation of petitioner without a prior hearing, this regulation does not justify dismissal of petitioner’s suit for failure to state a claim.

Our discussion of this claim is not intended to express any view on its merits. We conclude merely that the amended complaint was adequate at least to require some response from the defendants, by way of affidavit or otherwise, to petitioner’s claim that he was unjustifiably placed in segregation without a prior hearing. Although petitioner’s pleadings are prolix and lacking in stylistic precision, this is not a case like Estelle v. Gamble, 429 U. S. 97 (1976), in which a pro se litigant’s detailed recitation of the facts reveals on its face the insufficiency of the complaint. We cannot say with assurance that petitioner can prove no set of facts in support of his claim entitling him to relief. Haines v. Kerner, 404 U. S., at 521. Accordingly, the Court of Appeals should have reversed the dismissal of this claim and remanded for further proceedings.

Ill

The award of attorney’s fees entered against petitioner must be vacated.

In Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), we held that the defendant in an action brought under Title VII of the Civil Rights Act of 1964 may recover attorney’s fees from the plaintiff only if the District Court finds “that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Id., at 421. Although arguably a different standard might be applied in a civil rights action under 42 U. S. C. § 1983, we can perceive no reason for applying a less stringent standard. The plaintiff’s action must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees. As we stated in Christiansburg:

“To take the further step of assessing attorney’s fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” 434 U. S., at 422.

No such finding supported the fee award in this case.

These limitations apply with special force in actions initiated by uncounseled prisoners. Faithful adherence to the principles of Haines v. Kerner dictates that attorney’s fees should rarely be awarded against such plaintiffs. The fact that a prisoner’s complaint, even when liberally construed, cannot survive a motion to dismiss does not, without more, entitle the defendant to attorney’s fees. An unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims. As the Court noted in Christiansburg, even if the law or the facts are somewhat questionable or unfavorable at the outset of litigation, a party may have an entirely reasonable ground for bringing suit. 434 U. S., at 422.

Despite the lower court’s conclusion to the contrary, the allegations of petitioner’s amended complaint are definitely not meritless in the Christiansburg sense. Even those allegations that were properly dismissed for failure to state a claim deserved and received the careful consideration of both the District Court and the Court of Appeals. Allegations that, upon careful examination, prove legally insufficient to require a trial are not, for that reason alone, “groundless” or “without foundation” as required by Christiansburg.

The judgment of the Court of Appeals is affirmed in part and reversed in part and the case is remanded for further proceedings consistent with this opinion.

It %s so ordered.

The Chief Justice would grant the petition and set the case for oral argument.

Justice Stewakt would affirm the judgment of the Court of Appeals insofar as it affirmed the District Court’s dismissal of the petitioner’s complaint. He substantially agrees, however, with what is said in Part III of the Court’s per curiam opinion, and for those reasons would reverse the judgment insofar as it affirmed the award of attorney’s fees entered against the petitioner.

Justice White,

concurring in part and concurring in the result.

I agree with the result reached in Part II of the per curiam opinion. Under Wolff v. McDonnell, 418 U. S. 539 (1974), a prior hearing was required for the particular disciplinary action involved here — segregation and loss of good time. But as Wolff makes clear, Fourteenth Amendment procedural protections were triggered only because under state law — here prison regulations — segregation and good-time reductions could be imposed only for serious disciplinary lapses and only after a prior hearing. Under these regulations, segregation prior to a hearing could occur only for reasons of prison security and safety. I agree that there have been no findings that warranted dispensing with the prior hearing.

It is well to point out, however, that although petitioner sought compensatory and punitive damages, as well as declaratory relief, he had a full hearing within 48 hours of his confinement, his guilt was properly established (indeed, he admitted his conduct as he had before), and the discipline imposed on him was found to be justified. Even if petitioner is successful in proving a due process deprivation, his damages would be limited to those flowing from postponement of a hearing for two days. Under Carey v. Piphus, 435 U. S. 247 (1978), it is likely that only nominal damages would be awardable.

I am in accord with Part III of the Court’s opinion.

Justice Rehnquist,

dissenting.

