IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

NANCY ELISABETH MELLETTE, individually and
on behalf of all others similarly situated,

Plaintiff,

and

THE UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

against

JAMES E. JONES, JR., et al.,

Defendants,

and

THE STATE OF SOUTH CAROLINA, et al.,

Additional Defendants.

No. 2:93-0488-2

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR
ATTORNEYS' FEES AND COSTS UNDER 42 U.S.C. sec.  1988
PRELIMINARY STATEMENT

Shannon Faulkner, Nancy Mellette, and three female veterans
of the United States armed forces pursued this battle when
they sued The Citadel for refusing to admit them to the
Corps of Cadets and the former Veterans Day Program based
not on their merits as students, but on their gender. They
have endured a scorched-earth defense by the State of South
Carolina and The Citadel to keep all women out of the
military college's ranks. After four years, 49 major
briefs, over 200 depositions, and 47 days of court
hearings, the upshot of this massive litigation is that the
State has lost, the right of women to equal protection of
the laws is vindicated, and female cadets have enrolled at
The Citadel this year. Now the bill for legal services is
due.

The Citadel and the State of South Carolina amassed their
considerable economic and political resources to defend
their policy, hiring three out-of-state law firms -King &
Spaulding in Atlanta, McGuire, Woods, Battle & Boothe in
Richmond and Shaw Pittman, Potts & Trowbridge in
Washington, D.C. -- as well as two Charleston law firms and
the State Attorney General's Office, to fight this battle.
Defendants knew the law and the risk of liability for legal
fees when they made the conscious decision to expend the
substantial legal resources to defend the policy and to
employ the expensive legal tactics used in the litigation,
causing plaintiffs' fees and expenses to increase
substantially as the result. This Court, on the record, on
several occasions alerted defendants to their liability for
fees. This Court also recognized, on the record, that the
lawsuit would not have been brought, and would not have
been successful, and the discrimination against women would
have continued, but for the extraordinary efforts of the
private plaintiffs and their counsel. As a matter of public
policy, this Court should not permit these defendants to
avoid liability for plaintiffs' fees and costs. Not only is
the award of fees and costs proper under the law, but it
also serves as an important deference to future
constitutional violations by these defendants, whose past
history has shown a propensity for such behavior.

This Memorandum in support of plaintiffs' motion for
attorney's fees, costs and expenses is submitted pursuant
to 42 U.S.C. sec.  1988,1* following this Court's Order
entered August 14, 1996, finding that The Citadel's
remedial South Carolina Institute for Leadership ("SCIL")
program established at Converse College violates the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution. This Court previously has held that
The Citadel's males-only admission policy violates the
equal protection rights of women under the Fourteenth
Amendment,2 and that decision was upheld by the Fourth
Circuit Court of Appeals.3 As The Citadel offered no
alternative to SCIL as a remedy for its unconstitutional
all-male admission policy, defendants were forced, after a
bitterly fought four year long court battle, to reverse
their 153-year-old tradition of exclusion and open The
Citadel's doors to women applicants.

STATEMENT OF THE CASE

The four year long legal battle can be viewed as several
campaigns.4*

The Liability Phase

A. Shannon Faulkner Is Granted a Preliminary Injunction
Entitling Her to Attend Day Classes at The Citadel

On March 2, 1993, former plaintiff Shannon Richey Faulkner
commenced this action under 42 U.S.C. sec.  1983, on behalf
of herself and all others similarly situated, asserting
that The Citadel's males-only admission policy to the Corps
of Cadets violates the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.
After filing a motion for summary judgment on May 27, 1993,
and when it became apparent that the merits of this case
would not be resolved before the 1993-94 school year
commenced, Ms. Faulkner filed a motion for a preliminary
injunction on July 7, 1993 to gain admission to classes at
The Citadel for her first semester in college. This Court
granted Ms. Faulkner's motion on August 17, 1993 and
ordered her admission into the Day Program at The Citadel.

The order was stayed pending appeal by defendants to the
Court of Appeals for the Fourth Circuit, and on November
17, 1993, the Fourth Circuit affirmed this Court's decision
granting the preliminary injunction. The Court of Appeals
held that it was probable that Ms. Faulkner would prevail
on her claim that The Citadel's males-only policy violated
her right to equal protection. Faulkner, 10 F.3d 226, 233
(4th Cir. 1993). Defendants filed a petition for rehearing
and suggestion for rehearing en bane on December 1, 1993,
which the Court of Appeals denied on January 5, 1994. On
January 11, 1994, the Court of Appeals denied defendants'
motion for a stay of the mandate pending filing of a
petition for a writ of certiorari with the United States
Supreme Court. Defendants filed an emergency application
for a stay of the injunction with the United States Supreme
Court on January 12, 1994. Chief Justice Rehnquist denied
South Carolina's application "in all respects." Supreme
Court Of The United States, No. A-569, Order Dated January
18, 1994. On January 20, 1994, Ms. Faulkner began classes
at The Citadel.

B. Defendants Refuse to Develop or Submit a Remedial Plan

On February 17, 1994, this Court heard arguments on Ms.
Faulkner's motion for summary judgment and on a motion for
summary judgment filed by South Carolina. The Court did not
rule on those motions, but determined to hold a trial and
issue a final--ruling. See Oral Order of February 17, 1994;
Transcript of March 8, 1994 Hearing. Later in February, the
Court ordered defendants to file a proposed remedial plan
with the Court by April 1, 1994. See Transcript of March
18, 1994 Hearing at 8. Defendants sought to bifurcate the
trial and postpone submitting a remedial plan until sixty
days after the Court ruled on the issue of liability; this
Court denied that motion on March 8, 1994.

Under this Court's order to propose a remedy by ApAI 1,
1994, as well as the Fourth Circuit's decision in United
States v. Virginia, 976 F.2d 890 (4th Cir. 1992) ("VMI I"),
defendants were well aware that they could attempt to
propose a remedial alternative to coeducation for
consideration if The Citadel's males-only admission policy
was declared unconstitutional.5* Nonetheless, defendants
flatly refused to formulate or submit any specific
alternative remedy for judicial review.

On April 1, 1994, defendants submitted a Proposed Remedial
Plan which they conceded merely recited possibilities for
remedies that South Carolina might propose following a
finding of liability. Defendant's Proposed Remedial Plan
states: "Within [sixty] days of the Court's determination
of the liability issues, [the] Defendants will supplement
this Remedial Plan by setting forth a specific proposed
remedy that responds to the liability determination."
Defendants' Remedial Plan at 8. This Court had denied
defendants' formal request for exactly the same extension
of time. Defendants' unilateral decision to submit a plan
to plan" was in direct violation of this Court's order.
Numerous experts in higher education testified at trial,
and defendants' counsel conceded, that the so-called "plan"
was neither a remedial alternative, nor capable of
evaluation or review. Tr. Vol. XI at 4:10 - 5:11; Tr. Vol.
XVI, 30:8 - 32:11.

