United States v. Jefferson County Board of Education Opinion
Public Court Documents
March 29, 1967

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Brief Collection, LDF Court Filings. United States v. Jefferson County Board of Education Opinion, 1967. a17a0f82-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8b47b583-55d6-428b-95b9-96e9975b9a24/united-states-v-jefferson-county-board-of-education-opinion. Accessed June 17, 2025.
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IN THE United States Court of Appeals FOR THE FIFTH dRCUTT N o . 2 3 3 4 5 UNITED STATES OF AIVIEKICA and LINDA STOUT, by her father and next friend, BLEVIN STOUT, Appellants, versus JEFFERSON COUNTY BOARD OF EDUCATION, ET AL, Appellees. N o . 2 3 3 3 1 UNITED STATES OF AMERICA, Appellant, versus THE BO^ABD OF EDUCATION OF THE CITY OF FAIRFIELD, ET AL, Appellees. N o . 2 3 3 3 5 UNITED STATES OF AJWERICA, Appellant, versus THE BOARD OF EDUCATION OF THE CITY OF BESSEMER, ET AL., Appellees. Appeals from the United States District Court for the Northern District of Alabama. 2 JJ. S., et al. V. Jeff. County Bd. of Educ., et al. N o . 2 3 2 7 4 UNITED STATES OF AMERICA, Appellant, versus CADDO PARISH SCHOOL BOARD, ET AL., Appellees. N o . 2 3 3 6 5 UNITED STATES OF AMERICA, Appellant, versus THE BOSSIER PARISH SCHOOL BOARD, ET AL., Appellees. N o . 2 3 1 7 3 MARGARET M. JOHNSON, ET AL., Appellants, versus JACKSON PARISH SCHOOL BOARD, ET AL., Appellees. U. S., et al . V. Jeff. County Bd. of Educ., et al. 3 N o . 2 3 1 9 2 YVORNIA DECAROL BANKS, ET AL., Appellants, versus CLAIBORNE PARISH SCHOOL BOARD, ET AL., Appellees. N o . 2 3 2 5 3 JIMMY ANDREWS, ET AL., Appellant, versus CITY OF MONROE, LOUISIANA, ET AL., Appellees. Appeals from the United States District Court for the Western District of Louisiana. 4 U. S., et al. v. Jeff. County Bd. of Educ., et al. N o . 2 3 1 1 6 CLIFFORD EUGENE DAVIS, JK., ET AL., Appellants, versus e a s t b a t o n r o u g e PAIMSH SCHOOL BOARD, ET AL., Appellees. Appeal from ike United States District Cmirt for the Eilstem District of Louisiana. ON PETITIONS FOE REHEARING EN BANC (March 29, 1967.) Before TUTTLE, Chief Judge, BROWN, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLD BERG, AINSWORTH, GODBOLD, DYER, and SIMP SON, Circuit Judges. P E R CURIAM : 1. The Court sitting en banc adopts the opinion and decree filed in these cases De cem ber 29, 1966, sub ject to the clarifying statem ents in th is opinion and the changes in the decree a ttached to th is opinion. 2. School desegregation cases involve m ore than a dispute betw een certa in Negro children and certain U. S., et al. V. Jeff. County Bd. of Educ., et al. schools. If N egroes a re ever to en ter the m a in s tream of A m erican life, a s school children they m ust have equal educational opportunities w ith w*hite children. 3. The Court holds th a t boards and officials ad,- m in istering public schools in th is circuit^ have the af firm ative duty under the F ourteenth A m endm ent to b ring labout an in tegrated , unitary school system in w hich th e re a re no Negro schools and no w hite schools—^just schools. E xpressions in our ea rlie r opin ions distinguishing between in teg ra tion and desegre gation® m ust yield to th is affirm ative duty v/e now recognize. In fulfilling th is duty it is not enough for school au thorities to offer N egro children the oppor tunity to a ttend fo rm erly all-White schools. The neces sity of overcom ing the effects of the dual school sys tem in th is c ircu it requ ires in tegration of faculties, ̂ “In the South”, as the Civil Rights Commission has pointed out, the Negro “has struggled to get into the neighborhood school. In the North, he is fighting to get out of it,” Civ. Rts. Comm. Rep., Freedom to the Free. 207 (1963). This Court did not “excuse” neighborhood schools in the North and West which have de facto segregation. No case involv ing that sort of school system was before the Court. School segregation is “inherently unequal” by any name and wherever located. But de facto segregation resulting from resi dential patterns in a non-racially motivated neighborhood school system has problems peculiar to such a system. The school system is already a unitary one. The difficulties lie in finding state action and in determining how far school officials must go and how far they may go in correcting racial imbalance. In such cases Shelley v. Kraemer, 334 U.S. 1 (1948) may turn out to be as important as Brown. A broad-brush doctrinaire approach, therefore, that Brown's abolition of the dual school system solves all problems is conceptually and pragmatically inadequate for dealing with de facto-segregated neighborhood schools. We leave the problems of de facto segregation in a unitary system to solution in appropriate cases by the appropriate courts. 2 This distinction was first expressed in Briggs v. Elliott, E.D.S.C. 1955, 132 F. Supp. 776: “The Constitution, in other words, does not require integration. It merely forbids discrimina tion.” 6 U. S., et al. v. Jeff. County Bd. of Educ., et al. facilities, and activ ities, as well as students. To the extent th a t ea rlie r decisions of this Court (m ore in the language of the opinion than in the effect of the holding) conflict w ith th is view, th e decisions a re overru led . We re fe r specifically to the cases listed in footnote 2 of th is opinion.® 4. F reedom of choice is not a goal in itself. I t is a m eans to an end. A schoolchild has no inalienable righ t to choose h is school. A freedom of choice p lan is bu t one of the tools availab le to school officials at th is stage of the process of converting th e dual sys tem of sep a ra te schools for N egroes and w hites into a un ita ry system . The governm ental objective of this conversion is—educational opportunities on equal term s to all. The crite rion for determ ining the^ valid ity of a provision in a school desegregation p lan is w heth e r the provision is reasonab ly re la ted to accom plish ing th is objective. 5. The percen tages re fe rred to in the Guidelines and in this C ourt’s decree a re sim ply a rough ru le of thum b for m easuring the effectiveness of freedom of choice as a useful tool. The percen tages a re not a m ethod for setting quotas or strik ing a balance. If the p lan is ineffective, longer on prom ises th an p erfo rm ance, the school officials charged w ith in itiating and 3 Avery v. Wichita Falls Independent School District, 1956, 241 F.2d 230; Borders v. Rippy, 1957, 247 F.2d 268; Rippy v. Borders, 1957, 257 F.2d 73; Cohen v. Public Housing Administration, 1958, 257 F.2d 73; City of Montgomery v. Gilmore, 1960, 277 F.2d 364; Boson V. Rippy, 1960, 285 P.2d 43; Stell v. Savannah-Chatham County Board of Education, 1964, 333 F.2d 55; Evers v. Jackson, 1964, 328 F.2d 408; Lockett v. Board of Education of Muscogee County, 1965, 342 F.2d 225. U. S., et al. V. Jeff. County Bd. of Educ., et al. 7 adm inistering a u n ita ry system have not m e t the con stitu tional req u irem en ts of the F ourteen th A m end m en t; they should try o ther tools. 6. In constructing the orig inal a n d rev ised decrees, the C ourt gave g re a t w eight to the 1965 and 1966 HEW Guidelines. These G uidelines estab lish m inim um s tan d ard s c learly app licab le to d isestablishing state- sanctioned segregation . These Guidelines and our de cree a re w ithin the decisions of th is Court, com ply w ith the le tte r and sp irit of the Civil R ights A ct of 1964, and m ee t the requirem ents of the U nited S ta tes Constitution. Courts in th is c ircu it should give g rea t w eight to fu tu re HEW G uidelines, when such guide lines a re applicable to th is c ircu it and a re w ithin law ful lim its. We express no opinion as to the applicabil ity of HEW Guidelines in rac ia lly im balanced s itua tions such as occur in som e o ther c ircu its w here it is contended th a t s ta te action m ay be found in s ta te tol erance of de facto segregation o r in such action as the draw ing of a ttendance boundaries based on a neighborhood school system . The Court rea ffirm s the rev e rsa l of the judgm ents below and the rem and of each case for en try of the decree a ttached to th is opinion. The m andate will issue im m ediately . 8 U. S., et al. v. Jeff. County Bd. of Educ., et al. CORRECTED D EC R EE. It is O RD ERED , ADJUDGED and D EC R EED th a t the defendants, the ir agents, officers, employees and successors and all those in ac tive concert and par ticipation w ith them , be and they a re perm anently enjoined from discrim inating on the basis of race O'r color in the operation of the school system . As set out m ore particu la rly in the body of the decree, they ^ a l l take a ffirm ative action to d isestablish all school segregation and to e lim inate the effects of the dual school sy s te m : I. SP E E D OF DESEGREGATION Com m encing w ith the 1967-68 school year, in ac cordance w ith th is decree, all g rades, including kin dergarten grades, shall be desegregiated and pupils assigned to schools in these g rades w ithout reg a rd to race or color. II. EX ERC ISE OF CHOICE The following provisions Shall apply to all g rades: (a) Who M ay E xercise Choice. A choice of schools m ay be exercised by a p a re n t or o ther adult person serv ing a s th e s tuden t’s parent. A studen t m ay ex er cise his own choice if he (1) is exercising a choice U. S., et al. V. Jeff. County Bd. of Educ., et al. 9 for the n inth o r a h igher g rade, or (2) has reached the age of fifteen at the tim e of th e exercise of choice. Such a choice by a s tuden t is controlling unless a dif feren t choice is exercised for h im by his p a ren t or other adu lt person serving as his p a re n t during the choice period o r a t such la te r tim e as the studen t ex erc ises a choice. E ach refe rence m th is decree to a studen t’s exercising a choice m eans the exercise of the choice, as appropria te , by a p a re n t o r such o ther adult, o r by the studen t himseK. (b) Annual E xerc ise of Choice. All students, both white and Negro, shall be requ ired to exercise a free choice of schools annually. (c) Choice Period. The period for exercising choice shall com m ence M ay 1, 1967 and end June 1, 1967, and in subsequent y ears shall com m ence M arch 1 and end M arch 31 preceding the school y ear for which the choice is to be exercised. No studen t or prospective student who exercises his choice w ithin the choice period shall be given any preference be cause of the tim e w ithin the period w hen such choice w as exercised. (d) M andatory E xercise of Choice. A failu re to exercise a choice w ithin the choice period shall not preclude any studen t from exercising a choice a t any tim e before he com m ences school for the y ear w ith respec t to w hich the choice applies, bu t such choice m ay be subordinated to the choices of students who exercised choice before the expiration of the choice 10 U. S., et al. V. Jeff. County Bd. of Educ., et al. period. Any studen t wiho h a s not exercised h is choice of school w ithin a w eek a f te r school opens shall be assigned to the school n e a re s t his hom e w here space is available under s tan d a rd s for determ ining avail ab le space w hich shall be applied uniform ly through out the system . (e) Public Notice. On or w ithin a w eek before the date the choice period opens, the defendants shall a rran g e for the conspicuous publication of a notice describ ing the provisions of this decree in the new s p ap er m ost generally c ircu lated in the com m unity. The tex t of the notice shall be substantia lly s im ila r to th e tex t of the explanatory le tte r sen t hom e to paren ts. Pub lication as a legal notice will not be sufficient. Copies of th is notice m u st also be given a t th a t tim e to all rad io and television stations located in the com m unity. Copies of th is decree shall be posted in each school in the school system and a t the office of the Superin tendent of Education. (f) M ailing of E xp lanatory L e tters and Choice Form s. On the firs t day of the choice period there shall be d istribu ted by first-c lass m ail an exp lanatory le tte r and a choice form to the p a ren t (or o th e r adult person acting as paren t, if known to the defendants) of each student, together w ith a re tu rn envelope ad dressed to the Superintendent. Should th e defendants satisfac to rily dem onstrate to the court th a t they a re unable to com ply w ith the requ irem en t of distributing the exp lanatory le tte r and choice form by first-class U. S., et al. V. Jeff. County Bd. of Educ., et al. 11 m ail, they shall propose an alternative m'ethod which will m axim ize individual notice, i.e., personal notice to p a ren ts by delivery to the pupil w ith adequate pro cedures to insure the delivery of the notice. The text for the exp lanatory le tte r and choice fo rm shall es sen tia lly conform to the sam ple le tte r and choice form appended to th is decree. (g) Extra Copies of the Explanatory Letter and Choice Form . E x tra copies of the exp lanato ry le tte r and. choice fo rm shall be free ly available to paren ts, students, prospective students, and the general public a t each school in the system and a t the office of the Superintendent of E ducation during the tim es of the y e a r w hen such schools a re usually open. (h) Content of Choice Form . E ach choice form shall se t fo rth the nam e and location and the g rades offered a t each school and m ay req u ire of the person exercising the choice the nam e, address, age of s tu dent, school and grade currently or m ost recen tly a t tended by the student, the school chosen, the signa tu re of one p a ren t or other adult person serv ing as paren t, or w here appropria te the s ignatu re of the stu dent, and the identity of the person signing. No state m en t of reasons for a p a rticu la r choice, o r any o ther inform ation, or any w itness or other authentication, m ay be requ ired or requested , w ithout approval of the court. (i) R eturn of Choice Form . A t the option of the person com pleting the choice form , the choice m ay 12 U. S., et al. V. Jeff. County Bd. of Educ., et al. be re tu rn ed by m ail, in person, o r by m essenger to any schoo'l in the school system or to the office of the Sup er in tenden t. (j) Choices not on O fficial Form . The exercise of choice m ay also be m ade by the' subm ission in like m an n er of any other w riting w hich contains in fo rm a tion sufficien t to identify the studen t and indicates th a t h e h a s m ad e a choice of school. (k) Choice F orm s Binding. W hen a choice form has once been subm itted and the choice period has ex pired , the choice is binding for the en tire school year and m ay not be changed except in cases of paren ts m aking d ifferen t choices from th e ir children under the conditions se t fo rth in p a ra g rap h II (a) of th is decree and in exceptional cases w here, absen t the consideration of race, a change is educationally called fo r or w here com pelling hardsh ip is shown by the student. A change in fam ily residence from one neighborhood to ano ther shall be considered an ex ceptional case for purposes of th is p a rag rap h . (l) P reference in A ssignm ent. In assigning stu dents to schools, no p re fe ren ces shall be given to any student fo r p rio r attendance a t a school and, except w ith the approval of court in ex trao rd in ary c ircum stances, no choice shall be denied fo r any reason other than overcrow ding. In case of overcrowding' at any school, p reference shall be given on the basis of the proxim ity of the school to the hom es of the students choosing it, w ithout reg a rd to race or color. S tandards U. S., et al. V. Jeff. County Bd. of Educ., et al . 