I respectfully dissent.
Of course, I agree with the slight modification of the trial court’s order by requiring that the first two grades must be desegregated in 1964. Nevertheless, I think this modification of the plan of the School Board falls far short of what is required of this Court at this late date.
*815Over the years of my association with my esteemed colleague Judge I-Iutcheson, he has occasionally commented very effectively that court should not “keep the -word of promise to [the] ear, and break it to [the] hope.”1 I had hoped that in the circumstances here present he would, as would my brother GEWIN, realize to what degree this Court would be guilty of such a charge if we were to affirm the judgment of the trial court.
Here, these twenty-odd children, with patience, waited for eight years for the School District to begin compliance with the fundamental requirements laid down by the Supreme Court as to such cases, that the District was duty-bound to “devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.” Cooper v. Aaron, 358 U.S. 1, 7, 78 S.Ct. 1401, 1404, 3 L.Ed.2d 19. Instead, they were met with a proposal that the Board of Education should build a new segregated Negro school, using the proceeds of a local bond issue for that purpose. This was too much. They sought and obtained a state court injunction — a result that any lawyer would reasonably have anticipated. They then sought an end to the practice of segregation in the school system and they were confronted by the claim, at least partially accepted by this Court, that the delay brought about by that litigation could warrant postponement of their realization of their constitutional rights.
The circumstances present in the Georgetown Independent School District demonstrate so clearly that there is no legal basis for further delaying implementation of Brown v. Topeka so far as these plaintiffs are concerned, that I consider it necessary to file a dissent to the proposition that “gradualism” may be approved in all cases, regardless of the circumstances. Here the court places the emphasis on “gradualism” rather than the devotion of “every effort toward initiating desegregation and bringing about the elimination of racial discrimination.” The fact that the Supreme Court has granted certiorari in the Calhoun case, 375 U.S. 983, 84 S.Ct. 516, 11 L.Ed.2d 472, to deal with this precise question should, I think, require that we look with more than usual care to the dissenting opinion of Judge Rives in that case, 321 F.2d 302, 312. In that dissenting opinion it is pointed out what this Court has also said more recently in Davis v. Board of School Commissioners of Mobile County, 5 Cir., 322 F.2d 356, and Armstrong v. Board of Education of the City of Birmingham, 323 F.2d 333, that although a gradual approach [12 grade plan over 12 years] might have been permissible ten years ago, it may not be permissible at this late date in light of the recent Supreme Court decision in Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529, and Goss v. Board of Education of City of Knoxville, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632. Moreover, the cases cited in the majority opinion for the proposition that this Court has approved twelve year plans in Savannah, Mobile and Birmingham do not stand for this proposition. The Savannah case involved an injunction pending appeal which was temporary only. The Mobile and Birmingham cases both required the application of the Alabama Pupil Placement law (Code 1940, Tit. 52, § 61(1) et seq.) “as to all school grades without racial discrimination.”
The particular circumstances in the Georgetown Independent School District are: that there is a relatively small number of Negro students (173 out of a total of approximately 1300 in the entire school district); there was evidence of a report made by a state accreditation committee which spoke of the serious imbalance between the Negro school and the white schools ;2 some of the space in *816the white schools was filled by 77 students who were non-residents of the district but who had traditionally been permitted to attend as non-residents; additionally, there were twelve non-resident Negro students who were attending the Georgetown schools.
It seems plain to me that any reading of the record before us must convince anyone that the sole reason for delaying desegregation of the Georgetown School District beyond 1954 is a refusal of the white community to accept desegregation at a more rapid pace. This consideration was ruled out by the Supreme Court in the 1954 Brown decision which, after speaking of the “relevant factors” that might be considered by a district court as justifying some delay, said these factors, “of course, exclude hostility to racial desegregation.”
The plaintiffs here, even in light of the special circumstances which warrant special consideration seeking an early end to the physical inequality between the white and Negro schools, have made modest demands. The plan submitted by them calls for total desegregation over a period of three years. In light of the failure of the Board until after suit was brought to discharge its clear duty to start complying with the Supreme Court’s injunction, and in light of the fact that these plaintiffs would be entitled to the relief sought even under the now discarded doctrine of separate but equal facilities, and in light of the fact that no one of these 29 plaintiffs would ever be permitted to enjoy the fx'uits of the lawsuits which they were compelled to bring to enforce their plain constitutional rights under the plan approved by the trial court,3 it is clear to me that the Court’s action in approving the Boax'd’s plan was an abuse of discretion.
I would reverse and l-equire the approval of the plan submitted by the appellants.
. Macbeth, Act V, Scene VIII.
. This survey said, “Although a number of deficiencies in areas in need of improvement have been described, of those indicated, the most serious was that of the imbalance which existed between the twelve-grade Carver School (the Negro *816school) and the larger Georgetown Schools (the white schools).
. Each of the plaintiffs will necessarily be farther advanced in school than the second grade in 1964. Thus, while more and more grades are desegregated up to and including September 1975, these plaintiffs will normally keep at least one grade ahead of desegregation. Thus, is the “promise to the ear broken to the hope.” It’s a Pyrrhic victory indeed for the plaintiffs. While it is true that this is a class action, I think the Court, in considering the equities of the case, should do more than dismiss this contention by saying that to provide a plan that would enable at least some of the plaintiffs to benefit from it would be “to totally ignore the guide lines established by the Supreme Court in the second Brown case.” This adherence to the “guide lines” in the Brown case is misplaced, I think, in view of what I think is the clear departure from the fundamental guiding principle of Brown that reluctance to accept desegregation cannot be considered. Here, I think this is the only reason for delaying until 1975 full implementation.