(concurring):
Insofar as our mandate permits the district court in its discretion to require the use of quotas or other forms of race-conscious hiring relief here, we break judicial new ground in this circuit. Not only the novelty but also the sweep of today’s precedent—applying as it does to all appointed officials—persuades me to record this concurrence.
Unfortunately, no court has ever adequately rationalized the constitutional infirmities suggested in Judge Gee’s dissent that are inherent in requiring “affirmative hiring practices” based upon race. When the first Mr. Justice Harlan dissented in Plessy v. Ferguson, 163 U.S. 537, 554-555, 16 S.Ct. 1138, 1145, 41 L.Ed. 256 (1896), he put this side of my problem more aptly than I can.
In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved.
It is logically inconsistent to propound in one breath the ideal abstraction that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens . . . [who] are equal be*1059fore the law,” Plessy v. Ferguson, supra, 163 U.S. at 559, and in the next to assert that the same document allows an appellate tribunal to mandate the utilization of overt classification by race as a remedy for past wrongs. Yet I recognize that in the context of integrating public educational institutions this court has stated:
The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate governmental purpose.
United States v. Jefferson County Board of Education, 372 F.2d 836, 876 (5th Cir. 1966), aff’d en banc, 380 F.2d 385 (1967), cert. denied, Caddo Parish School Bd. v. United States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967). In the same context, the Supreme Court has clearly affirmed the use of “mathematical ratios” by a federal chancellor as a “useful starting point in shaping a remedy to correct past constitutional violations.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971).
Despite congressional proscriptions against preferential treatment or utilization of race as a factor in the decision not to hire, 42 U.S.C. § 2000e-2(a), (j); see also Griggs v. Duke Power Company, 401 U.S. 424, 431-432, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), other circuits have not hesitated either to affirm, approve or institute orders requiring affirmative hiring relief when deemed necessary to eradicate the present effects of past discrimination in suits brought under Title VII of the Civil Rights Act of 1964. See, e. g., United States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973); United States v. IBEW Local No. 212, 472 F.2d 634 (6th Cir. 1973); United States v. Wood Lathers Local No. 46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973); United States v. Carpenters Local No. 169, 457 F.2d 210 (7th Cir.), cert. denied, 409 U.S. 851, 93 S.Ct. 63, 34 L.Ed.2d 94 (1972); United States v. Ironworkers Local No. 86, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971); United States v. IBEW Local No. 38, 428 F.2d 144 (6th Cir,), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970). We have too. Asbestos Workers Local No. 53 v. Vogler, 407 F.2d 1047 (5th Cir. 1969).
The Philadelphia Plan and other similar programs, which pursuant to Executive Order require minority representation in federally-assisted construction projects, have been specifically approved. See, e. g., Southern Illinois Builders Association v. Ogilvie, 471 F.2d 680 (7th Cir. 1972); Contractors Association v. Shultz, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); Joyce v. McCrane, 320 F.Supp. 1284 (D.N.J., 1970); see also Associated General Contractors v. Altshuler, 490 F.2d 9 (1st Cir. 1973).
Four of our sister circuits have approved requiring the use of affirmative hiring relief by public agencies that have engaged in employment practices which have been shown to have a racially discriminatory effect. See, e. g. Vulcan Society v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973); Pennsylvania v. O’Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); but see Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973). Despite my doubts that its constitutional validity can be reasonably articulated, this overwhelming precedent constrains me to concur in holding that the *1060imposition of quota hiring relief is a permissible exercise of the federal chancellor’s discretion.
The statistics which Judge Coleman has developed as to other similar agencies cogently demonstrate that Mississippi is not unique, but they also reinforce by belief that, given the legal power to impose it, this powerful discretion should be vested in the trial court here. This is especially true in light of the fact that the Mississippi Highway Patrol urges on oral argument that it is already engaging in the practice of hiring every qualified black applicant.
I do not understand the majority opinion to require the dilution of any valid employment qualification as an adjunct of achieving the intergration it requires and would not concur if it did, for such a proviso or consequence would be contrary to common sense and every prior precedent. Surely, too, it is implicit in what we say that if any affirmative relief provision imposed should prove unworkable, the defendant officials would petition for and be entitled to supplemental relief. Therefore, I find no refuge in Judge Roney’s suggestion of preferential black hiring, which is obviously encompassed in the majority’s “affirmative hiring relief” anyway.
With deference to Chief Judge Brown and Judge Wisdom, I had not the slightest intention of underbilling the pioneer spirit which has marked this circuit’s broad range of integration ratio and other race-based relief orders. However, today our national concepts of a proper solution to the chronic problem of race relations are in a state of flux. At a time when conservative resistance to mandates for social change has begun to melt, the liberal elite openly voice doubts that past remedies are efficacious and suggest that egalite be pursued in forms that differ from “separate but equal” in name only. In such a situation I deem it important to record that (1) no holding by this or any other court has yet spelled out how quota relief can be squared with constitutional fundamentals, (2) employment quotas have never been ordered by this circuit, and (3) if precedent did not compel concurrence, I would opt for a different course.