with whom Circuit Judges BURGER and TAMM join, dissenting:
When Congress adopted the “District of Columbia Elected Board of Education Act,” 1 it announced “Findings and Declaration of Purpose,” as follows:
The Congress hereby finds and de-dares that the school is a focal point of neighborhood and community activity ; that the merit of its schools and educational system is a primary index to the merit of the community; and that the education of their children is a municipal matter of primary and personal concern to the citizens of a community. It is therefore the purpose of this Act to give the citizens of the Nation’s Capital a direct voice in the development and conduct of the public educational system of the District of Columbia; to provide organizational arrangements whereby educational programs may be improved and coordinated with other municipal programs; and to make District schools centers of neighborhood and community life.
Additionally, the Act was made to read explicitly in pertinent part:
The control of the public schools of the District of Columbia is vested in a Board of Education to consist of eleven elected members * * *.
(Emphasis mine.)
The term of office of an elected member of the new Board is to begin at noon on the fourth Monday in January, 1969, and meetings of the Board are to be open 2 to the public. Specifically, Congress made it proof positive that “no final policy decision * * * may be made by the Board of Education in a meeting * * * closed to the public.” It is obvious from the legislative hearings that Congress was quite aware, as assuredly the general public in the District of Columbia well knows, that complex questions had arisen in the administration of the schools in the District. The general awareness became specific following the trial3 which commenced July 18, 1966 and continued off and on until October 25, 1966. Circuit Judge Wright on June 19, 1967 as trial judge rendered his opinion 4 which incorporated his findings of fact, conclusions of law and a decree.5
It seems to me clear that Congress was intent upon the creation of an entirely new entity to which has been delegated the “control” of the public schools of the District of Columbia in furtherance of what might be discerned as the “direct voice” of our District citizens. The situation here is clearly unique and, likely enough, finds no counterpart throughout the nation. There had been widespread dissatisfaction with the administration of our schools through a Board appointed by the District Judges. We ourselves had taken note of the problems and had recognized that we had been confronted with “a very sensitive political question.”6 That discrimination in various forms had been continued for many years or had arisen since May 19, 1954 7 was abundantly establish*193ed by Judge Wright’s findings in Hobson v. Hansen.8 The details thus became apparent and the extent of the complexities of the problems confronting the schools in the Nation’s Capital can not be doubted. Accentuation of the realities is to be found in what Judge Bazelon has written. All the more on that account I find myself impressed by Judge Wright’s “parting word” where as he concludes his opinion he says:
It is regrettable, of course, that in deciding this case this court must act in an area so alien to its expertise. It would be far better indeed for these great social and political problems to be resolved in the political arena by other branches of government.9
I agree. It is precisely at this point that I feel the interposition of the judiciary should cease. The evils of de jure segregation have been exposed. The factors which have led some to conclude that de facto segregation has existed have been laid bare. I think — right here —is the place at which we should exercise judicial restraint. Declaratory and injunctive relief had been sought, and Judge Wright had entered his decree. I think that decree should be vacated.
It is fundamental that in circumstances such as here have been disclosed the courts are not bound to grant the relief as prayed. Dr. Hansen as Superintendent of schools had announced his retirement effective as of July 31, 1967. The “old” Board of Education presently will have been supplanted by the Board so recently elected by our citizens. Many of the practices exposed at trial have already been ameliorated, and yet others may prove impossible of resolution unless the Congress shall become persuaded that funds must be provided. In other aspects, difficulties must be overcome in terms of practicalities which can not be ignored. Transportation problems, new schools, pupil assignments, teacher integration and yet other phases of the situation disclosed in Hobson v. Hansen 10 must be met in accordance with thé policy to be formulated by the elected Board acting in furtherance of the purposes of the Act, supra.11
. Undoubtedly in the day and time of it, the issuance of the decree seemed essential in light of Brown v. Board of Education.12 But now that Congress has spoken and the electorate has acted, a very different status has evolved. Putting aside any effort to achieve in advance of action by the newly elected Board, a definition of judicially manageable standards to bind its execution of the policy entrusted to it, it is enough to say that wrongs have been exposed. The members of that Board have sought election thoroughly acquainted with the myriad problems for which solutions must be sought. It is a matter of judgment on our part, to be sure, but we can not be oblivious to the fact that political considerations and the necessity for compromise and readjustment will have weight as the new Board enters upon its duties.
Merely by way of analogy we may refer to the concluding observation by Mr. Justice Frankfurter in Colegrove v. Green13:
The Constitution has left the performance of many duties in our gov*194ernmental scheme to depend on the fidelity of the executive and legislative action and, ultimately, on the vigilance of the people in exercising their political rights.
In short, it is entirely apropos that the court should not enter the stormy14 thicket. With Mr. Justice Rutledge in Colegrove,15 I think this court now should decline further to exercise its jurisdiction, and the cause should be remanded to the District Court with directions to vacate the decree.16
APPENDIX
I
Judicial Conference of the District of Columbia Circuit
Resolution by the Judges of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia, in Executive Session of the Judicial Conference for the Circuit, 1967.
