PRETTYMAN, Circuit Judge.
These are two appeals from judgments of the District Court of the United States for the District of Columbia, which appeals were consolidated for hearing in this court. The defendants below in both cases were the Superintendent of Schools and the members of the Board of Education of the District of Columbia.
The plaintiff below in No. 9796 was an infant who sued by her father and next friend. Her complaint was for a mandatory injunction and for a declaratory judgment. She alleged that she was a resident of the District of Columbia, a member of the Negro race, and a duly enrolled student in the public schools of the District. She asserted that she brought the action in behalf of herself and other students of the same race similarly situated. She alleged that she had enrolled in Browne Junior High School in the fall of 1946; that this school is set apart for the education of Negro pupils only; that by reason of excessive enrollment the period of instruction in the school was divided into two daily sessions of four and a half hours each, as contrasted with the standard six-hour period provided by the rules of the defendants and by statute; that she presented herself to the proper officials and demanded the type of instruction prescribed by the rules; that she was refused and thereupon demanded that she be transferred to the Eliot Junior High School, being the junior high school next most adjacent to her residence; that the defendants refused the transfer, on the ground that the Eliot Junior High School is for the use of white students only; that she thereupon applied to the Eliot Junior High School for admission; and that she was refused admission, on the ground that she is a Negro. This plaintiff further averred that she and those on whose behalf she sued were denied, solely on account of their race and color, the benefits of the free education required and provided by the laws of the District of Columbia. The prayer of her complaint was that the court declare that neither the laws of the United States nor the laws of the District of Columbia make the maintenance of separate schools for white and Negro races mandatory; that the defendants have exceeded their authority in requiring the plaintiff and those on whose behalf she sued to attend segregated schools; that such segregated schools in the District of Columbia are illegal; that the defendants are without authority to exclude Negroes from attendance upon white schools; and that the defendants be ordered to permit the plaintiff to attend the school most adjacent to her home in which the courses of education prescribed by the regulations are offered, without regard to the designation of such school on account of the race of the students enrolled therein. Answer was filed by the defendants. They admitted that the schools of the District of Columbia are divided into thirteen divisions, Divisions 1 to 9 being designated for white pupils and Divisions 10 to 13 for Negro pupils, and that children of either race are denied enrollment in schools other than those designated for their race. They admitted the factual allegations as to this particular plaintiff; they denied that the plaintiff or other Negro students suffered handicaps as a result of the separation of the schools. Affidavits were filed, with exhibits, by both the plaintiff and the defendants, and motions for summary judgment were made by both. The court granted the motion of the defendants. This appeal followed.
The plaintiffs below in No. 9878 were the Browne Junior High School Parent-Teacher Association and two pupils at that school [16]*16and their parents. They sued on behalf of themselves and others similarly situated. They made allegations concerning the maintenance of segregated schools in the District, the double shift then in effect at Browne Junior High, the transfer of some Browne Junior High pupils to other schools, and various facts concerning the possibilities of various reassignments of pupils. They alleged that the defendants’ then present and proposed provisions for the education of the plaintiff pupils were a -willful taking and deprivation of rights without due process of law, .denial of the equal protection of the law, discriminatory and unreasonable. They prayed for an order of permanent injunction which would permit the plaintiff pupils to attend the junior high school which would guarantee to them educational opportunities, facilities and equipment equal to those afforded .white students. Supporting affidavits were filed. The defendants moved to dismiss the action and filed affidavits in support of the motion. The plaintiffs answered the motion in detail, with exhibits. The District Court granted the motion to dismiss.
It was shown in an affidavit filed in the District Court prior to its decision and appearing in the printed joint appendix in this court, that on February 16, 1948, no pupils attending junior high schools in Divisions 10 to 13 were on a double-shift schedule; and elsewhere in the record, in an affidavit and not contradicted, appears the statement that a program put into effect February 2, 1948, completely eliminated the double-shift schedule in the Browne School and that in consequence “all junior high schools in the entire school system are on a full-day, single-shift schedule.” Since the factual basis for the actions was the double shift in effect at Browne Junior High School at the time- the actions were brought, and since the double shift was eliminated prior to the trial of the action in the court below, Judge Clark is of opinion that the cases became moot and were properly dismissed for that reason. A majority of the court, however, is of opinion that the general allegations concerning the allocations of schools and the practices of the Board of Education require the court to determine the questions thus posed. Upon consideration of the merits, Judge Clark concurs in the views about to be stated in this opinion.
