(concurring in part and dissenting in part):
I concur in the Court’s opinion insofar as it affirms the district court’s finding of class discrimination. From that part of the Court’s opinion that denies any affirmative hiring relief to the class, I must, with profound sorrow, dissent.
As the majority recognizes, despite a state population that was 42% Black in 1960 and 36.7% Black in 1970, “the Mississippi Highway Patrol has never in its history employed a member of the Negro Race as a sworn officer.” The district court and the majority agree that this racial void was the result of “racially discriminatory policies and practices of the defendants” and that such policies and practices are violative of the Fourteenth Amendment. In fashioning relief, however, the district court refused to order any affirmative hiring relief, and it did so without any explanation for its inaction.1
*969The barriers to black entry into the Highway Patrol that defendants erected and tolerated have been formidable. The district court found, inter alia:
1. “Neither the Department of Public Safety nor the Highway Safety Patrol does any public advertising or makes any public announcements when job vacancies become available. Most of the patrolmen presently employed by the Patrol learned of vacancies and the fact that applications were being accepted through word-of-mouth inquiry from patrolmen who are their friends or relatives, and the majority of the clerical positions in the Department are filled by walk-ins, many of whom are recommended by present employees.”
2. “The employment application forms utilized by the Department and the Patrol require an applicant to list his relative employed by the State of Mississippi and his friends or acquaintances employed by the Patrol. Of the 107 Whites hired as patrolmen since January 1, 1968, all but twelve listed friends or acquaintances employed by the Patrol, and forty-two listed relatives employed by the State of Mississippi. Although there are communication media in the State of Mississippi, including television, radio and newspapers which reach a large portion of the Black community, neither the Department nor the Patrol has advertised the availability of jobs in any of these media or in any other news media in the State of Mississippi. The officers of the Public Relations Bureau of the Department present recruitment programs, including speeches, to civic clubs, church groups and student groups throughout the state. Included in those programs are presentations on “the law enforcement profession” which includes a description of the employment opportunities and qualifications for positions with the Department and the Patrol. The audiences for such programs have been predominantly White. A color motion picture film, apparently pro-dueed prior to January 1, 1968, which shows the physical plant and training operations of the Training Academy, has been available at the Patrol’s public relations bureau and has been shown to groups of students as part of “career day” programs in school in the State. In this film, which at the time of the time of trial of this case had been ordered by Commissioner Crisler not to be shown again, all of the recruits, officers, instructors, Academy personnel and other persons are White, with the exception of Black cooks and food servers in the cafeteria.”
3. “Until shortly before the trial of this case, the Department had no written rules or regulations prohibiting the use of racial terms or epithets by patrolmen, and the term “nigger” had at times been used by patrolmen in addressing Blacks.”
4. “The Mississippi Department of Public Safety and the Mississippi Highway Safety Patrol have had a reputation throughout the State of Mississippi, and particularly among the Black communities, as being an all-White Department and Patrol, which has discouraged Blacks, with the exception of the two named plaintiffs, Coker, and probably only a few others, from applying for membership, particularly as sworn officers of the Patrol, by virtue of the fact that there have never been any Black sworn officers on the Patrol. This in part has resulted from the fact that the application forms provide for a listing of relatives employed by the State of Mississippi and friends and acquaintances on the Patrol and within the Department of Public Safety, the former being all-White and the latter being almost all-White. Favoritism and partiality has been shown to those applicants having relatives, friends and acquaintances on the all-White Patrol.”
Although there is a hint of some progress during the last two years, the conclusion seems inescapable that the Pa*970trol’s past discriminatory practices have left a legacy whereby Mississippi Blacks could have little, if any, reason to believe they would be accepted for employment on the Patrol. See, United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, 457-458. In short it is impossible to believe that an injunctive order that does little more than require defendants to “stop discriminating” will result in the effective remedial vindication of the rights found violated here. In the words of Justice Holmes, “upon this point a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 1921, 256 U.S. 345, 349, 41 S. Ct. 506, 507, 65 L.Ed. 963.
