author: PER CURIAM: GOLDBERG, Circuit Judge PER CURIAM: GOLDBERG, Circuit Judge,

text:
    Arlam CARR, Jr., a minor by Arlam Carr and Johnnie Carr, etc., et al., Plaintiffs-Appellants, National Education Association, Inc., Intervenor, Penelope Anne Jenkins et al., Intervenors-Appellants, v. MONTGOMERY COUNTY BOARD OF EDUCATION et al., etc., Defendants-Appellees, United States of America, Amicus Curiae.
    No. 74-2633.
    United States Court of Appeals, Fifth Circuit.
    April 11, 1975.
    Rehearing and Rehearing En Banc Denied June 27, 1975.
    Soloman S. Seay, Jr., Fred D. Gray, Montgomery, Ala., Jack Greenberg, Norman J. Chachkin, NAACP, Legal Defense & Education Fund, New York City, for Arlam Carr, and others.
    Howard A. Mandell, Montgomery, Ala., for Penelope A. Jenkins, and others.
    Joseph D. Phelps, Vaughan Hill Robison, Montgomery, Ala., for Montgomery Cty. Bd. of Education, and others.
    Ira DeMent, U. S. Atty., Montgomery, Ala., Robert Pressman, Atty., Civ. Rights Div., U. S. Dept, of Justice, Washington, D. C., amicus curiae for U. S. A.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   PER CURIAM:

We affirm the judgment of the district court for the reasons set forth in its opinion, 377 F.Supp. 1123 (M.D.Ala.1974). The judgment of the district court is attached as Appendix A. We take note of the history of this litigation as reflected by the opinions of the district court, this court, and the Supreme Court cited in the district court’s opinion. The Montgomery County school system has been under the scrutiny and surveillance of the federal judiciary for a substantial period of time and such scrutiny and surveillance will continue.

Affirmed.

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ARLAM CARR, JR., ET AL.,

Plaintiffs,

NATIONAL EDUCATION ASSOCIATION, INC.; PENELOPE ANNE JENKINS ; ET AL.,

Plaintiff-intervenors,

UNITED STATES OF AMERICA,

Amicus Curiae,

v.

MONTGOMERY COUNTY BOARD OF EDUCATION, ET AL.,

Defendants.

CIVIL ACTION NO. 2072-N

JUDGMENT

Pursuant to the findings of fact and conclusions of law made and entered in a memorandum opinion filed in this cause this date, it is the order, judgment and decree of this Court that:

1. The plans presented by the plaintiffs and plaintiff-intervenors for the further desegration of the Montgomery County school system be and are hereby rejected.

2. The plan presented by the defendant Montgomery County Board of Education on January 15, 1974, revised on March 29, 1974, and modified on May 8, 1974, be and is hereby approved and ordered implemented.

3. The school board’s plan will be implemented forthwith, with the student assignments to the various schools within the system to be effective with the commencement of the 1974 — 75 school year.

4. The school board will file with this Court on September 15, 1974, and on February 15, 1975, and on said dates each year thereafter, written reports reflecting the actual student and teacher assignments, by race, in each school in the system.

5. The costs incurred in this proceeding be and they are hereby taxed one-half against the plaintiffs and one-half against the plaintiff-intervenors.

Done, this the 22nd day of May, 1974.

(s) Frank M. Johnson_

UNITED STATES DISTRICT JUDGE

GOLDBERG, Circuit Judge

(dissenting):

Respectfully, but without equivocation, I dissent.

This suit was brought in 1964 to desegregate the public schools in Montgomery County, Alabama. Its progress has been recorded at several stages in opinions by the able District Judge, by this Court, and by the Supreme Court. In August, 1973, the district court ordered the parties then in this case — the plaintiffs, the defendant School Board, and the United States — to submit proposals for further desegregation of the Montgomery County system in light of decisions by this Court and the Supreme Court since the entry in 1970 of the last comprehensive order in the case. One week later, plaintiffs-intervenors, Jenkins, et al., filed their motion to intervene, which was granted in February, 1974. During the first four months of 1974, plaintiffs, plaintiffs-intervenors, and the School Board each prepared and proposed new pupil assignment plans. Hearings were held on each plan in April. The School Board amended its plan in response to prodding from the Bench, and in an order entered May 22, 1974, and opinion reported at 377 F.Supp. 1123, the district court adopted the School Board plan, as amended, in its entirety. Costs were taxed half against the plaintiffs and half against the plaintiffs-intervenors.

The plaintiffs, the plaintiffs-intervenors, and the United States appeal, arguing between them that the district court erred in adopting the School Board’s plan for the assignment of elementary and junior high school students, that the School Board assignment plan saddles black elementary school students with a disproportionate transportation burden, and that costs should have been taxed against the School Board.

I would hold that the district court should not have adopted the School Board’s proposed assignment plan for the elementary grades because it fell short of establishing a unitary school system, and there was no sufficient finding that no workable alternative could be implemented. The record indicates additionally that the School Board plan for the assignment of junior high students, as implemented, fails to comply with constitutional mandates. Accordingly, I would remand to the district court for further proceedings to develop workable unitary school assignment plans for the elementary and junior high grades. In light of this I would find it unnecessary at this time to pass on the appellants’ claims of unequal transportation burdens. I would vacate the district court’s award of costs in favor of the School Board, to permit the entry of an appropriate award after the further proceedings on remand.

I

Background

For the 1973-74 term, Montgomery County public schools enrolled 36,016 students, 17,042 (47%) of whom were black, and 18,974 (53%) white, in some 54 regular schools, organized along a 1 — 6, 7 — 9, 10 — 12 pattern. The 36 elementary schools enrolled 18,449 students (9,279, or 50%, black), the 13 junior high schools, 9,644 (4,390, or 45%, black), and the 5 high schools 7,923. (3,373, or 43%, black). All but 7 of the schools then in use stood within the corporate limits of the City of Montgomery, and the total county population is similarly concentrated within the City.

The student population residing in the area of Montgomery County outside the City is predominantly black. Within the City the student population is predominantly white: the eastern half of the City is more concentratedly white; most of the western half is virtually all-black; and a narrow integrated corridor running North-South bisects the City. Under the desegregation plan adopted in 1970 and effective in 1973 — 74, most pupils within the City were assigned to neighborhood schools. Outside the City, school children in all but the extreme south of the county were organized into “periphery zones.” Most of these “periphery zone” students were bused to schools in the City, and they made up the majority of the 11,176 students (31%) bused by the county.

Implementation of the neighborhood-assignment based plan adopted in 1970 left a high number of all-one-race or virtually all-one-race schools. The record discloses that in the Spring of 1974, 15 elementary schools were 87% or more black, and 6 were 87% or more white; 6 junior highs were 94% or more black, another was 85% black, and 1 was 90% white; 1 senior high was 99% black, and another was 86% black. Responding to these conditions, in its order below the district court replaced its 1970 plan with the School Board’s most current proposal. That plan adheres to the techniques employed in the 1970 plan, and, unlike the plans suggested by the plaintiffs and plaintiffs-intervenors, eschews pairing or clustering of schools.

At the high school level, the School Board plan employs rezoning and peripheral reassignments to reduce the percentages of black students at each City school to 33 — 48%; only Montgomery County High School, in the extreme south of the County, retains an 87% black student body. None of the appellants question the propriety of this high school plan, and it requires no further discussion. Rather, this appeal was brought to test the constitutional sufficiency of the School Board’s student assignment plans for the elementary and junior high levels. I will discuss each of the two educational stages in turn.

II

Elementary School Plan

The plaintiffs and plaintiffs-intervenors each proposed alternative plans for assignment of elementary school students. Each plan aimed at eliminating “racially identifiable” schools, defined at the outset by each plan’s architect as a school whose racial balance varied more than 10 — 15% from the racial make-up of the county-wide student body for that level. Neither plan clung strictly to such statistical profiles, however, and each left at least one virtually all-black elementary school.

The plaintiffs’ plan was directed only toward the elementary schools within the City. It generally retained the zone lines drawn by the School Board, but changed assignment patterns within those zones through pairing and clustering, and some modification of peripheral assignments, to reach a 24-66% black concentration in each city school. The district court calculated that implementation of the plaintiffs’ plan would require reassignment of 43% of the elementary school population and additional transportation of 28% of the elementary student body. The district court concluded that the plaintiffs’ plan was designed “for the sole purpose of attaining a strict racial balance in each elementary school involved,” 377 F.Supp. at 1129, and that the increased busing, large scale reassignment of students and teachers, and the “fracturization of grade structure” inherent in pairing and clustering, “be disruptive to the educational processes and would place an excessive and unnecessarily heavy administrative burden on the school system.” Id.

The plaintiffs-intervenors proposed a more complicated overhaul of elementary school assignments. Their plans abandoned the School Board zone lines, replacing them with two sets of new zones: one set of strip zones, running generally North-South, for grades 1-3; another set of strip zones, running generally East-West, for grades 4-6. Utilizing this basic network the plaintiffs-intervenors offered two possible plans. The simpler plan merely assigned students to the school within their proposed contiguous zone. This left 400 black students in grades 4-6 in a school 81% black, and 2233 of the black primary grade 1 — 3 children in schools 84% or more black. The plaintiffs-intervenors’ alternative, and preferred, plan retained their grade 4-6 zone pattern and the single 81% black school, but added satellite zoning to the primary grade assignments, reducing to 402 the total of black students in one 84% black primary school. The plaintiffs-intervenors’ plan offered transportation advantages over the plaintiffs’ plan, requiring additional busing for only 11% of the elementary school students, according to the district court. There was evidence that the plaintiffs-intervenors’ plan would prove the more likely thwarted in practice, however, and the district court found that implementation of either of the plaintiffs-intervenors’ plans would involve reassignment of 60 — 70% of all of the elementary school population. The district court entered no specific findings as to the workability of the plaintiffs-intervenors’ plans.

The School Board plan adopted by the district court for the assignment of elementary school children furthers desegregation by closing 5 previously virtually all-black elementary schools anil assigning some pupils from those schools to predominantly white schools, and by reassigning some 400 black students at another virtually all-black school to 4 predominantly white schools. Under this plan, however, 55% of the black students were projected to be enrolled at elementary schools 87% or more black, and 44% were expected to attend elementary schools 93% or more black. The statistics showing actual enrollment as of September 15, 1974, demonstrate that the true profiles are slightly worse. Under the School Board plan no white elementary school students were reassigned to a school that would remain predominantly black. The School Board estimated that its elementary school plan would produce a significant net reduction of transportation.

