(dissenting).
Because of the inordinate delays which have already occurred in this protracted litigation, I hasten, without exhausting the subject, to indicate the reasons for this dissent.
I think the order of the District Court should be implemented at once for either of two reasons, each of which is amply supported by the findings of fact and the conclusions of law set forth in the District Court’s opinion. First, because the public school system of Virginia is maintained, supported and administered on a statewide basis by the Commonwealth of Virginia; therefore, the closure of the schools of this one county constitutes discrimination. Second, the defendants closed the schools solely in order to frustrate the orders of the federal courts that the schools be desegregated.
The plaintiffs assert a federal right guaranteed by the Constitution; the jurisdiction to determine this right is vested in the federal courts. A refusal to adjudicate this right would be violation of the courts’ duty. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The plaintiffs must not be required to exhaust their remedies in the state’s courts before having their federal rights determined in the federal courts. McNeese v. Board of Education, 83 S.Ct. 1433. The defendants have been given ample opportunity heretofore to have the state courts speak.. In its opinion of July 25, 1962, the district court said:
“ * * * upon the further assurance of counsel for the Board of Supervisors of Prince Edward County (which assurance was given after conferring with the Attorney General of Virginia and counsel for the School Board of Prince Edward County) that he would file such a suit if the petitioners failed to do so, this court abstained from determining the issue, pending a final ruling by the Supreme Court of Appeals of Virginia.”
In spite of this assurance the defendants not only failed to bring a suit for this purpose, but they deliberately failed to raise the issue in a suit brought by the plaintiffs to assert their rights under the Virginia Constitution. Finally, at long last, when the district court proceeded to declare the plaintiffs’ rights, under federal law, the defendants commenced the suit to raise the issue in-the state courts, demanding that the-federal courts further abstain. This is not abstention — this would be a humble-acquiescence in outrageously dilatory-tactics, and the district court was right to reject it. We have neither the duty nor the right to pressure the state courts-. *345to declare federal rights, and they are not bound by conscience or law to engage in a race with the federal courts to declare federal rights.1 Courts are not self-activating, if the defendants here chose to refrain from seeking a state ■court determination until the district ■court was finally forced to act, they should not now be heard to call for further abstention — when as the district court said on October 10, 1962: “Abstention would create an irreparable loss in the formal education of the children of Prince Edward County”. Abstention is not sanctioned by any law — it is a ■court evolved doctrine of courtesy — -it must not be used to frustrate the plain rights of litigants. To do so now under the present posture of this case is not abstention, it is abnegation of our plain ■duty.
A brief review of the record leaves no doubt whatsoever that the public .schools of Virginia were established and .are being maintained, supported and administered in accordance with state law, primarily on a statewide basis. I see no need to review in detail the evidence supporting that conclusion. The Constitution of the state compels the Legislature to appropriate funds for this purpose — funds derived from the taxation of Negroes as well as whites in Prince Edward and other counties. The Virginia Code provides that the public free school system shall be administered by a State Board of Education which is responsible for dividing the state into .appropriate school divisions. The State Board prescribes the rules and regulations for conducting the high schools as well as the requirements for admission. A Superintendent of Public Instruction is appointed by the Governor. Local school boards are regulated to a great extent by state law. All power ■of enrollment or placement of pupils in the public schools is vested in a State Pupil Placement Board, whose members .likewise are appointed by the Governor. I do not believe that it can be seriously argued that public education is not a state function in Virginia. This being true, since the state maintains and operates schools elsewhere in the state, its failure to do so in Prince Edward County, by permitting the County Board of Supervisors to close the schools for a discriminatory reason, violates the Fourteenth Amendment.
The district court’s finding that Virginia is operating and maintaining a statewide system of schools not being clearly erroneous is binding on us. Indeed it is a fact so firmly established that we would be required to take judicial notice of it. That decision is buttressed by the decision of the three judge district court in James v. Almond, 170 F.Supp. 331, 337 (E.D.Va.1959), wherein the court said:
“Tested by these principles we arrive at the inescapable conclusion that the Commonwealth of Virginia, having accepted and assumed the responsibility of maintaining and operating public schools * * * [cannot close one or more because of segregation] * * *. While the State of Virginia, directly or indirectly maintains and operates a school system with the use of public funds, or participates by arrangement or otherwise in the management of such a school system [it may not close schools to avoid segregation].” (Emphasis added).
