dissenting.
The district court’s order which this court affirms places on the State of Indiana the entire cost of court-ordered busing of black schoolchildren from schools of the Indianapolis Public School District (IPS) to schools in suburban Marion County. In addition, the order forbids the state to defray any part of that cost out of its appropriations for education; at least that is the only meaning I can assign to paragraph 6 of the district judge’s plan, which this court does not purport to modify.
With all due regard for the forcefully articulated contrary view of my brethren, I am not persuaded that the order below is an appropriate exercise of the federal equity power. As a judgment of this sort is inescapably particularistic, I shall not attempt to review the decisions in other circuits dealing with the financing of busing decrees; none appears to involve facts similar to those of the present case.
This lawsuit, begun in 1968, initially charged just IPS with maintaining a system of segregated public schools, in violation of the Fourteenth Amendment. In 1969 the Indiana legislature, by the legislation known as “Uni-Gov,” extended the boundaries of Indianapolis to be coterminous with those of Marion County, except that the boundaries of the Indianapolis public school system were not extended. As a result of the movement of whites from the old city limits of Indianapolis to the Marion County suburbs that were now part of the city, by the time the district judge was ready to issue a remedial decree in this litigation the public schools of IPS were so predominantly black that he thought a decree limited to those schools would simply drive the remaining whites out of IPS. He therefore included in the decree a provision directing the busing of black schoolchildren from IPS to suburban Marion County schools. He also invited the Indiana legislature to enact legislation to fund the decree. The legislature responded by passing the “Transfer Statute,” Ind. Code §§ 20-8.1 — 6.5 — 1 et seq., in 1974. This statute provides that if a public school district is found to have violated the Fourteenth Amendment and is ordered to bus students outside it, the costs of busing are to be divided between the district and the state. Although IPS was not named in the statute, it was the “transferor corporation” that the draftsmen had in mind.
At about the same time, Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I) was decided. It held that busing outside a local school district’s boundaries was not a proper remedy for a violation committed by the district alone unless the violation had caused racial *1191segregation between districts; if not, an interdistrict busing order was proper only if the state or some other entity had committed its own constitutional violation that had caused interdistrict segregation. As a result of Milliken I, the order in this litigation directing the busing of black schoolchildren from IPS to the suburban schools had to be remanded for a determination whether the State of Indiana or some state agency was guilty of segregation or, if not, whether IPS itself had caused the interdistrict segregation. On remand the district court found that neither IPS nor the suburban school districts had caused it but that the State of Indiana and one of its agencies, the Housing Authority of Central Indiana (HACI), had, and thus interdistrict busing was a proper remedy. HACI had refused to place public housing, which would have been occupied largely by blacks, anywhere in Marion County beyond the boundaries of IPS; this had contributed to keeping the suburbs of Marion County white. And through the schools exception to Uni-Gov the State of Indiana had prevented IPS from expanding to take in the white suburban schools, which would have allowed busing throughout Marion County to be ordered consistently with Milliken I because the entire county would have been a single school district.
Since the State of Indiana has been found liable for intentional segregation of the public schools, the district court’s interdistrict busing order is valid. With that determination, affirmed by this court in 1980 in United States v. Board of School Comm’rs, 637 F.2d 1101, 1116 (7th Cir. 1980), this litigation should have ended. But last summer, with the busing order scheduled to take effect in the fall, several of the Marion County suburban school districts petitioned the district court for an order assigning the costs of the busing (not just transportation costs, but, more important, the costs of educating the bused students) to the state. The state had planned to allocate those costs in accordance with the Transfer Statute. It is not entirely clear why the suburban school districts were dissatisfied with this method of allocation; and perhaps their petition should have been dismissed for failure to demonstrate irreparable injury. But apparently they were afraid that the state would refuse to appropriate any extra money for busing, with the result that any costs not picked up by IPS might have to be paid out of the education budgets of the transferee corporations, i.e., the suburban school districts. I am not at all clear how this might come about, since the principal cost entailed by the busing order is the cost of educating the bused children and the Transfer Statute puts this cost on IPS rather than the state. But I shall pass this point and assume that the suburban school districts have a reasonable basis for concern that the Transfer Statute, if applied, would place significant costs on them.
