(dissenting):
The opinion of the majority and the proposed decree are long, complicated, somewhat ambiguous and rather confusing. The per curiam opinion of the majority of the en banc court does not substantially clarify, modify or change anything said in the original opinion filed December 29,1966. Only minor and inconsequential changes were made in the proposed decree.1 In my view both the opinion and decree constitute an abrupt and unauthorized departure from the mainstream of judicial thought both of this Circuit and a number of other Circuits. I am unable to agree either with the opinion or the decree, especially those provisions dealing with the following: (1) de facto and de jure segregation; (2) the guidelines; (3) the proposed decree; (4) attendance percentages, proportions, and freedom of choice; and (5) enforced integration.
I
De Facto and De jure Segregation
The thesis of the majority, like Minerva (Athena) of the classic myths,2 was spawned full-grown and full-armed. It has no substantial legal ancestors.3 We must wait to see what progeny it will produce.
While professing to fashion a remedy under the benevolent canopy of the Federal Constitution, the opinion and the decree are couched in divisive terms and proceed to dichotomize the union of states into two separate and distinct parts. Based on such reasoning the Civil Rights Act of 1964 is stripped of its national character, the national policies therein stated are nullified, and in effect, the remedial purposes of the Act are held to apply to approximately one-third of the states of the union and to a much smaller percentage or proportion of the total population of the country. I am unable to believe that the Congress had any such intent. If it did, a serious constitutional question would be presented as to the validity of the entire Act under our concepts of American constitutional government.
The Negro children in Cleveland, Chicago, Los Angeles, Boston, New York, or any other area of the nation which the opinion classifies under de facto segregation, would receive little comfort from the assertion that the racial make-up of their school system does not violate their constitutional rights because they were born into a de facto society, while the exact same racial make-up of the school system in the 17 Southern and border states violates the constitutional rights of their counterparts, or even their blood brothers, because they were born into a de jure society. All children everywhere in the nation are protected by the Constitution, and treatment which violates their constitutional rights in one area of the country, also violates such constitutional rights in another area. The details of the remedy to be applied, however, may vary with local conditions. Basically, all of them must be given the *398same constitutional protection. Due process and equal protection will not tolerate a lower standard, and surely not a double standard. The problem is a national one.
Regardless of our decrees, in spite of our hopes and notwithstanding our disappointments, there is no infallible and certain process of alchemy which will erase decades of history and transmute a distasteful set of circumstances into a utopia of perfection. All who have studied the subject recognize that discriminatory practices did not arise from a single cause. Such practices had their origin and birth in social, economic, educational, legal, geographical and numerous other considerations. These factors tend to be self-perpetuating. We must eradicate them, and I have the faith that they will be eradicated and eliminated by responsible and responsive governmental agencies acting pursuant to the best interests of the community. There is no social antibiotic which will effect a sudden or overnight cure. It is not possible to specifically fix the blame or to attribute the origin of discriminatory practices to isolated causes, and it is surely inappropriate to undertake to fasten guilt upon any segment of the population. In this area of our nation’s history eminent historians still disagree as to causes and effects. Some studies have placed emphasis on the slave trader or the importer of slaves, others have blamed the slave holder, while others have tried to trace the guilt back to tribal chieftains in Africa. Perhaps the most common understanding amongst all the historians and students of the problem is the conclusion that causes cannot be isolated and responsibility cannot be limited to a particular group. Whatever the cause or explanation, it is clear that the responsibility rests on many rather than few.
At this time, almost 13 years after the decisions in Brown v. Board of Education (1954) 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I) and Brown v. Board of Education (1955) 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II), there should be no doubt in the minds of anyone that compulsory segregation in the public school systems of this nation must be eliminated. Negro children have a personal, present, and unqualified constitutional right to attend the public schools on a racially non-discriminatory basis.
Although espousing the cause of uniformity and asserting there must not be one law for Athens and another for Rome, the opinion does not follow that thesis or principle. One of the chief difficulties which I encounter with the opinion is that it concludes that the Constitution means one thing in 17 states of the nation and something else in the remaining states. This is done by a rather ingenious though illogical distinction between the terms de facto segregation and de jure segregation. While the opinion recognizes the evils common to both types, it relies heavily on background facts to justify the conclusion that the evil will be corrected in one area of the nation and not in the other. In my view the Constitution cannot be bent and twisted in such a manner as to justify or support such an incongruous result. The very subject matter under consideration tends to nullify the assertion that the constitutional prohibition against segregation should be applied in 17 states and not in the rest of the nation.