13 for determ ining overcrovv^ding ahall be applied uni form ly throughout the system . (m ) Second Choice w here F irst Choice is Denied. Any student whose choice is denied m u st be prom ptly notified in w riting and given h is choice of any school in the school system serving h is g rade level w here space is available. The studen t shall have seven days from the receip t of notice of a denial of f irs t choice in which to exercise a second choice. (n) Transportation. W here tran spo rta tion is gen erally provided, buses m u st be routed to the m ax i m um extent feasib le in ligh t of the geographic d is tri bution of students, so as to serve each studen t choos ing any school in tlie system . E very student choosing either the fo rm erly w hite o r the fo rm erly Negro school n ea res t his residence m ust be transpo rted to the school to w hich he is assigned under these pro visions, w hether or not it is his f irs t choice, if that school is sufficiently d is tan t from his hom e to m ake him eligible for transpo rta tion under generally appli cable transpo rta tion rules. (o) O fficials not to Influence Choice. At no tim e shall any official, teacher, or em ployee of the school system influence any paren t, o r o ther adult person serving as a paren t, or any student, in the exercise of a choice or favor or penalize any person because of a choice m ade. If the defendant school board em ploys professional guidance counselors, such persons shall base their guidance and counselling on the in dividual s tuden t’s p a rticu la r personal, academ ic, 14 U. S., et al. v. Jeff. County Bd. of Educ., et al. and vocational needs. Such guidance and counselling by te ach e rs as well as professional guidance counsel lors shall be available to a ll s tuden ts w ithout regard to race o r color. (p) Protection of Persons E xercising Choice. W ith in th e ir authority school officials a re responsible for the pro tection of persons exercising righ ts under or otherw ise affected by th is decree. They shall, w ithout delay, tak e app rop ria te action w ith re g a rd to any stu dent or staff m em b er who in te rfe res w ith the success ful operation of the plan. Such in terference shall in clude harassm en t, in tim idation, th rea ts , hostile words or acts, and s im ila r behavior. The school board shall not publish, allow, or cause to be published, the nam es or add resses of pupils exercising righ ts o r otherwise affected by th is decree. If officials of the school sys tem a re not able to provide sufficient protection, they shall seek w hatever assistance is necessary from other app ro p ria te officials. III. PRO SPECTIV E STUDENTS E ach prospective new studen t shall be requ ired to exercise a choice of schools before or a t the tim e of enrollm ent. All such studen ts known to defendants shall be fu rn ished a copy of the p rescribed le tte r to parents, and choice form , by m ail or in person, on the d a te the choice period opens or as soon th e rea fte r as the school system learns th a t he p lans to enroll. U. S., et al. V. Jejj. County Bd. of Educ., et al. 15 W here th e re is no p re-reg istra tion p rocedure for new ly entering students, copies of the choice fo rm s shall be availab le a t the Office of the Superintendent and a t each school during the tim e the school is usually open. IV. TRA N SFERS (a) Transfers for S tudents. Any student shall have the righ t a t the beginning of a new te rm , to tran sfe r to any school from w hich he w as excluded or would otherw ise be excluded on account of his race or color. (b) Transfers for Special Needs. Any student who requ ires a course of study not offered a t the school to which he h as been assigned m ay be p e rm it ted, upon h is w ritten application, a t the beginning of any school te rm or sem ester, to tran sfe r to another school which offers courses for his special needs. (c) Transfers to Special Classes or Schools. If the defendants operate and m ain ta in special classes or schools fo r physically handicapped, m en ta lly re tarded , o r gifted children, the defendants m ay assign children to such schools or classes on a basis related to th e function of the special class or school th a t is o ther than freedom of choice. In no event shall such assignm ents be m ade on the basis of race or color or in a m an n er whidh tends to perpetuate a dual school system based on race or color. 16 U. S., et al. v. Jeff. County Bd. of Educ., et al. V. SERVICES, FACILITIES, ACTIVITIES AND PRO GRAMS No studen t shall be seg rega ted or d iscrim inated against on account of race o r color in any service, facility , activ ity , or p rog ram (including tran sp o rta tion, a th le tics , or o ther ex tracu rricu la r activ ity) that m ay be conducted or sponsored by th e school in which he is enrolled. A studen t attending school for the firs t tim e on a desegregated basis m ay not be sub jec t to any disqualification or w aiting period for p a rtic ip a tion in activities and p rog ram s, including athletics, w hich m igh t otherw ise app ly because he is a tran sfe r or new ly assigned studen t except .that such tra n s ferees shall be subject to longstanding, non-racially based ru les of city, county, or s ta te athletic associa tions dealing w ith the eligibility of tran sfe r students for athletic contests. All school use or school-spon sored use of ath letic fields, m eeting room s, and all o ther school re la ted services, facilities, activities, and p ro g ram s such as com m encem ent exercises and p a r ent-teacher m eetings which a re open to persons other th an enrolled s tuden ts, shall be open to all persons w ithout reg ard to race or color. All special education al p ro g ram s conducted by the defendan ts shall be conducted w ithout reg a rd to. ra c e or color. U. S., et al. V. Jeff. County Bd.. of Educ., et al. 17 VI. SCHOOL EQUALIZATION (a) In ferior Schools. In schools heretofore m ain ta ined for Negro students, the defendants shall take prom pt steps necessa ry to provide physical facili ties, equipm ent, courses of instruction, and instruc tional m aterials of quality equal to th a t provided in schools previously m ain ta ined for w hite students. Conditions of overcrow ding, as de term ined by pupil- teacher ra tios and pupil-classroom ratios shall, to the extent feasible, be d istribu ted evenly betw een schools fo rm erly m ain ta ined for Negro students and those form erly m aintained for w hite students. If for any reason i t is not feasible to im prove sufficiently any school form erly m aintained for Negro students, w here such im provem ent would otherw ise be requ ired by this p a rag rap h , such school shall be closed as soon as possible, and students enrolled in the school shall be reassigned on the basis of freedom of choice. By October of each year, defendants shall rep o rt to the Clerk of the Court pupil-teacher ra tios, pupil-class room ratios, and per-pupil expenditures both as to opera ting and capital im provem ent costs, and shall outline the steps to be taken and the tim e within which they shall accom plish the equalization of such schools. (b) R em ed ia l Program s. The defendants shall p ro vide rem ed ial education p rog ram s which p e rm it s tu dents attending or who have previously attended seg- 18 U. S., et al. v. Jeff. County Bd. of Educ., et al. regated schools to overcom e past inadequacies in th e ir education. VII. NEW CONSTRUCTION The defendants, to the extent consistent w ith the p roper operation of the school system as a whole, shall locate any new school and substan tia lly expand any existing schools w ith the objective of ©radicating the vestiges of the dual system . VIII. FACULTY AND STAFF (a) F aculty E m ploym en t. R ace or color shall not be a fac to r in the hiring, assignm ent, reassignm ent, prom otion, demotion, or d ism issal of teach ers and other professional staff m em bers, including student teachers, except th a t race m ay be tak en into ac count for the purpose of counteracting or correcting the effect of the segregated assignm ent of facu lty and staff in the dual system . Teachers, p rincipals, and staff m em bers shall be assigned to schools so th a t the faculty and staff is not com posed exclusively of m em bers of one race. W herever possible, te ach e rs shall be assigned so th a t m ore th an one teach e r of the m i nority race (white or Negro) shall be on a desegre gated faculty . D efendants shall take positive and af firm ative steps to accom plish the desegregation of their school faculties and to achieve substan tia l de- U. S., et al. V. Jeff. County Bd. of Educ., et al. 19 segregationi of faculties in as m any of the schools as possible for the 1967-68 ischool y e a r notw ithstanding th a t teacher con tracts for the 1967-68 or 1968-69 school y ears m ay have a lready been signed and approved. The tenure of teachers in the system shall not be used as an excuse for fa ilu re to com ply w ith th is provision. The defendants shall estab lish as an objective tha t the p a tte rn of teach er assignm ent to any p articu la r school not be identifiable as ta ilo red for a h eav y con centration of e ither Negro or white pupils in the school. (b) D ism issals. T eachers and other professional staff m em bers m ay not be d iscrim inatorily assigned, dism issed, dem oted, or passed over for retention, prom otion, or reh iring , on the ground of race or color. In any instance w here one or m ore teachers o r other professional staff m em bers are to be d isplaced as a resu lt of desegregation, no staff vacancy in the school system shall be filled through rec ru itm en t from out side the system unless no such displaced staff m em ber is qualified to fill the vacancy. If, as a resu lt of desegregation, there is to be a reduction in the to tal professional staff of the school system , the qualifica tions of all staff m em bers in th e syshetrL-shaU.,bemiial-- ua ted in selecting the staff m em ber to be released w ithout consideration of race or color. A repo rt con taining any such proposed dism issals, and the re a sons therefor, shall be filed w ith the Clerk of tiie Court, serving copies upon opposing counsel, w ithin five (5) days a fter such dism issal, demotion, etc., as proposed. 20 U. S., et al. V. Jeff. County Bd. of Educ., et al. (c) P ast A ssignm ents. The defendants shall take steps to assign and reass ig n teachers and other p ro fessional staff m em bers to elim inate the effects of the dual school system . IX. B EPO R TS TO THE COURT (1) R eport on Choice Period. The defendants shall serve upon the opposing p a rtie s and file w ith the C lerk of tihê Court on or before A pril 15, 1967, and on or before June 15, 1967, and in each subsequent year on o r before June 1, a rep o rt tabu la ting by race the num ber of choice applications and tran sfe r applica tions received for enrollm ent in each g rad e in each school in the system , and the' num ber of choices and transfers granted and the num ber of denials in each grade of each school. The report shall also s ta te any reasons re lied upon in denying choice and shall tab ulate , by school and by race of student, the num ber of choices and transfers denied for each such reason. In addition, the rep o rt shall show the percen tage of pupils actually tra n sfe rre d or assigned from seg- re giite d : g r a d e s o r tô .schools a ttended predom inantly by puphs of \a race other than the race of the appli cant, for a ttendance during the 1966-67 school year, w ith com parable da ta for the 1965-66 school year. Such additional inform ation shall be included in the rep o rt served upon opposing counsel and filed w ith the Clerk of the Court. U. S., et al. V. Jeff. County Bd. of Educ., et al. 21 (2) R eport A fter School Opening. The defend ants shall, in addition to repo rts elsew here described, serve upon opposing counsel and file w ith th e Clerk of th e C ourt w ithin 15 days a fte r the opening of schools for the fa ll sem este r of each y ear, a rep o rt setting fo rth the following inform ation: (i) The nam e, address, g rade, school of choice and school of present a ttendance of each studen t who h as w ithdraw n or requested w ithdraw al of h is choice of school o r who has tra n s fe rre d a fte r the s ta r t of the school year, together w ith a description of any action taken by the defendants on his request and the re a sons therefor. (ii) The num ber of facu lty vacancies, by school, th a t h av e occu rred o r been filled by the defendants since the order of th is Court o r the la te s t rep o rt subm itted pursuan t to this sub-paragraph . This rep o rt shall state the race of the te ac h e r em ployed to fill each such va cancy landi indicate w hether such te ach e r is newly em ployed or w as tra n s fe rre d from With in the system . The tabu la tion of the num ber of tra n s fe rs w ithin the system shall indicate the schools from which and to w hich the tra n s fe rs w ere m ade. The rep o rt shall also se t fo rth the num ber of facu lty m em bers of each race a s signed to each school for the cu rren t year. (iii) The num ber of students by race, each g rad e of each school. in 22 17. S., et al. v. Jejj. County Bd. of Educ., et al. EXPLANATORY LE TT ER (School System N am e an d Office A ddress) (D ate Sent) D ear P aren t: All g rad es in our school system will be desegre gated nex t year. Any studen t who will be en tering one of these g rades nex t year m ay choose to attend any school in our system , reg ard less of w hether th a t school w as fo rm erly all-white or all-Negro. I t does not m a tte r w hich school your child is a ttending th is year. You and your child m ay select any school you wish. E v ery student, w hite and Negro, m u st m ake a choice of schools. If a child is entering the n in th or h igher g rade , o r if the child is fifteen years old or old er, he m ay m ake the choice him self. O therw ise a p a r ent o r o ther ad u lt serving as p a re n t m u st sign the choice form . A child enrolling in the school sy stem for the f irs t tim e m u st m ake a choice of schools before or at the tim e of his enrollm ent. The fo rm on w hich th e choice should be m ade is a t tach ed to th is le tte r. I t should be com pleted and re tu rned by Ju n e 1, 1967. You m ay m ail it in the en closed envelope, or deliver it by m essenger or by hand to any school p rinc ipal or to the Office of the Superintendent a t any tim e betw een M ay 1 and June 1. No one m ay requ ire you to re tu rn your choice form before Ju n e 1 an d no p reference is given for re tu rn ing th e choice fo rm early . U. S., e t a l . V. Jeff. County Bd. of Educ., et a l . 23 No principal, teacher or o ther school official is p e r m itted to influence anyone in m aking a choice or to requ ire early re tu rn of the choice form . No one is p e r m itted to favo r or penalize any studen t or o ther p e r son because of a choice m ade. A choice once m ade cannot be changed except for serious hardship . No child will be denied his choice unless fo r re a sons of overcrow ding a t the school chosen, in which case children living n ea res t the school will have p re f erence. T ransporta tion will be provided, if reasonably pos sible, no m a tte r w hat school is chosen. [Delete if the school system does not provide transporta tion .] Y our School B oard an d the school staff w ill do everything w e can to see to i t th a t the rig h ts of all students a re pro tected and th a t desegregation of our schools is carried out successfully. Sincerely yours, Superintendent. CHOICE FORM This fo rm is provided for you to choose a school for your child to a ttend next year. You have 30 d ay s to m ake your choice. It does not m atte r w hich school your child attended la s t y ear, and does not m a tte r w hether the school you choose w as fo rm erly a w hite or Negro school. This fo rm m ust be m ailed or brought 24 17. S., et al. v. Jeff. County Bd. of Educ., et al. to th e p rinc ipa l of any school in the system or to the office of the Superintendent, [address], by June 1, 1967. A choice is req u ired for each child. Name of c h i ld .............................................................................. (Last) (First) (Middle) A d d ress .......................................................................................... N am e of P a re n t or o ther adult serving as parent ............................................................. If child is entering f irs t g rade, date of b irth : (Month) (Day) (Year) G rade child is entering . . . School attended la s t y ea r Choose one of the following schools by m ark ing an X beside the nam e. N am e of School G rade Location Signature Date To be filled in by Superintendent: School Assigned . 