(concurring and dissenting):
I
We concur in the result reached in part IV-B of the opinion of the court. We would not, of course, reach the question of attorneys’ fees if our view on the merits prevailed. Otherwise, we respectfully dissent.
II
In its opening paragraph, the majority opinion correctly states the legal issue 1 in this case. We add, however, that the issue is presented to this court as one of first instance in any federal court at this or higher level.2 We are bound by no definitive Supreme Court decision.
The majority regard Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), followed in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), and Tillman v. Wheaton-Haven Recreational Association, 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973), as being controlling precedents. We do not so regard those decisions.
We believe that the majority has been unduly impressed by the historical relationship between §§ 1981 and 1982 and has failed to discern the difference between the right to purchase real estate and the right to attend an independent school inferred from the right to “make *1093and enforce contracts.” The purchase of real estate, with its attending perquisites, is a commercial transaction pure and simple, and many other contracts are likewise purely commercial. On the other hand, the relationship of teacher and student is one of status, which is related to the contract concept in the same way that the status of husband and wife may be said to grow out of a contract of marriage. The contract aspect of the situation is minor and incidental and serves no purpose other than as a door opener in the present case to bring independent schools within the scope of § 1981. The right to make and enforce contracts does not imply a right to coerce an unwilling co-contractor into making any and every variety of contract.
The majority opinion also fails to recognize Moose Lodge v. Irvis, 407 U.S. 163, 92 S.CT. 1965, 32 L.Ed.2d 627 (1972), and Gilmore v. City of Montgomery, 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974). True, those cases do not involve § 1981 or § 1982, but involve the problem of State action under the Fourteenth Amendment. However, they do show that answers to apparently the same type of technical questions in this field may vary according to the facts of each particular situation.
Legal problems arising out of a purpose to readjust interracial relationships fall into four categories: (1) those arising under the Fourteenth Amendment; (2) those created by the Civil Rights Acts of the 1960’s; (3) those resulting from conditions imposed by the federal government upon benefits bestowed such as aids to education; and (4) those arising from the resurrection of the post Civil War Civil Rights Act of 1866 and the several acts of the 1870’s, now found in 42 U.S.C.A. § 1981 et seq. Legal problems involving the issues regarding the newly enfranchised slaves were acute until the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). Thereafter, such legal problems became stereotyped until the landmark decision in 1954 of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). That case introduced the first, of the above four categories, which is still paramount. Racially discriminatory action may be struck down under the Fourteenth Amendment provided State action is involved. In the 1960’s, the Congress forbade racially discriminatory practices under the Civil Rights Acts of 1964 and 1968. Those acts did not touch private action in some fields. To cover this hiatus, the post Civil War Civil Rights Acts were resurrected. The leading case is Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), which was decided after the passage of the Civil Rights Act of 1964.
After the Thirteenth Amendment abolished slavery in 1865, various States passed Black Codes designed to keep those who were newly enfranchised as second class citizens if citizens at all. Although such former slaves were now free, the objective was to keep them from exercising the legal rights usually associated with free citizenship such as the ownership of property and the making of contracts. See Private Discrimination, 74 Col.L.Rev. 450, 452 (1974). To counteract this movement, the Fourteenth and Fifteenth Amendments were eventually adopted. More immediately, however, the Civil Rights Act of 1866 was passed. It was based upon § 2, the enforcement section, of the Thirteenth Amendment which, unlike the Fourteenth Amendment, did not require State action. What is now 42 U.S.C.A. §§ 1981 and 1982 were section one of the Act of 1866. And there were misgivings as to the constitutionality of the Act. Simply, they were that the Thirteenth Amendment abolished slavery, and conduct, such as that prohibited by the 1866 Civil Rights Act, did not constitute the reestablishment of slavery in the strictest sense of the word. Because of the constitutional doubt just mentioned, the provisions of the Civil Rights Act of 1866 were reenacted, practically intact, in various statutes passed during the 1870’s, after the effective date of the Fourteenth Amendment. Section One of the *1094Act of 1866 was reenacted in 1870 and is now represented by 42 U.S.C.A. §§ 1981 and 1982. Only the 1866, and not the 1870, Act is here pertinent because State action is clearly not involved in our case. The Acts of 1866 and 1870 were dormant for so many years that in civil law countries a desuetude would have occurred.3 Not until after the passage of the Civil Rights Act of 1964 was the 1866 Act reactivated. The 1964 Act made no attempt to prevent racial discrimination in the admission policies of independent schools. If the Thirteenth Amendment authorized Congress to forbid independent schools to use race as an admissions criterion in 1866, it likewise did so in 1964. Whatever the intent of the 1866 Congress may have been, it must be that the 1964 Congress did not intend to restrict the admissions policies of independent schools.