Legislative history clearly supports the idea that no distinction should be made with respect to the various states in dealing with the problem. Senator Pastore was one of the principal spokesmen who handled this legislation. He gave the following explanation:
“Frankly I do not see how we could have gone any further, to be fair * * * Section 602 of Title VI, not only requires the agency to promulgate rules and regulations, but all procedure must be in accord with these rules and regulations. They must have broad scope. They must be national. They must apply to all fifty states. We could not draw one rule to apply to the State of Mississippi, another rule to apply to the State of Alabama, and another rule to apply to the State of Rhode Island. *399There must be only one rule, to apply to every state. Further, the President must approve the rule.” (110 Cong.Rec. 7059, April 7, 1964)
******
“MR. PASTORE * * * We must do what Title VI provides; and we could do it in no milder form than that now provided by Title VI. The Senator from Tennessee says, ‘Let us read this title’. I say so, too. When we read these two pages, we understand that the whole philosophy of Title VI is to promote voluntary compliance. It is written right in the law. There shall be the voluntary compliance as the first step, and then the second step they must inaugurate and promulgate, rules that have a national effect, not a local effect. They shall apply to Tennessee, to Louisiana, to Rhode Island, in equal fashion.” (110 Cong.Rec. 7066, April 7, 1964)
In connection with the distinction which the opinion undertakes to make, it is pertinent to observe the following strong and unequivocal pronouncement in the very beginning of the decision in Brown II:
“All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.” (Emphasis added) (page 298, 75 S.Ct. page 755)
It should be observed that all public school segregation was de jure in the broad sense of that term prior to the first Brown decision, in that segregation was permitted, if not required, by law.
It is undoubtedly true that any problem which reaches national proportions is often generated by varying and different customs, mores, laws, habits and manners. Such differences in the causes which contributed to the creation and existence of the problem in the first instance, do not justify the application of a fundamental constitutional principle in one area of the nation and a failure to apply it in another.
While all the authorities recognize the existence and operation of different causes in the historical background of racial segregation, there are also marked similarities. This fact is noted in the recently released study by the United States Commission on Civil Rights, RACIAL ISOLATION IN THE SCHOOLS, 1967, Vol. I (pp. 39, 59-79). In discussing the subject the following observation is made early in the report :
“Today it [racial isolation or segregation] is attributable to remnants of the dual school system, methods of student assignment, residential segregation, and to those discretionary decisions familiar in the North — site selection, school construction, transfers, and the determination of where to place students in the event of overcrowding.” (Emphasis added)
In its summary the Commission notes that the causes of racial isolation or school segregation are complex and self-perpetuating. It speaks of the Nation’s metropolitan areas and refers to social and economic factors as well as geographical ones. According to the summary, not only do state and local governments share the blame, it is categorically asserted that “The Federal Government also shares in this responsibility.” (Emphasis added) Pertinent similarities in the problem, applicable to the entire nation, are forcefully asserted in the final sentence of the Commission’s Summary:
“In the North, where school segregation was not generally compelled by law, these [discriminatory] policies and practices have helped to increase racial separation. In the South, where until the Brown decision in 1954 school segregation was required by law, similar policies and practices have contributed to its perpetuation.” (Emphasis added)
By a process of syllogistic reasoning based on fatally defective major premises the opinion has distorted the meaning of the term segregation and has segmented its meaning into de facto and de jure *400segregation. All segregation in the South is classified as de jure 4 while segregation in the North is classified as de facto. Different rules apply to the different types of segregation. The South is heavily condemned. The • opinion approaches the problem on a sectional basis and fails to consider the subject except on a sectional or regional basis. There are many references to “the eleven” Southern states and “the seven” border states. This area of the nation is variously characterized as “The eleven states of the Confederacy,” “the entire region encompassing the southern and border states”, “wearing the badge of slavery”, and “arpartheid”. Finally, the opinion concludes that the two types of segregation are different, have different origins, create different problems and require different corrective action. It is suggested that there is no present remedy for de facto segregation but that the problems and questions arising from de facto segregation may someday be answered by the Supreme Court.5
This Court,- and the district courts within the six states embraced within our jurisdiction like many other federal courts of the nation have given much time and attention to the solution of the problems arising after the Brown decisions. Much has been accomplished, much remains to be done. It is not possible for me to join in the expressions of pessimism contained in the opinion or to approve the insinuations that the courts have failed in the performance of their duty.6 Even Congress is taken to task for fail*401ure to act earlier and for failure to recognize school desegregation “as the law of the land.”7 In the Brown cases the Court clearly and wisely recognized the fact that those decisions had changed the law which had been in effect for decades. Due notice was taken of the fact that the new order of the day would “involve a variety of local problems.” The court recognized “the complexities arising from the transition to a system of public education freed of racial discrimination.” Moreover, the Court stated, “Full implementation of these constitutional principles may require solution of varied local school problems.” The courts were instructed to be “guided by equitable principles,” to give consideration to “practical flexibility in shaping remedies” and observed that equity courts have a peculiar “facility for adjusting and reconciling public and private needs.” The Brown decisions emphasized the concept that courts of equity are particularly qualified to shape such remedies as would “call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles” pronounced in the first Brown decision. Contrary to the tone and expressions of the majority opinion, the Supreme Court early announced the policy of heavy reliance on the district courts and that policy has continued to this date.