C. The Court Finds That The Citadel Violated Shannon
Faulkner's Constitutional Rights to Equal Protection

Given the decision of the Court of Appeals for the Fourth
Circuit in VMI I, this Court limited the issues to be tried
in the Faulkner litigation to (1) whether defendants could
articulate any fact or argument that distinguished this
case from the decision in VMI I; and (2) if liability were
found, the appropriate remedy for the violation of the
equal protection rights of Ms. Faulkner and other similarly
situated women. See Transcript of March 8, 1994 Hearing.
Ms. Faulkner and this Court accepted the findings and
conclusions of VMI I as binding solely for the purposes of
determining unresolved factual issues raised by Ms.
Faulkner's motion for summary judgment. This Court
specifically reserved plaintiff's right to challenge at a
future trial the alleged value of single-sex education or
the asserted pedagogical value of The Citadel, or any other
issue that distinguishes The Citadel from VMI. Faulkner,
858 F. Supp. at 555 n.5.

Following a ten-day trial in May 1994, this Court denied
defendants' motion for a mistrial, finding that defendants
had absolutely no authority to support their motion. This
Court then issued an opinion on July 22, 1994 holding that
The Citadel's males-only admission policy violated the
right of Ms. Faulkner and other women to equal protection
under the law as guaranteed by the Fourteenth Amendment.
This Court found that "[t]he type of education available at
The Citadel is not available at any other institution in
South Carolina." Faulkner, 858 F. Supp at 556.
Specifically, it found that:

The unique feature of The Citadel is the requirement that
all undergraduate day students be members of the South
Carolina Corps of Cadets, subject to military discipline at
all times, and enrolled in programs of study which qualify
graduates for commissions in the active or reserve armed
forces.

Id. This Court further found that "The Citadel is the only
public institution in South Carolina which offers
single-gender education." Id.

Turning to remedy, this Court found that the only available
remedy to redress the violation of Ms. Faulkner's rights
was to order her immediate admission into the Corps of
Cadets program. Id. at 568. The remedial order was
supported by a series of specific findings. The Court found
that defendants refused to propose or develop any remedial
plan while still doing their utmost to keep Ms. Faulkner
out of The Citadel. It found that the remedial plan offered
by defendants "does not select any one remedy or even
prioritize those suggested. " Id. at 561. This Court found
that "no effort has been made to determine the feasibility
of any specific remedy" or even contact the state
legislature about the plan. Id. The Court further found
that "[n]ot once has a defendant done anything to indicate
that it is sincerely concerned to any extent whatsoever
about Faulkner's constitutional rights." Id. at 567. It
concluded that:

[A]ll of the actions witnessed by this court clearly and
unequivocally indicate that the defendants would exert all
of their considerable influence to insure that Faulkner
would never have the opportunity to enroll in such a
parallel institution or program.

Id at 568. In contrast to VMI, where the Virginia district
court found that the admission of women into VMI would
"destroy" its program, see United States v. Virginia, 44
F.3d 1229, 1233, 1239 (4th Cir. 1995) ("VMI II"), this
Court found that the admission of Ms. Faulkner to The
Citadel did not require any changes in its structure,
methodology or physical standards. In sum, this Court held
that Ms. Faulkner was entitled to immediate admission into
the Corps of Cadets and entered a final judgment on August
5, 1994, specifying the details of her admission.
Specifically, this Court ordered defendants to (i)
immediately admit Ms. Faulkner, and (ii) admit all other
qualified women for the 1995-96 school year unless
defendants filed a remedial plan, received court approval
and implemented such a proposal by August 1995. The Court
ordered defendants to file a second remedial plan within
sixty days of its ruling, and, once again, defendants
failed to comply.

D. The Court of Appeals Affirms the Court's Liability
Determination

The Court of Appeals for the Fourth Circuit granted
defendants' application for a stay of this Court's order
admitting Ms. Faulkner into the Corps of Cadets. Order of
the United States Court of Appeals for the Fourth Circuit
dated August 12, 1994.

On April 13, 1995, the Court of Appeals affirmed the
liability determination of this Court, but modified the
remedial order. Faulkner, 51 F. 3d 440 (4th Cir. 1995).
Agreeing with this Court that defendants' actions "clearly
and unequivocally" indicated that they would use "all of
their considerable influence" to ensure that Ms. Faulkner
was excluded from any remedial plan, id. at 446-47, the
Court of Appeals directed this Court to
establish a timely but practicable schedule for South
Carolina to formulate, adopt, and implement a plan that
conforms with the Equal Protection Clause, and if the plan
is not court approved and implemented by the date in August
1995 when the Cadets are required to report, The Citadel
must admit Shannon Faulkner to the Corps of Cadets as
ordered by the district court.

Id. at 450. It found that defendants were on notice since
1992 that South Carolina must select a remedial course,
when the Court of Appeals for the Fourth Circuit held that
VMI's males-only admission policy was unconstitutional. Id.
at 447.

The Court of Appeals also held that "[t]he principles
stated in VMI I and VMI II apply to this case." Id. at 444.
It determined that, under VMI II, South Carolina could
remedy the violation of Ms. Faulkner's constitutional
rights by creating a separate, nonmilitary program for
women that differs "in form and detail" from The Citadel's
Corps of Cadets program. Id. at 443.

II. The Remedy Phase

A. South Carolina Files a Last-Minute Remedial Proposal

Despite the District Court's order requiring defendants' to
file a second remedial plan 60 days following the July 22,
1994 order, defendants again refused to file a real plan.
Not until the Fourth Circuit ruled in April 1995 did
defendants take any steps to propose or establish a plan.
On June 5, 1995, defendants filed with this Court a twelve
page proposed remedial plan to create a non-military
leadership program for women at Converse College, a private
women's college in Spartanburg, South Carolina. Enitled the
South Carolina Institute of Leadership for Women ("SCIL"),
the plan was patterned after the Mary Baldwin Plan in VMI
II. Defendants subsequently provided more specific
information about their remedial plan in additional filings
on June 12 and June 16, 1995. The Citadel's academic year
was scheduled to begin on August 12, 1995, with the arrival
of the freshman class.

Defendants' repeated refusal to file a remedial plan in
accordance with this Court's orders, and the late filing of
their Converse plan left the Court with approximately two
months in which to manage discovery concerning the SCIL
program, organize a pretrial schedule, hold a trial on the
substantive comparability of the SCIL program and The
Citadel, and issue a decision on the merits. See Order of
July 24, 1995, at pp. 3-5. In normal circumstances, the
Court would have allowed four to six months for discovery
alone in a case of this magnitude. Id. at 4.6* A key factor
in determining whether this accelerated discovery and trial
schedule could be accomplished was prompt and complete
cooperation in discovery by defendants, who naturally held
all the relevant information about the SCIL program in
their possession. Id. at 4-5. In view of their failure to
file a remedial plan in a timely fashion, defendants were
under a special obligation to provide complete discovery.
Id.

However, despite many hearings and conference calls before
the Court during which Judge Houck devoted significant time
to addressing and resolving discovery disputes, defendants
ultimately failed to comply with their obligation. Id. at
6-9, 11-12. Pursuant to the Court of Appeal's order in
Faulkner, this Court determined on July 24, 1995 that
defendants' proposed remedial plan could not be implemented
in time to receive court approval. Order of July 24, 1995.
As a consequence, Ms. Faulkner was admitted to The
Citadel's Corps of Cadets in August 1995 and this Court set
a trial date of November 6, 1995 to try issues relating to
the approval and implementation of South Carolina's
proposed remedial plan. Id. at 12.

