Full opinion text
RIVES, Circuit Judge. The submission is upon the appellants’ motion for an injunction pending appeal from the following judgment entered on the 28th day of May 1963: “In conformity with the memorandum opinion of the court contemporaneously entered herein, it is ORDERED, ADJUDGED and DECREED by the court that the injunc-tive relief for which plaintiffs pray in their own behalf and in behalf of others similarly situated be and the same is hereby denied. “It is further ORDERED, ADJUDGED and DECREED by the court that jurisdiction of this action is hereby retained for the purpose of permitting the filing of such supplemental complaint, if any, as might be entitled to be presented, in case of any unconstitutional application of the Alabama School Placement Law against the plaintiffs, or others similarly situated, or of any other unconstitutional action on the part of defendants against them. It is further ORDERED, ADJUDGED and DECREED by the court that the issues tendered by any supplemental, complaint will be given a preferred setting on the docket of this court and will be heard on five days’ notice to defendants.” The opinion of the court stated that: “This court will not sanction discrimination by them [the Superintendent and Board of Education] in the name of the placement law but it is unwilling to grant injunctive relief until their good faith has been tested. If it should be demonstrated that it has been unconstitutionally applied, under the settled authorities the court would be compelled to order the submission of a desegregation plan for its approval.” The district court affirmed that both the Superintendent and the Board had assured the court that regulations governing the assignment and transfer of pupils in the-Birmingham school system had been in effect since June 1958 for the purpose of implementing the Alabama law; and found that sufficient time remained before the opening of school in September 1963 for the processing of applications for assignments and transfers in behalf of interested individuals. The opinion further stated that after application for assignment or transfer was made by a pupil, or those authorized to act in his behalf, to the school board, judicial remedies for the denial of constitutional rights could be pursued at once in the United States District Court without pursuing state court remedies. The opinion continued: “Jurisdiction of this action will be retained for the purpose of permitting the filing of such supplemental complaint, if any, as might be entitled to be presented, in case of any unconstitutional application of the Alabama School Placement Law against the plaintiffs, or others similarly situated, or of any other unconstitutional action on the part of defendants against them. The issues tendered by any supplemental complaint will be given a preferred setting on the docket of this court and will be heard on five days notice to defendants.” The district court further mentioned the fact that the Superintendent and the Board had assured the court that “ * * they stand ready to comply with the law when any individual sets the administrative machinery in motion.” By affidavit of the Superintendent speaking on behalf of the Board filed in this Court, it is stated: “It [the Board] was and is now prepared to deal with the matter in a proper and orderly manner upon applications pursuant to the laws of Alabama and the decree of the District Court in this case.” In the course of its opinion the district court stated: “Before this court may grant injunctive relief, the administrative remedies provided therein [in the Alabama School Placement Law] must first have been exhausted.” That ruling was directly contrary to repeated decisions of this Court. See, among others, Gibson v. Board of Public Instruction of Dade County, 5 Cir. 1957, 246 F.2d 913, 914; on second appeal, 5 Cir. 1959, 272 F.2d 763, 767; Holland v. Board of Public Instruction of Palm Beach County, Fla., 5 Cir. 1958, 258 F.2d 730, 732. Mannings v. Board of Public Instruction, 5 Cir. 1960, 277 F.2d 370, 372, 373; Augustus v. Board of Public Instruction, 5 Cir. 1962, 306 F.2d 862, 869; Bush v. Orleans Parish School Board, 5 Cir. 1962, 308 F.2d 491, 499-501. The district court chose, instead, to rely upon a line of decisions from the Fourth Circuit, which, according to the district court, “continued to apply the doctrine of exhaustion of administrative remedies fairly and lawfully conducted.” In Gibson v. Board of Public Instruction, supra, 272 F.2d 763, 767, n. 5, we noted many of the same Fourth Circuit decisions and stated our understanding that they were not contrary to the decisions of this Fifth Circuit. In any event, on June 3, 1963, shortly after the district court’s decision, the Supreme Court of the United States put beyond debate the proposition that, in a school desegregation case, it is not necessary to exhaust state administrative remedies before seeking relief in the federal courts: “We have previously indicated that relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided a remedy. We stated in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492: “ Tt is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.’ “The cause of action alleged here is pleaded in terms of 42 U.S.C. § 1983 * * * “That is the statute that was involved in Monroe v. Pape, supra; and we reviewed its history at length in that case. 365 U.S. 171 et seq., 81 S.Ct. 473, 5 L.Ed.2d 492. The purposes were several fold — to override certain kinds of state laws, to provide a remedy where state law was inadequate, ‘to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice’ (id., 174, 81 S.Ct. 477), and to provide a remedy in the federal courts supplementary to any remedy any State might have. Id., 180-183, 81 S.Ct. 480-482. •*****•» “ * * * The right alleged is as plainly federal in origin and nature as those vindicated in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. Nor is the federal right in any way entangled in a skein of state law that must be untangled before the federal case can proceed. For petitioners assert that respondents have been and are depriving them of rights protected by the Fourteenth Amendment. It is immaterial whether respondents’ conduct is legal or illegal as a matter of state law. Monroe v. Pape, supra, 365 U.S. 171-187, 81 S.Ct. 475-484. Such claims are entitled to be adjudicated in the federal courts. Monroe v. Pape, supra, 365 U.S. at 183, 81 S.Ct. at 481; Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, affirming 142 F.Supp. 707; Borders v. Rippy, 5 Cir., 247 F.2d 268, 271. Cf., e. g., Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093 affirming 81 F.Supp. 872; Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762.” McNeese v. Board of Education for Community Unit School District 187, 83 S.Ct. 1433. The district court’s opinion referred to the reluctance of any Negro child “to take the initiative in bringing about the integration of the public schools.” The burden of initiating desegregation does not rest on Negro children or parents or on whites, but on the School Board. As said in Brown v. Board of Education, 1955, 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed. 1083: “Full implementation of these constitutional principles may require solution of varied local school problems. School 