The opinion
TUTTLE, Chief Judge
(concurring specially).
I, of course; join Judge Rives in the action taken on the appellants! motion for injunction pending appeal, and I join him in the order that is embodied in his opinion. I agree wholeheartedly with all that is said in his opinion, except as it bears on the relief that is to be granted in September, 1963.
It is now, as it has been from the start, the duty of the Board of Education to assume the primary responsibility putting an end to racially segregated schools. Brown v. Board of Education of Topeka (1955) 349 U.S. 294, 299 , 75 S.Ct. 753 , 99 L.Ed. 1083 . In a situation where such a board of education has completely failed to make such a start, and, fortuitously or otherwise, the first appealable order entered by a district court comes so late in the school year that the Board then attempts to say it is too late to do anything by the following school year, I think it is the duty of an appellate court to require a maximum effort by the Board to do what the law clearly requires of it, rather than to accept as a substitute for performance a plea that the Board has not made necessary preparation to permit orderly transition by the opening of the fall term of school.
I believe it would not be consistent with what this Court has previously required in other situations if I did not express the view, strongly held by me, that as a minimum the Board of Education of the City of Birmingham should be required by an injunction of the trial court to arrange that at least one grade of the public schools of that city be completely desegregated by the abolition of dual school zones pending the appeal of this case on the merits in this Court. See Stell v. Savannah-Chatham County Board of Education, et al., 5th Cir. No. 20557, 318 F.2d 425 and see Davis et al. v. Board of School Commissioners of Mobile County et al., 5th Cir., 322 F.2d 356 . Since, however, a majority of the court does not require this relief, I join in the order as written by my esteemed colleague, Judge Rives.