(with whom SIMPSON and CLARK, Circuit Judges join, dissenting):
fa respectfully dissent because it appears clear to me that this Court has misapplied the established precedents in this case and created an unsound standard of review for matters of this nature.1 ^
The Court verbalizes no more for the statistical data submitted by plaintiffs than that it presented a prima facie case of racial discrimination. But then it treats that prima facie case as conclusive proof of a racial classification vio-lative of the Equal Protection Clause which defendants must justify by a compelling state interest.
*1179“Surely, this was enough evidence to establish a prima facie case of racial discrimination. The only question that remains to be examined is whether or not these disparities can possibly be justified by any compelling state interests.” Hawkins v. Town of Shaw, Mississippi, 437 F.2d 1286, 1288 (5th Cir. 1971).
Thus the Court entirely forecloses the defendants’ opportunity to disprove the prima facie case of racial discrimination by a preponderance of the evidence J* The law is clear that before the government action here should have to be justified by a showing of compelling state interest in order to withstand the impact of the Equal Protection Clause, there must first be a finding that the action discriminated against citizens because of their race.2
To my mind the En Banc Court, by adopting the position of the original panel, has converted the compelling interest doctrine into a standard of evidence and procedure that has despoiled the processes of law and could well obliterate the truth in a given case. '|lt has confused prima facie evidence of racial classification, which is related to the problems of the shifting burdens of proof and evidence, with a prima facie ease of the denial of equal protection, which in racial cases requires justification by a compelling state interest, or put another way, which requires a showing that the condition that results in the “unequal protection” achieves a compelling state purpose.3 J
At the outset it seems to me that we must recognize the inherent uniqueness, in the Equal Protection context, of eases involving those municipal services which require capital expenditures! The provision of municipal services to the property of residents is largely a question of priorities which our system_.of-government conceives should be determined by elected officials responsive to the people. The daily news media well portray the difficulties every city is having in establishing such priorities. It is doubtful that any priority determination could ever be justified on the compelling interest standard as laid down by the cases which fathered the doctrine.4 In the pro*1180'vision of streets, sewers, lights, water and other facilities, given limited resources, the city simplwhas to start with something some place./ As municipal improvements are originated, installed, repaired, improved and modernized, it is intrinsic to the process that at any given point of time services will be unequal, a condition which probably-does not serve any compelling interest.5 While there could be no compelling state interest in starting with the provision of services in the white areas of a town with segregated neighborhoods, neither could there be a compelling state interest to start any other particular place. Even if there is a compelling reason for a given priority, it is questionable, if this is tantamount to a compelling state interest.6 ^For the law to require that the town must show a compelling interest to justify the priorities it establishes in making capital improvements simply requires the impossible. ¡I For the Courts to assume control of those priorities merely-results in substituting one non-compelling list of priorities for another.
/This is not a case where equality can be obtained by invalidating a law or reordering human conduct, or even by reallocating the expenditure of a pool of current operational funds. The difference is more than a problem of remedy. It goes to substance. Disparity is the necessary result of the limiting factors of resources and time.^\
This is not to say that § 1983 does not provide an avenue for relief against unconstitutional action in the rendition of municipal services, but an understanding of the problems of priorities must serve as a backdrop for the application of the Equal Protection Clause and for judicial consideration of whether those being served unequally are the victims of constitutionally impermissible state action. The difference must be recognized in deciding the precedential value of prior cases. Legal principles which serve well in the one case, may not in another.
fThe determination to apply the compelling state interest test dictates the result for all practical purposes. Since any stop-action picture of the progressive urban process is almost certain to show disparity in municipal services, it is incumbent upon us to determine precisely whether that disparity is the result of action intended for proscription by the Equal Protection Clause before it is submitted to the compelling interest test. The necessity for care is highlighted by the fact that the remedy sought by the plaintiffs, and granted by the En Banc Court, causes irreparable damage to the fundamental right of the citizens of Shaw to-govern themselves.
I cannot agree to a holding which establishes as a principle of law that a court is required to apply the compelling state interest test to a mere prima facie case of racial classification in the distri*1181bution of municipal services requiring capital expenditures. Such a principle permits the Equal Protection Clause to swallow the entire system of political democracy in state and local government on a procedural determination.
II.
(The plaintiffs’ proof consisted almost solely of statistical evidence of a disparity between races in the provision of municipal services requiring capital expenditures.]
The principle that figures will speak persuasively in court was evolved in cases where it was clearly demonstrated that the figures would differ were it not for racial discrimination.7 There was some reasonable basis on which to judge what the figures would have been or what they would not have been absent racial discrimination.
