James Jonathan Mapp, and Cross-Appellees v. The Board of Education of the City of Chattanooga, Etc., and Cross-Appellant , 477 F.2d 851 ( 1973 )

PER CURIAM.

This is a school desegregation case involving the school system of Chattanooga, Tennessee.

The present appeals are from the decisions of District Judge Frank W. Wilson reported in 329 F.Supp. 1374 (E.D.Tenn.1971) and 341 F.Supp. 193 (E.D.Tenn.1972). Appeals have been perfected by the City Board of Education and by the City of Chattanooga and its Mayor. An appeal also has been perfected by the plaintiffs from the decision reported at 329 F.Supp. 1374 (E.D.Tenn.1971).

The appeals originally were heard by a panel of three judges of this court, whose decision was announced on October 11, 1972. The majority opinion of the panel remanded the case to the District Court for further consideration. The dissenting opinion¹ favored affirmance of the judgments of the District Court. Thereafter, a majority of the judges of this court who are in regular active service ordered that the appeals be reheard by the court in banc. Fed.R.App.P. 35, Local Rule 3(b) of this court provides that: “The effect of the granting of a rehearing in banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket as a pending appeal.”

The comprehensive reported opinions of District Judge Wilson contained a full statement of the issues and pertinent facts, and repetition in this opinion is not required.

Upon consideration of the briefs of the parties, the oral arguments before the court sitting in banc, and the entire record, we affirm the judgments of the District Court for the reasons stated in the opinions of Judge Wilson. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed. 2d 554 (1971); Davis v. Board of Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971); Brown v. Board of Education [II], 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), Brown v. Board of Education [I], 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Northcross v. Board of Education of Memphis City Schools, 466 F.2d 890 (6th Cir. 1972); Kelley v. Metropolitan Board of Education of Nashville & Davidson County, Tennessee, 463 F.2d 732 (6th Cir.), cert. denied 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972); Davis v. School District of City of Pontiac, 443 F.2d 573 (6th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971).

The Board of Education has filed a supplemental record in this court containing statistics said to reflect changes which have occurred after the decisions of the District Court. We decline to consider these statistics in the present appeal. Appropriate relief required by changed conditions is a matter for presentation to and consideration by the District Court. We reemphasize the holding of this court in Kelley v. Metropolitan Board of Education of Nashville and Davidson County, supra: “Like most decrees in equity, an injunctive decree in a school desegregation case is always subject to modification on the basis of changed circumstances.” 463 F.2d at 745-746.

Affirmed. Since both parties appealed, no costs are taxed.

1 . Ross, “Why Quotas Won’t Work,” Reader’s Digest, Feb. 1973, page 51: “Current effort to atone for past discrimination against minorities is creating new victims by reverse discrimination. Can two wrongs make a right?”