The application of 42 U.S.C.A. § 1981 to this case may be approached either as a matter of interpretation or as a matter of constitutionality: i. e., (1) what does § 1981 forbid? (2) is § 1981 constitutionally valid? Here, those two questions merge together. Section 1981, as any other statute, should be construed, in the light of constitutional limitations, to uphold its validity. See Graham v. Richardson, 403 U.S. 365, 382, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971).4
While dissenting, we wish to make it clear that we do not necessarily express approval of the alleged restrictive admissions policies of the appellants. What is involved here is a collision between competing social interests, any of which, standing alone, would be regarded with favor.
On the one hand, our society has an interest in the upward mobility of all of its citizens, unhampered by invidious distinctions. A corollary of this is an interest in educational opportunities.
This interest in educational opportunity as a means of upward mobility is confronted by social interests in the true independence of private educational institutions, and in the right of voluntary association and non-association. Although the backbone of our educational system must of necessity be found in our public schools, in a diverse society such as ours the leavening value of educational institutions which are autonomous and free from control by the federal and state governments is generally and legally accepted. Compare Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Society has an interest in preserving the true independence of such institutions.
The other social interest which supports the position of appellants is the interest in free association. It is conceded that, as a general matter, enforced association is foreign to our institutions. Mr. Justice Douglas, in his dissenting5 *1095opinion in Moose, 407 U.S. stated at p. 179, 92 S.Ct. at 1974, the proposition thus:
“The associational rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires.”
Even were we to assume, for argument, the majority holding that the persuasiveness of the right of free association depends, in part at least, upon the size of the unit, both of the schools here involved are small. They are not huge and impersonal. The district court’s opinion, 363 F.Supp. 1200, 1201, 1202, indicates a maximum enrollment at Fair-fax-Brewster School of 236 and at Bobbe’s School an average of 200. In schools of that size, intimacy of personal association is still important, and the right of free association certainly should apply, if it does in any case, to units of such numbers. How great a size, if any, might destroy the constitutional protection is a question not now before us.6
It is one of the missions of law to balance conflicting social interests so as to give the maximum of protection to each.7 Which interest will prevail will depend therefore upon special considerations in each context in which the conflict is presented. A good illustration of this point is to be found in a comment upon the district court’s decision in the instant cases in Segregation in Private Schools, 122 U.Penna.L.Rev. 471, at 478, 479 (1973). It is there stated that “a balancing of Constitutional interests is necessary to produce a proper construction of section 1981.” The author continues:
“Our discussion to this point suggests where the balance might be struck without seriously impairing either right. The right to contract protected in section 1981 should be limited to contracts found in secondary, as contrasted with primary relationships. The former [sic, latter] are ‘basically relationships between friends,’ characterized by ‘intimate association.’ Secondary relationships, by contrast, are ‘impersonal, highly formalized relations between people,’ for example, the relationship between buyer and seller . under this approach, discrimination would be allowed in primary relationships for any reason whatever, including-racial bias, . . .”
The article suggests that such a differentiation reconciles the results in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), and Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). If this approach is used, it seems to us that a secondary school as found here involves a primary relationship and thus is not within the scope of § 1981.
So far as the balancing of conflicting interests is concerned, the difference between the right to own property, under § 1982, and the alleged right to attend an independent school under § 1981 becomes apparent. The word “right” is ambiguous. See Private Discrimination, 74 Col.L.Rev. 449, at 468, 469 (1974). It may mean an immunity from legal disability to own property or make a contract. In Hohfeldian terms, this would be a privilege. Or it may mean a power to compel another to convey property or enter into contractual relations notwithstanding a refusal to do so solely because of race. It is not necessary to assume that the word right means the same in all contexts. If on the one hand we *1096consider society’s interest in upward mo-' bility and the removal of invidious discrimination against disadvantaged groups, it would seem clear, as pointed out in the Columbia Law Review citation, supra, that a mere freedom from legal disability to own property would be of little value to a black person if prospective vendors could refuse to sell to him because of his race. There might be no other source from which he could purchase property. Thus, the Supreme Court’s decision in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), can be readily.understood and accepted, even were we not under obligation to accept and follow it.
The same basis of necessity is not available to support the desire of blacks to attend an all white independent school. The overwhelming portion of the burden of educating our people is borne by public schools, which by law are non-segregated. If all schools, nursery through college, are considered, in 1972, 86.6% attended public schools' and only 13.4% attended non-public schools. If only secondary schools, which is what are involved in this case, be considered, statistics show that in 1972 92.4% of students attended public schools and only 7.6% attended non-public schools. (American Almanac for 1974, page 108). These statistics are the more significant when it is considered that more independent schools, including all or practically all church affiliated institutions, do not use race as a basis for admission. Thus, so far as acceptance as a first class citizen is dependent upon educational opportunity, the impact of schools such as those operated by the two appellants is diminutive. If it be asserted that the exclusionary policies of schools such as these appellants have invidious implications, it must be remembered that most, if not all, of the high prestige private schools, are not racially segregated. In fact, many of them make an affirmative effort to obtain black students. See Segregated Academies and State Action, 82 Yale L.Jour. 1436, at 1444 (1973). Indeed, at the time of the district court’s decision in this case, appellee Colin Gonzales had been accepted by and was attending the Congressional School, a nonpublic school. 363 F.Supp. 1202. Insofar as society’s interests in educational opportunity for all of its citizens and the removal of invidious discrimination are weighed against society’s interests in true independence of non-public educational institutions and freedom of association, especially in connection with close, intimate relationships, we believe that, unlike the right to purchase property involved in Jones v. Alfred H. Mayer Co., the balance is in favor of construing the right to make and enforce contracts protected by § 1981 as being a freedom from legal disability and not as being extended to prohibiting a non-public institution from operating on a racially segregated basis.
