*65WALLACE, Circuit Judge,
dissenting:1
De La Cruz and the other appellants in this case (hereinafter referred to as the plaintiffs) claim that certain officers of the San Mateo Community College District (hereinafter defendants) have discriminated against them on the basis of sex by refusing to initiate or approve the establishment of day care facilities which would benefit female college students with child-rearing responsibilities. They have asked the district court to order the defendants to vote or decide contrary to what they have done in the past on this issue so that the desired day care facilities will be promptly set in operation.
The majority acknowledges that serious implications for the role of the federal judiciary arise when we undertake to mandate solutions to the social ills portrayed by the plaintiffs. The majority nevertheless feels constrained to allow the plaintiffs their cause of action, apparently anchoring its hopes that the federal courts will not thereby become regrettably enmeshed in the formulation of local educational policy on its belief that ultimate victory for the plaintiffs on the merits may never be realized or that, if it is, the relief granted may somehow be appropriately circumscribed. I cannot join the majority, for I believe it is in the allowance of the cause of action no less than in the administration of the relief sought that the power of the federal judiciary is wrongfully invoked and governing law misconstrued. I therefore respectfully dissent.2
I
The plaintiffs have failed to state a claim because they have failed to allege any act of “discrimination” within the meaning the Supreme Court attaches to that word. Until the defendants are alleged to have engaged in conduct which has discriminatory effects, no cause of action under either the Fourteenth Amendment or 20 U.S.C. § 1681 (Title IX) has been stated against them, and this is so even if it is alleged that the defendants’ conduct was motivated by sexually discriminatory intent. Since I can find in the complaint no allegation of discriminatory effects as the term is properly understood, I conclude that the judgment of the district court should be affirmed.
The district judge concluded that since the defendants have offered no child-care program whatsoever, it is impossible for them to have discriminated with respect to such a program. The majority rejects this conclusion. Nonetheless, an examination of the decisions of the Supreme Court bearing upon the concept of “discrimination” convinces me that, as the Court understands the term, nothing approaching sex discrimination has been alleged here.
II
Since the Equal Protection Clause and contemporary civil rights statutes merely employ or rely upon the concept of “discrimination,” but do not define it, see General Elec. Co. v. Gilbert, 429 U.S. 125, 133, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), our most *66appropriate guide to the meaning of the word is the case law of the Supreme Court dealing with the Constitution and these laws.
In Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), the Court held that the exclusion of pregnancy from a state-administered disability-benefits plan for private employees not covered by workmen’s compensation does not “amount[] to invidious discrimination under the Equal Protection Clause,” id. at 494, 94 S.Ct. at 2491, because it does not single out any person or group for inferior treatment, but is merely less inclusive of benefits than some might desire. The Court was careful to observe that the insurance coverage offered was no less valuable to women than to men. Id. at 496-97, 94 S.Ct. 2485.
The Court also emphasized that the pregnancy exclusion was not a classification along sexual lines:
The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups — pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.
Id., at 497 n. 20, 94 S.Ct. at 2492.
The Court explicated its Geduldig holding in the subsequent case of General Elec. Co. v. Gilbert, supra, 429 U.S. 125, 97 S.Ct. 401, 30 L.Ed.2d 34, in which it decided that a private employer’s exclusion of pregnancy benefits from an insurance plan covering employees was valid under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. There was “no doubt,” said the Court in Gilbert,
that our reason for rejecting appellee’s equal protection claim in [Geduldig] was that the exclusion of pregnancy from coverage under California’s disability-benefits plan was not in itself discrimination based on sex.
The Court of Appeals was therefore wrong in concluding that the reasoning of Geduldig was not applicable to an action under Title VII. Since it is a finding of sex-based discrimination that must trigger, in a case such as this, the finding of an unlawful employment practice under [Title VII], Geduldig is precisely in point in its holding that an exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all.
429 U.S. at 135-36, 97 S.Ct. at 407-08 (emphasis added). Gilbert reemphasized the importance of the fact that the insurance benefits offered to women were at least as valuable as those offered to men, and significantly, the opinion cast this observation in terms of the “discriminatory effect” concept: 3
As there is no proof that the package is in fact worth more to men than to women, it is impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits; that is to say, gender-based discrimination does not result simply because an employer’s disability benefits plan is less than all-inclusive.
Id. at 138-39, 97 S.Ct. at 409 (footnote omitted). The Court acknowledged that the refusal to provide disability benefits for pregnancy may “impact[] . . . more heavily on one gender than upon the other,” id. at 139-40, 97 S.Ct. at 410; but even though the exclusion might therefore be said to be a “cause” of the disproportionate impact, the Court nevertheless concluded that the existence of discriminatory effect is to be determined by the relative value to *67the two sexes of the included benefits. Id. As long as equality of value exists, there has simply been no sex discrimination.
Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977), further develops this analysis. With respect to the exclusion of pregnancy benefits from an employer’s insurance plan in that case, the Court merely restated its conclusion in Geduldig and Gilbert that this “is not a gender-based discrimination at all.” Id. at 144, 98 S.Ct. at 352. However, the Court did find that discrimination does occur when female employees returning from maternity leave are deprived of their previously accumulated seniority. The finding of discrimination, the Court explained, turns on the distinction between a benefit and a burden:
Here . . . petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. The distinction between benefits and burdens is more than one of semantics. We held in Gilbert that § 703(a)(1) did not require that greater economic benefits be paid to one sex or the other “because of their different roles in the scheme of existence.” But that holding does not allow us to read § 703(a)(2) to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role.
Id. at 142, 98 S.Ct. at 351 (citation and footnote omitted).
Finally, in the recent case of City of Los Angeles, Dep’t. of Water and Power v.
Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), the Supreme Court set forth what it termed a “simple test” for the existence of sex discrimination: “whether the evidence shows ‘treatment of a person in a manner which but for the person’s sex would be different.’ ” Id. at 1377 (footnote omitted). While that test is not cast in terms of the exclusion of benefits or the imposition of burdens, it seems closely akin to the inquiries for discriminatory effect made in Geduldig, Gilbert and Satty; in testing for discrimination, it is what is actually done to a person which counts, not what might have been done.
To the extent they have been considered thus far, these cases teach two important lessons. The first is that under either the Fourteenth Amendment (as in Geduldig) or the civil rights statutes (as in Gilbert and Satty) “it is a finding of sex-based discrimination that must trigger . . . the finding of an unlawful employment practice.” 4 General Elec. Co. v. Gilbert, supra, 429 U.S. at 136, 97 S.Ct. at 408. Such discrimination may consist of “either facial discrimination or discriminatory effect.” City of Los Angeles, Dep’t. of Water & Power v. Manhart, supra, 98 S.Ct. at 1379 n.29 (interpreting Gilbert).
The second, and for present purposes more significant, contribution of these cases is a functional definition of the concept of “discriminatory effect.” Discriminatory effect is shown if the benefits and opportunities offered to women are less valuable than those offered to men. Stated in terms of the benefit-burden analysis, a discriminatory effect is shown if existing benefits and *68opportunities are restricted or withheld in such a way as to make them less available to all or many members of one sex. But discriminatory effect is not shown by a mere refusal to extend additional benefits if existing ones are equally available and valuable to men and women; in that case, women are not being treated differently than would be so if they were men, and vice versa.
I do not suggest that the approach to discriminatory effect taken from these cases is necessarily exclusive of other ways in which the concept can or should be considered. Within the broad range of circumstances in which claims of discrimination arise, it is not unlikely that the test for discriminatory effects will sometimes require a different formulation than that discussed here. But the analyses in Geduldig, Gilbert, Satty, and Manhart are entirely adequate to dispose of the present case,5 as I explain in part IV. Indeed, even in the realm of race discrimination, where judicial protection against unfair treatment has long been at its height, the Supreme Court has apparently applied this approach to the actions of local officials.
In Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), enforced racial segregation of municipal swimming pools in Jackson, Mississippi had been prohibited by a federal court. Rather than desegregate, the city closed the pools. The Supreme Court held that this closure was beyond the reach of the Equal Protection Clause on the same basis that the absence of sex discrimination was found in Geduldig and Gilbert:
Here the record indicates only that Jackson once ran segregated swimming pools and that no public pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is now covertly aiding the maintenance and operation of pools which are private in name only. It shows no state action affecting blacks differently from whites.
. [T]he issue here is whether black citizens in Jackson are being denied *69their constitutional rights when the city has closed the public pools to black and white alike. Nothing in the history or the language of the Fourteenth Amendment nor in any of our prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of “the equal protection of the laws.”