Both plaintiffs and the United States Department of Justice, as amicus curiae, have prayed for this Court to mandate some form of affirmative hiring relief. I believe the Department of Justice has succinctly and correctly stated in its brief the primary issue before us on this appeal:
“Whether the district court, after holding that defendants were engaged in a pattern and practice of racial discrimination and finding that the defendants’ ‘all-white’ reputation among black citizens in Mississippi has discouraged blacks from applying, erred in failing to order an affirmative minority hiring goal to correct the effects of past discrimination by the defendants and their predecessors.”
From my reading of the district court’s findings and the record in this case, I am thoroughly convinced that the relief granted by the district court and affirmed by the majority is wholly inadequate to remedy the constitutional deprivations alleged and proven by plaintiffs.
This Court has long recognized that in cases of employment discrimination it is often necessary to order affirmative relief in order to insure that the effects of the past discrimination are overcome. In Local 53 of the International Assoc. of Heat & Frost Insulator & Asbestos Workers v. Vogler, 5 Cir. 1969, 407 F.2d 1047, an employment discrimination case granting broad affirmative relief, Judge Dyer stated:
“In formulating relief from such practices the courts are not limited to simply parroting the Act’s prohibitions but are permitted, if not required, to ‘order such affirmative action as may be appropriate.’ See United States v. Louisiana, E.D.La.1963, 225 F.Supp. 353, 393, aff’d, 1965, 380 U.S. 145, 154, 85 S.Ct. 817,13 L.Ed.2d 709.”
407 F.2d at 1052. See also United States v. Jacksonville Terminal Co., supra, 451 F.2d 418, 455, 458; United States v. Georgia Power Co., 5 Cir. 1973, 474 F.2d 906 at 927.2
This well established concept of affirmative relief, commonly applied in all areas of racial discrimination is not, as defendants claim, creating some new form of invidious discrimination in favor of Blacks. Rather, it is a recognition of the fact that to simply order an end to discrimination is often inadequate — more is required to right the past wrongs effectively. The notion of “transitional protective measures,” which requires a temporary suspension of traditional requirements of “color blindness,” have been authoritatively accepted, if not required, as a means of achieving benign constitutional objectives.
“As "we have stated often before, federal courts have an affirmative duty to order broad remedial relief where necessary to correct the effects of a pattern and practice of racial discrimination. Louisiana v. United States, 1965, 380 U.S. 145, 85 S.Ct. *971817, 13 L.Ed.2d 709; Adams v. Miami Police Benevolent Ass’n, Inc., supra; Local 53 of International Association of Heat & Frost Insulators & Asbestos Workers v. Vogler, 5 Cir. 1969, 407 F.2d 1047; United States v. Jefferson County Board of Education, 5 Cir. 1966, 372 F.2d 836.”
Smith v. Young Men’s Christian Ass’n of Montgomery, 5 Cir. 1972, 462 F.2d 634, 649. See also Swann v. Charlotte-Mecklenburg Bd. of Educ., supra; Long v. Georgia Kraft Co., 5 Cir. 1972, 455 F.2d 331.
In requiring affirmative hiring relief, we would not be saying that Blacks must forever be favored over Whites. We would simply say that unless some transitional affirmative relief is required, the severe constitutional deprivations that have already occurred will never be remedied. As Chief Justice Burger makes clear in Swann, supra, 402 U.S. at 31-32, 91 S.Ct. 1267, affirmative transitional measures are necessary only until past vestiges of discrimination have been removed. Where the vestiges of past discrimination are as obvious and extensive as in the instant case, I would read Swann as saying that not only is affirmative relief permissible, but that it is also required.
