UNITED STATES of America and Linda Stout, by her father and next friend, Blevin Stout, Appellants, v. JEFFERSON COUNTY BOARD OF EDUCATION et al., Appellees. UNITED STATES of America, Appellant, v. The BOARD OF EDUCATION OF the CITY OF FAIRFIELD et al., Appellees. UNITED STATES of America, Appellant, v. The BOARD OF EDUCATION OF the CITY OF BESSEMER et al., Appellees. UNITED STATES of America, Appellant, v. CADDO PARISH SCHOOL BOARD et al., Appellees. UNITED STATES of America, Appellant, v. The BOSSIER PARISH SCHOOL BOARD et al., Appellees. Margaret M. JOHNSON et al., Appellants, v. JACKSON PARISH SCHOOL BOARD et al., Appellees. Yvornia Decarol BANKS et al., Appellants, v. CLAIBORNE PARISH SCHOOL BOARD et al., Appellees, 372 F.2d 836

WISDOM, Circuit Judge: Once again the Court is called upon to review school desegregation plans to determine whether the plans meet constitutional standards. The distinctive feature of these cases, consolidated on appeal, is that they also require us to reexamine school desgregation standards in the light of the Civil Rights Act of 1964 and the Guidelines of the United States Office of Education, Department of Health, Education, and Welfare (HEW). When the United States Supreme Court in 1954 decided Brown v. Board of Education the members of the High School Class of 1966 had not entered the first grade.

Brown I held that separate schools for Negro children were “inherently unequal”. Negro children, said the Court, have the “personal and present” right to equal educational opportunities with white children in a racially nondiscriminatory public school system. For all but a handful of Negro members of the High School Class of ’66 this right has been “of such stuff as dreams are made on”. “The Brown case is misread and misapplied when it is construed simply to confer upon Negro pupils the right to be considered for admission to a white school”.

The United States Constitution, as construed in Brown, requires public school systems to integrate students, faculties, facilities, and activities. If Brown I left any doubt as to the affirmative duty of states to furnish a fully integrated education to Negroes as a class, Brown II resolved that doubt.

A state with a dual attendance system, one for whites and one for Negroes, must “effectuate a transition to a [unitary] racially nondiscriminatory school system.” The two Brown decisions established equalization of educational opportunities as a high priority goal for all of the states and compelled seventeen states, which by - law had segregated public schools, to take affirmative action to reorganize their schools into a unitary, nonracial system. The only school desegregation plan that meets constitutional standards is one that works.

By helping public schools to meet that test, by assisting the courts in their independent evaluation of school desegregation plans, and by accelerating the progress but simplifying the process of desegregation the HEW Guidelines offer new hope to Negro school children long denied their constitutional rights. A national effort, bringing together Congress, the executive, and the judiciary may be able to make meaningful the right of Negro children to equal educational opportunities. The courts acting alone have failed.

We hold, again, in determining whether school desegregation plans meet the standards of Brovm and other decisions of the Supreme Court, that courts in this circuit should give “great weight” to HEW Guidelines. Such deference is consistent with the exercise of traditional judicial powers and functions. HEW Guidelines are based on decisions of this and other courts, are formulated to stay within the scope of the Civil Rights Act of 1964, are prepared in detail by experts in education and school administration, and are intended by Congress and the executive to be part of a coordinated national program.

The Guidelines present the best system available for uniform application, and the best aid to the courts in evaluating the validity of a school desegregation plan and the progress made under that plan. HEW regulations provide that schools applying for financial assistance must comply with certain requirements.

However, the requirements for elementary or secondary schools “shall be deemed to be satisfied if such school or school system is subject t a final order of a court of the United States for the desegregation of such school or school system * * *.” This regulation causes our decisions to have a twofold impact on school desegregation. Our decisions determine not only (1) the standards schools must comply with under Brown but also (2) the standards these schools must comply with to qualify for federal financial assistance.

Schools automatically qualify for federal aid whenever a final court order desegregating the school has been entered in the litigation and the school authorities agree to comply with the order. Because of the second consequence of our decisions and because of our duty to cooperate with Congress and with the executive in enforcing Congressional objectives, strong policy considerations support our holding that the standards of court-supervised desegregation should not be lower than the standards of HEW-supervised desegregation.

The Guidelines, of course, cannot bind the courts; we are not abdicating any judicial responsibilities. But we hold that HEW’s standards are substantially the same as this Court’s standards. They are required by the Constitution and, as we construe them, are within the scope of the Civil Rights Act of 1964. In evaluating desegregation plans, district courts should make few exceptions to the Guidelines and should carefully tailor those so as not to defeat the policies of HEW or the holding of this Court.

Case by case over the last twelve years, courts have increased their understanding of the desegregation process Less and less have courts accepted the question-begging distinction between “desegregation” and “integration” as a sáne-tuary for school boards fleeing from their constitutional duty to establish an integrated, non-racial school system. With the benefit of this experience, the Court has restudied the School Segregation Cases.

We have reexamined the nature of the Negro’s right to equal educational opportunities and the extent of the correlative affirmative duty of the state to furnish equal educational opportunities. We have taken a close look at the background and objectives of the Civil Rights Act of 1964. * * * We approach decision-making here with humility. Many intelligent men of good will who have dedicated their lives to public education are deeply concerned for fear that a doctrinaire approach to desegregating schools may lower educational standards or e^en destroy public schools in some areas.

These educators and school administrators, especially in communities where total segregation has been the way of life from cradle to coffin, may fail to understand all of the legal implications of Brown, but they understand the grim realities of the problems that complicate their task. The Court is aware of the gravity of their problems.

(1) Some determined opponents of desegregation would scuttle public education rather than send their children to schools with Negro children. These men flee to the suburbs, reinforcing urban neighborhood school patterns.

(2) Private schools, aided by state grants, have mushroomed in some states in this circuit. The flight of white children to these new schools and to established private and parochial schools promotes resegregation.

(3) Many white teachers prefer not to teach in integrated public schools. They are tempted to seek employment at white private schools or to retire.

(4) Many Negro children, for various reasons, prefer to finish school where they started. These are children who will probably have to settle for unskilled occupations.

(5) The gap between white and Negro scholastic achievements causes all sorts of difficulties. There is no consolation in the fact that the gap depends on the socioeconomic status of Negroes at least as much as it depends on inferior Negro schools. No court can have a confident solution for a legal problem so closely interwoven with political, social, and moral threads as the problem of establishing fair, workable standards for undoing de jure school segregation in the South.

The Civil Rights Act of 1964 and the HEW Guidelines are belated but invaluable helps in arriving at a neutral, principled decision consistent with the dimensions of the problem, traditional judicial functions, and the United States Constitution. We grasp the nettle. I. “No army is stronger than an idea whose time has come.” Ten years after Brown, came the Civil Rights Act of 1964. Congress decided that the time had come for a sweeping civil rights advance, including national legislation to speed up desegregation of public schools and to put teeth into enforcement of desegregation.

Titles IV and VI together constitute the congressional alternative to court-supervised desegregation. These sections of the law mobilize in aid of desegregation the United States Office of Education and the Nation’s purse. A. Title IV authorizes the Office of Education to give technical and financial assistance to local school systems in the process of desegregation. Title VI requires all federal agencies administering any grant-in-aid program to see to it that there is no racial discrimination by any school or other recipient of federal financial aid.

School boards cannot, however, by giving up federal aid, avoid the policy that produced this limitation on federal aid to schools: Title IV authorizes the Attorney General to sue, in the name of the United States, to desegregate a public school or school system. More clearly and effectively than either of the other two coordinate branches of Government, Congress speaks as the Voice of the Nation. The national policy is plain: formerly de jure segregated public school systems based on dual attendance zones must shift to unitary, nonracial systems — with or without federal funds.