403 U.S. at 225-26, 91 S.Ct. at 1945 (emphasis partly added). Thus, the Court was convinced that since the city had no constitutional duty to operate swimming pools, and since all existing public facilities were offered equally to blacks and whites, id. at 220, 91 S.Ct. 1940, no discrimination had occurred.6
This approach to the concept of discriminatory effect has much to recommend it, for it focuses on the actual treatment one receives at the hands of an alleged discriminator. It is equally important for what it excludes from the definition of discriminatory effect. Although the decision of a government body not to initiate or support a particular social or economic program can certainly be said to have an effect or impact upon those who would be its beneficiaries, to say that such an effect or impact is “discriminatory” merely because a certain group would have benefited from it more than others is a quantum jump from the traditional understanding of discrimination. The Court recognized this in Gilbert when it said that purporting to find discrimination in the refusal to add pregnancy disability benefits to an otherwise nondiscriminatory insurance plan “would endanger the commonsense notion that an employer who has no disability benefits program at all does not violate Title VII .. . 429 U.S. at 139, 97 S.Ct. at 410.
As I shall explain in discussing Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), the mere refusal to act does not always exclude the possibility that one has discriminated. But this does not disturb the important teaching of the cases discussed above that discriminatory effects exist only when one’s conduct unevenly restricts, burdens, or limits the opportunities and benefits that should be made equally available to a particular group of people, but not when one declines to extend an additional benefit of disproportionate value to certain members of that group. This concept, obviously, has direct application to the case before us.
Ill
There remains the thorny question of the role of discriminatory intent in defining discrimination. I believe the precise issue presented by this case is whether, in the absence of facial discrimination or conduct having discriminatory effects, improper intent can turn otherwise gender-neutral behavior into actionable “discrimination” under Title IX or the Fourteenth Amendment. While Geduldig, Gilbert, and Satty contain statements bearing on this problem, that language can best be interpreted by a brief review of the Court’s earlier treatment of this subject.
As commentators7 and at least one Supreme Court justice8 have observed, the Court has not developed a unified, consistently applied doctrine respecting the role of *70legislative motive in determining the constitutionality of the acts of state and federal officials. On the other hand, it cannot be gainsaid that the Court has often and emphatically declared that otherwise valid legislation is not rendered invalid solely because the motives that prompted its enactment were wrongful or even corrupt. As early as 1810, the Court, speaking through Chief Justice Marshall, said:
[If] a legislative act, which the [state] legislature might constitutionally pass, . be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another, founded on the allegation that the act is a nullity, in consequence of the impure motives which influenced certain members of the legislature which passed the law.
Fletcher v. Peck, 10 U.S. (6 Cranch.) 87, 131, 3 L.Ed. 162 (1810). This principle has been repeatedly reaffirmed. Palmer v. Thompson, supra, 403 U.S. at 224, 91 S.Ct. 1940; United States v. O’Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Arizona v. California, 283 U.S. 423, 454-55, 51 S.Ct. 18, 75 L.Ed. 717 (1931); McCray v. United States, 195 U.S. 27, 53-56, 24 S.Ct. 769, 49 L.Ed. 78 (1904). Indeed, it has been termed a “fundamental principle of Constitutional adjudication” that the courts “will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, supra, 391 U.S. at 383, 88 S.Ct. at 1682.9
Significantly, the Court did not hesitate to apply this principle in Palmer, a case in which racial discrimination by local officials was alleged. In rejecting the charge that the closure of the swimming pools in that case was illegal because “motiyated by a desire to avoid integration of the races,” 403 U.S. at 224, 91 S.Ct. [1940], at 1944, the Court relied directly upon the line of cases referred to above. Id.
*71The issue before us is a relatively narrow one,10 making it unnecessary to interpret or reconcile all the cases in which the Court has discussed the issue of legislative motive. We are confronted with what the plaintiffs portray as a rather straightforward discrimination question, and as far as the role of legislative motive is concerned, I do not believe it is distinguishable in principle from Palmer.11 The question thus becomes whether any subsequent Supreme Court decision has undermined the holding in Palmer that a discriminatory intent is irrelevant to the validity of otherwise nondiscriminatory action by local officials.
In its recent decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the Supreme Court answered affirmatively the question whether discriminatory motive must be proven in order to invalidate state action under the Equal Protection Clause.12 The Court held that constitutionally-based discrimination claims require a showing not only of discriminatory effects, but also of discriminatory intent. Dicta in Palmer suggesting that intent is never relevant were disapproved. 426 U.S. at 243, 96 S.Ct. [2040] at 2049. But Davis did not purport to disturb Palmer’s holding, which it characterized in part as a finding that “the city was . . . extending identical treatment to both whites and Negroes.” Id.
