with whom ALBERT V. BRYAN, Circuit Judge, joins (dissenting).
I agree with my brother, BRYAN, that the Board’s plan does not merit present condemnation.
I am prompted to turn to other considerations, however, for it seems to me the other two opinions are on an esoteric plane far above practical problems confronting school boards. Practical, difficult problems do arise in many places as school boards undertake the task of conversion of school systems to a basis of operation which counters social customs and patterns of conduct, which, over a period of centuries, have become deeply ingrained in a people. The Supreme Court in 1955 recognized that such problems would be encountered and directed' that they be not ignored.1 School boards were allotted the duty of solving and overcoming those problems with all deliberate speed, while the lower federal courts were required to enter appropriate-orders when school boards neglect their duty. It is not for the courts, however, by overlooking the practical problems, to-impose difficulties in the way of a school board struggling, even though with some reluctance, to achieve the goal that has been set for it.
As I approach the practical situation, in terms of which I think the legal issue here should be framed, I do so with awareness that the case has not been presented on that basis. The question whether discrimination inheres in a geographic assignment plan, if accompanied by a provision for permissive minority transfers, has been tendered in general *928and abstract terms.2 The Court answers it in those terms.3 The School Boárd has ■■sought affirmance of the District Court’s ■approval of its plan on the basis of its belief that the plan, generally and abstractly, is not discriminatory. It has not asked that it be approved as a reason.-able amelioration of a particular problem ■during a transitional period. That it ■asked for more, however, does not mean it should get less than its due. If its plan merits temporary approval as a transitional measure, its disapproval should not be unqualified.
One may thus concede the reasonableness of the abstract principle declared by the majority and reasonably hold the view that the majority should have proceeded further to consider whether the plan, with its determined defects and (shortcomings, might not be permissible ■as a temporary expedient. If the present record is insufficient for that purpose, it could be supplemented upon remand. At least, the implication that the abstract principle will be applied in other cases, no matter how compelling the reasons for the school board’s adoption of a similar plan, ought not to be left open.
Those conversant with the problems of desegregation in the South, know the intensity of public concern over the plight of children constituting a small minority unwillingly assigned to a school in which an overwhelming majority is of the other race. If separation of Negro children “solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,” 4 such a child may be subjected to a much more searing experience if, bereft of established friends and relations, compelled to attend a school or classes in which all others are of the opposite race. Some children could adjust themselves to such a situation, but in the early stages of desegregation when the force of old customs and practices is unspent, many could not. Those who could not adjust to such a radical change would likely have senses of inferiority greatly intensified, and unadjusted children too frequently become the butt at the hands of their fellows of those unrestrained cruelties of which children of all races are capable. If such unadjustable children are compelled to remain in an intolerable situation, the damage to their emotional and mental development and well-being will be irreparable.
It is because of such widespread concern over the plight of unwilling minorities in particular schools that school *929boards throughout the South have adopted permissive transfer provisions in association with assignment plans based upon attendance areas or other objective criteria. In some places, such a provision may be essential to the institution or continuance of a plan of desegregation, for it touches an area of peculiar public sensitivity, and school boards cannot operate public school systems without public support.
Provisions for permissive minority transfers are founded upon an assumption that the transition to a fully desegregated school system will create personal problems for unwilling minorities in particular schools, especially when the minority is relatively small, which differ in kind and degree from the problems which majorities, especially relatively large majorities, may be expected to encounter. The assumption seems plainly valid, for it hardly is to be doubted that a child well adjusted in School A where his race predominates, where he has established friendships and where he ardently wishes to be, may become very maladjusted if compelled to attend school B where his own race is a small minority, where he has no established friends and where racial differences may become greatly magnified in his own mind. Such a problem is obviously more acute and more difficult to overcome than any personal problem which may be anticipated by members of racial majorities, unseparat-ed from established friends, compelled to accommodate themselves to the presence or absence of a minority of pupils of the other race.
Of course, the magnitude of the personal problems and of the difficulties in the way of requisite adjustments will vary with individuals and with differences in environmental conditions. A child who might encounter insurmountable difficulty, as a member of a small minority, in making the personal adjustment, might encounter little difficulty if the minority group was relatively large, 49%, for instance,5 and included others who were his old friends. Such variances, however, do not militate against the general validity of the assumption that, in the transitional period, unwilling members of minority groups will encounter difficulties and problems which are different in kind and degree from those which members of majority groups may be expected to encounter.
This kind of problem exists whatever the race of the minority group. That present provision for permissive minority transfers is in the interest of Negro minorities is suggested by the extent to which they avail themselves of it. This very record discloses that fifty Negro pupils availed themselves of the permissive right to transfer to Jefferson School, rather than attend the predominantly white schools in the attendance areas of which they resided.
The majority, of course, does not hold that unwilling minorities may not be allowed to transfer. It does hold that if such transfers are allowed as of course, the same right of transfer must be extended to every other child regardless of the dissimilarities of his circumstances. The provision for minority transfers is treated as a virus which so infects an otherwise objective, nondiscriminatory, lawful, geographic assignment plan, that the plan may not be enforced as to anyone. Provision for protection of the special interest of minorities is related to malice, which, naked and alone, is not unlawful, but which makes unlawful and actionable a communication which otherwise would be privileged and unactionable.