A

Unitary School System

As the Supreme Court established in Green v. School Bd. of New Kent County, 1968, 391 U.S. 430, 436, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716, 722, “The transition to a unitary, nonracial system of public education ... is the ultimate end to be brought about” in school desegregation cases. In this pursuit the school authorities and district court “will necessarily be concerned with the elimination of one-race schools.” Swann, v. Charlotte-Mecklenburg Bd. of Educ., 1971, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554, 572. The district court, relying on Ellis v. Board of Public Instruc. of Orange County, 5 Cir. 1970, 423 F.2d 203 (Ellis I), concluded, however, that the persistence of virtually all-black elementary schools in Montgomery County under the School Board’s “neighborhood assignment” plan did not prevent that system from reaching the unitary status mandated by Green. I disagree.

Ellis I approved, as modified, a student desegregation plan for Orange County, Florida, which was based on neighborhood school assignments and left several virtually all-black schools. We held that “[u]nder the facts of this case, it happens that the school board’s choice of a neighborhood assignment system is adequate to convert the Orange County school system from a dual to a unitary system.” 423 F.2d at 208, n. 7. Ellis I did not, however, automatically sanctify any “neighborhood school” student assignment plan which placed the same percentages of students in fully integrated schools. Rather, as we explicitly cautioned,

There are many variables in the student assignment approach necessary to bring about unitary school systems. The answer in each case turns, in the final analysis, as here, on all of the facts including those which are peculiar to the particular system. ^

423 F.2d at 208, n. 7. This passage has become a refrain in our school desegregation decisions. Indeed, our school desegregation cases are too numerous, their facts, figures, and conditions too particular, and our remedies too flexibly fashioned, to lend themselves to a simple sorting into neat rows. But I believe that the weight of our pre-Swann decisions adopting and adapting the neighborhood assignment approach of Ellis I do not permit us to certify the School Board’s plan for Montgomery as the achievement of a unitary system. As we concluded in Allen v. Board of Public Instruc. of Broward County, 5 Cir. 1970, 432 F.2d 362, “In the conversion from dual school systems based on race to unitary school systems, the continued existence of all-black or virtually all-black schools is unacceptable where reasonable alternatives exist.”

Even were the School Board’s plan adequate to achieve a unitary school system under Ellis I and the cases immediately following it, however, I think it manifest that the School Board’s plan cannot stand after Swann; Davis v. Board of School Comm’rs of Mobile County, 1971, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577, and Keyes v. School District No. 1, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. Swann shed new light on the constitutional requisites in school desegregation cases, and since Swann we have refused to accept mere compliance with our decision in Ellis I as the mark of a school board plan’s constitutional sufficiency. Indeed, we held in Ellis v. Board of Public Instruc. of Orange County, 5 Cir. 1972, 465 F.2d 878, cert. denied, 1973, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (Ellis II), that the school board was obliged to desegregate each all-black school remaining in Orange County under our prior holding. See also Dandridge v. Jefferson Parish School Bd., 5 Cir. 1972, 456 F.2d 552, 554, cert, denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240.

The concentration of black students in virtually all-black schools contradicts the assertion that the School Board’s plan for Montgomery establishes a unitary school system under these controlling standards. Compare, e. g., Swann, supra; Davis, supra; Ellis II, supra; Flax v. Potts, 5 Cir. 1972, 464 F.2d 865, 869, cert. denied, 1972, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299 (middle schools, high schools); Dandridge v. Jefferson Parish School Bd., 5 Cir. 1972, 456 F.2d 552, cert, denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240; cases cited, note 9 supra; see also Keyes v. School Dist. No. 1, 1973, 413 U.S. 189, 199, n. 10, 93 S.Ct. 2686, 2692, 37 L.Ed.2d 548, 558. The teaching of Swann and Keyes is that no school which reflects vestigial discrimination through its virtually single-race student body can be omitted from a desegregation plan unless inclusion is unworkable; where desegregation is possible we can tolerate no abandonment of some given portion of students locked into a uniracial educational experience.

In appraising a school board’s plan we are, of course, attentive to conditions other than racial concentrations. I cannot agree, however, with the suggestion that compliance with the remaining five of the six requirements established in Green v. School Board of New Kent County, 1968, 391 U.S. 430, 435, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716, 722 — “faculty, staff, transportation, extra-curricular activities and facilities” — can immunize the School Board’s plan. So to conclude would ignore that “[i]n Green the court spoke in terms of the whole system,” Ellis I, 423 F.2d at 204, and would disregard the recognition that student assignment is the most important single aspect of a desegregated school system. Our cases have always required compliance with all six particulars. The School Board additionally argues that the secondary schools in Montgomery County are desegregated, and points out that we have taken note of thorough integration at the secondary level, in some cases approving assignment plans which left some all-black primary schools. See Lee v. City of Troy Bd. of Educ., 5 Cir. 1970, 432 F.2d 819, 822; Hightower v. West, 5 Cir. 1970, 430 F.2d 552, 555. This argument also fails here. Even assuming arguendo that the secondary schools in Montgomery County were fully integrated, we would as in the pre-Swann cases relied upon by the School Board, attach little weight to that consideration. Moreover, as it has become quite clear, “[T]his court has, with limited exceptions [not applicable here] disapproved of school board plans which exclude a certain age grouping from school desegregation.” Arvizu v. Waco Indep. School Dist., 5 Cir. 1974, 495 F.2d 499, 503. In the light of Swann and our developed case law, it is manifest that the progressive integration of Montgomery’s high schools is no excuse for the continued failure to desegregate at the elementary level.

In sum, a neighborhood school assignment plan may be adequate if it establishes a unitary school system; but such assignment is not “per se adequate.” Davis v. Board of School Comm’rs of Mobile County, 1971, 402 U.S. at 37, 91 S.Ct. at 1292, 28 L.Ed.2d at 581. A review of the circumstances of the Montgomery County system, particularly the concentration of black elementary students in virtually all-black schools, reveals that the School Board plan approved by the district court was insufficient to achieve a unitary school system as required under Green and Swann. Such a plan can stand only if its lack of unitary status is not attributable to state action, or if no further remedy is workable.

B

Residential Patterns

The district court declined to require further desegregation of the remaining virtually all-black elementary schools in Montgomery County, in part because it considered the persistence of those schools to be “a result of residential patterns and not of the school board’s action — either past or present.” 377 F.Supp. at 1132. Because the district court’s opinion offers no supporting discussion, it is unclear whether the district court believed that the present existence of virtually all-black schools could be laid in part to residential patterns established during the period of statutory school segregation yet not induced by that state action, or that the development of racially identifiable neighborhoods since the onset of efforts to integrate the schools had precipitated the virtually all-black schools. In either event, I think the district court erred in its legal determination.

Aware that “[p]eople gravitate toward school facilities, just as schools are located in response to the needs of people,” the Supreme Court has recognized that

[t]he location of schools may . influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods.
In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system.

Swann, 402 U.S. at 20, 21, 91 S.Ct. at 1278, 28 L.Ed.2d at 569.

Moreover,

[A] connection between past segregative acts and present segregation may be present even when not apparent and . . . close examination is required before concluding that the connection does not exist. Intentional school segregation in the past may have been a factor in creating a natural environment for the growth of further segregation.

Keyes, 413 U.S. 189, 211, 93 S.Ct. 2686, 2699, 37 L.Ed.2d 548, 565.

Accordingly, the Swann Court held that while

the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that practices segregation by law [,] . . . in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority’s proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.

Swann, 402 U.S. at 26, 91 S.Ct. at 1281, 28 L.Ed.2d at 572.

The School Board may satisfy its burden “only by showing that its past segregative acts did not create or contribute to the current segregated condition of the [particular] schools.” Keyes, 413 U.S. at 211, 93 S.Ct. at 2699, 37 L.Ed.2d at 565.

There is no evidence to support a conclusion that the existence of virtually all-black neighborhood elementary schools, so far as they derive from residential patterns etched before school desegregation, is innocent of past discriminatory action by the School Board. The opinion below lacks the detailed factual findings by the district court which should reflect the “close scrutiny” required under Swann and Keyes, and the record bears no evidence to support the conclusion that the link between past and present segregation has been severed. While there is must evidence of the residential separations between whites and blacks in Montgomery, which in some cases shows that those patterns are not new, evidence of this sort is insufficient to overcome the presumption established in Swann connecting the development of persistently segregated residential patterns with state-mandated school segregation. See also Dandridge v. Jefferson Parish School Bd., 5 Cir. 1972, 456 F.2d 552, cert. denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240.

These principles establish equally well that racial segregation in the Montgomery County elementary schools cannot be excused on the ground that segregated residential patterns of some neighborhoods from which the one-race neighborhood schools draw have crystallized as the result of population shifts by private residents since the court’s initiation of school desegregation. Such an argument has previously been rejected by this Court. To be sure, the Supreme Court has made clear that after a school system attains unitary status,

the communities served by such [a system may not] remain demographically stable [;] . . . in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system.

Swann, 402 U.S. at 31-32, 91 S.Ct. at 1283, 28 L.Ed.2d at 575.

But in Montgomery a unitary system has never been achieved, for “[t]he vestiges of state-imposed segregation [have not] been eliminated from the assignment of elementary school students,” Flax v. Potts, 5 Cir. 1972, 464 F.2d 865, 868, cert. denied, 1972, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299, as required under Swann.

C

Remedy

Because the School Board’s proposed elementary school plan falls short of achieving a unitary system, and this failing cannot be attributed solely to private action, the district court should have ordered an appropriate alternative plan. As we have said before Swann and reiterated after, “[i]n the conversion from dual school systems based on race to unitary school systems, the continued existence of all-black or virtually all-black schools is unacceptable where reasonable alternatives exist.”