It is urged that the separation of the races is itself, apart from equality or inequality of treatment, forbidden by the Constitution. The question thus posed is whether the Constitution lifted this problem out of the hands of all legislatures and settled it. We do not think it did. Since the beginning of human history, no circumstance has given rise to more difficult and delicate problems than has the coexistence of different races in the same area. Centuries of bitter experience in all parts of the world have proved that the problem is insoluble by force of any sort. The same history shows that it is soluble by the patient processes of community experience. Such problems lie naturally in the field of legislation, a method susceptible of experimentation, of development, of adjustment to the current necessities in a variety of community circumstance. We do not believe that the makers of the first ten Amendments in 1789 or of the Fourteenth Amendment in 1866 meant to foreclose legislative treatment of the problem in this country.
This is not to decry efforts to reach that state of common existence which is the obvious highest good in our concept of civilization. It is merely to say that the social and economic interrelationship of two races living together is a legislative problem, as yet not solved, and is not a problem solved fully, finally and unequivocally by a fiat enacted many years ago. We must remember that on this particular point we are interpreting -a constitution and not enacting a statute.1
[17]*17We are not unmindful of the debates which occurred in Congress relative to the Civil Rights Act of April 9, 1866,2 the Fourteenth Amendment, and the Civil Rights Act of March 1, 1875 3 But the actions of Congress, the discussion in the Civil Rights Cases,4 and the fact that in 1862, 1864, 1866 and 1874 Congress, as we shall point out in a moment, enacted legislation which specifically provided for separation of the races in the schools of the District of Columbia, conclusively support our view of the Amendment and its effect.
The Supreme Court has consistently held that if there be an “equality of the privileges which the laws give to the separated groups”, the races may be separated.5 That is to say that constitutional invalidity does not arise from the mere fact of separation but may arise from an inequality of treatment. Other courts have long held to the same effect.6
This brings us to consider the operation of the school system in the case at bar. The Board of Education of the District of Columbia is appointed by the United States District Court for the District of Columbia. It operates under direct mandate of the Congress.
To understand early statutes relating to the District of Columbia, it must be remembered that the District was originally composed of three entities, the City of Washington, the City of Georgetown, and the County of Washington outside the two cities. In 1862 Congress passed an act setting up a public school system for the County.7 Seven school districts were established and a board of school trustees provided for each district. The act provided inter alia multa that a special tax might be levied upon property “owned by persons of color, for the purpose of initiating a system of education of colored children * * 8 On the next day, Congress passed an act directing the municipal authorities of the two cities (Washington and Georgetown) to set aside ten per cent of the taxes levied on property “owned by [18]*18persons of color”, to be appropriated “for the purpose of initiating a system of primary schools for the education of colored children residing in said cities.” 9 It was made the duty of school trustees “to provide suitable rooms and teachers for such a number of schools as, in their opinion, will best accommodate the colored children * * *.” A month or so later, Congress changed its mind about the management under the latter act and created a separate “board of trustees of the schools for colored children in the cities aforesaid,” and transferred to that board the powers of “the trustees of public schools” in respect to the colored schools.10 In 1864 Congress made a number of changes in the law respecting public education, enacting a comprehensive statute on the subject.11 In it the special tax for colored schools was eliminated, and the authorities were required to assign to the education of colored children the proportionate part of the school funds which the number of colored children bore to the whole number of children. In 1866 Congress passed a special act, which made clear that the apportionment of tax funds provided in the 1864 act was required in the two cities;12 apparently some question had arisen as to whether the former act applied only to the County, due, no doubt, to its being entitled “ ‘An act to provide for the public instruction of youth in the county of Washington * * ” In the same year, Congress authorized the- donation of certain lots “to the trustees of colored schools * * * for the sole use of schools for colored children”.13 In 1874 Congress enacted an act, which constituted Revised Statutes Relating to the District of Columbia,14 and in it provided in respect to the -County,15 “It shall .be the duty of the school-board to provide suitable and convenient houses or rooms for holding schools for colored children * * *.” That act also contained this provision in respect to the County;16
“Any white resident shall be privileged to place his or her child or ward at any one of the schools provided for the education of white children in said portion of the district he or she may think proper to select, with the consent of the school-board; and any colored resident shall have the same rights with respect to colored schools.”
In respect to the two cities, the Revised Statutes continued the separate “board of trustees of schools for colored children” 17 and “a superintendent of schools for colored children”.18 These various enactments by the Congress cannot be read with any meaning except that the schools for white and colored children were then intended to be separate. Moreover, it is significant, in respect to the constitutional points made here, that two of these statutes were enacted by the same Congress which proposed the Fourteenth Amendment and at almost the same time as that proposal. The Amendment was proposed by the Congress on June 16, 1866,19 and these acts were dated July 23, 1866, and July 28, 1866.20
Appellants say that the earlier Revised Statutes -dealing with colored schools were repealed in 1901, when they were not included in the Code for the District of Columbia which was enacted by Congress that year.21 But that omission cannot be construed to mean that Congress has since 1901 intended to eliminate the separation of schools, because (1) later acts of Congress 22 in 1906, 1924 and 1947 specifically [19]*19provide for two first assistant superintendents, one to have supervision over “the white schools” and the other to have sole charge of the schools “in which colored children are taught”; (2) the repeal section of the 1901 Code reserves from repeal “all acts and parts of acts relating to municipal affairs only”;23 and (3) this court in 1910, in Wall v. Oyster,24 held these sections of the Revised Statutes to be in effect.