In a recent case that is strikingly similar to the ease sub judice, the Eighth Circuit, sitting en banc, ordered the Minneapolis Fire Department to hire Blacks on a one to two basis until an appropriate number of qualified Blacks had been hired. Carter v. Gallagher, 8 Cir. 1971, 452 F.2d 315. As is our case, Carter was based on 42 U.S.C. §§ 1981 and 1983, and the court there used the Title VII cases as authority for the proposition that transitional affirmative relief was both appropriate and necessary. In modifying the district court’s order, the Eighth Circuit stated:
“The absolute preference ordered by the trial court would operate as a present infringement on those non-minority group persons who are equally or superiorly qualified for the fire fighter’s positions; and we hesitate to advocate implementation of one constitutional guarantee by the outright denial of another. Yet we acknowledge the legitimacy of erasing the effects of past racially discriminatory practices. Louisiana v. United States, supra. To accommodate these conflicting considerations, we think some reasonable ratio for hiring minority persons who can qualify under the revised qualification standards is in order for a limited period of time, or until there is a fair approximation of minority representation consistent with the population mix in the area. Such a procedure does not constitute a “quota” system because as soon as the trial court’s order is fully implemented, all hirings will be on a racially nondiscriminatory basis, and it could well be that many more minority persons or less, as compared to the population at large, over a long period of time would apply and qualify for the positions. However, as a method of presently eliminating the effects of past racial discriminatory practices and in making meaningful in the immediate future the constitutional guarantees against racial discrimination, more than a token representation should be afforded. For these reasons we believe the trial court is possessed of the authority to order the hiring of 20 qualified minority persons, but this should be done without denying the constitutional rights of others by granting an absolute preference.”
Carter v. Gallagher, supra, 452 F.2d at 330-331. It is instructive to note that in Carter the Blacks constituted a considerably smaller percentage of the general population (approximately 4%) and that the stigma of discrimination that emanated from the Minneapolis Fire Department did not approach the level of the all-white legacy of the Mississippi Highway Patrol. Nonetheless, a majori*972ty of that Circuit recognized the appropriateness of ordering affirmative hiring relief.
Similarly, in Castro v. Beecher, 1 Cir. 1972, 459 F.2d 725, the First Circuit modified a district court order upon finding that certain preferential hiring relief was necessary in order to alleviate the past discriminatory practices of the Massachusetts Police:
“As to the class now before us, those black and Spanish-surnamed applicants who failed one or more of the examinations given during the period from 1968 to 1970, we feel that some form of compensatory relief is mandated. See, e.g., Carter v. Gallagher, supra, 452 F.2d at 328-331. We recognize that any such effort is bound to be a crude one and must be pursued with sensitivity and restraint. The district court has ordered that a nondiscriminatory and job predictive test be developed. In our view, if relief in the near future is to be more than token, further provision is necessary.”
459 F.2d at 736-737. The Court suggested the use of priority pools and hiring by ratio as appropriate remedial measures. Id. at 737. There are countless other cases that have required considerably broader affirmative relief than that accorded here. E.g., United States v. Hayes International Corp., 5 Cir. 1972, 456 F.2d 112, 117; United States v. Ironworkers Local 86, 9 Cir. 1971, 443 F.2d 544, cert. denied, 404 U.S. 484, 92 S.Ct. 447, 30 L.Ed.2d 367; United States v. St. Louis-San Francisco Ry. Co., 8 Cir. 1972, 464 F.2d 301.
The blatant statistical evidence and the long undeviating policy of discrimination, when combined with the important public character of the Highway Patrol, create a need for affirmative relief that is equal to if not greater than that present in many earlier employment discrimination cases. Today’s decision affirming the denial of affirmative relief is, in my opinion, an unfortunate step backward in the fight for racial equality.
The majority, while recognizing the gross effects of the past discrimination, studiously avoid the issue of the propriety of ordering affirmative relief by adopting an attitude of appellate deference that is unprecedented in this Circuit in the civil rights area. The two cases cited by the majority, Swann and Smith, do indeed say that the district court has broad discretion in fashioning appropriate remedies for racial discrimination. Both of these cases, however, affirmed district court decisions that had ordered broad affirmative relief. The deference that was being paid on appeal — rejecting claims that the relief had been too extensive — was that the precise contours of affirmative relief are best left to the district court. See also Adams v. Miami Police Benevolent Ass’n, Inc., 5 Cir. 1972, 454 F.2d 1315. They should not be read as holding that the question of affirmative relief vel non is purely a matter of district court discretion.