In its effort to distill some vaguely tenable claim from petitioner’s complaint, the Court ignores crucial admissions in the complaint itself which fatally undermine any claim of constitutional deprivation. As I read the Court opinion, it holds that the District Court erred in dismissing petitioner’s complaint solely because the complaint can be construed to allege that petitioner was placed in segregation without a prior hearing, although he was given an adequate hearing before a review board 40 hours later. The Court recognizes that petitioner admitted before the review board that he violated prison regulations by consuming homemade alcohol, ante, at 7-8, but fails to recognize that he had also admitted his guilt at the time of the incident. In his amended complaint petitioner alleged:

“[I] was placed in segregation unnecessarily on September 20, 1977, because there was no violence involved, and I was not a 'clear and present’ danger. Additionally, I had admitted to Captain C. D. Tuttle that I had been drinking.” Amended Complaint 13.

The complaint also reveals that petitioner has “a problem with alcohol.” Id., at 14. In light of these admissions it is difficult to see what purpose the hearing which the Court rules may have been constitutionally required would have served. The hearing would not be held to determine if petitioner violated prison regulations; he admitted that he had when apprehended. Nor would the hearing be held to determine appropriate punishment. That hearing, before the review board, was held 40 hours later, and the Court concedes that no matter how liberally petitioner’s complaint is construed it does not state any claim concerning the conduct of that hearing or the punishment. Ante, at 10. The sole purpose the hearing could have served would be to determine if petitioner should have been removed from the general prison population for the short period between the occurrence of the incident at 7:30 the night of September 20 and the review board hearing held before noon on September 22.

In light of the facts admitted by petitioner, however, it is clear that he cannot state a claim against the prison officials for not holding such a hearing. The reports of the conduct of which petitioner admitted being guilty described his condition as “tipsy, speech slurred” and stated that petitioner “had all the appearance of being drunk” and “appeared to be intoxicated.” In his grievance filed on September 24 petitioner again admitted that he had gotten “drunk” the night of. the 20th. Intoxicated inmates surely pose a serious threat to prison security and safety, and the placing of petitioner in temporary investigative status was authorized by a prison regulation providing for such action “in the interest of institutional security and safety.” This Court has on several occasions stressed that “ 'central to all other corrections goals is the institutional consideration of internal security within corrections facilities themselves/ ” Bell v. Wolfish, 441 U. S. 520, 546-547 (1979) (quoting Pell v. Procunier, 417 U. S. 817, 823 (1974)). See Jones v. North Carolina Prisoners’ Labor Union, 433 U. S. 119, 129 (1977); Procunier v. Martinez, 416 U. S. 396, 412 (1974). “Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel .. . .” Bell v. Wolfish, supra, at 547. This Court has also repeatedly recognized that the judiciary, “ill-equipped” to deal with “complex and difficult” problems of running a prison, must accord the decisions of prison officials great deference. See, e. g., Jones v. North Carolina Prisoners’ Labor Union, supra, at 126; Procunier v. Martinez, supra, at 405. This rule applies with its greatest force when prison officials act to preserve the central goal of institutional discipline. “Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, supra, at 547. Against this well-established background, and with petitioner’s admitted violation of prison regulations by consuming homemade alcohol, it is clear that the prison officials acted within their discretion in removing petitioner from the general prison population. Even the Court of Appeals authority relied upon by the Court recognized that claims such as the present one must be based on allegations of “bad faith” or “mere pretext.” Hayes v. Walker, 555 F. 2d 625, 633 (CA7 1977) (quoting La Batt v. Twomey, 513 F. 2d 641, 647 (CA7 1975)). Because petitioner has admitted to being intoxicated, however, it is clear that he cannot claim the prison officials acted out of bad faith or on mere pretext. Their decision to remove him from the general prison population was “rationally related to the reasonable, indeed to the central, objectives of prison administration,” Jones v. North Carolina Prisoners’ Labor Union, supra, at 129.

Indeed, it is difficult to envision exactly how an intoxicated inmate would participate in any meaningful way in a hearing held immediately after the drinking incident. A strong argument could certainly be advanced that it would have been a violation of petitioner’s rights to hold a hearing when he was, as he admitted, drunk.