The issue in this appeal is not the validity or enforcement of the busing order — all of the parties affirm that the order is being and will continue to be complied with — but only the allocation of the costs of compliance; and I submit that how the State of Indiana chooses to pay for busing is, at least in the first instance, the business of the State of Indiana rather than the federal courts. Cf. Evans v. Buchanan, 582 F.2d 750, 778-80 (3d Cir. 1978). It would become our business only if the state decided to make the black people against whom the defendants in this litigation have been found guilty of discriminating defray the costs of the injunction in their favor, or if the state otherwise sought to thwart the busing order. I agree that “Innocent black children in IPS have suffered enough,” as my brethren put it. But it is premature to conclude that the Transfer Statute would make them suffer more. We do not know what measures IPS would take to pay for its share of the costs of busing — what tax or other resources for financing are available to it — or how the suburban school districts would pay for their share, whatever it may be. We do not even know whether the Indiana courts would hold the Transfer Statute applicable.
My contention that the financing issue ought to be left to the state to resolve derives from the nature of our federal system, which implies that interventions by federal courts into the processes of state *1192government ought to be minimized, but more simply from traditional notions of equity jurisprudence. The end of an equity suit is an injunction, or if the injunction is not obeyed a contempt proceeding; it is not an inquiry into who will bear the costs of the injunction. Suppose a company was found to have violated Title VII of the Civil Rights Act of 1964 by paying its black workers less than its white workers, and an injunction forbidding the discrimination was entered. No one would ask where the company was going to get the money to pay higher wages to its black workers (presumably the market would not let it just lower the whites’ wages to the blacks’ level)— whether it was going to raise prices and reduce output, or use more labor-saving machinery and reduce its work force, or reduce dividends, or what have you. These are fascinating questions for economists, but too difficult and tangential to engage the attention of courts, as the Supreme Court has held in dealing with comparable issues of “incidence” in the antitrust field. See Illinois Brick Co. v. Illinois, 431 U.S. 720, 732, 741-422, 97 S.Ct. 2061, 2067, 2072, 52 L.Ed.2d 707 (1977). Only if the company attempted to comply with the injunction by committing a fresh act of discrimination, as by firing its black workers, would the question of how the costs of the injunction were being defrayed come before the court that had issued the injunction. I do not see why the result should be different in this case. A defendant that happens to be a state of the United States is entitled to as much consideration as a private corporation.
So the district court should in my view have dismissed the petition asking it to devise its own scheme for allocating the costs of the busing order. If the petitioners want to challenge the application of the Transfer Statute let them do so in state court. The courts of Indiana may hold the statute inapplicable. It is premature for the federal courts to get involved in the matter.
But if I am wrong and the proper thing to do in this case was to apportion the costs of the busing order among the various wrongdoers, the district court should have used greater realism in making the apportionment. In placing on the State of Indiana the full costs of rectifying the interdistrict violation (to simplify discussion I shall ignore the role of HACI, as did the district court in its apportionment plan), the court treated the state as if it were an individual that had promulgated Uni-Gov, with its schools exception, in the manner in which Louis XIV (“L’Etat, c’est mol’) ordered the construction of the Palace of Versailles. The “state” was responsible; “it” should pay; the other “guys” — IPS and the suburban school districts of Marion County— were blameless and should suffer no diminution in their educational appropriations as a result of the state’s misconduct.
All this is a vast oversimplification. I put to one side the fact that there never would have been an Indianapolis school litigation or an interdistrict busing order had it not been for the violations of the Fourteenth Amendment that IPS was committing as late as 1971; for it was against IPS and IPS alone that this suit was originally brought. I am thus willing to indulge the heroic assumption that IPS is without any legal or moral responsibility for the busing order. Therefore, if contrary to my view it really is our business to decide how the costs of complying with the busing order should be apportioned, then I agree that we should reject the approach in the Transfer Statute — even though that statute was passed at the behest of the district judge presiding over this litigation — because it assumes that IPS is the chief wrongdoer. But what we cannot ignore, if we are to do equity, is the role of the Marion County suburbs in the principal act of interdistrict discrimination found in this litigation — the exclusion of the suburban public schools from Uni-Gov.
I know that the suburban school districts were absolved from any share of legal liability for the segregation of the Marion County schools. Not only have I no desire to reopen the liability question, but as an original matter I would consider it highly unlikely that a school district could cause, and so in a legal sense be liable for, segregation between districts, as distinct from segregation within a district. To cause seg*1193regation between districts you have to be able to keep black people from moving into a district, which is something beyond the power of a school board.
