The opinion of the court was delivered by: Goettel, District Judge.
Our federal court system is being brought into ridicule and our
Constitution is being debased by persons who proclaim themselves to be
its strongest supporters: civil rights advocates and attorneys
purportedly working in the public interest. By attempting to elevate mere
personal desires into constitutional rights and claiming denial of their
civil rights whenever their desires are not realized, these persons are
demeaning the essential rights and procedures that protect us all.
Justin Dangler, a third year student at Yorktown High School, and his
parents wanted him admitted to the High School National Honor Society,
believing that this accolade would promote his acceptance at prestigious
colleges. To become a member of the National Honor Society, a high school
student must have a grade average above a certain level and qualify in
three other categories: leadership, service, and character. In addition,
the Yorktown chapter stresses the qualities of honesty and exemplary
character. Selections to the National Honor Society are made by a Faculty
Admission Committee upon recommendations by teachers in the high school
familiar with those students who have academic eligibility. Justin
Dangler met the academic standards. However, of all of the third year
students who so did, he received the poorest ratings from the faculty who
knew him. Two teachers who knew him well spoke against his nomination at
the Committee meeting. The Faculty Admission Committee, some of whom also
knew the applicant personally, unanimously decided that he had not met
all the criteria for membership. (One or two other students were also
rejected.) A letter was written informing Justin of his rejection, but
advising that he could apply again the following semester and urging him
to "strive to attain a high quality of character, leadership, and
The Dangler family was outraged by this rejection. They demanded an
explanation and the intervention of school officials in this decision.
They also disputed various aspects of Justin's high school record. The
Danglers succeeded in having the high school principal conduct an
investigation of the selection process but, when he declined to intervene
and pleas to other school officials were unsuccessful, commenced this
suit. (The facts leading up to the commencement of suit are set forth in
more detail in an earlier decision. See Dangler v. Yorktown Cent.
Schools, 771 F. Supp. 625 (S.D.N.Y. 1991)).
The plaintiff in the action was Lisa Dangler, Justin's mother, who sued
on his behalf, alleging three causes of action under 42 U.S.C. § 1983.
The first claim was that Justin was deprived of property without due
process of law. That was clearly a frivolous claim since there exists no
property right giving rise to a constitutional claim to membership in the
National Honor Society.
Federal courts have so previously held. As we noted in our earlier
opinion, 771 F. Supp. 625, at 628:
Justin is not the first student to litigate this issue
and unanimously, courts have concluded that membership
in the National Honor Society does not give rise to a
property interest which entitled one to due process of
That claim was dismissed prior to trial.
Two other claims were alleged, predicated on the first amendment.
First, plaintiff alleged that the refusal of the school authorities to
select Justin Dangler for membership in the honor society was done in
retaliation for his father's actions with respect to the school on
numerous matters concerning both his children and the operation of the
school, in general. Second, plaintiff claimed that the school authorities
retaliated against Justin for publishing an article indicating the
existence of racial prejudice among students at the high school. These
allegations, if supported by evidence, were colorable constitutional
claims. However, the evidence presented at trial showed the claims to be
To begin, the article written by Justin Dangler, which was not as
adverse to the student body as claimed by him and which was published
with school approval, did not come out until after the decision to deny
his admission to the honor society had been made. With respect to his
father's activities, it was established at trial that Mr. Dangler had
filed numerous complaints with the school, civil rights agencies and the
courts concerning Yorktown High School.*fn1 These activities clearly did
not endear the family to the administration at Yorktown High School.
However, there was a total absence of proof that any of this had impact
on the recommendations of the teachers or the decision of the Faculty
At the conclusion of the evidence, the court dismissed the case as to
the Superintendent of Schools (who took no positive action with respect
to the application for membership) and reserved decision as to the other
two defendants, the School District, and the high school principal,
Michael Frischman. The jury then returned a verdict in favor of those
All defendants now seek an award of reasonable attorney's fees and
costs. Section 1988 of Title 42 authorizes a district court to award
reasonable attorney's fees to the prevailing party in a civil rights
litigation such as this. The Supreme Court has put a gloss on this,
however, with the result that plaintiff is awarded attorney's fees even
if he or she prevails on only part of the case and even though a small
benefit is derived while a prevailing defendant may obtain attorney's
fees only "upon a finding that the plaintiff's action was frivolous,
unreasonable or without foundation, even though the action was not
brought in subjective bad faith." Christiansburg Garment Co. v. Equal
Employment Opportunity Commission, 434 U.S. 412, 422, 98 S.Ct. 694, 700,
54 L.Ed.2d 648 (1978) (Title VII), accord Hughes v. Rowe, 449 U.S. 5,
14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (§ 1988). In this
circuit, defendant's attorney's fees have been awarded where the
plaintiff's civil rights claims are groundless and unreasonable. See
Davidson v. Keenan, 740 F.2d 129 (2d Cir. 1984); Harbulak v. County of
Suffolk, 654 F.2d 194 (2d Cir. 1981). Other circuits make similar
awards. See, e.g., Bernstein v. Menard, 728 F.2d 252 (4th Cir. 1984)
(awarding fees in a § 1983 action against a principal and the school
district where the action was found to be frivolous and vexatious).
Plaintiff's counsel further argues that because the court did not grant
summary judgment to the defendants (no motion was made), or direct a
verdict in their favor, the case must have had sufficient merit to avoid
deeming the action frivolous. Summary judgment is a disfavored remedy in
this Circuit so long as there are disputed facts.*fn2 Directed verdicts
are also disfavored because they require a retrial if improvidently
granted.*fn3 Nothing in this court's rulings throughout the trial in any
way indicated that this court believed the factual allegations or claims
of the plaintiff. On the plaintiff's motion for a preliminary injunction
we noted that the record "strongly suggests that no improper motives"
were involved, but since questions of motive cannot be decided on motion
because credibility is an issue of fact, a "specter of a factual
question" had been raised. Dangler, 771 F. Supp. at 631.
To underscore the lack of merit in plaintiff's case, we note that had
the jury returned a verdict in the plaintiff's favor, this court would
have set it aside. The evidence overwhelmingly established that the
Faculty Selection Committee evaluated Justin Dangler's application on its
merits and without any consideration of an article which had not been
published or read by them or the litigious activities of Justin Dangler's
father. Indeed, the evidence at trial brought out substantial adverse
information concerning Justin Dangler which was not known to the Faculty
Selection Committee and which, had it been known, would have even ...