(dissenting)1.
Only the strongest belief that the remedy imposed by today’s action violates basic constitutional rights of most of those upon whom it is fastened could induce me as a brand new judge to set forth these comments. In form we here simply enforce a Supreme Court mandate so the reasons for this writing may turn out to be small in the overall context of things, but they now appear to be of the largest dimensions. The very substance of my oath forbids my allowing this order to issue in the form it does with my silent acquiescence when I so deeply feel it is fundamentally and constitutionally unsound. I am therefore compelled to assert my most respectful disagreement with what we have done.
There are two constitutional dimensions to the error:
(1) Our action does not confer equal protection. It destroys for all the very protection it seeks to make equal.
(2) The precipitate haste with which vague, undefined action is required by the parties deprives them, and any others that may be affected by what we here do, of that due process of law we are sworn to vouchsafe.
Of all the tasks to which we have been set as judges, certainly this action is the most sensitive for we deal with the central lives of literally hundreds of thousands of children, parents, teachers and others, each one of whom has a most important right to be heard and to be equally protected in his or her constitutional rights as an individual person. If ever there was a time for the court to bend every effort to be credible and persuasive to those affected by our order, it is now. The central aim of courts is to solve problems — not create them. The brief order we here use to enforce the mandate lacks even the smallest spark of compassionate understanding. It is justified neither with reason nor logic, nor is it supported by the slightest attempt at persuasion. We do not show the District Court or the litigants how to get this case out of the courts. We do not point out where the new concept of mid-term student body merger has been applied with success. We do not demonstrate the shortcomings or defects of other more reasonable options available. We simply issue another cryptic edict. To me it is as starkly simply as the bare bones of this order that we must secure popular acceptance for what we here decree if it is ever to become truly effective.2 This is put forth without in the slightest way advocating that we become *1218a populist court. My concern is not with the popularity of the court’s orders, but with the function of such orders in a way that has some chance to bring about the result intended. We are not dealing with the establishment of any principles of law. If we were, explanation could be unnecessary. But no one is here before us seeking to resurrect segregation in public education. That corpse is buried and the funeral is over for all but a vocal few extremists, both black and white. Rather, we have the task of fashioning a remedy that will secure the form of equal protection that has been adjudged for all members of the class before us.3
The remedy we hope to achieve is one fraught with great difficulty because our nation is a nation of free people. So long as they don’t violate some duty imposed by law they can live their lives as they please, making much of themselves or nothing, going there or staying here.4 When this freedom of action is set opposite the thrust of the problem to be solved the difficulty becomes most apparent. The headstone used in constructing the arch of change from separate but equal to unitary public education was the feeling of inferiority said to be engendered in members of the Negro race by enforced racial segregation in public schools.5 If our remedy is unreasoned and so abrupt that the non-Negro community exercises its freedom and withdraws its participation in and support for a public school or a public school system, then in the end we have remedied nothing in that school or district. This is not specious speculation. It is happening at this very moment in districts before us today.
We should now be striving with our best lights and powers of reason and persausio’n to appeal to that insight, instinct and nobility that lies in the hearts of all the people. Instead of a “Do as I say” pronouncement, we should be not only reasoned and articulate, but also specific as to what those we direct be enjoined must do in order to comply. We here command the district courts to enjoin upon school districts such a vague standard by which to conduct their affairs that I seriously doubt that we would let it stand if it were appealed to us at trial court action. Surely, possessing the power to enjoin, all recognize that we have a corresponding duty to make our injunction order crystal clear.6
*1219In the beginning we tell everyone what the Supreme Court told us — that they must achieve the results we order “immediately”,7 Then we tell no one what we mean. “Turn off the light immediately!” means one interval of time if it is directed to a man standing by the light switch. It means an interval many times longer when the same words are addressed to one who must enter a locked house and climb the stairs to reach the switch. There is yet another and a completely different time meaning to the word when it is used to command a man with a shovel to move a mountain. Here we deal with the complicated' task of simultaneous and complete reorganization of student bodies and teachers. But some measurable period of time is necessarily involved. Is it “Eight weeks”? “Minimum time necessary”? “Not later than February 1, 1970” ? 8 If the latter, what happens after the February 1, 1970 date arrives ? Must the entire school district close down until the court adjudges it to be in compliance? We should answer these questions. That our answer might be less than precise is no reason we should not try to make our position apparent. I think we ought to tell the district courts that the sense of what we were told translates to them in this form: The matter is committed to their sound discretion, with the expectation that they will proceed as rapidly as minimum disruption of the school district will permit. We should make it plain that doing an effective and lasting job is more vital than total instantaneous chaos to meet an artificial deadline. We ought to act now to keep the spirit of what was ordered alive after the time fixed by the letter of it has died on the clock.