The Chief Executive acted promptly to carry into effect the Chief Legislature’s mandate. President Lyndon B. Johnson signed the bill into law July 2, 1964, only a few hours after Congress had finally approved it. In the signing ceremony broadcast to the Nation, the President said: “We believe all men are entitled to the blessings of liberty, yet millions are being deprived of those blessings — not because of their own failures, but because of the color of their skins. * * * [It] cannot continue.” At the request of President Johnson, Vice President Hubert H.

Humphrey submitted a report to the President “On the Coordination of Civil Rights Activities in the Federal Government” recommending the creation of a Council on Equal Opportunity. The report concludes that “the very breadth of the Federal Government’s effort, involving a multiplicity of programs” necessary to carry out the 1964 Act had created a “problem of coordination.” The President approved the recommendation that instead of creating a new agency there be a general coordination of effort.

Later, the President noted that the federal departments and agencies had “adopted uniform and consistent regulations implementing Title VI * * [in] a coordinated program of enforcement.” He directed the Attorney General to “coordinate” the various federal programs in the adoption of “consistent and uniform policies, practices, and procedures with respect to the enforcement of Title VI * * * ” In April 1965 Congress for the first time in its history adopted a law providing general federal aid — a billion dollars a year — for elementary and secondary schools.

It is a fair assumption that Congress would not nave taken this step had Title VI not established the principle that schools receiving federal assistance must meet uniform national standards for desegregation.

To make Title VI effective, the Department of Health, Education, and Welfare (HEW) adopted the regulation, "Nondiscrimination in Federally assisted Programs.” This regulation directs the Commissioner of Education to approve applications for financial assistance to public schools only if the school or school system agrees to comply with a court order, if any, outstanding against it, or submits a desegregation plan satisfactory to the Commissioner.

To make the regulation effective, by assisting the Office of Education in determining whether a school qualifies for federal financial aid and by informing school boards of HEW requirements, HEW formulated certain standards or guidelines. In April 1965, nearly a year afW the Act was signed, HEW published its; first Guidelines, “General Statement of Policies under Title VI of the Civil Rights Act of 1964 Respecting Desegregation of Elementary and Secondary Schools.” These Guidelines fixed the fall of 1967 as the target date for total desegregation of all grades.

In March 1966 HEW issued “Revised Guidelines” to correct most of the major flaws revealed in the first year of operation under Title VI. B. The HEW Guidelines raise the question: To what extent should a court, in determining whether to approve a school desegregation plan, give weight to the HEW Guidelines? We adhere to the answer this Court gave in four earlier cases. The HEW Guidelines are "minimum standards”, representing for the most part standards the Supreme Court and this Court established before the Guidelines were promulgated. Again we hold, “we attach great weight” to the Guidelines.' Singleton v.

Jackson Municipal Separate School District, 5 Cir. 1965, 348 F.2d 729 (Singleton I). “[W]e put these standards to work. * * * [Plans should be] modeled after the Commissioner of Education's requirements * * *. [Exceptions to the guidelines should be] confined to those rare cases presenting justiciable, not operational, questions. * * * The applicable standard is essentially the HEW formulae.” Price v. Denison Independent School District, 5 Cir. 1965, 348 F.2d 1010. “[W]e consider it to be in the best interest of all concerned that School Boards meet the minimum standards of the Office of Education * * *.

In certain school districts and in certain respects, HEW standards may be too low to meet the requirements established by the Supreme Court and by this Court * * *. [But we also] consider it important to make clear that * * * we do not abdicate our judicial responsibility for determining whether a school desegregation plan violates federally guaranteed rights.” Singleton v. Jackson Municipal Separate School District, 5 Cir. 1966, 355 F.2d 865 (Singleton II). In Davis v.

Board of School Commissioners of Mobile County, 5 Cir. 1966, 364 F.2d 896, the most recent school case before this Court, we approved Singleton I and II and Price v. Denison and ordered certain changes in the school plan in conformity with the HEW Guidelines. Courts in other circuits are in substantial agreement with this Court. In Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14, 18-19, the Court said: “The Court agrees that these [HEW] standards must be heavily relied upon * * *. [T]he courts should endeavor to model their standards after those promulgated by the executive.

They are not bound, however, and when circumstances dictate, the courts may require something more, less or different from the H.E.W. guidelines.” (Emphasis added.) Concurring, Judge Larson observed: “However, that 'something different’ should rarely, if ever, be less than what is contemplated by the H.E.W. standards.” 352 F.2d at 23. Smith v. Board of Education of Morrilton, 8 Cir. 1966, 365 F.2d 770 reaffirms that the Guidelines “are entitled to serious judicial deference”.

Although the Court of Appeals for the Fourth Circuit has not yet considered the effect of the HEW standards, district courts in that circuit have relied on the guidelines. See Kier v. County School Board of Augusta County, W.D.Va.1966, 249 F.Supp. 239; Wright v. County School Board of Greenville County, E.D.Va.1966, 252 F.Supp. 378; Miller v. Clarendon County School District No. 2, D.S.C., 253 F.Supp. 552, April 21, 1966.

In Miller, one of the most recent of these cases, the court said: The orderly progress of desegregation is best served if school sytems desegregating under court order are required to meet the minimum standards promulgated for systems that desegregate voluntarily. Without directing absolute adherence to the “Revised Statement” guidelines at this juncture, this court will welcome their inclusion in any new, amended, or substitute plan which may be adopted and submitted. In this circuit, the school problem arises from state action.

This Court has"! not had to deal with nonracially motivated de facto segregation, that is, racial imbalance resulting fortuitously in a school system based on a single neighborhood school serving all white and Negro children in a certain attendance area or neighborhood. For this circuit, the HEW Guidelines offer, for the first time, the prospect that the transition from a de jure segregated dual system to a unitary integrated system may be carried out effectively, promptly, and in an orderly manner. See Appendix B, Rate of Change and Status of Desegregation. II.

We read Title VI as a congressional mandate for change — change in pace and method of enforcing desegregation. The 1964 Act does not disavow court-supervised desegregation. On the contrary, Congress recognized that to the courts belongs the last word in any case or controversy. But Congress was dissatisfied with the slow progress inherent in the judicial adversary process.

Congress therefore fashioned a new method of enforcement to be administered not on a case by case basis as in the courts but generally,” by federal agencies operating on a national scale and having a special competence in their respective fields. Congress looked to these agencies to shoulder the additional enforcement burdens resulting from the shift to high gear in school desegregation. A. Congress was well aware that it was time for a change.

In the decade following Brown, court-supervised desegregation made qualitative progress: Responsible Southern leaders accepted desegregation as a settled constitutional principle. Quantitively, the results were meagre. The statistics speak eloquently. See Appendix B, Rate of Change and Status of Desegregation. In 1965 the public school districts in the consolidated cases now before this Court had a school population of 155,782 school children, 59,361 of whom were Negro.

Yet under the existing court-approved desegregation plans, only 110 Negro children in these districts, .019 per cent of the school population, attend formerly “white” schools. In 1965 there was no faculty desegregation in any of these school districts; indeed, none of the 30,-500 Negro teachers in Alabama, Louisiana, and Mississippi served with any of the 65,400 white teachers in -those states. In the 1963-64 school year, the eleven states of the Confederacy had 1.17 per cent of their Negro students in schools with white students.

In 1964-65, undoubtedly because of the effect of the 1964 Act, the percentage doubled, reaching 2.25. For the 1965-66 school year, this time because of HEW Guidelines, the percentage reached 6.01 per cent. In 1965-66 the entire region encompassing the Southern and border states had 10.9 per cent of their Negro children in school with white children; 1,555 biracial school districts out of 3,-031 in the Southern and border states were still fully segregated; 3,101,043 Negro children in the region attended all-Negro schools.