This case is thus like Codd v. Velger, 429 U. S. 624 (1977), where we held that no constitutional violation occurred when an untenured employee was discharged without a hearing. No hearing was required to permit the employee to clear his name, since he did not dispute the truth of the allegedly stigmatizing reason for the discharge. Here the case is even stronger, since petitioner not only does not contend he was innocent of any violation but also admitted his guilt at the time of the incident. In Codd no hearing was required on whether the discharge was justified in light of the employee’s conduct because the employee had no property interest in continued employment. So, too, here no hearing was required on whether removal from the general prison population pending convening of the review board was justified, since this decision is within the discretion of prison officials and, in view of petitioner’s admissions, no abuse of discretion can be shown.

Even if petitioner had not represented a threat to prison security himself, his removal from the general prison population for a brief period was fully justified in order to protect the integrity of the later hearing before the review board. Permitting inmates to return to the general prison population following a serious breach of prison discipline or violation of prison rules poses difficulties in terms of alibi construction and witness intimidation. The problems were certainly present in this case, where one of three inmates involved in a single incident admitted the charges but the other two denied them. The argument that such investigative justifications cannot outweigh the burden imposed on an innocent or possibly innocent inmate, whatever its merit in other cases, is of course not applicable in this case where petitioner has admitted and continues to admit his guilt.

Nothing in the foregoing detracts from the rule of Haines v. Kerner, 404 U. S. 519 (1972), concerning the liberality with which pro se inmate complaints are to be read, since the complaint itself contains the admission of guilt which undermines any colorable claim. I would also note that petitioner filed his original and amended complaints on forms designed to make it easier for pro se inmates to articulate their claims. Such forms should make the problem of Haines v. Kerner recur less frequently by isolating the relevant information for the district court judge. The Court notes that the District Court gave petitioner’s complaint “careful consideration,” and Judge Swygert below argued that “it is quite evident from the detailed treatment given by the [District [C]ourt to the issues . . . that the suit was not groundless or meritless.” It is odd, however, to reverse a District Court for spending considerable time and effort before concluding that a complaint was meritless. The fact that the District Court carefully examined petitioner’s complaint for any possible claim before dismissing it is hardly evidence that a colorable claim must exist. Quite the contrary, it is a strong indication that no claim could be found no matter how deeply the District Court probed.

The award of attorney’s fees was entirely proper in this case. The District Court expressly found that petitioner’s suit was meritless in response to respondents’ motion, which was based on Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), and cited that case extensively. It is clear, therefore, that the District Court was using “meritless” as that term was understood in Christiansburg, supra, at 421 (“the term ‘meritless’ is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case”).

The decision whether to award, attorney’s fees under 42 U. S. C. § 1988 is committed to the discretion of the district courts, who are intimately familiar with the course of the litigation. Like the Court of Appeals for the Seventh Circuit, I cannot say that the District Court abused its discretion in awarding attorney’s fees in this case. In light of petitioner’s own admissions it was clear from the outset that he could state no cognizable claim. This is not a case, such as was suggested in Christiansburg, supra, at 422, where the claim appeared meritorious at the outset and only later was refuted by facts which emerged on discovery or at trial. The decisive facts were stated in the complaint and they were not merely “questionable” or “unfavorable,” as the Court suggests, ante, at 15; they were dispositive.

       The order entered by District Judge McMillen on October 18, 1978, reads as follows:
      “On August 7, 1978, we ordered plaintiff to show cause within twenty (20) days thereof why defendants’ attorneys’ fees in the amount of $400 should not be taxed against plaintiff under 42 U. S. C. § 1988. Because plaintiff has not complied with or otherwise responded to that order, we hereby tax defendants’ fees in the amount of $400 against him pursuant to 42 U. S. C. § 1988.”

       On December 5, 1978, Judge McMillen entered the following order denying petitioner’s motion for reconsideration:
      “On October 18, 1978, we ordered that the defendants’ attorneys fees in the amount of $400 should be taxed against the plaintiff pursuant to 42 U. S. C. § 1988. Plaintiff has filed a motion to reconsider said action. Plaintiff’s motion to reconsider is denied and attorneys fees in the amount of $400 will be taxed against the plaintiff, as the suit was meritless.”