Nobody knows what constitutes “[a unitary school system] within which no person is to be effectively excluded from any school because of race or color.”9 This is not to say that this court hasn’t drawn some negative limits around the phrase “unitary school.” We have frequently decreed that systems coming before us were not unitary for one reason or another.10 However, what is here urged is our duty to speak affirmatively, to tell the litigants, in advance of attacks made on them, precisely what such a “unitary system” is. We have said such a system must be racially integrated.11 and that its faculty must approximate the racial balance of the whole system.12 These are the only affirmatives known.
The assignment of specific racial quotas and the establishment of minimum, acceptable, percentage, racial guidelines for students, most assuredly cannot be the terms of definition, for when a child of any race wishes to attend a school because of its location close to home, because of the deemed excellence of its faculty of facilities, because it is attended by brothers or sisters or close friends or because it is on Dad’s way to work or in Mother’s car pool, and his wishes accord with valid educational policy, yet that child winds up being ex-*1220eluded from that school solely because the color of his or her skin doesn’t conform to a predetermined arbitrary racial quota or percentage guideline, that child’s right to be free of racial distinctions is gone.12A By the very wording of the phrase to be defined, a school system can’t be “unitary” if a child is effectively excluded from any school because of his or her race or color. It’s easy to see what it isn’t, the challenge is to show what it is.
We speak no plainer when we say that the test to be applied to any “unitary school” plan is whether “it works” because we haven’t ever said what that means. We have stated,13 as has the Supreme Court,14 that a unitary system is one “without white schools or Negro schools — just schools.” That’s no answer either. When is a school “white”? When is it “Negro” ? When does it ever get to be “just” a school? One thing is sure — what we do here today has the greatest possible potential for creation of all-black school systems within many of the counties and parishes before us.
We really act empirically in this situation. There is no science to what we do.15
With proper limits for teacher integration and the use of school facilities on a non-racial basis, the presently rejected tool of freedom of choice has the greatest possible chance of any system yet devised for achieving a lasting solution to de jure school segregation problems in most districts before us here.16 Our attempts to make do only with present artificial methods will continue to bring us to new grief. Courts should not be so impatient with immediate results, especially until freedom of choice has been tried with increased teacher integration and with active community and school district support. It would not be in the least a regression to now reaffirm the permissible use of this tool as a viable part of a plan now. I say this in full recognition of the fact that we may have to go the full circle on the present merry-go-round before this view is accepted. Only one more comment — I can see no wrongful shift of burden involved in freedom of choice. ‘The choice is ultimately that of the student and his parent. The school district can only make it more or less attractive with particular zones or pairs. Each child has his or her unique problems that only child and parent can fit into this delicate equation.
There is another duty we have placed on school districts which is entwined with establishing “unitary” schools and which equally cries out for a plain definition from us. In its latest phrasing, it requires that districts “extirpate any lingering vestiges of a constitutionally prohibited dual school system,” and disestablish “all aspects of a segregated public school system.”17 Why doesn’t *1221this court explicitly set forth now each and every one of these “vestiges” and “aspects” so that district courts and school district officials can know what to do and can know when they have been successful in complying with our orders ? Such a listing would not only hasten the elimination of such “vestiges” and “aspects”, but doubtless will have the salutary effect of increasing respect for law by showing all who would see that we intend to make our order operate evenly and that we do not intend any ex post facto treatment of districts because their performance might not suit some judges’ individual fancies.17A
The court seeks to bring mighty things to pass, but just how is not explained. For, unless it somehow imprisons the present and future school children in each district, it cannot say to them, “I have no need of you.” This is what it’s all about. The court needs the willing cooperation of people to make its relief effective. My main problem is that the court in nowise seeks to gain that cooperation by making its decree reasoned and precise enough to be accepted and understood. It is time for us to stop vetoing the efforts of the public officials charged with the actual day to day process of education.
