dissenting.
I respectfully dissent. In my opinion the ordered remedy of a merger of the University of Tennessee-Nashville (UT-N) and Tennessee State University (TSU) is violative of the principles set forth in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Miiliken I), because it goes beyond the constitutional wrong found to have been committed by the University of Tennessee (UT) and, equally important, because it tends to strengthen rather than eliminate segregation in higher education in Tennessee.1
*1072The controlling truths in this case are readily apparent. Historically the public institutions of higher education in Tennessee were segregated by law.2 Black students were not admitted to UT and white students were not admitted to TSU. The faculty at UT was white and the faculty at TSU was black. Comparable segregation existed in the administrative staffs.
Until this litigation began in 1968, both UT and TSU remained identifiable by race on the levels of faculty, administration and student body. While the district court reports that satisfactory progress has been made throughout the rest of the system, a ruling which we affirm in the companion case of Richardson v. Blanton, 597 F.2d 1078 (6th Cir. 1979), it held, as does the majority opinion here, that the vestiges of the dual system remain in TSU, which continues to have a virtually all black student body and continues to have a heavy majority of blacks on the administrative staff and faculty.
The instant litigation has been fairly and accurately summarized by Judge Lively in the majority opinion. As can be seen from that account, this litigation commenced when parties, purporting to represent the interests of blacks and TSU, complained of the proposed expansion of UT’s downtown night school in Nashville, which had been established in 1947, to provide instruction for part-time students who worked in state government, business and industry. UT-N was then an extension center offering resident credit, but granting no degrees and teaching no advanced courses. Since Nashville is the capital of the state, it is not surprising that such a school would be established in the center of the city, and at least the initial establishment of the school appears to have been for reasons other than race. Sanders v. Ellington, 288 F.Supp. 937, 941 (M.D.Tenn.1968). It was not competitive with the requirements of a full curriculum university such as TSU. Nevertheless, the potential competition from this center caused the commencement of the present litigation. While the district judge did not enjoin the expansion of the UT-N center, it was apparent that he was properly determined in the ensuing litigation to ascertain the extent to which the fears of TSU might be justified.
Substantial evidence supports the district court’s and Judge Lively’s finding that the expansion of UT-N was in fact competitive with the educational opportunities presented at TSU and I cannot fault the conclusion that the expansion, unless halted, would undoubtedly have seen UT establishing a full four-year university program in Nashville, directly competitive with TSU.3 It is a reasonable and almost inescapable conclusion that the proposed and actual expansion of UT-N was the result of public pressure to have operating in the Nashville area a local public university, not having the racial identification as a black university which TSU was perceived to possess.
*1073Clearly UT’s efforts to expand under such circumstances would strongly tend to impede any legitimate effort on the part of TSU to integrate. Since both systems had been a part of a de jure segregated system of higher education in Tennessee, I cannot, therefore, disagree that a duty to refrain from such conduct might be found to rest upon UT.4 Likewise, I agree that Milliken I, supra, and even more, Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), and United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972),5 would not prohibit an appropriate interdistrict or intersystem remedy under such circumstances. The difficulty here, however, is that the remedy is not responsive to the ill.6
The majority opinion speaks repeatedly in one form or another of the failure of all previous efforts on the part of the parties to “remove the vestiges of state-imposed segregation.” Majority opinion at 1065. What it really means is that the state has never succeeded in obtaining racially balanced faculty at TSU, nor either has it persuaded black applicants for admission to TSU to attend other schools which are now open to them, or conversely has it persuaded potential white college students to attend TSU. The reasons for this are some*1074how all laid at the door of UT, even though the court has found that UT itself has been satisfactorily integrating its faculty, staff and student body, and that in fact, its composition and its racial balance are becoming representative of the racial balance of the state as a whole.7 Geier v. Dunn, 337 F.Supp. 573, 580 (M.D.Tenn.1972) (with the exception of TSU, the universities in Tennessee are being desegregated at a constitutionally permissible speed). UT-N is being ordered to transfer over its property to a school which is not integrated 8 in the hope that somehow that action will solve the problem. In truth, the problem lies in other factors.
