(specially concurring):
With reluctance but still with genuine admiration for the author’s work, I concur in the majority opinion. The District Judge, and the School Board he upholds, have been dedicated in a desire to effec*413tuate in fairness the precepts of the Brown decision. They have sought to integrate the schools, and in this effort to establish a plan which would use integration to its best advantage in education.
This effort has spanned many years, and occupied to the uttermost the knowledge of an experienced Board and the advice of a Federal judge, widely and thoroughly informed in the geographical and demographical circumstances of Norfolk. I would reverse only because the plan incorporates distinctions based on race, heretofore declared to be unconstitutional.
Specifically, they are requirements that attendance in schools be fixed by racial percentages, and a declaration that white majorities should prevail because pupils tend to do better in a predominantly middle class milieu, and the observation that white pupils generally are middle class and black pupils in lower socio-economic class.
Utilization of these concepts, even if assumed to be sound scholastically, and although adopted bona fide by the Board and the Court as innovations to better the offerings of public education, cannot stand against the peremptory decrees of Brown and its procreations. No fault can be found in the majority’s reiteration and exposition of the law to this effect, both as to pupils and faculty.
My concern is that the remand lacks guidance to the District Judge on what he may or should do now. To this end I express the belief that the expertise of the Board and the seasoned judgment of the District Court can formulate a design — not impinging Brown — consisting of ungerrymandered neighborhood schools supplemented by freedom of choice and other pertinent factors. Freedom of choice was not outlawed in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). The Court said:
“We do not hold that a ‘freedom-ofchoiee’ 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. * * * ” 391 U.S. at 439-440, 88 S.Ct. at 1695.
This feature, I believe, when employed in company with other factors will avoid disobedience of Brown, if the combination is reasonably necessary because of special circumstances.
Accordingly, on account of the peculiar layout of residential Norfolk, I think the neighborhood school plan there would be altogether valid if supplemented by the freedom of choice privilege and provision for transportation, at the expense of the school authorities, wherever transportation is needed to make the schools accessible to the neighborhood pupils or to those exercising their freedom of choice of other schools. Transportation to effect a racial balance of attendance would not be required.
Integration could in this way be achieved to a point satisfying Brown— that is a system “within which no person is to be effectively excluded from any school because of race or color”. Alexander v. Holmes County Bd. of Ed., 396 U.S. 19, 20, 90 S.Ct. 29, 30, 24 L.Ed.2d 19 (1969). The same pattern could be adapted to the high schools both junior and senior. Teachers would be assigned among the schools without regard to race wherever the school is located.
At least the proposed design is equitable, and I think the remand should specifically include it as a possibility. Ellis v. Board of Public Instruction of Orange Co., Florida, 423 F.2d 203, 207 (5 Cir. 1970).