(with whom SIMPSON, Circuit Judge, joins, dissenting) :
The en banc court’s reaffirmance of the original panel opinion embarks this circuit on what must surely become another weary journey to an inefficient and insufficient remedy for a problem that cannot find a solution in the courts. Judge Wisdom is right when he observes in concurring that the Town of Shaw does not present a unique case. Rather, Shaw is typical of thousands of towns and hundreds of cities in this nation. An examination of any urban gathering of people will highlight the inequalities among the places where they live. The degree of affluence or poverty of each family in the community is almost uniformly reflected in its home. Whether one counts it good or bad, such variance in living standards is a hallmark of our American liberty. It inheres in every free society. Only in some egalitarian Utopia do all families live in equal surroundings. A failure to recognize this fact is at the heart of the mistake the court makes in choosing the course it launches today.
As Judge Roney aptly demonstrates in Part III of his dissent, the clearly erroneous rule applies here, j The District Judge was not clearly wrong in refusing to base his findings upon statistics cast into a racial mold. In essence, he found that because the people of the Town of Shaw had living standards that varied according to their individual financial conditions and social values, some of them occupied properties which required and permitted a lower level of municipal service than other properties. These dissimilarities in need and demand formed the basis of his finding that the city fathers had not discriminated against inhabitants on the basis of race, either deliberately or through arbitrary thought*1184lessness. That this approach is not in error has been clearly recognized by the plaintiffs through their abandonment on this appeal of a principal basis of their contest before the trial court — that discrimination was based upon wealth. For at least in the municipal service context, the poverty claim is incompatible with .racial distinctions.]
J^?An overview of this case shows that the trier of fact looked at the physical characteristics of the municipal services provided to the inhabitants of the Town of Shaw and concluded that the actions of its public officials in providing governmental services to the various property owners within its corporate limits rested upon rational considerations of the varying physical factors involved— irrespective of race; on appeal this court saw only that these disparities could be grouped by race to show more Negroes than whites received lesser municipal services. From this statistical possibility this court concluded that the trial court was in error. Yet, in reaching its determination, the district court expressly acknowledged its study and consideration of the very same racially com-partmented statistical information which the en banc court finds decisive. The difference is that the lower court refused to ignore the dissimilar situations of geography, housing patterns, antiquated streets, limited finances and the existence of a conservative, unprogres-sive municipal policy in resolving the basic issue of whether plaintiffs proved unconstitutional discrimination by the defendants.
The district court’s determination that racial discrimination was not a basis for the lack of equality in municipal services throughout the Town of Shaw is supported in this record by substantial rational considerations which explain the quality and quantity of present municipal functions. It is plain error on our part to upset this factual support for the district court’s decision solely because of the plaintiffs’ ability to cast these disparities into a racial mold. The economic and sociological problems that under-lie why the preponderant number of black citizens of Shaw, Mississippi are poorer than the whites who live there are facts of life, albeit uncomfortable ones for a nation concerned with social justice. However, these statistics alone no more demonstrate constitutionally impermissible racial discrimination in providing civic support by Shaw, Mississippi than would the same readily made showing in Chicago, Illinois or Los Angeles, California or Houston, Texas or Newark, New Jersey. They cannot be combined with the ever-present fact that the less well-developed areas of every urban community receive a lower level of many municipal functions to make out a case for racial discrimination where there is none.
What’s worse, this travel toward a false hope starts on the wrong foot. The district court is incorrectly faulted for applying, an erroneous legal standard. This holding simply will not withstand impartial analysis as Judge Bell demonstrated in the second paragraph of his original concurring opinion at 437 F.2d 1293, 1294. See also Judge Roney’s dissent. The opinion of the district court is expressly based on correct legal precedent. Any reversal should necessarily have been based upon our demonstration of a clearly erroneous resolution of the facts. That this is the correct approach may be at least tacitly conceded by the panel opinion which the en banc court adopts, since that opinion spent far more than a majority of its length in attempting to rationalize factual inferences different from those reached by the trial court.
Another symptom of the error which pervades the court’s approach appears in the sentence from the majority en banc opinion which declares:
Moreover, in our judgment the facts before us squarely and certainly support the reasonable and logical inference that there was here neglect involving clear overtones of racial discrimination in the administration of *1185governmental affairs of the town of Shaw .... (Emphasis mine.)