Despite the impetus of the 1964 Act, the states of Alabama, Louisiana, and Mississippi, still had less than one per cent of their Negro enrollment, attending schools with white students. The dead hand of the old past and the closed fist of the recent past account for some of the slow progress. There are other reasons — as obvious to Congress as to courts.

(1) Local loyalties compelled school officials and elected officials to make a public record of their unwillingness to act. But even school authorities willing to act have moved slowly because of uncertainty as to the scope of their duty to act affirmatively. This is attributable to (

a) a misplaced reliance on the Briggs dictum that the Constitution “does not require integration”, (

b) a misunderstanding of the Brown II mandate, desegregate with “all deliberate speed”, and (

c) a mistaken notion that transfers under the Pupil Placement Laws satisfy desegregation requirements.

(2) Case by case development of the law is a poor sort of medium for reasonably prompt and uniform desegregation. There are natural limits to effective legal action. Courts cannot give advisory opinions, and the disciplined exercise of the judicial function properly makes courts reluctant to move forward in an area of the law bordering the periphery of the judicial domain.

(3) The contempt power is ill-suited to serve as the chief means of enforcing desegregation. Judges naturally shrink from using it against citizens willing to accept the thankless, painful responsibility of serving on a school board.

(4) School desegregation plans are often woefully inadequate; they rarely provide necessary detailed instructions and specific answers to administrative problems. And most judges do not have sufficient competence — they are not educators or school administrators — to know the right questions, must less the right answers.

(5) But one reason more than any other has held back desegregation of public schools on a large scale. This has been the lack, until 1964, of effective congressional statutory recognition of school desegregation as the law of the land. “Considerable progress has been made * * *.

Nevertheless, in the last decade it has become increasingly clear that progress has been too slow and that national legislation is required to meet a national need which becomes ever more obvious.” Title VI of the Civil Rights Act of 1964, therefore, was not only appropriate and proper legislation under the Thirteenth and Fourteenth Amendments ; it was necessary to rescue school desegregation from the bog in which it had been trapped for ten years.

The Civil Rights Commission, doubtless better able than any other authority to understand the significance of the Civil Rights Act of 1964, had this to say about Title VI: “This statute heralded a new era in school desegregation * * *. Most significantly *' * * Federal power was to be brought to bear in a manner which promised speedier and more substantial desegregation than had been achieved through the voluntary efforts of school boards and district-by-district litigation. * * * During fiscal year 1964, $176,546,992 was distributed to State and local school agencies in the 17 Southern and border States.

The passage of the Elementary and Secondary Education Act of 1965 added an additional appropriation of $589,946,-135 for allocation to the 17 Southern and border States for fiscal year 1966. With funds of such magnitude at stake, most school systems would be placed at a serious disadvantage by termination of Federal assistance.” B. The congressional mandate, as embodied in the Act and as carried out in the HEW Guidelines, does not conflict with the proper exercise of the judicial function or with the doctrine of separation of powers.

It does however profoundly affect constructive use of the judicial function within the lawful scope of sound judicial discretion. When Congress declares national policy, the duty the two other coordinate branches owe to the Nation requires that, within the law, the judiciary and the executive respect and carry out that policy. Here the Chief Executive acted promptly to bring about uniform standards for desegregation. The judicial branch too should cooperate with Congress and the executive in making administrative agencies effective instruments for supervising and enforcing desegregation of public schools.

Justice Harlan F. Stone expressed this well: “Legislatures create administrative agencies with the desire and expectation that they will perform efficiently the tasks committed to them. That, at least, is one of the contemplated social advantages to be weighed in resolving doubtful construction.

Its aim is so obvious as to make unavoidable the conclusion that the function which courts are called upon to perform, in carrying into operation such administrative schemes, is constructive, not destiuetive, to make administrative agencies, whenever reasonably possible, effective instruments for law enforcement, and not to destroy them.” In an analogous situation involving enforcement of the Fair Labor Standards Act, the Supreme Court has said, “Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons.” Skidmore v.

Swift & Co., 1944, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124. In an appeal from the district court’s denial of an injunction to enforce labor standards under the Act this Court has pointed out: “ * * * this proceeding is only superficially related to a suit in equity for an injunction to protect interests jeopardized in a private controversy. The public interest is jeopardized here.

The injunctive processes are a means of effecting general compliance with national policy as expressed by Congress, a public policy judges too must carry out — actuated by the spirit of the law and not begrudgingly as if it were a newly imposed fiat of a presidium. * * * Implicit in the defendants’ non-compliance, as we read the briefs and the record, is a certain underlying, not unnatural, Actonian distaste for national legislation affecting local activities. But the Fair Labor Standards Law has been on the books for twenty-three years.

The Act establishes a policy for all of the country, and for the courts as well as for the agency required to administer the law. Mitchell v. Pidcock, 5 Cir. 1962, 299 F.2d 281, 287, 288. C. We must therefore cooperate with Congress and the Executive in enforcing Title VI. The problem is: Are the HEW Guidelines within the scope of the congressional and executive policies embodied in the Civil Rights Act of 1964. We hold that they are. The Guidelines do not purport to be a rule or regulation or order. They constitute a statement of policy under

section 80.4(

c) of the HEW Regulations issued after the President approved the regulations December 3, 1964. HEW is under no statutory compulsion to issue such statements. It is, however, of manifest advantage to school boards throughout the country and to the general public to know the criteria the Commissioner uses in determining whether a school meets the requirements for eligibility to receive financial assistance. The Guidelines have the vices of all administrative policies established unilaterally without a hearing.

Because of these vices the courts, as the school boards point out, have set limits on administrative regulations, rulings, policies, and practices: an agency construction of a statute cannot make the law; it must conform to the law and be reasonable. To some extent the administrative weight of the declarations depends on the place of such declarations in the hierarchy of agency pronouncements extending from regulations down to general counsel memoranda and inter-office decisions. See Manhattan General Electric Company v. Commissioner, 1936, 297 U.S. 129, 56 S.Ct. 397, 80 L.Ed. 528; United States v.

Bennett, 5 Cir. 1951, 186 F.2d 407; United States v. Mississippi Chemical Corporation, 5 Cir., 1964, 326 F.2d 569; Chattanooga Auto Club v. Commissioner of Internal Revenue, 6 Cir. 1950, 182 F.2d 551. These and similar decisions are not inconsistent with the courts’ giving great weight to the HEW’s policy statements on enforcement of Title VI. In Skidmore v.

Swift & Co., 323 U.S. 134, 65 S.Ct. 161, an action was commenced in a federal district court by employees of Swift & Co. to recover wages at the overtime rates prescribed by the Fair Labor Standards Act (52 Stat.1060, et seq.) for certain services which they had performed. At issue was whether these services constituted “employment” within the meaning of

section 7(

a) of that act. The district court and this Court, on appeal, decided this issue against the plaintiffs. The Supreme Court reversed. After acknowledging (323 U.S. at 137, 65 S.Ct. at 163) that the statute had granted no rule-making power to the Wage and Hour Administrator with respect to the issue at hand (“[i]nstead, it put this responsibility on the courts”), the Court referred to an “Interpretative Bulletin” issued by the Administrator containing his

interpretation of the statutory phrase in question. The Supreme Court said: “We consider that the rulings,

interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.

The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” The Supreme Court found that the lower courts had misunderstood their function vis-a-vis the Interpretative Bulletin and remanded the case. See also, United States v. American Trucking Association, 1940, 310 U.S. 534, 543, 549, 60 S.Ct. 1059, 84 L.Ed. 134; Goldberg v. Sorvas, 1 Cir. 1961, 294 F.2d 841, 847.