All of what we do here is based upon granting equal protection to citizens. When the calm, bright light of history illuminates what has been done, it is bound to show that too great a haste for “equal” played a major part in destroying the protection we sought to provide. Certainly the court doesn’t make today’s decree because it got mad at the school district litigants when they were found to be circumstanced as they are. It’s also implausible that the hasty action, taken without any real semblance of the usual briefing and argument, could be predicated on a feeling “We have these people on the run — don’t let them catch their breath.” But I am bold to ask, what is the theme to which this tune is set ? For it cannot be rightly said that the blame for the lack of all deliberate speed belongs upon the school children of either race or upon their parents, yet it is they who are being equally punished by being deprived of one of the most vital and fundamental of the protections encompassed by the Fourteenth Amendment — • a viable public education. For some of these children it is their last year in school. For all of them it’s their most important. Reorganization of their districts in mid-year not only separates them from their friends and class.tiates, destroys their close identity with their school, interrupts months of training in difficult subjects with teachers they understand and to whom they respond; it also drains their districts of already thin financial resources and sends them packing across town or across the county or parish to strange environs with new classmates, new teachers, possibly to a different curriculum, with different or no equipment.
Subtantially exact racial balance of faculties stands in our order as a requirement by February 1, 1970.18 Many districts were embarked on compliance when the interim edict went forth to prepare for student merger simultaneously. This brought everything then in progress to a hair. Until students were reassigned and the numbers involved and the children were actually identified as to curriculum needs in each particular school, how could teachers be assigned? Now each district is faced with the probability that teachers will have to be reassigned, not once, but several times. With contracts expiring in early June there’s no way to send the children home ’til all settles down. Perhaps a few teams of qualified computer technicians with enough equipment could work it out, but we leave no time for even that exotic remedy. If this school year can be salvaged, it will be nothing short of a mir*1222acle and not in the least attributable to our actions. How this can qualify as any form of protection is indeed an enigma wrapped in a mystery.
1 am not the first judge to observe that courts have perpetuated errors by repeating them without pause for examination.19 One such fable is the argument that any school districts which don’t now comply with this court’s new guidelines have been in violation of court orders for 16 years and are therefore not deserving of additional consideration. The error of this is in two parts:
First, as to the existence of any past violation; second, as to the appropriate remedy if the first had been so.
Courts of the United States are given jurisdiction by the Constitution to determine cases and controversies; they are not possessed of any power to enact legislation ; their decisions are binding upon the parties before them — not upon the nation at large. In a number of fields — such as those involving commercial transactions or real estate, where consistency of the law is vital, the principle of binding precedent or stare decisis is applied.20 By this principle, those who find themselves similarly situated to litigants in a prior case may expect the same principle to be applied to decide their actions. Such principles are but rarely modified. However, stare decisis has never been strictly applicable in the field of constitutional law.21 Only a moment’s reflection shows the necessity for such a rule. If it were otherwise, the prejudices of individuals who occupy judicial office could be erected into constitutional principles and the court, not the document upon which our republic is based, would be in control of our destiny. Indeed, if stare decisis were strictly applicable in constitutional law the doctrine of separate but equal public facilities for racial groups which was the court declared guideline for over 75 years, would still be in force.22
Since stare decisis is not strictly applied, litigants cannot be nearly so sure as to what precedent might govern their case. Correspondingly, they have a wider latitude within which to justify the relitigation of constitutional principles established in prior cases. This is necessary to assure them that their basic rights and privileges are not wrongfully forfeited on the mere assumption that the court’s decision as to their case will not change.