Davis and Palmer are easily harmonized, and taken together they clearly establish the rule that governs this case. From Palmer we learn that if no discriminatory effects have been shown, discriminatory intent cannot affect the constitutional validity of the decisions of local officials. Davis, in turn, teaches that once discriminatory effects are present,13 intent becomes very important. The synthesis, of course, is that it is only after discriminatory effects are shown that intent becomes relevant to the validity of a legislative or administrative act.
Several fundamental policies undergird the Court’s consistent refusal to invalidate the decisions of federal or local officials solely because of the motives that may have prompted them. One is the inherent difficulty in determining and evaluating the officials’ purposes. Another is the futility of invalidating an act whose only vice lies in the bad motives of the actors, since the act could simply be repeated under the cover of a “sanitized” record of motivation. See, e. g., Fletcher v. Peck, supra, 10 U.S. (6 Cranch) at 130, 3 L.Ed. 162; Palmer v. Thompson, supra, 403 U.S. at 224-25, 91 S.Ct. 1940. Finally, and to my mind most *72substantial, is that whenever the federal judiciary begins to probe the motives of state officials or members of the coordinate branches of the federal government, serious questions arise about whether the constitutionally prescribed limits of the judicial branch have been exceeded. McCray v. United States, supra, 195 U.S. at 27, 24 S.Ct. 769.14
In cases such as Davis, where the existence of a certain legislative motive has been declared to be a necessary element of a prima facie case, the courts must, of course, inquire whether that intent exists. As I have said, however, that inquiry need not be made until a threshold showing — or, in the ease of judgment on the pleadings, an allegation — of discriminatory effect has been made.
Insisting that a plaintiff surmount that threshold is precisely what safeguards against judicial excess. Once a state or a parallel branch of the federal government has actually treated someone in a racially or sexually uneven way, it is likely in many cases that constitutional or statutory bounds placed on the actor have been breached, and guarding against such excesses is, of course, precisely what civil rights adjudication is about.
Should the judiciary intervene before the threshold of unequal treatment is crossed, however, and extend its power of judicial review to cases where treatment is not unequal, but motive may be impure, then the courts are, in effect, passing judgment on the character and qualifications of the officers themselves and the government bodies through which they act rather than upon their official acts. In such matters, legislators and administrators are accountable only to their constituents or superiors and their consciences. Making them also accountable to the judiciary is precisely the abuse against which the Court in McCray warned.15 There, the Court acknowledged,
*73that if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the government, where a wrong motive or purpose has impelled to the exertion of the power, that abuses of a power conferred may be temporarily effectual. The remedy for this, however, lies, not in the abuse by the judicial authority of its functions, but in the people, upon whom, after all, under our institutions, reliance must be placed for the correction of abuses committed in
the exercise of a lawful power. ,
195 U.S. at 55, 24 S.Ct. at 776.16
It thus seems clear to me that, at least as far as administrative, legislative, or quasi-legislative federal and state officials are concerned, the Supreme Court continues to respect the principle that an action or decision which in its actual effects is inoffensive cannot be impeached because of the motives of those who prescribed it.17 Such protection of the affirmative acts of public officials must, of course, apply with at least equal strength to decisions not to take action. Against this background, I return to Geduldig, Gilbert and Satty to determine whether anything in those decisions has altered this principle.
The plaintiffs assert that these cases say that a discriminatory motive is sufficient to make the defendants’ “facially neutral”18 conduct illegal. This argument stems from a footnoted comment in Geduldig, which was repeated in both Gilbert and Satty, in which it is suggested that the insurance exclusions in those cases might be illegal if there were “a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other.” 417 U.S. at 496-97 n. 20, 94 S.Ct. at 2492 (emphasis added); accord, Nashville Gas Co. v. Satty, supra, 434 U.S. at 144, 145, 98 S.Ct. 347; General Elec. Co. v. Gilbert, supra, 429 U.S. at 135, 136, 97 S.Ct. 401.