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.” The long-standing order of responsibility is “first the school authorities, then the local district court, and lastly the appellate courts.” Rippy v. Borders, 5 Cir. 1957, 250 F.2d 690, 693. Further, as we said recently in speaking of the Atlanta public schools: “Our decision must also be ren-deréd upon a consideration of the most recent pronouncements of the Supreme Court, Goss v. Board of Education of City of Knoxville, Tenn., supra [83 S.Ct. 1405], and Watson v. City of Memphis, 373 U. S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529, which make it plain that the time available for the transition from segregated to desegregated school systems is, with the passage of years since the Brown decisions, becoming more sharply limited. Indeed, we so stated in an opinion theretofore rendered on May 24, 1963. Davis v. Board of School Commissioners of Mobile County, 5 Cir., 318 F.2d 63.” Calhoun v. Latimer, 5 Cir., 321 F.2d 302. In the light of the foregoing well-established principles of law, we go to the undisputed facts as found by the district court:, “The white population of Birmingham is 205,620; the negro, 135,-627. There are 8 high schools designated ‘White’ with 409 teachers and 10,081 pupils; 5 high schools designated ‘Negro’ with 278 teachers and 6,748 pupils; 50 elementary schools designated ‘White’ with 781 teachers and 29,578 pupils; 42 elementary schools designated ‘Negro’ with 697 teachers and 26,967 pupils. Never at any time has a negro pupil been assigned or transferred to a school designated ‘White’ or a white pupil to a school designated ‘Negro.’ Without exception white instructional personnel have been assigned only to schools designated ‘White’ and negro instructional personnel only to schools designated ‘Negro.’ White schools are located with reference to the concentration of white population and negro schools with reference to the concentration of negro population. There are over-lappings in the geographical areas involved wherein there are white schools in closer proximity to the residences of negro pupils than negro schools. The reverse situation obtains with respect to white pupils. Notwithstanding, the custom, usage and practice historically followed, sanctioned and expected by Superintendent and Board to be followed presently, result in white pupils attending white schools and negro pupils negro schools. “To summarize, it graphically appears from the testimony of Dr. Theo R. Wright, Superintendent of Birmingham Public Schools, that he and the Birmingham Board of Education have operated a segregated school system based upon race in the past, are doing so now, and have formulated no plans to discontinue such an operation.” This litigation has now been pending for more than three years. There must, at the very minimum, be a good faith start toward according the plaintiffs and the members of the class represented by them their constitutional rights so long delayed. However, whether the delay which has already occurred is justified or not, it cannot be compensated by hasty or precipitate action under the order of this Court. Our action must be dictated by the concept of “deliberate speed” to the extent of not causing undue or unnecessary confusion in the administration of the Birmingham public schools to the injury of all of the pupils, white and black. In the case of the Pensacola, Florida, School System, we said on July 24, 1962, about a year ago: “It is probably too late, without undue confusion, to require the elimination as to any grade of such dual districts in time for the 1962 fall term.” Augustus v. Board of Public Instruction, 5 Cir. 1962, 306 F.2d 862, 869. This same thought now holds true as to the Birmingham public schools. We decline, therefore, to issue an injunction pending appeal which would go so far as to provide that the maintenance of separate schools for the Negro and white children of Birmingham shall be completely ended with respect to any grade, or when and how the complete desegregation of the public schools may be accomplished. Such matters can be more appropriately determined upon a hearing of this appeal on its merits when a full record will be available. It affirmatively appears at this time, however, on the face of the opinion and judgment of the district court, that the plaintiffs and the members of the class represented by them are entitled to more than mere expressions of opinion and have a right to a judgment legally enforcing the desegregation measures on which the Board has virtually agreed. In line with the procedure which we followed as to the Savannah, Georgia, schools in Stell, et al. v. Savannah-Chat-ham County Board of Education, et al., 5 Cir., No. 20557, 318 F.2d 425, it is therefore ORDERED that the District Court for the Northern District of Alabama enter the following judgment and order: “The defendants, The Board of Education of the City of Birmingham, Jefferson County, Alabama, the present members of said Board (naming them specifically) and Theo R. Wright, Superintendent of Schools, City of Birmingham, and their agents, servants, employees, successors in office and those in concert with them who shall receive notice of this order, be and they are hereby restrained and enjoined from requiring segregation of the races in any school under their supervision, from and after such time as may be necessary to make arrangements for admission of children to such schools on a racially nondiscriminatory basis with all deliberate speed, as required by the Supreme Court in Brown v. Board of Education of Topeka, 349 U.S. 294 [75 S.Ct. 753, 99 L.Ed. 1083]. “It is further ordered, adjudged and decreed that said persons be and they are hereby required to submit to this Court not later than August 19, 1963, a plan under which the said defendants propose to make an immediate start in the desegregation of the schools of Birmingham, Jefferson County, Alabama, which plan shall effectively provide for the carrying into effect not later than the beginning of the school year commencing September 1963 and thereafter of the Alabama Pupil Placement Law as to all school grades without racial discrimination, including ‘the admission of new pupils entering the first grade, or coming into the County for the first time, on a nonracial basis,’ Augustus v. Board of Public Instruction, 5 Cir. 1962, 306 F.2d 862, 869 (that opinion describes such a plan which has been approved and is operating in Pensacola, Florida).” Nothing contained in this opinion or in the order directed to be issued by the district court is intended to mean that voluntary segregation is unlawful; or that the same is not legally permissible. This order shall remain in effect until the final determination of the appeal of the above-styled case in the Court of Appeals for the Fifth Circuit on the merits, and until the further order of this Court. During the pendency of this order the district court is further directed to enter such other and further orders as may be appropriate or necessary in carrying out the expressed terms of this order. In view of the already long delay, it is ordered that the mandate issue forthwith. Motion granted. . “The appellees urge also that the judgment should be affirmed because the plaintiffs have not exhausted their administrative remedies under the Florida Pupil Assignment Law of 1956, Chapter 