with whom HAYNSWORTH, Circuit Judge, joins (dissenting).
Without semblance or hint of gerrymandering — so conceded by the appellants — school districts were laid out by the Charlottesville School Board for elementary classes in a plan of desegregation which had been filed at the instance of the District Court: each child regardless of race is assigned to the school in the district of his residence. Then, any pupil is allowed — by merely a telephone call — to transfer from any school in which his race is not in the majority. Yet this arrangement is now stricken down by the Court because in the operation of the transfer feature as to one school — Jefferson—there can be no transfer of a Negro student from that school inasmuch as it is predominantly Negro. This is said to be discrimination. I think the conclusion erroneous both in fact and in law.
I. It is not discrimination in fact because the same right of transfer as the white children have at Jefferson is accorded colored children in schools that are mostly “white”. The same restriction of the Negroes at Jefferson is applied to the white children in the other schools. The Negroes may transfer from the latter — and 50 of them did — whereas no white student can leave those schools. It is argued that the white children would would not desire to leave a “white” school but the Negro would want to leave Jefferson, and thus he is deprived, because of his color, of the “right” to attend an integrated school. This is to argue, also, that by leaving Jefferson School the white1 children create segregation there. With: equal reason it may be argued that the» colored children in departing from the' other schools caused segregation there.All of these contentions wrongly ignore-three vital considerations: the fairness-of the entirety of the plan; the Fourteenth Amendment does not guarantee a-student an integrated school to attend;'- and the “segregation” here is not the result of plan but of individual choices of individual students.
The Negro was not placed at Jefferson because he was a Negro, nor was the' white child enrolled at another school because he was white. Neither was so’ placed in order to keep them apart. They are in their respective schools solely because of the location of their respective' residences and for no other reason. The-Jefferson residence district, to repeat, was not arbitrarily formed.
Approval of the plan of the Charlottesville Board has been declared by this-Court. In Dodson v. School Board, 289 F.2d 439 (4 Cir. 1961) we said of it, at p. 442:
“At the elementary school level, the plan contemplates that every child, regardless of race, shall be sent initially to the school of the district in which he lives, and after such initial assignments, there may be transfers if the parents so request and the superintendent approves. This is a, perfectly acceptable method of making school assignments, as long as the granting of transfers is not done on a racially discriminatory basis or to continue indefinitely an unlawful segregated school system. * * * ”
The only criticism of the plan there made was the initial assignment of all Negro elementary pupils in the city to Jefferson, rather than to the school of their residence. This was corrected. So that now the only objection urged is that the Negro student does not have freedom to move out of Jefferson when that is the school of his residence.
*926The Sixth Circuit approved an equivalent of the Charlottesville transfer provision in Kelley v. Board of Education of the City of Knoxville, 270 F.2d 209, 228 (6 Cir. 1950) cert. denied 361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240, and more recently in Goss v. Board of Education of the City of Knoxville, 301 F.2d 164, 168 (6 Cir. 1962) and Maxwell v. County Board of Education of Davidson Co., Tenn., 301 F.2d 828, 829 (6 Cir. 1962). Contra: Boson v. Rippey, 285 F.2d 43, 47 (5 Cir. 1960); but see Rippy v. Borders, 250 F.2d 690, 693 (5 Cir. 1957) post p. 15. Taylor v. Board of Education, 294 F.2d 36 (2 Cir. 1961) cert, denied 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339, decided by a divided court is not authority to sustain the Court here. There a suburban New York City school district had been deliberately drawn so as to encompass Negro residents only.
II. In law there has been no discrimination, for the Negro child has not been denied any privilege through policy, usage, law or regulation. If there has been a deprivation, it is — solely, actually and not capriciously — the result of the geographical location of his residence. This is a consideration understandably overlooked by the Court in the generality of its statement that the infrequency of Negro attendance in “white” schools is itself proof of discrimination.
Jefferson School District, as previously noted, was not a discriminatory division. It came about, as often occurs in many cities, through the Negroes’ living in a concentrated area. This may change, and thereafter alter the play of the residence and transfer rule at Jefferson. But until then the residents of the area must abide by rules and regulations based on just and fair district lines. No constitutional or legal question is presented. No Government authority has allocated them to a special section of the city or centered their population in a specific territory.
The fundamental reason of the Court for holding the refusal of transfer of Negroes to the Jefferson District to be discrimination seems to be that the refusal deprives the Negro children of association with white children, all of whom have transferred from Jefferson District. There is no other grievance suggested in their remaining at Jefferson. The Court further manifests this reason when it says that the residence and transfer provision retards “integration”.
But even if this is the result of the Charlottesville plan — although entirely incidental — nevertheless it would not be a violation of the doctrine of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and subsequent commentary decisions. The Supreme Court was explicit there in not requiring integration, but in merely striking down denial of rights through segregation. The point was sharply made in Briggs v. Elliott, 132 F.Supp. 776 (E.D.S.C.1955). It is too late now to question this as the plain holding of that three-judge court. Judge Parker, a member of that panel, confirmed this meaning when he spoke for this Court in School Board of Charlottesville v. Allen, 240 F.2d 59, 62 (4 Cir. 1956) cert, denied 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed.2d 664, and again in School Board of City of Newport News v. Atkins, 246 F.2d 325, 327 (1957). Substantially this very statement was approved with emphasis by the Fifth Circuit in Rippy v. Borders, 250 F.2d 690, 693 (1957). Furthermore, on remand of Brown v. Board of Education, the District Court from which it originated, following the rescript of the Supreme Court immediately after its second and implementing school decision, Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), stated the proposition with' equal clarity as follows:
“Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school together because of race or color.
“If it is a fact, as we understand it is, with respect to Buchanan School *927that the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the school in the district in which they live.”
Brown v. Board of Education of Topeka, 139 F.Supp. 468, 470 (D.Kan.1955). Like decisions in other Circuits are cited in the dissent in the Second Circuit (N.Y.) case of Taylor v. Board of Education, supra, 294 F.2d at 47, n. 4.
Our Court’s opinion now seems to hold that if a racial minority in a school zone is given a right to transfer out, every member of the racial majority in that school must be given the same right-otherwise the rule is unconstitutional. Applied to Jefferson School the opinion intimates that the Negro pupils there— the great majority of the student body— should be permitted to transfer in the same way as the minority. But the Court denied this very right to the majority in McCoy v. Greensboro Board of Education, 283 F.2d 667 (4 Cir. 1960). There the Board granted the requests of Negro children to enter a “white” school, then afterwards allowed the transfer of the majority — all white children — to another school. The transfer of the majority was held invalid because it left a minority composed of Negroes only. This again was apparently on the thesis that it resulted in a separation of the races whereas the law requires integration — a theory I find untenable.
III. The transfer rule is simply a means of permitting a child to express his wishes. Surely, to allow a child such an option — even though his wishes be based on racial grounds — is not unconstitutional. Allowing expression by both races so far as practicable — -with equal opportunity — of their preferences in a personal matter has not in any degree been precluded by the Supreme Court in its efforts to solve the school problem or in any other field. The Court has merely ruled against enforced separation of persons of different races by reference to objective criteria. Never has the Court denied the exercise of the personal tastes of the races in their associations.
The judgment of the District Court in respect to the elementary school appellants should be affirmed. In regard to the high school appellants I express no disagreement with the majority.