As the Court emphasized in Gilbert, the “distinction involving pregnancy” in these cases is “not a gender-based discrimination at all,” 429 U.S. at 136, 97 S.Ct. at 408, since it has no discriminatory effects. Id. at 137-38, 97 S.Ct. at 409 (“As there is no proof that the package is in fact worth more to men than to women, it is impossible to find *74any gender-based discriminatory effect in this scheme . . . Thus, the thrust of the “mere pretext” statement is that a nondiscrimination is legal unless it is a pretext designed to effect a discrimination. This is far from clear, but to me it does not say that the mere addition of bad intent transforms nondiscrimination into discrimination. It strains credulity to believe that with one cryptic remark the Court has discarded the firmly entrenched line of authority that discriminatory motive alone cannot invalidate an act which has no discriminatory effects. Rather, the “mere pretext” statement can be interpreted to mean that if otherwise nondiscriminatory conduct contributes to or is part of a broader scheme or pattern of conduct which ultimately is discriminatory, then a discrimination has been “effected.”19 In that event, otherwise innocuous conduct may become illegal.20
This approach finds support in Justice Powell’s concurrence in Satty. 434 U.S. at 146, 98 S.Ct. 347. He agreed that the exclusion of pregnancy benefits in that case was, by itself, indistinguishable from the plans upheld in Geduldig and Gilbert. But, he observed, perhaps the plaintiffs could prove that the ultimate effect of the employer’s policies, including the pregnancy exclusion, was to make the total compensation paid to women less valuable than that paid to men. If so, there would be a discriminatory burden, as discussed above, and the plaintiffs would be able to avoid the result in Geduldig and Gilbert. Although the majority did not adopt Justice Powell’s opinion, I find nothing in Satty that rejects the idea that it is only as nondiscriminatory conduct is insinuated in a larger, wrongful scheme that it becomes illegal.
Thus, I would read the “mere pretext” statement to require, in any event, a showing that a discrimination has been effected, i. e., that there is an inequality, running along sexual lines, in the treatment, compensation, or opportunity offered by the employer.21 If this interpretation seems difficult, I believe it is less so than the alternative, which is that the Supreme Court believes that the even-handed distribution of benefits to men and women suddenly becomes invidious discrimination if it is shown that the failure to bestow additional benefits was improperly motivated. In light of the case law on legislative motive discussed above and the great stress Geduldig, Gilbert, and Satty all place on the fact that existing benefits were distributed equally with respect to gender, I do not believe the Court would approve such a result.
IV
It remains to apply the principles developed above to the present case. In order to state a cause of action, the plaintiffs must at least allege conduct by the defendants which either discriminates against women on its face or has sexually discriminatory effects. If this is not done, additional allegations of discriminatory intent have no significance.
The complaint makes no reference to any facial discrimination, but merely lists nine separate factual events in addition to the allegations of intent.22 For present pur*75poses, of course, I assume all the allegations to be true. Each event consists purely of a refusal by the defendants to initiate or approve any new day care arrangements that require district approval. There is alleged no move by the defendants to interfere with or to restrict any existing day care opportunities. Nor is there any allegation of other conduct which, when considered together with the day care decisions, would have the effect of impairing women’s access to college programs or making them inherently less valuable or less available to women. There is no suggestion that, had they been men, the plaintiffs would have been treated differently.
As was true in Geduldig and Gilbert, the problem is solely one of underinclusiveness, and for that reason the analysis of discriminatory effects developed in those cases is applicable here. Because of a totally external and independent social condition, the plaintiffs face personal obstacles that would be eased were the defendants to extend a benefit in addition to those presently offered. But, as Gilbert explains, this does not constitute a discriminatory effect “even though the ‘underinclusion’ [of benefits] impacts, as a result of [child-rearing responsibilities], more heavily upon one gender than upon the other.” 429 U.S. at 139-40, 97 S.Ct. at 410.
The plaintiffs go to great lengths to cast the defendants’ conduct as an affirmative policy. No matter how distasteful or even reprehensible a “policy” may be, however, it amounts to nothing more than bare motivation until some act with discriminatory effects is committed. No such act is alleged.
Thus, nothing in the complaint suggests anything other than a gender-neutral administration of the community college district; an inference of sex discrimination is simply not to be found in this case. Therefore, the allegations of discriminatory intent are irrelevant.
My conclusion that the defendants must prevail follows a fortiori from the decisions in Geduldig, Gilbert, and Satty. In those cases, the defendants had become deeply involved in the disability insurance area and had excluded pregnancy benefits from an otherwise nearly-comprehensive insurance plan. The pregnancy exclusion related directly to a condition that inherently and exclusively pertains to women. In this case, by contrast, the defendants and their college district have historically had no involvement whatsoever with the day care problem, and child-rearing responsibilities are far less gender-specific than is pregnancy, affecting some men as well as women. If the pregnancy exclusion in Geduldig, Gilbert, and Satty was not discrimination, the alleged conduct of the defendants here most certainly was not.