31380, Laws of Florida, Second Extraordinary Session 1956, F.S.A. § 230.231 [230.232], Neither that nor any other law can justify a violation of the Constitution of the United States by the requirement of racial segregation in the public schools. So long as that requirement continues throughout the public school system of Dade County, it would be premature to consider the effect of the Florida laws as to the assignment of pupils to particular schools.” Gibson v. Board of Public Instruction of Dade County, 5 Cir. 1957, 246 F.2d 913, 914-915. . “On the first appeal in this case, we said that so long as the requirement of racial segregation continues throughout the public school system it is premature to consider the effect of the law providing for the assignment of pupils to particular schools. See 246 F.2d at pages 914, 915. Obviously, unless some legally nonsegregated schools are provided, there •can be no constitutional assignment of a pupil to a particular school. We do not understand that the Fourth Circuit has ruled to the contrary.5 The net effect ■of its rulings, as we understand them, is that the desegregation of the public ■schools may occur simultaneously with and be accomplished by the good faith application of the law providing for the assignment of pupils to particular schools. If that understanding is correct, then we readily agree. “5- See Carson v. Warlick, 4 Cir., 1956, 238 F.2d 724; Covington v. Edwards, 4 Cir., 1959, 264 F.2d 780; Holt v. Raleigh City Board of Education, 4 Cir., 1959, 265 F.2d 95; Allen v. County School Board of Prince Edward County, Va., 4 Cir., 1959, 266 F.2d 507.” Gibson v. Board of Public Instruction, Dade County, Fla., 5 Cir. 1959, 272 F.2d 763, 767. . “A three-judge district court recently held that the Alabama School Placement Law is not unconstitutional on Us face, but concluded that ruling with a clear note of warning: “ ‘All that has been said in this present opinion must be limited to the constitutionality of the law upon its face. The School Placement law furnishes the legal machinery for an orderly administration of the public schools in a constitutional manner by the admission of qualified pupils upon a basis of individual merit without regard to their race or color. We must presume that it will be so administered. If not, in some future proceeding it is possible that it may be declared unconstitutional in its application. The responsibility rests primarily upon the local school boards, but ultimately upon all of the people of the State.’ Nothing said in that opinion conflicts in any way with this Court’s earlier state-meat relative to the Florida Pupil Assignment Law: “ ‘ * * * Neither that nor any other law can justify a violation of the Constitution of the United States by the requirement of racial segregation in the public schools.’ Gibson v. Board of Public Instruction of Dade County, 5 Cir., 1957, 246 F.2d 913, 914.” Holland v. Board of Public Instruction, 5 Cir. 1958, 258 F.2d 730, 732. . “This Court, like both Judge Wright and Judge Ellis, condemns the Pupil Placement Act when, with a fanfare of trumpets, it is hailed as the instrument for carrying out a desegregation plan while all the time the entire public knows that in fact it is being used to maintain segregation by allowing a little token desegregaton. When the Act is appropriately applied, to individuals as individuals, regardless of race, it has no necessary relation to desegregation at all.” Bush v. Orleans Parish School Board, 5 Cir. 1962, 308 F.2d 491, 499. . The district court cited: Covington v. Edwards, 4 Cir. 1959, 264 F.2d 780; Holt v. Raleigh City Board of Education, 4 Cir. 1959, 265 F.2d 95; McCoy v. Greensboro City Board of Education, 4 Cir. 1960, 283 F.2d 667; Jeffers v. Whitley, 4 Cir. 1962, 309 F.2d 621; Wheeler v. Durham City Board of Education, 4 Cir. 1962, 300 F.2d 630. . As the district court recognized in its opinion, the present action also proceeds under 42 'U.S.C.A. § 1983. . Superintendent of Schools of the City of Birmingham, Theo R. Wright, testified by affidavit upon the present motion at some length, concluding: “ * * * the attempted desegregation of any one grade in the system at the commencement of the fall term this year would be greatly disruptive of the whole school system, and extremely impracticable and injurious, if not impossible, for the reasons stated herein and in other affidavits of af-fiant.” There was no controverting testimony.
TUTTLE, Chief Judge (concurring specially). I, of course; join Judge Rives in the action taken on the appellants! motion for injunction pending appeal, and I join him in the order that is embodied in his opinion. I agree wholeheartedly with all that is said in his opinion, except as it bears on the relief that is to be granted in September, 1963. It is now, as it has been from the start, the duty of the Board of Education to assume the primary responsibility putting an end to racially segregated schools. Brown v. Board of Education of Topeka (1955) 349 U.S. 294, 299, 75 S.Ct. 753, 99 L.Ed. 1083. In a situation where such a board of education has completely failed to make such a start, and, fortuitously or otherwise, the first appealable order entered by a district court comes so late in the school year that the Board then attempts to say it is too late to do anything by the following school year, I think it is the duty of an appellate court to require a maximum effort by the Board to do what the law clearly requires of it, rather than to accept as a substitute for performance a plea that the Board has not made necessary preparation to permit orderly transition by the opening of the fall term of school. I believe it would not be consistent with what this Court has previously required in other situations if I did not express the view, strongly held by me, that as a minimum the Board of Education of the City of Birmingham should be required by an injunction of the trial court to arrange that at least one grade of the public schools of that city be completely desegregated by the abolition of dual school zones pending the appeal of this case on the merits in this Court. See Stell v. Savannah-Chatham County Board of Education, et al., 5th Cir. No. 20557, 318 F.2d 425 and see Davis et al. v. Board of School Commissioners of Mobile County et al., 5th Cir., 322 F.2d 356. Since, however, a majority of the court does not require this relief, I join in the order as written by my esteemed colleague, Judge Rives.
