dissenting:
Respectfully, I dissent.
I agree that unless the school districts of Auburn and Opelika have committed acts that have either created segregative results or continued the past effects of segregation it would not be proper to require an inter-district remedy. Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974).
My disagreement with the majority lies in my conclusion that, upon the facts stated in the opinion, there has been such conduct by the two city school boards that would require us to seek a remedy that would be commensurate with the harm done. Such a remedy would be for us to affirm the order of the trial court with a single proviso: that the three districts be subject to a Majority to Minority transfer plan, such as has been mandated for every school desegregation decree in this circuit since Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir.), cert. denied, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 530 (1970). The effect of such a policy would be to permit those black students in Loachapoka who aspire to at least a few grades at a desegregated school to transfer to the schools of Auburn or Opelika in which their race is the minority.
Singleton deals only with a single school district, but I am sure the majority would *1272agree with me that it would be applicable across district lines, if the record required our finding the essential interdistrict involvement. I find such involvement with respect to both cities.
In 1970, Opelika was enjoined from accepting transfer students “where the cumulative effect will reduce desegregation in either district or reinforce the dual school system.” In spite of this command, Opelika continued to accept transfers through the 1977-78 year without giving any consideration to the effect on Loachapoka. As of the 1977-78 year, 54 Loachapoka area children were accepted by Opelika in violation of the court’s decree. This was the situation at the time the trial court entered its order that is here on appeal. If the 37 white and 17 black children attending Opelika schools had gone to Loachapoka this would have increased the white attendance at that school from 3.66 to 8.9%. I consider this a significant desegregative change, although I note that Singleton does not speak in terms of “significant” effects. It enjoins any transfers that will reduce desegregation in either district or reinforce the dual school system.” These acceptances in violation of the courts injunction does both. Moreover, I think the Opelika figures should be combined with the Auburn figures, discussed below, to determine the question of “substantiality.”
The majority approves the trial court’s ignoring these Singleton violations on the ground that Opelika promised to stop and sin no more. Although it may have been proper for the court to decline issuing a further injunction against a further disobedience of its earlier order, this has nothing to do with the case. What we are concerned with is to determine whether Opelika had, down to the filing of this motion, acted unconstitutionally in a manner to frustrate desegregation of Loachapoka. It did, and it makes no difference that it says that it will stop. Of course it will stop or someone will be in contempt of court. I cannot think of a clearer case of conduct by a district having a segregative effect on another district.
I now1, turn to Auburn. That city’s school district, in 1970, resisted the inclusion of a Singleton provision in its desegregation decree. As noted in the majority opinion “this omission does not appear to have been an oversight .... Auburn requested the court to allow it to continue accepting county students on a space available, nondiscriminatory, basis even though it admitted that it was very likely that the practice would have an adverse effect on desegregation in Lee County.” Footnote 6, majority opinion (emphasis added). Clearly, the court erred in permitting this violation of the circuit-wide mandate of Singleton. Can we say that Auburn did not commit an unconstitutional act when it demanded and got the right to continue interfering with the very difficult desegregation efforts being made by Lee County?
Auburn continued to accept the transfer of a predominantly white number of county students through the school year 1973-1974. For the year 1971-72, the parties stipulated that approximately 205 white and 51 black students from the Loachapoka area were attending Auburn schools. Their attendance at Loachapoka would have changed the racial composition from 97% black to 75% black. Considered in connection with the effect to the Opelika transfers, I figure this figure would be reduced to approximately 66%. I am sure the majority would agree that this number is significant and substantial. This then is more than sufficient action by Auburn to make an interdistrict remedy appropriate.
But there is more. In 1974, the Auburn school district passed a resolution cutting off all transfers. In the meantime, the white children who would otherwise have been assigned to Loachapoka remained in attendance at the Auburn schools, because by 1974 eleven areas that had been in the Loachapoka attendance zone had been annexed to the City of Auburn. The trial court found that “the expansion of Auburn *1273has contributed to the diminution of whites at Loachapoka.” Apparently the trial court considered this to be significant.
The United States contends that these annexations were racially motivated and had a segregative effect. The proof of such motivation was, as stated in the majority opinion, insufficient for us to find the district court’s finding to the contrary clearly erroneous. I do not reach the question of the burden of proof because I am convinced that these annexations are similar to the action of the City of Emporia in Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). In that case the City of Emporia had, until a desegregation order was entered by the district court, permitted its children to be educated as a part of the Greensville County school system. When an order of “pairing” students was entered by the court, the City of Emporia, as it was otherwise legally permitted to do, notified the county board that it was setting up its own city school system. The effect of this was to withdraw a disproportionate number of white students from the county-wide system and thus increase the already high percentage of blacks left in the county schools. The Supreme Court affirmed an injunction against such withdrawal of a disproportionate number of white children from the county schools at a time when the trial court was dismantling a dual system. The Court looked only to effect. It said
We hold only that a new school district may not be created where its effect would be to impede the process of dismantling a dual system.
407 U.S. 451, 470, 92 S.Ct. 2196, 2207, 33 L.Ed.2d 51 (emphasis added).
This is exactly what happened in Auburn. While the court was holding hearings and entering and modifying orders to effect desegregation of Lee County schools, and particularly the Loachapoka school, the City of Auburn annexed eleven different areas that formerly were within the Loachapoka attendance zone. I think that under such circumstances, Wright would authorize this court to cause the trial court to ignore these new lines and treat Auburn and Lee County as a single district to the limited extent of requiring the addition of a Majority to Minority attendance plan between the county and the City of Auburn.
I do not understand the view stated in the majority opinion that we should not consider the Wright case because the government did not raise the issue below. The opinion states “at no point in the proceedings before the district court did the government request limited relief in the form of partial invalidation of the annexations.”
In the first place, I do not find anything in Auburn’s briefs here contending for such a position. In the second place, I find the government’s motion for further relief by way of a plan by all defendants entirely consistent with its contention that limited crossing of city boundaries is justified by Wright.1 In fact, the Wright case was cited to the district court and cited by it as the basis of the government’s contention that “in a situation such as this, effect, not purpose or motivation, of the state action was to be examined.”
In sum, I think the clear and open violations by Opelika of the Singleton rule, resulting in the siphoning off of white children from Loachapoka, the insistence by *1274Auburn that it be permitted to violate this court’s Singleton order and its four year violation, resulting in a very substantial withdrawal of white children from Loachapoka at the very moment that Lee County was seeking to meet the projected white attendance figures, either separately or combined with the carving out of what amounts to a new school area by the annexations to Auburn, constitute current unconstitutional acts that meet the Milliken standard.
As stated originally, I would require only a limited modification of the court’s decree — by mandating a county-sponsored Majority to Minority plan. This would permit such of the black students of Loachapoka as wished to do so to have a partial school life that is not segregated on account of race. Moreover it is a transfer that the City of Auburn seemed perfectly willing to accommodate prior to the entry of the desegregation order, when it accepted all transfers.
I would limit the relief in this manner because of the trial court’s finding that the Loachapoka school has become an excellent school which holds the loyalty of its patrons, and because no named plaintiff has requested the relief which the United States as intervenor here claims for them.
. In the government’s brief filed in the district court, I find the following language: “[u]nder Swann, supra, Wright, supra and Scotland Neck, supra, the fact that the Lee County, Auburn City and Opelika City school districts were operated as if they constituted one school district for purposes, of student assignment indicates that this court is empowered to treat these three districts today as one school system for the purpose of (1) establishing the existence of a violation in the Loachapoka-Auburn-Opelika area and (2) developing and implementing an effective desegregation plan for the Loachapoka School.” (citations omitted).