The claim of unequal facilities in the present case rests upon the assignment of pupils to buildings. It is not contended that there is any inequality in respect to the distribution of free textbooks to all children,25 compulsory education for all,26 the length of school year, curricula, standards of promotion, events on school calendar, the organization of the school system, or teachers’ qualifications, salaries, and annual, sick and sabbatical leave.27 The statutes provide for the expenditure of funds for public schools for the education of colored children equal to that proportionate part of all moneys received or expended for school purposes which the colored children between the ages of six and seventeen years bear to the whole number of children, white and colored, between the same ages; the proportion to be ascertained by the last reported census of the population.28 It is not contended that this statutory prescription is not met. The asserted inequality of privileges is based upon the assigned use of the various school houses in the system, with such consequences as flow from the differences in buildings.
The factual foundation for the litigation, as presented by the pleadings and affidavits, concerns the situation at Browne Junior High School. That school had, in November, 1947, an enrollment of 1826 pupils and a rated building capacity of 888 pupils. Its pupils were on a “double-shift” schedule of instruction, that is, half of them went to school in the morning and half of them in the afternoon. This condition of serious overcrowding was brought about by a number of factors, such as increases in population, shifts in population as new housing developments occurred, the stopping of new construction during the war, and vastly increased costs since then. It appears upon the record that the Board of Education years ago recognized the problem at Browne and secured in the appropriation act for 1942 funds for a site and for plans for a new junior high school (Kelly Miller) in the Browne School area at a cost of $875,000. In 1946 the provision as to maximum cost was raised to $980,000 and then to $1,350,000, and in 1948 it was raised to $1,-808,000. According to the record, it was anticipated when this case was tried that the new building would be ready for occupancy in February of this year. Meantime, temporary expedients were adopted. The first was the double shift in effect from 1941 to 1947. There is nothing new about this method in the District. Of the senior high schools for white children, Central was on a double shift from 1921 to 1926, Western from 1920 to 1925, Eastern from 1931 to 1938, and Anacostia from 1938 to 1943; and the expedient has been used from time to time in other types of schools. It is recognized as an undesirable practice. In the case of Browne, the objections to the double shift caused the Board of Education to adopt another recommendation of the assistant superintendent. Pupils were transferred from elementary schools (at first two and then four) in the area to other available elementary buildings, and the released buildings were equipped as nearly as could be for junior high instruction and put in service as annexes to Browne. The result was the elimination of the double shift at
[20]*20Browne as of February 2, 1948. The use for junior high instruction of buildings designed as elementary schools is not desirable, but it is not novel in the District, as the affidavit of the assistant superintendent shows by many examples in both white and colored schools over the past twenty years.
Appellant in the Carr case (No. 9796) says that since the Browne School was overcrowded she had a right to be admitted to Eliot Junior High, the school next to Browne most adjacent to her home. The Board of Education says that all the thousand excess pupils at Browne could not be transferred to Eliot, since that school had an enrollment in November, 1947, of 771 pupils against a capacity of 918, leaving an available space for only some 150 additional pupils; that it could not solve the overcrowding at Browne by letting each pupil select his or her own school; and that it carefully considered the possibility of the use of Eliot but found the suggestion less desirable than the other expedients adopted. Appellants in the Browne case (No. 9878) say that the Board should have transferred all the pupils from Eliot to Eastern High School building, or to other junior high buildings, and used Eliot to accommodate the whole of the excess at Browne. The Board says that the transfers thus suggested were carefully considered by it but were deemed not feasible.
The Board of Education in the District undoubtedly has faced for many years acute problems in housing. The affidavits relating to the last twenty years clearly reflect them. A rapidly growing and rapidly shifting population must create such problems. It must be obvious that new buildings will be better than old ones, and so each neighborhood which gets a new building will suddenly have better school facilities than the older sections. It must also be obvious that all needs in a city growing and changing like Washington cannot be met at one time and that a school building program takes time. The problem pictured by these pleadings is one of meeting
temporarily exigencies scheduled for a permanent solution which takes time.
