(concurring in part and dissenting in part).
I agree, of course, that this Court must comply with any mandate of the Supreme Court of the United States. We unanimously expressed our best judgment that racial discrimination could more effectively be eradicated, with less permanent damage to the educational process, by deferring transfers within the student bodies of these schools until September 1, 1970. The Supreme Court disagreed; we have been reversed.
With deference, this does not mean that I agree with the action of the High Tribunal. My vote on December 1, 1969, indicates that I do not. I fear that thousands of school children, black and white, who cannot help themselves, will *1214be the victims. The ultimate outcome will be exactly the opposite of that intended.
I agree, too, that the cases should be remanded to the District Courts for full implementation of what the Supreme Court has required. In doing this, we are simply following what the Court held in Brown II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. The Court there said, “Because of their proximity to local conditions and the possible need for future 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”, 349 U.S. 299, 75 S.Ct. 756. We cannot, we should not, shear the District Courts of their original jurisdiction and of the duties, responsibilities, and powers which inherently and by statute accompany their jurisdiction.
Therefore, I agree with the remand to the District Courts.
What I dissent from is the continuing failure of this Court to provide a lighthouse in the new storm which is upon us. The school authorities and the District Judges need something to steer by.
In United States v. Jefferson County Board of Education, 5 Cir., 372 F.2d 836, 380 F.2d 385 (1966 and 1967), when freedom of choice was an acceptable method of seeking desegregation, this Court formulated a detailed decree for use by the District Courts and forbade any variation therefrom. Now that freedom of choice is held to have generally failed we lapse into silence and wash our hands in the water of taciturnity. I strongly protest this approach. In Jefferson I, 372 F.2d 836, 849 (1966), the majority announced, “We grasp the nettle”. Are we continuing to grasp it ? I think the District Courts need help. They are being forced to act without our answer to many unanswered questions. I shall discuss some of them and state my view of what the answers ought to be.
On September 30, 1969, at an en banc session in New Orleans, this Court ordered the cases now before us to be considered en banc. We were acutely aware of the critical nature of the problem— critical for the eradication of unconstitutional discrimination and critical for the future of public education, the great hope of nearly all children, black and white. It was my understanding then that upon the en banc hearing in Houston on November 17, 1969, we would attempt to supply some judicial compasses for use in a forest which had not been anticipated in 1966. Regrettably, we did not really do so.
Certainly, as the Supreme Court said in Brown II, and as we have often repeated, local school authorities have the primary responsibility for elucidating, assessing, and solving these problems, 349 U.S. 299, 75 S.Ct. 753. It does no good now to say that these school districts have had fifteen years in which to do something and have not done it. As a matter of fact, most of the school districts now before us, if not all of them, have been under the supervision of the federal courts for as much as five years. I think it is quite clear what this proves.
Regardless of who is, or has been, at fault, the Supreme Court has told us in no uncertain terms that it will brook no further delays. Do we, then, stand by and see innumerable schools go crashing on the rocks and educational processes seriously impaired or shall we bestir ourselves and advance judicial solutions which will dismantle the dual school system without dismantling the schools as well ? Samson slew his enemies, all right, but he likewise destroyed the hall and liquidated himself — all because of bad judgment, previously exercised.
Of course, the prior decisions of the Supreme Court and of this Court are as available to the District Judges as they are to us and they are undoubtedly as capable of reading them as we are. The District Courts have a right to fill in the blind spots, consistently with the judicial oaths which they are certain to observe. Only this morning I read in the press that one District Judge has exercised his judicial discretion but another stated that he had been shorn of the power to act as anything but a funnel. This *1215points up the tragedy of our failure to provide a torch.
In Brown II the Supreme Court said:
“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 eases call for the exercise of these traditional attributes of equity power”, [349 U.S. 300, 75 S.Ct. 756.]
Certainly, racial segregation or discrimination imposed or permitted by state action cannot hide behind any equitable claim, but I think the language means what it so clearly says: that Judges are not to be the prisoners of anybody’s plan or formula. They are to function as Courts ought to function— consider all available evidence and then dismantle the dual system by that method which is most likely to attain Constitutional results with the least possible damage to the educational needs of the children of all races, creeds, or colors.
The Supreme Court proffered additional guidance in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716.
The Court said of the New Kent County Schools, 391 U.S. 435, 88 S.Ct. 1693:
“Racial identification of the system’s schools was complete, (emphasis mine) extending not just to the composition of the student bodies at the two schools but to every facet of school operations ■ — -faculty, staff, transportation, extracurricular activities and facilities. In short, the State, acting through the local school board and school officials, organized and operated a dual system, part ‘white’ and part ‘Negro’. It was such dual systems that 14 years ago Brown I held unconstitutional and a year later Brown II held must be abolished.”
