The opinion
WILLIAM HAROLD COX, District Judge
(dissenting).
The majority opinion herein impels my dissent, with deference, to its general theme, that precedent required the public schools to mix the races rather than desegregate such schools by removing all effects of state action which may have heretofore compelled segregation, so as to permit these schools to be operated upon a proper free choice plan. This Court has heretofore firmly and soundly (as decision and not gratuitously) committed itself to the views expressed by the distinguished jurists in Briggs v. Elliott, 132 F.Supp. 776 . The majority now seeks to critici2;e the Briggs case and disparage it as dictum, although this Court in several reported decisions has embraced and adopted Briggs with extensive quotations from it as the decisional law of this Circuit. Surely, only two of the judges of this Court may not now single-handedly reverse those decisions and change such law of this Circuit.
These school cases all stem from the decision of the Supreme Court of the United States in the familiar Brown *906 cases. 1 Nothing was said in those cases or has since been said by the Supreme Court to justify or support the extremely harsh plan of enforced integration devised by the majority decision. Significantly, there is nothing in the Civil Rights Act of 1964 to suggest the propriety of this Court adopting and following any guidelines of the Health, Education and Welfare Commissioner in these school desegregation cases in such respect. The policy statement of Congress as contained in the act itself expressly disclaims any intention or purpose to do that which these guidelines, and the majority opinion approving them, do in complete disregard thereof.
No informed person at this late date would now argue with the soundness of the philosophy of the Brown decision. That case simply declared the constitutional right of negro children to attend public schools of their own free choice without any kind of restraint by state action. That Court has made it clear that the time for “deliberate” speed in desegregating these public schools has now expired, but the majority opinion herein is the first to say that the Brown case, together with the Civil Rights Act of 1964, makes it necessary that these public schools must now integrate and mix these schools and their facilities, “lock, stock and barrel.” That view comes as a strange construction of the Fourteenth Amendment rights of colored children. The passage of time since the rendition of the Brown case; and of natural disparities which are found in so many school plans before the Court; and the difficult problems posed before the Court by such plans certainly can provide no legal justification or basis for this extreme view and harsh and mailed fist decision at this time. These questions involving principles of common sense and
law are readily resolved by a court of equity without being properly accused of giving an advisory opinion. The decision in such case is not overtaxing on a court of equity and its articulated conclusions can be implemented by an enforceable decree even at the expenditure of some well spent time, patience and energy of the Court. If a Court is to write a decree, it should be the decree of that Court and not the by-product of some administrative agency without knowledge or sworn obligation to resolve sacred constitutional rights and principles. Unilaterally prepared guidelines allegedly devised by the Commissioner may or not accord with his own views, but such an anomalously prepared document could not justify this Court in adopting it “lock, stock and barrel” under any pretext and even with repeated disavowals of such intention or purpose.
The Constitution of the United States is not the dead hand of the past strangling the liberties of a free people; it is a living document designed for all time to perpetuate liberty, freedom and justice for every person, young or old, who is born under or who comes within its protecting shield. As was said many years ago, “in moving water there is life, in still waters there is stagnation and death.” The Constitution was framed not for one era, but for all time. But when the Courts transform viability into elasticity, constitutional rights are illusory. The rope of liberty may be twisted and become a garrote which strangles those who seek its protection. If the majority opinion in these cases is permitted to stand, it will, in the name of protecting civil rights of some, destroy civil rights and constitutional liberties of all our citizens, their children and their children’s children.
*907 The Supreme Court, in Brown II, said that “[sjchool authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.” It thereupon became the duty of the Court, acting as a Court of Equity, under such principles to see that public schools, still operating under the dual system by state action, were desegregated (not integrated) in accordance with the vested constitutional right of colored children. Judicial haste and impatience cannot justify this Court in equating integration with desegregation. No Court up to this time has been heard to say that this Court now has the power and the authority to force integration of both races upon these public schools without regard to any equitable considerations, or the will or wish of either race. The decisions of this Court deserve and must have stability and integrity. It was the 1965 guidelines of HEW that were approved by this Court in Jerome Derek Singleton v. Jackson Municipal Separate School District, 355 F.2d 865 . Judge Wisdom wrote for the Court and Judge Thomberry concurred in that case on January 26, 1966; and there was not a word in that case to the effect that this Court then thought that any decision or statute or guidelines under any statute required or justified forced integration. Almost before that slip opinion reached the bound volume, this Court has now written on December 29, 1966, a vastly different opinion with no change intervening in the law.