B. The Court Allows Ms. Mellette to Intervene

Following a series of losing applications by defendants for
a stay of Ms. Faulkner's admission, Ms. Faulkner joined the
Corps of Cadets on August 12, 1995 but withdrew later that
week. On October 3, 1995, this Court granted Nancy Mellette
leave to intervene and dismissed Ms. Faulkner from this
action. See Transcript of October 3, 1995 Hearing at 131.
The Court conditioned Ms. Mellette's intervention on
Valorie Vojdik and Shearman & Sterling remaining as
counsel, in light of Shearman & Sterlings' ability to
finance and conduct the litigation. Id. at 105-106, 108,
124. Ms. Mellette filed her Complaint in Intervention on
October 20, 1995. In order to resolve scheduling issues
caused by delays in discovery, this Court postponed the
commencement of the trial concerning South Carolina's
proposed remedial plan until December 4, 1995.

Faced with a significantly abbreviated pretrial period,
counsel for Ms. Mellette catapulted into an exceptionally
accelerated discovery process throughout October and
November 1995. In those two months alone, plaintiffs'
counsel either took or defended over 65 depositions, in 13
different cities. See Weisburg Declaration Exhibit D. This
dizzying schedule also encompassed review of thousands of
pages of documents, preparing expert witnesses for trial,
engaging in extensive motion practice over discovery abuses
by defendants, and preparing extensive proposed findings of
fact and conclusions of law.

C. Preparation for Remedial Trial The Stay: The Supreme
Court's Mandate: and The Citadel's Surrender

The United States Supreme Court granted certiorari in VMI
on October 5, 1995. Defendants could have moved for a stay
of the remedy trial from that point on, but instead chose
to let almost two months elapse, allowing fees and costs
from the accelerated discovery period to balloon. After six
months of intensive preparation for the trial on the
constitutionality of The Citadel's first remedial plan, on
the eve of trial and nearly two months after certiorari was
granted in VMI, defendants requested and were granted a
stay of the remedial trial. In granting the stay, this
Court recognized that the law established by the United
States Supreme Court and its conclusion regarding the
constitutional validity of the Mary Baldwin remedial plan
in Virginia would "undoubtedly . . . impact this case in a
very significant way." See Transcript of November 30, 1996
at 49-54.

During the stay period, defendants filed a motion for
recusal. Although it was baseless both in law and fact,
plaintiff nonetheless was forced to respond to this motion,
which was denied. See Order filed June 27, 1996.

D. The Supreme Court And This Pending Case Force Defendants
To Meet Their Constitutional Obligations

The United States Supreme Court ruled in VMI II on June 26,
1996. Finally, after four years of waging a scorched-earth
defense of its discriminatory policy, forcing plaintiffs to
fight a prolonged and expensive battle to vindicate their
rights, The Citadel's Board of Visitors surrendered and
voted to admit women -- not voluntarily, but only after the
United States Supreme Court in its VMI decision rejected
every one of The Citadel's arguments in support of
defendants' remedial plan for the SCIL program at Converse
College. In addition to holding that a state may not offer
"separate and unequal" programs for men and women, the
Supreme Court held that there exists "no 'exceedingly
persuasive justification' for withholding from women
qualified for the experience premier training of the kind
VMI affords....Women seeking and fit for a VMI-quality
education cannot be offered anything less...." VMI Sup.
Ct., 116 S.Ct at 2264, 2287. Moreover, the Court's thorough
opinion explicitly rejected the "substantially comparable"
standard invented by the Court of Appeals for the Fourth
Circuit for the occasion and held that its deferential
analysis was unconstitutional. The Court further held that
the Mary Baldwin remedial plan was "distinctly inferior,"
substantially underfunded," "unequal in tangible and
intangible facilities" and "fairly appraised as a 'pale
shadow' of VMI...." Id. at 2291, 2268, 2282, 2285.

This proclamation from the high Court, together with the
pendency of this case, was a stunning defeat for
defendants, who two days later announced that The Citadel
would open its doors to women. After 153 years of
discrimination, and four years of vitriolic defensive
tactics, defendants at long last conceded defeat and
advised Ms. Mellette that she was provisionally accepted
into the Corps of Cadets. In light of the Supreme Court's
holding in VMI, as well as the lack of an alternative to
the SCIL remedial program, on August 14, 1996, this Court
ordered that The Citadel must adopt a policy requiring the
admission of women to the Corps of Cadets, as well as
develop a plan for their assimilation. See Order of August
14, 1996 at 2-3.

On August 24, 1996, four women, Petra Lovetinska, Nancy
Mace, Jeanie Mentavios, and Kim Messer, matriculated at The
Citadel as Cadets in the Class of 2000.

As specified in more detail in the accompanying affidavits,
plaintiffs file this fee application for an award of at
least the following amounts (subject to upward adjustment
as the Court in its discretion may determine):

Counsel

Shearman & Sterling
Fees...$3,392,074.50
Costs...$623,848.05
Total...$4,015,923.00

Valorie K. Vojdik
Fees...$610,875.00
Costs...$24,610.31
Total...$635,485.31

Robert R. Black
Fees...$646,530.00
Costs...$3,743.&8

Total...$650,273.78

Suzzanne E. Coe
Fees....$56.093.75
Costs...$132,632.71
Total...$58,118.88

ACLU
Fees...$325,617.05
Costs...$132,632.71
Total...$458,249.76

Ray B. McClain7*
Fees...$4,202.50
Costs...$734.54
Total...$4,937.04

Grand Total...45,822,987.77

ARGUMENT

I. As A "Prevailing Party," Plaintiff Is Entitled to
Attorneys' Fees Under 42 U.S.C. sec. 1988

A. Plaintiffs Prevailed In The Liability Phase

It is clear that plaintiffs Shannon Faulkner and Nancy
Mellette obtained the relief they sought and are prevailing
parties. The threshold issue under 42 U.S.C. sec.  1988 is
whether plaintiff is a "prevailing party. " Farrar v.
Hobby, 506 U.S. 103 (1992); Alexander v. Boyd, 929 F. Supp.
925, 930 (D.S.C. 1995). "To qualify as a 'prevailing
party,' a plaintiff need not prevail on every claim or
issue raised, but only 'on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing suit."'

Alexander, 929 F. Supp. at 930-31 (quoting Spencer v.
General Elec. Co., 706 F. Supp. 1234, 1236 (E.D. Va. 1989),
aff'd, 894 F.2d 651 (4th Cir. 1990) (quoting Henslev v.
Eckerhart, 461 U.S. 424, 433 (1983))). Furthermore, "[a]
party may prevail by virtue of a voluntary action by the
opposing party through settlement or a consent decree."
Child v. Spillane, 866 F.2d 691, 692 (4th Cir. 1989). "Only
under these circumstances can civil rights litigation
effect 'the material alteration of the legal relationship
of the parties' and thereby transform the plaintiff into a
prevailing party." Arvinger v. Mayor and City Council of
Baltimore, 31 F.3d 196, 202 (4th Cir. 1994) (quoting
Farrar, 506 U.S. at 111 (citation omitted)). "In short, a
plaintiff prevails when actual relief on the merits of his
claim materially alters the legal relationship between the
parties by modifying the defendant's behavior in a way that
directly benefits the plaintiff." Farrar, 506 U.S. at 111.

