(specially concurring).
Since the District Court found that the attendance zones in this case had been drawn to “absolutely prevent any school desegregation whatever, or permit only the most ‘token’ integration”, I agree that the minority transfer policy ordered by the District Court should be affirmed. This concurrence is based solely upon the particular facts of this case.
I likewise concur in the remand in order that the District Court may reconsider the entire plan in the light of Green v. School Board of New Kent County. In Green the Supreme Court holds that the transition to a unitary, nonracial system of public education is the ultimate end to be brought about and that school boards operating state-compelled dual systems as of 1955 are clearly charged with the affirmative duty to take whatever steps may be necessary to eliminate racial discrimination, root and branch.
The Court recognized that,
There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the District Court to weigh that claim in light of the facts at hand and in light of any alternative which may be shown as feasible and more promising in their effectiveness.
Significantly, the Supreme Court further said,
Moreover, whatever plan is adopted will require evaluation in practice, and the Court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed.
The Court then concluded,
“[I]f there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary, nonracial school system, ‘freedom of choice’ must be held unacceptable”.
The problem inherent in a zoning plan is that people are free to move about as they see fit. Therefore, if they dislike the zone in which they are placed they will move to another. This often results in far more glaring segregation than that which existed prior to the inauguration of the plan. The end result of the zoning approach, if extensively exercised, is that large sections of the country may become a collection of zones or pockets, where only one race would be dominant. The National experience with the so-called ghettos in the large cities would indicate the undesirability of such an outcome.
In this very case the District Judge directed that one of the majority race in any particular zone should be given the unlimited right to transfer to another where his race is in the minority. This makes zoning meaningless and puts school attendance on an ad hoc basis. I assume the rule was thus invoked in this instance purely because there was really no rational zoning to begin with.
I wish to record my individual disapproval of that part of the District Court order which required the Duval County School Board to request the assistance of the United States.Department of Health, Education, and Welfare. I adhere to the belief that, subject only to the requirements of the Constitution of the United States, the educational process is yet, and should be, a local matter, managed by duly chosen officials where the children live. I must assume that the Duval County School Board is capable of understanding and obeying *908the Constitution of the United States without having officials of the Department of Health, Education, and Welfare serving, in effect, as ex-officio members of the local school board.
More and more, it becomes apparent that it is beyond the ability of this Court to supervise the operation of public schools in six states. It was widely asserted that our decision in Jefferson would take the Courts out of the school business. No such result was accomplished. The Courts are kept in this business when local school boards do not willingly and intelligently comply with the mandates of the United States Constitution, as interpreted by the Supreme Court. Such failures are causing the Courts to move from one inadequate approach to another, to the continued unsettled state of the educational process— a process which must be, and is, of the utmost importance to the welfare of this country. I think the Supreme Court in Green was trying to get the Courts out of this field by allowing such complete leeway for the legitimate solution of this problem in light of the facts in any particular case.
The quiet, effective, peaceable operation of the educational processes within the Fifth Circuit will never be accomplished by court decisions. It is high time duly chosen local officials exercise that due care in the obedience of the Constitution which will take education out of the courthouse and return it to the school house.
Just as surely as this country could not remain half slave and half free we cannot long maintain an effective school system half managed by the States and half controlled by Federal officials, with the Courts trying to supervise them both.
With these comments, I concur in the opinion written for the Court by Judge WISDOM.
RUBIN, District Judge(specially concurring) .
Green1 emphasizes that school officials have a continuing duty to take whatever action may be necessary to provide “prompt and effective disestablishment of a dual system.” If one method is ineffective, they are to try another. Hence, no single plan is or can be judicially approved as a catholicon.
Brown I2 and all of its successors, as well as Green,3 Monroe,4 and Raney,5 contemplate that school plans will be prepared by local officials and school boards, not by courts. But if local officials fail to assume their responsibilities under the Constitution, district courts must continue to attempt to formulate the plans that should be prepared by school officials based on their expert knowledge, training and skill. In this case, since the school board had not done its duty, the trial judge entered the decree approved in Jefferson II6 with the modifications that he considered necessary to do the job in Duval County. Our approval of this plan as modified and our remand for reconsideration, should create no inference of disapproval of other methods so long as the plan that is adopted “promises realistically to work now.” 7
. Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
. Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689 (1968).
. Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968).
. Raney v. Board of Education, 391 U.S. 433, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968).
. United States v. Jefferson County Board of Education, 5 Cir., 1967, 380 F.2d 385.
. Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).