(dissenting).
I respectfully dissent. I do not believe this important case should have been tried and decided on a motion for a preliminary injunction. I have understood that it is the purpose of a preliminary injunction to maintain the status quo. Certainly, the opposite procedure was followed in the trial of this case.
It should be noted that prior to the ■filing of the instant suit, complaint had been made to the Superintendent of Public Instruction for the State of Illinois, containing charges of segregation of Negro teachers and pupils in School District 151, similar to those presented in the case at bar. After hearing evidence, the Superintendent of Public Instruction, May 26, 1966, rendered a decision in which he found “a consideration of all evidence does not show that any child or teacher is segregated in or excluded from a particular school solely by reason of their race as charged in the petition.”
A similar complaint was made to the United States Department of Health, Education and Welfare. Three officers of that Agency investigated the conditions in School District 151, and on November 22, 1966, informed the School Board of that District they could see no pattern of wilful discrimination against pupils or teachers and that they would so report to their office in Washington and to the Department of Justice.
The Government filed its original complaint on April 25, 1968. This complaint sought only the desegregation of the faculty of School District 151. The amended complaint which was filed on May 27, 1968, sought desegregation of both faculty and students in School District 151. On June 14, 1968, the Government filed a motion for a preliminary injunction. Over the objection of defendants, the motion was set for hearing only five days later. The defendants asked the Court to continue the hearing on the temporary injunction in order to give them sufficient opportunity to prepare their defense. This motion was denied, and trial was commenced on June 19, 1968. In my view, this rush act was not justified especially in view of the fact that it was the Government which, after a long investigation, delayed the filing of the amended complaint until May 27, 1968.
Throughout the hurried trial, the Government contended that the School Board of District 151, by a series of discriminatory decisions, resulted in the establishment of the Coolidge School as a “predominantly Negro” school. The Government’s proposed findings and conclusions in this respect were accepted verbatim by the trial court. Apparently little, if any, consideration was given to the factor of residential or de facto segregation.
In 1948, the Coolidge School had an enrollment of 70% white. In 1956, Coolidge had become a predominantly Negro school with a student enrollment of 99% Negro. There is absolutely no evidence in this record that during this eight-year period, the School Board did anything to change the racial composition in the Coolidge School. ’ The attendance boundaries for Coolidge in 1956 were identical with those which existed in 1948.
It seems obvious that the failure to change boundaries in 1964 could not and did not play any part in the Coolidge School becoming a 99% Negro school during the period from 1948 to 1956.
Bell v. School City of Gary, 7 Cir., 324 F.2d 209 (1963) established the law in this Circuit pertaining to so-called de facto segregation. In Bell, we held that no affirmative constitutional duty existed to change innocently arrived at school attendance districts by the mere fact that shifts in population had increased or decreased the percentage of Negro or white populations.
*1137A petition for certiorari in the Bell case was denied. 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216. Our opinion in Bell was followed by the Tenth Circuit in Downs v. Board of Education of Kansas City, 336 F.2d 988 (1965). A petition for certiorari in that case was denied. 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 800. Our Bell decision was also followed by the Sixth Circuit in Deal v. Cincinnati Board of Education, 369 F.2d 55 (1966). Certiorari was again denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967).
When the Bill which later became the Civil Rights Act of 1964 was before the House of Representatives, it gave the Attorney General wide authority to file suits in any part of the country in order to force integration. The Senate, however, adopted an amendment which was included in the Bill and which became law, which provided “Nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance * *
In the discussion on the Senate Floor, Senator Byrd of West Virginia addressed Senator Humphrey who was in charge of the Bill asking: “Can the Senator from Minnesota assure the Senator from West Virginia that under Title VI, school children may not be bussed from one end of the community to another end of the community at the taxpayers’ expense to relieve so-called racial imbalance in the school?” Senator Humphrey replied: “I do.” He further stated that the provision “merely quotes the substance of a recent court decision which I have with me and which I desire to include in the Record today, the so-called Gary case.” 1
Thus, we have the situation where the principles announced in our Gary decision were brought before the Supreme Court on three separate occasions when request for certiorari was made, but in each instance, a review of our decision was denied. We also know that the attention of the United States Senate was specifically directed to our decision in that case.
The majority opinion does make mention of the Bell case but says it does not control our decision here. Yet, there are many important factors which are similar.
In 1950, the population of Gary was 133,911 which included 39,326 Negroes. In 1960, the population was 178,320 of which 69,340 were Negroes. In 1961-62, in certain areas of Gary, twelve schools had 99 to 100% Negro students. A very similar situation existed in the city of Phoenix in School District 151 where the Coolidge and Kennedy Schools are located. It is undisputed that in the short period of eight years, the City of Phoenix changed from a predominantly white to a predominantly Negro community.
In the case before us, the School Board followed the neighborhood school concept although the Negro population was concentrated in one portion of the School District as was the case in Gary. Here, all schools were integrated with at least one Negro teacher as was the case in Gary. Here, the safety factors were almost identical with those in Gary, such as many railroad tracks, main highways without sidewalks, drainage ditches, etc.
The majority opinion as well as the District Court seemed to place great confidence in Plan C. This was a proposal of Superintendent Watts. His impartiality and judgment might be questioned. The evidence showed he referred to residents of South Holland (in School District 151) as “the old Dutch” and “Chicago grasshoppers” because they were “one jump ahead of the plague as they hopped from area to area.” The suggestion is made that these remarks were on a “confidential” tape. Whether or not that be so, they *1138were well publicized before the referendum was held seeking to increase the educational tax rate. This referendum was held shortly after the publication of this tape. The vote at the referendum was 1115 “No” and 477 “Yes.”
In my view, the District Court’s order requiring defendants to Adopt Plan C and bus approximately 790 Negro and white children to achieve a certain “racial make-up of each school” ignores not only our decision in Gary, but also ignores the Congressional intent in passing the Civil Rights Act of 1964, and the prohibition contained in Tit. 42, Section 2000c-6, U.S.C.
The order of the District Court also seems to have ignored the desperate financial condition of School District 151. Under Illinois law, general obligation bonds, when approved by voters, can be issued up to only 5% of the assessed valuation. School District 151 has been and is about at the limit of its bonding power.
I cannot agree with the novel constitutional theory urged by the Government to the effect that a constitutional violation depends not upon the effect of the actions of the School Board, but upon its psychological motivations. I understand the majority opinion does not agree with the District Court’s finding that voters were racially motivated in the February and December 1964 elections. In any event, such a finding indicates that the trial court was greatly impressed by practically all of the Government’s contentions in this ease.
The District Court gave the School Board seven days to come forward with an adequate desegregation proposal of its own. The Government argues that this was “more than ample.” Such an argument is ridiculous. Possibly the Board might have been able to assemble for a meeting within that period. In Taylor v. Board of Education of New Rochelle, 2 Cir., 294 F.2d 36 (1961) cited by the majority opinion and by the Government, Judge Kaufmann allowed the School Board three months to submit its plan. The same period was allowed in Dowell v. School Board of Okl. City, D. C., 244 F.Supp. 971, affd. 375 F.2d 158 (10 Cir., 1967).
This drastic limitation of time described is but another indication of the rapid pace upon which the trial was conducted. It is one of the reasons why I believe the defendants did not receive a fair trial. To me, the prejudice to the defendants is obvious.
. 110 Congressional Record, page 12714.