II
Guidelines
With respect to the guidelines, it should be noted that they were not an issue presented to the District Court. The cases here involved had been tried in the respective district courts, appeals taken to this Court and were pending on the docket of this Court before the 1966 Guidelines were promulgated. Guidelines were not made an issue by the pleadings or otherwise in the district courts and no evidence was taken with respect to them. The issue of the guidelines are before this Court because the Court, sua sponte, brought the issue before it.8 In my view their validity is not an issue to be decided in this Court. See United States v. Petrillo (1947) 332 U.S. 1, 5, 6, 67 S.Ct. 1538, 91 L.Ed. 1877; United States v. International Union (1957) 352 U.S. 567, 590, 77 S.Ct. 529, 1 L.Ed.2d 563; Connor v. New York Times (5 Cir. 1962) 310 F.2d 133, 135; Gibbs v. Blackwell (5 Cir. 1965) 354 F.2d 469, 471.
In its first approach to the question the Court indicated that it would not pass upon the constitutionality of the guidelines but would give weight to or rely upon them as a matter of judicial policy. When confronted with the fact that the guidelines were not approved by the President as required by the Civil Rights Act of 1964, the opinion then concluded that they do not constitute or purport to be rules or regulations or orders of general application. It was then stated that since they were not a rule, regulation or order, they constitute “a statement of policy”, and while HEW “is under no statutory compulsion to issue such statements” it was decided that it is “of manifest advantage” to the general public to know the basic considerations which *402the Commissioner uses “in determining whether a school meets the requirements for eligibility to receive financial assistance.” Immediately the opinion recognizes the inherent unfairness and vices of such pronouncements of administrative policy without an evidentiary hearing. “The guidelines have the vices of all administrative policies established unilaterally without a hearing.”9 Finally, the opinion concludes that the guidelines are fully constitutional, recognizing as it is bound to do, that a failure to comply with them cuts the purse strings and closes the treasury to all who fail to comply:
“The great bulk of the school districts in this circuit have applied for federal financial assistance and therefore operate under voluntary desegregation plans. Approval of these plans by the Office of Education qualifies the schools for federal aid. In this opinion we have held that the HEW Guidelines now in effect are constitutional and are within the statutory authority created in the Civil Rights Act of 1964-Schools therefore, in compliance with the Guidelines can in general be regarded as discharging constitutional obligations.” (Emphasis added) (p. 894)
Whether viewed from a substantive or procedural point of view, due process and sound judicial administration require, at the very least, an evidentiary hearing on a matter so vital to so many people.10 Not only are numerous people affected, but those most affected are the school children of the nation. The most vital segment of our democratic society is our school system. The operation and administration of the public school systems of this nation are essentially a local business. It is unthinkable that matters that so vitally affect this phase of the national welfare should be decided in such summary fashion. In the two most recent pronouncements by the Supreme Court dealing with the problem of segregation as related to faculty and staff, that Court refused to act without an evidentiary hearing. In both decisions the cases were remanded to the district court “for evidentiary hearings.” Bradley v. School Bd., City of Richmond (1965) 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187; Rogers v. Paul (1965) 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265. Similarly, in Calhoun v. Latimer (1964) 377 U.S. 263, 84 S.Ct. 1235, 12 L.Ed.2d 288, the Court had for consideration a desegregation plan of the Atlanta Board of Education. During the argument before the Supreme Court counsel for the Board of Education informed the Court that subsequent to the decision of the lower court, the Board had adopted additional provisions authorizing “free transfers with certain limitations in the city high schools”. The petitioners contended that the changes did not meet constitutional standards and asserted that with respect to elementary students the changed plan would not achieve desegregation until sometime in the 1970’s. The Supreme Court did not “grasp the nettle” but vacated the order *403of the lower court and remanded the case to “be appraised by the District Court in a proper evidentiary hearing.” (Emphasis added)
III
Decree
I now come to a consideration of the decree ordered to be entered and its relation to the opinion. It is impossible to consider the decree and the opinion separately ; they are inextricably interwoven. Neither takes into account “multifarious local difficulties”, and therefore, any particular or peculiar local problems are submerged and sacrificed to the apparent determination, evident on the face of both the opinion and the decree, to achieve percentage enrollments which will reflect the kind of racial balance the opinion seeks to achieve.
The opinion asserts that uniformity must be achieved forthwith in everyone of the six states embraced within the Fifth Circuit. No consideration is given to any distinction in any of the numerous school systems involved. Urban schools, rural ones, small schools, large ones, areas where racial imbalance is large or small, the relative number of Negro and white children in any particular area, or any of the other myriad problems which are known to every school administrator, are taken into account. All things must yield to speed, uniformity, percentages and proportional representation. There are no limitations and there are no excuses. This philosophy does not comport with the philosophy which has guided and been inherent in the segregation problem since Brown II. As the Court there stated:
“Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we required further argument on the question of relief.” (349 U.S. p. 298, 75 S.Ct. p. 755) (Emphasis added)
See also Davis v. Bd. of School Comm’rs of Mobile Co., Ala., 322 F.2d 356 (5 Cir. 1963) wherein this Court made a distinction in the rural and urban schools of Mobile County, Alabama. We held:
“The District Court may modify this order to defer desegregation of rural schools in Mobile County until September 1964, should the District Court after further hearing conclude that special planning of administrative problems for rural schools in the county make it impracticable for such schools to start desegregation in September 1963.”