GEWIN, Circuit Judge (dissenting). My brothers of the majority have spoken in such inaccurate and disapproving terms with reference to the opinion and order of the distinguished trial judge of the Northern District of Alabama who tried this case for several days, that I find it not only impossible to agree with them, but also necessary to write this dissent in order to inform those who may be interested of my opinion of the actual holding of the District Court. The cases cited by the majority condemn the opinion written by them. The opinion and order of the District Court considered together as they should be, destroy every reason asserted in the majority opinion for the unusual action taken in the circumstances of this case by the issuance of an injunction pending appeal on the merits. It should be noted quickly that the majority opinion leaves little to be decided when the case reaches this court on the merits. Under the guise of “injunction pending appeal” that opinion substantially decides the case and renders moot many questions which could arise when the case reaches the court for final decision after a review of the record. It is recognized that injunctions pending appeal may be used in exceptional and extreme cases where there is a clear abuse of discretion or usurpation of judicial power. Such extreme, harsh and unusual action should never be taken as a substitute for a proper decision on the merits. The action in this case is taken without any pretense that the court has taken so much as a hurried glance at the record. There has not been sufficient time for the record to reach the court. In effect my brothers of the majority have concluded that this is an extreme and exceptional case, involving either an abuse of discretion or usurpation of judicial power. Accordingly, they have ordered the District Court to issue a “judgment and order” enjoining the Superintendent and Board of Education of Birmingham, and have directed “ * * * that the mandate issue forthwith.” This drastic action has been taken within a few days following the submission of the case on the motion for injunction — not on the merits. As late as June 3, 1963, the Supreme Court stated in Goss v. The Board of Education of the City of Knoxville, Tenn., 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632, a school segregation case, a recognition of: “* * * the multifarious local difficulties and ‘variety of obstacles’ which might arise in this transition * # *» and the court further stated: “In reaching this result we are not unmindful of the deep-rooted problems involved.” In the instant case, this court has not even had the opportunity to review the evidence which was before the trial judge for the purpose of considering any “variety of obstacles” or “deep-rooted problems” which may be involved. This court does not have sufficient facts before it, in the absence of the record, to render a decision “guided by equitable principles” and “characterized by a practical flexibility in shaping its remedies” and to exercise the requisite facility “for adjusting and reconciling public and private needs.” I. THE OPINION AND ORDER OF THE DISTRICT COURT The majority opinion quotes certain excerpts from the opinion of the court below, but the excerpts quoted do not fairly represent the opinion of that court. The action of the District Court in its memorandum opinion and order may be summarized in outline form as follows: (a) The District Court stated that the “starting point in any school segregation case must be Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the implementing decree of the court in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), and its reinterpretative opinion, Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958)”, and recognized that it was bound by the holdings in the cases cited. (b) Proper notice was taken of the fact that “ * * * district courts have been invested with and are expected honestly and fairly to exercise discretion in the enormous task of desegregating public schools.” The opinion asserts that the course to be followed in the discharge of such task was “staked out” in an opinion written by Judge Rives in the case of Shuttlesworth v. Birmingham Board of Education, 162 F.Supp. 372 (N.D.Ala. 1958) aff’d. by Supreme Court 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145, wherein it is unequivocally held: “All that has been said in this present opinion must be limited to the constitutionality of the law upon its face. The School Placement Law furnishes the legal machinery for an orderly administration of the public schools in a constitutional manner by the admission of qualified pupils under a basis of individual merit without regard to their race or color. We must presume that it will be so administered. If not, in some future proceeding it is possible that it may be declared unconstitutional in its application. The responsibility rests primarily upon the local school boards, but ultimately upon all of the people of the State.” (c) Expressly stating that the law of this case is that the Alabama School Placement Law “ * * * furnishes the legal machinery for an orderly administration of the public schools in a constitutional manner by the admission of qualified pupils upon a basis of individual merit without regard to their race or color,” the court held that the pupil, or those authorized to act in the pupil’s behalf, should first apply for assignment or transfer; and that before the court would grant injunctive relief, the administrative remedies provided by the Alabama act as modified and limited by the Court’s opinion and order must first be used. (d) The opinion clearly holds that after application for assignment or transfer is made by a pupil, or those authorized to act in his behalf, to the school board, judicial remedies for the denial of Constitutional rights can then be pursued at once in the United States District Court without pursuing state court remedies. The court observed the fact that this Court of Appeals has been alert to strike down deviations by district courts from the Constitutional principles laid down in the Brown case, and asserted that the court had carefully read and considered all of the decisions by this Court of Appeals relative to the subject. (e) The District Court correctly concluded that this Court of Appeals has not heretofore had cause to consider whether the Alabama law has a permissible scope of operation in the desegregation of public schools, but it was noted that the Fourth Circuit had dealt with a similar state act in the case of Carson v. Warlick, 238 F.2d 724 (4 Cir. 1956), which was cited with approval in the Shuttlesworth case. (f) The opinion and order squarely state that discrimination will not be tolerated, and uses the following language in so holding: “This court will not sanction discrimination by them [the Superintendent and Board of Education] in the name of the placement law but it is unwilling to grant injunctive relief until their good faith has been tested. If it should be demonstrated that it has been unconstitutionally applied, under the settled authorities the court would be compelled to order the submission of a desegregation plan for its approval.” The District Court affirmed that both the Superintendent and the Board had assured the Court that regulations governing the assignment and transfer of pupils in the Birmingham school system had been in effect since June 1958 for the purpose of implementing the Alabama law; and found that sufficient time remained before the opening of school in September 1963 for the processing of applications for assignments and, transfers in behalf of interested individuals. (g) Jurisdiction of the action was retained for the purpose of hearing any complaint which might be presented “ * * * in case of any unconstitutional application of the Alabama School Placement Law against the plaintiffs, or others similarly situated, or of any other unconstitutional action on the part of defendants against them.” The trial court mentioned the fact that the Superintendent and the Board had assured the court that “ * * * stand ready to comply with the law when any individual sets the administrative machinery in motion.” By affidavit of the Superintendent