       Rule 35 (c)(1) of the Circuit Rules of the United States Court of Appeals for the Seventh Circuit identifies those decisions warranting publication:
      “A published opinion will be filed when the decision
      “(i) establishes a new, or changes an existing, rule of law;
      “(ii) involves an issue of continuing public interest;
      “(in) criticizes or questions existing law;
      “(iv) constitutes a significant and nonduplieative contribution to legal literature
      “(A) by a historical review of law,
      “(B) by describing legislative history, or
      “(C) by resolving or creating a conflict in the law;
      “(v) reverses a judgment or denies enforcement of an order when the lower court or agency has published an opinion supporting the judgment or order; or
      “(vi) is pursuant to an order of remand from the Supreme Court and is not rendered merely in ministerial obedienee to specific directions of that Court.”
      When a decision does not satisfy these criteria, it is to be filed as an unpublished order. Circuit Rule 35 (e)(2). Unpublished orders may not be cited as precedent in any federal court within the Seventh Circuit. Circuit Rule 35 (b) (2) (iv).
      Although petitioner’s appeal was decided in an unpublished order purportedly having no precedential significance, three members of the Court of Appeals, Chief Judge Fairchild and Judges Swygert and Bauer, nonetheless voted to rehear the case en banc. Judge Swygert filed a written dissent from the order denying the petition for rehearing en banc.

       It is unclear from the record whether this sentence included the two days petitioner spent in segregation prior to the disciplinary hearing, or whether he was sentenced to 10 days’ segregation in addition to the time already served. There apparently is also some confusion with respect to the exact sentence imposed on petitioner at the hearing. The District Court’s order dismissing the complaint indicates that petitioner was sentenced to 30 days in segregation. The Court of Appeals’ order, on the other hand, states that he was sentenced to 10 days in segregation. The petition for writ of certiorari and respondents’ brief in opposition filed in this Court are similarly inconsistent on this point. The record seems to indicate that petitioner was sentenced to 10 days in segregation. The uncertainty with respect to petitioner’s posthearing segregation is not, however, material to our decision in this case.

       Petitioner also alleged that respondents violated their own procedural regulations, and that it was a denial of equal protection of the laws and cruel and unusual punishment to impose a more severe sentence on him than on the other two inmates involved in the incident, since he had confessed to drinking and they had not.

       As the Court of Appeals noted:
      “The Supreme Court has delineated the standard to be applied in determining whether a prisoner has been afforded his minimum due process rights. Wolff v. McDonnell, 418 U. S. 539 . . . (1974). The prisoner is entitled to (1) advance written notice of the charges against him or her; (2) an opportunity to call witnesses and present documentary evidence, provided that to do so will not jeopardize institutional safety or correctional goals, before a sufficiently impartial hearing board; (3) a written statement by the fact finder of ‘the evidence relied upon and reasons for the disciplinary action taken.’ ”

       The Court reaffirmed the principles of Haines in Estelle v. Gamble, 429 U. S. 97, 106 (1976):
      “As the Court unanimously held in Haines v. Kerner, 404 U. S. 519 (1972), a pro se complaint, ‘however inartfully pleaded/ must be held to ‘less stringent standards than formal pleadings drafted by lawyers’ and can only be dismissed for failure to state a claim if it appears ‘“beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” ’ Id., at 520-521, quoting Conley v. Gibson, 355 U. S. 41, 45-46 (1957).”

       In a document entitled, “Response to: Motion to Dismiss or For Summary Judgment/& Memorandum in Support of Motion to Dismiss or For Summary Judgment,” petitioner alleged:

        “Placement in Segregation: Plaintiff was placed in Segregation on September 20, 1977, with no hearing what-so-ever. No reasons provided him as to why it was necessary to place him in segregation. No Resident Information Report issued him, stating he was being placed in segregation, under investigation status.” Response, at 2 (emphasis in original).
      Petitioner thereafter asserted that “[classification to segregation must comply with procedural due process.” Id., at 4, 7. Petitioner went on to assert that his placement in segregation on September 20 was “completely unnecessary, because plaintiff posed no immediate threat to the safety and security of the institution. . . .” Id., at 8. Later in the response, petitioner discussed his due process claim in detail. Id., at 15-16.