The effectiveness of the district courts has been seriously impaired, in a real sense, contrary to the teachings of all the decisions of the Supreme Court since Brown II. Under the opinion and decree a United States District Judge serves essentially as a referee master, or hearing examiner. Now his only functions are to order the enforcement of the detailed, uniform, stereotyped formal decree, to supervise compliance with its detailed provisions as therein ordered and directed, and to receive periodic reports much in the same fashion as reports are received by an ordinary clerk in a large business establishment.
Such a detailed decree on the appellate level not only violates sound concepts of judicial administration, but it violates a longstanding philosophy of the federal judicial system, and indeed all judicial systems common to this country, which vest wide discretion and authority in trial courts because of their closeness to and familiarity with local problems. See the opinions in Brown II, Bradley, Rogers, and Calhoun. For example, in Brown II the Court stated:
“Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of the school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for *404further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.
“In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision.” (Emphasis added.)
The opinion asserts that “most judges” do not possess the necessary competence to deal with the questions presented, and do not “know the right questions, much less the right answers.” Notwithstanding the foregoing assertion, the judges of the majority, acting on the appellate level, proceed to fashion a decree of such minute detail and specificity as to remove all discretion and authority from the district judges on whom the Supreme Court has relied so heavily. In my view the district judges are in much better position to know the questions and the answers than appellate judges who necessarily function some distance away from an evidentiary hearing and are removed from the “multifarious local problems” and “the variety of obstacles” inherent in the solution of the issues presented.
IV
Percentages, Proportions and Freedom of Choice
Freedom of choice means the unrestricted, uninhibited, unrestrained, unhurried, and unharried right to choose where a student will attend public school subject only to administrative considerations which do not take into account or are not related to considerations of race. If there is a free choice, free in every sense of the word, exercised by students or by their parents, or by both, depending on the circumstances, in accordance with a plan fairly and justly administered for the purpose of eliminating segregation, the dual school system as such will ultimately disappear. Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963); Bradley v. School Board, 345 F.2d 310, 318 (4 Cir. 1965), vacated and remanded on other grounds, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965 per curiam). See also Clark v. Board of Educ. of Little Rock, 369 F.2d 661 (8 Cir. 1966); Deal v. Cincinnati Bd. of Educ., 369 F.2d 55, 59 (6 Cir. 1966); Lee et al. v. Macon County Board of Education et al. (D.C.M. D.Ala.1967) 267 F.Supp. 458. If the completely free choice is afforded and neither the students nor their parents desire to change the schools the students have heretofore attended, this Court is without authority under the Constitution or any enactment of Congress to compel them to make a change. Implicit in freedom of choice is the right to choose to remain in a particular school, perhaps the school heretofore attended. That in itself is the exercise of a free choice. The fact that Negro children may not choose to leave their associates, friends, or members of their families to attend a school where those associates are eliminated does not mean that freedom of choice does not work or is not effectively afforded. The assertion by the majority that “[t]he only school desegregation plan that meets Constitutional standards is one that works” as interpreted by that opinion, simply means that students and parents will not be given a free choice if the results envisioned by the majority are not actually achieved. There must be a mixing of the races according to majority philosophy even if such mixing can only be achieved under the lash of compulsion. If the percentage of Negro and white *405children attending a particular school does not conform to the percentage of Negro and white school population prevalent in the community, the majority concludes that the plan of desegregation does not work. Accordingly, while professing to vouchsafe freedom and liberty to Ne^ro children, they have destroyed the freedom and liberty of all students, Negro and white alike. There must be a mixing of the races, or integration at all costs, or the plan does not work according to the opinion. Such has not been and is not now the spirit or the letter of the law.
The aim and attitude of the majority is reflected by the following statement:
“In reviewing the effectiveness of an approved plan it seems reasonable to use some sort of yardstick or objective percentage guide. The percentage requirements in the Guidelines are modest, suggesting only that systems using free choice plans for at least two years should expect 15 to 18 per cent of the pupil population to have selected desegregated schools.”
Further the Court equates the percentage attendance test with percentages in jury exclusion11 cases and voter registration cases. It should be pointed out that such cases had no element of free choice in them, and therefore, the comparison is inapposite. In the instant cases the majority condemns a free choice plan unless it achieves the percentage r.esult which suits the majority. Accordingly, the opinion concludes:
“Percentages have been used in other civil rights cases. A similar inference may be drawn in school desegregation cases, when the number of Negroes attending school with white children is manifestly out of line with the ratio of Negro school children to white school children in public schools. Common sense suggests that a gross discrepancy between the ratio of Negroes to white children in a school and the HEW percentage guides raises an inference that the school plan is not working as it should in providing a unitary, integrated system.”