It is evident to anyone that the Guidelines were carefully formulated by educational authorities anxious to be faithful to the objectives of the 1964 Act. To the members of this Court, who for years have gone to bed and waked up with school segregation problems on their minds, it is evident that the HEW standards are strikingly similar to the standards the Supreme Court and this Court have established. The Guidelines, therefore, are not run-of-the-mine agency pronouncements low in the hierarchy of administrative declarations. They are not regulations requiring the approval of the President.

They may be described as a restatement of the judicial standards applicable to disestablishing de jure segregation in the public schools. Courts therefore should cooperate with the congressional-executive policy in favor of desegregation and against aiding segregated schools. D. Because our approval of a plan establishes eligibility for federal aid, our standards should not be lower than those of HEW.

Unless judicial standards are substantially in accord with the Guidelines, school boards previously resistent to desegregation will resort to the courts to avoid complying with the minimum standards HEW promulgates for schools that desegregate yoluntarily. As we said in Singleton I: “If in some district courts judicial guides for approval of a school desegregation plan are more acceptable to the community or substantially less burdensome than H.E.W. guides, school boards may turn to the federal courts as a means of circumventing the H.E.W. requirements for financial aid.

Instead of a uniform policy relatively easy to administer, both the courts and the Office of Education would have to struggle with individual school systems on ad hoc basis. If judicial standards are lower than H.E.W. standards, recalcitrant school boards in effect will receive a premium for recalcitrance; the more the intransigence, the bigger the bonus.” 348 F.2d at 731. In Kemp v.

Beasley, 8 Cir. 1965, 352 F.2d 14, the Court concluded: “[HEW] standards must be heavily relied upon. * * * Therefore, to the end of promoting a degree of uniformity and discouraging reluctant school boards from reaping a benefit from their reluctance the courts should endeavor to model their standards after those promulgated by the executive.” 352 F.2d at 18,19.

Concurring, Judge Larson, speaking from his experience as a district judge, pointed out that school boards which do not act voluntarily retard the desegregation process to the disadvantage of the individual’s constitutional rights. “Judicial criteria”, therefore, “should probably be more stringent” than HEW Guidelines: “A school board which fails to act voluntarily forces Negro students to solicit aid from the courts. This not only shifts the burden of initiating desegregation, but inevitably means delay in taking the first step.

As Judge Gibson observes, we are not here concerned with regulating the flow of Federal funds. Our task is to safeguard basic constitutional rights. Thus, our standards should be directed toward full, complete, and final realization of those rights.” 352 F.2d at 23. The announcement in HEW regulations that the Commissioner would accept a final school desegregation order as proof of the school’s eligibility for federal aid prompted a number of schools to seek refuge in the federal courts. Many of these had not moved an inch toward desegregation.

In Louisiana alone twenty school boards obtained quick decrees providing for desegregation according to plans greatly at variance with the Guidelines. We shall not permit the courts to be used to destroy or dilute the effectiveness of the congressional policy expressed in Title VI. There is no bonus for foot-dragging. E. The experience this Court has had in the last ten years argues strongly for uniform standards in court-supervised desegregation. The first school case to reach this Court after Brown v. Board of Education was Brown v. Rippy, 5 Cir. 1956, 233 F.2d 796.

Since then we have reviewed 41 other school cases, many more than once. The district courts in this circuit have considered 128 school cases in the same period. Reviewing these cases imposes a taxing, time-consuming burden on the courts not reflected in statistics. An analysis of the cases shows a wide lack of uniformity in areas where there is no good reason for variations in the

schedule and manner of desegregation. In some cases there has been a substantial time-lag between this Court’s opinions and their application by the district courts. In certain cases— cases we consider unnecessary to cite— there has even been a manifest variance between this Court’s decision and a later district court decision. A number of district courts still mistakenly assume that transfers under Pupil Placement Laws superimposed on unconstitutional initial assignment satisfy the requirements of a desegregation plan.

The lack of clear and uniform standards to govern school boards has tended to put a premium on delaying actions. In sum, the lack of uniform standards has retarded the development of local responsibility for the administration of schools without regard to race or color. What Cicero said of an earlier Athens and an earlier Rome is equally applicable today: In Georgia, for example, there should not be one law for Athens and another law for Rome.

Before HEW published its Guidelines, this Court had already established guidelines for school desegregation: to encourage uniformity at the district court level and to conserve judicial effort at both the district court and appellate levels. We did so by making detailed suggestions to the district courts. Lockett v. Board of Education of Musco-gee County, 5 Cir. 1964, 342 F.2d 225; Bivins v. Board of Education for Bibb County, 5 Cir. 1965, 342 F.2d 229; Armstrong v. Board of Education of Birmingham, 5 Cir. 1964, 333 F.2d 47; Davis v.

Board of School Commissioners of Mobile County, 5 Cir. 1964, 333 F.2d 53; Stell v. Savannah-Chatham County Board of Education, 5 Cir. 1964, 333 F.2d 55; Gaines v. Dougherty County Board of Education, 5 Cir. 1964, 334 F.2d 983. In other areas of the law involving recurrent problems of regional or national interest, this Court has also found guidelines advantageous. In United States v. Ward, 5 Cir. 1965, 349 F.2d 795, and United States v.

Palmer, 5 Cir. 1966, 356 F.2d 951, suits to enjoin registrars of voters from discriminating against Negroes, we attached identical proposed decrees for the guidance of district courts. See also Scott v. Walker, 5 Cir. 1966, 358 F.2d 561, one of a series of cases on the exclusion of Negroes from juries. F. We summarize the Court’s policy as one of encouraging the maximum legally permissible correlation between judicial standards for school desegregation and HEW Guidelines. This policy may be applied without federal courts’ abdicating their proper judicial function.

The policy complies with the Supreme Court’s increasing emphasis on more speed and less deliberation in school desegregation. It is consistent with the judiciary’s duty to the Nation to cooperate with the two other coordinate branches of government in carrying out the national policy expressed in the Civil Rights Act of 1964. III. The defendants contend that the Guidelines require integration, not just desegregation; that school boards have no affirmative duty to integrate.

They say that in this respect the Guidelines are contrary to the provisions of the Civil Rights Act of 1964 and to constitutional intent expressed in the Act. This argument rests on nothing that the TJnit- ed States Supreme Court held or said in Brown or in any other case. It rests on two glosses on Brown: the opinions in Briggs v. Elliott, E.D.S.C. 1955, 132 F. Supp. 776 and Bell v. School City of Gary, N.D.Ind.1963, 213 F.Supp. 819, aff’d, 7 Cir. 1963, 324 F.2d 209. Briggs, decided only six weeks after Brown II, is one of the earliest cases in this field of law.

The portion of the opinion most quoted is pure dictum. Briggs did not paraphrase the law as the Supreme Court stated it in Brown or as the law must be stated today in the light of Aaron v. Cooper, Rogers v. Paul and Bradley v. School Board. These and other decisions compel states •in this circuit to take affirmative action to reorganize their school systems by integrating the students, faculties, facilities, and activities. As for Bell, it is inapplicable to cases in this circuit, none of which involve de facto segregated schools.

Although the legislative history of the statute shows that the floor managers for the Act and other members of the Senate and House cited and quoted these two opinions they did so within the context of the problem of de facto segregration. A study of the Guidelines shows that the HEW standards are within the rationale of Brown and the congressional objectives of the Act. A. Briggs, an action to desegregate the public schools in Clarendon County, South Carolina, was one of the school cases consolidated with Brown v. Board of Education of Topeka, Kansas.

On remand, a distinguished court (Parker and Dobie, Circuit Judges, and Timmerman, District Judge) felt that it was important to “point out exactly what the Supreme Court has decided and what it has not decided.” The Court said: “It has not decided that the federal courts are to take over or regulate the public schools of the states. It has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend.