The last reported school case from this Circuit, decided August 16, 1966 by Judge Tuttle and Judge Thornberry in Birdie Mae Davis, et al. v. Board of School Commissioners of Mobile County, et al., 364 F.2d 896 , this Court still wrote of accelerating a plan of desegregation. As if to foreshadow the point of Judge Wisdom’s “nettle” in the majority opinion in this case, Judge Tuttle wrote in his Note 1 an explanation of his changing requirements in these school cases for the delayed enjoyment of constitutional rights by accelerating desegregation. Davis said that negro children, as individuals, had the right to transfer to schools from which they were excluded because of their race, and said that this had been the law since the Brown decision; but that misunderstanding of that principle was perhaps due to the popularity “of an oversimplified dictum that the constitution ‘does not require integration’ [Briggs v. Elliott, E.D.S.C.1955, 132 F.Supp. 776, 777 ].” That is the first and only expressed criticism of Briggs found among the decisions of this Circuit, but the Court did not comment upon the viability and soundness of the many decisions of this Circuit which wholeheartedly embraced and repeatedly reaffirmed the so-called dicta in Briggs. Davis dealt with an urban area in Mobile, Alabama, while these cases deal with small communities or rural schools but that could have no possible bearing on desegregation versus or as distinguished from immediate forced integration or mixing of these schools.
In Alfred Avery, Jr., a Minor by his Mother and Next Friend, Mrs. Alfred Avery, et al. v. Wichita Independent School District, et al., 241 F.2d 230 (1957), this Court said:
“The Constitution as construed in the School Segregation Cases, Brown v. Board of Education, 347 U.S. 483 , 74 S. Ct. 686 , 98 L.Ed. 873 ; Id., 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 , and Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 , forbids any state action requiring segregation of children in public schools solely on account of race; it does not, however, require actual integration of the races. As was well said in Briggs v. Elliott, D.C.E.D.S.C., 132 F.Supp. 776 , 777:
“ * * * it is important that we point out exactly what the Supreme Court has decided and what it has not decided in this case. 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 *908 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 state may not deny to any person on account of race the right to attend any school that it maintains. This, under the decision of the Supreme Court, the state may not do directly or indirectly; but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away from the people freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise of power by the state or state agencies, not a limitation upon the freedom of individuals.”
Again, this Court in Hilda Ruth Borders, a Minor, et al. v. Dr. Edwin L. Rip-py, et al., 247 F.2d 268 (1957) said: “The equal protection and due process clauses of the fourteenth amendment do not affirmatively command integration, but they do forbid any state action requiring segregation on account of their race or color of children in the public schools. Avery v. Wichita Falls Independent School District, 5 Cir., 1957, 241 F.2d 230, 233 . Pupils may, of course, be separated according to their degree of advancement or retardation, their ability to learn, on account of their health, or for any other legitimate reason, but each child is entitled to be treated as an individual without regard to his race or color.”
In a public housing case, participated in by Judge Wisdom, Queen Cohen v. Public Housing Administration, 5 Cir., 257 F.2d 73 , it is said: “Neither the Fifth nor the Fourteenth Amendment operates positively to command integration of the races, but only negatively to forbid governmentally enforced segregation.”
This Court in Sandra Craig Boson, et al. v. Dr. Edwin L. Rippy, et al., 285 F.2d 43 , said: “Indeed, this Court has adopted the reasoning in Briggs v. Elliott, D.C.E.D.S.C.1955, 132 F.Supp. 776 , relied on by the Sixth Circuit, and has further said: ‘The equal protection and due process clauses of the fourteenth amendment do not affirmatively command integration, but they do forbid any state action requiring segregation on account of their race or color of children in the public schools. Avery v. Wichita Falls Independent School District, 5 Cir., 1957, 241 F. 2d 230, 233 . Pupils may, of course, be separated according to their degree of advancement or retardation, their ability to learn, on account of their health, or for any other legitimate reason, but each child is entitled to be treated as an individual without regard to his race or color.’ Borders v. Rippy, 5 Cir., 1957, 247 F.2d 268, 271 .
“Nevertheless, with deference to the views of the Sixth Circuit, it seems to us that classification according to race for purposes of transfer is hardly less unconstitutional than such classification for purposes of original assignment to a public school.” It is that decision in Briggs v. Elliott, supra, which the majority here now seek to criticize and repudiate.
In Ralph Stell, et al. v. Savannah-Chatham County Board of Education, et al. (5 CA) 333 F.2d 55 , 59, in footnote 2 it is said: “No court has required a ‘compulsory racially integrated school system’ to meet the constitutional mandate that there be no discrimination on the basis of race in the operation of public schools. See Evers v. Jackson Municipal Separate School District, 5 Cir., 1964, 328 F.2d 408 , and cases there cited. The interdiction is against enforced racial segregation. Incidental integration, of course, occurs through the process of desegregation. Cf. Stone v. Board of Education of Atlanta, 5 Cir., 1962, 309 F.2d 638 .”