speaking on behalf of the Board filed in this court, it is stated: “It [the Board] was and is now prepared to deal with the matter in a proper and orderly manner upon applications pursuant to the laws of Alabama and the decree of the District Court in this case.” (h) In case any complaint is made by any person, the issues tendered thereby are to be given “ * * * a preferred setting on the docket of this court and will be heard on five days notice to defendants.” It is my considered opinion that the action of the District Court fully complies with both Brown decisions, the decision in the Aaron case, and is in complete accord with the previous holdings of this court. The trial court found as a fact that according to the uncontroverted record before the court, that no Negro child, or anyone authorized to act in his behalf, had applied for enrollment in or transfer to any school designated White, and pursued the remedies afforded by the Alabama statute. It was further found as a fact that such reluctance to bring about integration of the public schools was not a “blind adherence to tradition”, but that the undisputed evidence in the record (which this court has not yet seen) clearly shows that there is “very strong opposition to the mixing of the races in the schools of Birmingham on the part of citizens of all races.” The District Court rejected forthwith the opinions of experts in the fields of psychology and anthropology in whatever form insofar as they constitute an attack upon the rules of law laid down by the Supreme Court in the Brown and Aaron decisions. A casual analysis of the opinion and judgment of the District Court should convince anyone that the court has not followed the Alabama act blindly, but has-used it only insofar as it “furnishes the-legal machinery” for the desegregation of the schools in a Constitutional manner. The assignment and transfer of students from school to school, and the right to make objection to an assignment already made were covered by the opinion. In their brief, the Superintendent and Board admit and affirmatively assert that the provisions of the Alabama act and the decree of the court “are not restricted in application to any grade or grades- * * ; that it “ * * * authorizes, application for initial assignment to any school by the entering first grade students” ; and that there is “ * * * no-limitation on the number of pupils who may apply for assignment or transfer.”' In my opinion, the plan outlined by the District Court not only meets the standards recently expressed by this court in the case of Calhoun v. Latimer, 5 Cir.,. 321 F.2d 302, but makes more liberal provisions with respect to assignment, transfer and objection to assignments previously made, because such provisions are-applicable to all grades in Birmingham.. A fair and proper analysis of the ruling of the District Court will reveal that, it is not subject to the criticism that students cannot make application for assignment to a school of their choice on-entering the first grade as denounced in-Bush v. Orleans Parish School Board, 308 F.2d 491, 5 Cir. 1962. Such applicants for assignment or transfer are not. impeded by dual school districts as was-involved in Augustus v. Board of Pub. Inst. of Escambia Co., 306 F.2d 862, 5* Cir., 1962; the plaintiffs are not required: to comply with the details of the Alabama Placement Law as condemned Mannings v. Board of Pub. Inst, of Hills-borough Co., Fla., 277 F.2d 370, 5 Cir. 1960; nor is there a failure to afford a reasonable and conscious opportunity to pupils to apply for admission to any school to which they are eligible as condemned in Gibson v. Board of Pub. Inst, of Dade Co., Fla., 272 F.2d 763, 5 Cir. 1958. It is true that the Brown decision places first responsibility to desegregate on the school authorities; but if the school authorities do not act, the district courts are required to act. Admittedly, the school authorities in Birmingham have not submitted a plan of desegregation. Their failure resulted in this lawsuit, and the District Court has now directed the authorities to proceed with desegregation as provided by the Alabama law and the decree of the District Court. By retaining jurisdiction of the case and ordering that any complaint will be heard on five days’ notice, the District Court has provided an effective and speedy method of supervision. We know of no plan or other remedy which is calculated to give better relief. The failure of the school authorities to act does not require injunctive relief in cases where a method of desegregation is outlined and provided as was done in this case. Plans presented by school boards are rarely ever approved in toto. Even after plans are submitted by school authorities and revised by the courts, litigation seems to continue. in II. THE MAJORITY OPINION (a) Injunction Pending Appeal: There is an ancient and classic principle long recognized by all courts with reference to the granting of injunctions whether at the trial or appellate level, forcefully stated by Justice Baldwin, sitting at Circuit in the year 1830, in the case of Bonaparte v. Camden, 8 A. R. Co. (C.C.N.J.1830) Fed.Cas.No.1,617, p. 821: “There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing an injunction; * * Rule 62 F.R.Civ.P. deals with the question of injunction pending appeal. Subsection (c) of that rule relates to the power of district courts to issue such injunctions pending appeal. Subsection (g) of the same rule deals with the subject on the appellate level. It is conceded that a District Court (to which the Federal Rules of Civil Procedure generally apply) may grant injunctive relief pending an appeal as provided by subsection (c). Such is the holding of the Ninth Circuit in United States v. El-O-Pathic Pharmacy, 9 Cir. 1951, 192 F.2d 62. In construing the rule and commenting on the last cited case, one of the leading commentaries on federal practice and procedure states the rule to be as follows: “In that case the court also pointed out that appellate courts are not as well equipped as the trial court to enforce an order of the sort in question. Thus Rule 62(g), allowing the appellate court to make such orders, should be regarded as supplementary to Rule 62(c). In the normal case parties should he required to seek relief first from the trial court, with the appellate court acting only if the trial court has erroneously refused to grant such relief.” (Emphasis added) Vol. 3 Fed.Practiee & Procedure, Rules Ed. (Rev. by Wright) § 1373, p. 466 It should be emphasized and made crystal clear that there is no showing before us that the appellants in this case sought interlocutory relief in the trial court. My brothers of the majority have directed the issuance of a mandatory injunction, which,- of necessity, is of an interlocutory nature, because this case has not been reached on its merits. A clear statement of the law is contained in W. A. Mack, Inc. v. General Motors Corp., 7 Cir. 1958, 260 F.2d 886 as follows: “ - * * mandatory injunctions are rarely issued and interlocutory mandatory injunctions are even more rarely issued, and neither except upon the clearest equitable grounds.” See also Miami Beach Federal Savings & Loan Ass’n v. Callander, 5 Cir. 1958, 256 F.2d 410. The usual case arises upon an appeal from an order of the trial court granting or denying a preliminary injunction