As we have previously indicated, we do not find it necessary to express an opinion on the constitutional validity of 42 U.S.C. § 1981, but we do feel compelled to say that the result reached by the majority is an unconstitutional and invalid application of the statute. Our conclusion is supported by the opinion of the court in Gilmore v. City of Montgomery, 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974), which adopts, in the opinion of the court, the language we have previously quoted from the dissenting opinion of Mr. Justice Douglas in Moose Lodge to the effect that people may band together in their association with whomsoever they please. And those cases specifically refer to the forbidden and highly suspect classifications of race and religion. Nothing in history or the precedents contains any suggestion that the same reasoning applied to a religious school in Pierce, to a social club in Moose Lodge, and indeed (albeit in slightly different context) to private schools in Gilmore, should not apply here. And we think the majority takes too little account of Norwood v. Harrison, for in that case, in a discussion of the precise type of segregated private school involved here, the court unequivocally stated that the very bias here *1097charged is neither invalid nor subject to sanction of law:
“Such private bias is not barred by the Constitution, nor does it invoke any sanction of laws, but neither can it call on the Constitution for material aid from the State.” 413 U.S. 455, 469, 93 S.Ct. 2804, 2813, 37 L.Ed.2d 723.
We would reverse the judgment of the district court on all points.
. We are not convinced that the district court’s findings of fact are not clearly erroneous. Such laments, however, being largely unavailing, see United States v. Johnston, 268 U.S. 220, 227, 45 S.Ct. 496, 69 L.Ed. 925 (1925), we address ourselves to the important legal issue here presented.
. In Grier v. Specialized Skills, Inc., 326 F.Supp. 856 (W.D.N.C.1971), the United States District Court for the Western District of North Carolina held the refusal of a barber school to admit black students constituted a violation of § 1981. On the other hand, in Riley v. Adirondack Southern School for Girls, 368 F.Supp. 392 (C.D.Fla.1974), the court refused to apply § 1981 to a racially segregated independent school. The decision is based at least in part on factual determinations. See also Segregation in Private Schools, 122 U. of Penna.L.Rev. 471, at 475 (1973).
. Our dissent is not bottomed on this premise. See Jones, p. 437, 88 S.Ct. 2186.
. Our result would be the same whether we construe § 1981 as being in conflict with the constitutional right of free association, or construe it consistent therewith. Of course a statute falls if in conflict with the Constitution. The Federalist, Nos. 16, 78, Hamilton; No. 44, Madison. In this connection, footnote 3 of the district court’s opinion is curious (363 F.Supp. 1200 at 1204). That note states that although § 1981 forbids discrimination by whites against non-whites, it does not forbid discrimination by non-whites against whites or other non-whites. Such a construction would make the section clearly unconstitutional. Simply put, the opinion of the district court is that all races, so far as § 1981 is concerned, may operate racially segregated schools except the white race. Either all may do so (as we contend), or none may. Such a restrictive construction of § 1981 also goes against the plain language of the statute. The section provides: “All persons . . . shall have the same right ... to make and enforce contracts . as is enjoyed by white citizens, and shall be subject to like [disabilities of various kinds] . . . ” (emphasis added). To give non-whites greater rights than whites would run contra to the statute, the same as giving them less rights would violate it.
. The force of Mr. Justice Douglas’ statement is not reduced by the fact that it was part of a dissenting opinion; in fact, it is accentuated. The issue in the case was whether the fact that a private club dispensed liquor by virtue of a State license made its action State action. The majority thought not; Mr. Justice Douglas *1095thought so. Thus, the quoted language was opposed to the main thrust of the opinion.
. The numbers involved in NAACP v. Alabama and Gilmore would seem to indicate that great numbers alone do not necessarily furnish sufficient cause to lose the constitutional protection of freedom of association.
. See Julius Stone, Social Dimensions of Law and Justice (Stanford University Press, 1966), Chapter 4, pages 164, et seq., citing Roscoe Pound and other legal scholars. Somewhat this same idea is suggested in 122 U.Penna.L.Rev. 471 at 478, 479 (1973), and 74 Col.L.Rev. 449, 468, 469 (1974).