In my opinion there is little that the courts, and for that matter the public institutions themselves, should do to discourage attendance at a state institution of higher learning by any applicants because of race. Nevertheless, the exercise of what ought to be a free and personal choice on the part of student applicants is itself treated somehow as the sufferance of a constitutional violation by the institutions involved. As Judge Lively’s opinion points out, unlike the other regional schools throughout the state and under the control of the State Board of Regents, TSU continues to draw black students from the entire State of Tennessee. I do not doubt that its attractiveness to black students may very well affect the racial balance of the student bodies of the other colleges throughout the State of Tennessee, but is this a reason for finding fault with it? If a student elsewhere in the state has the right, as he now has in Tennessee, to enroll in a regional college of his choice without impediment because of his race, is it wrong for him to elect to go to a college such as TSU if he prefers? I can hardly believe it. Likewise, if TSU is and remains racially identifiable because of the racial composition of its faculty and staff, are we to compel a white student in a non-compulsory system nonetheless to attend the school which he identifies as black? Obviously, there is much less that courts and institutions should or can in fact do in this area where attendance is voluntary. This fundamental difference between higher education and the compulsory nature of public education at the primary and secondary levels has been consistently recognized. See Lee v. Macon County Board of Education, 453 F.2d 524, 527 (5th Cir. 1971); Alabama State Teachers Association v. Alabama Public School and College Authority, 289 F.Supp. *1075784, 787-88, 790 (M.D.Ala.1968), aff’d, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969) (per curiam). Cf. Florida ex rel. Hawkins v. Board of Control, 350 U.S. 413, 76 S.Ct. 464, 100 L.Ed. 486 (1956); Norris v. State Council of Higher Education, 327 F.Supp. 1368, 1381 (E.D.Va.) (Hoffman, J., dissenting in part), aff’d sub nom., Board of Visitors of the College of William & Mary v. Norris, 404 U.S. 907, 92 S.Ct. 227, 30 L.Ed.2d 180 (1971).
The real difficulty, apparent throughout the entire record in this case, and a difficulty with which I have considerable sympathy, lies in the efforts of TSU to retain its identification as a black university. Unfortunately this factor has had a strongly deterrent effect upon its attractiveness to white applicants. The record makes it altogether evident that much of the concern of TSU has been not only with the competition for students which it faces, but with the fact that it may lose its identity as a respected and long-standing black university.9 Nevertheless, in a time when opportunities for integrated education are becoming increasingly available, a school which primarily attracts but one race may find it increasingly difficult to prosper.
It seems to me that TSU must reach the reluctant conclusion that the Equal Protection Clause no longer will permit the state purposefully to maintain and perpetuate a faculty and staff whose composition is disproportionate to the racial composition of the area which it purports to serve. At the same time, the desegregation of a faculty such as that at TSU is nowhere near as simple a matter as the desegregation of the faculty in a primary and secondary school system in which teachers can be transferred with relative ease from one school to another within the same system and community. That is simply not possible here where TSU constitutes the only member of the State Board of Regents system in the Nashville area.
*1076It would be manifestly inequitable to require that black teachers be displaced with white teachers merely to achieve a racial balance. In my judgment, the individual injury which this would occasion outweighs any potential constitutional benefit. So much is recognized, I believe, in the plans for the desegregation of the faculty which are already in effect. It would be enough if the establishment of a racially balanced faculty at TSU were left to the prospective operation of a truly neutral faculty selection system, leaving it to attrition to restore the balance which equal protection may be found to require. Instead, my reading of the majority opinion indicates that the district court approved a program which compels TSU to hire a white teacher in all vacancies which may prospectively exist unless a black applicant is, in fact, superior. Majority opinion at 1061. The Supreme Court of Brown I and Brown II would be amazed to find that its decisions had come to this end.10 Such a ruling represents not only bad policy, but unjustified and hence unconstitutional discrimination against black applicants of equal talent.