RESOLUTION
WHEREAS, Under the District of Columbia Code (1961) Title 31, Section 101, the Judges of the United States District Court for the District of Columbia are charged with the duty of appointing the members of the Board of Education of the District of Columbia, and
WHEREAS, This duty has rested with the Judges of the United States District Court for the District of Columbia since June 20, 1906, and
WHEREAS, In recent years the appointment of members of the Board of Education has become an extremely controversial question among the citizens of the District of Columbia, and
WHEREAS, The matter of appointing members of the Board of Education is now a very sensitive political question, not in the party sense, but in a broader sense, and
WHEREAS, The Judges of the United States District Court for the District of Columbia feel that they should not be required to act in this political field, and .
WHEREAS, The Judges of the United States District Court for the District of Columbia feel that in view of the foregoing, the appointive power of members of the Board of Education should not be in the Judges of the United States District Court for the District of Columbia ; now, therefore, be it
RESOLVED, That the Congress of the-United States be requested to amend the District of Columbia Code (1961) Title 31, Section 101, to remove the appointive power of members of the Board of Education from the Judges of the United States District Court for the District of Columbia and to lodge said power elsewhere.
Adopted: May 26, 1967.
A true copy:
Teste:
/s/ Nathan J. Paulson Secretary of the Judicial Conference of the District of Columbia Circuit
*195Appendix
II
THE WASHINGTON POST Thursday. Dec. 5, 1068
Hobson to Bypass Mayor and Council
Julius Hobson, militant School Board member-elect, said last night that he plans to deal directly with Congress on requests for District school funds and will bypass the May- or and City Council when he takes office in January.
“I got 61,000 votes, The Mayor got 1, from President Johnson,” Hobson told a group of about 35 at a meeting in the Church of the Redeemer, 14th and Girard Streets ne.
Hobson said that he had called upon education experts across the country to give him advice for the new job. He has asked a Harvard research group to conduct a cost analysis study of the school budget and to develop proposals for ■changes in the curriculum, he said.
■ As a first order of business, he said, he intended to see that the Wright decision was carried out to the letter of the law.
(Hobson was the plaintiff in the Wright decision, handed down in June, 1967, which abolished the track system of ability groupings in D.C. schools.)
Hobson said he had asked the New Jersey Council on Constitutional Law to give him a full legal interpretation of the powers of the School Board under the Wright decision, and also how it affects teachers.
Schools Supt. William R. Manning and all present members of the school administration will be given a fair chance, Hobson said, but he indicated that he probably will call for the dismissal of at least two men — John D. Koontz, an assistant superintendent, and Granville Wood-son, director of buildings and grounds.
Koontz admitted that he drew school boundary lines to separate blacks from whites in his testimony in the case that led to the Wright decision, Hobson said.
“Men like Koontz have to go,” Hobson said.
Hobson said Woodson had a record for not following School Board directives.
Hobson hurled frequent criticisms at Anita Allen, incumbent School Board member and his chief contender for chairman of the new Board.
“I understand she is railroading stuff through. The new Board will have a lot to clean up,” he said.
The five new members who were endorsed by the Triple-E committee and Muriel Alexander, who got Hobson’s personal endorsement, add up to a “working majority on paper” on the new Board, he explained. “If these people stick to it, we can change the Board of Education,” he said, But, he said, he also was prepared to work without an alliance.
*196BURGER, Circuit Judge (with whom Circuit Judge TAMM joins):
We'join in Judge DANAHER’S opinion and his view that sound principles of judicial restraint command that the mandate be vacated assuming, arguendo, that a subject so complex and elusive, and so' far beyond the competence of judges, would have warranted judicial action in the first instance.
We add a brief comment to underscore what we believe is implicit in the principal opinion, and indeed in Judge DAN-AHER’S dissent. The holding of the District Court is not affirmed as written but only as contrued by four members of this court. Even a cursory reading of the principal opinion reveals that as so construed, the mandate under review is essentially advisory to the former school board which has ceased to exist. As we see it the new school board is at liberty to make such use of it as it desires in much the same way as it may derive useful guidance from the Passow Report.
Several commentators have expressed views which undergird what Judge DAN-AHER has said as to the need for caution and restraint by judges when they are asked to enter areas so far beyond judicial competence as the subject of how to run a public school system. We have little difficulty taking judicial notice of the reality that most if not all of the problems dealt with in the District Court findings and opinion are, and have long been, much debated among school administrators and educators. There is lit-tie agreement on these matters, and events often lead experts to conclude that views once held have lost their validity. The commentary from various sources, including law reviews, tends to supply strong support for Judge DANAHER’S very sound view on the need for judicial restraint. The Harvard Law Review comments:
* * * [T]he limits upon what the judiciary can accomplish in an active role are an additional reason for circumspection, particularly in an area where the courts can offer no easy solutions.
