(dissenting).
I share the majority’s empathy for the Norwalk Board of Education’s efforts to integrate its schools in a voluntary manner, without the threat of court action. They are to be commended, rather than condemned, for taking a step that many similarly situated communities resist up to the last court order. Under these circumstances I, like the majority, would give the Board wide latitude in setting up a workable plan, one that would accommodate the varying interests both between and within1 the communities involved. I would, however, remand this proceeding to the district court with directions to remand to the school board, for I believe that both the court and the board have permitted a perhaps otherwise reasonable conclusion to be infected by consideration of a constitutionally impermissible factor.
The district court relied on distinguishing between “neighborhood” rather *125than racial lines in upholding the board’s action in deciding which schools should be closed, which students bussed, and which areas selected for new schools. Yet when the Ely school, a relatively modern facility located in a predominantly Black and Puerto Rican neighborhood, physically suitable for continued use, was closed, the only students bussed were Black and Puerto Rican. The white children who had been attending Ely were permitted to attend other schools within walking distance. Indeed, since one of the avowed aims of the Policy 5122a was to promote integration, it is difficult to see how racial considerations — wholly apart from “neighborhood” conditions — could have been avoided.2 I am compelled to conclude, therefore, that decisions on school location and bussing were based in part on racial considerations, and operated in practice as racial classifications.3
It is well settled that racial classifications must be scrutinized carefully, and that they must bear “a far heavier burden of justification” than other similar classifications. See Hunter v. Erickson, 393 U.S. 385, 392, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Loving v. Virginia, 388 U.S. 1, 10, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1968); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1964). The majority would meet that burden by pointing to the board’s considered conclusion that overall educational opportunities for all Norwalk children would be improved by closing schools in what were euphemistically described as “underprivileged neighborhoods,” and by transferring students from those neighborhoods to schools where a more effective educational environment could be maintained. On the face of it, the justification is not without merit. We must be ever mindful of Justice Brandeis’s remark that “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (dissenting opinion). We do not compel all communities to follow the same route to effective education; we should rather encourage different solutions in the hope that one of these “laboratories” will show the way to the rest.
Yet we cannot abandon the limits the constitution places on experimentation. We must not forget that the broad discretion given local governments is tempered by the constitutional mandate requiring that these experiments not favor one racial group at the expense of others. We must consider not only the end sought and the means chosen, but the processes employed to select those means. The board, I am willing to agree, should be upheld if, on the basis of competent evidence it reached a decision on educational policy that was not unreasonable in the light of its wholly laudatory desire to provide high calibre education for all Norwalk students.
In my view, however, that has not been done. One important factor the board relied upon in deciding whether or not white children would be bussed into schools in predominantly Black or Puerto Rican neighborhoods was “the existence of racial hostilities and fears.” 298 F.Supp. at 218. Control of “race *126hostility,” the Supreme Court recognized as long ago as 1917 “cannot be promoted by depriving citizens of their constitutional rights and privileges.” Buchanan v. Warley, 245 U.S. 60, 80-81, 38 S.Ct. 16, 20, 62 L.Ed. 149 (1917). It is no answer to state that there is no “right” to neighborhood schools, or to end de facto segregation.4 It has long been settled that even when the government is conferring benefits or privileges it must make them available to all in a manner that does not discriminate on the basis of race. See, e.g., Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963); Wright v. Georgia, 373 U. S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963). See also Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1420, 1454-57 (1968). Specific applications of the Buchanan principle have made it perfectly clear that mere racial hostility cannot serve as an adequate basis for denying equal treatment in the use of public facilities. See, e.g., Taylor v. Louisiana, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395 (1962) (segregated waiting room) (per curiam).5
By considering racial hostility as a reason for refusing to bus white children to black schools, the board in effect not only recognizes the existence of racial fears and distrust, but possibly caters to them. Its own Policy 5122a calls for integration as a means of promoting “mutual respect”; yet it works at cross purposes by recognizing and in effect legitimizing the very racial misunderstandings it seeks to eradicate. Valid distinctions may be raised to govern distribution of educational benefits, but those distinctions may not be based on race if a reason for making them is in part to yield to racial hostilities. For example, let us assume that a benefit, state scholarships, are conferred on a merit basis to a disproportionately large number of Chinese. Let us assume that this contributed to hostility against Chinese in state institutions. May the state, in the interest of quieting these racial antagonisms, limit the number of otherwise qualified Chinese given scholarships? Or, in the interest of maintaining tranquil waiting rooms, may Louisiana at this late date segregate white and Black passengers? I think the answer in both cases must be no. See Taylor v. Louisiana, 370 U.S. 154, 82 S.Ct. 1188 (1962).