There is no constitutional requirement of proportional representation in the schools according to race. Furthermore, since there can be no exclusion based on race, proportional limitation is likewise impermissible under the Constitution.
We should be concerned with the elimination of discrimination on account of race, and freedom of choice is one means of accomplishing that goal. It is not our function to condemn the children or the school authorities because the free choices actually made do not comport with our own notions of what the choices should have been. When our concepts as to proportions and percentages are imposed on school systems, notwithstanding free choices actually made, we have destroyed freedom and liberty by judicial fiat; and even worse, we have done so in the very name of that liberty and free*406dom we so avidly claim to espouse and embrace. Our duty in seeking to eliminate racial discrimination is to vouchsafe to all children, regardless of race, a full, complete and timely free choice of schools in appropriate cases in keeping with sound administrative practices which take into consideration proper criteria. Both proportional representation and proportional limitation are equally unconstitutional.
V
Enforced Integration
The opinion seeks to find a Congressional mandate requiring compulsory or enforced integration in the public schools as distinguished from the elimination of segregation. Throughout the opinion there appear a tangled conglomeration of words and phrases of various shades of meaning, all of which are equated with each other to reach the conclusion desired by the majority that school boards in this Circuit must adopt and implement a plan of forced integration.
It seems appropriate to return to the Civil Rights Act of 1964 and the legislative history which spawned its enactment in order to ascertain the true Congressional intent. Section 401(b), 42 U.S.C.A. § 2000c(b) defines desegregation in unequivocal terms:
“ ‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.”
Section 407(a) (2) of Title IV, Title 42 § 2000c-6(a) (2) provides as follows:
“ * * * provided that nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards.” (Emphasis added)
It should be noted that the portion of the language of the proviso which is underscored is omitted in the court’s opinion. As to enforced integration the following statement by Senator Humphrey is exactly in point:
“Mr. Humphrey * * * I should like to make one further reference to the Gary case. This case makes it quite clear that while the Constitution prohibits segregation, it does not require integration * * *. The bill does not attempt to integrate the schools but it does attempt to eliminate segregation in the schools * * *. The fact that there is a racial imbalance per se is not something which is unconstitutional. That is why we have attempted to clarify it with the language of Section 4.” (110 Congressional Record 12717)
Likewise with respect to Section 407(a) (2) Senator Humphrey’s statement clarifies and makes plain the Congressional intent by referring to the Gary case.12
The following additional excerpts from the legislative history serve to clarify the intent of Congress. Congressman Celler, Chairman of the Judiciary Committee of the House and Floor Manager of the bill:
“There is no authorization for either the Attorney General or the Commissioner of Education to work toward achieving racial balance in given schools.” (110 Congressional Record 1519, January 31, 1964)
Senators Byrd and Humphrey:
“MR. BYRD of West Virginia. But would the Senator from Minnesota also indicate whether the words ‘provided that nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the trans*407portation of pupils or students from one school to another or one school district to another in order to achieve such racial balance’ would preclude the Office of Education, under section 602 or Title VI, from establishing a requirement that school boards and school districts shall take action to relieve racial imbalance wherever it may be deemed to exist?
“MR. HUMPHREY. Yes, I do not believe in duplicity. I believe that if we include the language in Title IV, it must apply throughout the Act.” (110 Congressional Record, Page 12715, June 4, 1964).
Senator Javits:
“MR. JAVITS * * * Taking the case of the schools to which the Senator is referring, and the danger of envisaging the rule or regulation relating to racial imbalance, it is negated expressly in the bill, which would compel racial balance. Therefore there is no case in which the thrust of the statute under which the money would be given would be directed toward restoring or bringing about a racial balance in the schools. If such a rule were adopted or promulgated by a bureaucrat, and approved by the President, the Senator’s State would have an open and shut case under Section 603. That is why we have provided for judicial review. The Senator knows as a lawyer that we never can stop anyone from suing, nor stop any Government official from making a fool of himself, or from trying to do something that he has no right to do, except by remedies provided by law. So I believe it is that set of words which is operative.” (110 Congressional Record, Page 12717, June 4, 1964).
Senators Byrd and Humphrey:
“MR. BYRD of West Virginia * * * Cannot the Office of Education, pursuant to carrying out this regulation, deny assistance to school districts wherein .racial imbalance exists?
MR. HUMPHREY. Let me read from the substitute: Provided, that nothing herein shall empower any official or court of the United States to issue any order.
MR. BYRD of West Virginia. ‘To is-use any order’, but does it provide that the Office of Education shall not cut off Federal assistance?
MR. HUMPHREY. But in order to cut off Federal assistance, the President would have to issue the order, if the Senator will read Section 602.
MR. BYRD of West Virginia. The words are: No such rule, regulation, or order shall become effective unless and until approved by the president.
MR. HUMPHREY. That is correct.
MR. BYRD of West Virginia. What assurance does the Senator give me that the President will not approve such a requirement?