What it has decided, and all that it has decided, is that a statu may not deny to any person on account of race the right to attend any school that it maintains. * * * The Constitution, in other words, does not require integration. It merely forbids [segregation].” 132 F.Supp. at 777. Ten years later Clarendon County schools were still totally segregated. This Court and other courts, gratuitously for the most part, have often paraphrased or quoted with approval the Briggs dictum.

It is not surprising, therefore, that Briggs prompted Pupil Placement Laws, the most effective technique for perpetuating school segregation. And it is not surprising that school officials — the Briggs dictum dinned into their ears for a decade — have not now faced up to faculty integration. However, as this Court’s experience in handling school cases increased, the Court became aware of the frustrating effects of Briggs. In Singleton I we referred to the dictum as “inconsistent with Brown [II] and the later development of decisional and statutory law in the area of civil rights.” 348 F.2d at 730 n. 5.

In Singleton II we called it an “oversimplified” construction of Brown I. We added: “The Constitution forbids unconstitutional state action in the form of segregated facilities, including segregated public schools. School authorities, therefore, are under the constitutional compulsion of furnishing a single, integrated school system.” 355 F.2d at 869. Other federal courts have disapproved of the Briggs dictum.

The Briggs dictum may be explained as a facet of the Fourth Circuit’s now abandoned view that Fourteenth Amendment rights are exclusively individual rights and in school cases are to be asserted individually after each plaintiff has exhausted state administrative remedies. The Court disallowed class suits because Negro students who had not asked for transfers to white schools had not individually exhausted their remedies and were therefore not similarly situated with the plaintiffs. Thus in Carson v.

Warlick, 4 Cir. 1956, 238 F.2d 724, Judge John Parker, for the Court, stated: “There is no question as to the right of these [Negro] school children * * *. They [are to be] admitted, however, as individuals, not as a class or group; and it is as individuals that their rights under the Constitution are asserted. * * * [The] school board must pass upon individual applications made individually to the board. * * ” 238 F.2d at 729. In Covington v.

Edwards, 4 Cir. 1959, 264 F.2d 780, 783, the court commented that “the County board has taken no steps to put an end to the planned segregation”, but still held for the board for failure of the plaintiffs to exhaust their remedies and for filing the suit as a class action. As late as 1961, a district court observed: “It can fairly be said that what the children and their parents are still seeking is only a desegregation of the Caswell County School System rather than a protection of their own rights. .” Jeffers v. Whitley, M.D. N.C. Dec. 29, 1961, 7 Race Rel.L.Rep. 22, 24.

The Fourth Circuit moved away from this view, holding that administrative remedies need not be exhausted where the School Board’s past discriminatory practices made clear that exhaustion would be futile, or where there was no time to seek redress through proper administrative channels. Jeffers v. Whitley, 4 Cir. 1962, 309 F.2d 621; Green v. School Board of the City of Roanoke, 4 Cir. 1962, 304 F.2d 119. Green is particularly significant in its approval of a class suit to abolish discriminatory practices: “Even if limited to its narrowest

interpretation, it holds that after one Negro child exhausted his administrative remedies, he may bring suit on behalf of all children segregated in the school system. The other children do not have to follow individually the labyrinth of administrative steps in the pupil placement act.” Emerson, Haber & Dorsen 1668 (2d ed.1967). “[It] would be almost a cruel joke to say that admministrative remedies must be exhausted when it is known that such exhaustion of remedies will not terminate the pattern of a racial assignment.” Jackson v. School Board of City of Lynchburg, W.D.Va.1962, 201 F.Supp. 620. McNeese v.

Board of Education for School District 187, 1963, 378 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, put beyond debate the need to exhaust remedies and the right of Negro students to file a class action. See also Armstrong v. Board of Education of the City of Birmingham, 5 Cir. 1963, 323 F.2d 333, cert-denied sub. nom. Gibson v. Harris, 376 U.S. 908, 84 S.Ct. 661, 11 L.Ed.2d 606 (1964). In the sense that an individual pupil’s right under the equal protection clause is a “personal and present” right not to be discriminated against by being segregated, the dictum is a cliché.

The Fourteenth Amendment provides, “nor shall any State * * * deny to any person within its jurisdiction the equal protection of the laws”. The dictum would also be defensible, if the Briggs court had used the term “integration” to mean an absolute command at all costs that each and every Negro child attend a racially balanced school. But what is wrong about the dictum is more important than what is right about it.

What is wrong about Briggs is that it drains out of Brown that decision’s significance as a class action to secure equal educational opportunities for Negroes by compelling the states to reorganize their public school systems. All four of the original School Segregation cases were class actions and described as such in the opinions. 347 U.S. at 455, 74 S.Ct. 686. We do not minimize the importance of the Fourteenth Amendment rights of an individual, but there was more at issue in Brown than the controversy between certain schools and certain children.

Briggs overlook's the fact that Negroes collectively are harmed when the state, by law or custom, operates segregated schools or a school system with uncorrected effects of segregation. Denial of access to the dominant culture, lack of opportunity in any meaningful way to participate in political and other public activities, the stigma of apartheid condemned in the Thirteenth Amendment are concomitants of the dual educational system.

The unmalleable fact transcending in importance the harm to individual Negro children is that the separate school system was an integral element in the Southern State’s general program to restrict Negroes as a class from participation in the life of the community, the affairs of the State, and the mainstream of American life: Negroes must keep their place. “[Segregation is a group phenomenon.

Although the effects of discrimination are felt by each member of the group, any discriminatory practice is directed against the group as a unit and against individuals only as their connection with the group involves the anti-group sanction. * * * [As] a group-wrong * * * the mode of redress must be group-wide to be adequate.” Adequate redress therefore calls for much more than allowing a few Negro children to attend formerly white schools; it calls for liquidation of the state’s system of de jure school segregation and the organized undoing of the effects of past segregation.

" “Beyond [a child’s] personal right [under the Fourteenth Amendment] however, or perhaps as an aspect of it, the lower federal courts seem to be recognizing a right in Negro school children, enforceable at least by a class action, to have the school system administered free of an enforced policy of segregation irrespective of whether any colored pupil has been denied admission to any particular school on the ground of his race.” It is undoubtedly true that the intangible inadequacies of a segregated education harm the individual, but the Supreme Court treated these inadequacies as inherent attributes which prevail universally.

For example, the Court said: [Education] is the very foundation of good citizenship. Today it is a principle instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him, to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state (has undertaken to provide it, is a right which must be made available to all on equal terms 347 U.S. at 493, 74 S.

Ct. at 691. (Emphasis added.) Again, in a critical passage: To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. 347 U.S. at 494, 74 S.Ct. at 691. With this predicate it is not surprising that Brown II, a year after Brown I was decided, going beyond recognition of the “personal” right in the individual plaintiffs, fashioned a remedy appropriate for the class.

The Court imposed on the states the duty of furnishing an integrated school system, that is, the duty of “effectuating] a transition to a racially nondiscriminatory school system.” (Emphasis added.) In addition, Brown II subordinated the “present" right in the individual plaintiffs to the right of Negroes ;v3 a class to a unitary, nonracial system — some time in the future.

The central vice in a formerly de jure segregated public school system is apartheid by dual zoning: in the past by law, the use of one set of attendance zones for white children and another for Negro children, and the compulsory initial assignment of a Negro to the Negro school in his zone. Dual zoning persists in the continuing operation of Negro schools identified as Negro, historically and because the faculty and students are Negroes. Acceptance of an individual’s application for transfer, therefore, may satisfy that particular individual; it will not satisfy the class.

The class is all Negro children in a school district attending, by definition, inherently unequal schools and wearing the badge of slavery-separation displays. Relief to the class requires school boards to desegregate the school from which a transferee comes as well as the school to which he goes. It requires conversion of the dual zones into a single system. Faculties, facilities, and activities as well as student bodies must be integrated.