and even in such cases, the scope of review is limited. In re Tucker Corp. (Veenkant v. Yorke), 7 Cir. 1958, 256 F.2d 808; Mytinger & Casselberry, Inc. v. Numanna Labs. Corp., 7 Cir. 1954, 215 F.2d 382; O’Malley, et al. v. Chrysler Corp., 7 Cir. 1947, 160 F.2d 35; Vol. 3 Fed.Practice & Procedure, Rules Ed. (Rev. by Wright) § 1373. In directing the District Court to issue a mandatory injunction pending determination of the appeal in this case on the merits, the majority claims that it is acting “in line with the procedure which we followed * * in Stell et al. v. Savannah-Chatham Co. Board of Education et al., 5 Cir., 318 F.2d 425, May 24, 1963. In making such an assertion, the majority is clearly in error because it has overlooked the fact that the appeal in Stell was interlocutory as provided by 28 U.S.C.A. 1292(1), from a judgment of the District Court denying a motion for preliminary injunction. The relief granted in Stell purports to have been granted under the All Writs Act, 28 U.S. C.A. 1651(a). That opinion recognizes-that the All Writs Act was intended to-be used only in the exceptional case where there had been an abuse of discretion or usurpation of judicial power, and should be used only in “extreme cases”. The authorities there cited, Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106; and LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S. Ct. 309, 1 L.Ed.2d 290, do not support the action of the majority in this case. All 3 cases, Stell, Bankers Life, and LaBuy, involve interlocutory appeals relating to the denial or granting of interlocutory relief. It was never intended that the All Writs Act should be used' as a substitute for appeals, and this is true even though hardship may result from delay. In any event, a heavy burden is placed upon those who petition for the writ to show that their right to its issuance is “clear and undisputable”. Although the writ sought in Bankers Life was a writ of mandamus, the court was speaking of the All Writs Act, 28 U.S.C.A. 1651(a) when it there observed; “ * * * Congress must have realized that in the course of judicial decision some interlocutory orders might be erroneous.” (emphasis added) The court assumed the existence of the difficulties of which petitioner there complained, resulting in the creation of many legal and practical problems, but the court observed: “ * * * but Congress must have contemplated those conditions in providing that only final judgments are reviewable.” The Court concluded: “But it is established that the extraordinary writs cannot be used as substitutes for appeals, Ex parte Fahey, 332 U.S. 258, 259-260, [67 S.Ct. 1558, 91 L.Ed. 2041-2043] (1947), even though hardship may result from delay and perhaps unnecessary trial, United States Alkali Export Assn. v. United States, 325 U.S. 196, 202-203, [65 S.Ct. 1120, 89 L.Ed. 1554, 1560, 1561] (1945); Roche v. Evaporated Milk Assn., supra [319 U.S. 21], at 31 [63 S.Ct. 938, 87 L.Ed. .1185]; and whatever -may be done without the writ may not be done with it. Ex parte Rowland, 104 U.S. 604, 617 [26 L.Ed. 861, 866], (1882).” (Emphasis added) Traditionally, injunctions pending appeal have been issued in cases of extreme emergency, to avoid mootness, to preserve the status quo, to protect the jurisdiction of the court; and in the leading cases on the subject, if not all, injunc-tive relief pending appeal is granted only after the trial court has refused to grant interlocutory relief. Such a request was made in the Stell case. No such action was requested of the trial court in the instant case. Not only is it unfair and inconsiderate for an appellate court to grant such relief pending appeal when the trial court has had no opportunity to pass upon the question, such relief should never be granted as a substitute for an appeal. In passing upon injunctive relief, the court should take no action which will preclude fair consideration on the merits. As stated in Mesabi Iron Co. v. Reserve Mining Co., 8 Cir. 1959, 270 F.2d 567: “ * * * the appellate court ought not to determine crucial questions conditioning the merits of the case * * *» If this is the law in cases where interlocutory relief is first sought in the trial court, such a rule should be more strictly followed in eases where no interlocutory relief was sought in the lower court. Prior to the instant ease, such has been our holding. As stated in Miami Beach Federal Savings & Loan Ass’n, supra: “We have repeatedly held that an order for a temporary injunction does not and cannot decide the merits of the case.” This court has recently spoken concerning the extraordinary remedy of injunction pending appeal in Greene v. Fair, Feb. 18, 1963, 314 F.2d 200, and there clearly stated the controlling principles : “The reason for the sparing use of this power is apparent. Litigants are given the opportunity to try their cases in a district court and they are given an unlimited right of appeal to the Courts of Appeal. The rules of this Court make possible a prompt hearing of all regularly docketed appellate cases. The rules provide for accelerated hearings in cases in which cause therefor is shown. The vindication of private rights by litigation necessarily entails some delay. Laymen and courts alike regret any delay in the vindication of a right that is not the natural and proper result from the orderly handling of the litigation. Historically and traditionally within our system of justice, appellate procedure calls for the docketing of a case, the furnishing of the transcript of the record to the appellate judges, a full briefing by the appellant, with an opportunity for response to be made by the appellee, and oral argument after consideration of the records and briefs by the Court. The time required to prosecute an appeal in this manner is recognized by all to be time well spent in the ordinary case.” (b) The Ruling and Mandate of the Majority: The majority opinion asserts that nothing contained therein is to be construed as enjoining or restricting voluntary segregation. This Court is unequivocally committed to the proposition that voluntary segregation is permissible. The order and opinion before us for review do not require segregation, but most emphatically state that any action on the part of the Superintendent and Board requiring segregation will not be tolerated. Accordingly, it is difficult for me to see any useful purpose in issuing the extraordinary writ of injunction pending appeal. As a matter of fact, in the case of Rippy v. Borders, 5 Cir. 1957, 250 F.2d 690, this Court specifically held that a district court should not issue an order enjoining the school board from “permitting” segregation. Briggs v. Elliott, E.D.S.C.1955 (three-judge court composed of Parker and Dobie, Circuit Judges, and Timmerman, District Judge), 132 F.Supp. 776; Avery v. Wichita Falls Independent School Dist., 5 Cir. 1957 (Judge Rives), 241 F.2d 230; Borders v. Rippy, 5 Cir. 1957 (Judge Rives), 247 F.2d 268; Boson v. Rippy, 5 Cir. 1960 (Judge Rives), 285 F.2d 43. As a matter of fact, the opinion and order clearly state that the District Court “ * * * will not sanction discrimination * * *,” and the doors of the court are held open to hear any complaint 0f «* * * any unconstitutional application of the Alabama School Placement Law against the plaintiffs, or others similarly situated, or any other