The necessary result of the opinion, therefore, is a stricture on provision for permissive transfers of protesting members of minority groups whenever a school board finds it necessary or desirable to adopt or continue an enforceable geographic assignment plan. The consequence will be that the discretion of school boards is circumscribed, and, in some instances, the effective adoption of any plan may be made impossible.
*930I do not understand the court to say that, in the absence of a blanket provision for the transfer of unwilling members of minority groups, a transfer of one such child, for good reason, would deprive the school board of its power of enforcement of all other assignments. It certainly should not. School boards always have had, and always should have, discretionary power to treat exceptional cases as exceptional. If a school board, having adopted a geographic assignment plan without a minority transfer provision, was confronted with proof that a particular child had previously attended a segregated school attended solely by members of his own race where he worked well and was well adjusted, but, assigned under the plan as one member of a small minority to another school predominantly populated by pupils of the other race, had encountered insurmountable difficulty, that his progress had been arrested and he was suffering great emotional and mental harm, and if such proof was accompanied by the urgent plea of the child and his parents that he be transferred back to the school he formerly attended, must the school board ignore the plea or suffer loss of its power to control all other assignments which it had made under its geographic assignment plan ? I would say, obviously not.6 Every exception to a general rule, if made with good reason, does not invalidate the rule. A permissive transfer of a child whose personal need malees a transfer requisite, should not confer upon all other pupils, who have no comparable need, the same transfer privilege. If tutorial assistance is furnished the child who needs it most, every other pupil, who has no such need, is not denied the equal protection of the laws if he is not offered the same assistance. It would be a gross perversion of constitutional doctrine to say that any governmental body may not reasonable classify citizens and their claims or that a classification based upon the need of the claimants is necessarily unreasonable.
If this be so, if a transfer of one child in dire need of it as an exception to an otherwise lawful, geographic assignment plan does not divest the school board of its authority to deny transfers to those who show no such need,7 a general provision for permissive transfers of the needy class must be permissible if the actual and special need of those to whom it applies reasonably warrants it. The existence of such need and its relationship to the rule, the majority does not consider. The court does not reach the question whether the provision, as an interim measure and as applied here, is reasonable, wise or even essential to progress. It concludes that the provision, however reasonable, in combination with the assignment plan is abstractly discriminatory, and there it stops.
If that were the stopping place, no “stair-step” plan of desegregation would ever have been approved. Such plans are not just abstractly discriminatory; inevitably in application they are concretely so. They are approved, nonetheless, when they represent reasonable progress toward ultimate compliance. Other such interim measures, though claiming no pristine purity free of discrimination’s taint, are similarly approved. Indeed that is the very thing the Supreme Court required of us by its remand order in the School Cases. During this transitional period, we have no right to strike down what Charlottes-ville’s School Board has done or to overturn its authority over assignments and transfers, unless, after full consideration, it is found, that what it has done is *931unreasonable in the light of all of the circumstances.8
Since it seems to me the court has not reached the crucial question and that its abstraction is not decisive of the whole case, I have found it necessary separately to record my disagreement with the result.
. Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083.
. The question tendered, in effect, is this: If A and B, one of whom is Caucasian :and the other Negro, each of whom is a member of a racial minority in the school to which he is assigned, are both allowed to transfer, is there a denial of the equal protection of the laws to X, if X and Y, ■a Negro and a Caucasian, each of 'whom is a member of a racial majority in the school to which he is assigned, are both ■denied transfers? Since the conundrum elides the fact, or the possibility that it may be the fact, that there was good reason for allowing the transfers of A and B and no comparable reason for allowing the transfer of either X or Y, the resultant discussion, interesting though it may be, is esoteric abstraction.
. The majority concentrates attention upon A and X, both of whom had been assigned to the same school. That concentration does not make the resulting discussion concrete, for the opinion does not consider their disparate circumstances or the bearing of those circumstances upon the reasonableness of a general rule allowing the permissive transfer of the one, but not of the other.
The majority also points to the fact that the Board’s plan permits actual mixing of the races in the schools at a slower rate than might occur under some other plan, not adopted by the School Board. Such a fact may bear more or less heavily upon the reasonableness of a particular plan under particular circumstances, but, of itself and without regard to other facts bearing upon the reasonableness of the Board’s conduct, it is not a final answer. The same thing may be said of every interim arrangement which has met the approval of the courts. Indeed, the same thing may be said of a geographic assignment plan unaccompanied by any provision for permissive minority transfers.
. Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873.
. Of course, that is not this case.
. If a member of a racial majority has comparable need of a transfer, I think a school board could and should transfer him and that its doing so would not deprive it of the power to deny transfers to other members of the majority, assigned by attendance areas, wbo have no comparable need.
. If this be not so, the conclusion cannot be premised upon anything to be found in the Constitution of the United States.
. Of course, this determination is initially for the District Judge, whose findings we can overturn only within the traditional rules limiting our appellate power. Here there is no clear finding on the decisive fact of reasonableness, or unreasonableness for the District Court was of the opinion that the plan was not discriminatory, even abstractly. A remand for further consideration of the crucial question of reasonableness of the rule in the light of the needs and the differences in the needs of members of disproportionate minority and majority groups, might be appropriate. We should not undertake a “final decision of that factual question; at least, we should not decide it without consideration of it.