No matter what view is taken of the rationale in Brown I, Brown II envisaged the remedy following the wrong, the state’s correcting its discrimination against Negroes as a class, through separate schools, by initiating and operating a unitary integrated school system. The gradual transition the Supreme Court authorized was to allow the states time to solve the administrative problems inherent in that change-over. No delay would have been necessary if the right at issue in Brown had been only the right of individual Negro plaintiffs to admission to a white school.

Moreover, the delay of one year in deciding Brown II and the gradual remedy Brown II fashioned can be justified only on the ground that the “personal and present” right of the individual plaintiffs must yield to the overriding right of Negroes as a class to a completely integrated public education. . Although psychological harm and lack of educational opportunities to Negroes may exist whether caused by de facto or de jure segregation, a state policy of apartheid aggravates the harm.

Thus, Chief Justice Warren quoted with approval the finding of the district court in the Kansas case: “The impact [of the detrimental effect of segregation upon Negro children] is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn.

Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.” (Emphasis added.) Brown I, 347 U.S. at 494, 74 S.Ct. at 691.

The State, therefore, should be under a duty to take whatever corrective action is necessary to undo the harm it created and fostered. “State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.” (Emphasis added.) Cooper v. Aaron, 358 U.S. at 7, 78 S.Ct. at 1404. Some may doubt whether tolerance of de facto segregation is an unsubtle form of state action.

There can be no doubt as to the nature and effect of segregation that came into being and persists because of state action as part of the longstanding pattern to narrow the access of Negroes to political power and to the life of the community. In a school system the persons capable of giving class relief are_ of course its administrators. It is they who are under the affirmative duty to take corrective action toward the goal of one integrated system. As Judges Sobeloff and Bell said in their concurring opinion in Bradley v.

School Board of the City of Richmond, 4 Cir. 1965, 345 F.2d 310, 322: “ * * * the initiative in achieving desegregation of the public schools must come from the .school authorities. * * * Affirmative action means more than telling those who have long been deprived of freedom of educational opportunity. ‘You now have a choice.’ * * * It is now 1965 and high time for the court to insist that good faith compliance requires administrators of schools to proceed actively with their nontransferable duty to undo the segregation which both by action and inaction has been persistently pei'petuated. (Emphasis added.) In Northcross v.

Board of Education of the City of Memphis, 6 Cir. 1962, 302 F.2d 818, the defendants asserted, as the defendants assert here, that continued segregation is “voluntary on the part of Negro pupils and parents because they do not avail themselves of the transfer provisions.” The Court held: “The Pupil Assignment Law * * * will not serve as a plan to convert a biracial system into a nonracial one * * * Negro children cannot be required to apply for that to which they are entitled as a matter of right. * * * The burden rests with the school authorities to initiate desegregation * * * [The Board should submit] some realistic plan for the organization of their schools on a nonracial basis”. (Emphasis added.) In Dowell v.

School Board of Oklahoma City Public Schools, W.D.Okla.1965, 244 F.Supp. 971, 976, 978-979, aff’d, 10 Cir.

Jan. 23, 1967, 375 F.2d 158, the School Board in Oklahoma City had “superimposed” a geographic zone plan on “already existing residential segregation initiated by law.” The court held: A school board must “adopt policies that would increase the percentage of pupils who are obtaining a desegregated education. * * * [The] failure to adopt an affirmative policy is itself a policy, adherence to which, at least in this case, has slowed up * * * the desegregation process. * * * [W]here the cessation of assignment and transfer policies based solely on race is insufficient to bring about more than token change in the segregated system, the Board must devise affirmative action reasonably purposed to effectuate the desegregation goal.

This conclusion makes no new law.” The position we take in these consolidated cases is that the only adequate redress for a previously overt system-wide policy of segregation directed against Negroes as a collective entity is a system-wide policy of integration. In Singleton I the Court touched on the state’s duty to integrate: “In retrospect, the second Brown opinion clearly imposes on public school authorities the duty to provide an integrated school system. Judge Parker’s well-known dictum * * * should be laid to rest.

It is inconsistent with Brown and the later development of decisional and statutory law in the area of civil rights.” 348 F.2d at 730 n. 5. Three years before Singleton I this Court analyzed the problem in Potts v. Flax, 5 Cir. 1963, 313 F.2d 284. In that case the Court rejected a school board’s contention that a suit brought by two Negro parents was not a class action even though the record contained testimony that one parent was bringing the action only for his own children and not for other Negro children.

The Board contended that a court order was not needed because it was willing to admit any Negro child to a white school on demand of any Negro child. Judge Brown, speaking for the Court, said: “Properly construed the purpose of the suit was not to achieve specific assignment of specific children to any specific grade or school. The peculiar rights of specific individuals were not in controversy. It was directed at the system-wide policy of racial segregation. It sought obliteration of that policy of system-wide racial discrimination. * * *”’ Even before Potts v. Flax, in Bush v.

Orleans Parish School Board, 5 Cir. 1962, 308 F.2d 492, 499, the Court said: “In this aspect of [initial] pupil assignment [to segregated schools] the facts present a clear case where there is not only deprivation of the rights of the individuals directly concerned but deprivation of the rights of Negro school children as a class.

As a class, and irrespective of any individual’s right to be admitted on a non-racial basis to a particular school, Negro children in the public schools have a constitutional right to have the public school system administered free from an administrative policy of segregation.”’ See also Ross v. Dyer, 5 Cir. 1963, 312 F.2d 191, 194-95; Augustus v. Board of Public Instruction of Escambia County, 5 Cir. 1963, 306 F.2d 862, 869; Holland v. Board of Public Instruction of Palm Beach County, 5 Cir. 1958, 258 F.2d 730; Orleans Parish School Board v. Bush, 5 Cir. 1957, 242 F.2d 156.

Brown was an inevitable, predictable extension of Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, and McLaurin v. Oklahoma State Regents, 1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. Those cases involved separate but equal or identical graduate facilities. Factors “incapable of objective measurement” but crucial to a good graduate education were not available to segregated Negroes. These were the intangible factors that prevented the Negro graduate students from having normal contacts and association with white students. Apartheid made the two groups unequal.

In Brown I these same intangibles were found “[to] apply with added force to children in grade and high schools”; educational opportunity in public schools must be made available to all on equal terms. The Brown I finding that segregated schooling causes psychological harm and denies equal educational opportunities should not be construed as the sole basis for the decision. So construed, the way would be open for proponents of the status quo to attempt to show, on the facts, that integration may be harmful or the greater of two evils. Indeed that narrow view of Brown I has led several district courts into error.

We think that the judgment “must have rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed.” The relief Brown II requires rests on recognition of the principle that state-imposed separation by race is an invidious classification and for that reason alone is unconstitutional. Classifications based upon race are especially suspect, since they are “odius to a free people”. In short, compulsory separation, apartheid, is per se discriminatory against Negroes.

A number of post-Brown per curiam decisions not involving education make it clear that the broad dimensions of the rationale are not circumscribed by the necessity of showing harmful inequality to the individual. In these cases Negroes were separated from whites but were afforded equal or identical facilities. Relying on Brown, the Court ordered integration of the facility or activity. See also Anderson v. Martin, 1964, 375 U.S. 399, 402, 84 S.Ct. 454, 11 L.Ed.2d 430, 433, holding that compulsory designation of a candidate’s race on the ballot is unlawful.

The designation placed “the power of the State behind a racial classification that induces racial prejudice at the polls.” Bolling v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, provides further evidence of the breadth of the right recognized in Brown. There, because the case concerned the District of Columbia, the Court had to rely on the due process clause of the Fifth Amendment instead of the equal protection clause of the Fourteenth Amendment.