       In their Memorandum in Support of Motion to Dismiss or for Summary Judgment, respondents asserted:
      “Plaintiff's placement in segregation cellhouse on September 20, 1977 on temporary investigative status pending hearing of the resident information reports on September 22, 1977 does not rise to the level of a constitutional deprivation. No disciplinary sanctions constituting a grievous loss were imposed prior to a disciplinary hearing. The transfer of a resident from one cell to another does not trigger due process protections. Meachum v. Fano, 427 U. S. 215 .. . (1976).”

       The District Court’s order dismissing petitioner’s complaint stated:
      “Plaintiff complains that his placement in segregation between the evening of September 20 and his hearing on September 22 was ‘unnecessary’ because no violence was involved in the incident. We find that his temporary placement in segregation pending the hearing, which was brought within the required 72 hour period, is not actionable. See A. R. 804 (G), effective December 1, 1976.”

       This regulation, Administrative Regulation § 804 (II) (G), provides, in pertinent part:
      “It is recognized that incidents occur which, in the interest of institutional security and safety, require that a resident be removed from the general population and placed in a holding unit pending the completion of an investigation. As the holding unit functions in the same manner as a segregation unit (except that single celling is not required in the holding unit), a resident must be provided with the same procedural safeguards and services as are required by this regulation relative to placements, conditions and services in a segregation unit.”

       The dissenting opinion rests on the alternative and somewhat inconsistent grounds that prehearing solitary confinement was (a) proper punishment for an offense that was already adequately proved, (b) necessary in order to forestall the development of a contrived defense, and (c) harmless because petitioner subsequently received a fair hearing. The record reveals that these grounds are not sufficient to justify the dismissal of petitioner’s complaint.
      On the basis of petitioner’s admission that he had been drinking, plus unsworn allegations in the reports of the corrections officers, the dissent concludes that petitioner was intoxicated on September 20 and that he posed a threat to prison security and safety sufficiently serious to warrant immediate segregation.
      There is little doubt that some intoxicated prisoners may pose a threat to prison security justifying segregation without a hearing. The problem in this case is that the record does not establish, and the District Court did not find, that petitioner was in fact intoxicated or that his condition presented a threat to institutional security. Indeed, at no point in this litigation have the respondents asserted, by affidavit or otherwise, that petitioner was placed in segregation on September 20 because of such security concerns.
      The dissent also speculates that inmates suspected of violations of prison regulations, if allowed to remain in the general prison population pending disciplinary proceedings, will fabricate alibi defenses and intimidate potential witnesses. Post, at 22. This danger would apparently justify automatic investigative segregation of all inmate suspects. Ironically, however, even the Administrative Regulation cited by the District Court, see n. 11, supra, does not purport to justify such blanket segregation. Moreover, automatic investigative segregation is particularly inappropriate for an inmate, like petitioner, who has already admitted guilt; fabrication of alibis or intimidation of witnesses seems unlikely in such a case. While investigative concerns might, in particular cases, justify prehearing segregation, nothing in the present record suggests that these concerns were at work in this case.
      Either the institutional security or the investigative justification postulated by the dissent might well be dispositive had the District Court made appropriate findings. The respondents did not, however, present these justifications to the District Court and the District Court accordingly made no such findings. The record is entirely consistent with the possibility that an inmate who admittedly had been drinking posed no threat at all to prison security and had no intent to deny the facts, but did want an opportunity to establish mitigating circumstances before being placed in solitary confinement. The dissent’s emphasis upon petitioner’s admission confuses the distinction, previously recognized by this Court, between the question of guilt and the question of appropriate punishment. Cf. Morrissey v. Brewer, 408 U. S. 471, 483-484 (1972).
      Finally, even if the subsequent hearing accorded petitioner minimized or eliminated any compensable harm resulting from the initial denial of procedural safeguards, his constitutional claim is nonetheless actionable. Carey v. Piphus, 435 U. S. 247, 266-267 (1978). “Because the right to procedural due process is 'absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed . . . the denial of procedural due process should be actionable for nominal damages without proof of actual injury.” Id., at 266 (footnote omitted).

       As Judge Swygert noted in his dissent from the order denying rehearing en banc, see n. 3, supra, the District Court dismissed petitioner’s claims only after detailed consideration resulting in a seven-page opinion. According to Judge Swygert:
      “It is quite evident from the detailed treatment given by the district court to the issues raised by plaintiff’s complaint that the suit was not groundless or meritless. That fact is corroborated by this court’s treatment of the same issues on appeal.”