This Court in Darrell Kenyatta Evers, et al. v. Jackson Municipal Separate *909 School District, 328 F.2d 408 (1964) said: “This is not to say that the Fourteenth Amendment commands integration of the races in the schools, or that voluntary segregation is not legally permissible. See Avery v. Wichita Falls Ind. School Dist., 5 Cir., 1957, 241 F.2d 230 ; Rippy v. Borders, 5 Cir., 1957, 250 F.2d 690 ; Cohen v. Public Housing Administration, 5 Cir., 1958, 257 F.2d 73 , cert. den., 358 U.S. 928 , 79 S.Ct. 315 , 3 L.Ed.2d 302 ; Holland v. Board of Public Instruction, supra; and Shuttlesworth v. Birmingham Board of Education, supra. The Supreme Court did not hold otherwise in Brown v. Board of Education, 1954, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 .” The same teaching is expressed in a park ease from this Court, styled City of Montgomery, Alabama v. Georgia Theresa Gilmore, 277 F.2d 364 . In the many cases from this Court involving the race issue in public schools (there being some forty-one of them according to the majority opinion), not one of them speaks of any requirement or duty of the school to forcefully integrate the races, or to compel the races to mix with each other in public schools; but every one of them speak of desegregating such schools. The word desegregate does not appear in Webster’s New International Dictionary, Second Edition, Edited in 1950. But Webster’s New Collegiate Dictionary (a Merriam-Webster) defines desegregation as: “To free itself of any law, provision or practice requiring isolation of the members of a particular race in separate units, especially in military service or in education.”
In sum, there is no law to require one of these public schools to integrate or force mix these races in public schools. But these public schools, which have been heretofore segregated by state action, and operate under a dual system, should be required to remove every vestige of state influence toward segregation of the races in these schools; and these colored children should be fully advised of their constitutional right to attend public schools of their choice, completely without regard to race. Many problems exist and are created by the proper enforcement of desegregation plans that will assure a full sweep of real freedom of choice to these negro children, and this Court cannot by only two of its members become impatient as trail-blazers and rewrite the decisional law of this Circuit as my good friends have undertaken to do in this case.
Such a course would do violence to the ancient rule of Stare Decisis. In Don-nelly Garment Co. v. National Labor Relations Board, (8 CCA) 123 F.2d 215 : “It is a long-established rule that judges of the same court will not knowingly review, reverse or overrule each other’s decisions. Shreve v. Cheesman, 8 Cir., 69 F. 785, 790, 791 ; Plattner Implement Co. v. International Harvester Co., 8 Cir., 133 F. 376, 378, 379 . The necessity of such a rule in the interest of an orderly administration of justice is clear.” In Sanford Napoleon Powell v. United States, (7 CA) 338 F.2d 556 (1964), it is said: “Our decision in Lauer has been criticized. However, this decision is the law of this Circuit unless and until this Court (presumably sitting en banc) would determine otherwise or unless higher authority might so determine.”
Rule 25a of the Fifth Circuit provides for a rehearing in any case upon vote of a majority of the circuit judges in active service for any reason which appears to them to be sufficient in the particular case. Ordinarily, a hearing or rehearing en banc is not ordered except “when necessary to secure or maintain uniformity or continuity in the decisions of the Court, [etc.]” The majority opinion simply does not reflect the well considered and-firmly stated composite decision of this Circuit; and in that view, is not an accurate or proper statement of the law in this ease as it now exists in the Fifth Circuit.
The Civil Rights Act of 1964 (42 U.S. C., 1958 ed., § 2000c-6) refers to “desegregation in public education” and not to forced mixing or integration of the races. That same section states “provided that nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a *910 racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards.” The English language simply could not be summoned to state any more clearly than does that very positive enactment of Congress, that these so-called “guidelines” of this administrative agency are not sacrosanct expositions of school law (if so intended), but are actually promulgated and being used in opposition to and in violation of this positive statute. Contrary to the majority opinion, it was never the intention or purpose of the Congress to constitute the Commissioner of Health, Education and Welfare as the sidewalk superintendent of this Court in these school cases. On the contrary, 42 U.S.C., 1958 ed., § 2000c-2 provides that the Commissioner, only upon application of a school board, state, municipality, school district or other governmental unit, can render any technical assistance to such an applicant. Nowhere in that act is it contemplated that this court should abdicate its power and authority to act upon and decide a case on appeal to it as a court of equity, and simply decide it by rubber stamping one of the annual guideline bulletins of an administrative bureau of the United States in Washington. The attitude and position of this Court in doing exactly that in this case is not improved by disavowing any intention or purpose to do so.
There were seven consolidated cases before the Court which are embraced in this decision. Most, if not all, of the plans in those cases were defective and needed updating for a more realistic and effective application of the free choice principle under the former decisions of this Court; but they did not need or deserve the harsh and unprecedented treatment accorded these schools by the majority decision in these cases. The colored children are not befriended and their lot is not improved by this unprecedented majority opinion and the entire school system will suffer under the impact of this improvident administrative directive as thus adopted by this Court.
My duty impels me to file this dissent to the majority view in these cases with great deference to both of my distinguished associates.
. Brown I Brown v. Board of Education of Topeka, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 .
Brown II Brown v. Board of Education of Topeka, Kansas, 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 .
On December 6, 1965 in Patricia Rogers, et al. v. Edgar E. Paul, et al., 382 U. S. 198 , 86 S.Ct. 358 , the Court decried delays in desegregation of public schools and called for an acceleration of the process, but neither said nor intimated the existence of any power or the justification for any authority to forcefully mix or integrate these schools.