It is beyond dispute that plaintiff Shannon Faulkner
prevailed in the liability phase of this litigation. In
Faulkner, 858 F. Supp. 552 (D.S.C. 1994), this Court held
that defendants violated Ms. Faulkner's rights to equal
protection by excluding women from the Corps of Cadets.
Through this Court's ruling ordering her immediate
admission to The Citadel's Corps of Cadets, Ms. Faulkner
achieved the precise, and thus obviously "significant,"
relief she sought. The Court of Appeals for the Fourth
Circuit affirmed this finding of liability in Faulkner, 51
F.3d 440 (4th Cir. 1995), allowing Ms. Faulkner to enroll
in the Corps of Cadets.

This Court has recognized on several occasions that Ms.
Faulkner prevailed in this case: "Ms. Faulkner has obtained
everything as an individual plaintiff she could obtain in
this action. She sought equal protection by admission to
the Citadel, and she was admitted." Transcript of October
3, 1995 Hearing at 126. The Court stated in November 1995
that "it's going to be hard to argue . . . that Ms.
Faulkner was not the prevailing party. I mean, she dropped
out of The Citadel, but she did get in The Citadel. And
that was the relief, that was the ultimate relief that she
sought. So, I mean, it's going to be hard. I don't care
what the Supreme Court [in VMI] says . . . I mean I care,
but I don't think it's going to make a difference on that
issue.... Like [Ms. Vojdik] says, there is no question
about it." Transcript of November 30, 1995 Hearing at 79.
Again in 1996, when defendants moved to vacate the July 22,
1995 Order which ordered the admission of Ms. Faulkner to
the Corps of Cadets, the Court stated: "I mean, you cannot
try a case and have the other party prevail and then say,
I capitulate, that's the end of the case. It just doesn't
work that way. The case is not mooted, it continues."
Transcript of August 12, 1996 Hearing at 7.

B. Plaintiff Mellette Prevailed

After Ms. Faulkner's withdrawal, current plaintiff Ms.
Mellette intervened, eventually to prevail in the final
remedial stage of this litigation. This Court stayed the
trial on the constitutional sufficiency of the remedial
SCIL program on November 30, 1995, pending the Supreme
Court's decision in VMI II. With the VMI II Court's
resounding denunciation of Virginia's alternative program
at Mary Baldwin College, and the final judgment of this
Court, The Citadel's archaic tradition as a males-only
school actually became ancient history.8*

Striking in both its forcefulness and clarity, the VMI
decision reverberated even to defendants, who if not
finally realizing it, at least for the first time
acknowledged that defeat was imminent. The inherent
constitutional infirmities of the "almost identical
alternative program" propped up in defense of VMI dealt the
identical blow to South Carolina. General principles of
stare decisis, as well as this Court's direct ruling that
the principles of VMI would control this litigation, simply
toppled whatever support beams defendants had attempted to
construct with SCIL, rendering their mission to preserve
The Citadel as males-only a failed one. Conceding that it
had no alternative but to admit women, defendants lost the
battle when this Court issued its August 14, 1996 Order
mandating that The Citadel adopt a policy requiring the
admission of women to the Corps of Cadets on equal terms to
men, as well as develop a plan for the assimilation of
women. The Citadel thus has been compelled to admit women.

II. Plaintiffs Are Entitled to All Fees and Costs Incurred
By Plaintiffs in This Litigation

Plaintiffs Faulkner and Mellette, as prevailing parties,
are entitled to attorneys' fees under Section 1988. The
Supreme Court, relying on the purposes of civil rights laws
and considerations of equity, has held that a plaintiff
"should ordinarily recover an attorney's fee unless special
circumstances would render such an award unjust." Rum Creek
Coal Sales. Inc. v. Caperton, 31 F.3d 169, 174 (4th Cir.
1994) (citing Hensley v. Eckerhart, 461 U.S. 424, 429
(1983) (quotations omitted)). No such "special
circumstances" exist in this case that would render a fee
award to plaintiff "unjust."

After determining whether the party seeking fees qualifies
as a "prevailing party, " the Court next must inquire into
what constitutes reasonable fees and costs for plaintiffs'
attorneys. The starting point for arriving at the proper
amount of an award is the number of hours reasonably
expended, multiplied by a reasonable hourly rate. Rum
Creek, 31 F.3d at 175 (citing Hensley, 461 U.S. at 433;
Blum v. Stenson, 465 U.S. 886, 888 (1984)). This resultant
"lodestar figure" is presumptively fair, but in
"exceptional circumstances" may be adjusted upward to
account for results obtained and the quality of
representation. Alexander, 929 F. Supp. at 932 (citing
Blum, 465 U.S. at 888, 901). Each of these multipliers, as
they factor in this litigation, are analyzed in the
following sections.

A. The "Relevant Community" For Purposes of Determining
Reasonable Hourly Rates In This Case Should Be Each
Counsel's Home Community

The hourly rate on which an attorney's fee is based must be
reasonable. Rum Creek, 31 F.3d at 175 (citing Henslev, 461
U.S. at 433). This standard is met by compensating
attorneys at the "prevailing market rates in the relevant
community." Id. (citing Blum, 465 U.S. at 895). The
fact-intensive determination of prevailing market rates is
best guided by what attorneys earn from paying clients for
similar services in similar circumstances. Id. In cases
involving local attorneys, the prevailing market rate is
the community in which the court where the action is
prosecuted sits. Id.; see also. e.g, National Wildlife
Fed'n v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988) ("The
community in which the court sits is the appropriate
starting point for selecting the proper rate."); United
States v. Fourteen Various Firearms, 899 F. Supp. 249, 252
(E.D. Va. 1995) ( "Typically, the relevant market for
determining the prevailing rate is the community in which
the action is prosecuted."). These rules are applicable to
the fee applications submitted by plaintiffs' attorneys
Robert R. Black, Suzanne E. Coe and Ray P. McClain.

However, "[i]n circumstances where it is reasonable to
retain attorneys from other communities . . . the rates in
those communities may also be considered." Rum Creek, 31 F.
3d at 175; Fourteen Various Firearms, 899 F. Supp. at 252.
This rule is applicable to the fee applications of Shearman
& Sterling, Valorie K. Vojdik and the ACLU.

In this litigation, it was reasonable and indeed necessary
for plaintiffs to hire non-local as well as local counsel.
In this Circuit, circumstances under which it is reasonable
to retain attorneys from other communities, and thus
consider non-local rates, include "when 'the complexity and
specialized nature of a case may mean that no attorney,
with the required skills, is available locally,' and the
party choosing the attorney from elsewhere acted reasonably
in making the choice." Rum Creek, 31 F. 3d at 179 (quoting
Hanson, 859 F.2d at 317).