These words were deliberately used, of course, I think they tell us what a dual system really is, but this Court has never described or defined what constitutes a dual system. Neither have we described or defined, within reasonable limits, the meaning of a “unitary” system. How are the struggling school authorities to know at what point they shall have succeeded in dismantling a dual system or setting up a unitary system? I suggest that we take a good, long look at the language in Green and see if we do not clearly get the message.
It is high time for us to elaborate upon what the Supreme Court told us in Alexander v. Holmes County Board of Education,
“[T]hat each of the school districts here involved may no longer operate a dual school system based on race or color, and directing that they begin immediately to operate as unitary school systems within which no person is to be effectively excluded from any school because of race or color" (emphasis added), 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19.
What did the Supreme Court in Green say that we should do to eliminate the complete racial identification of a school system which is divided into two separate parts, right down to faculty, staff, transportation, extra curricular activities, and facilities [five criteria] ?
“The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness. Where the court finds the board to be *1216acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system ‘at the earliest practicable date,’ then the plan may be said to provide effective relief. Of course, the availability to the board of other more promising courses of action may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed. See Raney v. Board of Education of Guild School district, 391 U.S. 443, at 449, 88 S.Ct. 1697, at 1700, 20 L.Ed.2d 727.
“We do not hold that ‘freedom of choice’ can have no place in such a plan. We do not hold that a ‘freedom-of-choice’ plan might of itself be unconstitutional, although that argument has been urged upon us. Rather, all we decide today is that in desegregating a dual system a plan utilizing ‘freedom of choice’ is not an end in itself.” ******
“On the other hand, if there are reasonably available (emphasis added) other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary, nonracial school system, ‘freedom of choice’ must be held unacceptable.” [391 U.S. 439, 441, 88 S.Ct. 1695-1696],
The High Court has never arbitrarily commanded that there must be racial balance in the student body of any school purely for the sake of racial balance. It has never commanded that little children be required to walk unreasonable distances, or be bussed to strange communities just to obtain racial balance. It has ordered us to quit operating two systems within a system, one all black and one all white, judged by five criteria, not one. Neither has it left the door open to tokenism.
I think the Supreme Court expected us to know how, within reason, to get the job done without material injury to true educational objectives and without, dke Samson, pulling down the halls we exist to preserve.
I respectfully suggest for the consideration of the District Judges that they carefully reassure themselves of what the Supreme Court has really said, as well as what it has not commanded by way of administrative detail. Segregation by state action or state permission has been legally a corpse for fifteen years. It has to be buried. I, for one, think there are many ways by which this can be accomplished without burying the public schools in the same grave through the use of unreasonable and educationally unsound requirements for both black and white. There are many ways it can reasonably be done in keeping with the personal dignity of all citizens, of whatever race.
In its en banc Jefferson decision, 380 F.2d at 389, a majority of this Court said:
“The Court holds that boards and officials administering public schools in this Circuit have the affirmative duty under the Fourteenth Amendment to bring about an integrated, unitary school system in which there are no Negro schools and no white schools — just schools.”
Our Court has never said what this really means. In the light of Green, we ought to say. A school is more than just an attendance center — a house. It is faculty, staff, transportation, extracurricular activities, and facilities. What, then, is an ALL BLACK school? What, then is an ALL WHITE school? The plans being put into effect in this Circuit say that only racial balance, to the exclusion of all other considerations, will avoid either alternative. I submit that this is not the law and the Supreme Court has not so commanded. Neither have we. The District Courts ought to remember this.
In anticipation of the professional skeptic, black or white, who has done *1217more to destroy the public school systems of the South than any other factor, let me make it clear that this opinion is no subtle invitation for the impossible goal of continued segregation by state action. It is a plea that we save our Constitutional rights and our schools at the same time. To do anything else is to defeat both objectives.
With deference to my fellow Judges, for whom I have the greatest respect, I would have much preferred that an opinion of this kind should have come from the Court rather than the separate opinion of one Judge. It no doubt would have been a much better effort and of immensely more weight.
This writer is from a State which must have an effective public school system if, in the long run, it is to survive. From 1950 to 1956 he served as one member of a three member State Board of Education. It is hoped that the intensity of his desire to preserve the public school system in a Constitutional manner will not be misunderstood.
To the extent indicated I respectfully dissent.
CLARK, Circuit Judge, concurs in this dissenting opinion.