We cannot permit the board’s order to stand “unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.” SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L Ed. 626 (1943) (Frankfurter, J.). Since racial hostilities were admittedly a factor in the school board’s decision to close the Ely school, and to institute one-way bussing, I would remand to the board to reconsider without placing “racial hostilities” in the balance. This fully accords with the principle that “[w]here the agency has rested decision on an unsustainable reason, the court should generally reverse and remand even though it discerns a possibility, even a strong one, that by another course of reasoning the agency might come to the same result.” Friendly, *127Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L.J. 199, 222. How much more so when we are under constitutional compulsion to scrutinize racial distinctions carefully, and apply a “heavier burden” to justifications for them. See Loving v. Virginia, 388 U.S. 1, 10, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1968).
We have already shown our awareness of the hardships and disadvantages of contrived neighborhood lines, see Taylor v. Board of Education of City School Dist. of City of New Rochelle, 294 F.2d 36, 39 n. 2, cert. denied, 368 U.S. 940, 82 S.Ct. 382 (1961); contrived bussing and cross-bussing may pose similar problems. But we do not reach those questions on this appeal. As I have indicated, I would permit the board rather wide latitude in fashioning a workable plan to implement its worthy objectives — all I am saying is that it ought to rely on constitutionally permissible considerations in reaching its decision.
. Rendering the board’s task doubly difficult in this instance is the presence — hardly unique to Norwalk — of a deep division within the Black and Puerto Rican community over not only the means, but even the ends of public education. On one side are the plaintiffs, who would prefer neighborhood schools, apparently even if they are almost entirely Black and Puerto Rican; on the other, those who attempted to intervene on the side of the board, supporting bussing of Black and Puerto Rican children to white neighborhood schools to promote integration. See Norwalk Core, etc., et al. v. Norwalk Board of Education, 298 F.Supp. 208 (1968).
. The statistics, while not conclusive, are compelling. Of 1581 Black and Puerto Rican school children, 49% or 775 are bussed; of 7934 whites, less than % of 1% (39 students) are bussed. See 298 F.Supp. at 216. And those 39 appear to have been bussed for reasons unrelated to integration. See 298 F.Supp. at 217.
. One school board expert testified that students were chosen for bussing from both the Ely and Columbus schools “solely because they were Negroes and Puerto Ricans.” The district court found the burdens of bussing rested primarily on Blacks and Puerto Ricans, 298 F.Supp. at 216, and while speaking of neighborhood considerations, tested the school board’s actions with the standard applicable to racial classifications. 298 F.Supp. at 223, 226.
. This Circuit has not decided whether there is a constitutional compulsion and' therefore a “right” to end de facto segregation. See Offerman v. Nitkowski, 378 F.2d 22 (2d Cir. 1967). Cf. Taylor v. Board of Education of City School Dist. of City of New Rochelle, 294 F.2d 36, 39 n. 2, cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961).
. A similar doctrine is applied in the free speech area. There the rule is also considered well settled that fear of hostile reaction to the speaker’s message is an insufficient reason to limit his right to speak. See Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1960); Gregory v. City of Chicago, 394 U.S. 111, 117, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969).