Numerous other courts have established a number of criteria
also bearing on the issue of when to award fees at
non-local rates under Section 1988. These include whether:

(1) the case required a specialized expertise not found in
the local market, see. e.g., Chrapliwy v. Uniroyal. Inc.,
670 F.2d 760 (7th Cir. 1982), cert. denied, 461 U.S. 956
(1983) (non-local rates should be awarded unless defendant
shows that a local attorney was available with the
requisite skills to handle the complex and specialized
nature of the case); Maceira v. Pagan, 698 F.2d 38, 40 (1st
Cir. 1983) (affirming award of non-local rates when there
was"no evidence" that attorneys of similar expertise and
specialization were available in the locality where case
was tried); Polk v. N.Y.S. Dept. of Corr. Servs., 722 F.2d
23, 25 (2d Cir. 1983) (acknowledging that out-of-town rates
can be awarded "upon a showing that the special expertise
of counsel from a distant district is required. ");

(2) the case required or could have required significant
financial or human resources, Jeffers v Clinton, 776 F.
Supp. 465, 469 (E.D. Ark. 1991), vacated on other grounds,
503 U.S. 930 (1992), judgment amended in part, 835 F. Supp.
1101 (E.D. Ark. 1993) ("This mammoth case could not have
been undertaken without the Legal Defense Fund's lawyers
and resources.");

(3) the case raised unpopular issues, Dickerson v.
Pritchard, 551 F. Supp. 306, 311 (W.D. Ark. 1982) (finding
it "entirely reasonable that plaintiff may have experienced
some inherent difficulty in finding willing and experienced
counsel in his local area who would have skillfully and
ardently 'gambled' on the outcome of this unpopular
litigation for a lesser amount"); and

(4) it was reasonable for the plaintiff to look to
out-of-town counsel because local attorneys have not filed,
and have shown no interest in filing, such litigation,
Orshan v. Macchiarola, 629 F. Supp. 1014, 1021 (E.D.N.Y.
1986) (noting one obstacle for plaintiff in finding local
counsel was that "the case was perceived as a loser).

1. The Complexity and Local Undesirablilitv of the Issues
Raised In This Litigation Justified the Hiring of Non-Local
Counsel

The Fourth Circuit's decision to award out-of-town attorney
fees in Rum Creek Coal Sales. Inc. v. Caperton, 31 F.3d 169
(4th Cir. 1994), proves particularly instructive for this
litigation. The Rum Creek litigation arose from a 1989 coal
strike in West Virginia which turned violent, leading to
property damage and personal injuries contended to be worth
millions of dollars. Id. at 172-73. Plaintiff filed suit,
alleging that two West Virginia statutes requiring police
to remain neutral during labor disputes, and limiting the
enforcement of trespass laws, were unconstitutional. Id. at
173. The Fourth Circuit agreed, granting plaintiff's motion
for declaratory and injunctive relief. Id. As plaintiff
"fully prevailed," the Fourth Circuit determined that under
42 U.S.C. sec.  1988, it "therefore [should] be 'fully
compensated' for its legal expenses." Id. at 175.

As in the present case, plaintiff had hired an out-of-town
law firm; although the litigation took place in Charleston,
West Virginia, Rum Creek Coal retained the Richmond,
Virginia law firm of Hunton & Williams. Id. at 178. The
Fourth Circuit reversed the district court's downward
adjustments to Hunton & Williams' hourly rates, determining
that plaintiff should have been awarded the normal,
standard rates charged by that firm in Richmond, Virginia.
Id. at 178-79. Noting that the litigated issues included
questions of preemption and constitutional law, the Rum
Creek court concluded that the complexity of the case
justified use of a non-local firm. Id. at 179. Moreover,
while Hunton & Williams was plaintiff's "regular counsel,"
the Fourth Circuit found that the firm's attorneys were
"concededly well-experienced in the type of matters
involved." Id. Additionally, and as with the present
matter, the Rum Creek case also presented issues local
counsel would consider unpopular:

Rum Creek Coal makes a persuasive argument that it was
necessary to use outside counsel since taking on the
governor and the police of the state where the trial court
is located, in the middle of a well-publicized coal miners'
strike, could be a politically sensitive activity for a
local West Virginia firm. Id

The parallels to this litigation are striking. First, both
Rum Creek and this matter involved complicated questions of
constitutional law. Here the issue was the Equal Protection
Clause of the Fourteenth Amendment, and whether The
Citadel's exclusion of women ran afoul of this protection.
Counsel had to prepare for two phases of litigation, as
both a liability determination and a finding on the
adequacy of the proposed remedy were required. With regard
to the remedy, an excruciatingly detailed analysis of both
the Mary Baldwin and SCIL programs had to be undertaken in
order to assess "substantive comparability" and thus their
constitutionality under then-current Fourth Circuit
standards. Secondly, and perhaps more significant, both
cases raised issues viewed as highly contentious by local
counsel. While in Rum Creek it was challenging the West
Virginia governor and state police, this litigation
necessarily entailed taking on the General Assembly of the
State of South Carolina and one of the State's oldest, and
certainly most revered institutions.9* By association, the
battle lines also were drawn against the extensive and
powerful alumni network supporting The Citadel and a
majority of the Charleston and South Carolina population.

Dismantling such a longstanding and exalted tradition was
a daunting mission; attempting to overhaul the males-only
admissions policy was seen as, for many in South Carolina,
an effort to destroy a beloved institution. Public
sentiment opposing the lawsuit was loud, bitter, and
overwhelming. No local law firm with adequate resources was
willing to fight such a tide, nor risk invoking the wrath
of the Citadel alumni network, composed of men in powerful
government and professional positions throughout the State.
See Accompanying Affidavits of Robert R. Black, Suzanne E.
Coe, Patricia M. Johnson, Comings B. Gibbs, Jr., Francis X.
McCann, W. Gaston Fairey, and Andrew K. Epting. In short,
taking on this case entailed alienating numerous
politicians, businessmen and lawyers across South Carolina,
naturally very much an undesirable consequence for counsel
who must continue to practice in that State on a full-time
basis.

2. This Litigation Required the Services and Financial and
Legal Resources of a Large. Out-of-Town Law Firm and
Experienced Counsel

The importance and complexity of the constitutional
questions raised in this litigation required extensive
research and discovery. The capacity both to amass the
legal talent to conduct the required research and drafting,
as well as the access to research sources and materials are
attributes unique to a large law firm and a national law
school. As the Fourth Circuit determined in Alexander v.
Tenenbaum, 89 F. 3d 827 (4th Cir. 1996), "plaintiffs raised
a number of complex legal issues, which the district court
found, they probably could not have pursued without the
assistance of a large law firm." Id. at 827.

Logistical demands also did not go unnoticed by the
Tenenbaum court, who observed that, "[s]ixty-six witnesses,
including seventeen expert witnesses, testified at trial
and thousands of pages of exhibits were introduced." Id.
This case not only mandated, but even tested the
capabilities of plaintiffs' New York counsel, as the
massive discovery program in particular proved both
exceedingly condensed and combative. For example, the
abbreviated discovery period leading up to the December
1995 remedy trial date generated a quite rigorous
deposition schedule. As discussed above, in October and
November alone, plaintiffs' counsel either took or defended
over 65 depositions, in 13 different cities. See Weisburg
Declaration Exhibit D. Simultaneously, attorneys were
called to review thousands of pages of documents, prepare
expert witnesses for trial, engage in extensive motion
practice over discovery abuses by defendants and prepare
extensive proposed findings of fact and conclusions of law.
Only in a large firm could so many highly-qualified
individuals be dispatched to so many locations to
accomplish so many tasks in so short a time.

Finally, this type of litigation required a firm with
substantial financial resources to support pro bono
representation of the South Carolinian plaintiffs who could
not afford to finance a multi-million dollar constitutional
litigation. Without pro bono representation by a large law
firm such as Shearman & Sterling, the litigation could
never have been pursued. Disbursements by Shearman &
Sterling and the ACLU totalled more than $750,000, all of
which was advanced by these institutions over the course of
this case. Plaintiffs are not aware of any firm in South
Carolina financially willing or able to have advanced the
legal fees and disbursements required for this case. See
Accompanying Affidavits of Robert R. Black, Suzanne E. Coe,
Patricia M. Johnson, Comings B. Gibbs, Jr., Francis X.
McCann, and W. Gaston Fairey.