1 In subsequent years the dates in both the explanatory letter and the choice form should be changed to conform to the choice period. U. S., et al. V. Jeff. County Bd. of Educ., et al. 25 GEWIN, C ircuit Judge, w ith whom Judge Bell con curs, DISSENTING: The opinioh of the m a jo rity and the proposed de cree a re long, com plicated, som ew hat am biguous and ra th e r confusing. The p e r cu riam opinion of the m ajo rity of the en banc court does not substantia lly clarify , m odify o r change anything said in the orig inal opinioh filed D ecem ber 29, 1966. Only m inor and inconsequential changes w ere m ad e in the proposed decree.^ In m y view both the opinion and decree con stitu te an ab ru p t and unauthorized dep artu re from the m a in s tream of jud ic ia l thought both of this C ir cuit and a hum ber of o ther C ircuits. I am unable to ag ree e ither w ith the opinion or the decree, e sp e cially those provisions dealing w ith the following: (1) de facto and de ju re segregation ; (2) the guidelines; (3) the proposed decree; (4) a ttendance percen tages, proportions, and freedom of choice; and (5) enforced in tegratioh . De Facto and De jure Segregation The thesis of the m ajo rity , lik,e M inerva (A thena) of the classic m yths,^ w as spaw ned full-grown and ̂ “The opinion” and “the decree” as used herein refer to the opinion and decree filed in these cases by the three judge panel on December 29, 1966, wherein two of the judges agreed and one dissented. Of necessity, references to page numbers of the opinion refer to the slip opinion. ̂ See Gayley, The Classic Myths, (Rev. ed. 1939) page 23 “She sprang from the brain of Jove, agleam with panoply of war, brandishing a spear and with her battle-cry awal^ening the echoes of heaven and earth,” 26 U. S., et a l . V. Jeff. County Bd. of Educ., et a l . fu ll-arm ed. I t h as no su b stan tia l legal ancestors.® We m u st w a it to see w h a t progeny it will produce. While professing to fashion a rem edy under the benevolent canopy of the F ed era l Constitution, the opinion and the decree a re couched in divisive te rm s and proceed to dichotom ize the union of s ta tes into two sep ara te and d istinc t p a rts . B ased on such re a soning the Civil R ights A ct of 1964 is s tripped of its national ch arac te r, the national policies there in s ta ted a re nullified, and in effect, the rem edial p u r poses of the A ct a re held to apply to approx im ately one-third of the s ta tes of the union and to a m uch sm alle r p e rcen tage or proportion of the to ta l popu lation of the country. I am unable to believe th a t the Congress had any such in tent. If it did, a serious constitu tional question would be p resen ted as to the valid ity of the en tire A ct under our concepts of A m er ican constitu tional governm ent. The Negro children in Cleveland, Chicago, Los Angeles, Boston, New York, o r in any o ther a re a of the nation w hich the opinion classifies u n d e r de facto segregation , would receive little com fort from the a s sertion th a t the ra c ia l m ake-up of th e ir school system does not vio late their constitu tional righ ts because ® However, compare the doctrine of the majority and the theme of an article in the Virginia Law Review entitled “Title VI, The Guidelines and School Desegregation in the South”, by James R. Dunn. Virginia Law Review, Vol. 53, page 42 (1967). According to footnote 85 of the law review article, the majority opinion was released “as this article was going to press.” Mr. Dunn is Legal Adviser, Equal Educational Opportunities Program, United States Office of Education, HEW, Washington, D.C. U. S., et al. V. Jeff. County Bd. of Educ., et al. 27 they w ere born into a de facto society, w hile the exact sam e ra c ia l m ake-up of the school system in the 17 Southern and bo rder s ta tes vio lates the con stitu tional righ ts of th e ir coun terparts, o r even their blood b ro thers , because they w ere born into a de ju re society. All ch ildren everyw here in the nation a re p ro tec ted by the Constitution, and tre a tm e n t which violates their constitu tional righ ts in one a re a of the country, also v iolates such constitu tional rig h ts m ano ther a rea . The details of the rem ed y to be applied, how ever, m ay v a ry w ith local conditions. B asically , a ll of them m u st be given the sam e constitutional protection. Due process and eq u al pro tection will not to le ra te a low er standard , and su re ly not a double s tandard . The prob lem is a na tional one. R egard less of our decrees, in spite of our hopes and notw ithstanding our disappointm ents, th e re is no in fallible and certa in process of a lchem y w hich will e rase decades of h isto ry and tran sm u te a d istastefu l set of c ircum stances into a utopia of perfection. All who have studied the sub jec t recognize th a t d iscrim inato ry p rac tices did not a rise from a single cause. Such p rac tices had th e ir origin and b irth in social, economic, educational, legal, geographical and nu m erous o ther considerations. These fac to rs tend to be self-perpetuating. We m u st e rad ica te them , and I have the fa ith th a t they will be e rad ica ted and elim inated by responsible and responsive governm ental agencies acting p u rsuan t to the best in te rests of the com m unity. There is no social antibiotic w hich will 28 U. S., et al. V. Jeff. County Bd. of Educ., et al. effect a sudden or overnight cure. I t is not possible to specifically fix the b lam e or to a ttrib u te the origin of d iscrim inato ry p rac tices to isolated causes, and it is su re ly inappropria te to undertake to fa s ten guilt upon ahy segm ent of the population. In th is a re a of our n a tion ’s h istory em inent histo*rians still dis ag ree as to causes and effects. Some studies have p laced em phasis on the slave tra d e r or the im porter of slaves, o thers have b lam ed the slave holder, while o thers have tried to tra ce the guilt back to trib a l ch ieftans in A frica. P e rh a p s the m ost com m on under standing am ongst all the h isto rians and students of the problem is the conclusion th a t causes cannot be isolated and responsibility cannot be lim ited to a p a r ticu la r group. W hatever the cause or explanation, it is c lea r th a t the responsibility rests on m ahy ra th e r than few. A t th is tim e, a lm ost 13 y e a rs a fte r the decisions in Brow n v. Board of Education (1954) 347 U.S. 483, 98 L.ed. 873 (Brow n I) and Brow n v. Board of Education (1955) 349 U.S. 294, 99 L.ed. 1083 (Brown II), there should be no doubt in the m inds of anyone th a t com pulsory segregation in the public school system s of this nation m ust be elim inated. Negro ch ildren have a personal, p resen t, and unqualified constitutional rig h t to a ttend the public schools on a rac ia lly non- d iscrim inato ry basis. A lthough espousing the cause of un iform ity and a s serting th e re m u st not be one law fo r A thens and ano ther for Rom e, the opinion does Pot follow th a t thesis o r principle. One of the chief difficulties U. S., et al. V. Jeff. County Bd. of Educ., et al. 29 w hich I encounter w ith the opinion is th a t it con cludes th a t the Constitution m ean s one thing in 17 s ta tes of the nation and som ething else in the rem ain ing sta tes. This is done by a ra th e r ingenious though illogical distinction between the te rm s de facto seg regation and de ju re segregation. While the opinion recognizes the evils com m on to both types, it relies heavily on background fac ts to justify the conclusion th a t the evil will be corrected in one a re a of the n a tion and not in the other. In m y view the Constitution cannot be bent and tw isted in such a m an n er as to justify or support such an incongruous result. The very subj ect m a tte r under consideration tends to nul lify the assertion th a t the constitutional prohibition against segregation should be applied in 17 s ta tes and not in the re s t of the nation. Legislative h istory c learly supports the idea th a t no distinction should be m ade v/ith respect to the various s ta tes in dealing w ith the problem . Senator P asto re w as one of the p rincipal spokesm en who handled this legislation. He gave the follov/ing ex planation: “ F ran k ly I do not see how we could have gone any fu rther, to be fa ir . . . Section 602 of Title VI, not only requ ires the agency to p rom ulgate rules and regulations, but all p rocedure m u s t be in accord w ith these ru les and regulations. They m ust have broad scope. They m ust be national. They m ust apply to all fifty states. We could not 30 U. S., et al. V. Jeff. County Bd. of Educ., et al. draw one ru le to apply to the S ta te of M issis sippi, ano ther ru le to apply to the S ta te of A labam a, and ano ther ru le to apply to the S ta te of Rhode Island. T here m u st be only one ru le , to apply to every s ta te . F u rth e r, the P resid en t m u s t approve the ru le .” (110 Cong. Rec. 7059, A pril 7, 1964) “ MR. PASTORE. . . We m ust do w hat Title VI p rovides; and we could do it in no m ilder fo rm th an th a t now provided by Title VI. The Senator from Tennessee says, ‘Let us read th is title ’. I say so, too. W hen we read these two pages, we understand th a t the whole phil osophy of T itle VI is to prom ote volun tary com pliance. I t is w ritten righ t in the law. T here shall be the volun tary com pliance as the firs t step, and then the second step they m u st inaugura te and prom ulgate , ru les th a t have a national effect, not a local effect. They shall apply to Tennessee, to Louisiana, to Rhode Island, in equal fash ion .” (110 Cong. Rec. 7066, A pril 7, 1964) In connection w ith the distinction w hich the opin ion undertakes to m ake, it is p e rtin en t to observe the following strong and unequivocal pronouncem ent in the v e ry beginning of the decision in Brown II: “All provisions of federal, sta te , or local law requiring or perm itting such discrim ination m u st yield to this principle. T here rem ains U. S., et al. V. Jeff. County Bd. of Educ., et al. 31 for consideration the m anner in w hich relief is to be accorded .” (E m phasis added) (page 298) It should be observed th a t all public school seg reg a tion w as de ju re in the b road sense of th a t te rm p ri or to the f irs t Brown decision, in th a t segregation w as perm itted , if not required , by law. It is undoubtedly tru e th a t any problem which reaches national proportions is often generated by vary ing and different custom s, m ores, laws, habits and m anners. Such differences in the causes which contributed to the creation and existence of the p roblem in the firs t instance, do not justify the appli cation of a fundam ental constitutional princip le in one a re a of the nation and a fa ilu re to apply it in an other. While all the au thorities recognize the existence and operation of d ifferent causes in the h isto rica l background of rac ia l segregation, th e re a re also m ark ed sim ilarities. This fac t is noted in the recen t ly re leased study by the U nited S tates Com m ission on Civil R ights, RACIAL ISOLATION IN THE SCHOOLS, 1967, Vol. I (pp. 39, 59-79). In discussing the sub ject the following observation is m ade early in the re p o r t; “ Today it [racia l isolation or segregation] is a ttrib u tab le to rem nan ts of the dual school system , m ethods of studen t assignm ent, re s idential segregation, and to those discretion- 32 U. S., et al . V. Jejf. County Bd. of Educ., et al . a ry decisions fam ilia r in the North—site se lection, school construction, tran sfe rs , and the determ ination of w here to p lace students in the event of overcrow ding.” (E m phasis added) In its su m m ary the Comimissien notes th a t the causes of rac ia l isolation or school segregation a re com plex and self-perpetuating. I t speaks of the N ation 's m etropolitan a reas and re fe rs to social and eco nomic fac to rs as well as geographical ones. A ccord ing to the sum m ary , not only do sta te and local gov ernm ents sh are the blam e, it is ca tegorica lly a sse rt ed th a t “ The Federal G overnm ent also sh ares in this responsib ility .” (E m phasis added) P e rtin en t s im ilarities in the problem , applicable to the en tire nation, a re forcefully a sse rted in the final sentence of the Com m ission’s. S u m m ary ; “In the North, w here school segregation w as not generally com pelled by law, these [dis crim inatory] policies and p rac tices have helped to increase rac ia l separation . In the South, w here until the Brown decision in 1954 school segregation w as requ ired by law, s im ilar policies and practices have contributed to its perp e tu a tio n .” (E m phasis added) By a process of syllogistic reasoning based on fa tally defective m ajo r p rem ises the opinion has dis to rted the m eaning of the te rm segregation and has segm ented its m eaning into de facto and de ju re seg regation. All segregation in the South is classified as 17. S., et al. V. Jeff. County Bd. of Educ., et al. 33 de jure^ while segregation in the N orth is classified as de facto. D ifferent ru les apply to the different types of segregation. The South is heavily con dem ned. The opinion approaches the p roblem on a sectional basis and fails to consider the sub jec t ex cept on a sectional or regional basis. T here a re m any references to “ the eleven” Southern s ta te s and “ the seven” border sta tes. This a re a of the nation is v a ri ously ch arac te rized as “The eleven s ta tes of the Con federacy ,” “ the en tire region encom passing the southern and border s ta te s” , “w earing the badge of s lav e ry ” , and “ a rp a rth e id ” . F inally , the opinion concludes th a t the two types of segregation a re dif ferent, have different origins, c rea te different p roblem s and requ ire d ifferent corrective action. It is suggested th a t there is no p resen t rem edy fo r de facto segregation but th a t the problem s and questions arising from de facto segregation m ay som eday be answ ered by the Suprem e Court.® * At one place in the opinion pseudo de facto segregation in the South is mentioned, but it is asserted that any similarity between pseudo de facto segregation in the South and actual de facto segregation in the North is more apparent than real (p. 68) ® The case of Blocker v. Ed. of Educ. of Manhasset, N.Y. (E.D. N.Y. 1964) 226 F. Supp. 208 cited and relied on by the ma jority does not support the de facto-de jure distinction. In fact Judge Zavatt disavows any such distinction. The fol lowing is from the opinion: “On the facts of this case, the separation of the Negro elementary school children is segregation. It is segre gation by law—the law of the School Board. In the light of the existing facts, the continuance of the defendant Board’s impenetrable attendance lines amounts to nothing less than state imposed segregation.” * * 4 : “This segregation is attributable to the State. The prohibitions of the Fourteenth Amendment ‘have refer ence to actions of the political body denominated a State, by whatever instruments or in whatever modes that ac- 34 U. S., et al. v. Jeff. County Bd. of Educ., et al. This Court, and the d is tr ic t courts w ithin the six s ta tes em b raced w ith in ou r ju risd iction like m any o ther fed era l courts of the nation have given m uch tim e and a tten tion to the solution of the problem s aris ing a fte r the Brown decisions. M uch has been a c com plished, m uch rem ain s to be done. It is not pos sible fo r m e to jo in in the expressions of pessim ism contained in the opinion or to approve the insinua tions th a t the courts have failed in the perfo rm ance of th e ir duty.® E ven Congress is tak en to ta sk for fa ilu re to ac t e a r lie r and fo r fa ilu re to recognize tion may be taken. * * *Whoever, by virtue of public position under a State government, * * ♦ takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.’ Ex Parte Virginia, 100 U.S. 339, 346-347, 25 L.Ed. 676,679 (1880). ‘The situation here is in no dif ferent posture because the members of the School Board and the Superintendent of Schools are local officials; from the point of view of the Fourteenth Amendment, they stand in this litigation as the agents of the State.’ Cooper V. Aaron, supra, 358 U.S. at 16, 78 S.Ct. at 1408, 3 L.ed.2d 5.” ® See for example the following statements from the opinion: “The courts acting alone have failed.’’ (p. 7) * * * “Quantatively, the results were meager.’’ (p. 20-21)* * * “And most judges do not have sufficient competence— they are not educators or school administrators—to know the right questions, much less the right answers.” (p. 24) ♦ * ♦ “In some cases there has been a substantial time-lag be tween this Court’s opinions and their application by the district courts. In certain cases—^which we consider unnecessary to cite—there has even been a manifest variance between this Court’s decision and a later dis trict court decision. A number of district courts still mistakenly assume that transfers imder Pupil Placement Laws—superimposed on unconstitutional initial assign ment—satisfy the requirements of a desegregation plan,” (p. 36) U. S., et al. V. Jeff. County Bd. of Educ., et al. 35 school desegregation “ as the law of the lan d ,” ̂ In the Brown cases the Court c learly and w isely recog nized the fa c t th a t those decisions had changed the law w hich had been in effect for decades. Due notice w as taken of the fa c t th a t the new o rd e r of the day would “ involve a varie ty of local problemjs.” The court recognized “ the conaplexities arising from the transition to a system of public educatioh freed of rac ia l d iscrim ination .” M oreover, the C ourt stated , “ F ull im plem entation of these constitutional p rinc i ples m ay requ ire solution of varied local school p rob lem s.” The courts w ere instructed to be “ guided by equitable p rinc ip les ,” to give consideration to “ p ra c tical flexibility in shaping rem ed ies” and observed th a t equity courts have a pecu liar “ facility for ad justing and reconciling public and p riv a te needs.” The Brown decisions em phasized the concept th a t courts of equity a re p a rticu la rly qualified to shape such rem edies as would “ call for elim ination of a v a rie ty of obstacles in m aking the transition to school system s operated in accordance w ith the con stitutional p rinc ip les” pronounced in the firs t Brown decision. C ontrary to the tone and expressions of the m ajo rity opinion, the Suprem e Court early announced the policy of heavy reliance on the d istric t courts and tha t policy has continued to this date. ’’ See item (5), page 24 of the opinion: “(5) But one reason more than any other has held back desegregation of public schools on a large scale. This has been the lack, until 1964, of effective congres sional statutory recognition of school desegregation as the law of the land.” 36 U. S., et al. v. Jeff. County Bd. of Educ., et al. II Guidelines W ith re sp ec t to the guidelines, it should be noted th a t they w ere not an issue p resen ted to the D istric t Court. The cases h e re involved had been tried in the respective d is tric t courts, appeals tak en to th is Court and w ere pending on the docket of this Court before the 1966 Guidelines w ere p rom ulgated . G uidelines w ere not m ade an issue by the p leadings or otherw ise in the d is tric t courts and no evidence w as taken w ith respect to them . The issue of the guidelines a re be fore th is Court because the Court, sua sponte, brought the issue before it.** In m y v iew their valid ity is not an issue to be decided in th is Court. See United S ta tes v. Petrillo (1947) 332 U.S. 1,5,6; United S ta tes V. International Union (1957) 352 U.S. 567,590; ConnoT V. N ew Y o rk T im es (5 Cir. 1962) 310 F.2d 133, 135; Gibbs v. B lackw ell (5 Cir. 1965) 354 F.2d 469,471. In its f irs t approach to the question the C ourt in d icated th a t it would not p ass upon the constitu tional ity of the guidelines bu t would give w eight to or rely upon them as a m a tte r of jud icia l policy. When con- ® See opinion, page 10, footnote 13. It should be noted that v/hen the panel which originally heard this case invited briefs no mention was made of any constitutional question or issue with respect to the HEW guidelines. Rather, the questions posed related to whether it was “permissible and desirable” for the court to give weight to or rely on the guidelines; and if so, what practical means or methods should be employed in making use of the guidelines. From the questions raised by the court, counsel could not have gained the impression that the court was to make a full scale determination of the constitutional ques tions involved. U. S., et al. V. Jeff. County Bd. of Educ., et al. 37 fronted w ith the fa c t th a t the guidelines w ere not ap proved by the P resid en t a s req u ired by the Civil R ights A ct of 1964, the opinion then concluded th a t they do not constitu te o r pu rp o rt to be rules or reg u la tions or o rders of general application. I t w as then sta ted th a t since they w ere not a rule, regulation o r order, they constitu te “ a s ta tem en t of policy” , and while HEW ‘‘is under no s ta tu to ry com pulsion to issue such s ta tem en ts” it w as decided th a t it is “ of m an i fest ad v an tag e” to the general public to know the basic considerations which the Com m issioner uses “ in determ ining w hether a school m eets the requ ire m ents fo r eligibility to receive financial a ss is tan ce .” Im m edia te ly the opinion recognizes the inherent un fa irness and vices of such pronouncem ents of adm inis tra tiv e policy w ithout an ev identiary hearing . “ The guidelines have the vices of all adm in istra tive policies established un ila te ra lly w ithout a h earin g .” * Finally , the opinion concludes th a t the guidelines a re fully con stitutional, recognizing as it is bound to do, th a t a fa il u re to com ply w ith them cuts the purse strings and closes the tre a su ry to all who fail to com ply: “The g re a t bulk of the school d is tric ts in this c ircu it have applied for federa l financial as sistance and therefore opera te under volun ta ry desegregation plans. A pproval of these p lans by the Office of Education qualifies the schools for federal aid. In th is opinion we have held tha t the H EW G uidelines now in ef fect are constitutional and are w ith in the sta tu tory authority created in the Civil R ights See opinion page 30. 38 U. S., et al. v. Jeff. County Bd. of Educ., et al. A c t of 1964. Schools therefore, in com pliance w ith the G uidelines can in g enera l be re g a rd ed a s d ischarg ing constitu tional obligations.” (E m phasis added) (p. 112) W hether view ed from a substan tive o r p rocedural point of view, due process and sound jud ic ia l ad m in istra tion requ ire , a t the very least, an eviden tia ry hearing on a m a tte r so v ita l to so m any people.^® Not only a re num erous people affected , bu t those m ost affected a re the school children of the nation. The m ost v ita l segm ent of our dem ocratic society is our school system . The operation and adm in istra tion of th e public school system s of th is nation a re essen tia lly a local business. I t is unthinkable th a t m a tte rs th a t so v ita lly affect th is phase of the national w elfare should be decided in such su m m ary fashion. In the The 1966 Guidelines were promulgated on March 7, 1966, after these cases were docketed in this Court. The fact that the appellees had no opportunity to have a hearing and that the guidelines were unilaterally issued without receipt of evi dence from the numerous school districts was called to the attention of this Court by one of the briefs for appellees: “As pointed out in detail below, the Constitutional and legi-slative principles applicable to the expenditures of fed eral funds, the legislative and administrative discretion placing conditions upon the receipt and use thereof, the lack of due process in the adoption thereof and the lack of any opportunity to be heard by those affected thereby all render such Guidelines inapplicable to the pending “The 1966 Guidelines (as well as the 1965 Guidelines) were not approved by the President. They were issued by the Office of Education unilaterally without an op portunity for the representatives of the thousands of school districts affected thereby to be heard. As unilateral directives they have not been subject to judicial review.” See consolidated brief Jefferson County Board of Education, pp. 76-77. U. S., e t a l . V. Jeff. County Bd. of Educ., e t a l . 39 two m o st recen t pronouncem ents by the Suprem e Court dealing w ith the p roblem of segregation as re la ted to facu lty and staff, th a t C ourt refused to ac t w ithout an ev iden tiary hearing . In both decisions the cases w ere rem anded to the d is tric t court “ fo r eviden tia ry h earin g s .” B radley v. School Bd. of R ichm ond (1965) 382 U.S. 103, 15 L.ed.2d 187; R ogers v. Paul (1965) 382 U.S. 198, 15 L.ed.2d 265. S im ilarly , in Cal houn V. L a tim er (1964) 377 U.S. 263, 12 L.ed.2d 288, the Court h ad for consideration a desegregation p lan of the A tlan ta B oard of Education. D uring the a rgum en t before the Suprem e C ourt counsel for the B oard of E d ucation inform ed the Court th a t subsequent to the de cision of the low er court, the B oard had adopted addi tional provisions authorizing “ free tra n s fe rs w ith cer ta in lim ita tions in the city high schools” . The petition ers contended th a t the changes did not m eet constitu tional s tan d ard s and a sse rted th a t w ith resp ec t to ele m en tary students the changed p lan would not achieve desegregation until som etim e in the 1970’s. The Su p rem e C ourt did not “ g rasp the n e ttle ” bu t vaca ted the o rd e r of the lower court and rem anded the case to “ be ap p ra ised by the d is tric t court in a p roper eviden tia ry hearing.” (E m phasis added) III D ecree I now com e to a consideration of the decree o rdered to be en tered and its re la tion to the opinion. I t is im possible to consider the decree and the opinion sep- 40 U. S., et al. V. Jeff. County Bd. of Educ., et al. ara te ly ; they a re inex tricab ly interw oven. N either takes into account “ m ultifarious local difficulties” , and therefore, any p a rtic u la r or p ecu liar local p rob lem s a re subm erged and sacrificed to the ap p aren t determ ination , evident on the face of both the opin ion and the decree, to achieve percen tage enrollm ents w hich w ill re flec t the kind of ra c ia l ba lance the opinion seeks to achieve. The opinion a sse rts th a t uniform ity m ust be achieved forthw ith in everyone of the six s ta tes em braced w ithin the F ifth C ircuit. No consideration is given to any distinction in any of the num erous school system s involved. U rban schools, ru ra l ones, sm all schools, la rg e ones, a reas w here ra c ia l im balance is la rg e or sm all, the re la tiv e num ber of N egro and w hite children in any p a rtic u la r a rea , or any of the other m y riad problem s w hich a re known to every school ad m in is tra to r, a re taken into account. All th ings m ust yield to speed, uniform ity , p e rcen tages and propor tional rep resen ta tion . T here a re no lim itations and there a re no excuses. This philosophy does not com p ort w ith the philosophy w hich has guided and been inheren t in the segregation problem since Brown II. As the C ourt th e re s ta te d : “ B ecause these cases arose under d ifferen t local conditions and th e ir disposition will in volve a v a rie ty of local problem s, we requ ired fu rth e r argum ent on the question of re lie f.” (p. 298) (E m phasis added) U. S., et al. V. Jeff. County Bd. of Educ., et al. 41 See also D avis v. Bd. of Com m, of Mobile Co., A la., 322 F.2d 356 (5 Cir. 1963) -wherein this Court m ade a distinction in the ru ra l and u rban schools of Mobile County, A labam a. We held; “The D istric t C ourt m ay m odify th is o rder to defer desegregation of ru ra l schools in M obile County until Septem ber 1964, should the D istric t C ourt a fte r fu rther hearing con clude th a t special planning of adm in istra tive problem s fo r ru ra l schools in the county m ake it im prac ticab le for such schools to s ta r t de segregation in Septem ber 1963.” The effectiveness of the d is tric t courts h a s been seriously im paired , in a re a l sense, co n tra ry to the teachings of all the decisions of the Suprem e Court since Brow n II. U nder the opinion and decree a U nited S ta tes D istric t Judge serves essen tially as a referee, m a ste r, or hearing exam iner. Now his only functions a re to o rder the enforcem ent of the de tailed, uniform , stereotyped fo rm al decree, to super vise com pliance w ith its detailed provisions as th e re in o rdered and directed , and to receive periodic re ports m uch in the sam e fashion as reports a re re ceived by an o rd inary clerk in a la rge business es tablishm ent. Such a detailed decree on the appellate level not only v io la tes sound concepts of jud ic ia l ad m in is tra tion, bu t it v io lates a longstanding philosophy of the federal jud ic ia l system , and indeed all jud icia l sys tem s com m on to this country, w hich vest wide dis- 42 17. S., et al. v. Jeff. County Bd. of Educ., et al. cretion and au thority in tr ia l courts because of their closeness to and fam ilia rity w ith local problem s. See the opinions in Brown II, B radley, Rogers, and Cal houn. F o r exam ple, in Brow n II the Court s ta ted : “F u ll im plem entation of these constitu tional p rinc ip les m a y requ ire solution of varied local school problem s. School au thorities have the p rim ary responsibility for elucidating, a ssess ing, and solving these p rob lem s; courts w ill have to consider w hether the action of school au thorities constitutes good fa ith im p lem en ta tion of the governing constitu tional principles. B ecause of their p roxim ity to local conditions and th e possible need for fu rth er hearings, the courts w hich originally heard these cases can best perform th is judicia l appraisal. Ac cordingly, we believe it app rop ria te to rem an d the cases to those courts. “ In fashioning and effectuating the decrees, the courts w ill be guided by equitable p rin ciples. T raditionally , equity h a s been char acterized hy a practical flex ib ility in shaping its rem ed ies and by a fac ility for ad justing and reconciling public and p riv a te needs. T hese cases call for the exercise of these tra ditional a ttribu tes of equity power. At stake is the personal in te rest of the p lain tiffs in adm is sion to public schools as soon as p rac ticab le on a nondiscrim inatory basis. To effectuate th is in te re s t m ay call for elim ination of a va rie ty of obstacles in m aking the transition to U. S., et al. V. Jeff. County Bd. of Educ., et al. 43 school system s opera ted in accordance w ith the constitu tional principles set fo rth in our M ay 17, 1954, decision.” (E m phasis added) The opinion a sse rts th a t “m ost ju d g es” do not possess the necessa ry com petence to deal w ith the questions p resen ted , and do not “ know the righ ts questions, m uch less the rig h t an sw ers .” N otwith standing the foregoing assertion , the judges of the m ajo rity , acting on the appellate level, p roceed to fashion a decree of such m inu te detail and specificity as to rem ove all d iscretion and au thority from the d is tric t judges on w hom the Suprem e Court has relied so heavily . In m y view the d istric t judges a re in m uch b e tte r position to know the questions and the answ ers than appellate judges who necessarily function som e d istance aw ay from an evidentiary hearing and a re rem oved fro m the “m ultifarious local p rob lem s” and “ the v a rie ty of obstac les” inheren t in the solution of the issues p resen ted . IV Percentages, Proportions and Freedom of Choice F reed o m of choice m eans the unrestric ted , unin hibited, u n restra in ed , unhurried , and u n h arried righ t to choose w here a studen t will a ttend public school sub jec t only to adm in istra tive considerations w hich do not tak e into account or a re not re la ted to con siderations of race . If there is a free choice, free in every sense of the word, exercised by students or by th e ir p a ren ts , or by both, depending on the c ircum stances, in accordance w ith a p lan fa irly and ju stly 44 U. S., et al. v. Jeff. County Bd. of Educ., et al. adm in istered fo r the purpose of elim inating segrega tion, the dual school system as such w ill u ltim ate ly d isappear. Goss v. Board of Education, 373 U.S. 683 (1963); B radley v. School Board, 345 F .2d 310,318 (4 Cir. 1965), vaca ted and rem anded on o th er grounds, 382 U.S. 108 (1965 per cu riam ). See also Clark v. Board of Educ. of L ittle R ock, 369 F .2d 661 (8 Cir. 1966); Deal v. C incinnati Bd. of E duc., 369 F.2d 55,59 (6 C ir. 1966); Lee, et al. v. M acon County Board of Education, et al. (D.C. M.D. Ala. 1967) C.A. 604-E, . . . . F . Supp...........If the com pletely fi^ee choice is a f forded and neither the students nor th e ir p a re n ts de sire to change the schools the students h ave hereto fore attended, th is C ourt is w ithout au thority under the Constitution or any enactm en t of C ongress to com pel them to m ake a change. Im plic it in freedom of choice is the rig h t to choose to rem a in in a p a rtic u la r school, pe rh ap s the school hereto fore attended . T h a t in itself is the exercise of a free^ choice. The fac t th a t N egro children m ay not choose to leave th e ir asso ciates, friends, or m em bers of the ir fam ilies to a ttend a school w here those associates a re elim inated does not m e an th a t freedom of choice does not w ork or is not effectively afforded. The assertion by the m ajo rity th a t “ the only school desegregation p lan th a t m eets Constitutional s tan d ard s is one th a t w orks’’ as in te r p re ted by th a t opinion, sim ply m eans th a t students and p a ren ts w ill not be given a free choice if the re sults envisioned by the m a jo rity a re not actually achieved. T here m u st be a m ixing of the races ac cording to m a jo rity philosophy even if such m ixing can only be achieved under the lash of compul- U. S., et al. V. Jeff. County Bd. of Educ., et al. 45 sion. If the percen tage of Negro and w hite chil dren attending a p a rticu la r school does not con- fornn to the percen tage of N egro and white school population p reva len t in the com m unity, the m ajo rity concludes th a t the p lan of desegregation does not work. A ccordingly, w hile professing to vouch safe freedom and liberty to Negro children, they have destroyed the freedom and liberty of a ll students, Negro and w hite alike. T here m ust be a m ixing of the races, or in tegra tion a t all costs, or the p lan does not w ork according to the opinion. Such has not been and is not now the sp irit or the le tte r of the law. The a im and a ttitude of the m ajo rity is reflected by the following s ta te m e n t: “ In review ing the effectiveness of an ap proved p lan it seem s reasonable to use som e so rt of y a rd stick or objective percen tage guide. The percen tage requ irem en ts in the G uidelines a re m odest, suggesting only th a t system s using free choice p lans for a t leas t two y e a rs should expect 15 to 18 p e r cent of the pupil population to have selected desegre gated schools.” F u rth e r the Court equates the percen tage attendance test w ith p e rcen tag es in ju ry exclusion^ cases and One of the leading and most recent cases on jury exclusion is Swain v. Alabama (1965) 380 U.S. 202, 13 L.ed.2d 759. With respect to proportional representation on juries the Court concluded: “Venires drawn from the jury box made up in this manner unquestionably contained a smaller proportion 46 U . S., e t a l . V. J e f f . County Bd. o f Educ., e t a l . voter reg istra tion cases. I t should be pointed out th a t such cases had no e lem ent of free choice in them , and therefore, the com parison is inapposite. In the in s tan t cases the m a jo rity condem ns a free choice p lan unless it achieves the percetitage re su lt w hich suits the m ajo rity . A ccordingly, the opinion con cludes ; “ P ercen tages have been used in o ther civil righ ts cases. A s im ila r inference m ay be d raw n in school desegregation cases, when the num ber of N egroes attending school w ith w hite children is m an ifestly out of line w ith the ra tio of N egro school children to w hite school ch ildren in public schools. Common sense suggests th a t a gross d iscrepancy be tween the ra tio of N egroes to w hite children in a school and the HEW p ercen tag e guides ra ise s an inference th a t the school p lan is not working as it should in providing a un itary , in teg ra ted sy stem .” T here is no constitu tional requ irem ent of p ropor tional rep resen ta tion in the schools according to race. of the Negro community than of the white community. But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which the petit jurors are drawn.” (p. 208) Further, the Court; in Stvain quoted with approval the fol lowing statement from Cassell v. Texas, 339 U.S. 282, 286- 287, 94 L.ed. 839, 847: “Obviously the number of races and nationalities appear ing in the ancestry of our citizens would make it im possible to meet a requirement of proportional representa tion. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.” U. S., et al. V. Jeff. County Bd. of Educ., et al. 47 F u rth erm o re , sihce th e re can be no exclusion based on race , proportional lim itation is likewise im perm is sible under the Constitution. We should be concerned w ith the elim ination of d iscrim ination on account of race, and freedom of choice is one m ean s of accom plishing th a t goal. I t is not our function to condem n the children o r the school au thorities because the free choices actua lly m ade do not com port w ith our own notions of w hat the choices should have been. When our concepts as to p ropor tions and p ercen tages a re im posed on school system s, notw ithstanding free choices actually m ade, we have destroyed freedom and liberty by jud icia l f ia t; and even w orse, we have done so in the v e ry nam e of th a t liberty and freedom we so avidly c laim to es pouse and em brace. Our duty in seeking to elim inate rac ia l d iscrim ination is to vouchsafe to all children, regard less of race , a full, com plete and tim ely free choice of schools in appropria te cases in keeping w ith sound adm in istra tive p rac tices w hich take into con sideration p roper c rite ria . Both proportional rep resen tation and proportional lim itation a re equally uncon stitutional. Enforced Integration The opinion seeks to find a C ongressional m andate requiring com pulsory or enforced in tegration in the public schools as distinguished from the elim ination of segregation. Throughout the opinion th e re appear 48 U. S., et al. V. Jeff. County Bd. of Educ., et al. a tangled conglom eration of w ords and ph rases of various shades of m eaning, all of w hich a re equated w ith each other to reach the conclusion desired by the m a jo rity th a t school boards in th is C ircuit m ust adopt and im plem ent a p lan of forced integration. I t seemis app rop ria te to re tu rn to the Civil R ights A ct of 19'64 and the leg islative h isto ry w hich spaw ned its enac tm en t in o rder to ascerta in the true C ongres sional intent. Section 401(b), 42 U.S.C.A. § 2000c(b) defines desegregation in unequivocal term*s: “ ‘D esegregation’ m eans the assignm ent of students to public schools and w ithin such schools w ithout reg a rd to th e ir race, color, religion, or national origin, but ‘desegrega tion’ shall not m ean the assignm ent of stu dents to public schools in order to overcom e rac ia l im b a lan ce .” Section 407(a)(2) of Title IV, Title 42 § 2000c-6(a) (2) provides as follows: ‘‘. . .provided th a t nothing herein shall em power any official or court of the U nited S tates to issue any o rder seeking to achieve a rac ia l balance in any school by requiring the tran sp o rta tio n of pupils or students from one school to ano ther or one school d is tric t to ano ther in order to achieve such racial bal ance, or otherwise enlarge the existing power of the court to insure com pliance w ith consti tutional standards.” (E m phasis added) 17. S., et al. V. Jeff. County Bd. of Educ., et al. 49 It should be noted th a t the portion of the language of the proviso w hich is underscored is om itted in the co u rt’s opinion. As to enforced in teg ra tion the follow ing s ta tem en t by Senator H um phrey is exactly in point: “ Mr. H um phrey. . .1 should like to m ake one fu rth e r reference to the G ary case. This case m akes it quite c lear th a t w hile the Constitu tion p rohib its segregation, it does not require in tegration . . .The bill does not a ttem p t to in teg ra te the schools but it does a ttem p t to elim inate segregation in the schools. . .The fac t th a t there is a rac ia l im balance p e r se is not som ething w hich is unconstitutional. T hat is why we have attetm pted to clarify it w ith the language of Section 4.” (110 Congression al R ecord 12717) Likewise w ith respect to Section 407(a)(2) Senator H um phrey’s s ta tem en t clarifies and m akes p lain the Congressional in tent by re fe rring to the Gary case.^^ The following additional excerpts from the leg isla tive h isto ry serve to clarify the in ten t of Congress. C ongressm an Celler, C hairm an of the Ju d ic iary C om m ittee of the House and F loor M anager of the bill; “T here is no authorization for e ither the At torney G eneral or the Com m issioner of Edu- Bell V. School City of Gary, Indiana, 213 P. Supp. 819 (1963). 50 17. S., et al . V. Jeff. County Bd. of Edue., et al. cation to w ork tow ard achieving rac ia l ba l ance in given schools.” (110 C ongressional R ecord 1519, Jan u a ry 31, 1964) Senators Byrd and H um phrey : ‘‘MR. BYRD of W est V irginia. B ut would the Senator from M innesota also indicate w hether the w ords ‘provided th a t noth ing herein shall em pow er any official or court of the United S tates to issue any order seeking to achieve a rac ia l balance in any school by requ iring the tran sp o rta tio n of pupils or students from one school to ano ther or one school d is tric t to ano ther in o rder to achieve such rac ia l ba lance’ would p rec lude the Office of Education, under section 60'2 or Title VI, from establishing a req u ire m ent th a t school boards and school dis tric ts shall take action to relieve rac ia l im balance w herever it m ay he deem ed to exist? ‘‘MR. HUM PHREY. Yes, I do not believe in duplicity. I believe th a t if we include the language in Title IV, it m u st apply throughout the A ct.” (110 Congressional R ecord, P age 12715, June 4, 1964). Senator Jav its ; ‘‘MR. JAVITS. . .Taking the case of the schools to which the Senator is referring , and the danger of envisaging the ru le or U. S., et al. V. Jeff. County Bd. of Educ., et al. 51 regu la tion re la ting to ra c ia l im balance, it is negated expressly in the bill, w hich would com pel ra c ia l balance. Therefore there is no case in w hich the th ru s t of the s ta tu te under w hich the m oney would be given would be d irected tow ard re storing or bringing about a rac ia l ba l ance in the schools. If such a ru le w ere adopted or prom ulgated by a b u reau cra t, and approved by the P residen t, the Sen a to r’s S ta te would have an open and shut case under Section 603. T h a t is why we have provided for jud icia l review . The Senator knows as a law yer th a t we never can stop anyone from suing, nor stop any G overnm ent official from m aking a fool of him ’self, or from try ing to do som ething th a t he has no righ t to do, except by re m edies provided by law. So I believe it is th a t se t of w ords w hich is opera tiv e .” (110 C ongressional R ecord, P age 12717, June 4, 1964). Senators B yrd and H u m p h rey : “MR. BYRD of W est V irginia. . .C annot the Office of Education, pu rsu an t to c a r ry ing out this regulation, deny assis tance to school d is tric ts w herein rac ia l im bal ance exists? MR. HUM PHREY. Let m e read from the substitu te: Provided, th a t nothing h ere in shall em pow er any official or court of the U nited S tates to issue any order. 52 17. S., et al. v. Jeff. County Bd. of Educ., et al. MR. BYRD of W est V irginia. ‘To issue any o rd e r’, bu t does it provide th a t the Office of E ducation shall not cu t off F edera l assistance? MR. HUM PHREY. But in order to cu t off F ed e ra l assistance, the P resid en t would have to issue the o rder, if the Senator will read Section 602. MR. BYRD of W est V irginia. The w ords are: No such rule, regulation, or o rder shall becom e effective unless and until ap proved by the P residen t. MR. HUM PHREY. T hat is correct. MR. BYRD of W est V irginia. W hat a ssu r ance does the Senator give m e th a t the P resid en t will not approve such a re qu irem en t ? MR. HUM PHREY. B ecause I do not be lieve the P residen t will vio late the law .” (110 Congressional Record, P age 12715, June 4, 1964). In o rder to escape the c lear m eaning of the quoted sta tu tes and the unquestioned intent of C ongress as illu stra ted by the legislative history, the opinion sum m arily ob lite ra tes any distinction betw een desegre gation and in tegration . W ithin the context of the opin ion in tegration m eans forced or enforced integration. A gain the te rm in tegration: Is applied only to de jure segregated_seh:6ols. An analysis of the opinion demon- U. S., et al. V. Jeff. County Bd. of Educ., et al. 53 s tra te s th a t the process of reasoning used am ounts to an unauthorized insertion of the w ord “ de ju re ” to achieve land m ain ta in the de facto and de ju re dis tinction w ith w hich I dealt ea rlie r. By m ean s of th is device the opinion converts the Civil R ights A ct of 1964 into a new and different concept en tirely foreign to its tru e m eaning. I quote sev era l typ ica l excerp ts from the opin ion: “W e use the te rm s ‘in teg ra tio n ’ and ‘desegre gation’ of fo rm erly seg rega ted public schools to m ean the conversion of a de jure seg re ga ted dual sy stem to a un itary , non rac ia l (nondiscrim inatory) system —lock, stock, and b a rre l: students, faculty , staff, facilities, p rog ram s, and ac tiv ities.” (E m phasis added) (footnote 5, page 6) “The national policy is plain: fo rm erly de jure segregated public school sy s te m s based on dual attendance zones m u st sh ift to uni ta ry nonrdcial sy s tem s— w ith or w ithou t fed eral funds.” (E m phasis in orig.) (page 14) * * * ‘‘A lthough the leg islative h isto ry of the s ta t u te shows th a t the floor m an ag ers for the A ct and other m em bers of the Senate and House cited and quoted these two opinions they d id so w ithin the context of the p roblem of de facto segregation .” (E m phasis added) (P ag e 39) [The two cases m entioned a re Briggs and Bell.] 54 U. S., et al. v. Jeff. County Bd. of Educ., et al. “A s used in the Act, therefo re , ‘deseg rega tion’ re fe rs only to the d isestab lishm ent of seg rega tion in de jure segregated schools.” (E m phasis added) (page 74) ♦ “S enato r H um phrey spoke sev era l tim es in the language of Briggs bu t h is references to Bell ind icate th a t the restric tions in the A ct w ere pointed a t th e G ary, Ind iana de facto type of segregation .” (E m phasis added) (page 80) A gain it should be said th a t it is not easy to under s tan d the reasoning by w hich the m a jo rity concludes th a t the F e d e ra l C onstitution req u ires in teg ra tion of fo rm erly de jure school system s bu t does not re qu ire the in teg ra tion of de facto system s. A pparently faced w ith th is d ilem m a the m a jo rity realized th a t it m u s t challenge the ju risp rudence estab lished by Briggs v. E llio tt (E .D . S.C. 1955) 132 F . Supp. 776, and Bell V. School City of G ary (N.D. Ind. 1963) 213 F . Supp. 819, a ffirm ed 324 F.2d 209 (7 C ir. 1963). The opinion re fe rs to these cases as “ two glosses on B row n’’. The rep eated assertions of Senators show ing th e ir re liance upon the two decisions in question give em phasis to the m eaning of the teach ing of those two cases. S ena to r H um phrey ac tua lly s ta ted th a t the th ru s t of Ju d g e B eam er’s opinion in th e G ary case w as incorpora ted into the Civil R ights A ct of 1964.̂ ® The m a jo rity disposes of Senator H um phrey’s com m en t and the G ary case by asserting th a t the school IS See opinion page 81. 