The opinion
ALBERT V. BRYAN, Circuit Judge
(dissenting in part).
The Court commands the Charlotte-Mecklenburg Board of Education to provide busing of pupils to its public schools for “achieving integration”. (Accent added.) “[Achieving integration” is the phraseology used, but actually, achieving racial balance is the objective. Busing to prevent racial imbalance is not as yet a Constitutional obligation. Therefore, no matter the prior or present utilization of busing for this or other reasons, and regardless of cost considerations or duplication of the bus routes, I think the injunction cannot stand.
Without Constitutional origin, no power exists in the Federal courts to order the Board to do or not to do anything. I read no authority in the Constitution, or in the implications of Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), and its derivatives, requiring the authorities to endeavor to apportion the school bodies in the racial ratio of the whole school system.
The majority opinion presupposes this racial balance and also busing to achieve it, as Constitutional imperatives, but the Chief Justice of the United States has recently suggested inquiry on whether “any particular racial balance must be achieved in the schools; * * * [and] to what extent transportation may or must be provided to achieve the ends sought by prior holdings of the Court.” See his memorandum appended to Northcross v. Board of Education of the Memphis, Tennessee, City Schools, 397 U.S. 232, 237 , 90 S.Ct. 891, 893 , 25 L.Ed.2d 246 (March 9, 1970.) *
*156 Even construed as only incidental to the 1964 Civil Rights Act, this legislation in 42 United States Code § 2000c-6 is necessarily revealing of Congress’ hostile attitude toward the concept of achieving racial balance by busing. It unequivocally decried in this enactment “any order [of a Federal court] seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another * * * to achieve such racial balance * * # t>
I would not, as the majority does, lay upon Charlotte-Mecklenburg this so doubtfully Constitutional ukase.
On remand the District Court in Northcross has held there was no Constitutional obligation to transport pupils to overcome a racial imbalance. Northcross v. *156 Board of Education of the Memphis City Schools, 312 F.Supp. 1150 (W.D.Tenn., May 1, 1970) (per McRae, J.). In the same Circuit, see, too, Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6 Cir. 1969).