It may take somewhat longer to achieve actual racial balance at TSU by a more neutral policy, but in the long run, it is infinitely preferable both in principle and in impact. If left to stand, the district court’s plan would result in a faculty whose older members were predominately black and whose younger members were overwhelmingly white. When a nose-count balance was achieved, the retirement or departure of the older faculty would again create a reverse imbalance which would have to be corrected. This simply makes no sense. What the TSU faculty and staff selection mechanism should be learning, and learning now, is how to be neutral, not how to discriminate the other way.
If the facilities are adequate, if any discrimination has otherwise been eliminated, and if TSU is making an honest and diligent effort to achieve a modicum of racial balance in its faculty and staff, then I believe that any perceived evil in the racial composition of the student body will cure itself, to the extent this is even needed. There is undoubtedly a need for a four-year public institution of higher learning in Nashville and this is probably one of the needs which generated the pressure to create UT — N. It is a pressure which will remain to persuade students to attend TSU in increasing numbers as that institution, by its own color-blind policies, becomes more attractive to white students and less identifiable as an all black college. By 1975, 12.2% of the students at TSU were white. White student participation in the student body at TSU can, it seems to me, be expected to grow in direct proportion to the ability and willingness of TSU to shed its former identification as an all black college and to assume a new and enlarged role as an integrated university and as a full part in the system operated by the State Board of Regents.
It is somehow suggested that there is no harm in the proposal by the district court to transfer UT-N to TSU, and as authority for that there is cited a comparable voluntary effort in Memphis wherein UT relinquished to the Memphis State University its control over a night school operated by UT. See Geier v. Blanton, 427 F.Supp. 644, 653 (M.D.Tenn.1977). In my opinion there is a world of difference between conduct undertaken by state agencies of their own free will, and conduct required of state agencies by federal courts.
As pointed out in the majority opinion, UT has enjoyed under Tennessee law a unique and distinct place in the state’s scheme of higher education, a place apart from that of other institutions and entirely apart from racial factors. The separate systems were not developed to separate black students from white for, in pathetic fact, both systems were originally white. Parallel systems of state supported college education are found extensively throughout the United States. They normally have nothing to do with racial considerations, but rather result from historic developments reflecting the state’s diverse needs in the area *1077of higher education. Until a system itself is employed to impose or foster a segregated educational experience, its integrity should be respected by our courts.11
If there were to be any merger at all, clearly the more logical merger would be to move TSU into UT, for it is TSU which remains substantially disproportionate in its racial composition compared to the remainder of the system. The unworkability of such a merger, however, for practical purposes, is apparent from the record and must have been persuasive to the district court. Both faculty and student admission standards are too widely variant to permit such a merger without causing real loss and genuine deprivation of opportunity for both black students and faculty. I can well understand, therefore, that such a plan would necessarily not be attractive. Efforts to work a de facto merger by interchange of programs and the like were unsuccessful, as pointed out by the majority opinion, although the reasons for assigning the fault to UT-N is not apparent. The overriding truth remains that the racial identifiability of TSU has thus far impaired its attractiveness to white applicants.
Accordingly, I would vacate the judgment of the district court and remand for further proceedings. Those proceedings should consist of the entry of appropriate injunctive relief to confine UT — N to those courses and activities which were offered prior to the expansion in 1969. See Norris v. State Council of Higher Education, supra, 327 F.Supp. at 1370. If this seems unduly harsh for UT-N, it can only be said that UT — N was fairly warned of this possible result by the timely commencement of this litigation. This does not seem too onerous a burden if TSU’s opportunity to survive as an integrated university is to be protected. Should UT — N not be satisfied with this, there always remains available to it the opportunity to enter into an agreement with TSU such as that which is now in effect in Memphis between UT and Memphis State University.
From the foregoing it must be apparent that the heaviest burden in the instant litigation remains upon TSU. This burden compels TSU to make itself attractive to a somewhat diminishing body of potential applicants for admission by proceeding as promptly as possible to integrate its faculty and staff. With UT-N enjoined from encroaching upon programs which are designed to attract white students, TSU’s good faith efforts to desegregate should meet with success.
