(concurring specially):
I concur in the majority’s opinion except in regard to what is said with respect to the allowance of counsel fees. I would direct the allowance of counsel fees — and hence I also concur in this part of the judgment — but I would do so on a basis different from that expressed by the majority.
For a circuit which has been the leader in the allowance of counsel fees in school desegregation cases, Bell v. School Board of Powhatan County, Virginia, 321 F.2d 494 (4 Cir. 1963); Brown v. County School Board of Frederick County, Virginia, 327 F.2d 655 (4 Cir. 1964); Griffin v. Board of Supervisors of Prince Edward County, 339 F.2d 486 (4 Cir. 1964); Nesbit v. Statesville City Board of Education, 418 F.2d 1040 (4 Cir. 1969), I think that the court takes a false turn when it rests the allowance in this case on a quasi-application of the “common fund” doctrine. Sprague v. Ticonic Bank, 307 U.S. 166, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), in which this doctrine was announced, gives little support to the majority’s result. There, there was a fund and the fund was more than sufficient to pay all claims. The allowance was prayed to be paid out of the fund. Presumably therefore, recovery on the claim would not be diminished by the allowance. 307 U.S. at 163, 59 S.Ct. 777, 83 L.Ed. 1184. The only question was whether an allowance from the fund was proper when there was not a true class suit. It was held that since plaintiff’s recovery would be stare decisis of the claims of other potential plaintiffs similarly situated, the allowance could properly be made. Here, as the majority recognizes, there is no fund and it is necessary for the majority in effect to create one so that plaintiffs’ lawyers can be compensated.
Conceptually, I see grave difficulties with correlating the award of counsel fees to pecuniary benefits to plaintiffs. The objective in a school desegregation case is the vindication of human rights and human rights are rarely translatable into dollar values. Of course, in this case it can be said that plaintiffs will be granted something having a measurable, pecuniary benefit, but in other cases where the right vindicated is not just lack of transportation, which carries a price tag, I can visualize substantial problems in determining whether the vindicated right has an ascertainable monetary value. And even in this case I *953am left in doubt of the extent to which, if any, the aggregate pecuniary benefit to all of the plaintiffs is to be considered in determining the amount of the allowance to their attorneys. Ordinarily, aggregate monetary recovery is a substantial factor in fixing a fee for legal services. And if difficult here, assuming that total recovery is an element to be considered, what difficulties will arise in future cases where such a convenient measure of the pecuniary benefit is not at hand ?
Where the court goes wrong is in its failure forthrightly to recognize that the decisions in the area of school desegregation subsequent to Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), all hold that Brown I means just what it says and that beginning in 1964 the Supreme Court has said repeatedly that further delay in its full implementation will not be tolerated. Griffin v. Board of Supervisors of Prince Edward County, supra; Green v. County School Board of New Kent County, Va., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 467, 24 L.Ed.2d 382 (1969). I find quite unpersuasive the implied assertion that Brown I required, or was afforded, subsequent clarification, or that clairvoyance was required to foresee the result in Green v. County School Board, supra, and Swann v. Board of Education, 402 U.S. 1, 91 S. Ct. 1267, 28 L.Ed.2d 554 (1971). The only change in the course of direction of Brown I that I have been able to perceive is abandonment of the mandate of “all deliberate speed,” as announced in Brown v. Board of Education of Topeka, Kansas, 349 U.S. 294, 301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II), and the substitution of “at once” and “now,” as announced in Griffin, Green, Holmes and Carter. This change of direction in the immediacy of the application of Brown I does not dilute, modify or alter its substance, but I think it requires an extension of the rule we initially announced in Bell.
In Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed. 2d 1263 (1968), it was held, in a suit brought under Title II of the Civil Rights Act of 1964 to enjoin racial discrimination at five drive-in restaurants and a sandwich shop, that “one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” 390 U.S. 402, 88 S.Ct. 966. The rationale of the holding was “ [i] f successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts.”
Of course, in Newman there was a statute authorizing an award of counsel fees in a suit brought under Title II of the Act, and, strictly read, Newman simply decided how the statute should be applied. But the lesson to be learned from Newman is directly applicable here. We have the authority to award counsel fees in this equitable action; no statute is required. True, up to now, we have awarded them only “when it is found that the bringing of the action [to desegregate effectively] should have been unnecessary and was compelled by the school board’s unreasonable, obdurate obstinacy.” Bradley v. School Board of City of Richmond, Virginia, 345 F.2d 310, 321 (4 Cir. 1965). Such an application was proper in the context of “all deliberate speed” because, there, there was room for legitimate debate as to the period of time within which the conflicting demands of aggrieved plaintiffs and the community interest in a smooth, uneventful transition to a unitary system of public education were to be accommodated. But Griffin, Green, Alexander and Carter have created a different context. *954By now the transition should have been accomplished. If it has not, the burden of persuasion to explain the delay should rest on those who have the power to accomplish the objective but who have failed to achieve it, and not on those whose rights continue to be violated. It seems to me, therefore, to be appropriate now to hold, in the light of those cases, that reasonable and adequate counsel fees should be awarded as of course unless special circumstances would render an award unjust.
There is every reason to arrive at this result. Despite the extensive enforcement responsibilities the statutes place on the Departments of Justice and Health, Education and Welfare and their immense resources, we know from the cases which come before us that they have been unable to shoulder the entire burden of litigation to make Brown I fully effective. The Department of Justice has not appeared in this stage of this very case. Indeed, it has appeared at only one stage of the tortuous history of the desegregation of the Norfolk schools. Brewer v. School Board of City of Norfolk, Virginia, 434 F.2d 408 (4 Cir. 1970). Almost all of the burden of litigation has been upon the aggrieved plaintiffs and those non-profit organizations which have provided them with representation. The time is now when those who vindicate these civil rights should receive fair and equitable compensation from the sources which have denied them, even in the absence of any showing of “unreasonable, obdurate obstinacy.”
If we were to adopt the rule I champion, I could not find in the light of Swann and Davis v. School Comm’rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971), that there are any special circumstances rendering an award of counsel fees unjust. Hence, I join in directing the counsel fees be awarded.