(dissenting):
I respectfully dissent.
In a painstaking opinion (Diaz v. San Jose Unified School District, 412 F.Supp. 310 (N.D.Cal.1976)) the district judge discussed, under subheads A-J inclusive, all of the facts on which appellant relied to establish an intent to segregate. The district judge then made two express findings: first, “The court finds that the district has consistently adhered to a neighborhood school policy”; and second, “The board has applied this policy neutrally.” 412 F.Supp. at 334. The district judge then made the ultimate finding of fact: “The court finds that defendants, who consistently adhered to a neighborhood school policy, have never acted with segregative intent.” 412 F.Supp. at 335. I do not think that the judge did find, or that he could have found, that the Board applied the policy neutrally without considering all of the evidence so carefully detailed by him. In short, I think the district court did what the remand tells him to do.
I would affirm.