If TSU is otherwise operated in a non-discriminatory manner and if the vacancies on the faculty and staff are filled on a racially neutral basis, I am of the opinion that the commands of the Constitution will have been honored. While one may with great logic be persuaded that the racial makeup of the student body of TSU should be more representative of the racial population of the community as a whole, I would not require it as long as any racial imbalance is the product of personal choice and is not compelled by or the result of state action. Are we to tell some black applicant that he may not attend TSU or some white applicant that he must? This proclivity may indeed be a vestige of historical discrimination, and I fervently decry it, but it is a vestige which remains not in the education system but in the hearts of those who seek to enter it.
. Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Miiliken II), found the Supreme Court reaffirming its holding in Milliken I. The Court stated:
*1072The well-settled principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, see Pasadena Bd. of Education v. Spangler, 427 U.S. 424 [96 S.Ct. 2697, 49 L.Ed.2d 599] (1976), or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation, as in Milliken I, supra. Hills v. Gautreaux, 425 U.S. 284, 292-296 [96 S.Ct. 1538, 47 L.Ed.2d 792] (1976).
433 U.S. at 281-82, 97 S.Ct. at 2758. See also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).
. Art. 11 § 12 of the Tennessee Constitution of 1870; Tenn.Code Ann. §§ 49-3701-703. Laws requiring segregation of the races in Tennessee were held to be unconstitutional in Roy v. Brittain, 201 Tenn. 140, 297 S.W.2d 72 (1956). Cf. Booker v. Tenn. Bd. of Educ., 240 F.2d 689 (6th Cir.), cert. denied, 353 U.S. 965, 77 S.Ct. 1050, 1 L.Ed.2d 915 (1957).
. In 1971 UT-N became a degree granting institution, entrusted to the management and control of the Board of Trustees of the University of Tennessee. Tenn.Code Ann. § 49-3352 (1977).
. To the extent that the vestiges of discrimination remain from the prior system of de jure discrimination, I recognize that the state has a duty to take affirmative steps to eradicate those vestiges. Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
. In Wright v. Council of the City of Emporia and in United States v. Scotland Neck Board of Education . . . the Supreme Court refused to permit the establishment of separate school districts within a single county, even though authorized by state law, where it was found that this would impede the process of dismantling a segregated school system. By analogy no justification appears for permitting [UT and the State Board of Regents] to remain completely autonomous if the effect is to impede the process of desegregating the schools .
Newburg Area Council, Inc. v. Bd. of Educ., 510 F.2d 1358, 1361 (6th Cir. 1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1658, 44 L.Ed.2d 88 (1975).
. Newburg Area Council, supra, cited by Judge Lively as authority for the interdistrict remedy, dealt with a situation where an interdistrict remedy was found to be appropriate. There, both the Louisville and Jefferson County School Districts were expressly found to have failed to eliminate vestiges of de jure segregation. In fact, the two districts had combined their efforts to segregate the races.
For example, in pre-Brown days black high school students in the Jefferson County school district were sent to the black Central High School located in the Louisville school district. This was done because the county had no black high school, and it was done on a tuition basis paid by the county. While this action by itself might be insufficient to invoke the equitable power of the court, see [Milliken I,] 418 U.S. 717, 94 S.Ct. 3112 [41 L.Ed.2d 1069], there are other instances in the present case of disregarding school district lines. Atherton High School is an example. Atherton is a high school belonging to the Louisville school district, but it was and is located outside the boundaries of that district and within the territory of the Jefferson County school district. Students from both school districts have been permitted to attend the school.
510 F.2d at 1360. Thus, it was clear that the two districts assisted each other in perpetrating the racial segregation.
In Milliken I, however, the Court was faced with quite a different situation. There, the school districts outside Detroit were not found to have committed acts of de jure discrimination. The Supreme Court held that the imposition of the interdistrict remedy did not go to meet the constitutional violation within the City of Detroit.