But the issue before us is not liability. The suburban school districts are asking for extraordinary equitable relief. To see how extraordinary, consider the following variation of my earlier hypothetical case of a company found to have violated Title VII. Suppose there had been two defendants originally, the company and the union representing its employees, but the union was absolved from liability. And suppose that after the company had been found liable and ordered to desist from further discrimination, it had raised the wages of its black workers, and since its total wage bill was now higher had reduced its work force, thereby laying off some members of the union. If the union came into court asking for a decree forbidding the company to pass on to its workers, in the form of job layoffs, any part of the costs of complying with the antidiscrimination decree, it would not be heard to argue that the court’s judgment absolving it from liability compelled the court to grant it the extraordinary remedy that it was seeking. A further inquiry would be necessary. Similarly, in this case we should consider whether the suburban school districts are in good conscience entitled to the extraordinary equitable relief that they are seeking.
In so considering, we should recognize that the actions of school boards are only one manifestation of the desires of the people of suburban Marion County; the votes of their representatives in the Indiana legislature are another relevant manifestation. Now no one, I take it, thinks that the reason why IPS’s boundaries were not expanded to embrace the whole of Marion County was that the voters of South Bend or Fort Wayne or Evansville, who will share the cost of the busing decree under the order affirmed today, wanted the public schools of suburban Marion County to remain white. The schools exception to Uni-Gov was procured by the legislators elected by the people of suburban Marion County. This is not only obvious but was found as a fact by the district court in this litigation. The “Mayor [of Indianapolis], testifying as a witness, gave no educational or governmental reason for excluding the [suburban] schools from the reach of Uni-Gov. He simply (and no doubt accurately) stated that the Uni-Gov bill would not have passed had the schools been included. The inference is that the representatives elected by the vote of suburban residents — many of whom had recently moved to the suburbs from the central city to escape the threat of desegregation posed by the filing of this very suit in 1968 — would have voted against Uni-Gov but for exclusion of the schools.” United States v. Board of School Comm’rs, 456 F.Supp. 183, 187 (S.D.Ind.1978).
Thus, so far as segregation between school districts is concerned, which is all that is before us in this appeal, it is the residents of the white suburbs of Marion County who are the primary wrongdoers, as a matter of equity if not of law, for there would be no need for an interdistrict busing order without the schools exception in Uni-Gov and there would be no schools exception but for the actions of the white voters of suburban Marion County. As the district court stated in another of its opinions in this litigation, “the suburban Marion County units of government .. . have consistently resisted the movement of black citizens or black pupils into their territory. They have resisted school consolidation, they resisted civil annexation so long as civil annexation carried school annexation with it, they ceased resisting civil annexation only when the Uni-Gov Act made it clear that the schools would not be involved. Suburban Marion County has resisted the erection of public housing projects outside IPS territory, suburban Marion County officials have refused to cooperate with HUD on the location of such projects, and the customs and usages of both the officials and inhabitants of such areas has been to discourage blacks from seeking to purchase or rent homes therein .. . . ” United States v. Board of School Comm’rs, 419 F.Supp. 180, 182-83 (S.D.Ind.1975). In light of this history, for the suburban school districts, which are apparently among the richest in the state, to urge that the costs of the busing order should be borne by the people throughout *1194the state who are dependent on the noneducational appropriations in the state budget and that the educational budgets of Marion County should be sacrosanct is to invoke the spirit not of equity but of effrontery.
But as I said before, rather than get into the tangled and recriminatory business of who shall pay for this court-ordered busing, we should say: “This litigation ended, at long last, when the district court’s busing order was upheld by this court and certiorari was denied. Let the State of Indiana worry about who shall bear the costs of complying with the order. It is not a matter for the federal courts unless the state should devise a method of financing that discriminates against the black people who are the intended beneficiaries of the order. Other than in a purely technical sense there is no federal question before us today.”
Such a disposition of this case would not be contrary to Milliken II, which holds that a federal court does not violate the Tenth or Eleventh Amendments when it decides how the costs of a busing decree shall be borne. Milliken v. Bradley, 433 U.S. 267, 288-91, 97 S.Ct. 2749, 2761-62, 53 L.Ed.2d 745 (1977). It does not follow that because a federal court has the power to tell a state how to finance a busing decree it should exercise that power in a particular case or in a particular way. I would reverse.