The contrast with Palmer is similarly instructive. In Palmer, the city had previously operated swimming pools, but on a racially segregatéd basis. The Supreme Court found that in the withdrawal of those facilities from public use no unequal treatment, and thus no discrimination, resulted. Here, by contrast, the defendants have withdrawn no previously offered benefits, but have simply chosen to remain uninvolved in a service with which they have never had any connection.
It is also clear that Lau v. Nichols, supra, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1, does not require a different result. In Lau, San Francisco public schools had been integrated by federal court decree. As a result, 2800 students of Chinese ancestry who *76could not speak English found themselves in English-speaking schools. Supplemental language courses were offered to only 1000 of these students. The Supreme Court held that the school district’s failure to provide some means of overcoming this handicap violated section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (which was the model for Title IX).
The factors in Lau which are relevant to the issue at hand were that public schools were involved and attendance for children between the ages of six and sixteen was mandatory, 414 U.S. at 566, 94 S.Ct. 786; the Chinese-speaking students were required to attend the English-speaking schools by federal court decree; California law provided that “English shall be the basic language of instruction in all schools,” and that “the policy of the state” was to insure the “mastery of English by all pupils in the schools,” id. at 565, 94 S.Ct. at 788; it also stated that candidates for high school graduation would be required to meet standards of proficiency in English. Id. at 566, 94 S.Ct. 786.
Lau is thus a classic example of discriminatory effect being found in the totality of the defendants’ conduct. Surely it cannot be said that suddenly requiring Chinese-speaking students to attend schools where proficiency in English is mandatory, then refusing to help them overcome the consequent language handicap does not impose a “burden” on them as the' term is used in Satty. Having entered into the. venture of' mandatory, English-oriented primary and secondary education, the state was not free to omit the very instruction upon which success in the system inherently depended for the minority students suddenly thrust into it.
Lau is a far any from the present case, where college attendance is not mandatory and is not as critical for success in life as is grade and high school education. Securing a college education may be more difficult when combined with child-care responsibilities, but the defendants have not declared that, in order to graduate, female students with children must eliminate that circumstance from their lives. In short, the plaintiffs in Lau had a discriminatory burden imposed upon them; the plaintiffs in this case, even assuming their complaint to be true, have not.
The plaintiffs air problems of significance about which society should be genuinely concerned. “But the Constitution [and, I believe, Title IX, do] not provide judicial remedies for every social and economic ill.” Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 86 (1972).23 I am unwilling that, in its eagerness to see the plaintiffs’ difficulties eased, the court should ignore the historic and constitutional boundaries that protect not only the autonomy of the states and coordinate branches of the federal government, but ultimately the federal judiciary itself. The plaintiffs’ remedy, if one is to be found,
lies, not in the abuse by the judicial authority of its functions, but in the people, upon whom, after all, under our institutions, reliance must be placed for the correction of abuses committed in the ex- ■ .erase of a lawful power.
McCray v. United States, supra, 195 U.S. at 55, 24 S.Ct. at 776.
. Subsequent to the circulation of this dissent, the majority made substantial revisions in its opinion including elimination of certain reliance on Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) (discussed in part IV of this dissent), and the addition of part II of the majority opinion. With the latter addition, the majority now joins me in concluding that intent to discriminate alone is insufficient under Title IX or the Fourteenth Amendment.
Having gone half way, the majority persists in finding “discrimination” alleged in the pleadings of this case and from this position, I must still dissent for the reasons set forth in footnotes 5 and 6, infra.
. With respect to the other issues treated by the majority, I do not agree that De La Cruz has standing to assert this cause of action, but since I believe that at least some of the other plaintiffs do have standing, I agree that the entire case should not be dismissed on that basis. I am also persuaded that a private action based on Title IX is proper under 42 U.S.C. § 1983.
. The “discriminatory effect” idea is often identified with Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), where it was held that actionable discrimination can exist under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, even if not shown to be purposeful.