Within the period of sixteen years from the Brown decisions 23 to the present, the courts have evolved a number of procedures to accomplish transition from dual to unitary systems of public education. In recent years this circuit has striven to maintain a maximum of uniformity of treatment with this change. For this reason, in most of the cases involved in the consolidated appeal at bar the school boards have until most recently operated under the terms of a mandatory injunction requiring them to utilize freedom of choice plans fashioned, upon our Jefferson model decree.24 This was not the beginning of concepts foreign to present thinking. Whether based on de*1223cisión or dicta or independent reasoning, prior decisions of this circuit expressly overruled in Jefferson25 established as the law of this circuit that the Fourteenth Amendment forbade segregation but did not command integration. This 1967 change of position in Jefferson was the first announcement that Fifth Circuit school boards had the duty to achieve affirmative racial integration of school systems. Even then the court eschewed the setting of racial quotas or the striking of any precise Negro/white balances. Bussing was not required and neighborhood schools were not condemned. Guidelines prepared by the Office of Education of the Department of Health, Education and Welfare were to be given “great weight” but it was made clear that the court was to make the decree. The Jefferson relief, even in the original December panel decision, was to commence at the beginning of the following school year.26 In June 1968 Jefferson County was again before the court regarding standards of faculty integration and the court gave the school districts two school terms to achieve satisfactorily integrated faculties without specifying any number or quota and without dealing with student integration at all.27 In May 1968 the Supreme Court affirmed that there was no universal answer to school desegregation, that no one plan could be expected to do the job in every case and that every plan had to be assessed after a period of evaluation in practice.
What the court now turns off as a long standing school district wrong of failing to achieve satisfactory race mix ratios is simply not supportable. The hard truth is that the courts have not fashioned an adequate and a precise remedy. It is this court, not the school districts, that is to blame for any disparity between what the court now wants and what the districts actually are. A major part of our problem here arises from the batching of cases for common treatment contrary to Green. School district problems are separate cases or controversies. Each district is entitled under the Constitution and law to our consideration on its own merits or demerits and to have appropriate relief tailored to that district’s problems.28 While acknowledging that this would impose some difficulty, it still must be done. Judicial efficiency and ease of administration of court affairs can never justify short-cutting the rights of litigants before us. This court is not a wholesaler. The demise of all deliberate speed must not be allowed to quicken the Frankenstein monster of impetuous justice.
Because the majority reads that part of Singleton which was not affected by Carter as providing that these cases are remanded to district courts for the performance of any necessary part of the full range of functions of a court, no issue is here discussed as to the constitutional problems that would arise if the Office of Education of the Department of Health, Education and Welfare were given the controlling sort of effect suggested by Mr. Justice Harlan’s concurrence in Carter. We are in agreement that on remand the court may consider plans submitted by any party or by HEW together with objections or suggested amendments and, after an evidentiary hearing, make a proper judicial determination as to what the rights of the parties and the interests of justice require by way of an order.
With the glare of this publicity turned on us, this court is no less than on trial itself — on trial to see if it can make justice the handmaiden of liberty, or whether we make her serve tyranny. There is more at stake here than the tremendously valuable rights that lie on the surface of this controversy. Much of the vitality of the rule of law hangs in the balance, for we here deal not only with a vast number of people but also *1224with perhaps the most sensitive area to any citizen — the welfare of his children. Respect for courts and for their decrees is a sine qua non to the acceptance of law as an ingrained way of life. We should do all we can as judges to promote that respect. Unfortunately, we here do much less.
The precipitate haste with which complex actions are demanded in the midst of a school year, the brief unexplained command by which it is ordered and the failure to consider separate varying district problems on an individual basis combine to deprive the litigants before us of due process and to destroy the very protection we seek to make equal. I respectfully dissent.
COLEMAN, Circuit Judge, concurs in this dissenting opinion.. I continue to abstain in No. 26285.
. I most assuredly do not speak here of orders molded to definance or unlawful opposition. Cf. Aaron v. Cooper, 257 F. 2d 33 (8th Cir. 1958); 358 U.S. 1, 78 S.Ct. 1399, 3 L.Ed.2d 3 (1958).
. In Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969), our unanimous expression was that Alexander v. Holmes County, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969) resolved all questions except as to mechanics and we were there focusing on the mechanics of accomplishing what Alexander laid down.
. The list of freedoms held to be protected from overbroad legislative, executive and judicial action is immense. For some of the more recent subjects, see the following cases: Free Association with others. Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966) and cases there cited; Privacy in a public phone booth. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Porongraphy in one's home. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Use of contraceptives. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Free Speech. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) ; Interstate travel. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Foreign travel. Aptheker v. Secty. of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964).