Going beyond any question of psychological harm or of the denial of equal educational opportunities to the individual, the Court concluded that racial classifications in public education are so unreasonable and arbitrary as to violate due process: “Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.

Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children * * * a burden that constitutes an arbitrary deprivation of their liberty.” 347 U.S. at 498, 74 S.Ct. at 694. (Emphasis added.) As in' the jury exclusion cases, when the classification is not “reasonably related to any proper governmental objective” equal protection and due process merge. If Brown has only the narrow meaning Briggs gives it the system of state-sanctioned segregated schools will continue indefinitely with only a little token desegregation.

White school boards, almost universal in this circuit, will be able to continue to say that their constitutional duty ends when they provide relief to the particular Negro children who, as individuals, claim their personal right to be admitted to white schools.

If the Briggs thinking should prevail, the dual system will, for all practical purposes, be maintained: white school officials in most key positions at the state and county levels; Negro faculties in Negro schools, white faculties in white schools; no white children or only a few white children of way-out parents in Negro schools; a few Negroes in some white schools; at best, tokenism in pertain school districts. Brown’s broad meaning, its important meaning, is its revitalization of the national constitutional right the Thirteenth, Fourteenth, and Fifteenth Amendments created in favor of Negroes.

This is the right of Negroes to national citizenship, their right as a class to share the privileges and immunities only white citizens had enjoyed as a class. Brown erased Dred Scott, used the Fourteenth Amendment to breathe life into the Thirteenth, and wrote the Declaration of Independence into the Constitution. Freedmen are free men. They are created as equal as are all other American citizens and with the same unalienable rights to life, liberty, and the pursuit of happiness. No longer “beings of an inferior race” — the Dred Scott

article of faith— Negroes too are part of “the people of the United States”. A primary responsibility of federal courts is to protect nationally created constitutional rights. A duty of the States is to give effect to such rights —here, by providing equal educational opportunities free of any compulsion that Negroes wear a badge of slavery. The States owe this duty to Negroes, not just because every citizen is entitled to be free from arbitrary discrimination as a heritage of the common law or because every citizen may look to his state for equal protection of the rights a state grants its citizens.

As Justice Harlan clearly saw in the Civil Rights Cases (1883), 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, the Wartime Amendments created an affirmative duty that the States eradicate all relics, “badges and indicia of slavery” lest Negroes as a race sink back into “second-class” citizenship. B. The factual situation dealt with in Bell v. School City of Gary, N.D.Ind. 1963, 213 F.Supp. 819, aff’d 7 Cir. 1963, 324 F.2d 209, cert. den’d 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964) is not the situation the Supreme Court had before it in Brown or that we deal with in this circuit.

Brown dealt with state-imposed segregation based on dual attendance zones. Bell envolved non-racially motivated de facto segregation in a school system based on the neighborhood single zone system. In Bell the plaintiffs alleged that the Gary School Board had deliberately gerrymandered school attendance zones to achieve a segregated school system in violation of its “duty to provide and maintain a racially integrated school system”.

On the showing that the students were assigned and boundary lines drawn based upon reasonable nonracial criteria, the court held that the school board did not deliberately segregate the races; the racial balance was attributable to geographic and housing patterns. The court analyzed the problem in terms of state action rather than in terms of the Negroes’ right to equal educational opportunities. Finding no state action the court concluded that Brown did not apply. In effect, the court held that de facto segregated neighborhood schools must be accepted.

At any rate, the court said, “States do not have an affirmative, constitutional duty to provide an integrated education”. The Seventh Circuit affirmed. We must assume that Congress was well aware of the fact that Bell was concerned with de facto segregated neighborhood schools — only. Notwithstanding the broad language of the opinion relating to the lack of a duty to integrate, language later frequently quoted by Senator Humphrey and others in the debates on the Civil Rights Act of 1964, Congress went only so far as to prohibit cross-district bussing and cross-district assignment of students.

The facts, as found by the Court in Bell, favored the Gary School Board. Other courts, on very similar facts, have decided that there are alternatives to acceptance of the status quo. A commentator on the subject has fairly-summed up the cases: “Using Brown as a governing principle, racial imbalance caused by racially motivated conduct is clearly invalid. When racial imbalance results fortuitously, there is a split of authority.” Barksdale v.

Springfield School Committee, D.Mass.1965, 237 F.Supp. 543, similar on the facts to Bell, holds squarely contrary to Bell: “The defendants argue, nevertheless, that there is no constitutional mandate to remedy racial imbalance. Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963). But that is not the question. The question is whether there is a constitutional duty to provide equal educational opportunities for all children within the system.

While Brown answered that question affirmatively in the context of coerced segregation, the constitutional fact— the inadequacy of segregated education — is the same in this case, and I so find. * * * This is not to imply that the neighborhood school policy per se is unconstitutional, but that it must be abandoned or modified when it results in segregation in fact. * * I cannot accept the view in Bell that only forced segregation is incompatible with the requirements of the Fourteenth Amendment, nor do I find meaningful the statement that '[t~\he Constitution * * * does not require integration.

It merely forbids discrimination.’ 324 F.2d at 213. * * IT This court recognizes and reiterates that the problem of racial concentration is an educational, as well as constitutional, problem and, therefore, orders the defendants to present a plan no later than April 30, 1965, to eliminate to the fullest extent possible racial concentration in its elementary and junior high schools within the framework of effective educational procedures, as guaranteed by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.” (Emphasis added.) “In short, Barksdale [does not analyze Brown] in terms of propriety of school board action, but proceeds in terms of a right on the part of Negro students to an equal educational opportunity, which in light of the ruling in Brown that separate schools are inherently unequal, must perforce be a right to an integrated educational setting.” On appeal, the First Circuit accepted the district court’s findings of fact but vacated the order with directions to dismiss without prejudice because the school board, on its own initiative, had taken action identical with the court-ordered action. 348 F.2d 261.

The Court noted a difference between “the seeming absolutism” of the opinion and the less sweeping order “[to] eliminate [segregation] to the fullest extent possible * * * within the framework of effective educational procedures”. Taking both opinions together, they recognize that “the state would not be permitted to ignore the problem of de facto segregation.

The holding in Brown, unexplained by its underlying reasoning, requires no more than the decision in Bell, but when illuminated by the reasoning, it permits the result in Barksdale and may require that result.” At the very least, as the Barksdale court saw it, there is a duty to integrate in the sense that integration is an educational goal to be given a high, high priority among the various considerations involved in the proper administration of a system beset with de facto segregated schools.

Although Brown points toward the existence of a duty to integrate de facto segregated schools, the holding in Brown, unlike the holding in Bell but like the holdings in this circuit, occurred within the context of state-coerced segregation. The similarity of pseudo de facto segregation in the South to actual de facto segregation in the North is more apparent than real. Here school boards, utilizing the dual zoning system, assigned Negro teachers to Negro schools and selected Negro neighborhoods as suitable areas in which to locate Negro schools.

Of course the concentration of Negroes increased in the neighborhood of the school. Cause and effect came together. In this circuit, therefore, the location of Negro schools with Negro ¡ faculties in Negro neighborhoods and; white schools in white neighborhoods; cannot be described as an unfortunate. fortuity: It came into existence as state action and continues to exist as racial gerrymandering, made possible by the' dual system. Segregation resulting ?- from racially motivated gerrymandering! is properly characterized as “de jure”^ segregation. See Taylor v.

Board of Education of City School Dist. of the City of New Rochelle, S.D.N.Y.1961, 191 F. Supp. 181. The courts have had the power to deal with this situation since Brown I. In Holland v. Board of Public Instruction of Palm Beach County, 5 Cir. 1958, 258 F.2d 730, although there was no evidence of gerrymandering as such, the court found that the board “maintained and enforced” a completely segregated system by using the neighborhood plan to take advantage of racial residential patterns. See also Evans v. Buchanan, D.Del.1962, 207 F.