MR. HUMPHREY. Because I do not believe the President will violate the law.” (110 Congressional Record, Page 12715, June 4, 1964).
In order to escape the clear meaning of the quoted statutes and the unquestioned intent of Congress as illustrated by the legislative history, the opinion summarily obliterates any distinction between desegregation and integration. Within the context of the opinion integration means forced or enforced integration. Again the term integration is applied only to de jure segregated schools. An analysis of the opinion demonstrates that the process of reasoning used amounts to an unauthorized insertion of the word “de j'ure” to achieve and maintain the de facto and de j’ure distinction with which I dealt earlier. By means of this device the opinion converts the Civil Rights Act of 1964 into a new and different concept entirely foreign to its true meaning. I quote several typical excerpts from the opinion:
“We use the terms ‘integration’ and ‘desegregation’ of formerly segregat*408ed public schools to mean the conversion of a de jure segregated dual system to a unitary, nonracial (nondiscriminatory) system — lock, stock, and barrel: students, faculty, staff, facilities, programs, and activities.” (Emphasis added) (footnote 5, page 846 of 372 F.2d).
* * * # * *
“The national policy is plain: formerly de jure segregated public school systems based on dual attendance zones must shift to unitary nonracial system — with or without federal funds.” (Emphasis in orig.) (page 850).
* «• * * * *-
“Although the legislative history of the statute shows that the floor managers for the Act and other members of the Senate and House cited and quoted these two opinions they did so within the context of the problem of de facto segregation.” (Emphasis added.) (page 862). [The two cases mentioned are Briggs and Bell.] **■*#* *
“As used in the Act, therefore, ‘desegregation’ refers only to the disestablishment of segregation in de jure segregated schools.” (Emphasis added) (page 878).
* * * * * #
“Senator Humphrey spoke several times in the language of Briggs but his references to Bell indicate that the restrictions in the Act were pointed at the Gary, Indiana de facto type of segregation.” (Emphasis added) (page 881).
Again it should be said that it is not easy to understand the reasoning by which the majority concludes that the Federal Constitution requires integration of formerly de jure school systems but does not require the integration of de facto systems. Apparently faced with this dilemma the majority realized that it must challenge the jurisprudence established by Briggs v. Elliott (E.D.S.C. 1955) 132 F.Supp. 776, and Bell v. School City of Gary (N.D.Ind.1963) 213 F.Supp. 819, affirmed 324 F.2d 209 (7 Cir. 1963). The opinion refers to these cases as “two glosses on Brown”. The repeated assertions of Senators showing their reliance upon the two decisions in question give emphasis to the meaning of the teaching of those two eases. Senator Humphrey actually stated that the thrust of Judge Beamer’s opinion in the Gary case was incorporated into the Civil Rights Act of 1964.13 The majority disposes of Senator Humphrey’s comment and the Gary case by asserting that the school districts were drawn without regard to race. The following is from the opinion:
“Senator Humphrey spoke several times in the language of Briggs but his references to Bell indicate that the restrictions in the Act were pointed at the Gary, Indiana de facto type of segregation.” (opinion page 80).
While it may be true that the facts in Gary showed good faith on the part of the school board, it is likewise true that the Gary school system involved de jure segregation within the meaning of the majority opinion. We quote from Judge Beamer’s opinion, 213 F.Supp. at 822:
“Prior to 1949, Gary had segregated schools in what is commonly known as the Pulaski Complex. Two schools were built on the same campus, one was called Pulaski-East and the other Pulaski-west. One was occupied by Negro students and the other by white students. This was in accordance with the separate but equal policy, then permitted by Indiana law, (Burns Indiana Statutes Annotated, 1948 Replacement, Section 28-5104)”.
The difficulty of the majority is further increased by virtue of the fact that Judge B earner cited cases which uphold the Briggs doctrine. More important, when the case was affirmed by the Court of Appeals of the Seventh Circuit, the so-called Briggs dictum was cited as authority for the court’s holding, 324 F.2d at 213.
*409If the alleged Briggs dictum is so clearly erroneous and constitutionally unsound, it is difficult to believe that it would have been accepted for a period of almost twelve years and quoted so many times. Even the majority concedes that the court in Briggs was composed of distinguished jurists, Judges Parker, Dobie and Timmerman. If the majority is correct, it is entirely likely that never before have so many judges been misled, including judges of this Court,14 for so long by such a clear, understandable direct, and concise holding as the language in Briggs which the opinion now condemns. The language is straightforward and simple: “The Constitution, in other words, does not require integration. It merely forbids discrimination.”
It is interesting also to observe that the Supreme Court has never disturbed the Briggs language, although it has had numerous opportunities to do so. As a matter of fact, it has come very close to approving it; if it has not actually done so. In the case of Shuttlesworth v. Birmingham Board of Ed. (N.D.Ala.1958) 162 F.Supp. 372, 378, the district court speaking through Judge Rives quoted the Briggs opinion. The Supreme Court affirmed the judgment. Shuttlesworth v. Birmingham Board of Ed., 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145.