unconstitutional action on the part of the defendants against them.” (Emphasis added.) The cases cited in the majority opinion, particularly Gibson (2 appeals), Holland, Mannings, Augustus, and Bush, all denounce “the requirement of racial segregation in the public schools.” (Emphasis added.) In the first Gibson appeal,. in speaking of the Florida law, it was stated, “ * * * neither that nor any other law can justify a violation, of the Constitution of the United States by the requirement of racial segregation in the public schools.” (Emphasis added.) To the same effect was the second Gibson appeal. The opinion and ■order now before us for review do not require segregation, but provide a means of orderly desegregation. The most recent decisions bearing on the issues before us are two cases from our own court, the Stell case, and Calhoun v. Latimer, 5 Cir., 321 F.2d 302; and two Supreme Court cases, both decided on June 3,1963, McNeese v. Board of Education, involving an Illinois statute, and ■Goss v. Board of Education of Knoxville, Term., 83 S.Ct. 1405. In addition to the •distinguishing features in the Stell case which we have heretofore mentioned, a reading of that opinion will show that admission and attendance at schools in ■Savannah-Chatham County, Georgia, was required, on a racial basis. The opinion further stated that evidence was admitted •and considered which “ * * * tended to support the thesis that compliance with the Supreme Court’s decision (Brown v. Board of Education) would be ■detrimental to the Negro plaintiffs and the white students in the Savannah-Ghatham County school system.” The so-called Atlanta Plan approved in the Latimer ease supports the decree of the District Court here involved. As a matter of fact, the decree of the District Court authorizes a procedure for desegregation as to all 12 grades, which the Atlanta Plan does not. This is not a criticism of the Atlanta Plan. The Supreme Court and the decision in Latimer, as well as numerous other cases, recognize the well known fact that all cases are not alike. In the McNeese case, the court was considering an administrative remedy provided by the Illinois school code. First, the court decided not to apply the rule announced in Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 relating to abstinence by a federal court in cases where state administrative remedies are made available. As to that question, the court found, “We have, however, in the present case no underlying issue of state law controlling this litigation.” The court reasoned that “* * * it is by no means clear that Illinois law provides petitioners with an administrative 'remedy sufficiently adequate to preclude prior resort to a federal court for the protection of their federal rights.” The court concluded that the Illinois law was no remedy at all. McNeese asserts that “[i]t would be anomalous to conclude that such a remedy forecloses suit in the federal courts when the most it could produce is a state court action that would have no such effect.” The opinion rendered by the District Court in the instant case does not authorize or tolerate the procedure criticized in the McNeese ease. Footnote 2 of the District Court’s opinion provides, “After administrative remedies before the school board have been exhausted, judicial remedies for denial of constitutional rights may be pursued at once in this court without pursuing state court remedies.” (Emphasis added) The McNeese case did not hold or intimate that it was unlawful for a district court to require limited administrative procedure such as that required by the holding of the trial court in this ease. Regardless of what we say, school systems must be operated by school superintendents and school boards, or by some administrative agency. All administrative procedure is not unlawful. Indeed, schools cannot operate without administrative procedure. As stated in Latimer, “The courts are ill equipped to run the schools.” In the Goss case, the difficulty complained of related to transfer provisions of the school desegregation plan. As there stated, “ * * * by the terms of the transfer provisions, a student, upon request, would be permitted, solely on the basis of his own race and the racial composition of the school to which he has been assigned by virtue of rezoning, to transfer from such school, where he would be in a racial minority, back to his former segregated school where his race would be in the majority.” The transfer system there under attack was held to work only to the end that segregation would be perpetuated. Transfers were available only to those who wished to attend schools where their race is in the majority and “ * * * there is no provision whereby a student might transfer upon request to a school in which his race is in the minority, unless he qualifies for a ‘good cause’ transfer.” The court concluded: “[W]e note that if the transfer provisions were made available to all students regardless of their race and regardless as well of the racial composition of the school to which he requested transfer we would have an entirely different case. Pupils could then at their option (or that of their parents) choose, entirely free of any imposed racial considerations, to remain in the school of their zone or transfer to another. ****** “This is not to say that appropriate transfer provisions upon the parents’ request, consistent with sound school administration and not based upon any state-imposed racial conditions, would fall. * * *” I find none of the defects in the opinion and order of the District Court which are condemned in Goss. III. DELAY AND EMERGENCY Considerable emphasis is placed upon the matter of delay from the time the suit was initially filed in the District Court on June 17, 1960, until a final decision was rendered on the merits on May 28, 1963. Briefs of the appellants mention this delay and the majority opinion places emphasis on it. During the course of oral argument, appellants were interrogated by the court as to the delay involved, and the court was assured by counsel that no point was now being made with respect to delay. The matter continues to arise however, in spite of the fact that we do not have the record before us to determine if there was unnecessary delay. There is nothing to show that the parties litigant sought an earlier hearing. We judicially know of the excellent record of the U. S. District Court for the Northern District of Alabama for the expedient dispatch of business. If there has been unnecessary delay in this case, it constitutes the exception rather than the rule. The case of Nelson v. Grooms, 5 Cir. 1962, 307 F.2d 76, may reveal some facts touching the question of delay. In the Nelson case the parties sought a writ of mandamus against U. S. District Judge H. H. Grooms, because he continued the Nelson case pending hearing in the Armstrong case, rather than grant the petitioners’ application for preliminary injunction filed on June 13, 1962. The Nelson case was decided by a panel of this court on August 17, 1962. In the Nelson case it was alleged that the Armstrong case (presently before us) had been pending since June 17, 1960, but it was asserted that counsel for Armstrong were W. L. Williams, Jr. of Birmingham and Ernest D. Jackson, Sr. of Jacksonville, Florida; whereas, counsel for Nelson were Constance Baker Motley of New