Supp. 820, where, in spite of a genuflexion in the direction of Briggs, the Court found that there was gerrymandering of school districts superimposed on a preBrown policy of segregation. C. The defendants err in their contention that the HEW and the courts Cannot take race into consideration in establishing standards for desegregation. “[T]he Constitution is not this colorblind.” The Constitution is both col- or blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race.

In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to -undo the effects of past discrimination. TJie_ criterion is the relevancy of color to a legitimate governmental purpose. For example, jury venires must fépresent a cross-section of the community. Strauder v. State of West Virginia, 1880, 100 U.S. 303, 25 L.Ed. 664. The jury commissioners therefore must have a “conscious awareness of race in extinguishing racial discrimination in jury service”. Brooks v. Beto, 5 Cir. 1966, 366 F.2d 1.

Similarly, in voter registration cases we have used the “freezing principle” to justify enjoining the use of a constitutional statute whefe, in effect, the statute would perpetuate past racial discrimination against Negroes. United States v.

State of Louisiana, E.D.La.1963, 225 F.Supp. 353, aff’d 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709. “[I]t is unrealistic to suppose that the evils of decades of flagrant racial discrimination can be overcome by purging registration rolls of white voters. * * * [U]nless there' is some approbate way to equalize the present with the past, the injunctive prohibitions even in the most stringent, emphatic, mandatory terms prohibiting discrimination in the future, continues for many years a structure committing effectual political power to the already registered whites while excluding Negroes from this vital activity of citizenship.” United States v.

Ward, 5 Cir. 1965, 349 F.2d 795, 802. “An appropriate remedy * * * should undo the results of past discrimination as well as prevent future inequality of treatment.” United States v. Duke, 5 Cir. 1964, 332 F.2d 759, 768. If the Constitution were absolutely colorblind, consideration of race in the census and in adoption proceedings would be unconstitutional.

Here-race is relevant, because the governmental purpose is to offer Negroes equal educational opportunities The_means to that end, such asYxlisestablishing segregation among students, distributing the. better teachers equitably, equalizing facilities, selecting appropriate-locations for schools, and_ayo.iding,. resegregation must necessarily be ..based jm race. School officials have to know the racial composition of their school populations and the racial distribution within the school district.

The Courts and HEW cannot measure good faith or progress without taking race into account. “When racial imbalance infects a public school system, there is simply no way to alleviate it without consideration of race. * * * There is no constitutional right to have an inequality perpetuated.” Judge Sobeloff’s answer in Wanner v.

County School Board of Arlington County, 4 Cir. 1966, 357 F.2d 452, 454-455, is our answer in this case: “If a school board is constitutionally forbidden to institute a system of racial segregation by the use of artificial boundary lines, it is likewise forbidden to perpetuate a system that has been so instituted.

It would be stultifying to hold that a board may not move to undo arrangements artificially contrived to effect or maintain segregation, on the ground that this interference with the status quo would involve ‘consideration of race.’ When school authorities, recognizing the historic fact that existing conditions are based on a design to segregate the races, act to undo these illegal conditions — especially conditions that have been judicially condemned — their effort is not to be frustrated on the ground that race is not a permissible consideration.

This is not the ‘consideration of race’ which the Constitution discountenances. * * * There is no legally protected vested interest in segregation. If there were, then Brown v. Board of Education and the numerous decisions based on that case would be pointless. Courts will not say in one breath that public school systems may not practice segregation, and in the next that they may do nothing to eliminate it.” D. Under Briggs’s blessing, school boards throughout this circuit first declined to take any affirmative action that might be considered a move toward integration.

Later, they embraced the Pupil Placement Laws as likely to lead to no more than a little token desegregation. Now they turn to freedom of choice plans supervised by the district courts. As the defendants construe and administer these plans, without the aid of HEW standards there is little prospect of the plans ever undoing past discrimination or of coming close to the goal of equal educational opportunities. Moreover, freedom of choice, as now administered, necessarily promotes resegregation.

The only relief approaching adequacy is the conversion of the still-functioning dual system to a unitary, non-racial system — lock, stock, and barrel. If this process be “integration” according to the 1955 Briggs court, so be it. In 1966 this remedy is the relief commanded by Brown, the Constitution, the Past, the Present, and the wavy fore-image of the Future. IV. We turn now to the specific provisions of the Civil Rights Act on which the defendants rely to show that HEW violates the Congressional intent. These provisions are the amendments to Title IV and VI added in the Senate.

The legislative history of these amendments is sparse and less authoritative than usual because of the lack of committee reports on the amended version of the bill. A.

Section 401(

b) defines desegregation: “ ‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.” The affirmative portion of this definition, down to the “but” clause, describes the assignment provision necessary in a plan for conversion of a de jure dual system to a unitary, integrated system.

The negative portion, starting with “but”, excludes assignment to overcome racial imbalance, that is acts to overcome de facto segregation. As used in the Act, therefore, “desegregation” refers only to the disestablishment of segregation in de jure segregated schools. Even if a broader meaning should be given to “assignment * * * to overcome racial imbalance”,

Section 401 would not mean that such assignments are unlawful: “The intent of the statute is that no funds and no technical assistance will be given by the United States Commissioner of Education with respect to plans for the assignment of students to public schools in order to overcome racial imbalance. The statute may not be interpreted to mean that such assignment is illegal or that reasonable integration efforts are arbitrary or unlawful. The prohibition against assignment of students to overcome racial imbalance was added as an amendment during the debates in the House to achieve the same result as the anti-bussing provision in

section 407. Some of the difficulty in understanding the Act and its legislative history arises from the statutory use of the undefined term “racial imbalance”. It is clear however from the hearings and debates that Congress equated the term, as do the commentators, with “de facto segregation” that is, non-racially motivated segregation in a school system based on a single neighborhood school for all children in a definable area.

Thus, Congressman William Cramer who offered the amendment, was concerned that the bill as originally proposed might authorize the government to require bus-sing to overcome de facto segregation.

In explaining the amendment, he said: “In the hearings before the committee I raised questions on ‘racial imbalance’ and in the sub-committee we had lengthy discussions in reference to having these words stricken in the title, as it then consisted, and to strike out the words ‘racial imbalance’ proposed by the administration, ft The purpose is to prevent any semblance of congressional acceptance or approval of the concept of ‘de facto’ segregation or to include in the definition of ‘desegregation’ any balancing of school attendance by moving students across school district lines to level off percentages where one race outweighs another.” The neighborhood school system is rooted deeply in American culture.

Whether its continued use is constitutional when it leads to grossly imbalanced schools is a question some day to be answered by the Supreme Court, but that question is not present in any of the cases before this Court. As noted in the previous

section of this opinion, we have many instances of a heavy concentration of Negroes or whites in certain areas, but always that type of imbalance has been superimposed on total school separation. And always the separation originally was racially motivated and sanctioned by law in a system based on two schools within a neighborhood or overlapping neighborhoods, each school serving a different race. The situations have some similarity but they have different origins, create different problems, and require different corrective action.

In the 1964 Act (and again in 1966 during consideration of amendments to the Elementary and Secondary Education Act of 1965) Congress, within the context of debates on aid to de facto segregated schools declined to decide just what should be done about imbalanced neighborhood schools.® The legislative solution, if there is one to this problem, will require a carefully conceived and thoroughly debated comprehensive statute. In the 1964 Act Congress simply directed that the federal assistance provided in Title IV, §§ 403-405 was not to be used for developing plans to assign pupils to overcome racial imbalance.

Similarly, Congress withheld authorizing the Attorney General, in school desegregation actions, to ask for a court order calling for bussing pupils from one school to another to “achieve

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