(concurring in part and dissenting in part).
I agree with the opinion of the court relating to the desegregation of custodial facilities so adequately treated in Judge Smith’s opinion. I also agree that in the present state of the law there is no relief which this court can give in response to plaintiffs’ demand that the court abolish all county public works camps, as dealt with in Section III of the court’s opinion.
With deference, however, I cannot agree that the claim in the complaint, and dealt with in Section II of the opinion, is not properly before us for consideration for lack of standing on the part of the plaintiffs to raise the issue of racially exclusive hiring practices by the State Board of Corrections.
I agree that unless an individual Negro is a member of a class of persons who had actually sought and been denied an opportunity for employment, on the basis of race, he could not, as a potential employee, raise the issue of segregated hiring policy. Here, however, we have the issue raised by the thousands of Negro inmates of the correctional institu*1014tions who ask the court to correct a system under which their supervision, custody, and rehabilitation, such as it exists 1 is administered by white persons exclusively. The foregoing opinion correctly calls attention to the fact that according to the latest statistics some 857 employees of the State Board of Corrections are white and 13 are Negroes. It also expresses a very plain, and, I think, necessary, caveat in footnote 6 ending with the statement, “In this connection the state and local merit systems should take care that their records and ‘rules of threes’ do not discriminate on account of race.”
I think the plaintiffs here are entitled to more than the cautionary note because I think they, as affected individuals, are proper members of a class who have standing to complain of the present segregated practice prevalent in the institutions under the control of the State Board of Corrections.
It is the policy of the state of Georgia to make of its Department of Corrections a system for rehabilitating citizens. One of the rules adopted provides, “In addition to security considerations, it shall be the duty and the responsibility of all correctional personnel to do everything reasonably within their power to insure the reformation and rehabilitation of the individual inmate so that he may return to the community as a useful, law abiding citizen.” Rules and Regulations Governing the Operations of State Correctional Institutions and County Public Works Camps in the State of Georgia, 15.
Moreover, in the annual report of the Board of Corrections dated July, 1965, is found the language, “The Department of-Corrections is working diligently to build a correctional system — rather than merely maintaining a prison system.”
In the Board’s Basic Policy, Procedures and Regulations, dated January, 1966, there are found the following instructions :
“Custody and security do not connote punishment and can be maintained with a constructive program of rehabilitation designed to help prepare inmates for a useful life in the community after release.
“The custodial officer has more contact with the inmates than any other employee or official of the Department. His function is basically restrictive but by his attitude in the performance of his functions he can have a significant effect on the inmates in his charge. A firm but fair attitude will help toward development of respect for and obedience to, the general rules governing the inmate population. He should bear in mind that in addition to his duties relating to custody and security he has a definite duty to assist in the overall Treatment Program.”
While admittedly there are great gaps in all prisión systems and the proof thus far adduced in this case indicates that the degree to which educational opportunities and the training of skills are afforded leaves much to be desired, it is nevertheless true that under the state announced policy it is the duty of the personnel who operate the custodial institutions to deal with and cope to such extent as they are able with the problem of rehabilitating Georgia’s prison population for useful future life. To this extent then it seems clear to me that the court should permit adequate proof to be made with respect to the complaint made in Section II of the suit, in order that we may ascertain whether in fact the method of selection of employees which is now pursued deprives the inmates of *1015substantial Fourteenth Amendment rights to have the “faculties,” as we may denote the training and administrative personnel dealing with rehabilitation, selected other than on a racially segregated basis. This would follow from several decisions of courts which hold that entirely apart from the right of a Negro teacher to insist on non-segregated employment practices, Negro pupils themselves have a right to have a non-segregated faculty or teaching staff. United States v. Jefferson County Board of Education, 5 Cir., 372 F.2d 836, 883-886, 1966, aff’d on rehearing en banc, 380 F. 2d 385, cert. denied 389 U.S. 840, 88 S. Ct. 67, 19 L.Ed.2d 103, 1967. In Lee v. Macon County Board of Education, 267 F.Supp. 458, at page 472, M.D.Ala., aff’d sub nom, Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422, the three-judge district court in the Middle District of Alabama said: “It is no longer open to question that faculty and staff desegregation is an integral part of any public school desegregation plan — not because of teachers’ employment rights, but because students are entitled to a nonracial education, and assignment of teachers to students on the basis of race denies students that right.”
For these reasons I would permit the plaintiffs to complete their statistical study, which, it seems, might demonstrate the truth of their complaint that with some notable exceptions,2 defendants operating institutions named in the class action are, in fact, operating the entire system under their care solely by members of the white race, whereas an overall average of 56% of the inmates are of the Negro race. If the proof shows such facts, I am of the opinion that the plaintiffs would be entitled to have this practice ended in the same manner as have those school districts which have operated their faculties on a segregated basis. The means by which this result could be accomplished could be developed without doing violence to any basic employment rights of other persons, and I am confident, without any interruption in the proper operation of the custodial institutions involved.
I, therefore, dissent from that part of the opinion stating, “thus, for. the lack of a proper class on either side, the second claim must be dismissed,” because the plaintiffs adequately represent their class as alleged, and at least the Board of Corrections is a proper party defendant as to its employment practices.
. “The State Board of Corrections shall adopt rules governing the assignment, housing, working, feeding, clothing, treatment, discipline, rehabilitation, training and hospitalization of all prisoners coming under its custody.
“The Board shall also adopt rules and regulations governing the conduct and the welfare of the employees of the State institutions operating under its authority and in the county public works camps and state highway camps operating under its supervision * * Ga.Code Ann. Section 77-307 (b) (c).
. I, of course, do not intend to prejudge the facts as to any individual county or prison system as to which there has been a denial of racial hiring.