(dissenting) :

Appellant alleges that segregation by race continues at the McNeil Island Penitentiary because the penitentiary has left unchanged the cell assignments which were made in accordance with the previous policy of segregation and because those prisoners previously assigned to a segregated cell must remain in that cell until, first, a vacancy occurs in another cell, second, an application is then made for transfer to that cell, and, finally, the transfer is consented to by all of the occupants of that cell.

If long-continued discrimination has occurred and appellant’s situation is one of its vestiges, as alleged, the prison authorities have a duty to eliminate that vestige as well as the policy that gave rise to it. Louisiana v. United States, 380 U.S. 145, 154-155 , 85 S.Ct. 817 , 13 L.Ed.2d 709 (1965). They may not be heard to say that they have delegated to the inmates the rectification of a situation which the authorities themselves created. Meredith v. Fair, 298 F. 2d 696, 702 (5th Cir. 1962), summarily rejected a similar defense.

The majority quite properly states that the question “[is] not on whether segregation results, but whether there is acceptable reason for the practice.” The court concludes that “The record answers this decisively.”

All that the record discloses is that the penitentiary authorities said in a public statement of policy that assignments to vacancies would be made “recognizing the uniqueness of long-term residence in a compact penal community; in the interest of compatability and congeniality, but without regard for race, creed, or national origin. * * * ” A government-created and sustained system of racial segregation requires more substantial justification than this cryptic and self-serving statement. Whether the practices which preserve racially segregated cells are justified by “pressing public necessity” (Korematsu v. United States, 323 U.S. 214, 216 , 65 S.Ct. 193 , 89 L.Ed. 194 (1945)) is a question which could be properly determined in this case only after a plenary hearing by the trial court.

The court states (note 4) that the impact of the practices complained of is limited. Appellant, however, alleges that the present effect of the prior policy “left most cells in No. 3 and 4 cell houses segregated and the same policy has continued to the date of this affidavit,” and that “since February, 1964, there has never been an integrated ' cellhouse * * * ” in the penitentiary. The court states that the racially allocated assignments endure for only the prisoner’s ini *111 tial three months of imprisonment. Appellant, however, alleges that he has been in McNeil Island Penitentiary since mid-1964 and is still in a segregated cell. Appellant’s version of the facts should not be rejected without a hearing.