The opinion
ALBERT V. BRYAN, Circuit Judge
(dissenting):
I think the appellant School Board still has a lively and substantial concern: what control does it retain over the schools while the new plan is in the making? Further, I do not think the order disapproving the original school zoning, and granting a general injunction against racial discrimination, should meanwhile oust the Board of the power— indeed the responsibility — to exercise reasonable supervision over the schools.
The regulation instantly undertaken by the Board — and voided by the Court — ■ was the rejection of 15 applications for transfer because the schools requested therein were located far from the residences of these pupils. The Board had assigned them to schools nearby their homes, that is to their neighborhood schools, an entirely lawful basis of selection. Bell v. School City of Gary, Indiana, 324 F.2d 209 (7 Cir. Oct. 31, 1963), cert. denied, 84 S.Ct. 1223 (May 4, 1964). Furthermore, 7 of the applications had not been timely filed. That this assignment is sensible and this requirement is needed is undenied and undeniable, but the majority now holds they cannot be effectuated, during the pendency of the over-all plan, except by previously and specially obtained permission of the Court. The reverse, I think, should be the rule: regulation by the School Board continues until the Court deems it misdirected, for the bona fides of the Board is unquestioned.
These are current and pressing problems. Delineation of the remaining province of the Board should now be declared, at least to the lifting of the present circumscription.