The district court discarded the plans proposed by the plaintiffs and plaintiffsintervenors, after determining that they aimed at balancing black/white student populations on abstract ratios, rather than simply creating a unitary assignment plan. Although the plaintiffs and plaintiffs-intervenors protest that their use of ratios as indicators of residually discriminatory school assignments remained within the bounds approved by the Supreme Court in Swann, 402 U.S. at 22-25, 91 S.Ct. at 1279-1280, 28 L.Ed.2d at 570—72, I would not hold that the district court abused its discretion in choosing not to follow those plans. Nevertheless, the elimination of those proposals did not relieve the district court of its duty to exercise its “broad power to fashion a remedy that will assure a unitary school system,” and to “make every effort to achieve the greatest possible degree of actual desegregation and . . . [eliminate] one-race schools.” Swann, 404 U.S. at 16, 26, 91 S.Ct. at 1281, 28 L.Ed.2d at 567, 572. Upon determining that none of the alternatives presented was satisfactory, the district court should have held further proceedings to forge a workable and effective plan. See Cisneros v. Corpus Christi Indep. School Dist., 5 Cir. (en banc) 1972, 467 F.2d 142, 152, cert. denied, 1973, 413 U.S. 922, 93 S.Ct. 3052, 37 L.Ed.2d 1044. The district court could support its failure so to proceed only by a conclusion that no further desegregation of the elementary school population was workable on any plan.

The School Board has consistently maintained that no workable means exists for increasing desegregation in • the elementary schools, and the district court agreed, finding “that the remaining predominantly black schools cannot be effectively desegregated in “a practical and workable manner” and that the School Board plan achieved “the greatest possible degree of actual desegregation, taking into account the ‘practicalities of the situation.’ ” 377 F.Supp. at 1135. These conclusions are drawn on insufficient or improper factual considerations, however, and are thus inadequate as a matter of law.

The district court reasoned that any further elementary school desegregation would require cross-busing of black and white students which “would not, under the circumstances of this case, accomplish any realistically stable desegregation.” 377 F.Supp. at 1132. The opinion carries no discussion or subsidiary findings to explain its concern with the stability of desegregation. Apparently the district court was persuaded by the School Board’s attempt to demonstrate that busing of white children into black neighborhoods to attend traditionally black schools would in many cases be met with withdrawal of white students from those schools. But it is well settled that the threat of “white flight,” however likely, cannot validate an otherwise insufficient desegregation remedy. To the extent that it considered white flight as a factor requiring the moderation of desegregation otherwise to be ordered, the district court was in error.

The opinion below does not sufficiently explicate the remaining factors (other than stability) that the district court appraised and the reasoning it followed in determining that no further elementary school desegregation was feasible beyond that suggested by the School Board. The district court simply specified the totals of children to be reassigned and the number of students to be newly bused under the plaintiffs’ and plaintiffs-intervenors’ plans; observed without any specific findings that busing would involve a substantial increase in the time and distance that students would have to travel to school; and then concluded that the plaintiffs’ — but not the plaintiffs-intervenors’ — -plan “would be disruptive to the educational processes and would place an excessive and unnecessarily heavy administrative burden on the school system.” These findings are an inadequate foundation on which to rest either a determination of the unworkability of the proposed plans or a conclusion that no improvement of the Board’s solution could be obtained. Nor does the face of the record reveal any inherent obstacle to the progress of all further desegregation in Montgomery through the instruments of zoning, pairing, and busing. Each of these tools has been approved in Swann, 402 U.S. at 27-29, 91 S.Ct at 1281-82, 28 L.Ed.2d at 573—74, and Cisneros v. Corpus Christi Indep. School Dist., 5 Cir. (en banc) 1972, 467 F.2d 142, 152-53, cert. denied, 1973, 413 U.S. 922, 93 S.Ct. 3052, 37 L.Ed.2d 1044, and repeatedly utilized in this circuit.

We have, where necessary, required both rezoning and pairing or clustering; and while pairing may not be the remedy of first resort, we have said and repeated that “where all-black or virtually all-black schools remain under a zoning plan, but it is practicable to desegregate some or all of the black schools by using the tool of pairing, the tool must be used.” The record, insofar as it reveals the administrative practicalities associated with rezoning and pairing or clustering, does not appear to preclude the imposition of all measures beyond those desired by the School Board. The record fails to indicate in any way how Montgomery’s situation differs from the conditions existing in any of the many other school districts in which we have specified that these measures be employed. Indeed, examination of the record suggests the feasibility of their utilization in several instances. Accordingly, I would hold that the district court erred in approving the School Board plan, and remand the cause for implementation of a constitutionally sufficient plan.

The district court entered no specific findings regarding the extent in time or miles of additional busing required to implement any of the desegregation plans before it, nor did it express any conclusions as to whether “the time or distance of travel [under any possible plan was] so great as to either risk the health of the children or significantly impinge on the educational process.” Swann, 402 U.S. at 30-31, 91 S.Ct. at 1283, 28 L.Ed.2d at 575. Certainly it is clear that the School Board plan employs less than the maximum busing possible, since it anticipates a significant reduction in elementary school student busing in the year of implementation. Accordingly, I would direct that in analyzing remedies for desegregation of the Montgomery schools on remand, the district court should consider the implementation of additional busing as necessary to accomplish new zoning, pairing, or clustering.

To summarize, I would hold that the district court erred in adopting the School Board plan, because that plan falls short of the constitutional mark, and because there is no indication of the unworkability of a Constitutional remedy. I do not believe the district court’s result can be upheld on any of the arguments advanced, whether independently or cumulatively considered. If there be no other way to desegregate, the tools of pairing and clustering must be used to relieve the barricaded and beleaguered blacks from their school garrisons. These mixing mechanisms have received judicial blessing, and they must be employed unless manifestly unusable for constitutional reasons. Other innovations may be considered. Nothing to achieve the constitutional mandate to desegregate can be avoided because of whimsy, white flight and fright, inconvenience, annoyance or any other actual or conjured excuse. Desegregation of education is a constitutional necessity and not an optional luxury, and bland generalities will not suffice to justify segregated schools.

I would be unwilling to require the immediate implementation of any of the alternative elementary school plans presented, however, in light of the district court’s determination that the plans of the plaintiffs and plaintiffs-intervenors were generated to achieve racial ratios beyond and in contravention of the mandate of Swann, in light of the state of the record, and in light of the opportunity remaining for the district court to refine and meld the various plans before it. Rather I would remand the case to the district court for further proceedings to develop a proper plan. We have in the past required specific and detailed findings to accompany the district court’s selection of a desegregation remedy that promises to be less effective than alternative plans for establishing a unitary school system. This requirement is meant to secure to the reviewing court the full advantages of the factual appraisals and perspective of the particularly well-situated trial court, in order to maximize the benefits of the district court’s informed discretion. Cf. Brown v. Board of Educ. of Topeka, 1955, 349 U.S. 294, 299-300, 75 S.Ct. 753, 755-756, 99 L.Ed. 1083, 1105-06 (Brown IT). Thus I would direct that, if the district court should approve on remand a plan less than fully effective in establishing a unitary school system in Montgomery County, it must support its conclusion with precise and detailed findings of fact, keeping in mind Swann’s heavy burden upon school officials to legitimate any less than thorough desegregation plan on grounds of unworkability;

All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.

402 U.S. at 28, 91 S.Ct. at 1282, 28 L.Ed.2d at 573. Many practicalities affect the judgment and aims of school authorities in pursuing their daily occupation of maintaining a pragmatic educational system. But when the constitutionally mandated establishment of a unitary school system rests in the balance, workaday practicalities are no longer determinative factors. The conservation of such daily efficiencies may have been a considered objective in the days of Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, but Brown v. Board of Educ. of Topeka, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I), has taken us down a new road. Brown and its post-adolescent progeny have imposed upon school authorities and courts an affirmative duty to see that such stumbling blocks in the path of desegregation are relegated to a footnote in history. As we observed in a prior Montgomery case, “This obligation is unremitting, and there can be no abdication, no matter how temporary.” A school board’s plan may have any number of advantages when appraised in ordinary perspective, but these give way where they impede the progress of desegregation; convenience as well as custom must bend to constitutional prescription.

Given my resolution of this aspect of the attack on the School Board’s plan for the elementary grades, I would find it unnecessary to consider at this time whether that plan imposes a discriminatorily harsh burden on the black students.

Ill

Junior High School Plan

The junior high school student assignment plan in effect in the Spring of 1974 left over half of the black students in 7 junior high schools which were over 85% black. The School Board plan, as implemented by the district court, proposed to reduce this concentration through rezoning, peripheral reassignments, and the elimination of three black schools; the district court projected that McIntyre Junior High, enrolling 792 of the County’s black junior high students (18%) would remain the only junior high facility more than 80% black under the School Board plan.

Both the plaintiffs and plaintiffs-intervenors submitted alternative plans for desegregation at the junior high level. The plaintiffs proposed to modify the basic School Board plan through additional busing to achieve a closer racial balance at McIntyre and two other junior high schools left substantially black under the Board plan, Bellingrath and Baldwin. The plaintiffs-intervenors projected a 65% black student body at McIntyre, and a less than 60% black enrollment at each of 8 other junior high schools within the City, under a plan of new elongated but continuous strip zones, with transportation to be provided within each zone where necessary. In adopting the School Board plan for the junior high schools, the district court dismissed these alternative proposals as too inflexibly wedded to abstract racial balancing, and suggested that they were unfeasible. Emphasizing the isolation of McIntyre as the only virtually all-black junior high remaining under the School Board plan, the district court held that “under the circumstances that exist in the Montgomery school system” no further requirement of desegregation could be imposed upon the County. 377 F.Supp. at 1139.

Unfortunately, the data revealing the actual desegregation at the junior high schools accomplished under the School Board plan, as of September 15, 1974, show that “the circumstances” have changed. False to predictions, the student body at McIntyre Junior High is 98% black, Baldwin is 85% black, and Bellingrath is, as I compute it, 81% black. Thus, more than a quarter of the black junior high school students in the City are locked in schools 85% or more black, and nearly 40% in schools 80% or more black.

I would not pass now on the academic question of the acceptability of the School Board plan as proposed and implemented by the district court. It is now clear that the School Board plan has been unsuccessful, as implemented, in accomplishing desegregation at the junior high level, and there is no indication on the record that the present circumstances are beyond remedy. As the previous discussion of the elementary school plan should make clear, the School Board plan for the junior high schools cannot stand as it appears, unless improvement is unworkable. The record does not suggest what remedial plan might be employed at this stage. I would leave that difficulty for resolution by the district court, following whatever further proceedings it might find to be necessary. I would emphasize again, however, that the district court’s order should be accompanied with supporting findings and conclusions of sufficient precision and detail to fully apprise a reviewing court of its reasons and understanding.

IV

Conclusion

We deal here with a school system whose roots were segregated by law. There is no indication that those roots have withered away, and that the racial separation in the present system is anything but the fruit of a tainted crop. The School Board still plans to cultivate its gardens separately; and it does hot promise ever to integrate in any future season. Rather, its plan guarantees perennial one-'race educational experiences for over a third of the black students within its elementary and junior high schools. Desegregation is not impossible in Montgomery. It might be uncomfortable, expensive, disturbing, or even disconcerting. But these words are not amendments to the Fourteenth Amendment’s commands. Much progress has been made in Montgomery school desegregation, but medals earned for past performance cannot justify contemporary failure. I am confident that our respected, scholarly, and courageous trial judge did not hesitate to apply the law correctly as he saw it to the facts before him in Montgomery. I firmly believe, however, that that view of the law is erroneous and in conflict with previous decisions of this Court and the Supreme Court of the United States.

I would reverse the order of the district court insofar as it adopts and implements the School Board plans for elementary and junior high schools in Montgomery County, and remand the cause for such further proceedings as

would be necessary to bring Montgomery County to a unitary system. In order to permit the district court to reconsider its award of costs against the plaintiffs and -plaintiffs-intervenors in light of further proceedings, I would vacate the judgment awarding costs in favor of the School Board.

APPENDIX A

Adoption of the School Board plan produces the following profiles of the elementary school student bodies:

Footnotes to Appendices

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBER-RY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

GOLDBERG, Circuit Judge,

with

whom

BROWN, Chief Judge, and WISDOM and THORNBERRY, Circuit Judges, join (dissenting):

I respectfully dissent from the order denying the petition for rehearing and petition for rehearing en banc, for the reasons stated in my dissenting opinion 511 F.2d 1374.

       See note 37.

       These figures represent normal capacity for combined elementary and junior high grades.

       Estimated figures. For their computation see note 38.

       Estimated figures. According to the dislrict court's opinion projected attendance at the Floyd facility was to be 467 (148 black, 319 white) at the elementary level, and 829 (288 black, 541 white) at the junior high level. Actual enrollment listed by the School Board Is a combined total of 1141 (399 black, 742 white) students; no break-down is given as to grade levels. For sake of simplicity, in estimating actual enrollment I have simply reduced the projected enrollments of students at both levels proportionally, according to projected and actual enrollments, by race. I would, of course, direct that on remand the district court should proceed to determine the actual enrollment figures with certainty.

       Projected figures. No actual figures given.

         See note 37.

      . Carr v. Montgomery County Bd. of Educ., M.D.Ala., 1964, 232 F.Supp. 705; further relief ordered, 1966, 253 F.Supp. 306; further relief ordered, 1968, 289 F.Supp. 647, aff’d, 5 Cir., 400 F.2d 1, aff’d, 1969, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263, further relief ordered by district court, 1970, [unreported], aff’d with modifications, 5 Cir. 1970, 429 F.2d 382.

      . I rely here upon the figures referenced in the district court’s opinion, although the plaintiffs-intervenors assign some minor inaccuracies thereto.

      . These students attended Dunbar Elementary School (1-6), and Montgomery County High School (7-12), both of which remain virtually all-black under all plans proposed to the district court.

      . During the 1973-74 term, some 5,388 elementary school students, 3,759 junior high students, and 2,029 senior high students were bused.

      . See Appendix C; see also note 35 infra.

      . See Appendix A & note 37 infra.

      . The district court’s opinion below, 377 F.Supp. at 1137 n.36, erroneously reads the Ellis I opinion as approving the degree of desegregation under the Orange County plan without modification.

      . See, e. g., Henry v. Clarksdale Mun. Sep. Sch. Dist., 5 Cir. 1970, 433 F.2d 387, 390; Andrews v. City of Monroe, 5 Cir. 1970, 425 F.2d 1017, 1019.

      . See, e. g., Ross v. Eckels, 5 Cir. 1970, 434 F.2d 1140, cert. denied, 1971, 402 U.S. 953, 91 S.Ct. 1614, 29 L.Ed.2d 123; Valley v. Rapides, 5 Cir. 1970, 434 F.2d 144; Conley v. Lake Charles School Bd., 5 Cir. 1970, 434 F.2d 35; Allen v. Board of Public Instruc. of Broward County, 5 Cir. 1970, 432 F.2d 362, cert. denied, 1971, 402 U.S. 952, 91 S.Ct. 1609, 1612, 29 L.Ed.2d 123; Pate v. Dade County School Bd., 5 Cir. 1970, 434 F.2d 1151, cert. denied, 1971, 402 U.S. 953, 91 S.Ct. 1613, 29 L.Ed.2d 123; Bradley v. Board of Public Instruc. of Pinellas County, 5 Cir. 1970, 431 F.2d 1377, cert. denied, 1971, 402 U.S. 943, 91 S.Ct. 1608, 29 L.Ed.2d 111; Hightower v. West, 5 Cir. 1970, 430 F.2d 552; Mannings v. Board of Public Instruc. of Hillsborough County, 5 Cir. 1970, 427 F.2d 874. In each of these “neighborhood assignment” cases we required that the concentration of black students attending virtually all-black schools be reduced far below the level accomplished under the School Board plan for Montgomery. This is not, of course, to disregard the complex of other variables present in each case. See also Wright v. Board of Public Instruc. of Alachua County, 5 Cir. 1970, 431 F.2d 1200.

      . Quoted with approval in Boykins v. Fair-field Bd. of Educ., 5 Cir. 1972, 457 F.2d 1091, 1095.

      . We found the Orange County system could be unitary, however, although two elementary schools, to which 7% of the system’s black elementary students were assigned, continued with 79% black enrollments, where 14% of the system’s black students had employed the majority to minority transfer program.

      . Compare Lee v. Macon County Bd. of Educ. (Anniston), 5 Cir. 1973, 483 F.2d 244 (post-Swann), with Lee v. Macon County Bd. of Educ. (Anniston), 5 Cir. 1970, 429 F.2d 1218 (pre-Swann). But cf. Lee v. Macon County Bd. of Educ. (Troy), 5 Cir. 1973, 475 F.2d 748 (apparently denying interim relief only).

      . See 377 F.Supp. at 1138. I assume arguendo that the Board plan complies with the remaining five benchmarks enumerated in Green.

      . See, e. g., Eilis II, supra; Valley v. Rap-ides, 5 Cir. 1970, 434 F.2d 144; Allen v. Board of Public Instruc. of Broward County, 5 Cir. 1970, 432 F.2d 362, cert. denied, 1971, 402 U.S. 952, 91 S.Ct. 1609, 1612, 29 L.Ed.2d 123; Pate v. Dade County School Bd., 5 Cir. 1970, 434 F.2d 1151, cert. denied, 1971, 402 U.S. 953, 91 S.Ct. 1613, 29 L.Ed.2d 123; Henry v. Clarksdale Mun. Sep. School Dist., 5 Cir. 1970, 433 F.2d 387; Bradley v. Board of Public Instruc. of Pinellas County, 5 Cir. 1970, 431 F.2d 1377, cert. denied, 1971, 402 U.S. 943, 91 S.Ct. 1608, 29 L.Ed.2d 111; City of Monroe v. Andrews, 5 Cir. 1970, 425 F.2d 1017. See generally Singleton v. Jackson Mun. Sep. School Dist., 5 Cir. (en banc) 1970, 419 F.2d 1211.

      . In some cases it may prove necessary to avoid transportation of school children of very tender age, see generally Swann, 402 U.S. at 31, 91 S.Ct. at 1283, 28 L.Ed.2d at 575; Cisneros v. Corpus Christi Indep. School Dist., 5 Cir. (en banc) 1972, 467 F.2d 142, 153, cert. denied, 1973, 413 U.S. 922, 93 S.Ct. 3052, 37 L.Ed.2d 1044. But such exceptions are carefully limited, see, e. g., Flax v. Potts, 5 Cir., 1972, 464 F.2d 865, 869, cert. denied, 1972, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299; Lockett v. Board of Educ. of Muscogee County School Dist., 5 Cir. 1971, 447 F.2d 472, 473; cf. Lee v. Macon County Bd. of Educ., 5 Cir. 1973, 475 F.2d 748 (apparently denying interim relief only).

      . In cases where racially identifiable primary schools cannot feasibly be eradicated, of course, a district court should endeavor particularly to insure that students from such schools will graduate to fully integrated schools.

      . The record discloses that of the 11 elementary schools which retain a projected black population over 80% under the School Board’s “neighborhood assignment” plan, 8 (all but Bellinger Hill, Davis, and Pintlala) had been black schools before 1970.

      . See Flax v. Potts, 5 Cir. 1972, 464 F.2d 865, 868, cert. denied, 1972, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299; cf. Boyd v. Pointe Coupee Parish School Bd., 5 Cir. 1974, 505 F.2d 632; Hereford v. Huntsville Bd. of Educ., 5 Cir. 1974, 504 F.2d 857; Adams v. Rankin, 5 Cir. 1973, 485 F.2d 324.

      . Cf. Ellis v. Board of Public Instruc. of Orange County, 5 Cir. 1972, 465 F.2d 878, 87—80, cert. denied, 1973, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (Ellis IT); Dandridge v. Jefferson Parish School Bd., 5 Cir. 1972, 456 F.2d 552, 554, cert. denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240. Moreover, there is even some indication of Montgomery County School Board action since the onset of court-ordered desegregation which may tend to perpetuate the dual system. As the district court found at a prior stage in this litigation, the location and extent of construction and expansion of elementary and secondary schools in Montgomery County have “been designed to perpetuate, and have the effect of perpetuating, the dual school system.” Carr v. Montgomery County Bd. of Educ., M.D.Ala.1968, 289 F.Supp. 647, 652. See generally, Swann, 402 U.S. at 18—21, 91 S.Ct. at 1277, 28 L.Ed.2d at 568-70; cf. Keyes, 413 U.S. at 201-05, 93 S.Ct. at 2694-2695, 37 L.Ed.2d at 559-61.

      . Allen v. Board of Educ. of Broward County, 5 Cir. 1970, 432 F.2d 362, 367, cert. denied, 1971, 402 U.S. 952, 91 S.Ct. 1609, 1612, 29 L.Ed.2d 123, quoted in Boykins v. Fairfield Bd. of Educ., 5 Cir. 1972, 457 F.2d 1091, 1095.

      . The district court also forecast that the plans of the plaintiffs and plaintiffs-intervenors would provide only “an extremely unstable desegregated system.” 377 F.Supp. at 1131.

      . See, e. g., Transcript, April 24, 1974, at 240.

      . See, e. g., Monroe v. Board of Commissioners of City of Jackson, 1968, 391 U.S. 450, 459, 88 S.Ct. 1700, 1704, 20 L.Ed.2d 733, 739; Lee v. Macon County Bd. of Educ. (Marengo), 5 Cir. 1972, 465 F.2d 369; United States v. Hinds County School Bd., 5 Cir. 1969, 417 F.2d 852, 858, cert. denied, 1970, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 531; Lee v. Macon County Bd. of Educ. (Pickens), M.D. Ala. (3 judge) 1970, 317 F.Supp. 95, 98-99. Cf, e. g., Boyd v. Pointe Coupee Parish School Bd., 5 Cir. 1974, 505 F.2d 632; Hereford v. Huntsville Bd. of Educ., 5 Cir. 1974, 504 F.2d 857; Adams v. Rankin, 5 Cir. 1973, 485 F.2d 324.

      . See, e.g., Conley v. Lake Charles School Bd., 5 Cir. 1970, 434 F.2d 35, 39-41; Valley v. Rapides Parish School Bd., 5 Cir. 1970, 434 F.2d 144, 147; Pate v. Dade County School Bd., 5 Cir. 1970, 434 F.2d 1151, 1158, cert. denied, 1971, 402 U.S. 953, 91 S.Ct. 1613, 29 L.Ed.2d 123; Bradley v. Board of Public Instruc. of Pinellas County, 5 Cir. 1970, 431 F.2d 1377, 1381-83, cert. denied, 1971, 402 U.S. 943, 91 S.Ct. 1608, 29 L.Ed.2d 111. See also Wright v. Board of Public Instruc. of Alachua County, 5 Cir. 1970, 431 F.2d 1200.

      . See, e.g., Weaver v. Board of Public Instruc. of Brevard County, 5 Cir. 1972, 467 F.2d 473, cert. denied, 1973, 410 U.S. 982, 93 S.Ct. 1498, 36 L.Ed.2d 177; Flax v. Potts, 5 Cir. 1972, 464 F.2d 865, 868-69, cert. denied, 1972, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299; Ross v. Eckels, 5 Cir. 1970, 434 F.2d 1140, 1148, cert. denied, 1971, 402 U.S. 953, 91 S.Ct. 1614, 29 L.Ed.2d 123; Henry v. Clarksdale Mun. Sep. School Dist., 5 Cir. 1970, 433 F.2d 387, 394-95; Allen v. Board of Public Instruc. of Broward County, 5 Cir. 1970, 432 F.2d 362, 367-71 (citing additional cases), cert. denied, 1971, 402 U.S. 952, 91 S.Ct. 1609, 1612, 29 L.Ed.2d 123. See also Miller v. Board of Educ. of Gadsden, 5 Cir. 1973, 482 F.2d 1234; Boykins v. Fairfield Bd. of Educ., 5 Cir. 1972, 457 F.2d 1091, 1095; Andrews v. City of Monroe, 5 Cir. 1970, 425 F.2d 1017, 1021.

      . Allen v. Board of Public Instruc. of Bro-ward County, 5 Cir. 1970, 432 F.2d 362, 367, cert. denied, 1971, 402 U.S. 952, 91 S.Ct. 1609, 29 L.Ed.2d 123, quoted in Flax v. Potts, 5 Cir. 1972, 464 F.2d 865, 868, cert. denied 1972, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299, and Boykins v. Fairfield Board of Educ., 5 Cir. 1972, 457 F.2d 1091, 1095.

      . See Cisneros v. Corpus Christi Indep. School Dist., 5 Cir. (en banc) 1972, 467 F.2d 142, 153, cert, denied, 1973, 413 U.S. 922, 93 S.Ct. 3052, 37 L.Ed.2d 1044; Conley v. Lake Charles School Bd., 5 Cir. 1970, 434 F.2d 35, 39.

      . In regard to the initial administrative difficulties associated with re-zoning and pairing, we emphasize “[t]he fact that a temporary, albeit difficult, burden may be placed on the School Board in the initial administration of the plan . . . does not justify in these circumstances the continuation of a less than unitary school system and the resulting denial of an equal educational opportunity to a certain segment of the [County] children.” Dandridge v. Jefferson Parish School Bd., E.D.La. 1971, 332 F.Supp. 590, 592, stay denied, 1971, 404 U.S. 1219, 92 S.Ct. 18, 19, 30 L.Ed.2d 23, 24 (Marshall, J., in chambers; quoting cited language with approval), aff’d, 5 Cir. 1972, 456 F.2d 552, cert. denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240.

      . See Cisneros v. Corpus Christi Indep. School Dist., 5 Cir. 1972, 467 F.2d 142, 153, cert. denied, 1973, 413 U.S. 922, 93 S.Ct. 3052; 37 L.Ed.2d 1044.

      . Significantly, the extent — in terms of the number of pupils involved, and apparently the length of the trips — of additional elementary student busing envisioned in connection with the plaintiffs-intervenors’ plan very closely parallels the increase in elementary school busing under the desegregation plan implemented in Swann, as reflected in the opinions in the Supreme Court, 402 U.S. at 29-31, 91 S.Ct. at 1282-1283, 28 L.Ed.2d at 574-75, and the Fourth Circuit, 1970, 431 F.2d 138, 144-47.

      . Cf. Adams v. Rankin County Bd. of Educ., 5 Cir. 1973, 485 F.2d 324, 326; Andrews v. City of Monroe, 5 Cir. 1970, 425 F.2d 1017, 1021.

      . See, e.g., Adams v. Rankin County Bd. of Educ., 5 Cir. 1973, 485 F.2d 324, 326; Boy-kins v. Fairfield Bd. of Educ., 5 Cir. 1972, 457 F.2d 1091, 1097; Andrews v. City of Monroe, 5 Cir. 1970, 425 F.2d 1017, 1021; cf also, Winston-Salem/Forsyfh County Bd. of Educ., 1971, 404 U.S. 1221, 1226-27, 92 S.Ct. 1236, 1239, 31 L.Ed.2d 441, 446 (Burger, C. J., in chambers).

      . See also Green v. School Bd. of New Kent County, 1968, 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716, 724.

      . Carr v. Montgomery County Bd. of Educ., 5 Cir. 1970, 429 F.2d 382, 386.

      . The district court’s opinion, following the style of the School Board plan, treats the some 252 (233 black, 19 white) junior high school students in attendance at the Montgomery County High facility as senior high school students. The apparent premise to this treatment is that “[i]t is conceded by all parties that Montgomery County High School cannot be effectively desegregated because of its isolation.” 377 F.Supp. at 1138, n. 37. This conclusion is not contested here, although the plaintiffs-intervenors’ plan did propose to reduce the junior high class at Montgomery County High from 92% to 82% black. My figures follow the style of the district court.

      . The district court found that the plaintiffs’ proposed plan would require reassignment of 36% of the junior high student body, and additional transportation of about 17%; the plaintiffs-intervenors’ plan was forecast to require reassignment of 50-60% and additional busing of some 20%. (The plaintiffs-intervenors assert that the opinion below is clearly erroneous in its computation of busing required under their junior high plan; I would not pass on the issue at this time.) The district court did not enter any findings regarding the proportion of students reassigned, projected to be reassigned, or newly transported under the School Board plan. Nor does the opinion below reveal any specific conclusions regarding the significance of the burdens in reassigning or transporting additional students, except that the McIntyre facility “is impossible to effectively desegregate in a stable and workable manner.” 377 F.Supp. at 1132.

      . See Appendix B. The actual enrollment figures as of September 15, 1974, are taken from the School Board’s October 1, 1974, report to the District Court, per that court’s order. These figures are not challenged by any other parties. See Davis v. Board of School Comm’rs of Mobile County, 1971, 402 U.S. 33, 37, 91 S.Ct. 1289, 1291, 28 L.Ed.2d 577, 580. This data is utilized in Appendices A, B, and C.

      . The actual enrollment figures for Bellingrath, as of September 15, 1974, are estimations. According to the district court’s opinion, projected attendance at the Bellingrath facility was to be 215 (115 black, 100 white) at the elementary level and 1049 (659 black, 390 white) at the junior high level. Actual enrollment as of September 15, 1974, listed by the School Board is a combined total of 911 (681 black, 230 white) students; no breakdown is given as to grade levels. The total actual attendance at Bellingrath is considerably lower than the total projected attendance. The net over-projection is 93 black students (12% of projection), and 260 white students (53% of projection). In estimating actual attendance, I have, conservatively, attributed the total decrease to the junior high level, where the enrollment was projected to be 62% black, and for which the zone was to be significantly shifted for 1974-75. I would, of course, direct that on remand the district court proceed to determine the actual enrollment figures with certainty.

      . These percentages do not include the junior high students at the Montgomery County Senior High facility. See note 35 infra.

