dissenting.
I remain of the view, stated in my dissent when the case was here before certiorari and remand, 541 F.2d at 1224, that the record contains no evidence that would support a finding of racially discriminatory purpose with respect to either Uni-Gov or selection of public housing sites. There is no need to repeat what was said there.
*416If the issue of discriminatory purpose had not been previously addressed by the parties or the trial court, and had first entered the case because of the Supreme Court’s remand, it would be appropriate for us to remand to the District Court for the taking of evidence and findings on that issue. But that issue was previously in the case. Discriminatory purpose was specifically pleaded in paragraph 10 of the intervening plaintiffs’ amended complaint, and evidence was offered in an attempt to prove that allegation after our last remand.1 This was not an irrelevant allegation and it was not treated as such by counsel for the intervening plaintiffs, who understandably wanted two strings to their bow,2 by counsel for the defendants, or by the district judge. The proof failed, and the district judge carefully, as I read his opinion, refrained from finding the presence of discriminatory purpose. The tenor of his findings on both the Uni-Gov and public housing issues was such that it is inconceivable that he would not have found discriminatory purpose if he had believed it warranted by the evidence. 419 F.Supp. at 182-183. In this tenth year of the litigation, I think that should be an end to the matter. The usual rule should be applied, and we should not send the case back to permit the intervening plaintiffs to make another attempt to prove allegations they have already tried but failed to prove, while a complete remedy for intra-district violations conclusively adjudicated in 1973 (474 F.2d 81) is delayed on the chance that an interdistrict remedy will ultimately emerge.3
Turning to the issues on remand, I shall not attempt to state the respects in which I disagree with the opinion announcing the judgment of the court, which are for the most part apparent from my earlier dissent, except to say that until now the District Court and this court have recognized that the only material distinctions between the facts in this case and those in Milliken v. Bradley lay in Uni-Gov and the siting of public housing projects by HACI. As for Part III of the opinion, with all respect, I do not think we make the district judge’s task any easier by providing him with an advisory interpretation of Supreme Court decisions (which he can read as well as we can) when we cannot agree among ourselves how they should be interpreted.
The United States commenced this suit to challenge racial discrimination by and within IPS. It prevailed on its claims. Full relief has been delayed for several years, however, while the district court has considered an expanded, inter-district remedy that the United States did not seek. In our view this delay has been fruitless, because the evidence has not demonstrated any purposeful inter-district racial discrimination of the sort that would justify an inter-district mandatory reassignment of students.
. Which was for a determination of “whether the establishment of the Uni-Gov boundaries without a like reestablishment of IPS boundaries warrants an inter-district remedy within Uni-Gov in accordance with Milliken.” 503 F.2d 68, 86.
. That the Court would hold as it did in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), was, at the very least, foreseeable as a possibility. See 426 U.S. at 239-245, 96 S.Ct. 2040; and see my earlier dissent, 541 F.2d at 1224.
. The brief for the United States filed in the Supreme Court in connection with the 1976 appeals and petitions for certiorari in that Court stated as follows: