concurring and dissenting:
Because there is not unanimity within the court as to whether Judge Craven, before concurring in the opinion which I prepared, was fully cognizant of, considered and rejected all the views of the dissenting judges, I agree that we should not allow our previous divided decision to stand. I disagree, however, that we should decide the case now by an equally divided court.
The case is an important one with national implications, and it reaches us at a stage in which there will inevitably be further proceedings, judicial and administrative. Even if affirmed, the cases must be returned to the district court for consideration of the prayer for a permanent injunction, unless, of course, the Secretary concludes to confess error and submit to the preliminary injunction.
The district court granted preliminary injunctions against administrative enforcement of Title VI which, although negative in character, provided that the Secretary might reinstitute administrative enforcement proceedings if (in the case of Baltimore), (a) Baltimore was informed in detail and in writing of all areas in which its present desegregation plan was deficient, (b) the Secretary recommended in writing specific steps which Baltimore might take to achieve compliance, (c) the Secretary specified each program or part of a program under which he claimed that Baltimore failed to comply with Title VI and schools at which noncompliance was believed to exist, (d) the Secretary specified in writing the particular noncompliance in each particular program at each particular school where noncompliance was thought to exist, (e) the Secretary made a good-faith effort to obtain voluntary compliance, and (f) Baltimore was given a reasonable opportunity to achieve voluntary compliance through adoption and implementation of a voluntary remedial plan with an opportunity for community participation in the development of a remedial plan. With respect to Maryland, the comparable conditions were that (a) the Secretary promulgate and adopt specific standards for compliance with Title VI by institutions of higher education, said regulations to be of general applicability and to apply uniformly throughout the United States; (b) the Secretary made a separate and specific analysis of each and every program to determine the existence of noncompliance in the administration of the program; (c) the Secretary made a good-faith effort to achieve compliance by voluntary means in each separate program in which noncompliance is alleged to have been found; and (d) the Secretary specified, wherever noncompliance in a particular program was believed to exist, the actions necessary to remedy the alleged noncompliance and the standards by which the existence of noncompliance would be determined. Since the district court did not enjoin the Secretary from carrying out his *1277duties under Title VI, and since Title VI requires him to take steps to achieve compliance, the preliminary injunction may be fairly construed as a mandatory injunction requiring the Secretary to take the various actions set forth in each of the two injunctions.
Although the cases were decided in the district court by the granting of a preliminary injunction, an analysis of the record and the evidence before the district court makes it clear that on remand the entry of a permanent injunction will be a pro forma action. From the very full record before us, it is inconceivable to me that there is additional evidence to be considered by the district court. From the opinion of the district court, I would doubt also that its views would be dislodged on consideration of the entry of a permanent injunction.
From these considerations, I am led to the conclusion that we ought not to proceed to decide the cases on their merits by an equally divided court. Rather, a fairer and more equitable approach would be to grant rehearing and restore the cases to the hearing calendar, deferring hearing until Judge Craven’s successor has been selected and qualified. I do not doubt the appropriateness of our granting rehearing in banc, but I question the wisdom of affirming by an equally divided court. Although other courts of appeals have done just that in cases of lesser importance, I would stress that here further proceedings are inevitable.
If the district court makes permanent its preliminary injunctions — a result that I fully expect — there will be an opportunity for a further appeal. Presumably that appeal will not be heard and decided by less than a full court, but in the interim the Secretary will be required to expend time and money to effect compliance with the injunction when it may well be that a majority of the full court in a second appeal will decide that such expenditures are unnecessary. Of course the effect of a permanent injunction may be stayed by the district court, or it may be stayed by us pending appeal. But even if a stay is granted, I think that we quite unnecessarily subject the parties to the formality of the entry of a permanent injunction and the expense and inconvenience of a second appeal when it is perfectly obvious that we can give no definitive answer to the basic questions presented by these consolidated appeals until there is a full court.