The situation presented by the instant litigation more nearly resembles Milliken I than Newburg Area Council The acts of UT did not create the segregation at TSU. Certainly UT’s history shows an obedience to Tennessee law in the commission of acts of de jure discrimination, and the vestiges of those acts are properly the subject of the remedial action mandated in the companion-Richardson case. And, to the extent that UT’s and UT-N’s actions have competed with TSU for white students, thereby hampering TSU’s desegregation efforts, UT-N may have violated its constitutional duty. Nevertheless, to find that UT, through the establishment of the Nashville Campus, either created or, in the non-competing areas, contributed to the segregation of TSU is beyond basis in this litigation. To go further than preventing UT-N from hindering the desegregation effort at TSU finds the court imposing a remedy that exceeds any constitutional violation by UT or UT-N.
. As the following table indicates, the integration effort for UT and UT N was producing acceptable results.
And, Judge Lively notes that the appellants point out that both TSU and UT-N had a larger percentage of “other race” students at the time of the 1977 hearing than any of the other public institutions. Majority opinion at 1064.
. See note 7, supra.
Although TSU has been slowly desegregating its student body, TSU has not approached the degree of success enjoyed by UT-N in attracting a student body whose racial composition approximates that of the relevant population. The argument that TSU is integrated because it
has one of the largest “other race” representations in its student body merely serves to confuse the issue. “Other race” must mean “other than the majority race in the relevant population” to allow meaningful comparisons of the results of desegregation. As quoted in note 7, “other race” does not mean this, and thus the implied representation that TSU is thereby integrated is unfounded. As the district court concluded, “ [desegregation at TSU, except for faculty, has been minimal . . .” Geier v. Blanton, 427 F.Supp. 644, 660 (M.D.Tenn.1977).
. Numerous witnesses testified about the importance and desire of retaining black identity and control at TSU. As examples, consider the following testimony. Frederick Humphries, the President of TSU, stated:
It is an especially pertinent question for Tennessee State that it be given the opportunity [to expand] because the damage to black people, you know, can an institution which has black administration, a black department chairman, black deans go into the future and become a very strong and creative part, you know, and have a chance of becoming the strongest institution in the higher educational system?
Now, that is important to preserve because it has a whole lot of impact for a lot of black kids in the society. When you start denying that opportunity and constraining that opportunity you are messing with a psychological aspect of a whole lot of people. Which, you know, the question is: Would they have made it if they had been given the opportunity? All right.
******
The Nashville area desegregation deals with a whole lot of things that is going to have a whole lot of impact on a lot of people. It is particularly important for black people because Tennessee State was identified in the past with them. And it is important that they be given the opportunity to become the kind of institution that it can become.
Manlon J. Griffith, employed by TACTICS, an organization basically providing technical assistance to black colleges, testified:
I feel very seriously that our black colleges are threatened by integration . . . and in so doing the leadership potential of the black race and in this country is diminished and will continue to diminish and will be obliterated in the course as it is seemingly going. ... If they should eliminate our college, they will have eliminated black people from any meaningful participation in our democracy.
Dr. Elias Blake, Jr., the head of the Institute for Services to Education, an organization devoted to research and development related to expanding equal opportunity, primarily for blacks, testified in response to the quoted question:
Q. Some of these values which you testified may be lost, I mean about black expertise and black culture and so on, may be lost if Tennessee State University is immediately made into a white university. A. Yes, I would be opposed to any order which said that by such and such a time it must be eighty percent white. I think that to do that it would create serious problems in terms of continued education.
In addition, the majority opinion notes that the UT-N — TSU merger plan “provides for an implementation committee made up of members from SBR, UT Board and THEC, a majority of whom may be black.” Majority opinion at 1064.
. See Milliken I, supra, 418 U.S. at 745, 94 S.Ct. 3112.
. The Supreme Court, in Millíken I, recognized the broad powers properly vested in the states to structure their educational systems to fit the particular needs of their citizens. In describing one of the reasons why the interdistrict remedy was inappropriate, the Court stated:
. it is obvious from the scope of the interdistrict remedy itself that absent a complete restructuring of the laws of Michigan relating to school districts the District Court will become first, a de facto “legislative authority” to resolve these complex questions, and then the “school superintendent” for the entire area. This is a task which few, if any, judges are qualified to perform and one which would deprive the people of control of schools through their elected representatives.
418 U.S. at 743-44, 94 S.Ct. at 3126-3127.