(concurring in part and dissenting in part).
We gravely doubt whether the Resolution of the Richmond School Board qualifies as a “plan of desegregation.” In approving it, however, the District Court expressed several careful reservations and cautions to the Board which we understand our brethren of the majority accept and adopt as part of their affirmance. In light of this, and in the hope of encouraging the Board so to administer the Resolution as to make it a genuine and effective plan of desegregation, we concur in that part of the majority’s affirmance. We feel constrained, however, to make such concurrence tentative on the assumption that the Resolution is an interim measure only and will be subject to full review and reappraisal either at the end of the present school year, or certainly not later than this fall after the opening of the 1965-66 school term, when the results of two years of the Resolution’s operation will be known.
*322I
The Richmond School Board, in reading the majority opinion, must keep in mind the teaching of the Supreme Court, and this court as well, in a stream of cases decided during the past decade: that the initiative in achieving desegregation of the public schools must come from the school authorities. The paper Resolution is not being hailed as the attainment of the final goal. The defendants have only stated an hypothesis — that once Negro pupils are given the right to choose where they want to go to school they will be in a position to avail themselves of the opportunity and the segregated school system will disappear. The majority opinion permits that hypothesis to be tested against the realities of the Richmond situation to determine whether it will in fact achieve the desired result.
Only experience will show whether the so-called plan represents a real change in the officials’ attitude toward their constitutional duty, or merely a strategic retreat to a new position behind which the forces of opposition will regroup.
While we join in permitting this experiment, we are not fully persuaded that the plan will be enough to enable the Negro pupils to extricate themselves from the segregation which has long been firmly established and resolutely maintained in Richmond. A procedure which might well succeed under sympathetic administration could prove woefully inadequate in an antagonistic environment. The procedure cannot be separated from the spirit that produced it and will motivate its application.
As the defendants claim that theirs is the “Baltimore Plan” for free determination of school assignments, it is in order to examine not only the text but the context of the Baltimore Plan. There are reasons why a Free Transfer - System could achieve a measure of success in Baltimore.
Maryland is a border state which in the Civil War remained in the Union by a very slim margin. Baltimore is only 150 miles from Richmond. Before the Brown decision the traditions of the people of the two cities in regard to public education were not divergent. Baltimore’s City Code also required separate schools for Negroes. The reception accorded the decision of May 17, 1954, however, was markedly different. Within two weeks thereafter, the City Solicitor of Baltimore ruled that all laws imposing segregation could no longer be considered constitutional. The members of the School Board and other public officials organized no program of resistance. There was no holding back for contested lawsuits to wind their way through the courts nor were they content to pass a resolution casting upon Negro children and their parents the onus of ending the existing system.
Promptly the Board took the initiative to integrate. In less than a month after the Court spoke, the Superintendent of Schools assembled every teacher in the Baltimore school system. He addressed them at length on the duty to abolish racial separatism in public education in an effort to prepare them for such steps as needed to be taken to make the Supreme Court decision effective in practice.1 Similar measures were taken by the School Board to enlist the active support of the Co-ordinating Council of Parent-Teacher Organizations, which included men and women of both races.
Other meetings were held throughout the city under the sponsorship of the Department of Education to make the transition from a segregated'to an integrated nonracial administration as smooth as possible, and school faculties were en*323couraged to receive graciously new pupils and staff members of the other race.
From time to time the Board on its own initiative re-examined the practical operation of its policies to assure their effectiveness. Notable is its forthright declaration that “the presence whenever possible of qualified persons of varied ethnic, cultural, religious, and educational backgrounds on the staff of a given school, bureau or division is considered desirable.” 2
Sharply contrasting has been the course of events in Richmond. Ten years after the Supreme Court’s decision outlawing segregation, and five years after the invalidation of Virginia’s massive resistance laws by the Supreme Court of Appeals of Virginia as well as the federal court, the School Board’s attitude, as presented by its attorneys in this case, is that “there is no duty upon the School Board to integrate a particular school or desegregate it” or to “promote integration.” A change from this attitude is imperative if the Richmond declaration, whether it is called a Resolution or a Plan, is to be constitutionally implemented.
A plan of desegregation is more than a matter of words. The attitude and purpose of public officials, school administrators and faculties are an integral part of any plan and determine its effectiveness more than the words employed. If these public agents translate their duty into affirmative and sympathetic action the plan will work; if their spirit is obstructive, or at best negative, little progress will be made, no matter what form of words may be used.
Affirmative action means more than telling those who have long been deprived of freedom of educational opportunity, “You now have a choice.” In many instances the choice will not be meaningful unless the administrators are willing to bestow extra effort and expense to bring the deprived pupils up to the level where they can avail themselves of the choice in fact as well as in theory. A court, before approving a plan, must scrutinize it in detail to satisfy itself that the assumptions upon which the plan is predicated are actually present. The district judge must determine whether the means exist for the exercise of a choice that is truly free and not merely pro forma. This may involve considering, for example, the availability of transportation, the opportunity to participate on equal terms in the life of the school after the pupil’s arrival, and any other circumstances that may be pertinent.