It is worthy of note that the Supreme Court of Appeals of Virginia points to the mandatory provisions of Section 129 of that state’s Constitution, which provides: “The General Assembly shall establish and maintain an efficient system of public free schools throughout the State”. Griffin v. Board of Supervisors of Prince Edward Co., 203 Va. 321, 124 S.E.2d 227.
Faced with the inescapable fact that the State of Virginia is maintaining and operating a statewide system of schools, the deeply abstruse and highly technical *346arguments about whether Virginia’s laws permit a local unit to close its schools are academic under the Fourteenth Amendment. For this purpose the county is acting as an agency of the state, and the state may not directly or indirectly evade the command of the Amendment. What the state could not do directly in James v. Almond it may not do indirectly in this case. In Hall v. St. Helena Parish School Board, D.C., 197 F.Supp. 649, aff’d. 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521 (three judge court), the State of Louisiana attempted to set up a local option system to avoid a court order to desegregate. The court struck down the law and forbade the practice. In doing so it said:
“The equal protection clause speaks to the state. The United States Constitution recognizes no governing unit except the federal government and the state. A contrary position would allow a state to evade its constitutional responsibility by carve-outs of small units. At least in the area of declared constitutional rights, and specifically with respect to education, the state can no more delegate to its subdivisions a power to discriminate than it can itself directly establish inequalities. When a parish wants to lock its school doors, the state must turn the key. If the rule were otherwise, the great guarantee of the equal protection clause would be meaningless.”
And this court in an opinion concurred in as to this point by every member of the court, including the members of the present panel, in the case of Bell v. School Board of Powhatan Co., 4 Cir., 321 F.2d 494, said of the School Board of that Virginia County:
“They are not told to exercise powers they do not have; they are merely forbidden to take any steps themselves toward the closing of the schools, and this injunction is necessary to prevent a violation of the equal protection clause of the Fourteenth Amendment.” (Emphasis added).
Whether the local unit is ordered to close its schools or permitted to do so under state law is immaterial, so long as the state directly or indirectly participates in the operation of a statewide system of schools.
Nor do I think this suit is barred by the Eleventh Amendment to the Constitution of the United States. It is well settled that a suit against a political subdivision of a state, such as a county, is not barred by the Eleventh Amendment. The leading decision in Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890), where the point was urged that the county is an integral part of the state and could not, therefore, be sued under the Eleventh Amendment. The Supreme Court said:
“* * * [I]t may be observed that the records of this court for the last thirty years are full of suits against counties, and it would seem as though by general consent the jurisdiction of the Federal courts in such suits ha[s] become established.”
In Kennecott Copper Corporation v. State Tax Comm., 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946), the Supreme Court again held that consent was not necessary for suits against counties and municipalities. In short, insofar as the Eleventh Amendment is concerned a suit in equity to compel affirmative action by a county through its Board of Supervisors is maintainable for the simple reason that a county as such is not a “state” within the meaning of the constitutional prohibition. I am aware of those cases cited which invoke the constitutional bar if the subsidiary political unit bears such a relationship to the state in the particular function involved as to constitute it an agent of the state with respect to that function. They do not apply in this case. This court has recently discussed this distinction in Duckworth v. James, 267 F.2d 224 (4 *347Cir., 1959), cert. denied 361 U.S. 835, 80 S.Ct. 88, 4 L.Ed.2d 76. There it was held that an injunction would lie "to restrain the City of Norfolk from withholding funds from the Norfolk School Board. It is the state scheme itself which provides that part of the essential operating revenue must come from the taxes levied by local boards. The words of this court in Duckworth v. James, supra, are pertinent:
“The present case falls within the class of cases where a public officer or agent makes use of his authority to perform an illegal act by invoking the command of an unconstitutional statute or seeks to carry out a valid statute in an unconstitutional manner. (Emphasis added). In such cases, it is held that his action is not the act of the state but the act of an individual, which may be restrained by the injunctive power of the Federal court.”