* * * A court applying the Hobson doctrine must necessarily resolve disputed issues of educational policy by determining whether integration by race or class is more desirable; whether compensatory programs should have priority over integration; whether equalization of physical facilities is an efficient means of allocating available resources for the purpose of achieving overall equal opportunity. There is a serious danger that judicial prestige will be committed to ineffective solutions, and that expectations raised by Hobson-like decisions will be disappointed. Furthermore, judicial intervention risks lending unnecessary rigidity to treatment of the social problems involved by foreclosing a more flexible, experimental approach.
The Hobson doctrine can be criticized for its unclear basis in precedent, its potentially enormous scope, and its imposition of responsibilities which may strain the resources and endanger the prestige of the judiciary. * * *
Hobson v. Hansen; Judicial Supervision of the Color-Blind School Board, 81 Harvg.L.Rev. 1511, 1527, 1525 (1968) (footnote omitted).
The Stanford University Law Review had these comments:
It seems to have been the very magnitude of these problems that led the [District] court to search for remedies. In a brief paragraph entitled “Parting Word” the court, anticipating the adverse reaction its substantially unprecedented intervention has indeed provoked, set forth its apologia in these terms :
It is regrettable, of course, that in deciding this case this court must act in an area so alien to its expertise. It would be far better indeed for these great social and political problems to be resolved in the political arena by other branches of government. But these are social and political problems which seem *197at times to defy such resolution. In such situations, under our system, the judiciary must bear a hand and accept its responsibility to assist in the solution where constitutional rights hang in the balance.
* * * If at this time, however, such problems seem to “defy” social and political resolution, they are not for that reason more open to resolution by the courts. The responsibility lies first with those whose area of expertise comprehends feasible solutions.
Hobson v. Hansen: The De Facto Limits on Judicial Power, 20 Stan.L.Rev. 1249, 1267 (1968) (footnotes omitted).
After enumerating a number of objections to the Constitutional underpinnings of a Hobson v. Hansen-type opinion, Professor Kurland of the University of Chicago goes on to state:
And my third point of difficulty with the suggested constitutional doctrine of equality of educational opportunity is that the Supreme Court is the wrong forum for providing a solution. * * *
When we turn to the school desegregation eases, the problem most closely analogous to the one we are considering here, we find a more dismal picture of what must be acknowledged to be the Supreme Court’s failure rather than its success. The New York Times in its annual educational survey for 1968, thirteen and one-half years after Brown v. Board of Education, suggests that we are hardly any further along the line toward school desegregation than we were in 1954.
The Washington, D.C., example is too much with us. And everything that Judge Skelly Wright can do will not afford an integrated school system for the Nation’s capital. All that he can accomplish is to assure that the brighter students receive no better education within the system than the other students.
As I have suggested, it is perhaps because of the fact that local governmental units, especially those located in metropolitan areas, cannot or will not bring about racial desegregation that some are looking to the equal educational opportunity concept to break down the municipal boundaries in order to include suburban areas under the same umbrella as that which covers the slum schools. Absent a reversal of the Court’s decision in Pierce v. Society of Sisters, however, the es.cape route of private education will not be closed. And a reversal of that decision will arouse the opposition not only of the suburbanites but of organized religions as well.
Kurland, Equal Educational Opportunity: The Limits of Constitutional Jurisprudence Undefined, 35 U.Chi.L. Rev. 583, 592, 594, 595 (1968) (footnotes omitted).
This court — and courts generally— would do well to heed these sobering observations.
. P.L. 90-292, 82 Stat. 101, approved April 22, 1968.
. With certain exceptions not here pertinent.
. Some 30 witnesses had testified, and more than 450 exhibits had been introduced.
. Hobson v. Hansen, 269 F.Supp. 401-517.
. The terms of the decree are set forth in 269 F.Supp. at 517-518.
. We so observed in the resolution adopted by the Judicial Conference in Executive Session on May 26, 1967, and we asked Congress to lodge the appointive power of members of the Board “elsewhere.” See our resolution appearing in Appendix I.
. The Supreme Court then had decided Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 and see Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686 (1954).
. Supra note 4.
. 269 F.Supp. at 517.
. Supra note 4.
. Moreover, § 5 of the Act, supra note 1, pertinently provides that
The Board of Education and the Commissioner of the District of Columbia shall jointly develop procedures to assure the maximum coordination of educational and other municipal programs and services in achieving the most effective educational system and utilization of educational facilities and services to serve broad community needs, y
. 349 U.S. 294, 300-301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). But upon whom has the responsibility devolved for compliance with the terms of the decree? The resigned Hansen? The supplanted Board?
. 328 U.S. 549, 556, 66 S.Ct. 1198, 1201, 90 L.Ed. 1432 (1946).
. See news article, Washington Post, December 5, 1968, attached as Appendix II.
. Supra note 13, 328 U.S. at 566, 66 S.Ct. 1198 ; and see Baker v. Carr, 369 U.S. 186, 233, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
. Cf. Mills v. Green, 159 U.S. 651, 653-654, 16 S.Ct. 132, 40 L.Ed. 293 (1895) ; Chicago Great Western Ry. Co. v. Beecher, 150 F.2d 394, 398 (8 Cir. 1945), cert. denied, 326 U.S. 781, 66 S.Ct. 339, 90 L.Ed. 473 (1946).