(dissenting):
I think the court once again acts as a school board and as a trial court, and now is about to act as a city planning commission. In disagreeing with the majority opinion I do not overlook the ability manifest in its presentation; but this admirable craftsmanship deserves a worthier destiny.
The clearest example of our usurpation appears in the instructions to the District Court to investigate the Norfolk zoning regulations to see why the Negroes live where they do. In this the District Court is directed to assay for its bona fides the Norfolk Planning Commission’s layout of the city into residential districts. The District Court is told to scrutinize the housing in the area where Negroes live, if near a public *44school, with the suggestion that the location of their habitat may be the result of “racial discrimination with regard to housing”.
Concededly, the question of what is the “neighborhood” in a neighborhood school assignment plan is not dependent upon, or determined by, planning districts. In assuming they were so utilized, the majority is in error. They were simply used to define the location of the residence of a pupil. The school zones were measured not from the planning lines, but from each school; the school’s site was taken as the center and the school zone circumscribed about it with an almost constant radius. Indeed, planning zones and school zones are too tenuously related for one to be a guide for the other. City planning, of course, involves the allotment of urban, suburban and sometimes more removed space for commercial, industrial and residential uses.
City planners have never been, and are not now, able to create a Negro neighborhood. This is so even in urban renewal or public housing projects. A planning commission is confronted with residences predating municipal planning and with residences to be erected in new sections. As to the former, obviously no amount of zoning can change them and there is no opportunity for racial discrimination. As to the new areas, the only power of the planners toward regulating who shall live there is a restriction of the minimum lot or tract size and, possibly, the type of dwelling-house. Neither factor affords an opportunity for racial discrimination. These are economic considerations; they are not Constitutionally offensive because a Negro may not have the means to reside there.
But if the old or existing neighborhoods are to be investigated for “racial discrimination”, as the majority now orders, and assuming that in a school suit the judgment of the city planners may be litigated, the canvass ordered of the District Judge would be vast and meaningless. It would start with a separate consideration of the occupants by race. It would include the Negroes’ preference or financial ability to locate elsewhere; whether they had ever been refused residence in another place; how they happened to settle where they have; the nature of their possession or estate and how it was acquired, i. e. by inheritance or purchase, so as to see if this housing was forced upon them; the attitude of the planners and the City Councilmen who approved the planning; and a myriad other explorations. Then, in the end, who would decide whether the Negroes have been aggrieved and on what criteria ?
A similar sweeping reevaluation is applied to the conclusions of the School Board and the District Court. Despite reluctance, the stubborn fact is that the opinion now overrules every finding of the District Judge save one, the insignificant ruling on transfers from the Northside to Rosemont school. Then the majority substitutes its views of the geographical and residential characteristics of Norfolk for those of the Norfolk School Board and of a District Judge long resident in Norfolk. With the utmost familiarity of the circumstances there, the Board and the Judge have each painstakingly and conscientiously endeavored to act without social discrimination. The Civil Rights Division of the Department of Justice made no objection whatever to the District Judge’s decision, although requested to express itself. But all this intimate knowledge is now scrapped in favor of the majority’s own appraisal of Norfolk.
In this, the majority insinuates that the School Board has put faculty integration on only a token or quota basis. Further, it intimates that the Board, without objection of the District Judge, is gerrymandering school districts. Also there is the implication that the Board’s aim, with the acquiescence of the Judge, *45is to locate or use other ways to identify the schools as Negro or white. But this is not the record.
Faculty ratios have been progressively improved. The District Court found these unquestionable facts: “When the schools opened on September 6, 1966, the faculties in all eleven junior high schools were integrated; the faculties in all four senior high schools were integrated; the faculties in twenty-eight of the fifty-six elementary schools were integrated. We believe that anyone will agree that such action is beyond the call of ‘deliberate speed’ bearing in mind that the faculty desegregation issue was finally settled by the Supreme Court on November 15, 1965.”
The Board’s plan for desegregation now decried by the majority is well undergirded by actualities and expert opinion. It was not initiated by the Board but by the Judge. Although he alluded to dangers — and they exist in every plan —overall he thought the plan not unfair or unsound. The evidence reveals a just foundation for the Board’s determination as well as for the Judge’s approval. Especially in locating new, or adding, school structures the Board is put in an impossible predicament. If the building is sited in a Negro neighborhood, the decision is assailed as fostering a “Negro” school; if it is placed at a distance, it is attacked as discriminatorily inaccessible. The Judge saw no reason to override the Board; nor did the United States. I hardly think we know better than all of these.
I wonder if a presumption of good faith in the acts of those in authority might sometime be indulged instead of the inference of evil motive.
A preference by an appeals court for its own findings in subordination of the trial court’s is forbidden by F.R.Civ.P. 52(a). Certainly it is presumptuous for us to say that the District Judge was “clearly erroneous”. I would affirm the District Court throughout.