While it is certainly axiomatic that the trial court traditionally exercises broad discretion over the details of in-junctive relief, where, as here, there is a constitutional deprivation proven and found but not remedied, I believe the “chancellor’s foot” must defer to the need for effective constitutional vindication. As we have only too often experienced in cases of racial discrimination, the nature of the remedy is often the only relevant substantive issue at stake, and to permit broad notions of “discretion” to supplant our duty to insure effective relief is an unfortunate abdication.
The unfairness and unfeasibility of the majority’s opinion is well illustrated by a resent case, with almost identical facts, where the federal district court in Alabama ordered broad affirmative hiring relief in favor of black plaintiffs who had suffered identical hiring discrimination at the hands of the Alabama *973State Troopers, N.A.A.C.P. v. Allen, M. D.Ala., 1972, 340 F.Supp. 703.3 The sharp contrast of that relief with the lack of affirmative relief granted below in this case is all too clear. The difference can hardly be attributed to minute differences in the facts of the bases, and it is apparent to mfe that in the Alabama ease the plaintiffs were victorious and here the victory is one in form only. This disparity in substantive relief, presumably perfectly acceptable under the deferential approach taken by the majority, has the effect of allowing important constitutional rights to hinge solely on the length of the “chancellor’s foot.” I am unable to accept such a result.
In United States v. Hayes International Co., 5 Cir. 1969, 415 F.2d 1038, this Court reversed a district court’s denial of a preliminary injunction and ordered affirmative relief for black plaintiffs. Judge Tuttle stated:
“It is true that this court has followed the view that an injunction does hot follow as a matter of course upon either a finding or stipulation of violation of some Act of Congress. Mitchell v. Ballenger Paving Company, Inc., 299 F.2d 297, 300 (5th Cir., 1962). However,, it is equally true that this court has consistently held that the decision of the lower court is subject to review and where it is clear that its discretion has not been exercised with an eye to the purpose of the Act, Wirtz v. B. B. Saxon Company, 365 F.2d 457, 462 (5th Cir., 1966); Shultz v. Parke, 413 F.2d 1364 (5th Cir., 1969), or exercised in light of the objective of the act, Mitchell v. Ballenger Paving Company, Inc., supra, we have nevertheless not hesitated to reverse an order of the trial court denying an injunction without the need of a discussion of abuse and discretion.”
415 F.2d at 1044-1045. The Court went on to say
“Moreover, we hold as did the court in Vogler v. McCarty, Inc., 294 F. Supp. 368, 372 (E.D.La.1967) affirmed 407 F.2d 1047 (5th Cir., 1969) *974that where an employer has engaged in a pattern and practice of discrimination on account of race, etc., in order to insure the full enjoyment of the rights protected by Title VII of the 1964 Civil Rights Act, affirmative and mandatory preliminary relief is required.”
Id. at 1045. More recently, in broadening the injunctive relief granted by a district court, Judge Tuttle stated:
“Full enjoyment of Title VII rights sometimes requires that the court remedy the present effects of past discrimination. See Louisiana v. United States, 380 U.S. 145, 154 [85 S.Ct. 817, 13 L.Ed.2d 709] (1965). This includes both redressing the continuing effects of discriminatory seniority systems, Local 189, United Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969); United States v. Jacksonville Terminal Co., supra; United States v. Hayes International Corp., supra, and affirmative action to alter a seniority system which is not discriminatory on its face. If the present seniority system in fact operates to lock in the effects of past discrimination, it is subject to judicial alteration under Title VII. Local 53, International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047, 1052 (5th Cir. 1969); Local 189, supra at 991, of 416 F.2d.”
United States v. Georgia Power Co., supra at 927.
