dissenting:
Minority students are not the only ones who suffer the harmful effects of segregation. All the other students in the segregated system, as well as teachers and administrators, are victims when minority students are removed from the mainstream of public education. The loss is not limited to those within the school system but is borne by all of us who have a stake in the future of this nation. If the limits of the law compel us to perpetuate the exclusion of minorities from the mainstream of our national life, we must do so only after the most careful deliberation.
If the law of desegregation continues to develop in what the majority conceives as its present direction, it will be all but impossible for a minority litigant to make the showing of “segregative intent” necessary to establish that an undeniably segregated school system has been unlawfully segregated. There is no dispute that the San Jose public school system is racially imbalanced. The record leaves no doubt that the Board was fully aware that their chosen course of action over a period of two decades would perpetuate this segregation. The Board does not deny this.
In tort law a person is deemed to “intend” the reasonably foreseeable consequences of his actions. In cases of racial discrimination, however, the foreseeable segregative effect of institutional action will not, in and of itself, support a finding of “segregative intent.” See Dayton Board of Education v. Brinkman, 443 U.S. 526, 536 n. 9, 99 S.Ct. 2971, 2978 n. 9, 61 L.Ed.2d 720 (1979). This more rigorous intent standard, however, does not require that patterns of behavior which serve no other end than to maintain and perpetuate a segregated public school system be characterized as unintentional.
The record reflects that for twenty years and more the Board of Trustees of the San Jose Unified School District has known that the public schools of San Jose were improperly segregated. It has done nothing to correct the situation, even though it has had numerous opportunities for reform. Although I have the utmost respect for the trial judge, I disagree with his conclusion that the record demonstrates that the Board maintained a sincere commitment to desegregation in spite of its failure to act. The Board’s actions speak louder than its words. It is not disputed that the Board has taken no action to accomplish its stated goal of a desegregated system. The district court found that “the district has clearly gotten cold feet on a number of occasions and has failed to follow through on its claimed goal of desegregating the district.” Diaz II, 518 F.Supp. at 638. There is nothing in the record or in the district court’s analysis to support its conclusion that “the desire [to desegregate] often expressed is real, even if there has been some reluctance in the execution.” Id.
The district court found and the record shows that there were abundant opportunities for actions which would promote desegregation. Whenever the Board was presented with a choice, whenever it had an opportunity to change direction, it made the choice that confirmed and perpetuated segregation in the San Jose public schools. Such consistency in the face of the undeniable fact of segregation is, in my opinion, a clear expression of the “segregative intent” necessary to support a finding of unlawful segregation.
The effect of the majority opinion is to hold that a reluctant school board that talks about desegregation but refuses to do anything to promote it has done all that the constitution requires. I fear that the effect of the majority’s position will be that a school board that wishes to maintain a segregated system in the future will need only *1135discuss its goals of desegregation, commit itself on paper, and then reject or refuse to take advantage of every opportunity for reform. We cannot permit “segregative intent” to be so easily camouflaged.
I do not ignore the district court’s admonition that “[t]his court would be extremely disturbed and saddened if its decision in this ease was interpreted by either of the parties to this action or the public as encouragement to the Board to lay back and accept the consequences of the imbalance.” Id. at 644. I simply find it insufficient to address the fact that the public schools of San Jose are segregated and the Board has wilfully rejected every proposal to improve the racial imbalance. The district court expresses its concern about the future. This action was brought to correct the evils of the present. Having prevailed on this sordid record, the Board need never act to reform this school system.
I recognize the narrow limits imposed on our review by Fed.R.Civ.P. 52(a) and Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). Even so, I find that the district court, in an admirably thorough and articulate opinion, erred in finding that certain actions of the Board did not demonstrate the “segregative intent” necessary to support a finding of unlawful segregation. Nothing in the record supports the district court’s speculation that “[i]t may well be that the Board hoped that some other solution to the problem of integration could be found, short of large-scale bussing.” Diaz II at 637.
My concern is reinforced by the district court’s finding that the Board consistently refused to implement other suggestions for reducing the racial imbalance in the San Jose schools. These suggestions included the creation of magnet schools and education parks, as well as the implementation of open enrollment and voluntary bussing. The district court found “perfectly reasonable and rational explanations” for the Board’s refusal to implement any of these proposals. Id. at 638. The only support in the record for such a conclusion is the finding that the Board believed that nothing short of busing could remedy the racial imbalance in the San Jose schools, but the record also shows that the Board refused even to consider busing as a remedy. In fact the Board refused to consider implementing any proposal which might have reduced the racial imbalance of the San Jose public schools.
Further, the district court’s conclusion that the Board’s behavior during the bond issue election campaign did not support an inference of “segregative intent” is not consistent with the undisputed facts. The Board issued public statements that the failure to pass the bond issue would result in the transfer of students from one attendance area to another. It also gave repeated assurances that it would not use bond issue money to finance busing for the purpose of desegregation, although busing for other purposes was widely used throughout the system. I conclude that the message of those two statements upon the voters in San Jose was “if you don’t vote for the bond issue, we will have to desegregate” and “if you do vote for the bond issue, we promise riot to use the money to desegregate.” This, together with the court’s findings, is more than sufficient to support an inference of “segregative intent.”
The Board rejected all of QUEST’S recommendations for correcting the racial imbalance. In spite of this, the district court concluded that “the Board was trying its best, in a difficult situation, to continue to move forward towards some affirmative effort to integrate.” Id. at 640. There is no evidence in the record that the Board ever “move[d] forward” or was “continuing] to move forward.” The district court set forth its rationale for refusing to find inferences of “segregative intent”:
To make such an inference would be to warn all school districts which have racially imbalanced schools not to make any affirmative moves towards integration unless they are certain that they will succeed; otherwise, the effort will become the basis for an inference of discriminatory purpose on their part, rather than an inference of the very opposite intent which in fact motivated them.
*1136Id. at 641. I agree that a finding of “segregative intent” would broadcast a message to other segregated school systems, but I disagree with the district court on the substance of that message. A finding of “segregative intent” here would signal school boards that it is not enough merely to talk about desegregation while avoiding all proposals that might remedy the evil. I must respectfully reject the district court’s conclusion that even if “the Board ultimately did little to implement its stated commitment to integration,” it nevertheless merits congratulations for “its willingness to stick by this position [in favor of integration], even if just rhetorically.” Id. at 641.
I recognize that the federal constitution does not require the Board to integrate the public schools of San Jose. The Board’s only obligation is that it not segregate intentionally. The record and the district court’s findings compel my conclusion that the Board failed to meet this obligation. I would reverse with instructions to fashion a remedy to correct the unconstitutional segregation in the San Jose public school system. It is of no comfort to the plaintiffs that the district court concluded that “[c]ontinued failure to choose the path which leads towards less ethnic imbalance in the schools could well, at some future time, form the basis for a conclusion that the school officials do, in fact, wish to keep the Anglos and the Spanish-surnamed students segregated in the SJUSD.” Id. at 644. More than twenty years have elapsed with no break in this continuing failure. This, in my opinion, is sufficient to support an inference of “segregative intent.”
I would reverse.