York, and Orzell Billingsley, Jr. and Peter A. Hall of Birmingham. That fact was alleged as a reason why the cases should not be consolidated. The Nelson case is no longer before us, because the plaintiffs have moved from Birmingham and that case has been dismissed. No attack had been made on the action of the court with respect thereto. Presently, in this case, the Armstrong case, Attorneys Williams and Jackson still appear of record as counsel for Armstrong; but in addition, George White of Birmingham and Constance Baker Motley. Jack Greenberg and Leroy D. Clark, all of New York, are also counsel. No criticism is made of the litigants or the lawyers involved as to the arrangements made for handling the cases. Of course, the litigants and the lawyers are free to deal with each other. It is a singular fact however, that at least two of the attorneys who originally filed the Armstrong case remain in it and so far as we know, no complaint was ever made of the delay involved. In Judge Grooms’ order it is recited that Judge Lynne would likely hear the Armstrong case in October 1982, and the hearing was held in October 1962. Judge Grooms’ order was entered in June 1962, and therefore everyone knew of the proposed hearing date for the Armstrong case as early as June 13, 1962. On the other hand, one of the attorneys who handled the Nelson case where complaint of delay was involved, and mandamus sought, now appears in the Armstrong case. So far as we are able to determine from anything before us, no complaint has ever been made, prior to this time, of the alleged delay in the Armstrong case. Courts are often reluctant to force parties to trial when the litigants on both sides prefer not to proceed to a trial, and many times cases are delayed for the convenience of the parties or for other legitimate reasons. Usually a change in counsel actively handling the case will result in delay. We cannot determine these questions when we have not seen the record. Certainly, there has been no delay in this court. On the 26th day of June 1963, this court considered six (6) cases, all assigned for argument on an emergency basis. The six (6) cases are as follows: 1. Armstrong et al. v. Board of Education of the City of Birmingham, Jefferson County, Alabama, et al. Decided in District Court on May 28, 1963; notice of appeal filed June 3, 1963; motion for injunction pending appeal filed on June 3, 1963; order assigning the case for oral argument on June 26, 1963, filed on June 5, 1963; and full oral argument was heard on June 26, 1963. 2. W. G. Anderson et al. v. City of Albany et al., 5 Cir., 321 F.2d 649. Filed on July 24, 1962; the District Court heard 5 volumes of testimony (over 1300 pages) and entered an order dismissing the case on February 14, 1963; motion for injunction pending appeal, or in the alternative to advance the case on the docket for argument on the merits filed May 31, 1963; on June 5, 1963, an order was filed assigning the case for hearing on the merits on June 26, 1963; and on June 26,1963, the case was extensively argued on the merits. This case relates to injunctive proceedings against the City of Albany with respect to certain public facilities. One of the chief complaints of the appellants when the suit was initially filed, was the fact that the City of Albany had in effect ordinances requiring segregation of certain of the facilities involved. At the time of argument, all such ordinances had been repealed and there was no compulsory segregation of such facilities. In addition to extensive oral argument on June 26, 1963, another petition seeking an injunction pending appeal was heard before Judge Bell and denied by him on June 13, 1963. 3. NAACP v. Thompson, Mayor of the City of Jackson, Mississippi, et al., 5 Cir., 321 F.2d 199. Filed June 7, 1963; hearing conducted and relief denied by U. S. District Court on June 11, 1963; motion for injunction pending appeal filed in this court on June 12, 1963; order entered on June 14, 1963, assigning the case for hearing on the motion for June 26, 1963, at which time full argument was heard. The relief sought is an injunction against the Mayor and city officials of the City of Jackson, Mississippi, restraining and enjoining them from interfering with parades, protests, street demonstrations, and from arresting Negro citizens who refuse to leave private businesses upon being requested to do so. 4. In the Matter of Application of Brown v. Rayfield, Chief of Police of City of Jackson, Mississippi (In the Matter of Application of Richards v. Rayfield), 5 Cir., 320 F.2d 96. Petition for writ of habeas corpus filed on June 7, 1963; hearing conducted and writ denied on June 12, 1963, at which time the U. S. District Court refused to certify probable cause; on June 13,1963, a Judge of this court signed a certificate of probable cause; motion for immediate hearing filed on June 14, 1963; on June 14, 1963, motion granted and case was assigned for immediate hearing on June 26, 1963; and on June 26, 1963, extended oral argument was heard. This writ of habeas corpus sought the release of two Negro citizens who had been arrested in connection with street ■demonstrations. No effort was made to •exhaust state remedies as required by law, because it was alleged that “members of the various state courts” of the State of Mississippi could not give a fair hearing to the petitioners, and that an effort to obtain state remedies would be futile. The petition also complained that the petitioners were confined in segregated jails in contravention of their constitutional rights. According to affidavit of the Respondent Rayfield, both petitioner-appellants were released from custody on June 15, 1963, by posting with the Clerk of the Municipal Court of the City of Jackson, Mississippi, an appearance bond in the sum of $100.00 for each of the appellants. 5. Kennedy v. Owen, Circuit Court Clerk and Registrar, Jefferson County, Mississippi, et al., 5 Cir., 321 F.2d 116. (7 cases consolidated) Various applications were filed seeking an order of the District Court compelling the production of records by clerks and registrars. Said petitions were filed on various dates, but some were filed in the month of May 1963; District Court held hearing and entered decree granting partial relief and denying some relief sought on June 11, 1963; notice of appeal filed June 18, 1963; motion for summary reversal filed in this court June 20, 1963; order filed June 20, 1963, assigning the cause for oral argument on June 26, 1963; and on June 26, 1963, extended oral argument was heard. By reference to opinion already released, it will be observed that the only question related to the sufficiency of a demand by the Attorney General which was addressed to the parties in their capacity as clerks only; whereas, the parties held the dual position of clerk and registrar. 6. United States v. Dallas County, Alabama, et al. Complaint seeking injunction filed in U. S. District Court for the Southern District of Alabama at 4:30 P.M. on June 26, 1963; relief denied on June 26, 1963; notice of appeal filed June 26, 1963, and application made to this court for injunction at 9:00 P.M. June 26,1963, at which time full oral argument was heard. In this proceeding the United States sought to enjoin the Circuit Solicitor of the 4th Judicial Circuit, the County Solicitor of Dallas County, the