B. The Number of Hours and Hourly Rates Expended in this
Litigation Were Reasonable and Indeed Necessary In Light of
Defendants' Unrelenting Campaign of Scorched Earth Tactics

The number of hours for which a plaintiff seeks fees must
be reasonable. Rum Creek, 31 F. 3d at 174. "When plaintiff
prevails on only some of the claims made, the number of
hours may be adjusted downward; but where full relief is
obtained, the plaintiff's attorney should receive 'a fully
compensatory fee,' and in cases of exceptional success,
even an enhancement. " Id. (quoting Hensley, 461 U.S. at
435). The number of hours obviously also must be adjusted
to eliminate duplicative or unrelated hours. Id.
Ultimately, the number of hours must be reasonable and must
represent the product of "billing judgment." Id. (quoting
Hensley, 461 U.S. at 437).

In determining the reasonableness of the number of hours,
the Fourth Circuit looks to the factors established in
Johnson v. Georgia Highway Express. Inc., 488 F.2d 714 (5th
Cir. 1974), and endorsed by the Supreme Court in Blum v.
Stenson, 465 U.S. 886 (1984). See Rum Creek, 31 F.3d at 175
(citing Daly v. Hill, 790 F.2d 1071, 1077 (4th Cir. 1986)).
The Fourth Circuit also has applied the Johnson analysis to
the reasonable rate analysis as well. See Daly, 790 F.2d at
1080. The twelve Johnson factors, which were looked upon
favorably by Congress in enacting the statute, are: (1) the
time and labor required; (2) the novelty and difficulty of
the questions; (3) the level of skill required to perform
the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case;
(5) the customary fee; (6) whether the fee is fixed or
contingent; (7) the time limitations imposed by the client
or the circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the "undesirability" of the
case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar
cases. See Rum Creek, 31 F.3d at 175 (citations omitted).

The first three factors have been discussed, supra, with
regard to appropriate hourly rates, but it bears restating
that the complexity of the constitutional issues in this
case required extensive research and analysis. The
importance and novelty of the questions raised is obvious,
as these were the first plaintiffs to challenge a
153-year-old State tradition. In inaugurating the legal
issues, intricate factual investigation and analyses also
had to be performed; both the liability and anticipated
remedy trials demanded an exceedingly detailed presentation
of The Citadel's unique benefits. The disputed factual
issues on various topics required plaintiffs to obtain the
services, expertise and consultation of 15 expert witnesses
in such areas as higher education generally, single sex
education, military education, women's physical
capabilities, sociology and psychology, university alumni
associations, higher education in South Carolina, the
operation of the South Carolina legislature, and not-for-
profit accounting.

The first factor, time and labor required, must be
highlighted further in light of defendants' incessant
aggression. The Fourth Circuit's observation in Rum Creek
might just as well describe these defendants: "the
litigation was vigorously contested by the State of West
Virginia at every step...." Rum Creek, 31 F.3d at 180. The
Citadel and the State of South Carolina waged an
unrelenting war, choosing to initiate and fight fiercely
all skirmishes rather than choose its battles. As a result,
instead of being permitted to focus on the core issues,
plaintiffs' attorneys were forced to expend hours
responding to petty, unfounded, and ultimately unsuccessful
motions. One fitting example is the recusal motion
defendants filed as a last-minute attempt to avoid a trial
on the adequacy of the SCIL remedial program; no basis
existed in either law or fact for such a motion. Other
illustrations of defendants' truculent conduct which also
made an impression on this Court were their "refusal to
permit questions to be asked by the attorneys and experts
of the plaintiffs upon visits to the Converse campus and
the privilege-work product objections made during the
depositions of Sandra C. Thomas and Anne Marie Whittemore."
Order of July 24, 1995 at 12 n. 4. Moreover, defendants'
tactics included more passive resistance as well, such as
the repeated failure to timely file a remedial plan as they
had been ordered to do by this Court, or the failure to
respond to legitimate discovery requests from plaintiffs.
As this Court observed:

The problem is, the defendants have not done what they said
they would. Instead of speeding the discovery process up,
they have slowed it down. Instead of being open and fair as
they promised, it has been business as usual for the
defendants. They have failed to respond properly to
discovery requests in violation of the rules of this court,
and they have made legitimate objections to discovery that
seem to serve little or no useful purpose for them but
delay the completion of discovery significantly.

Id. at 11-12. Continually forcing "the plaintiffs to dig
for every piece of information they get," id. at 12,
defendants multiplied the number of hours plaintiffs'
attorneys spent on this matter.

As was often recognized by this Court, defendants'
practices and tactics included: filing legally and
factually unfounded, if not frivolous, motions; filing
groundless motions for mandamus and recusal; refusing to
cooperate and respond to legitimate discovery requests
causing time-consuming motions to compel; making
inappropriate objections in depositions; refusing to comply
with Court orders (for example, with respect to the
submission of the remedial plan); filing motions at, and
sometimes past, the mast minute" after incurring hundreds
of thousands of dollars in legal fees made needless by the
motions; and continuing to defend a case at a cost of
millions to the taxpayers without "a single case to offer
in support of their position." This was "business as usual
for the defendants" and patterns of behavior "repeated time
after time," "on every point right down the line." See
Order entered July 24, 1995; Transcript of September 23,
1994 Hearing at 33; Faulkner v. Jones, 51 F.3d 440, 447
(4th Cir. 1995); Faulkner v. Jones, 858 F. Supp. 552, 567
(D.S.C. 1994).

Finally, this Court has recognized the extraordinary
efforts exerted by private plaintiffs and their counsel
"where the case was initiated by an individual plaintiff
and actually driven by that plaintiff and her counsel" and
private plaintiffs' counsel has "been the force that has
moved this case . . . and engineered all of the discovery,
everything that's taken place in this case." Transcript of
October 3, 1995 Hearing at 46 and 103. This Court
recognized that the Justice Department was not the lead
plaintiff in the case. The Court held that the Justice
Department had interests which were different from the
interests of the individual plaintiff, and the Department
could not and did not adequately represent her interests.
Id. at 37, 116-122, 132-33. When this Court permitted Nancy
Mellette to intervene, it recognized that the private
plaintiffs had led the lawsuit and conditioned the
intervention on Shearman & Sterling and Valorie Vojdik's
continuing participation. Id. at 105-106.

The fourth factor, the preclusion of employment by the
attorney due to acceptance of the case, also was impacted
by both the magnitude of the case and defendants'
pugnacious stance on virtually every single issue. The
hours required of plaintiffs' attorneys to complete the
expected workload of a case this large and complex were
expanded exponentially by having to respond to numerous
unfounded motions or to file motions to force defendants to
turn over discovery they had no business withholding. The
more hours spent on The Citadel litigation, then, the fewer
hours there were to spend on other Firm matters. The case
virtually eliminated the ability of Robert R. Black and
Valorie K. Vojdik to take on any other cases. See
Accompanying Affidavit of Robert R. Black and Affirmation
of Valorie K. Vojdik.

