(specially concurring),
I would speak briefly, for myself alone, in addition to the short opinion of the Court originally prepared by me as a “Per Curiam”.
I do not understand that the district court had to begin anew as if its judgment had been reversed and the cause remanded. The Supreme Court vacated the judgment of this Court, not that of the district court. We simply remanded the case to the district court for consideration in the light of the segregation cases and conditions that now prevail. The district court had already conducted a full hearing at which all of the evidence offered by either party had been received, and thereafter the court had made complete, and even elaborate, findings of fact and conclusions of law. See 116 F.Supp. 248. It is not my understanding that all of that had to be repeated.
As to whether a three-judge district court was required, my views were expressed in a dissenting opinion on the first appeal in this case, 207 F.2d 810, et seq. As there shown, a three-judge court is authorized only when the claim of unconstitutionality presents a' substantial federal question. It has long been settled that a question of constitutionality may be plainly unsubstantial “because ‘its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for. the inference that the question sought to be raised can be the subject.of controversy.’ Levering & Garrigues Co. v. Morrin, supra [289 U.S. 103, 105]; 53 S.Ct. 549; Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 54 L.Ed. 482; McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 54 L.Ed. 95.” Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152. A federal question may become unsubstantial by virtue of an intervening Supreme Court decision, California Water Service Co. v. Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323. The Supreme Court has now made its meaning unmistakably clear that it had declared “the fundamental principle that racial discrimination in public education is unconstitutional,” and' that, "All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle.” Brown v. Board of Education, 349 U.S. 294, 298, 75 S.Ct. 753, 755. After that decision, coupled with the earlier opinion that, “Separate educational facilities are inherently unequal”, Gebhart v. Belton, 347 U.S. 485, 74 S.Ct. 692, it seems to me that no substantial federal question is presented as to the unconstitutionality of the provision of the Louisiana State Constitution reading:
“Separate free public schools shall be maintained for the education of white and colored children between the ages of six and eighteen years.”
The Supreme Court has already passed on the question. The federal question presented is no longer “one which requires analysis and exposition for its decision,” and it is therefore frivolous. Milheim v. Moffat Tunnel District, 262 U.S. 710, 716, 45 S.Ct. 694, 696, 67 L.Ed. 1194.
The meaning of the general expression, “conditions that now prevail” is made more explicit, I think, by the subsequent opinion of the Supreme Court formulating the decrees in the Segregation Cases. Brown v. Board of Education, 349 U.S. 294, 299, 300, 301, 75 S.Ct. 753. “Conditions that now prevail” are well known in a general way, and certainly there is no presumption that judges are léss informed than other persons. The Supreme Court did not require that testimony be taken in all cases' as to such conditions. Hearings of such breadth could well become interminable. A large measure of discretion, coupled with recognition of ju*447dicial knowledge, must be vested in the district judge.
The doctrine of “separate but equal” was displaced because the Supreme Court held that, “Separate educational facilities are inherently unequal.” 347 U.S. 495, 74 S.Ct. 688. If such facilities are actually unequal in other ways in addition to being separate, then we judicially know, certainly in the case of a college as distinguished from the grade public schools, that there are no “conditions that now prevail” which would authorize denying equal opportunities to all students, regardless of race. Otherwise to construe the meaning of the term would be to hold that the Supreme Court placed obstacles in the path of Negro students in addition to those they already faced under the “separate but equal” doctrine, that it turned the clock backward instead of forward. I think that the judgment of the district court was right.