In this case, no comparative base was submitted in evidence or argued as a matter of law, nor has the Court reasoned against any hypothetical base. Nor does experience lead to a clear conclusion. There are many towns across America with no racially identifiable neighborhoods that have great disparities in municipal services — so the fact of disparity alone does not point to racial discrimination. There is no indication that were it not'for racial discrimination the municipal services would fall proportionately upon black and white, or even substantially so!' With the limited resources of Shaw and the conservative improvement policy followed for all of its citizens, there is no reason to believe that at this point in time everyone would have equal services, absent racial discrimination^ Taking notice that disparity of services is typical of many non-segregated towns otherwise like Shaw, there is some reason to believe that without regard to race, if the plaintiffs were of low income, with the social, economic, educational and political characteristics which the scant record would indicate, they would be among those who would suffer from the disparity of services in any town with no racial differences among its citizens.7 8 While this may be of little comfort to the man without a street, or a sewer, and with poor drainage and a poor water supply, it is nonetheless significant to our review of this case because we are asked to accept the statistics as conclusive proof of racial discrimination contrary to all other reasons for disparity in order to trigger the compelling state interest test. To reverse on the figures alone would seem to require the exclusion of every reasonable hypothesis except that asserted by the plaintiffs.
III.
([Placing the statistics in proper perspective, we are then bound by the clear*1182ly erroneous standard of review provided by Rule 52(a), F.R.Civ.P.^ Although we have held that we are free from the restraining impact of the clearly erroneous rule where the ultimate fact is simply the result reached by processes of legal reasoning from, or the interpretation of the legal significance of the evidentiary facts,9 the facts concerning the rendition of municipal services by Shaw are simply not of that kind. The complex social, economic, scientific, geographical, and political input required in order to establish priorities in the expenditure of public funds casts the determination as to those priorities into a mold differing substantially from the kind of ultimate fact to which that rule addresses itself. Here the district court not only heard all the testimony but personally viewed the whole Town of Shaw. His findings of fact should not be disturbed on review unless clearly erroneous.
IV.
(It being virtually impossible to make priority determinations in terms of compulsion, a rational justification is all that can be required to meet the prima facie factual caseS^ Although the law is clear that in the face of figures which indicate a prima facie case of racial discrimination the Court will not accept general assertions by public officials of non-discrimination but must look to other evidence, Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1953), that evidence need not be of a compelling nature. In a case of this kind it should be sufficient to meet the prima facie case of racial discrimination that the actions of public officials rested upon rational considerations, irrespective of race. This is the standard that was applied by the trial judge!
A fair evaluation of the evidence read against the findings of the trial court, as set forth in detail in his Memorandum Opinion, Hawkins v. Town of Shaw, Mississippi, 303 F.Supp. 1162 (N.D.Miss.1969), does not permit reversal under the clearly erroneous standard of review. We must view the evidence in the light and with all reasonable inferences most favorable to the judgment below. Wheeler v. Holland, 218 F.2d 482 (5th Cir. 1955); Firemen’s Insurance Company of Newark, New Jersey v. Robbins Coal Company, 288 F.2d 349 (5th Cir. 1961), cert. den. 368 U.S. 875, 82 S.Ct. 122, 7 L.Ed.2d 77 (1961); cf., Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969). That we might reach a different conclusion as a trier of fact does not justify reversal on review. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969).
V.
Needless to say, if this case decides that there is a constitutional right in every citizen regardless of race to equal municipal services, as indicated in Judge Wisdom’s concurring opinion, much time is being wasted in considering the race of those who have unequal services. The disparity as to race would be irrelevant. If everyone has a constitutional right to equal services then the class broadens to include both races, because in Shaw there are both whites and blacks who have less than equal municipal services of various kinds. It would make no difference then what the race of the citizen without the service. However, I do not understand the Court to have so based its decision nor was that principleasserted by the plaintiffs in this case. / The correct principle would appear to be that every citizen has a right(not to be deniedjservices because of race, and that any denial of services must have occurred only as a result of the nonracial resolution of all of the competing influences in the politics of self-government)
A contrary disposition of this case, either as to liability or remedy is not indicated by such cases as Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2nd Cir. 1968), Kennedy Park *1183Homes Association, Inc. v. City of Lackawanna, New York, 436 F.2d 108 (2nd Cir. 1970), or Hadnott v. City of Prattville, 309 F.Supp. 967 (M.D.Ala.1970).
Norwalk was decided on pleadings directed to a specific urban renewal project that alleged a denial of equal protection to Negroes and Puerto Ricans displaced by the program. Presumably proof of these allegations would precede the application of the compelling state interest test.
Kennedy Park Homes affirmed lower court findings, fully supported by a record, that racial motivation resulted in depriving plaintiffs of the use of property for a housing project by denying them sewers. It was only after this finding that the compelling state interest test was applied.
Hadnott simply permitted evidence of rational reasons for disparity to overcome the prima facie case of discrimination in all the municipal services except in a public park, in which, by the same standard of proof, discrimination was found.
VI.
In devising a remedy, as well as deciding liability, this Court has adopted a doctrine of “proportional protection” to supersede the constitutional mandate of equal protection. This case would indicate that if each municipal service is provided to an equal percentage of both races, Shaw would not then “deny to any person within its jurisdiction the equal protection of the laws.” This approach has no authoritative precedent. The “equalization” directed by the Court may or may not remedy the effects of racial discrimination and bring Shaw into constitutional line. Such a remedy goes to the evidence of discrimination rather than to its effect.
