(dissenting):
For the reasons set forth by Judge Butzner, in whose opinion I join, I, too, dissent. I add only a few comments of my own..
With respect to the apparently uneven burden on black pupils in grades 3 to 5, I think that the decision of the district court is presently indefensible. The inquiry and findings that we directed to be made in the last appeal were not made. Certainly if the choice to transport only black students in grades 3 to 5, made by a school board which historically has demonstrated its unwillingness to bring itself into compliance with Brown, was non-discriminatory, the basis for the choice is undisclosed. And, as Judge Butzner convincingly demonstrates, the present record does not demonstrate that the choice must be made on an all or none basis. Reversal and remand of this portion of the district court’s order should inescapably follow.
I would reverse and remand as to the treatment of grades 1 and 2 also. This may well be a school district in which total dismantling of a dual system of schools is not required under Swann, but the present record does not lead me to that conclusion. The record shows that, prior to 1971, over 22,000 of the total school population of 31,500 pupils were transported to segregated schools by bus. At the present time, over 25,000 of the approximately 28,000 students are bused; and over 50 percent of the students in grades 1 and 2 are transported to segregated classes. If grades 1 and 2 are to be totally desegregated, the total number of students to be bused will be increased. But just as neighborhood schools are not per se valid, so is busing not per se invalid. The length and time of transportation, with consequent burden and perhaps detriment to the students, are pertinent factors to determine the feasibility and necessity of busing. While we may speculate in a school district of this size, shape and demographic composition as to the distance and time of busing necessary to achieve a totally unitary system at grades 1 and 2, the fact is that the district court has made no findings in this regard. Logic and a sound basis of decision require a survey and findings of the burden of present busing, past busing and future busing under various plans of integration before any conclusion could be drawn that achievement of a totally unitary system at grades 1 and 2 would or would not be deleterious to the health of the students involved. And, again, even if it is concluded that achievement of a totally unitary system should not be ordered, the achievement of some desegregation in grades 1 and 2 should not go unexplored.
Finally, I record my suspicion of the basis on which the district court approved retention of a dual system' for grades 1 and 2. It relied heavily on the testimony of Dr. Hogge, a pediatrician, to the effect that the health of students in kindergarten and the first and second grades would be adversely affected if they were not permitted to attend neighborhood schools. But as I read the testimony of Dr. Hogge, it was — beside the obvious that there are limits to the physical endurance to children in grades 1 to 7, and if transportation, coupled with the usual school day, exceeded those limits, the effect would be deleterious to the child — that the effect of transportation on the physical and mental health of a child depends upon whether he is happy which, in turn, depends upon whether he is transported to a school “of his choice or his parents’ choice.” If the child is unhappy, i. e., not transported to a school of his choice or his parents’ choice, “then it follows *199from there, as the night does the day, that you’re just going to have a poor situation.” Acceptance of Dr. Hogge’s thesis, it seems to me, would be to require application of the equal protection clause to depend upon a plebecite by parents. This is a novel doctrine which I do not think finds support in the authorities.
BUTZNER, J., joins in this dissent.