      . Cf., e. g., Boyd v. Pointe Coupee Parish School, 5 Cir. 1974, 505 F.2d 632; Hereford v. Huntsville Bd. of Educ., 5 Cir. 1974, 504 F.2d 857; Adams v. Rankin County Bd. of Educ., 5 Cir. 1973, 485 F.2d 324, 325-26.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Marshall W. CLARK, Jr., Appellant, v. Caspar WEINBERGER, Secretary of the United States Department of Health, Education and Welfare, Appellees.
    Cal. No. 576, Docket 74-2358.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 15, 1975.
    Decided Jan. 24, 1975.
    Kenneth Goodman, St. Albans, Vt. (Douglas L. Molde, Vermont Legal Aid, Jnc., St. Albans, Vt.), for appellant.
    William B. Gray, Asst. U. S. Atty., District of Vermont (George W. F. Cook, U. S. Atty., District of Vermont, and Samuel C. Fish, Regional Atty. and George Eng, Asst. Regional Atty., Dept, of Health, Education and Welfare, Boston, Mass., of counsel), for appellee.
    Before WATERMAN, FRIENDLY and GURFEIN, Circuit Judges.
   PER CURIAM:

Appeal from an order of the United States District Court for the District of Vermont. The order is affirmed on the opinion of Honorable James S. Holden, Chief Judge of the United States District Court for the District of Vermont, 389 F.Supp. 1168.


author: COLEMAN, Circuit Judge.

text:
    Willie B. JONES et al., Plaintiffs-Appellants, v. TRI-COUNTY ELECTRIC COOPERATIVE, INC., Defendant-Appellee.
    No. 74-1991.
    United States Court of Appeals, Fifth Circuit.
    April 25, 1975.
    Kent Spriggs, Tallahassee, Fla., Jack Greenberg, Legal Defense Fund, Morris J. Bailer, Marilyn Holifield, New York City, for plaintiffs-appellants.
    . Ernest M. Page, Jr., Madison, Fla., for defendant-appellee.
    Before TUTTLE, COLEMAN and SIMPSON, Circuit Judges.
   COLEMAN, Circuit Judge.

In December, 1971, Willie B. Jones, James A. Ealy, and John C. McGhee, appellants herein, applied for jobs with TriCounty Electric Cooperative, Inc., a member owned co-operative public utility engaged in the distribution of electric power to rural consumers. All three appellants are black residents of Madison County, Florida. The appellants were not hired. When, without telling them of the openings, Tri-County filled two vacancies in January and February of 1972 appellants filed a class action suit, 42 U.S.C. § 1981, alleging racial discrimination, seeking back pay, attorneys’ fees, and an injunction to prohibit further racial discrimination in employment.

After a bench trial, the District Court found no racial discrimination in either the rejection of the appellants or in defendant’s hiring or job assignment practices. It denied appellants’ request for an injunction and other relief. On appeal, appellants contend that the evidence does not support these findings. Upon the record, briefs, and oral argument we agree. We reverse and remand for a new trial on all issues, including the question of attorneys’ fees.

Tri-County provides electric power to the rural portions of Jefferson, Madison, and Taylor Counties in Florida. As already indicated, it is a co-operative, nonprofit, membership corporation, owned by its member-consumers. It maintains a complement of fifty employees. At the time suit was filed, in March, 1972, only one of the fifty was black, and he was employed as a janitor.

In its original posture, appellants’ complaint purported to represent a class composed of “all present and potential black employees and applicants for employment at the facilities operated by defendant and all black former employees discharged because of their race”. Prior to trial, the District Court held that appellants did not represent present or past black employees [there was only one] and conditionally allowed them to continue, limiting their representation to a class composed of “past, present, and future applicants for employment”.

Section 2000e et seq., 42 U.S.C. (Title VII of the Civil Rights Act of 1964), was approved by the President July 2, 1964. Nevertheless, between that date and 1971, only one black person had applied to Tri-County for employment, resulting in being hired as a janitor.

Between January 1971 and September, 1973, there were twenty-three black applicants, of whom eight were hired. In the same time period, 159 whites applied, of whom thirty-five were hired. Thus, as the District Court pointed out, 24% of all the applicants were hired. 34% of the black applicants were hired; 22% of the white applicants were employed. This is an instance, however, in which percentage statistics, standing alone, fail to convey the full picture.

First, the organization had employed only one black person during the first seven years the Act was in effect. Second, regardless of the percentages, with this past history of non-black employment, after this lawsuit was filed the Cooperative hired eight black persons while hiring thirty-five white individuals.

In view of circumstances existing at the time of the filing of this suit the percentage of the applicants of either race hired is irrelevant. The statistics which the Courts have always considered is the racial composition of the employer’s work force as compared to the percentage of the minority population in the employer’s service area. Here the three counties served by the defendant had a population which was approximately 40% non-white; before the suit was filed there was one black employee, at no time following the filing of this suit did the employer ever maintain a work force of more than about 10% non-white. While a total of eight black applicants were hired and at some time actually worked for the defendant, it should be noted that no more than four of these ever worked for the defendant at any one time. The record shows that four of the blacks hired filled a single position at one time or another on the Perry ground crew, while two others were successive holders of a single position on Madison Crew No. 1. Further, of the nine blacks hired in the history of the company, only four were employed at the time of trial.

Moreover, the record is devoid of affirmative steps to eradicate the effects of past discrimination. The employer appears to have promulgated or publicized no objective, employment-related criteria for hiring, regardless of the race of the applicant.

The General Manager of Tri-County testified that in the six months following appellants’ applications, ten people were hired, four of whom were black. One of them never reported to work.

Burnett gave the following explanation as to why the six whites employed were given preference over the appellants:

White Date Position Reason Prior Person Preferred ElecHired Over trical Appellants Experi_ence
E. Desmore 12/28/71 Lineman Lived in None Jefferson County
D. Coker 1/31/72 Groundman I knew him None personally, experienced with electric motors
S. Tackett 2/3/72 Office Experience None Clerk as Draftsman
R. Anderson 5/72 Sprayer Had None & Driver chauffeur's license
L. Parker 6/9/72 Serviceman Married, None Helper willing to stand by at night
S. Reney 6/23/72 Linecrew Neat hand- None Helper writing

Of course, disparities in the employment of black and white employees may be justified by proper business necessity, Bolton v. Murray Envelope Corporation, 5 Cir., 1974, 493 F.2d 191, 196, rehearing en banc denied 495 F.2d 1372 (1974). But the above testimony is innocent of such justification.

We now turn from the general employment situation to the circumstances appertaining to the appellants.

The record shows that when McGhee applied to Tri-County he had just been discharged from the Air Force, where he was trained as an aircraft mechanic and in the ground installation and maintenance of electrical wiring systems. He was a high school graduate with 15-20 quarter hours of academic work through correspondence. While waiting for TriCounty to pass on his examination, he enrolled in North Florida Junior College.

Jones is a high school graduate with no prior electrical work experience. Ealy is a high school graduate who appears to have gained experience while in service installing and maintaining telephone wires.

The District Court found Tri-County innocent of any Title VII violations, apparently in reliance on the favorable percentage statistics achieved after this litigation was filed. The factors herein-above discussed so severely disarm the statistics, in fact, so completely contradict their ordinary impact, that the case must be remanded for a full rehearing on all issues, under appropriate standards, with resolution accordingly, including the matter of attorneys’ fees.

See, e. g., Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Pettway v. American Cast Iron Pipe Company, 5 Cir., 1974, 494 F.2d 211; Bolton v. Murray Envelope Corporation, supra.

Reversed and remanded for further proceedings not inconsistent herewith.

      . In addition to this ten there were employed an electrician and a secretary — -jobs which the general manager apparently assumed none of the class represented by the appellants would be qualified to fill.


author: COFFIN, Chief Judge. ALDRICH, Senior Circuit Judge

text:
    Richard CARROLL et al., Plaintiffs-Appellants, v. PROTECTION MARITIME INSURANCE CO., LTD., et al., Defendants-Appellees.
    No. 74-1309.
    United States Court of Appeals, First Circuit.
    Argued Dec. 3, 1974.
    Decided Feb. 19, 1975.

      Alan R. Hoffman, Boston, Mass., with whom Michael B. Latti and Kaplan, Lat-ti & Flannery, Boston, Mass., were on brief, for plaintiffs-appellants.
    Solomon Sandler, Gloucester, Mass., with whom Sandler, Sandler & Laramee, Gloucester, Mass., was on brief, for defendants-appellees.
    Before COFFIN, Chief Judge, and ALDRICH and McENTEE, Circuit Judges.
   COFFIN, Chief Judge.

Plaintiffs, seamen and commercial fishermen, appeal the dismissal of their complaint against defendants, the marine protection and indemnity insurers of fishing vessels on which plaintiffs work. Plaintiffs assert that because they have in the past brought personal injury actions against their employers, they are now being denied employment through the practices of defendants. The defendants are alleged to have “listed” plaintiffs, i. e., to have notified vessel owners that some of the plaintiffs (“class A”) would not be covered by defendants’ insurance policies and that others (“class B”) would be covered, but at much higher rates. Since marine insurance was not, allegedly, readily available elsewhere, vessel owners were forced to discharge or refuse employment to plaintiffs. Defendants’ alleged purpose was to reduce insurance claims and cost of settlements, and, accordingly, to reduce operating costs enabling defendants to sell marine insurance at an artificially low rate. The intended result was not only the discharge of plaintiffs from existing jobs and inability of plaintiffs to obtain new jobs, but a conspiracy in restraint of trade.

This basic set of allegations is distilled from a “Further Amended Complaint” of fifty pages and twelve counts which need not be summarized in any detail. It suffices to say that the complaint embraced several theories; a maritime cause of action for tortious interference with plaintiffs’ contractual and advantageous business relations — within admiralty jurisdiction, 28 U.S.C. § 1333; a cause of action for conspiring to violate the anti-trust laws — within federal question jurisdiction, 28 U.S.C. § 1331; and a cause of action within diversity jurisdiction, 28 U.S.C. § 1332.

The district court held (1) that admiralty jurisdiction was lacking, there being, no allegation of tortious activity occurring on navigable waters; (2) that diversity jurisdiction was lacking, two of the defendants being citizens of the same state as plaintiffs; and (3) that plaintiffs lacked standing to sue for antitrust law violations, their interest as employees of vessel owners being too remote and their injury too indirect.

We first address the question whether a cause of action for tortious interference with a seaman’s present or prospective employment against the insurer of the seaman’s employer is within admiralty jurisdiction. That the allegations in the complaint before us adequately describe a tort is clear. E. g., Pino v. Trans-Atlantic Marine, Inc., 358 Mass. 498, 265 N.E.2d 583 (1970); A.L.I. Restatement of Torts 2d, § 766. Any question as to privilege would be a matter of defense, see Prosser, Law of Torts (Fourth ed.), § 130, at p. 953, and is not suggested by the complaint, which alleges a knowing and intentional interference without just cause.