       Illinois Department of Corrections Administrative Regulations in effect at the time of this incident provided that a Program Team could act on charges of minor rule violations, but that an Adjustment Committee hearing was required on all other charges of rule violations, “including those which may result in programmatic removal from the population, demotion in grade, or loss of good time.” Administrative Regulation § 804 (II) (A) (4). The regulations also provided that a resident must be informed, inter alia, that “if found guilty of a serious rule violation [by the Adjustment Committee] and found to be a danger to the institutional community, he may be placed in segregation and/or deprived of his current grade and statutory good time credit.” § 804 (II) (B) (4).

       Illinois Department of Corrections Administrative Regulations authorized confinement of a resident in a holding unit pending the completion of an investigation “in the interest of institutional security and safety.” See § 804 (II) (G) (1), quoted in full in the majority opinion, ante, at 12, n. 11. The regulations also authorized confinement of a resident in a holding unit in two other situations, again for security reasons. Section 804 (II) (E) (1) provided:
      “Whenever it is necessary to remove a resident from the general population on an emergency basis due to serious aggressive behavior and/or for safekeeping, the shift captain and/or unit manager must authorize the placement of a resident in a holding unit until the next meeting of the Adjustment Committee, which in no case may exceed 72 hours.”
      Section 804 (II) (F) (1) provided:
      “Whenever it is deemed necessary by the Chief Administrative Officer to transfer a resident to another correctional facility for security reasons, the resident may be confined in a holding unit for not more than 72 hours. See ARs 819 and 822 on transfers.”

       The resident information report filled out by Captain Tuttle and served on petitioner the night the incident occurred confirms that petitioner admitted to drinking at that time.

       The nature of this problem was elaborated in a grievance filed by petitioner two days after the review board hearing. There he stated he has “had a problem with [a]lcohol ever since I was fifteen years old, and nowhere in my past record will you find any sort of arrest that didn’t involve [a]lcohol or drugs.”

       The Court, ante, at 13, n. 12, states that our conclusion that petitioner was intoxicated rests on reports by the officers and petitioner’s admission that he had been drinking. This statement overlooks the September 24 grievance filed by petitioner, wherein he reviewed what he considered the highlights of his prison career and asked “why, with all the things I had going for myself, and being so close to appearing before the Parole Board, did I get drunk and louse up the good record I had?” (emphasis supplied). It also overlooks that petitioner admitted being guilty of the conduct set forth in the reports which described his condition as noted in the text. Petitioner did not argue before the review board, as one of his drinking companions did, that although he had been drinking he was not intoxicated. But even more importantly, the Court’s effort to distinguish between an inmate who has been drinking in violation of prison regulations and an intoxicated inmate, or an intoxicated inmate who poses a threat to prison security and safety and one who does not, places an intolerable burden on prison officials, who apparently must, at the risk of money damages, decide precisely when a drinking inmate is drunk or even how a particular inmate will react when drunk. This is completely at odds with the established rule that prison officials are accorded great deference in the discharge of their central responsibility for prison security and discipline, see infra, at 20.

       The Court’s citation of Morrissey v. Brewer, 408 U. S. 471 (1972), and Carey v. Piphus, 435 U. S. 247 (1978), begs the question whether a hearing prior to the review board hearing was required in this case. In both of these cases the Court held that a hearing was generally required prior to the deprivations involved, so that even if the deprivations were later found to have been justified, a constitutional violation occurred if no prior hearing had been held. Here, however, the Court recognizes that “appropriate findings” by the District Court concerning petitioner’s intoxication or investigative concerns would be dispositive, presumably because they would indicate no hearing was required. Thus so far as is discernible the Court’s reasoning is not the lack of hearing before confinement, but the fact of possible wrongful confinement without a prior hearing. Findings are not necessary when petitioner’s own admissions conclusively undermine any possible claim that the prison officials acted in bad faith or on mere pretext.

       Prison regulations permit segregation on temporary investigative status for no more than 72 hours; petitioner had his review board hearing within 40 hours of the incident.