The fifth and sixth factors considered in the usual
commercial litigation case, the customary fee, and whether
the fee is fixed or contingent, have limited relevance in
this pro bono case. Moreover, "under well-established law,"
the fact that Shearman & Sterling entered this case on a
pro bono basis has no bearing on whether it may recover
fees. See Alexander, 929 F. Supp. at 935 (determining that
plaintiff's counsel was entitled to be compensated for
reasonable attorneys' fees under sec.  1988 even though it
participated in the case on a pro bono basis). As the
district court in Alexander observed, "an award of
attorney's fees to a successful plaintiff is not contingent
upon an obligation to pay an attorney and is not affected
by the fact that no fee was charged." Alexander, 929 F.
Supp. at 933 (quoting Martin v. Heckler, 773 F.2d 1145,
1152 (llth Cir. 1985). The hourly fees requested by
Shearman & Sterling in this matter are the customary rates
for a New York firm of Shearman & Sterling's size and
capability and are the customary rates charged to paying
clients of Shearman & Sterling for the individual lawyers
and legal assistants involved. See Weisburg Declaration 1
23. The fees requested by Robert R. Black, Suzanne E. Coe,
Valorie K. Vojdik, and the ACLU likewise are reasonable and
customary. See Accompanying Affidavits.

The seventh factor, the time limitations imposed by the
client or the circumstances, again calls into consideration
the circumstances imposed by defendants' litigation style.
Defendants refused to file a remedial plan until after the
Fourth Circuit ruled, requiring expedited discovery. Such
delay of discovery leads to expedited schedules, senseless
motion practice and extra hours. Defendants' filing of
emergency motions to the Court of Appeals and the Supreme
Court, such as the emergency application for a stay of the
injunction to the United States Supreme Court, necessarily
also intensifies the effort required in the case and calls
for more costly overtime work by legal assistants and
support staff.

The eighth factor, the amount involved and the results
obtained, is easily applied in this case. Requesting only
declaratory and injunctive relief, plaintiffs did not seek
damages against defendants. Rather, they sought the
vindication of their rights to equal protection guaranteed
by the Constitution. The goal was the admission of women to
The Citadel's Corps of Cadets, and with Shannon Faulkner's
admission in August 1995, this was accomplished. The
subsequent entry of four women one year later demonstrates
further how completely plaintiffs Faulkner and Mellette
prevailed, as after 153 years, The Citadel no longer may
exclude women from its ranks. Again, plaintiffs' success
was exceptional. Blum, 465 U.S. 886; Hensley, 461 U.S. 424.

The ninth factor, the experience, reputation, and ability
of the attorneys, is a matter which this Court is in the
best position to evaluate. Four years of litigation, with
a ten-day trial, months of discovery and numerous telephone
and courtroom hearings, provides an extensive opportunity
for this Court to evaluate the representation by
plaintiffs' attorneys. The fact that plaintiffs' counsel
was able to try a case of this magnitude in only ten days,
and do so thoroughly and efficiently, should weigh in this
analysis. The expedited discovery that plaintiffs' counsel
was able to undertake and the numerous emergency motions
and appeals in which counsel prevailed, also speaks to the
level of skill and experience involved. And, perhaps most
significantly, the ultimate, complete and tenaciously
opposed legal victory that emerged from this lawsuit also
must be considered.

The tenth factor, the "undesirability" of the case, has
been detailed above. The depth of the animosity against
plaintiffs, especially Shannon Faulkner, was inescapable to
anyone following the case. The public backlash from across
the State, was intense, hurtful, and sweeping. Individual
counsel were publicly criticized and condemned in the local
press and on the streets of Charleston. See Accompanying
Affidavit of Robert R. Black and Affirmation of Valorie K.
Vojdik. As too many risks to a South Carolina firm's
practice existed, attorneys from another region of the
country was required. See Accompanying Affidavits of Robert
R. Black, Suzanne E. Coe, Patricia M. Johnson, Comings B.
Gibbs, Jr., Francis X. McCann and W. Gaston Fairey.

The eleventh factor, the nature and length of the
professional relationship with the client, again with
primary relevance in commercial litigation, is applicable
in the sense that this endeavor spanned four years.
Challenging a beloved state institution against a mighty
force of opponents required high levels of strength and
endurance from both plaintiffs and their counsel. In
particular, the nasty tenor of some of the opposition
necessitated strong counseling skills from plaintiffs'
attorneys. The road to plaintiffs' victory was a long one,
and one that both client and counsel travelled closely
together.

The twelfth factor, awards in similar cases, has limited
application here. Many constitutional challenges to
educational institutions have been brought by the
Department of Justice, which is not eligible for fee awards
under 42 U.S.C. sec.  1988. Quite simply, this was the
first suit of its kind in this Circuit, other than the VMI
case.

Finally, the Fourth Circuit in Rum Creek held that the
Court may not deny or reduce a fee award under 42 U.S.C.
sec.  1988 on the basis of the fact that the taxpayers
would be required ultimately to pay the fees. Rum Creek, 31
F.2d at 180. This is an improper factor for consideration,
and its consideration along with the failure to take into
account other applicable Johnson factors in Rum Creek
resulted in reversal of a 30% across-the-board reduction of
the fee request by the District Court. Id.

Considered together, the applicable Johnson factors point
only to a finding that the fees plaintiffs seek in this
matter are reasonable. Moreover, plaintiffs' attorneys
avoided duplicative work in delegating various tasks to
those individuals who could most efficiently execute them.
Local counsel, along with Shearman & Sterling and Valorie
Vojdik after her departure from Shearman & Sterling, worked
together with a great degree of efficiency and
effectiveness. Plaintiffs' attorneys exercised "billing
judgment" in discounting a significant amount of hours and
costs from the total spent during this litigation. See
Weisburg Declaration para.24. The amount plaintiffs now
seek reflects this discounted amount.

Not only were defendants well aware of the law and their
risk of liability for attorney fees and costs when they
made the decisions to employ five law firms and the
Attorney General's staff, to employ the legal tactics used
in this litigation and to mount the massive legal
resistance in this case, this Court made defendants aware
and alerted them to the likelihood of the award. For
example, in November of 1995, the Court discussed the
extraordinary fees resulting from defendants' successful
stay of the remedy trial after hundreds of thousands of
dollars of fees and costs were needlessly amassed in
remedial discovery. The Court stated:

But -- one other thing that, Mr. Cooke, that you may think
about in the matter of fees. . . You and your colleagues
probably have a very accurate or pretty accurate idea of
what the plaintiffs' fee applications are going to be....
You probably got a good idea what Shearman & Sterling's
hourly rate is. And you know how many hours you got.... And
I don't believe that if I award fees that you are going to
be able to pay it out of petty cash.... We're talking about..
in the seven figures.... Now where is that money coming
from? ... If it's going to require an act of the
legislature, then it might be wise to go ahead and do it
now. . . rather than waiting until June and not being able
to get the money out of the legislature and having to ...
go get it somewhere else. . . when the order comes down,
generally speaking, that order is subject to being paid.
And, you know, usually you don't give terms on things like
that. . . I have just never said . . . you pay a dollar
down and dollar a month.... whoever pays it pays it within
two weeks, three weeks, 30 days or whatever. Transcript of
November 5, 1995 Hearing at 81-83.

CONCLUSION In this matter, plaintiffs seek reasonable
compensation and costs for their counsel and request this
Court to set the compensation at a reasonable lodestar
amount based upon the number of hours expended by counsel
in this lawsuit and the normal, customary rates paid to
these counsel based upon their experience, reputations and
abilities. Mr. Weisburg, Ms. Vojdik, Mr. Black, Ms. Coe,
the ACLU, and Mr. McClain have submitted Affidavits which
detail the hours worked, the normal rates charged for
similar type work, and the expenses incurred.