The majority rule requiring compulsory integration is new and novel, and it has not been accepted by the Supreme Court or by the other Circuits. The rationale of Briggs has been approved. Brown decisions, supra; Goss v. Bd. of Educ. of City of Knoxville, supra; Bolling v. Sharpe, 347 U.S. 497, 498, 74 S.Ct. 693, 98 L.Ed. 884; Com. of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 231, 77 S.Ct. 806, 1 L.Ed.2d 792; Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L.Ed.2d 5 (passim); Scull v. Com. of Virginia, 359 U.S. 344, 346, 79 S.Ct. 838, 3 L.Ed.2d 865; Wolfe v. State of North Carolina, 364 U.S. 177, 182, 80 S.Ct. 1482, 4 L.Ed.2d 1650; Gomillion v. Lightfoot, 364 U.S. 339, 349, 81 S.Ct. 125, 5 L.Ed.2d 110; Garner v. State of Louisiana, 368 U.S. 157, 178, 82 S.Ct. 248, 7 L.Ed.2d 207; Turner v. City of Memphis, 369 U.S. 350, 353, 82 S.Ct. 805, 7 L.Ed.2d 762; Johnson v. State of Virginia, 373 U.S. 61, 62, 83 S.Ct. 1053, 10 L.Ed.2d 195; Wright v. Rockefeller, 376 U.S. 52, 57-58, 84 S.Ct. 603, 11 L.Ed.2d 512; Springfield School Committee v. Barksdale (1 Cir. 1965) 348 F.2d 261; Bradley v. School Board of City of Richmond, Va. (4 Cir. 1965) 345 F.2d 310; Swann v. Charlotte-Mecklenburg Board of Educ, (4 Cir. 1966) 369 F.2d 29; Deal v. Cincinnati Board of Educ. (6 Cir. 1966) 369 F.2d 55; Bell v. School City of Gary, Indiana (7 Cir. 1963) 324 F.2d 209; Clark v. Board of Educ. of Little Rock (8 Cir. 1966) 369 F.2d 661; Downs v. Board of Educ. of Kansas City (10 Cir. 1964) 336 F.2d 988, cert. den., 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 800.
Conclusion
It is my judgment that the de facto-de jure distinction created in the opinion can not be supported as a matter of law. Percentage or proportional enrollment requirements based on race, and enforced integration are in violation of well established constitutional concepts in my opinion.
While it cannot be denied there has been recalcitrance and resistance to desegregation as required by the Brown decisions in numerous areas, I cannot share in the pessimism expressed in the opinion. Throughout the country a substantial effort has been made to eliminate segregation and substantial progress has been made. The Brown decisions contemplated some difficulties and complexities. A review of the history of the difficulties involved strongly indicate that the greatest problems arise when a start or “break through” is initiated. Recalcitrance and resistance which appeared initially in many areas have now subsided or disappeared. It is also true that the emphasis has shifted properly from “deliberate” to “speed” *410I continue to have confidence in the local school boards of the nation. While some of them have performed slowly and a few have not performed at all, the vast majority of school boards are composed of conscientious, civic minded, sincere people who are undertaking to do what is best for the school children of the nation. We should not interfere with them unduly.
Furthermore, I continue to have confidence in the judicial system of the country and hold the firm belief that the record of the courts in achieving compliance with the Brown decisions demonstrates that the courts have given their prompt, careful and diligent attention to the problems as they have arisen. In my view the heaviest burden has been on the district courts, and inevitably the best solutions will come at the district court level where the judges are in close contact with local complexities, obstacles and problems. The primary responsibility should be left where the Brown decisions placed it, with the boards of education under the supervision and guidance of the district courts. This is not to say that the courts should not accord full consideration to the expertise of the Department of Health, Education and Welfare; and we should give due consideration to HEW Guidelines when it is appropriate to do so. However, the provisions of the Civil Rights Act of 1964 should not be by-passed. Rules, regulations and orders of general application should be enacted in accordance with the requirements of due process and school systems should not be penalized by such rules, regulations or orders which are not approved by the President as provided by the Act. It is no answer to say that the guidelines are interpretive regulations or “housekeeping” rules. They are being used and applied as general rules, regulations or orders.
Due to developments in the jurisprudence, particularly with respect to desegregation of faculty and staff, the orders of the district courts should be vacated and the causes remanded for further consideration and for evidentiary hearings in the district courts. In effect the appellees recognize the fact that this must be done. We should not reverse the district courts on questions which were not issues before them and fashion our own decree with respect to such issues without any evidentiary basis or without affording an opportunity for the presentation of evidence relating to such issues in the district courts.
. “The opinion” and “the decree” as used herein refer to the opinion and decree filed in these cases by the three judge panel on December 29, 1966, wherein two of the judges agreed and one dissented.
Of necessity, references to page numbers of the opinion refer to the slip opinion.