. Brown v. Board of Education of Topeka, Kan., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I)
. Cf. Rule 65(d), Federal Rules of Civil Procedure. Preciseness in injunction orders is compelled both to apprise the party enjoined of what is prohibited and to avoid undue restraint. 7 Moore’s Federal Practice 1666, 1667. Cf. Carroll v. Pres. & Com’rs of Princess Anne County, Md., 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed. 2d 325 (1968).
. 419 F.2d 1211 at 1216 [No. 26285, 1969].
. See Mr. Justice Harlan’s concurring opinion in Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 [No. 944 & 972 January 14, 1970].
. Alexander v. Holmes County Bd. of Education, supra, N. 3.
. See e. g. United States v. Jefferson County Board of Education,. 372 F.2d 836 (5th Cir. 1966), aff. en banc 380 F.2d 385 (1957), and cases there cited, especially Davis v. Bd. of School Com’rs of Mobile County, 364 F.2d 896 (5th Cir. 1966) and Singleton v. Jackson Municipal Separate School District, 348 F.2d 729 (5th Cir. 1965) (Singleton I), which early gave emphasis to the use of HEW plans to create “unitary” schools; Davis v. Board of School Com’rs of Mobile County, 393 F.2d 690 (5th Cir. 1968); United States v. Board of Public Instruction of Polk County, 395 F.2d 66 (5th Cir. 1968); United States v. Indianola Municipal Separate School Dist., 410 F.2d 626 (5th Cir. 1969); Anthony v. Marshall County Bd. of Education, 409 F.2d 1287 (5th Cir. 1969); Broussard v. Houston Independent School Dist., 395 F.2d 817 (5th Cir. 1968).
. United States v. Jefferson County, supra, N. 10.
. Singleton v. Jackson, supra, N. 3.
. If we had been clear on this subject the Judges of the Northern District of Georgia probably would not have entered their en banc definition by quotient order in United States v. Georgia et al., (CA 12972, U.S.D.C., N.D. Ga., December 17, 1969); Cf. Judge Bootle’s subsequent order in Bivins v. Bibb County Bd. of Eduration et al. (CA 1926, U.S. D.C., M.D.Ga., January 21, 1970).
. Henry v. Clarksdale Municipal Separate School Dist., 409 F.2d 682 (5th Cir. 1969).
. Green v. County School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
. The way must be left open for experimentation. United States v. Montgomery County Bd. of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969).
. Student freedom of choice was rejected as an end in itself but it certainly was not denied entirely as a useful tool in the Green trilogy. Green v. New Kent County, supra, N. 14; Raney v. Board of Ed. of Gould School Dist., 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Bd. of Commissioners of the City of Jackson, Tenn., 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). Freedom of choice was only condemned in situations where statistics showed no meaningful integration had resulted from its use.
. Carter v. West Feliciana Parish, supra, N. 8.
. Court orders, equally with legislative action, are subject to ex post facto limitation. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).
. Singleton v. Jackson, supra, N. 3.
. Black, dissenting, in Green v. United States, 356 U.S. 165, 219. 78 S.Ct. 632, 2 L.Ed.2d 672 (1958).
. See e. g. National Bank of Genesee v. Whitney, 103 U.S. 99, 26 L.Ed. 443 (1880); Peralta v. United States, 70 U.S. (3 Wall.) 434, 18 L.Ed. 221 (1865).
. Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671, reh. den. 371 U.S. 854, 83 S.Ct. 14, 9 L.Ed.2d 93 (1962); Douglas, Stare Decisis, 49 Col. L.Kev. 735.
. In fact in McCabe v. Atchison, T. & S.F. Railway Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914), the Supreme Court expressly ruled that the meaning of the Fourteenth Amendment was no longer open to question in affirming the dismissal of an injunction suit seeking to strike down an Oklahoma statute proving for separation of the races on railroad cars.
. Brown I, supra; N. 5; Brown v. Bd. of Education of Topeka, Kan., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II).
. 380 F.2d 390-396.
. See 380 F.2d 389, N. 3.
. 372 F.2d 836 at 896.
. 396 F.2d 44 (5th Cir. 1968).
. Green v. New Kent County, supra, N. 14.