17. S., et al. V. Jeff. County Bd. of Educ., et al. 55 d is tric ts w ere d raw n w ithout reg a rd to race. The fol lowing is from the opinion; “S enato r H um phrey spoke sev era l tim es in the language of Briggs bu t h is refe rences to Bell indicate th a t the res tric tio n s in the A ct w ere pointed a t the G ary, Ind ian a de fac to type of segregation .” (opinion page 80) While it m ay be tru e th a t the fac ts in G ary showed good fa ith on the p a r t of the school board , it is like w ise tru e th a t the G ary school sy stem involved de ju re segregation w ith in the m eaning of the m a jo rity opinion. We quote from Judge B eam er’s opinion, 213 F . Supp. a t 822: “ P rio r to 1949, G ary had seg rega ted schools in w hat is com m only known a s the P u lask i Complex. Two schools w ere built on the sam e cam pus, one w as called P u lask i-E ast and the other Pulaski-W est. One w as occupied by N e gro studen ts and the o ther by w hite students. This w as in accordance w ith the sep a ra te bu t equal policy, then p erm itted by Ind iana law, (B urns Ind iana S ta tu tes A nnotated, 1948 R e p lacem ent, Section 28-5104)” The difficulty of the m a jo rity is fu r th e r in creased by v irtu e of the fa c t th a t Judge B eam er cited cases w hich uphold the Briggs doctrine. M ore im portan t, w hen the case w as a ffirm ed by the Court of A ppeals of the Seventh C ircuit, the so-called B riggs d ictum '56 17. S., et al. v. Jeff. County Bd. of Educ., et al. w as cited as au thority for the co u rt’s holding, 324 F .2d a t 213. If the alleged Briggs d ic tum is so c learly erroneous and constitutionally unsound, it is difficult to believe th a t i t would have been accepted fo r a period of a l m ost twelve y e a rs and quoted so m an y tim es. E ven the m a jo rity concedes th a t the court in Briggs w as com posed of d istinguished ju ris ts . Judges P a rk e r, Dobie and T im m erm an . If the m ajoirity is correct, it is en tire ly likely th a t n ev er before have so m any judges been m isled, including judges of th is Court, fo r so long by such a c lear, understandab le , d irec t and concise holding a s the language in B riggs w hich the opinion now condem ns. The language is s tra ig h t fo rw ard and sim ple: “The Constitution, in o ther w ords, does no t requ ire in tegration . I t m ere ly forbids d iscrim ination . ’ ’ I t is in teresting also to observe th a t the Suprem e Court h as n ev er d istu rbed the Briggs language, al though it h as h ad num erous opportunities to do so. As a m a tte r of fac t, it h a s com e v e ry close to approv ing it; if it h as not ac tua lly done so. In the case of Shuttlesioorth v. B irm ingham (N.D. Ala. 1958) 162 F . Supp. 372,378, the d is tric t court speaking through Judge R ives quoted the B riggs opinion. The Suprem e Court a ffirm ed the judgm ent. Shuttlesw orth v. B ir m ingham , 358 U.S. 101. The m a jo rity ru le requ iring com pulsory in teg ra tion is neAV and novel, and it has not been accepted See the very clear dissenting opinion of Judge Cox. U. S., et al. V. Jeff. County Bd. of Educ., et al. 57 by the Supremie C ourt or by the o ther C ircuits. The ra tiona le of Briggs has been approved. Brow n de- cisions, supra; Goss v. Bd. of Educ. of K noxville , su pra; Bolling v. Sharpe, 347 U.S. 497,498; P ennsyl vania V. Board of Trusts, 353 U.S. 230,231; Cooper v. Aaron, 358 U.S. 1 (p a s s im ); Scull v. V irginia, 359 U.S. 344,346; W olfe v. N orth Carolina, 364 U.S. 177,182; GomilUon v. L ightfoot, 364 U.S. 339,349; G arner v. Louisiana, 368 U.S. 157,178; Turner v. City of M em phis, 369 U.S. 350,353; Johnson v. V irginia, 373 U.S. 61,62; W right v. R ockefeller, 376 U.S. 52, 57-58; Springfield v. Barksdale (1 Cir. 1965) 348 F.2d 261; B radley v. School Board of R ichm ond, Va. (4 Cir. 1965) 345 F .2d 310; Sw ann v. C harlotte-M ecklenburg Board of Educ. (4 Cir. 1966) 369 F .2d 29; Deal v. Cin cinnati Board of Educ. (6 Cir. 1966) 369 F .2d 55; Bell V. School C ity of Gary, Indiana (7 Cir. 1963) 324 F.2d 209; C lark v. Board of Educ. of L ittle R ock (8 Cir. 1966) 366 F.2d 661; Downs v. Board of Educ. o f K an sas C ity (10 Cir. 1964) 338 F.2d 988, cert, den., 380 U.S. 914. Conclusion I t is m y judgm ent th a t the de facto-de ju re d istinc tion c rea ted in the opinion can not be supported as a m a tte r of law . P e rcen tag e o r p roportional enrollm ent requ irem en ts based on race , and enforced in teg ra tion a re in violation of well established constitu tional concepts in m y opinion. While it cannot be denied there has been recalc i tran ce and resistance to desegregation as requ ired 58 U, S., et al. V. Jeff. County Bd. of Educ., et al. by the Brow n decisions in num erous a reas , I cannot sh are in the pessim ism expressed in the opinion. Throughout th e country a su b stan tia l effort h a s been m ade to elim inate segregation and su b stan tia l prog ress h a s been m ade. The Brow n decisions contem p la ted som e difficulties and com plexities. A review of the h isto ry of the difficulties involved strongly in dicate th a t the g rea test p roblem s arise w hen a s ta r t or “ b reak th rough” is initiated. R eca lc itran ce and re sistance w hich ap p eared in itially in m any a re as have now subsided o r d isappeared . I t is also tru e th a t the em phasis has shifted p roperly fro m “ d e lib e ra te” to “ speed” . I continue to have confidence in the local school boards of the nation. While som e of them have perform ed slowly and a few have not perfo rm ed a t all, the v a s t m a jo rity of school boards a re com posed of conscientious, civic m inded, sincere people who a re undertak ing to do w h a t is best for the school children of the nation. We should not in te rfe re w ith them un duly. F u rth erm o re , I continue to have confidence in the judicia l sy stem of the country and hold the firm be lief th a t the reco rd of the courts in achieving com pliance w ith the Brow n decisions d em onstra tes th a t th e courts h av e given th e ir prom pt, carefu l and dili gent a tten tion to the p roblem s as they h av e arisen . In m y view the heav iest bu rden has been on the dis tr ic t courts, and inevitab ly the best solutions will com e a t the d is tric t court level w here the judges a re in close con tac t w ith local com plexities, obstacles and problem s. The p rim ary responsib ility should be left w here the Brow n decisions p laced it, w ith the boards of education under the supervision and guid- 17. S., et al. V. Jeff. County Bd. of Educ., et al. 59 ance of the d is tric t courts. This is not to say th a t the courts should not accord full consideration to the ex pertise of the D epartm en t of H ealth , E ducation and W elfare; and w.e should give due consideration to HEW G uidelines w hen it is app rop ria te to do so. However, the provisions of the Civil R igh ts A ct of 1964 should not be by-passed. R ules, regu lations and orders of genera l application should be enacted in accordance w ith the requirem ents of due p rocess and school system s should not be penalized by such rules, regu lations or o rders whiich a re not approved by the P res id en t as provided by the Act. I t is no an sw er to say th a t the guidelines a re in terp re tive reg u la tions o r “housekeeping” rules. They a re being used and applied as general rules, regu la tions o r o rders. Due to developm ents in the ju risprudence, p a rticu la rly w ith resp ec t to desegregation of facu lty and staff, the o rders of the d is tric t courts should be v a cated and the causes rem anded for fu rth e r considera tion and fo r ev iden tiary hearings in the d is tric t courts. In effect the appellees recognize the fa c t th a t th is m ust be done. We should not rev erse the d is tric t courts on questions w hich w ere not issues before them and fashion our own decree w ith respec t to such is sues w ithout any ev iden tiary basis or w ithout afford ing an opportunity for the p resen ta tion of evidence re la ting to such issues in the d is tric t courts. Judge BELL, w ith whom Judge GEWIN joins, DIS SENTING: I respectfully dissent. The two-judge or original opin ion of December 20, 1966 is what the majority has 60 U. S., et a l . V. Jeff. County Bd. of Educ., et a l . adopted. T h a t opinion seriously erodes the doctrine of separa tion of pow ers as betw een the E xecu tive and the Ju d ic iary . M oreover, m uch of its language is in the n a tu re of overreach and, as such, adds confusion and luirest to the already troubled area of school de segregation. The overtones of compulsory integration and school racial balances in the original opinion can only chill the efforts of school adm inistrators to complete the task of eliminating dual school systems of the South. In addition, the other side of some of the more important holdings of the majority opinion should be considered and those propositions stated which m ilitate against their validity. The plain in tent of the two opinions is to establish a uniform law for the school systems of th is circuit. Thus, the opinions must be tested as laws. Their validity and efficacy as laws should be considered in the frame of reference of need, fairness, clarity and what is constitu tionally permissible. I t is fundam ental in law making th a t laws should be fair as between people and sections. The requirem ent tha t laws be clear in meaning is also a fundamental. We cannot be expected to obey the law if we cannot tmderstand it. Caligula kept the meaning of the laws from the Romans by posting them in narrow places and in small print^—it is no different today when the law is couched in vagueness. ̂ Suetonius, The Lives of the Tvs''elve Caesars, (Random House, 1959), p. 191, 192. 17. S., et al. V. Jejj. County Bd. of Educ., et al. 61 Then there is the m atte r of personal liberty. Under our system of government, it is not to be restricted except where necessary, in balance, to give others th e ir liberty, and to attain order so tha t all may enjoy liberty. History records that sumptuary laws have been largely unobserved because they failed to recognize or were needlessly restric tiv e of personal liberty . Our experi ments w ith sumptuary-like laws are exemplified by the Dred Scott decision, 19 How. 393, Reconstruction, and the prohibition laws. All failed. The m ajority opinions, considered together, fail to meet the tests of fairness and clarity. The advance ap proval given to a requirement of compelled integration exceeds what is constitutionally permissible under the Fourteenth Amendment. They cast a long shadow over personal liberty as it embraces freedom of association and a free society. They do little for the cause of educa tion. It is important, however, that this dissenting opinion not mislead any person having responsibility in the area of school desegregation. The dual system of education must be eliminated. This was ordered in 1955. Brown V. Board o f Education o f Topeka, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. School boards were told to convert the dual segregated school systems into racially nondiscriminatory school systems. The court pointed to problems tha t might arise in the transition w ith respect to the physical condition of school plants, transportation, personnel, and in the revision of school districts and 62 U. S., et al. V. Jeff. County Bd. of Educ., et al. attendance areas into compact areas. This order followed reargum ent of the question of remedy after the 1954 decision holding segregated education xmder the separate but equal doctrine unlawful. Brown v. Board of Educa tion, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. A fter full argument, the transition was ordered. The separate but equal doctrine was already lost and the tim e for remedy was at hand. Transition was the rem edy pro vided. Transition to date has in the main consisted of follow ing a freedom of choice plan for pupil assignment. But freedom of choice without faculty desegregation and the elimination of discrimination in buildings, equipment, services and curriculum will not suffice to convert a dual system into a unitary nondiscriminatory system. The slow progress to date toward eliminating dual systems is what has brought about the majority opinions, and is also at the root of the disturbance betw een the Health, Education, and Welfare Department and many school boards. The objective m ust be, as the Departm ent of Justice contends, that there be no white schools— n̂o Negro schools—just schools. But this is all tha t is re quired and it can be accomplished without the open-end compulsory integration language of the majority opinions, or the geometric progression guidelines® of HEW which the majority opinion approves. 2 Even v/hile these cases were pending after en banc argument, HEW announced new guidelines. Now for a school system to receive approval without further investigation, it must show that the number of minority group students in integrated schools within the system in the school U. S., et al. V. Jeff. County Bd. of Educ., et al. 63 The mandate of the Supreme Court in Brown II can be carried out by the assignment of faculty and students w ithout regard to race, and by affording equality in educational opportunity from the standpoint of build ings, equipment, and curriculum. W here freedom of choice in student assignment is ineffective to the extent tha t a dual system continues, it can be implemented by a neighborhood assignment plan. Assignments should then be made by the school board to the school nearest the home of the student, whether form erly w hite or Negro. Then the child would be given the option im der a freedom of choice plan of attending another school w ith priority to attend being based on proximity of residence to school. This m ethod of student assignment is comparable to what is being used in Charlotte. Cf. Swann v. Charlotte-Mecklenburg Board of Education, 4 Cir., 1966, 369 F.2d 29 (En banc). We should order the school boards in these cases, which they and the entire court agree must be reversed, to forthw ith complete the conversion from dual to unitary systems by the use of these minimum but manda tory directions. School boards and the public would understand the objective—to convert dual school systems into im itary nondiscriminatory systems just as the Su prem e Court directed twelve years ago. School boards and the public would also understand the method to be followed in the conversion. But this approach is too simple for the majority. Their view is th a t something year 1967-68 will be double the number present in 1966- 67 and in some instances triple the number. New Orleans Times-Picayune, March 16, 1967, page 1, Column 4, Associated Press. 64 U. S., et al . V. Jeff. County Bd. of Educ., et al. more is required—a result which brings about substantial integration of students. The mandatory assignment of students based on race is the method selected to achieve this result. This is a new and drastic doctrine. I t is a new dimension in constitutional law and in race rela tions. It is new fuel in a field where the old fire has not been brought under control. PROCEDUEAL B U E PROCESS AND THE APFROV- A L OF THE GUIDEUNSS The scope of the m ajo rity holding as to the binding force on the fed era l courts of the HEW guidelines in the a re a of school desegregation posed a serious sep a ra tio n of pov/ers question. T hat fa c t alone should have indicated th a t the valid ity of the HEW guidelines w as of p rim ary concern. One of the m a jo r p rem ises of the original or panel opinion is th a t HEW excuses those school system s w hich a re under court order from com pliance w ith its guidelines; hence, the neces sity of the court setting the guidelines as m inim um stan d ard s to p reven t the. courts from being used as an escape route. The orig inal HEW R egulation prom ul gated in 1964 m akes this possible. T itle 45A, C FR , § 80.4(c). The HEW sta tem en t of policy of 1965, T itle 45, CFR, § 181.4, receded from this position but the la t est HEW policy supersedes the 1965 sta tem en t which includes § 181.4, s u p r a . See HEW M arch and De cem ber 1906 S ta tem en ts—not reported in CFR. The HEW S tatem ents of Policies for School D eseg regation a re refe rred to generally in the school de- 17. S., et al. V. Jeff. County Bd. of Educ., et al. 65 segregation w orld as guidelines. A t le a s t th ree such s ta tem en ts have been issued; one in 1965, one in M arch 1966, and ano ther in D ecem ber 1966. There ap p aren tly have been am endm ents. Footnote 2, supra. No guidelines w h a tev er w ere in issue in the low er courts.