All recognize that the problems of education are not simple and are intertwined with problems in other areas of public and private activity. But while a complete solution does not lie in the hands of the present defendants, there is much they can do in their own sphere of responsibility to disestablish the heritage arising from imposed racial discriminations of the past.
It is now 1965 and high time for the court to insist that good faith compliance requires administrators of schools to proceed actively with their nontransferable duty to undo the segregation which both by action and inaction has been persistently perpetuated. However phrased, this thought must permeate judicial action in relation to the subject matter.3
This is far from suggesting that children are to be uprooted arbitrarily and bussed against their will to distant places merely to place them with chil*324dren of the other race. No such thing has been proposed or contemplated in Richmond or, so far as we know, anywhere in this circuit. The true alternative, however, surely is not abdication of Board responsibility and the leaving of accomplishment of a nonracial educational system to the unaided efforts of individuals who, even if not deliberately obstructed, lack the knowledge and mastery of the school system possessed by the Board. The authorities, not these individuals, have the duty and power to provide adequate leadership in reaching, with a minimum of personal frictions, alarms and frustrations, the constitutionally protected goal of equal educational opportunity for all children. See Fiss, Racial Imbalance in the Public Schools: The Constitutional Concepts, 78 Harv.L.Rev. 564 (1964).
II
There are certain features of the court’s decision with which we are unable to agree. These concern the desegregation of faculties and staffs, the dissolution of the 1968 injunction, and the adequacy of the counsel fee awarded.
The composition of the faculty as well as the composition of its student body determines the character of a school. Indeed, as long as there is a strict separation of the races in faculties, schools will remain “white” and “Negro,” making student desegregation more difficult. The standing of the plaintiffs to raise the issue of faculty desegregation is conceded. The question of faculty desegregation was squarely raised in the District Court and should be heard. It should not remain in limbo indefinitely. After a hearing there is a limited discretion as to when and how to enforce the plaintiffs’ rights in respect to this, as there is in respect to other issues, since administrative considerations are involved; but the matter should be inquired into promptly. There is no legal reason why desegregation of faculties and student bodies may not proceed simultaneously.
The “freedom of choice” plan being only an interim measure, the adequacy of which is yet unknown, this court should reinstate the June 3,1963, injunction dissolved by the District Court when it approved the plan. In Brooks v. County School Board of Arlington County, 324 F.2d 303 (4th Cir. 1963), where an injunction had been dismissed by the District Court immediately after a school board adopted a resolution formally rescinding its policy of segregation, this court ordered reinstatement of the injunction. We there held the dismissal premature because there had been no showing by the school board of continuing compliance.
We also dissent from the allowance of only |75.00 as counsel fees to the plaintiffs, which we deem egregiously inadequate. It will not stimulate school boards to desegregate if they see that they can gain time by resisting to the eleventh hour without effective discouragement of these tactics by the courts.
The principle applied by this court in Bell v. School Board of Powhatan County, Virginia, 321 F.2d 494 (4th Cir. 1963), needs to be extended, not narrowed. See Note, 77 Harv.L.Rev. 1135 (1964). It ought not to be reserved for the most extreme cases of official recalcitrance, but should operate whenever children are compelled by deliberate official action or inaction to resort to lawyers and courts to vindicate their clearly established and indisputable right to a desegregated education. Counsel fees are required in simple justice to the plaintiffs. The award of fees in this equity suit is in the court’s judicial discretion and should be commensurate with the professional effort necessarily expended. One criterion which may fairly be considered is the amounts found reasonable in compensating the Board’s attorneys for their services. While public monies, aggregating thousands of dollars, are paid defense law*325yers, the attorneys for the plaintiffs who have prosecuted these cases for two full rounds in the District Court and on appeal are put off with a miniscule fee of $75.00.
. The following passage appears in the address delivered to the 5000 Baltimore teachers by Dr. John H. Fisher, now Dean of Education at Columbia University, then the Superintendent of the Baltimore Department of Education: “Without fear and without subterfuge, our Board has met its responsibility. Paraphrasing the words of Robert E. Lee, we cannot now do more than our duty, we shall not want to do less * *
. “Equality of Educational Opportunity— A Progress Report for tire Baltimore City Public Schools” (1964).
. Speaking of the district court’s duty in a similar context, the Supreme Court said:
“[T]he court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.”
The Court also speaks of—
“The need to eradicate past evil effects and to prevent the continuation or repetition in the future of the discriminatory practices * * Louisiana et al. v. United States, 85 S.Ct. 817 (U.S. March 8, 1965).