Finally, the approach of a unanimous Supreme Court in a civil rights case in which the defendants argued that the district court’s equitable discretion should not be disturbed, is instructive:
“Since the city has completely failed to demonstrate any compelling or convincing reason requiring further delay in implementing the constitutional proscription of segregation of publicly owned or operated recreational facilities there is no cause whatsoever to depart from the generally operative and here clearly controlling principle that constitutional rights are to be promptly vindicated. The continued denial to petitioners of the use of city facilities solely because of their race is without warrant. Under the facts in this case, the District Court’s undoubted discretion in the fashioning and timing of equitable relief was not called into play; rather, affirmative judicial action was required to vindicate plain and present constitutional rights. Today, no less than 50 years ago, the solution to the problems growing out of race relations ‘cannot be promoted by depriving citizens of their constitutional rights and privileges,’ Buchanan v. Warley, supra (245 U.S. 60, at 80, 81, 38 S.Ct. 16, at 20, 62 L.Ed. 149).”
Watson v. Memphis, 1963, 373 U.S. 526, 539, 83 S.Ct. 1314, 1321, 10 L.Ed.2d 529.
The majority states the issue sub judice as being “whether the District Court granted sufficient equitable relief to eliminate the discriminatory effects of the past as well as to bar like discrimination in the future.” It is perfectly clear to me that the district court did not grant “sufficient equitable relief.” I cannot agree with the majority’s statement that “there is no showing in this record that the relief granted will not remedy the wrong.” Where the effects of past discrimination have been as devastating and socially significant as in this case, I am unaware of any precedent for placing this sort of burden on a plaintiff who has successfully proven a violation of constitutional rights and is seeking appropriate relief. In a recent case, E.E.O.C. v. Rogers Bros., Inc., 5 Cir. 1972, 470 F.2d 965, Chief Judge Brown vacated a district court order in a Title VII case that had failed to give adequate injunctive relief, and spoke to this problem:
“While this record contains abundant evidence that the defendants have consistently declined in the past to submit the required reports, we are unwilling to make the initial forecast of what their course may be in the future. Nevertheless, we may *975hold on these facts that injunctive relief is mandatory unless the District Court finds on the basis of clear and convincing proof that there exists no reasonable probability of further non-compliance with the reporting provisions of the Act. United States v. Edwards, supra [United States v. Edwards, 5 Cir., 1964, 333 F.2d 575]. The burden of negating that probability lies with the defendants, and in these circumstances it will be a monumental one.”
470 F.2d at 966-967. See also Cooper v. Allen, 5 Cir. 1972, 467 F.2d 836, 840 (burden of clear and convincing proof on employer). In any event, the statement in the majority that “if it [the district court] has ordered too much, it may modify the decree when it appears necessary,” (emphasis added) only underscores the sharp disagreement I have with the majority’s perception of the case.
The approach taken by the majority— if this fails to work we can always try a little more, or presumably, a little less, in the future — -fails to give the relief consistently vouchsafed by this Court’s approach to civil rights matters over the last decade. In school cases we have ordered integration now, e. g., Davis v. Bd. of School Comm’rs., 1971, 402 U.S. 33, 38, 91 S.Ct. 1289, 28 L.Ed. 2d 577. We have ordered broad affirmative relief in cases involving housing discrimination, see e. g., United States v. West Peachtree Tenth Corp., 5 Cir. 1971, 437 F.2d 221, 228-229, voting rights, Louisiana v. United States, supra, and most importantly we have always required effective and non-dilatory affirmative remedies in cases of employment discrimination. The order affirmed by the majority does not obligate the defendants to hire any Blacks. It ignores the long history of discrimination that will invariably operate as a strong deterrent to black interest in the Patrol. For the district court to withhold affirmative hiring relief in a case with such important constitutional rights at stake is without question an abuse of discretion.
Recognizing the primacy of the district court’s role in fashioning equitable relief, the proper result here would have been to remand the case to have the district court, in the first instance, fashion appropriate affirmative hiring relief that would be both immediate and meaningful. The possible alternatives are broad — -temporary one-to-one hiring, the creation of priority hiring pools, a freeze on white hiring until the Patrol is effectively integrated, or any other form of affirmative hiring obligation— but to place the defendants under no obligation whatsoever, as was done here, is clearly insufficient. I emphasize that the affirmative relief would be on a transitional basis and would be operative only until the barriers, both real and psychological, are removed. The Patrol would not have to “lower” its hiring standards, and the court could not order the employment of genuinely unqualified Blacks. But the record makes clear that there are qualified Blacks, willing and able to be employed, and the court’s order should have required the hiring of at least some Blacks.