Neither am I impressed with the argument that the district court has no power to compel a levy of taxes for a monetary appropriation by the defendant Board of Supervisors should it fail to obey the mandate of the district court. It should be enough to cite Virginia v. West Virginia, 246 U.S. 565, 38 S.Ct. 400, 59 L.Ed. 1272 (1918). There the defense was advanced by West Virginia that the judicial power of the United States did not extend to the coercing of a judgment by a decree requiring a tax to be levied. The opinion of the court is plain in its implication that West Virginia could be compelled to pay if compulsion were the only way to accomplish the result. But it is necessary here only to decide whether the subdivision of the state (Prince Edward County) may be required to provide the funds necessary to comply with the judgment. There can be no doubt that the judicial power may enforce the levy of a tax to meet a judgment rendered. Labette County Commissioners v. Moulton, 112 U.S. 217, 5 S.Ct. 108, 28 L.Ed. 698 (1884). See also Graham v. Folsom, 200 U.S. 248, 26 S.Ct. 245, 50 L.Ed. 464 (1906). It is to be noted that the Supreme Court of Appeals of Virginia in Griffin v. Board of Supervisors of Prince Edward County, 203 Va. 321, 124 S.E.2d 227 (1962), did not consider whether under federal law the County Board could be compelled to levy taxes and appropriate funds for the operation of the county public school system. The Virginia law does not prohibit the Supervisors from levying the taxes and appropriating the revenue, it merely vests in them the power to decide whether this shall be done. In City of Galena v. Amy, 72 U.S. (5 Wall.) 705, 18 L.Ed. 560 (1866), a suit was brought in a federal court to recover interest on bonds. The Supreme Court required that discretionary taxing power be exercised in a particular manner. I think that under federal constitutional law an affirmative order is appropriate here notwithstanding the unavailability of mandamus under Virginia law. The County Board has the unquestionable power to levy the taxes; the schools of this County may not remain closed while the state maintains a school system elsewhere.
Finally, the Board of Supervisors of Prince Edward County closed the public schools for the sole purpose of avoiding compliance with the decree of this court. The district court so found. The Board publicly proclaimed its intention and purpose by its resolution dated May 3, 1956:
“Be It Resolved, That the Board of Supervisors of Prince Edward County * * * do hereby declare it to be the policy and intention of the said Board * * * that no tax levy shall be made * * * nor public revenue derived from local taxes * * * be appropriated for the operation and maintenance of public schools in said county wherein white and colored children are taught together under any arrangement or plan whatsoever.”
This was the defiant response to the decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), ap*348plying expressly to the schools of Prince Edward County. The district court found that it was passed in anticipation of our decision in 1959 that desegregation in compliance with Brown should commence in the fall of 1959. In the factual context of this case I cannot agree with the majority that this was a permissible compliance with the Supreme Court’s order. The law has long been settled that such conduct violates the Fourteenth Amendment and may be enjoined. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5; Aaron v. Cooper, 261 F.2d 97 (8 Cir., 1958); James v. Duckworth, 170 F.Supp. 342 (E.D.Va.1959); James v. Almond, 170 F.Supp. 331 (E.D.Va.1959); Aaron v. McKinley, 173 F.Supp. 944 (E.D.Ark.1959), aff’d sub nom. Faubus v. Aaron, 361 U.S. 197, 80 S.Ct. 291, 4 L.Ed.2d 237; Bush v. Orleans Parish School Board, 190 F.Supp. 861 (E.D.La.1960). Equal educational opportunity through access to nonsegregated public schools is secured by the Constitution. The state has an affirmative duty to accord to all persons within its jurisdiction the benefits of that constitutional guarantee. Taylor v. Board of Education, 294 F.2d 36 (2 Cir., 1961). Indeed Congress regarded so highly the duty of maintaining public schools that when it readmitted at least three Confederate states, Virginia, Mississippi and Texas, it specifically required that their constitutions:
“ * * * shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the constitution of said State.” 16 Stat. 62, 67 and 80 (1870).
It is tragic that since 1959 the children of Prince Edward County have gone without formal education. Here is a truly shocking example of the law’s delays. In the scales of justice the doctrine of abstention should not weigh heavily against the rights of these children.
. The Supreme Court of Appeals of Virginia refused last June to put the case ahead on its Calendar.