. See Gayley, The Classic Myths, (Rev. ed.1939) page 23
“She sprang from the brain of Jove, agleam with panoply of war, brandishing a spear and with her battle-cry awakening the echoes of heaven and earth.”
. However, compare the doctrine of the majority and the theme of an article in the Virginia Law Review entitled “Title VI, The Guidelines and School Desegregation in the South”, by James R. Dunn. Virginia Law Review, Vol. 53, page 42 (1967). According to footnote 85 of the law review article, the majority opinion was released “as this article was going to press.” Mr. Dunn is Legal Adviser, Equal Educational Opportunities Program, United States Office of Education, HEW, Washington, D.C.
. At one place in the opinion pseudo de facto segregation in the South is mentioned, but it is asserted that any similarity between pseudo de facto segregation in the South and actual de facto segregation in the North is more apparent than real. (p. 68)
. The case of Blocker v. Bd. of Educ. of Manhasset, N. Y. (E.D.N.Y.1964) 226 F.Supp. 208 cited and relied on by the majority does not support the de facto-de jure distinction. In fact Judge Zavatt disavows any such distinction. The following is from the opinion:
“On the facts of this case, the separation of the Negro elementary school children is segregation. It is segregation by law — the law of the School Board. In the light of the existing facts, the continuance of the defendant Board’s impenetrable attendance lines amounts to nothing less than state imposed segregation.”
*¡í v -k
“This segregation is attributable to the State. The prohibitions of the Fourteenth Amendment ‘have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken. * * * Whoever, by virtue of public position under a State government, * * * takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.’ Ex Parte Virginia, 100 U.S. 339, 346-347, 25 L.Ed. 676, 679 (1880). ‘The situation here is in no different posture because the members of the School Board and the Superintendent of Schools are local officials; from the point of view of the Fourteenth Amendment, they stand in this litigation as the agents of the State.’ Cooper v. Aaron, supra, 358 U.S. [1], at 16, 78 S.Ct. [1401], at 1408, 3 L.Ed.2d 5.”
. See for example the following statements from the opinion:
“The courts acting alone have failed.” (p. 847 of 372 F.2d).
* * * * * *
“Quantatively, the results were meager.” (p. 853)
* * * * *
“And most judges do not have sufficient competence — they are not educators or school administrators — to know the right questions, much less the right answers.” (p. 855).
sfc * :¡: sj: $
“In some cases there has been a substantial time-lag between this Court’s opinions and their application by the district courts. In certain cases — which we consider unnecessary to cite — there has even been a manifest variance between this Court’s decision and a later district court decision. A number of district courts still mistakenly assume that transfers under Pupil Placement Laws — superimposed on unconstitutional initial assignment satisfy the requirements of a desegregation plan.” (p. 860)
. See item (5), page 855 of the opinion:
“(5) But one reason more than any other has held back desegregation of public schools on a large scale. This has been the lack, until 1964, of effective congressional statutory recognition of school desegregation as the law of the land.”
. See opinion, page 848 of 372 F.2d, footnote 13.
It should be noted that when the panel which originally heard this case invited briefs no mention was made of any co~i-stitutional question or issue with respect to the HEW guidelines. Rather, the questions posed related to whether it was “permissible and desirable” for the court to give weight to or rely on the guidelines; and if so, what practical means or methods should be employed in making use of the guidelines. From the questions raised by the court, counsel could not have gained the impression that the court was to make a full scale determination of the constitutional questions involved.
. See opinion page 857.
. The 1966 Guidelines were promulgated on March 7, 1966, after these cases were docketed in this Court. The fact that the appellees had no opportunity to have a hearing and that the guidelines were unilaterally issued without receipt of evidence from the numerous school districts was called to the attention of this Court by one of the briefs for appellees:
“As pointed out in detail below, the Constitutional and legislative principles applicable to the expenditures of federal funds, the legislative and administrative discretion placing conditions upon the receipt and use thereof, the lack of due process in the adoption thereof and the lack of any opportunity to be heard by those affected thereby all render such Guidelines inapplicable to the pending cases.”
* * * *
“The 1966 Guidelines (as well as the 1965 Guidelines) were not approved by the President. They were issued by the Office of Education unilaterally without an opportunity for the representatives of the thousands of school districts affected thereby to be heard. As unilateral directives they have not been subject to judicial review.”
See consolidated brief Jefferson County Board of Education, pp. 76-77.
. One of the leading and most recent cases on jury exclusion is Swain v. State of Alabama (1965) 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. With respect to proportional representation on juries the Court concluded:
“Venires drawn from the jury box made up in this manner unquestionably contained a smaller proportion of the Negro community than of the white community. But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which the petit jurors are drawn.” (p. 208, 85 S.Ct. p. 829.)
Further, the Court in Swain quoted with approval the following statement from Cassell v. State of Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629, 631, 94 L.Ed. 839, 847:
“Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.”
. Bell v. School City of Gary, Indiana, 213 F.Supp. 819 (D.C.1963).
. See opinion page 881.
. See the very clear dissenting opinion of Judge Cox.