® The guidelines of M arch 1966 h ad not been prom ulgated w hen the cases w ere there . Indeed the guidelines of D ecem ber 1966 had not been prom ulgated w hen the cases w ere subm itted a fte r a rg u m en t to the orig inal panel of th is court. The fa c t th a t they had not been in issue did not de ter the court in the orig inal opinion. T here it w as held th a t the “ . . . HEW guide lines now in effect a re constitu tional and a re w ithin the s ta tu to ry au thority c rea ted in the Civil R ights Act of 1964” This p e rh ap s m ean t all guidelines prom ul gated up to the date of the opinion, D ecem ber 29, 1966, Any doubt as to the inclusion of the D ecem ber 1966 guidelines w as resolved when the m ajo rity in the en banc p e r cu riam opinion s ta te d th a t the 1965 and 1966 HEW guidelines a re w ithin the decisions of this court and comply w ith the le tte r and spirit of the Civil Rights Act of 1964 and m eet the requirements of the United States Constitution. This is adjudication without any semblance of due process of law. It is an unprecedented procedure and a shocking ® The practice of hearing appeals in school cases on old records is very unsatisfactory. We do not know what changes in desegregation plans may have been made in the interim. It is a rapidly changing public area where plans as well as the law are in flux. Cf. Calhoun v. Latimer, 1964, 377 U.S. 263, 84 S.Ct. 1235, 12 L.Ed.2d 288, where the court took note of a supervening plan and remanded for an evidentiary hearing in the District Court. 66 U. S., et al. V. Jeff. County Bd. of Educ., et al. departure from even rudim entary due process.'* Approval of future guidelines is limited by the m ajority to those . -within lawful limits.” The theory of the court escape route and the necessity to hold all guidelines valid is apparently developed in the in terest of supporting the national policy, as ex pressed in the Civil Rights Act of 1964, of eliminating discrimination in public education. The general them e of the majority is tha t HEW has the carrot in the form of federal fxmds but no stick. A stick is needed in those situations w here a school board may not take federal fimds. The aim is to make a stick out of the federal coiuts. The courts should cooperate w ith HEW but they cannot be made to play the part of any stick tha t HEW may formulate and th is is the tenor of the original opinion. Courts are restricted to acting w ithin the limits of the Fourteenth Amendment in the school desegregation area. I t may or may not be proper for a court to act within the limits of what the HEW policy may be in allocating federal school funds. Sometimes there may be a dif ference. A decent respect for the judiciary dictates that we make this plain. * Section 602 of Title IV of the Civil Rights Act of 1964, 42 USCA, § 2000d-l provides that no rule, regulation or order of HEIW shall become effective unless and until approved by the President. Whether the guidelines are such rtiles or regulations cannot be decided without an evidentiary hearing concerning their meaning through application. This question has never been put in issue in these cases. U. S., et al. V. Jeff. County Bd. of Educ., et al. 67 THE STANBAUD EEQUIEED BY THE E-IAIOBITY IS UNCONSTiTUTIONAELY VAGUE The original opinion states in two places tha t the only satisfactory p lan for desegregating a school system is one tha t works. One looks in vain for a definition of “one that works”. This is manifestly a vague standard. It cannot be followed. Moreover, it is subject to selec tive enforcement and a statute couched in such language would be patently unconstitutional. In another place in the original opinion the statem ent is made that substantial integration must be achieved in disestablishing dual school systems. This is not clear. What is substantial? Is the reference simply to a system, or to each school, or to each class room? The en banc per curiam opinion may have attem pted to improve the standard by saying that the criterion for determining the validity of a provision in a school de segregation plan is w hether the provision is reasonably related to accomplishing the objective of educational opportunities on equal terms to all. Who knows the meaning of this? There is no mention of result. These vague standards are perhaps the most mis chievous parts of the majority opinions. They place unfettered discretion in HEW in the area of school desegregation. No school board will ever know when it has perform ed its duty to eliminate the dual school system. No school board will ever know w hether federal funds will be made available. This type of standard 68 U. S., et a l . V. Jeff. County Bd. of Educ., et a l . places school systems under m en and not laws. School boards and school patrons are entitled to a clear and definite standard. The problem of desegregation will not be solved absent a clear standard. THE BE JUEE-DE FACTO DOCTEINE IS INFAIR The unfairness which inheres in the majority opinion stems from the new doctrine which the original panel fashioned under the concept of classifying segrega tion into two types: de jure segregation, called apartheid, for the seventeen southern and border states formerly having legal segregation; and de facto segregation for the other states of the nation. This distinction, which must be without a difference and somewhat hollow to a deprived child w herever located, is used as a beginning. The original opinion then goes on to require affirmative action on the part of the school authorities in the de jure systems to integrate the schools. The neighborhood school systems of the nation w ith their de facto segrega tion are excused. The Constitution does not reach them.® This reasoniag is necessary to reach the end of com pulsory integration in the so-called de jure states. It is the counterpart to overruling the settled construction of the Fourteenth Amendment, to be next discussed, that integration is not commanded. The restrictions in the Civil Rights Act of 1964 against requiring school racial balances by assignment and transportation are written ® The legislative history of the Civil Rights Act of 1964 does not show that Congress acted on a de jure-de facto basis. I would not attribute such a form of sectionalism to the Congress. U. S., et al. V. Jeff. County Bd. of Educ., et al. 69 out of the law w ith respect to the de jure states by using the de ju re-de facto theory. Title IV, §§ 401(b), 407(a), 42 USCA, §§ 2000c(b), 2000c-6. The overruling of the constitutional lim itation removes the other im pediment to compulsory integration. The way is thus cleared for the new dimension. The only question left is when, and to what extent. The authority to HEW is ca rte blanche. We should disavow the de jure-de facto doctrine as being itself violative of the equal protection clause. It treats school systems differently. I t trea ts children differently. It is reverse apartheid. I t poses the question w hether legally compelled integration is to be substituted for legally compelled segregation. I t is unthinkable tha t our Constitution does not contemplate a middle ground—no compulsion one way or the other. The de jure-de facto doctrine simply is without basis. Segregation by law was legal until the Brown decision in 1954. Such segregation should hardly give rise to pimitive treatm ent of those states employing what was then a legal system. The Supreme Court has never so indicated. Moreover, the Supreme Court holding in Brown was based on the finding that segregated educa tion was unequal. How can it be unequal in one section of the country and not another? Does Brown interdict only segregation imposed affirm atively by law, or does its rationale also include the state action of holding to neighborhood assignments thereby perpetuating de facto segregation? The majority decision limits the rationale to the southern and border states type of segregation formerly imposed affirmatively by law. In such event compelled integration may be required in the de jure ?0 U. S., et al. V. Jeff. County Bd. of Educ., et al. states but the logic of reaching this point, because of the restrictions in the 1964 Act to the contrary, excuses the de facto states from the Act and the Constitution. The real answer is tha t no such new doctrine or theory is necessary. The schools of the South and border states must do what the Supreme Court has ordered—convert dual school systems into unitary nondiscriminatory school systems. The constitutional power already exists in the courts to see that this is done. This newly discovered source of power tends only to disturb settled doctrine. Its purpose can only be to require racial balances in the de jure states. THE BRIGGS DICTUM It is a settled constitu tional principle th a t the F o u r teenth A m endm ent does not requ ire com pulsory in teg ra tion but only p roscribes segregation. I t is the s ta te action segregation w hich violates the equal p ro tection clause. We have so stated in the following cases; A very v. Wichita Falls Independent School District, 1956, 241 F.2d 230; Borders v. R ippy, 1957, 247 F.2d 268; R ippy v. Borders, 1957, 257 F .2d 73; Cohen v. Public Housing Administration, 1958, 257 F.2d 73; City of M ontgom ery v. Gilmore, 1960, 277 F.2d 364; Boson v. Rippy, 1960, 285 F.2d 43; Stell v. Savan- nah-Chatham County Board of Education, 1964, 333 F.2d 55; E vers v. Jackson, 1964, 328 F.2d 408; Lockett V. Board of Education of Muscogee County, 1965, 342 F.2d 225. U. S., et al. V. Jejj. County Bd. of Educ., et al. 71 This princip le is euphoneously re fe rred to in the orig inal tw o-judge opinion as the Briggs d ictum . I t w as s ta ted in Briggs v. E llio tt, E.D .S.C., 1955, 132 F. Supp. 776, but no court, un til now, h as ever held the F o u rteen th A m endm ent to m ean otherw ise. The A m endm ent is en tirely negative in c h a rac te r. The orig inal panel, as a p a r t of its tw o-pronged approach to com pulsory in tegration , overru led th is principle suh silentio. The court, sitting en banc, could overru le th is set tled p rincip le and the m ajo rity h a s now done so to an unknown ex ten t in p a ra g ra p h 3 of the p e r cu riam opinion. We will not know the ex ten t until the ques tion of ra c ia l p e rcen tages is squarely presented . H ere, as I understand the p e r cu riam opinion, the question is tan g en tia l except as it re la te s to converting to a u n ita ry school system . In the f irs t sentence of p a r ag rap h 3 the m a jo rity holds th a t school boards have the affirm ative duty under the F ou rteen th A m end m en t to bring about a un ita ry school sy stem in w hich there a re no Negro or w hite schools—^just schools. We can all ag ree on th is statem ent. The opinion does aw ay w ith any distinction betw een the te rm s “ in te g ra tion” and “ segregation” in the field of school de segregation law insofar as the distinction in te rfe res w ith the a ffirm ativ e duty to b ring about u n ita ry school system s. We can all ag ree on this. I t is then said th a t in fulfilling th is duty it is not enough for school au thorities to offer Negro children the oppor tunity to a ttend fo rm erly all w hite schools bu t th a t such opportunity m u st be coupled w ith the in tegra- 72 U. S., et al. v. Jeff. County Bd. of Educ., et al. tion of faculty , facilities, and activ ities. Then, w ith out m ore , the decisions of th is court setting out this p rincip le a re overru led to the ex ten t th a t they con flict w ith the view of the m ajo rity . I am left in doubt as to w hether th is is a re tren ch m en t from the panel decision. T im e will tell. I t m ay be added th a t if the court is overruling this settled constitu tional principle, it b rings th is c ircu it into conflict w ith the F irs t, F ourth , Sixth, Seventh, E ighth , and Tenth C ircuits. Springfield v. Barksdale, 1 Cir., 1965, 348 F .2d 261; B radley v. School Board of R ichm ond, V irginia, 4 Cir., 1965, 345 F .2d 310; Sw ann V. Charlotte-M ecklenburg Board of Education, 4 Cir., 1966, 369 F .2d 29; Deal v. Cincinnati Board of E duca tion, 6 Cir., 1966, 369 F.2d 55; Bell v. School, C ity of Gary, Indiana, 7 C ir., 1963 , 324 F.2d 209, cert, den., 377 U.S. 924, 84 S.Ct. 1223, 12 L .Ed.2d 216; Clark v. Board of Education of L ittle Rock, 8 C ir., 1966, 366 F.2d 661; and Downs v. Board of Education of K ansas City, 10 Cir., 1964, 336 F.2d 988, cert, den., 380 U.S. 914, 85 S.Ct. 898, 13 L .Ed.2d 800. The case of Taylor V. Board of E ducation of N ew Rochelle, 2 C ir., 1961, 294 F.2d 35 is not to the con tra ry . T here the rem edy fashioned w as freedom of choice im posed on neigh borhood assignm ents. The case of Board of E duca tion of O klahom a City v. Dowell, 10 Cir., 1967, . . . . F . 2d ____ [slip opinion dated Ja n u a ry 23, 1967], does not ap p ea r to be to the con tra ry . The court distin guished Downs by pointing out th a t Dowell involved a finding of bad fa ith on the p a r t of the school board in carry ing out the orig inal o rder of the D istric t Court to d isestab lish the dual school system . U. S., et a l . V. Jeff. County Bd. of Educ., et al. 73 It is h a rd to know ju s t w h a t the court has held as betw een the panel decision and the en banc per cu ri am decision. The labored effort to estab lish the de jure-de facto concept and to overru le th is consti tu tional princip le h ard ly seem s ca lcu la ted as an ex ercise in sem antics. I t is m ore in the n a tu re of ju dicial lagniappe for use on ano ther day. We w ill know the full im port of the opinions w hen a m otion is p re sented to assign children on the basis of race so as to com ply w ith w hat each p a rticu la r m ovant m ay deem to be, in his view, a desirab le ra c ia l com posi tion for the p a rtic u la r school or schools. This leaves the law in a v e ry unsatisfac to ry s ta te and portends of u tte r confusion for school boards.® A good example of the problems to be encountered in eliminat ing the dual school system is to be seen in the Taliaferro County, Georgia school system. See Turner v. Goolslry, S.D. Ga., 1965, 255 F.Supp. 724, for background. There were only two schools in the system and the board desegregated, effective in September 1966, on the basis of converting the white school into an elementary school and the Negro school into a high school. A perfect racial balance would be accomplished under the plan. In 1965 there were approximately 600 Negro children and 200 white children enrolled in the system. The records of the Georgia State Department of Education as of January 19, 1967 indicate that there are now 527 Negro students enrolled in the Taliaferro County school system and no v,rhite students. This result raises serious ques tions. How is a “plan that works” to be formulated for this school system? What number of white students will be needed to make it work? Where will they come from? How will they be selected? Will a lottery system be used? Will they be compelled to attend the Taliaferro County school system? If so, how? Will the taxpayers of the system be compelled to pay for educating chil dren brought in from outside the system? Will the court ignore system lines although the laws of Georgia provide for separate school systems? What measures will be em ployed to avoid resegregation through families removing their residences from the school system? Granted this is an extreme example but it is nevertheless a factual situation. 