. This quotation from Gilbert refers directly, of course, to Title VII; but that it applies equally to the Equal Protection Clause and, indeed, to Title IX and other anti-discrimination statutes, is apparent not only from the manner in which the Gilbert analysis is closely patterned after the reasoning in Geduldig, but also from the virtually tautological idea that only conduct found to be “sex-based discrimination” can be violative of any text forbidding sexually unfair treatment. There is simply no reason that what constitutes discriminatory effects under the Fourteenth Amendment and Title VII does not also do so under Title IX.
Under Title VII, as interpreted in Griggs v. Duke Power Co., supra, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, discriminatory effect alone, without reference to intent, may support a finding of illegality. Even if that rule also governs Title IX, a point I need not reach, it is of no help to the plaintiffs here since, as shown in part IV, no such effects have been alleged. See Gilbert, 429 U.S. at 136-37, 97 S.Ct. 401.
. I cannot accept the majority’s contention in footnote 6, ante at 54, that the holdings of Geduldig nor Gilbert apply only to facially discriminatory acts. I agree that neither Geduldig and Gilbert foreclosed proof of a discriminatory effect. Nonetheless, Geduldig contemplated proof of a discrepancy in the aggregate risk protection derived from the insurance program at issue. 417 U.S. at 496, 94 S.Ct. 2485. Similarly, in Gilbert, only a discrepancy in the value of the included benefits — the “package” — to men and women was contemplated as proof of such an effect. See 429 U.S. at 138-40, 97 S.Ct. 401. The discussion of Gilbert in Satty reaffirmed this principle. See 434 U.S. at 144, 98 S.Ct. 347.
In contrast, plaintiffs here challenge the impact of the defendants’ policy on women as a group but not any inequality in the value of the benefits the defendants currently provide. Under Gilbert, the latter, but not the former, is actionable. See 429 U.S. at 139-40, 97 S.Ct. 401.
The majority now seeks to characterize the complaint as one challenging the value of the included benefits. Ante at 56. Such a characterization is no more than a relabeling of the true substance of the complaint, that the defendants’ failure to provide child care has an adverse impact on women, There is no allegation in the complaint that the value of the benefits currently provided by the defendants is actually greater for men than it is for women, as required by Gilbert. To measure the value of existing, included benefits by assessing the adverse impact of excluded benefits would render meaningless the Gilbert distinction.
For purposes of burden analysis, unlike the analysis of included benefits, the totality of the defendants’ conduct may be considered, as my discussion of Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), in part IV demonstrates. Even under this standard, however, plaintiffs fail to allege discriminatory effects. I do not find in the complaint the totality of conduct that formed the basis for the Court’s decision in Lau. The majority’s hypothetical, ante at 57-58, goes far beyond the allegations in the complaint and simply is not before us.
Finally, I cannot accept the majority’s distinction of Geduldig, Gilbert, Satty and Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), as cases decided on a full record. Because allegations in a complaint are to be taken as true for purposes of a motion to dismiss, Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 172, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967), the legal principles established in those cases must control our decision.
. In footnote 7, ante at 55, the majority attempts to limit the holding of Palmer to the proposition that discriminatory intent alone is insufficient to invalidate a statute. Nonetheless, only by holding that the closing of the swimming pools had no discriminatory effect did the Court reach the question whether improper racial considerations alone could invalidate the action. See 403 U.S. at 224—26, 91 S.Ct. 1940. Indeed, as I note in part III, Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), later characterized Palmer as holding in part that the action had no discriminatory effect. 426 U.S. at 243, 96 S.Ct. 2040.
. See Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 S.Ct.Rev. 95, 99; Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1208-12 (1970).
. Beer v. United States, 425 U.S. 130, 148-49 n.4, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976) (Marshall, J., dissenting).
. When the question before the courts involves the proper interpretation, as opposed to the validity, of a statute, of course, inquiry into legislative purpose and intent is common “because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose,” United States v. O’Brien, supra, 391 U.S. at 383-84, 88 S.Ct. at 1683, and because in seeking to implement rather than pass judgment upon legislative intent, the danger of judicial intrusion into the legislative sphere, discussed in the subsequent text, is muted. It might also be argued that when the courts search for state interests under either “minimum” or “strict” scrutiny equal protection analyses they necessarily examine legislative motive. But “state interests” must, in many cases, be much more encompassing than the motives of all or some of the legislators who act to further those interests; thus, evaluating the legitimacy of state interests is not identical to passing judgment on legislators’ motives. Cf. Bulluck v. Washington, 152 U.S.App.D.C. 39, 45-46, 468 F.2d 1096, 1102-03 n.17 (1972) (“To the extent that the ‘interests’ advanced by a statute are equated with the ‘purposes’ for its enactment, the latter may become relevant [to its validity]”). Further, what is said in the subsequent text concerning the search for discriminatory intent as required by Washington v. Davis, supra, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, applies here as well: the courts avoid many of the inherent dangers involved in scrutinizing legislators’ motives if they insist that a threshold showing or allegation of discriminatory effect be made. In sum, I find judicial inquiries into legislative motive for purposes of statutory interpretation or discovery of state interests to be categorically distinct from such inquiries when designed to approve or disapprove of legislative choices solely on the basis of that motive. It is judicial review of the latter type that I believe is the object of condemnation in the Fletcher-Paimer line of cases cited in the text.