The mere fact that the court believes “support” can be found in the appellate record for drawing a differing inference of fact from that drawn by the district court does not justify reversal. In order for the district judge to be wrong on the facts, this court must be able to say that the record before us demonstrates the contrary finding of the district court to be clearly erroneous. On this same point, the panel opinion which the en banc court affirms, stated: “ . . this court has adequate standards to determine fairly that municipal services have been allocated in a discriminatory manner.” This likewise says far too little. A determination of the existence of “adequate standards to determine fairly” that a fact finding could be wrong does not provide the basis for an appellate reversal on the facts. A careful analysis demonstrates that this court has simply taken the same misleading statistical approach tendered by the plaintiff which the district court rejected, and has erroneously arrived at a finding of fact different from that made by the court vested with this responsibility.
In remitting Mr. Hawkins and the members of his class to a solution at the ballot box, rather than dangling the carrot of reform by judicial injunction before them, the district court followed the course of wisdom and practicality. Hard reality fore-ordains that no plan can be devised which will solve the complex variables of “equalizing” municipal services. This court’s broad-brush approach to this case guarantees such a fruitless result. By generally describing the service areas the court uses to justify overturning the district court’s fact finding, this court has multiplied the problems for the planning function it requires, if it has not rendered it impossible. Shaw’s resources are finite. Its daily needs must be met by public servants who must anticipate long-range requirements, both for the handful of classes of projects specifically dealt with and also for that wide spectrum of services and facilities that aren’t even mentioned. Our opinion leaves too many areas in these classes too wide-open to permit intelligent planning. While requiring city officials to devise and the district court to approve a program to “eliminate the disparities,” we not only give no real guidance as to what is expected but create impediments to the development of effective programs in the areas we discuss.
For example: As to paving — Does the court intend for the city to pave enough of the streets of inadequate width in the areas inhabited by Negro citizens to equal the length of similar narrow streets which were paved in white neighborhoods in the 1930s, or should Shaw now plan to condemn sufficient property in Negro neighborhoods to construct a modern street system in those areas ?
As to sanitary sewers — Can the city comply with our wishes by constructing sanitary sewerage collection lines to houses having no indoor plumbing, or must the city adopt a “proper housing code”?
As to surface drainage — Is it sufficient for the city to construct surface water drainage structures in lowlying areas which will be equal to the drainage structures in other areas of the city; or must some new legal route be found to empower the city to engage in the major channel improvement and dredging outside its city limits which the district court found was the real key to elimination of flooding in these areas of this essentially flat town; or will the city be required to undertake land fills in the lower areas to correct these deficient elevations?
As to water mains — Must water supply mains be sized on a present house count basis to reach equality, or may they be sized on the basis of anticipated demand for water? Here again, we ought to be explicit as to whether a new housing code is required that would mandate more residential water using facil*1186ities, i. e. sinks, tubs and toilets. Now is also the time the city should be advised of the place in any plan’s list of priorities for the proposed construction of the new water storage tank and large water well which this litigation has already delayed by two years.
On a broader basis as to all required plan ingredients, the court should certainly now make explicit whether our criterion is to be proportionately adequate service to the town’s individual parcels of property as they are now developed ; or equal service based upon the race of the property occupants; or something yet different from these.
While Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 30 L.Ed.2d 424, decided March 23, 1972, renders any distinction academic for jurisdictional purposes, there is absolutely no way to escape the conclusion that this is purely a property rights case. It is a property right which requires the municipal service in nearly every instance brought out by this record and, interestingly enough, we have no information as to the race of the owner of the properties involved, only the race of the occupants. A novel situation indeed would exist if our plan required the city to furnish municipal services to a parcel of property that the property owner did not want and could not afford to utilize. Yet this result is not only possible, it is probable here.
In our haste to mandate that all things in Shaw become equal, we ought to pause to realize that we require changes in living patterns and property utilization that the individual property owners cannot afford to use. At the same time, under the generalized approach adoptedi the plan could wind up failing to bring\ meaningful improvements to the very parties who brought this action. These observations are meant only to highlight the need for approaching and finding solutions for such property problems on a specific rather than a wholesale basis. We err in adopting the analogy that equalization of municipal services is akin to school desegregation or to jury discrimination and holding that the simple way to perfect a remedy is to require the town to develop a program to “eliminate the disparities.”
For all of these reasons and those set out by Judge Roney, in which I concur, I dissent.