(concurring):
I agree that the order under appeal, however it may be characterized, should not be allowed to stand without a better explanation of the justification for it, particularly in the light of the consent decree in Aspira of New York v. Board of Education of the City of New York, 72 Civ. 4002 (S.D.N.Y. August 29, 1974). The consent decree seemingly fulfills plaintiffs’ demands with respect to bilingual education for their own children1 and, as to this phase of the ease, leaves them only with equal protection and perhaps establishment clause claims concerning the allegedly overgenerous allocation of the federal grant to parochial schools, which claims are laden with some problems of standing and jurisdictional amount unnecessary to consider here. Such concern as I have with my brother Moore’s opinion relates not to his result but to the basis on which our appellate jurisdiction is supported.
In International Products Corporation v. Koons, 325 F.2d 403, 406-07 (2 Cir. 1963), we said, for reasons there stated, that “[w]e think it better, in line with our prior decisions, to continue to read § 1292(a)(1) as relating to injunctions *1143which give or aid in giving some or all of the substantive relief sought by a complaint . . . and not as including restraints or directions in orders concerning the conduct of the parties or their counsel, unrelated to the substantive issues in the action, while awaiting trial.” See also Grant v. United States, 282 F.2d 165 (2 Cir. 1960).
Prior to the consent decree in Aspira, it could have been argued plausibly, although I do not think successfully, that insofar as the LAB test was to be given in public schools, the order gave or aided in giving “some or all of the substantive relief” sought by the complaint since it would identify the children who would benefit from a ruling that special instruction was required. However, as indicated above, any need for testing public school children has been eliminated by the Aspira decree which already requires the test to be given to them quite apart from any order in this case, and plaintiffs’ sole interest in the test would now seem to be that its administration in the parochial schools may show that the number of children in such schools who need bilingual instruction has been overstated. Thus the results of the test would at best be evidence useful to the plaintiffs in proving their equal protection or establishment clause claims. The principle of Koons seems to me to be that an order containing words of restraint or direction does not come within § 1292(a)(1) simply because it advances (or fails to advance) a plaintiff along the road to success; the order granted or refused must be one telling the defendant to stop or to start some substantive action at issue in the suit. See 9 Moore, Federal Practice 11110.20[1] at 232 (1973) (although “ingenious counsel have found injunctions lurking in virtually every ruling that a district court can be called upon to make[,] [f]or the most part, the courts have declined to expand the historic concept of an injunction”). That the order does not fit traditional notions of discovery does not mean that it is an interlocutory injunction within § 1292(a)(1).
However, despite our frequent iterations that the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), “must be kept within narrow bounds, lest this exception swallow the salutary ‘final judgment’ rule,” Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 773 (2 Cir. 1972) — a principle which unfortunately we have not always heeded, see Katz v. Realty Equities Corp., 521 F.2d 1354, 1362-64 (2 Cir. 1975) (concurring opinion); Parkinson v. April Industries, Inc., 520 F.2d 650, 658-60 (2 Cir. 1975) (concurring opinion) — this is an appropriate case for the application of Cohen, as that decision was recently explicated in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 169-72, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). As in Eisen the order here at issue requires defendants to expend a considerable sum of money which they will almost certainly not be able to recover at a later date. In addition, the order is not one for discovery in the ordinary sense of that term, and the question how far a court may go in requiring defendants to develop evidence for plaintiffs in public interest actions is novel, important, and doubtless recurring. See Note, Appealability in the Federal Courts, 75 Harv.L.Rev. 351, 364-67 (1961). I would therefore leave our traditional construction of § 1292(a)(1) intact, rest appellate jurisdiction solely on Cohen and § 1291, and hold that even though the order is not an injunction within F.R.Civ.P. 52(a), it requires more explanation than the judge has given. Although some passages in the majority opinion seem to adopt this analysis, the basis of our jurisdiction should not be left in doubt.
. The plaintiff class in Aspira was defined as:
all New York City public school children whose English language deficiency prevents them from effectively participating in the learning process and who can more effectively participate in Spanish, and the parents and guardians of these children.