The opinion
*671 McMILLAN, District Judge
(concurring in part and dissenting in part):
The majority decision, in part, remands these cases to single district judges for determination of any procedural due process questions remaining in Webster v. Perry, and for determination of the challenge made in both Perry and Dunlap to alleged racially discriminatory application of North Carolina General Statutes § 115-147. In those judgments I concur.
The majority decision also retains jurisdiction over, but refrains from deciding, the questions, squarely presented to this three-judge court, whether N.C.G.S. § 115-147 violates the United States Constitution because (a) it is vague and overbroad, failing to give fair notice of its requirements to reasonable men, and (b) it denies equal protection of laws by classifying some students as not being entitled to public education, without either a compelling state interest or a rational basis. The majority recognizes these serious issues as “normally appropriate for determination by a three-judge district court.” However, they abstain from decision of the federal constitutional claims pending an assumed decision of the state constitutional issues, in a state court action which does not exist, and on which time for filing suit as of right may have long since expired.
When the cases were argued, I had not fully considered the evidence and had no strong views about what our decision should be. Decision on the merits will not be easy; the issues are complex and precedent scarce; and the temptation to postpone is strong. However, after prolonged review of the facts and the relevant statutes, and with all due regard and respect for the considerations so well expressed in the majority opinion, I have come to the view that in spite of the difficulties, this court should face the federal constitutional issues and decide them on their merits rather than postpone them under the aegis of abstention.
I therefore respectfully dissent from this court’s decision not to decide the constitutionality of the challenged statutes.
All of the plaintiffs are indigents.
All of the plaintiffs are black.
All of the plaintiffs got in trouble at school and have “lost out” of the conventional public education process and have been effectively excluded from it.
All of the plaintiffs are labeled as problem children, on their way to becoming problem adults; they are obviously in need of all the improvement the state can give them, and the state needs for them to have it. Public education may be the last chance for society to aid them effectively.
So few whites have been similarly excluded from school during the relevant period that a strong inference arises that the exclusion statute has been used and may be used discriminatorily against black students.
No state suit to challenge the expulsions and thus to test the relevant state constitutional issues is pending.
No such challenge can be made in North Carolina, by any child, except by filing a special petition in the Superior Court of Wake County in Raleigh. That court is one hundred and forty miles from Charlotte, over one hundred miles from Winston-Salem, and three hundred and fifty miles or so from the western end of North Carolina.
No such petition can be filed, even in Wake County, after the expiration of thirty days from notice of the challenged school board decision, except for “good cause” shown and in the discretion of a Superior Court judge, under North Carolina General Statutes § 143-309.
To abstain, then, is to defer to a theory rather than to an alternative right; these plaintiffs may have no right to require the state courts even to consider their plea.
Abstention, however rationalized, is a withholding or postponement of the pow *672 er and duty of a court to do justice. In practice it has often resulted in the delay or denial of constitutional rights of the unpopular or the minority. It was conceived in Railroad Comm. v. Pullman Co., 312 U.S. 496, 498 , 61 S.Ct. 643, 644 , 85 L.Ed. 971 (1941) to avoid deciding a “substantial constitutional issue,” raised by a complaint which
“ . . . touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.”
The “sensitive area of social policy” was race — racial discrimination in employment of Pullman porters and conductors. There have, of course, been a number of later abstentions, including, for example, abstention from decision of problems, sui generis, arising out of game inspection procedures in Alaska (Reetz v. Bozanich, 397 U.S. 82 , 90 S.Ct. 788 , 25 L. Ed.2d 68 (1970)) and problems of sanitation on the Great Lakes (Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498, 510 , 92 S.Ct. 1749 , 32 L.Ed.2d 257 (1972)). However sensitive, racial discrimination in state public schools (Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954)), or public employment is not today judicially off-limits; the cases before us include specific allegations and evidence of racial discrimination in the application of the statute. As one of the single judges who will have to pass on those issues of discrimination, I for one would welcome the previous attention of this court to the underlying issue of the constitutionality of the statute itself which this suit squarely raises.
Moreover, the majority opinion in this context extends and enlarges the abstention doctrine; trial courts should not take such a pioneer role in expanding that theory.
Avoiding unnecessary friction with state courts is a pleasant ideal; however, since there is no state court suit pending, there is no state court friction to avoid; the only friction thus far generated is between plaintiffs, who seek alleged constitutional rights, and defendants, who are charged with denying them. I would not seek the illusory Nirvana of friction-free judging at the cost of denial or even delay of constitutional right.
Chief Justice Burger, dissenting in Hughes Tool Co. v. TWA, 409 U.S. 363 , 93 S.Ct. 647 , 34 L.Ed.2d 577 (1973), rehearing denied, 410 U.S. 975 , 93 S.Ct. 1434 , 35 L.Ed.2d 707 (1973), pointed out vividly the costs and expenses to corporate interests caused by refusal to decide issues squarely presented. Unlike Hughes Tool Co., this case does not involve a contest over $137 million, nor $7% million in attorneys’ fees; but in relation to the lives and fortunes of plaintiffs and of the defending school administrators, it may well be more important than the Hughes money is to Hughes.
Moreover, abstention pending possible litigation in state courts creates some pitfalls, not very well known nor well marked, for the plaintiffs. If they do not assert federal constitutional rights in the (presumed) state court suit, they materially weaken their chances of success there. On the other hand, if they do put their best foot forward and assert federal constitutional rights in the state courts, the decision of the state courts on those federal rights will apparently be res judicata in this court, England v. Louisiana, 375 U.S. 411 , 84 S.Ct. 461 , 11 L.Ed.2d 440 (1964) ; Roy v. Jones, 484 F.2d 96 (3rd Cir. 1973); and the only remaining chance of a thorough review by a federal court of these federal claims would be in the unlikely event that the Supreme Court accepts jurisdiction on appeal or certiorari from the state court and conducts a full hearing and decides the issues on their merits. Litigants should not be thus forced, at their peril, to make such an unnecessary election with respect to rights *673 guaranteed by the United States Constitution.
It is time to re-invigorate John Marshall’s credo, veneered by time, “abstention,” “pragmatism,” “standing” and “thieketeering,” but still viable, that:
“It is most true, that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” Cohens v. Virginia, 19 U. S. (6 Wheat.) 264 , 404, 5 L.Ed. 257 (1821). (Emphasis added.)
The hard issue was put by Professor Herbert Wechsler this way:
“[T]he only proper judgment that may lead to an abstention from decision is that the Constitution has committed the determination of the issue to another agency of government than the courts. Difficult as it may be to make that judgment wisely, whatever factors may be rightly weighed in situations where the answer is not clear, what is involved is in itself an act of constitutional interpretation, to be made and judged by standards that should govern the interpretive process generally. That, I submit is toto cáelo different from a broad discretion to abstain or intervene.” Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harvard Law Review 1, 9 (1959).
With all due courtesy to the theories advanced to support the abstention doctrine, I do not believe those theories should be applied to these hard facts; I would decide the ease on its merits.