The opinion
CRAVEN, Circuit Judge, with whom HAYNSWORTH, Chief Judge, and BRYAN, Circuit Judge,
join, concurring and dissenting:
I agree ,with the district court that the school board’s freedom of choice plan was inadequate and ineffective, as judged by the standard of Green v. New Kent County Board of Education, 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968), to dismantle its dual school sys *821 tem and establish a unitary one. I do not agree, however, with the district court’s approval of the desegregation plan proposed by the Department of Health, Education and Welfare.
As of September 1969, there were 2408 black students and 256 white students'enrolled in the system. Summer-ton Elementary School remained a virtually all-white school with 145 white students and 12 Negro students in attendance. Summerton High School was racially “desegregated” in a similar fashion with 111 white students and 16 Negro students. The other four schools in the system were 100 percent black. The school board’s freedom of choice plan has, therefore, resulted in token desegregation only.
Just as the school board plan has achieved too little, so also the HEW plan, approved by the district court and affirmed on appeal, attempts too much. If all of the 256 white students currently in the system remain there, and that seems doubtful as will be explained below, the result under the approved plan will be a heavy majority of black studens in each school with the percentage of white students in each school ranging from 5 percent to 17 percent. This may be “desegregation,” but it is not, in my opinion, “integration.” 1
It is true that constitutional principles may not be allowed to yield to community opposition. Monroe v. Board of Commissioners, 391 U.S. 450 , 88 S.Ct. 1700 , 20 L.Ed.2d 733 (1968); Walker v. County School Board of Brunswick County, 413 F.2d 53 (4th Cir. 1969). It is equally true, however, that judges in fashioning remedies cannot successfully ignore reality. I do not ‘suggest that the constitutional right of the black students in Clarendon District No. 1 to attend a non-racial school system may be disregarded. Quite the contrary, I . would attempt to implement that right as nearly as is physically possible by creating a system with two “integrated” schools rather than - a system with only “black” .schools. 2 The extreme remedy *822 proposed by HEW and approved by this court threatens to swallow up, rather than vindicate, the constitutional mandate for integrated schools in Clarendon District No. 1. There is reason, even beyond the ten to one ratio of black to white students in the district, to doubt that the HEW plan can ever be effective. In 1969, 110 white students fled the public school system in favor of a parochial private school in Summerton, leaving only 256 white students in the public schools. Counsel now advises in oral argument that approximately 100 more white students have made application to the parochial school for admission in September 1970. If this is a correct prognosis, it suggests to me that some degree of moderation in selecting a remedy is more likely to accomplish the desired result, a unitary, non-racial public school system, than is unyielding fidelity to the arithmetic of race. It will be ironic, and contrary to the spirit of Brown v. Board of Education of Topeka, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), if the result of application of the Brown constitutional principle in this case is simply to accomplish an all-black school system.
The threat of flight from the public school system ordinarily should not be allowed to influence the selection of the plan or its judicial approval. It is relevant here only because the whites constitute such a small minority. The crucial consideration, however, is that the approved plan will serve the constitutional purpose poorly even if the handful of whites remain to attend each of the schools, for they are so few that a distribution of them cannot succeed in altering the essentially black character of each school.
I would remand to the district court with instructions to require the school board to submit a pupil assignment plan attaining in one high school and in one elementary school an undiscriminating racial mix 3 to the extent feasible. Such a practical approach to the problem Would, I believe, greatly diminish the temptation to flee the system. Judging from experiences in other school systems, the parents of most white students would probably accept integration in the form of an educationally optimum racial mix and adjust to it rather than bear the financial burden of removing their children to a private school.
The principle that no child should be excluded from any school because of his race calls for some recognition of a right of choice here. No black child who wishes to attend one of the “white” schools should be excluded. If it appears that their number would be insufficient to produce integration, then other black children may be assigned involuntarily to those schools to bring the ratio up to an acceptable level. If a larger number of the black children wished to attend one of the “white” schools, however, I do not think any one of them could be excluded.
With that caveat, I believe that a remand with such directions would serve the basic constitutional principle much more faithfully than a random scattering of so small a minority of whites among all the schools, which thereafter will be all-black schools for all practical purposes whether or not the whites remain in the system.
From Dred Scott through Brown II and beyond 3a I read the social and constitutional history of the nation and its Negro citizens as does Judge Sobeloff *823 in his special concurrence. I think we grasp it the same way and even with the same hope for the future.
Perhaps my hope is too idealistic: that there can be achieved, even in Clarendon County, some degree of mutual respect, trust, confidence, even friendship, between black and white children. It won’t occur without their knowing each other, and coneededly there will be little contact under the HEW plan.
The living insult to black people inherent in segregation as one aspect of prejudice will be eradicated when black and white pepole come to know and understand each other as one people in one nation. In that endeavor I am unwilling to write off even one county in one state. I would keep the Brown principle and apply it to the maximum extent practicable in Clarendon County.
. The federal courts, when plunged into sociology and educational theory, are into something they know very little about. Dr. Thomas F. Pettigrew of Harvard University, who has a respectable social-psychology pedigree and who is a recognized expert in school integration, testified at great length about integration and desegregation in Brewer v. Norfolk City School Board (4th Cir. 1970). In the course of that testimony he distinguished “desegregation” from “integration”:
[Desegregation is the mere mix of bodies, black and white, in the same school * * *. And the word “integration” * * * presupposes desegregation * * * you couldn’t have it without the mix * * * but it is a statement about the quality of the mix, the kind of interaction of the children of the two races, and here I would want to put special emphasis on cross-racial acceptance. If you ask black children * * * of what race are your closest friends? It turns out in an integrated school that they say some — not all — of their closest friends are white. You ask the white children in the same school, and they say some— not all — of their closest friends are black.
Dr. Pettigrew further testified that “there does seem to be some optimum level for the achievement of both white and black children that drops after 35 or 40 [percent black students in the school is surpassed.]” Dr. Pettigrew has concluded that little advantage is gained for children of either race, and some harm may result, from placing children in a school where they are in a distinct racial minority. He expresses the viewpoint that courts have been too concerned with a body count by race and too little concerned with the advantages that may accrue in the optimum situation. “To speak of a balanced system in Washington, D. O.,” he testified, “where each school would reflect the ratio of 92 [black] to 8 [white], that is not what I mean by a real opportunity to generate integrated education.” Dr. Pettigrew advocates the establishment of an optimum 30 percent black to 70 percent white ratio in as many schools as possible through the use of educational parks and through disregard of traditional school district lines.
. In Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d 138 (4th Cir. May 26, 1970), Judge Butzner, speak- ' ing for three members of this court, said: “While a 60%-40% ratio of white to *822 black pupils might be desirable under some circumstances, rigid adherence to this formula in every school should not be allowed to defeat integration.” In my view, this is not a case where “integration” could be defeated by application of the optimum ratio, but a case where maximum “integration” can be achieved only by its application.
. See note 1, supra.
. Nothing I have said is intended to resurrect the Briggs dictum. Indeed, I confess authorship of the per curiam opinion in Walker v. Brunswick County School Board, 413 F.2d 53 , 54 n. 2 (4th Cir. 1969), that noted its death.