The affidavits refer to the appropriations act for 1948. That act as it passed the Congress29 carried $3,219,230 in appropriations for construction of schools during that year and $450,000 for the purchase of school sites, all for specific projects by name. There is no claim that these or any other appropriations discriminate as between any groups of pupils, either in quality or quantity of buildings or equipment or in precedence in meeting needs. Examination of that act shows that in respect to schools assigned for use by colored pupils it provided for the following: replace an existing senior high (Armstrong) at an authorized cost of $2,505,000; build a new senior high (Spingarn) at an authorized cost of $2,505,000; build a new gymnasium and stadium at Dunbar senior high; build two new junior high schools (Miller at $1,808,000 and a replacement for Shaw at the same amount) ; build an addition of eighteen rooms and a cafeteria at Randall Junior High; build four new elementary schools (a twenty-four room replacement of Walker and Jones, a new twenty-four room school called the Nalle, a sixteen room replacement for Morse and Twining, and a twenty-four room replacement of Birney); build additions to five elementary schools (eight rooms at Logan, temporary eight rooms at Crummell, eight at Payne, eight at Young, and eight at Syphax). In part, these projects, reflected in this act, were continuations of construction already begun and in part were the launchings of new buildings.
It is well known that Congress appropriates for only one year at a time and also that except for extreme emergency Congress does not permit the District Government to borrow funds. The school bond, so well known elsewhere in the country, is not authorized in the District. School construction on a pay-as-you-go basis involves temporary disadvantages. Certainly, in so far as the permanent building program revealed by this record is concerned, there is [21]*21no evidence of an unequal program of facilities.
So the question narrows to whether the temporary expedients adopted ’by the Board of Education are unequal as between the races. The question is etched if we ask whether the same expedients are used when the pupils are white as are used when they are colored. So far as the record shows, they are. The affidavits show that the ■double shift and the use of buildings designed for other purposes are resorted to for schools of either group.
The selection of temporary expedients to meet situations which arise from the complicated factors which determine a school building program, lies primarily within the ■discretion of the administrative agency and :the Congress, and unless we can discern a program or a policy of discrimination in these temporary matters, we do not see how the courts can interfere. The first assistant superintendent of schools in charge of 'the colored schools, himself a distinguished Negro educator who has spent some forty-five years in public education, said on this record:
“ * * * I do not believe that temporary deprivation-of the few facilities noted herein for a limited number of pupils of Browne Junior High School, and that only until the Kelly Miller Junior High School is completed, is a denial of substantially equal educational opportunity in the light of existing conditions and the history of educational opportunities both for white and colored children in the District of Columbia.” As a matter of fact, the program which was followed in the matters which gave rise to this litigation was the recommendation of that school official.
It is said that a report made in 1949 to the Congress by persons employed for that purpose, concerning school conditions in the District, demonstrates an unequal assignment of school buildings. That report is not in the record before us. In fact, it had not been prepared when the case was heard below. An appellate court cannot foe the trier of facts, and particularly it cannot decide a question of fact upon evidence which is not in the record. We cannot make findings of fact different from the allegations ,of the pleadings and affidavits upon which summary judgment or dismissal was entered below; nor can we consider the contents of the so-called Strayer Report, which was not before the trial court and is not in the record here. The authors of that Report were not subjected to cross examination in respect to it, and no opportunity has been afforded school officials to admit, deny or comment upon the statements made in it. What further, or different, information might have been furnished from other sources, we do not know. Wide differences appear to exist between the standards of capacity used by the Board of Education and those used by Strayer; for example, the capacity of Browne School measured by the former is 888 and measured by the latter is 783. We cannot resolve such differences. These cases, like all ■others, must be decided, so far as their facts are concerned, upon the records made in the trial court. We do not read Parker v. Brown,30 the dissent in Burns Baking Co. v. Bryan,31 or the concurring opinion of Mr. Justice Frankfurter in McCollum v. Board of Education 32 as indicating views to the contrary on this point. They recited facts and conditions of which courts usually take judicial notice, such as official reports or undisputed notorious facts. Neither the cases cited nor other authorities hold that a court may take judicial notice of the view of one particular person upon a disputed question of fact, such statement not having been submitted upon the record. Moreover, it is to be remembered that the official statistics in the case at bar are those of the Board of Education.
It is said that we may draw conclusions of inequality from naked general statistics, such as the average age of buildings, the average pupils per room, etc. But unexplained general statistics are notoriously un[22]*22reliable premises for particularized conclusions. We do- not even know, for example, how the stated ages of the buildings are computed; whether by years from the original cornerstone, or from the latest major reconstruction, or upon a weighted cost life. We cannot draw conclusions by speculation where the data necessary for certainty was not given the trial court.
So far as the facts and circumstances shown by this record are concerned, it appears that the treatment accorded these Negro plaintiffs, of which they complain, would have been accorded them had they ■been white. If the separation of the races in ’and of itself is not constitutionally invalid, such treatment, indiscriminate as to race, is not the unequal extension of privileges which violates constitutional prohibitions.
The judgments of the District Court are Affirmed.