Even if I agreed with the Court that the plaintiffs are entitled to relief, I would remand the case to the district court for the purpose of taking such additional evidence as may be necessary to make findings as to exactly what services would now be in place were it not for racial discrimination, and for the purpose of then devising appropriate remedies directed only to the proven effects of the constitutional violation and to protection against future violations.
. Justice Brennan’s discussion in Baker v. Carr, 369 U.S. 186 (1962) at p. 217, 82 S.Ct. 691, 7 L.Ed.2d 663, demonstrates the necessity for judicially discoverable and manageable standards for resolving problems -which involve political questions.
. I pretermit any discussion of whether the ‘‘compelling interest” equal iwotection doctrine of “recent vintage,” as characterized and analyzed by Justice Harlan in his dissent in Shapiro v. Thompson, 394 U.S. 618 (1969), pp. 658-663, 89 S.Ct. 1322, 22 L.Ed.2d 600, could appropriately be applied in a municipal service case on the “suspect” criterion of wealth, Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) or on a “fundamental right” theory, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) [right to vote]; Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) [right to marry and procreate]; Shapiro v. Thompson, supra [right to interstate travel]; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) and Douglas v. Illinois, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) [right to have criminal hearings]. This case has been presented to us solely on the basis of racial classification. That is all that the evidence addressed itself to, although the complaint asserted both race and poverty as grounds for relief.
. Cf. Coleman v. Alabama, 389 U.S. 22 (1967) at p. 23, 88 S.Ct. 2, at p. 3, 19 L.Ed.2d 22: “This ‘testimony in itself made out a prima facie case of the denial of the equal protection which the Constitution guarantees.’ Norris v. Alabama, 294 U.S. 587, 591 [, 55 S.Ct. 579, 581, 79 L.Ed. 1074.] In the absence of evidence adduced by the State adequate to rebut the prima facie case, petitioner was therefore entitled to have his conviction reversed. Arnold v. North Carolina, 376 U.S. 773 [, 84 S.Ct. 1032, 12 L.Ed.2d 77;] Eubanks v. Louisiana, 356 U.S. 584 [, 78 S.Ct. 970, 2 L.Ed.2d 991;] Reece v. Georgia, 350 U.S. 85, 87-88 [, 76 S.Ct. 167, 169, 100 L.Ed. 77;] Hernandez v. Texas, 347 U.S. 475, 481 [, 74 S.Ct. 667, 671, 98 L.Ed. 866;] Hill v. Texas, 316 U.S. 400, 406 [, 62 S.Ct. 1159, 1162, 86 L.Ed. 1559.]”
. McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Baker v. Carr, 369 U.S. *1180186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); and Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).
. A fully mature city with stable population which can resist the current trend to expansion of corporate limits, might approach equality on a quantitative basis but continued modernization will probably necessitate qualitative inequality. It can be fairly assumed from the record that Shaw will continue its progress to the point where all citizens will have adequate, if not exactly equal, municipal services of the kind involved in this lawsuit. Modern street paving did not begin until 1960. Prior to 1963, the town had no municipal sanitary sewer services. We are told that a federal grant has been approved to resolve the problem with regard to water pressure and fire hydrants.
. Compare Hadnott v. City of Prattville, 309 F.Supp. 967 (M.D.Ala.1970) where the system of property assessment used as the determining factor for installation of municipal services virtually compelled the priorities, thus disproving the prima facie case of disparity based on race, with Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971) and Van Dusartz v. Hatfield, 334 F.Supp. 870 (D.C.Minn. 10-12-71) where the states could not show a compelling state interest in a system of financing which was equally coercive in determining educational priorities but resulted in disparities based on wealth.
. Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966) [Not a single Negro grand juror ever served in a county with 10% Negro population.]
Alabama v. United States, 304 F.2d 583 (5th Cir. 1962), aff’d, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112 [Less than 10% of the Negroes of voting age were registered to vote. Although Negroes made up 83% of the population, they constituted only 25% of the registered voters.] United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962), cert. den., 372 U.S. 915, 83 S.Ct. 717, 9 L.Ed.2d 722 [Negroes constituted more than 31% of those qualified for jury service but less than 2% of those on the jury rolls.]
United States v. Edwards, 333 F.2d 575 (5th Cir. 1964) [Negroes made up 37.3% of the population but constituted less than 1% of the registered voters.] United States v. State of Mississippi, 229 F.Supp. 925 (S.D.Miss.1964), rev’d 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 [Only 5% of Mississippi’s adult Negro population was registered to vote.]
Bing v. Roadway Express, Inc., 444 F.2d 687 (5th Cir. 1971) [Among the almost 300 road drivers hired by the company, there was not a single Negro.] United States v. Ironworkers Local 86, 443 F.8d 544 (9th Cir. 1971) [Of some 3720 union members only 3 were black.]
. Although poverty was asserted as an improper classification in the court below, the record is virtually silent on the point, and the argument was dropped on appeal.
. Galena Oaks Corporation v. Scofield, 218 F.2d 217 (5th Cir. 1954).