The critical issue is that of admiralty jurisdiction. The black letter law as to maritime torts is familiar lore:

“Determination of the question whether a tort is ‘maritime’ and thus within the admiralty jurisdiction of the federal courts has traditionally depended upon the locality of the wrong. If the wrong occurred on navigable waters, the action is within admiralty jurisdiction; if the wrong occurred on land, it is not.” Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253, 93 S.Ct. 493, 497, 34 L.Ed.2d 454 (1972).

See also Victory Carriers, Inc. v. Law, 404 U.S. 202, 205 n. 2, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971).

Before we examine whether or not the locality rule recognized by Executive Jet Aviation and its ancestors precludes admiralty jurisdiction in such a case as this, we observe that if it does, it would be on the basis of tradition alone and not reason or policy. For a contract for services between a seaman and a vessel owner is at the heart of maritime relationships. Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). Suit for breach of such contract lies in admiralty. There is no apparent reason or policy for requiring a seaman who wishes to sue both his employer for breach and a third party who provoked the breach to proceed in different courts. Not only would such a requirement result in piecemeal, bifurcated litigation, but the admiralty goal of uniformity in dealing with maritime matters would be frustrated. Seamen’s rights against those who tortiously interfere with their seagoing employment would vary from port to port or state to state. Fears of open-ended expansion of admiralty jurisdiction through recognition of causes like that alleged here would not seem well founded. The essential maritime nexus would be not only present but dominant. Finally, since the tort, as here applied, by definition involves the disruption or foreclosing of a seagoing relationship, the impact is of necessity a maritime one wherever the act of interfering may have taken place. The locale of the act is irrelevant to the harm done. Indeed, no contrary policy or rationale has been noted by appellee or the district court, who relied solely on the time honored formulation of the locality rule relating to maritime torts.

Executive Jet Aviation established a “locality plus” rule in reaction to the absurdities inherent in predicating admiralty jurisdiction on the locality rule as the sole test. In so doing, it added, significantly, we think:

“another indictment of that test is to be found in the number of times the federal courts and the Congress, in the interests of justice, have had to create exceptions to it in the converse situations — i. e., when the tort has no maritime locality, but does bear a relationship to maritime service, commerce, or navigation.” 409 U.S. at 259, 93 S.Ct. at 500.

The Court referred to O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596 (1943) where it sustained the judicial “application of the Jones Act ... to injuries to a seaman on land, because of the seaman’s connection with maritime commerce”, id., and to Gutierrez v. Waterman S. S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), where the doctrine of unseaworthiness was similarly applied. Id., at 260, 83 S.Ct. at 500. More pertinently, the Court cited the Second Circuit precursor of Gutierrez, Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (1950), where Chief Judge Hand, in dealing with a longshoreman’s action against a shipowner for injury suffered on land, based on breach of the implied warranty to furnish seaworthy equipment — a tort, recognized the challenge to maritime jurisdiction. He wrote for the court: “[S]uch a tort, arising as it does out of a maritime ‘status’ or ‘relation’, is cognizable by the maritime law whether it arises on sea or on land.”

Three decades earlier, Judge Hand, as a district judge, had dealt with a case where a vessel owner (“The Polish Company”) had allegedly compelled the charterer of its vessel to break a contract with libellants. The Poznan, 276 F. 418 (S.D.N.Y.1921). Addressing the question of admiralty jurisdiction, he wrote,

“At least for the purposes of this case I may assume that the injury must be maritime in its character as much as though the case sounded in contract. The injury here was the breach of the contract of carriage itself, the effective cause of which was the act of the Polish Company. Obviously, if that contract was maritime enough in its character to base a libel upon it in contract, the injury resulting from the wrongful act on shore was as maritime, because it was the same thing.” Id., at 433, 434.

Similar analysis, drawing on both Strika and The Poznan, has been more recently applied within the Second Circuit. In Cocotos Steamship of Panama v. Sociedad Marítima Victoria S.A. Panama, 146 F.Supp. 540 (S.D.N.Y.1956), Judge Sugarman dealt, by way of dictum, with a libel against two corporations for conspiring to cause a third corporation to breach a charter-party. He characterized the defense of lack of mar-. itime jurisdiction as “unstable”, Id., at 545, relying on the language of The Poznan which we have quoted. In Castillo v. Argonaut Trading Agency, 156 F.Supp. 398 (S.D.N.Y.1957), Judge Di-mock found admiralty jurisdiction over a libel by seamen charging officers of their employer with having caused their false imprisonment in Australia, relying on Kyriakos v. Goulandris, 151 F.2d 132 (2d Cir.1945), which had held justiciable in admiralty an assault on shore against a crew member. The circuit court had been influenced by the language in O’Donnell, supra, 318 U.S. at 42, 63 S.Ct. at 492, that “the admiralty jurisdiction over the suit depends not on the place where the injury is inflicted but on the nature of the service and its relationship to the operation of the vessel plying in navigable waters.”

In Kamara v. S. Livanos & Co., 97 F.Supp. 435 (S.D.N.Y.1951), Judge Kaufman held that an allegation that libellants had been blacklisted was properly before the admiralty court since it “deal[t] with seamen’s employment.” Id., at 438. And the Second Circuit, holding injunctive relief unavailable to prevent the commission of a maritime tort also said, “We assume . . ., without deciding, that picketing which prevents a vessel’s being unloaded when the owner is powerless to take action that will end the picketing, is a tort . . . and also that although the actions of the unions took place on land, the tort is maritime since its effect was felt on the navigable waters of New York harbor where the cargo continued to be held on the Cleopatra.” Khedivial Line, S.A.E. v. Seafarers’ International Union, 278 F.2d 49, 52 (1960).

Khedivial suggests an alternative kind of analysis. Such cases as Strika, The Poznan, and their progeny find a sufficient maritime nexus to support jurisdiction in the fact that the allegedly tortious conduct had its source in maritime operations or relationships. Khedivial looked to the impact or effect of the tort on the vessel. This analytical approach is pursued elsewhere. Facts converse to those in Khedivial were presented in O’Connor & Co. v. City of Pascagoula, 304 F.Supp. 681 (S.D.Miss.1969), where a stevedore alleged that respondent city’s fire marshal wrongfully prevented it from continuing to load explosives on several vessels, causing the shippers to terminate their contract with the stevedore. The court found two bases for maritime jurisdiction. One was the fact that the alleged action of the fire marshal interfered with a maritime contract of transportation of goods, the same analysis used by Judge Hand in The Poznan. The other ground was the impact of the inducement of breach, “causing the vessels to sail light and late.” Id., at 683. The court in O’Connor led up to its conclusion by referring to the “locality” test, rejecting its mechanical application, and observing that the critical focus should not be “where the wrongful act or omission has its inception, but where the impact of the act or omission produces [the] injury.” Id., at 683. The reference to the above cited page in O’Connor by the Court in Executive Jet Aviation, 409 U.S. at 257 n. 6, 93 S.Ct. 493, lends weight to this analysis.

O’Connor in turn found support in two recent cases in the Southern District of New York. In the first of these, Upper Lakes Shipping, Ltd. v. International Longshoremen’s Ass’n, 33 F.R.D. 348 (1963), Judge Bonsai found admiralty jurisdiction over a cause of action by a shipping company against two unions for unlawfully picketing its vessels and inducing grain elevator and stevedoring personnel to refuse to participate in loading and unloading operations, all with the purpose of forcing plaintiff to discharge certain seamen. The court held that the alleged activities “wrongfully interfered with the plaintiff’s shipping business, including the handling of cargoes and the free operation of its ships on navigable waters. This is sufficient to confer Admiralty jurisdiction on this Court, even though the tortious acts may have taken place on land alongside plaintiff’s vessels.” Id., at 350. Similarly, Judge McGohey in Orient Mid-East Lines, Inc. v. Albert E. Bowen, Inc., D.C., 255 F.Supp. 627 (1966), held that “the inducement of a breach of a maritime contract which causes a light sailing is indeed a maritime tort.” Id., at 628.

So, in the case at bar, it can also be said that the impact of defendants’ alleged actions, at least where existing employment was terminated, was felt in the operations of the affected vessels at sea. They not only have sailed without the black-listed plaintiffs but without the owners and officers of the affected vessels having exercised their unrestricted choice of crew members.

The district court, while acknowledging that the Second Circuit followed the test of relationship between the injury and vessel operations, rather than the historic locality test, interpreted us as accepting the traditional view, citing Fireman’s Fund American Insurance Co. v. Boston Harbor Marina, Inc., 1 Cir., 406 F.2d 917, 919 (1969), where, in dealing with the responsibility for the destruction by fire of a yacht in winter storage, we affirmed the holding of the district court “that there was no admiralty jurisdiction for a claim sounding in tort because of its strictly land-based nature.” We see no reason to question that holding. But we do not read into it the implication that torts, to draw on the passage we have quoted from Executive Jet Aviation, supra, which have “no maritime locality”, but have an intimate “relationship to maritime service, commerce, or navigation” [emphasis ours] should be excluded from admiralty jurisdiction.

The tort alleged in this case seems to us so interwoven with present and potential maritime contractual relationships — traditional concerns of admiralty — as to fall within that jurisdiction. Moreover, as we have noted, the impact of such a tort as this, while felt by the blacklisted seamen, is equally manifest in the operations of the affected vessels. We construe the language and references in Executive Jet Aviation, which we have noted, to recognize this kind of exception to the locality test. We therefore hold that the amended complaint states a cause of action cognizable in admiralty. We add that, because of the historic unavailability of equitable relief in admiralty, the plaintiffs’ prayer for injunctive relief cannot be granted, even should they prevail on the merits.

We need not reach the question of diversity jurisdiction as the plaintiffs may proceed in admiralty.

We now turn to the anti-trust claims. The complaint alleged in essence two kinds of anti-trust violations. One was a conspiracy to reduce defendants’ operating costs, through “listing” plaintiffs, and then sell marine insurance at discriminatory, artificially reduced rates to selected vessel owners in order to monopolize and restrain trade. The other alleged anti-trust activity was a conspiracy to threaten and coerce vessel owners not to hire plaintiffs, i. e., a secondary boycott.