74 U. S.) et al. v. Jejj. County Bd. of Educ., et al. TH E D E C R E E The use of a uniform decree, as the m a jo rity points out, is not novel. O ur school desegregation decisions have tended tow ard uniform ity in the freedom of choice m ethod of assignm ent and in the ad m in is tra tion of such plans. A uniform decree v/ithin the lim its of m in im um s tan d a rd s would aid school boards and the d is tric t courts but the uniform decree en tered in this case can be faulted because of its detail. This com es about through the unbounded a im of the court to tra c k the HEW guidelines. I t m u st be rem em b ered th a t decrees m ay have to be enforced by the court and a court should guard against being pu t in the un feasible position of having to h e a r m otions based on the alleged b reach of some m inor and insubstan tia l provision of its decree. I t is also not c lear to m e th a t sufficient la titude is left to the d is tric t courts to ad ju s t such p rac tica l difficulties as m ay a rise under the detail of the decree. HEW has an advan tage over the d is tric t courts, as the court has now re s tric ted them , in the execu tion of school desegregation plans. HEW m ay delay, excuse, and change. HEW m ay v a ry its requ irem ents as betw een system s. The m ajo rity has left no such pow er in the d is tric t courts. They a re adm onished to follow HEW but it is a sad day for the d is tric t courts, and fo r the entire jud ic ia ry as w ell as for the p rincip le of separa tion of pow ers w hen the only dis cretion left them is w ithin the lim its to be set by HEW. U. S., et al. V. Jeff. County Bd. of Educ., et al. 75 It also would ap p ea r im proper to constitu te the courts as overlords of the school system s of this c ir cuit to the extent done in the uniform decree. The dis tr ic t courts m u st require school equalization to the extent set out in p a ra g ra p h VI of the decree, i ts scope is only a short step from taking over curricu lum . The building im provem ent provision m oves the courts in the d irection of levying local taxes. O rdering school boards to discontinue the use of buildings could am ount to taking property vdthout due process and ju s t com pensation. Tliese a re d ras tic m easu res and th e re a re no fac ts before the court to dem onstrate the necessity for them . It is en tirely p ro p er for the D istric t Court to d isapprove new construction w here it w ill p e rp e tu ate the dual school system but th is is a m a tte r for com plaint and hearing ra th e r than for ad vance supervision as is requ ired under § VII of the decree. By w ay of sum m ation, I re ite ra te th a t the m ajo rity opinions a re unfair to the ex ten t th a t they d iscover or estab lish and then re ly upon the de jure-de facto divi sive sectional theory. The opinions expand, without constitutional authority , the requ irem en t th a t dual school system s be converted into som ething m ore than u n ita ry school sy s te m s : to-wit, th a t substan tia l in tegration be achieved in the respective school sys tem s. This added requ irem en t is itself im perm issi bly vague as a s tan d a rd w ithout fu rth er delineation. The opinions unduly re s tr ic t personal liberty to the ex tent th a t com pelled in tegration is approved or re- 76 U. S., et al. v. Jeff. County Bd. of Educ., et al. quired, and in this reg a rd im properly overtu rn and expand the settled m eaning of the F o u rteen th A m end m ent. The court e r rs in p rem a tu re ly holding th a t the guidelines issued by HEW a re constitutional and w ith in the scope of the Civil R ights Act of 1964. No guide lines w hatever w ere considered, by the d istric t courts. Some of those approved had not been w ritten . My owm view is th a t the law m akes no such requ ire m en t as the m a jo rity of the court im poses. No such rad ica l d ep artu re is necessary to accom plish w hat the Suprem e Court has d irected the lower courts to accom plish—the elim ination of the dual school sys tem . The Suprem e Court has not said th a t every school m ust have children from each race in its s tu dent body, or th a t every school room m ust contain children from each race , or th a t there m u st be a rac ia l balance or a n ear rac ia l balance, or th a t there be assignm ents of children based on race to accom plish a resu lt of substan tia l in tegration . The Consti tution does not requ ire such. We would do w ell to “ stick to our la s t” so as to ca rry out the Suprem e C ourt’s p resen t direction. It is no tim e for new no tions of w hat a free society em braces. In teg ra tion is not an end in itself; a fa ir chance to a tta in person al dignity through equal educational opportunity is the goal. My view, however, is now lost in this court; hence this DISSENT. U. S., et al. V. Jeff. County Bd. of Educ., et al. 77 COLEMAN, C ircuit Judge. SEPA RA TE OPINION. These cases rem ind m e of w hat Mr. Chief Ju stice Chase said in Texas v. W hited “We a re ve ry sensible of the m agnitude and im portance of this question, of the in te re st it excites, and of the difficulty, not to say im pos sibility, of so disposing of it as to satisfy the conflicting judgm ents of m en equally enlight ened, equally upright, and equally patrio tic . But we m eet it in the case, and we m ust de term ine it in the exercise of our best judg m ent, under the guidance of the C onstitution a lone.” This Court, exercising only such appellate ju risd ic tion as Congress has seen fit to confer upon it, con fron ted solely by a question of how best to p reserve an a lread y settled C onstitutional right, should be guided by the Constitution alone and by nothing else. No one denies tlia t to an incalculable degree the fu tu re of th is C ountry depends inescapably upon the continued, constantly im proved education of all its in habitants. Nor can it very successfully be denied tha t the best p rac tica l hope of a tta in ing this objective is to be found and m ain tained in the public schools. It becam e p lain over a hundred y ears ago th a t p riva te schools did not and could not reach the m asses of the people. Com pulsory d iscrim ination in the public schools, founded on race or color, is Constitutionally dead. No 1 74 U.S. 700,720; 7 Wall 700; 19 L. Ed. 227 (1868). 78 U. S., et al . V. Jeff. County Bd. of Educ., e t al. Judge would dispute this. E x isten tia lly it is like the wounded an im al Vv''hicfa bounds on for awhile a fte r it has been fa ta lly shot. The c ritica l p roblem now is th a t we m ust not w reak irrep a rab le in ju ry upon public schools while executing the sentence of death against com pulsory segregation. Thoroughly realizing this, the Suprem e C ourt left the details of the erad ication to the sound jud icia l d iscretion of the D istric t Courts, sub ject only to appellate review . To this day this as signm ent h as not been changed. I do not suppose in our fo rm of governm ent th a t it could be changed. Courts alone m ake binding adjudications on questions of Constitutionality, and litigation m ust begin a t the D istric t level. The public schools of the Nation, not ju s t those of a p a rtic u la r section, a re now caught up a t the second battleground, legal and political, not about the death of unlaw ful d iscrim ination bu t about who and how m any of any p a rtic u la r race shall go to any p a rticu la r school w ith how m any m em b ers of som e other race. If one looked only a t the g rea t volum e of litigation and its accom panying strife and publicity he would jum p to the conclusion th a t nothing m a tte rs bu t the rac ia l com position of any educational facility. This is pursued reg ard less of the rea l preferences, exercised, in genuine freedom , of those d irectly involved, th a t is, those who m ust have an education. In the u ltim ate th is could becom e a g re a t tragedy for those m ost af fected. An educational house divided against itself m ay have trouble standing. I t certa in ly cannot oper a te w ith m axim um effectiveness. U. S., et al. V. Jeff. County Bd. of Educ., et al. 79 In the light of these considerations, as one who w as able to secure an education solely because there w as a public school in w hich th e re w as an opportunity to obtain it, I shall now express m y views, as one Judge of th is Court, individually, as to the decision now about to be rendered . In doing so, I proceed upon the thesis th a t th e re is nothing a t all inconsistent about being, a t the sam e tim e, both a loyal A m erican and a Southerner. I think A ndrew Jackson conclusively settled th a t point over a cen tury ago. I t is p a rticu la rly unfortunate if our decision in these cases is in any w ay to be grounded on old scores against the S ta tes of this Circuit. This is con tra ry to A m erican legal trad ition ; it opens old wounds, re kindles old fires, and lends itself as a w eapon to the futile cause of fu r th e r in transigency. P rio r to 1954, rac ia lly sep ara te , if equal, schools had not been con dem ned as im constitutional. One is not to be punished or h a ra ssed for an ac t which w as law ful w hen it w as done’. Indeed, such condem nation in th is instance would inferen tia lly include some of the m ost highly respected Judges who ever g raced the Suprem e Court. They had opportunities to condem n the system but, in the exercise of p e rfec t jud icia l in tegrity , did not. As I understand it, an O m nipotent God does not change yesterday when it is p a s t and gone. C ertain ly this Court cannot do it. We a re now concerned w ith rec ti fying the e rro rs of the p resen t and forestalling , if we can. the an tic ipated e rro rs of the fu tu re. I decline to p a rtic ip a te in any ex post facto condem nations. I pre- 80 U. S., et a l . V. Jeff. County Bd. of Educ., et a l . fe r to believe th a t this Court is not de liberate ly doing so. I fu rth e r believe th a t w hatever the F ou rteen th A m endm ent requ ires of any S tate it requ ires of all States. If w e a re requ iring som ething h ere in the en fo rcem ent of F ourteenth A m endm ent righ ts th a t should not be requ ired of all fifty S ta tes then we have exceeded our au thority and we have m isap plied the Constitution. I ag ree w ith the action of the m a jo rity opinion in disclaim ing any in tention of passing on the valid ity of educational operations in o ther C ircuits. T hat m a tte r is not and cannot be be fore us. I t is out of reg a rd for the desirability of C onstitu tional uniform ity th a t I agree, in principle, w ith the a ttem p t to fo rm ulate a decree for the fu tu re guid ance of D istric t Courts in this C ircuit. It is obvious th a t such a decree cannot ad jud icate cases in ad vance of a hearing in the D istric t Court, nor can it be applied in the absence of fac tual justification. The decree speaks for itself, of course, but I in te r p re t it to deal a t th is point w ith m aking freedom of choice a rea lity instead of a prom ise. I do not under stand th a t this C ourt has abandoned freedom of choice, if th a t choice is rea l instead of illusory. Nor do I understand it to d irect th a t there shall be a specified percen tage of the various races in any p a rtic u la r public school or th a t there shall be p ropor tional representation of the races brought about by 17. S., et al. V. Jeff. County Bd. of Educ., et al. 81 a rb itra ry o rder. I ag ree w ith Ju dges Gewin and Bell th a t the opinion strongly portends such a possibility. But p a ra g rap h 5 of the en banc opinion certa in ly dis claim s any such intention. The D is tric t C ourts a re left free to consider all the evidence, including rac ia l a ttendance percen tages, in determ in ing w hether the children of any p a rtic u la r school d is tric t have been offered a reality instead of a shadow. I t is to be an tic ipa ted th a t the bridge will la te r have to be crossed when we come face to face w ith a situation w herein th e re can be no doubt of the freedom but the resu lts a re displeasing and a re a ttack ed solely for th a t re a son. I think it all boils down to this. We once had the doctrine of sep a ra te but equal. We did not, I am so rry to say, pay m uch atten tion to the “ equal” . We now have freedom of choice. As Judge Bell so splen didly s ta tes it, we a re now going to have to m ake ce r ta in of the “ freedom ” . To fail in th is is to invite other action w hich a t th is tim e I reg a rd as unconstitution al bu t w hich could soon be m ade Constitutional. The decree is not as I would have w ritten it had I been charged w ith sole responsib ility for the effort. No offense is intended w hen I doubt th a t it is perfect. F o r exam ple, the en hanc opinion says th a t “ boards and officials adm inistering public schools in th is c ir cuit have the a ffirm ative duty under the F ourteen th A m endm ent to bring about an in tegrated , u n ita ry school sy stem ” . Yet II (o) of the decree prohibits any official from influencing p a ren ts o r students in 82 U. S., et al. V. Jeff. County Bd. of Educ., et al. the exercise of a choice. In o ther w ords, if the offi cials feel th a t N egro ch ildren should be encouraged to apply for adm ission to a fo rm erly w hite school they a re prohib ited from doing so. They a re to be condem ned, on appearances, if no N egro child chooses to a ttend a fo rm erly w hite school; they a re not allowed, in the exercise of o rd inary freedom of speech, to discuss the m a tte r w ith N egro children w ith a view to th e ir exercising a preference in favor of a ttending a school they have not fo rm erly a ttend ed. The school official cannot win. In one b re a th he is told to ac t; in the nex t he is im m obilized. E xperience will hone aw ay these inconsistencies and im possibilities. This Court h as d rafted uniform decrees on p rio r occasions. These a re now speedily outm oded, if not abandoned. Judges, like o ther hu m an beings, do not alw ays w rite in g ran ite ; they often find th a t they have only m ark ed in the sand. Since the HEW guidelines w ere not the subject of a hearing in the Courts below I do not d iscuss them here . In m y view, they a re not now before this Court. The focal point of the whole m a tte r is the action of the en banc opinion repudiating Briggs v. E llio tt and over-ruling our p rio r opinions w hich followed the sam e rationale, see Footnotes 1 and 2 for the ci tations. I t is m y view th a t these p rio r cases w ere correctly decided. O ther C ircuit C ourts in th is C ountry appear U. S., e t a l . V. Jeff. County Bd. of Educ., e t a l . 83 to feel likewise. If the reasoning in these over-ruled cases is in co rrec t then we sim ply face the following: The freedom of the N egro child to a ttend any pub lic school w ithout reg a rd to his race or color, firs t secured in the Brow n cases, is again lost to h im a fte r a short life of less th an th irteen years. He is left open to a fu tu re ad judication th a t although he does not w ish to a ttend School A and has in fac t expressed a desire to go elsew here th is is of no im portance. Be cause of his race he can be assigned to a p a rticu la r school to achieve a resu lt sa tisfac to ry to som eone who probably does not even live in the d is tric t but who w ishes to m ake a rac ia l point. Thus the child re enters the sam e rac ia l d iscrim ination from w hich he escaped so short a tim e ago. He rem ains bogged in race . M oreover, w hen Negro children a re to be se lected by som eone, we know not who, to com ply w ith such a rac ia l assignm ent, on w hat basis will the se lection be m ade? How will the wishes of som e be re spected and others re jec ted , solely because they happen to be of the Negro race? We a re not freeing these children of rac ia l chains. We a re com pounding and prolonging the difficulty. The tru e answ er rem ains, give h im absolute free dom of choice and see to it th a t he gets th a t choice in absolute good faith. In conclusion, I w ish to say th a t in m y own case a burning desire to obtain an education in the face of im possible c ircum stances is not a theoretical experi ence encountered only by others. I did not have an 84 17. S., et al. v. Jeff. County Bd. of Educ., et al. opportunity to a tten d school until I w as eight y ears of age. The delay w as quite unavoidable; th e re sim ply w as no school to a ttend a t th a t p a rtic u la r tim e. My m other taugh t m e how to read and w rite , to add and su b trac t. My to ta l sym path ies a re w ith the cause of education free ly availab le to all. This, of course, under the C onstitution requ ires no special p riv ileges for any group or segm ent of the popula tion. I re g re t th a t w here once the concern w as for schools to a ttend we now have so m uch strife about the details of utilizing those so read ily availab le. W hat I have said h ere in is w ith the g re a te s t defer ence for m y B re th ren who th ink otherw ise. We m ust and shall continue to w ork together according to our individual judgm ents of the law . The en banc deci sion m ay portend m ore problem s ahead th an we have heretofore encountered. I concur in the rev e rsa l of the Judgm en ts below, but m y views of the issues generally a re as here in set forth. GODBOLD, C ircu it Judge, d issen tin g : I respectfu lly dissent. I w ish not to delay appellate p rocedures if any of the p a rtie s desire to pursue them . Therefore, I am recording m y d issen t a t th is tim e and w ill file a d issenting opinion a t a la te r date. Adm. Office. U. S. Courts—E. S. Upton Printing Co., N. O., La.