(dissenting):
The legal principles stated in the majority opinion may be accepted without agreement with its conclusion. The District Court evinced complete awareness of them, and entire adherence, I think. Casting upon the school authorities the burden to exonerate themselves of the imputation of racial discrimination, the Court scrupulously examined the circumstances in the case of each Negro teacher who was not re-hired. This was not merely a general survey but, rather, a careful and conscientious canvass of the reasons in each individual instance for not retaining the teacher. The majority opinion, however, sweepingly applies general principles to all released teachers and concludes, erroneously it seems to me, they were all denied their Constitutional rights.
For example, of the 16 Negro teachers not reemployed, 6 were not kept for personal or wholly objective reasons. One desired to retire; another did not wish to teach in an integrated school and declined to be considered for reemployment; another taught bricklaying only, and this class had been abolished for lack of students; another was refused because of objectionable personal habits, the nature of which the School Board was willing to reveal, but as plaintiffs’ counsel could not express his consent to the admission of this testimony, the Court declined to receive it for fear of embarrassing him; still another was 56 years old, 5 feet 5y2 inches in height and weighed 219 pounds, and her physical condition was considered disabling; and the 6th was not retained for medical reasons, on the statement of her personal physician, then also a member of the School Board.
*194The remaining 10 included 5 who “by objective standards, simply do not meet the minimum qualifications for employment in the reorganized school system”. This same measure was applied to all teachers without reference to race.
This leaves 5 Negro teachers not continued in the schools. The record of every one of them was scrutinized by the District Judge, who made this finding:
“By way of summary, four out of these five teachers were'rated by their own Negro principal to be average or below average teachers. ' The evidence shows that all of the employed competing white teachers were appraised by their respective principals or by the Superintendent as being much better than average. The School Board and the Superintendent have satisfactorily explained, almost beyond argument it seems to me, their failure to employ at least fifteen out of the sixteen members of the class. Mrs. Loree G. Jackson is apparently an excellent teacher. If it were my responsibility to weigh her qualifications against those of the competing teachers, I might consider her to be as well, or even better, qualified than they. But that responsibility is not mine.”
Whatever Constitutional guidelines are recognized, the bald facts here plainly reveal that at least 15 of the 16 unretained teachers were not kept because of their own preference, their physical incapacity or their failure to meet minimum criteria. This is hardly a record of a racial judgment. General principles do not supplant realities; the Constitutional fundamentals stressed by the majority are here abstract and academic.
As the findings of the District Judge, upon his plenary re-examination of the school authorities’ decisions, cannot be declared clearly erroneous, his decree should be affirmed.
I am authorized by Judge BORE MAN to state that he joins in this dissent.