The district court, relying on a number of lower court cases involving employees of companies which had been allegedly injured by anti-trust violations, focused on the employee-employer relationship in finding that the plaintiffs lacked standing. We see the injuries here as more proximately related to the alleged unlawful behavior. See Radovich v. National Football League, 352 U.S. 445, 435-55, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957); Nichols v. Spencer Int’l Press, Inc., 371 F.2d 332 (7th Cir. 1967); cf. Nationwide Auto Appraiser Serv. v. Ass’n of C. & S. Co., 382 F.2d 925 (10th Cir. 1967). However, we do not pass on the issue because there is a more fundamental defect in the allegations. They state no cognizable substantive violation of the anti-trust laws. The gravamen of the first claim is that there was price discrimination in the marine insurance business. But the charge, taken in its most favorable light, as required in this context, does not make out a violation of the Robinson Patman Act § 2(a), 15 U.S.C. § 13. A seller cannot violate § 2(a) unless he has sold similar commodities to different purchasers at different prices, see, e. g., FTC v. Anheuser-Busch, Inc., 363 U.S. 536, 80 S.Ct. 1267, 4 L.Ed.2d 1385 (1960); see also P. Areeda, Antitrust Analysis, 845 (2d ed. 1974). Here the claim is that the defendants conspired to and did sell marine insurance on the same conditions and at the same prices (for differing commodities) to different purchasers. No claim of price discrimination is stated.

As for the allegations that, independent of price discrimination, defendants sought to create an unlawful boycott of certain classes of seamen, the allegedly unlawful activity is directed exclusively at the labor market, a market which the anti-trust acts do not govern: “the labor of a human being is not a commodity or article of commerce.” 15 U.S.C. § 17. See Nichols v. Spencer International Press, Inc., supra, 371 F.2d at 334-37. The anti-trust claims were, therefore, properly dismissed.

Affirmed in part and reversed in part. Remanded for further proceedings consistent with this opinion.

ALDRICH, Senior Circuit Judge

(concurring).

I have some initial reluctance in thinking, particularly with relation to a charge that because of defendant’s shore-side conduct a prospective seaman was unable to obtain employment, there is admiralty jurisdiction. There must surely be some limits to such a concept. I find, however, that the same considerations are involved here as I anticipate on the basic issues on the merits. Since the court is willing to read the complaint with liberality in this respect without, I assume, committing itself to precisely what plaintiffs must prove in order to recover, I am content to accept the same approach to jurisdiction.

      . Specifically, defendants are an English insurance company, Protection Maritime Insurance Co., Ltd.; a Massachusetts marine insurance broker, Trans-Atlantic Marine, Inc., which places business with Protection Maritime; and a Massachusetts citizen, Enos, who is the principal officer of Trans-Atlantic and an officer and director of Protection Maritime.

      . The same libellant fared less well two weeks later before Judge Clary, who ruled in Kamara v. The Atlantic Emperor, 97 F.Supp. 722, 725 (E.D.Pa.1951), that a cause of action for blacklisting “clearly is not an action cognizable in admiralty since no part of it is alleged to have taken place on navigable waters.”

      . Similarly referenced was J. W. Peterson Coal & Oil Co. v. United States, 323 F.Supp. 1198, 1201 (N.D.Ill.1970), where the action of the United States in supplying a dredging contractor with maps and information as to river depths and dredging locations was held sufficient to invoke admiralty jurisdiction in tort.

      . Apart from relying on the general locality test for admiralty tort jurisdiction, appellees cite only four cases said to be closely in point. One is Kamara v. The Atlantic Emperor, 97 F.Supp. 722 (E.D.Pa.1951), referred to in n. 2, supra, and which simply declared that the alleged blacklisting of crew members had not occurred on navigable waters. This we find close on point but not persuasive. Clinton v. International Organization of Masters, 254 F.2d 370 (9th Cir. 1958), involved, inter alia, a claim of tortious interference with a contract between a union member and his local union governing allocation of available jobs. The court held the contract not maritime in nature and further observed that the tort was not alleged to have been committed on navigable waters. We find this less on point and no more persuasive. Finally, two old cases from the Southern District of New York were cited. Marquardt v. French, 53 F. 603 (1893), simply held that, a contract to procure insurance not being a maritime contract, suit for its breach would not lie in admiralty. In Williams v. Providence Washington Ins. Co., 56 F. 159, 160 (1893), the court held that a claim for false representations in inducing purchase of a maritime insurance policy,' not “arising upon the water”, did not state a maritime tort. Marquardt is not in point and Williams no more persuasive than the other ipse dixits.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Garrett Brock TRAPNELL, Defendant-Appellant.
    No. 74-2122.
    United States Court of Appeals, Ninth Circuit.
    Feb. 24, 1975.

      Ronald M. Sinoway (argued), San Francisco, Cal., for defendant-appellant.
    Darrell Maclptyre, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiffappellee.
    Before CARTER and WALLACE, Circuit Judges and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   OPINION

PER CURIAM:

Following a trial by jury, appellant was convicted of conspiring to kidnap a foreign official in violation of 18 U.S.C. §§ 1201(a)(4) and 1201(c). The appellant was permitted to represent himself, although the court, pursuant to appellant’s request, appointed an attorney ad-visor to assist appellant during the trial. Appellant’s sole contention on appeal is that the court erred in failing to assist him during the course of the trial.

This court has held that a defendant’s right to proceed pro se is a “right of constitutional dimension”. United States v. Price, 474 F.2d 1223, 1226 (1973). This right may not be denied because the defendant “lacks expertise or professional capabilities”. Id. at 1227. The trial court is concerned only with the question of whether the defendant has the “capacity to decide intelligently and to understand what he is doing, i. e. can the defendant made a valid waiver of his right to counsel?” Id. The court has the obligation to address the accused personally and determine on the record “that the demand to . proceed pro se is competently and intelligently made with understanding of the nature of the charge and the penalties involved”. United States v. Dujanovic, 486 F.2d 182, 186 (9 Cir. 1973).

Appellant does not contend that he did not make a competent, voluntary, and intelligent waiver of his right to counsel, but rather that “in order to ensure that (he) received a fair trial, the court had a duty to intercede and assist both appellant and the jury”.

Appellant’s defense was that the Government’s chief witness, an F.B.I. undercover informant, fabricated the appellant’s involvement in the alleged conspiracy. Appellant attempted to establish that the informant was a known felon who had constructed a story against appellant in order “to con the United States Government out of $1,000”. Throughout appellant’s cross-examination of the informant and other witnesses, the court sustained objections to appellant’s questions. Unable to elicit the desired testimony, appellant shifted to some other subject. Appellant contends that the trial court had a constitutional responsibility to intercede for him and elicit testimony when he, as the result objections from opposing counsel, was unable to do so. If that duty does not exist, appellant urges this court to fashion a new judicial standard which would require a trial judge to assist a defendant in a case of this nature.

The trial judge is charged with the responsibility of conducting the trial as impartially and fairly as possible. As noted by this court in Smith v. United States, 305 F.2d 197, 205, cert. denied, 371 U.S. 890, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962), “a federal trial judge is more than a moderator or umpire. He has the responsibility to preside in such a way as to promote a fair and expeditious development of the facts unencumbered by irrelevancies.” Thus, the trial judge may question a witness if he deems it necessary to clarify a matter or to more fully develop the facts for the benefit of the jury.

While the trial judge has a broad discretion with respect to his interrogation of witnesses, he must always be sensitive to his role as judge and the fact that in the eyes of the jury he “occupies a position of preeminence and special persuasiveness” and accordingly “be assiduous in performing his function as governor of the trial dispassionately, fairly and impartially”. United States v. Cassiagnol, 420 F.2d 868, 879 (4 Cir. 1970), cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654, citing Pollard v. Fennell, 400 F.2d 421, 424 (4 Cir. 1968).

For the trial judge to assume the responsibility of examining witnesses for either party would change the judicial role from one of impartiality to one of advocacy. The fact that a defendant represents himself does not alter the judicial role nor does it impose any new obligation on the trial judge. The defendant under those circumstances must assume the responsibility for his inability to elicit testimony. As stated by this court in United States v. Dujanovic, supra, 486 F.2d at 188, “ . one of the penalties of the appellant’s self-representation is that he is bound by his own acts and conduct and held to his record”. A defendant representing himself cannot be heard to complain that his Sixth Amendment rights have been violated. Watts v. United States, 273 F.2d 10, 11-12 (9 Cir. 1959), cert. denied, 362 U.S. 982, 80 S.Ct. 1069, 4 L.Ed.2d 1017 (1960).

An examination of the transcript of the trial reveals that appellant did a surprisingly competent job of examining witnesses and presenting his case to the jury. In many of the instances when objections were sustained to his questions, appellant was attempting to introduce inadmissible evidence. Most of the objections were based on relevancy rather than the form of the question. With respect to appellant’s inability to phrase some questions properly, we note that appellant had a court-appointed advisor whom he could have called upon for assistance. We find no abuse of discretion in the trial court’s failure to assist the appellant in the cross-examination of witnesses.

Affirmed.

      . The appellant was tried separately. Two other co-defendants pleaded guilty to a lesser offense.

      . Appellant’s court-appointed advisor was given permission to make objections for the appellant during the trial.

      . In requesting permission to represent himself, appellant advised the court that he had appeared pro se on two occasions in the Eastern District of New York and was representing himself at that time before the Court of Appeals for the Second Circuit. Stressing the seriousness of the charge against him, the court questioned appellant with respect to his knowledge of court rules and procedures and cautioned him that he would be subject to those rules and procedures just as any attorney would be. Appellant assured the court that he understood the rules and procedures. It is clear from the record that appellant made a voluntary and intelligent waiver of his right to counsel.

      . The only authority cited by appellant in support of his contention that a trial judge has an obligation to assist a defendant in the examination of witnesses when defendant is representing himself is Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In Haines the Court held that in a suit brought under the Civil Rights Act, 42 U.S.C. § 1983, allegations of a pro se complaint must be held to less stringent standards than formal pleadings drafted by attorneys. Appellant urges this court to extend the rationale of Haines to impose a stricter standard on trial judges in pro se situations to assure that the facts are fully and fairly developed.

      . Appellant concedes that the direct examination of the informant “seems to have been adequately challenged” by appellant’s advisory counsel, but argues “there was no realistic manner by which appellant could receive assistance” during cross-examination.