Plaintiffs seek reasonable compensation for those hours
actually expended in preparation and litigation of this
case. Based upon the Johnson factors, the plaintiffs'
overall success, and the importance of the issued involved
in this case, plaintiffs would request that full
compensation be made to plaintiffs' counsel for their
efforts.

Dated: New York, New York  November 1, 1996

/s/ VALORIE K. VOJDIK
New York University
School of Law
137 MacDougal Street
New York, New York 10012

ROBERT R. BLACK
23 Broad Street
P.O. Box 643
Charleston, SC 29402

SUZANNE E. COE
ARNOLD & COE
P.O. Box 431
Greenville, SC 29602

/s/ HENRY WEISBURG
SHEARMAN & STERLING
153 East 53rd Street
New York, New York 10022

Thomas F. Swift

Susan R. Schwaiger

Mary K. Warren

Jennifer M. Dehmel


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
SOUTH CAROLINA

NANCY ELISABETH MELLETTE, individually and
on behalf of all others similarly situated,

Plaintiff.

and

THE UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

-against

JAMES E. JONES, JR., et al.,

Defendants,

and

THE STATE OF SOUTH CAROLINA, et al.,

Additional Defendants.

No. 2:93-0488-2

CERTIFICATE OF SERVICE

I, Susan R. Schwaiger, hereby certify that on November 1,
1996, I caused a true and exact copy of the annexed Notice
of Motion for Attorney Fees and Costs Under 42 U.S.C. sec.
1988 and the Memorandum of Law in Support of Plaintiff's
Motion for Attorney Fees and Costs Under 42 U.S.C. sec.
1988; and the following declarations, affidavits or
affirmations and exhibits: Declaration of Henry Weisburg
dated October 31, 1996; Affirmation of Valorie K. Vojdik
dated October 31, 1996; Affidavit of Robert R. Black dated
November 1, 1996; Affidavit of Suzanne E. Coe dated October
30, 1996; Affirmation of Leon Friedman in Support of
Plaintiff's Motion for Attorneys' Fees and Costs dated
October 28, 1996; Declaration of Isabelle Katz Pinzler in
Support of Plaintiff's Motion for Attorneys' Fees and Costs
dated October 26, 1996; Affirmation of Sara L. Mandelbaum
in Support of Plaintiff's Motion for Attorneys' Fees and
Costs dated October 28, 1996; Affidavit of Patricia M.
Johnson dated September 18, 1996; Affidavit of Coming B.
Gibbs, Jr. dated September 18, 1996; Affidavit of Francis
X. McCann dated September 24, 1996; Declaration of Ray P.
McClain dated October 29, 1996; Affidavit of W. Gaston
Fairey dated October 28, 1996 and Affidavit of Andrew K.
Epting dated October 29, 1996 to be served by express mail
upon the following counsel of record:.

Robert H. Hood, Esq.
HOOD LAW FIRM
172 Meeting Street
Charleston, South Carolina 29401
Attorneys for The Citadel Defendants

M. Dawes Cooke, Jr., Esq.
BARNWELL, WHALEY, PATTERSON
& HELMS
134 Meeting Street, Suite 300
Charleston, South Carolina 29401
Attorneys for The Citadel Defendants


Michael Maurer, Esq.
United States Department of Justice
Civil Rights Division
10th and Pennsylvania Ave., N.W.
Room 7724
Washington, D.C. 20530
Attorneys for Plaintiff-Intervenor
United States of America

Charles Molony Condon, Esq.
Attorney General for South Carolina
Rembert C. Dennis Office Building
1000 Assembly Street
Post Office Box 11549
Columbia, SC 29211
Attorneys for the State of South Carolina

Dated: New York, New York
November 1, 1996

/s/ Susan R. Schwaiger

Endnotes

1* The Civil Rights Attorney's Fees Award Act of 1976, as
amended, 42 U.S.C. sec.  1988(b), provides, in relevant
part:

In any action or proceeding to enforce a provision of
sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this
title, . . . the court, in its discretion, may allow the
prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs.

42 U.S.C. sec.  1988(b)(Supp. IV 1992).

2*Faulkner v. Jones. et al., 858 F. Supp. 552 (D.S.C.
1994).

3*Faulkner v. Jones. et al., 51 F.3d 440 (4th Cir. 1995).

4* The current litigation actually commenced over four
years ago in June 1992 when three honorably discharged
veterans from the United States military services sued The
Citadel, seeking admission to Day Classes at The Citadel
under the Veterans Day Program. Shearman & Sterling, Robert
Black, and the American Civil Liberties Union ("ACLU")
represented plaintiffs Patricia Johnson, Elizabeth Lacey,
and Angela Chapman in this matter, Johnson v. Jones, Civil
Action No. 2:92-1674-2. During approximately eight months
and before Shannon Faulkner's suit was consolidated with
the Johnson suit, plaintiffs' counsel took extensive
discovery of The Citadel and its related faculty members,
administrators and experts. 27 depositions were taken with
dozens more noticed during this period, and major document
productions were conducted at The Citadel, the South
Carolina Commission on Higher Education and the United
States Naval Academy at Annapolis. Although the Johnson
case was dismissed, the discovery taken in that case was an
essential foundation for both sides in the present
litigation, and in an oral order issued on March 18, 1993,
this Court granted the Motion to Consolidate Faulkner with
Johnson for purposes of discovery. Therefore, the fees and
costs incurred in the Johnson discovery phase should be
counted as part of the fees and costs of this case.

5* Defendants were on notice since 1990 that their
discriminatory policy would likely be subject to judicial
review, when they received an inquiry from the Department
of Justice concerning their admissions policy. The Citadel
promptly sought legal counsel and followed the VMI case
closely. Tr. Vol. XIII, 11:3 - 13:8. Moreover, as Chief
Justice Rehnquist observed in his concurrence in United
States v. Virginia, the Supreme Court's decision fourteen
years ago in Mississippi Univ. for Women v. Hogan, 458 U.S.
718 (1982), "did place Virginia on notice that VMI's
men-only admissions policy was open to serious question."
United States v. Virginia, 116 S.Ct 2264, 2289 (1996)
(Rehnquist, C.J., concurring) ("VMI Sup. Ct."). Identical
notice also may be attributed to The Citadel and the State
of South Carolina.

6* In contrast, the district court in United States v.
Virginia, 852 F. Supp. 471 (W.D. Va. 1994), was able to
allow four months for discovery, because the VMI defendants
submitted their remedial plan more than one year before the
plan had to be implemented. Order of July 24, 1995 at 4 n.
1.

7* Ray P. McClain was retained to represent plaintiffs'
attorney Robert R. Black when defendants named Mr. Black as
a potential trial witness in this case. This is yet another
example of defendants' litigation tactics. See Affidavit of
Ray P. McClain dated October 29, 1996 at Exhibit 8.

8* Plaintiffs clearly experienced "exceptional success."
Blum v. Stenson, 465 U.S. 886 (1984); Henslev v. Eckerhart,
461 U.S. 424 (1983).

9* Indeed, two former Governors of the State of South
Carolina, John C. West and James B. Edwards, testified at
trial for defendants.