In order to overcome the still present badges of slavery, badges of freedom must now be festooned on the uniforms of some Blacks, even if those badges be as symbols of real and genuine equality to come. The Constitution generally commands in the present tense and is not stilled by pious hopes for future days of freedom. Appellate courts rightly give much latitude and longitude to the trial courts’ exercise of discretion, but here we see only immobility after years of circumventing the latitudinal and longitudinal geodetics of our revered Constitution.
It is statistically inconceivable that in 1973 no Black in Mississippi could be found willing and capable of becoming a patrolman. We should not be blinded by the words of promise for tomorrow, even though they be in injunctive terms. Today is the day for action, but the court below, in its “discretion,” did not even *976put a time limit, much less any firm obligation on the defendants, to end the continued desecration of the Constitution.
Even if the relief be de minimis, let there be some light shone on the roadway to constitutional equality. Even momentary tokenism is preferable to absolute negation, and the latter is all that I find in the ordering words of the trial court. It is a sad, sad day indeed for the Blacks of Mississippi to be told that in some glimmering future hour tests will be devised and methods will be achieved whereby they will be accorded some degree of the equality that the Constitution has guaranteed to them since the tragic days of the Civil War.
The majority opinion addresses itself exclusively to the future, as though some doctrine of condonation or purging is effected by an injunctive order in futuro that promises to conform some day to constitutional standards. This is too little and too late. We are under a judicial demarche to begin now to unbind the chains of slavery. It is insufficient to leave it to a locksmith in some unforeseen tomorrow to fashion a key to unlock the chain. The chain must be sundered today — nothing .less than today can satisfy our duty to cure the stultifying past. Believing that we should remand the case for further consideration of affirmative hiring relief, I dissent.
. The district court’s entire recital on this point was:
“D. Plaintiffs’ request for such affirmative relief as would require the defendants to increase the number of black officers on the Mississippi Highway Patrol, by minority preference or a racial quota system, to the end that the percentage of blacks on the Patrol does not significantly differ from the percentage of blacks in the population of the State of Mississippi, is hereby denied.”
. Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965): “We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” See also Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).
. Judge Johnson, in Allen, correctly stated the duty of the district court as follows:
“Under such circumstances as exist in these cases, the courts have the authority and the duty not only to order an end to discriminatory practices, hut also to correct and eliminate the present effects of past discrimination. Hutchins v. United States Industries, Inc., 428 F.2d 303, 310 (5th Cir. 1970); Local 53, Asbestos Workers v. Vogler, 407 F. 2d 1047, 1052 (5th Cir. 1969). The racial discrimination in this instance lias so permeated the Department of Public Safety’s employment policies that both mandatory and prohibitory injunctive relief are necessary to end these discriminatory practices and to make some substantial progress toward eliminating their effects.”
340 F.Supp. at 705-706. Included, inter alia, in the injunctive order were the following provisions:
“III. It is further ordered that the defendants be and they are each hereby enjoined from failing to hire and permanently employ after the probationary period, one Negro trooper for each white trooper hired until approximately twenty-five (25) percent of the Alabama state trooper force is comprised of Negroes. This injunction applies to the cadet and auxiliary troopers as well as to the regular troopers. It shall be the responsibility of the Department of Public Safety and the Personnel Department to find and hire the necessary qualified black troopers.
“IY. It is further ordered that the defendants be .and they are hereby enjoined from conducting any training courses for the purpose of training new troopers until the groups to be given said training courses are comprised of approximately twenty-five (25) percent black trooper candidates.
“V. It is further ordered that the defendants be and they are each hereby permanently enjoined from failing to hire supporting personnel for the Department of Public Safety in the ratio of one Negro for each white until approximately twenty-five (25) percent of the supporting personnel are black. The decree in United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970) is hereby amended insofar as the Department of Public Safety’s employment practices are concerned.”
Id. at 706.