That an illicit legislative motive will not undermine an otherwise valid law is related to the broader, frequently reiterated principle that the courts do not inquire into the wisdom or utility of legislation under constitutional attack. E.g., James v. Strange, 407 U.S. 128, 133, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972); Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 46-47, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966); Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). Important to the discussion here, however, is that, as illustrated by such cases as Fletcher, O’Brien, and Palmer, cited in the text, it is not only unwise, but also illicit motivation that is beyond the reach of the courts if a legislative act is otherwise nondiscriminatory.
. We are not concerned, for example, with Free Exercise or Establishment Clause adjudication,' see Board of Educ. v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); School Dist. v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); McGowan v. Maryland, 366 U.S. 420, 453, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), or with the Fifteenth Amendment and the legislation implementing its protections. See Richmond v. United States, 422 U.S. 358, 378-79, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975); Wright v. Rockefeller, 376 U.S. 52, 56 (1964); Gomillion v. Lightfoot, 364 U.S. 339, 341, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).
. This is obvious with respect to the Fourteenth Amendment issue in this case, since Palmer was decided under the Equal Protection Clause. I believe it is also true with respect to the Title IX issue. In the absence of a legislative mandate to the contrary — and I find none in Title IX — the authority and policies discussed in the text against the invalidation, based solely on motive, of legislative decisions are as persuasive as applied to judicial review under acts of Congress as under the Equal Protection Clause.
. Davis was actually decided on the basis of the equal protection component that the Court has found to be inherent in the Due Process Clause of the Fifth Amendment and not directly under the Equal Protection Clause of the Fourteenth Amendment itself. But the opinion makes clear that the rule announced in the case applies equally to the Fifth and Fourteenth Amendments. See 426 U.S. at 239, 96 S.Ct. 2040.
. In Davis, the discriminatory effect consisted of the disproportionate exclusion of blacks applying for positions on the Washington, D. C. police force by means of a written examination.
. As articulated by the first Mr. Justice White in his opinion for the Court in McCray:
It is, however, argued, if a lawful power may be exerted for an unlawful purpose, and thus by abusing the power it may be made to accomplish a result not intended by the Constitution, all limitations of power must disappear, and the grave function lodged in the judiciary, to confine all the departments within the authority conferred by the Constitution, will be of no avail. This, when reduced to its last analysis, comes to this, that, because a particular department of the government may exert its lawful powers with the object or motive of reaching an end not justified, therefore it becomes the duty of the judiciary to restrain the exercise of a lawful power wherever it seems to the judicial mind that such lawful power has been abused. But this reduces itself to the contention that, under our constitutional system, the abuse by one department of the government of its lawful powers is to be corrected by the abuse of its powers by another department.
The proposition, if sustained, would destroy all distinction between the powers of the respective departments of the government, would put an end to that confidence and respect for each other which it was the purpose of the Constitution to uphold, and would thus be full of danger to the permanence of our institutions.
Id. 195 U.S. at 54-55, 24 S.Ct. at 776.
. The protection of legislative independence against judicial interference is represented in the text of the Constitution as well as its structure. The Speech and Debate Clause, U.S. Const. Art. I, § 6, cl. 1, has been interpreted to protect members of Congress from civil or criminal liability for their conduct falling within the “sphere of legitimate legislative activity.” Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501-03, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975).
The purpose of the Clause is to insure that the legislative function the Constitution allocates to Congress may be performed independently.
“The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.”
In our system “the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders.”
Id. at 502, 95 S.Ct. at 1820 (citations omitted). The Court has emphatically declared that the protection of such values justifies excluding judicial inquiry into legislators’ motives:
Our cases make clear that in determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted *73it. In Brewster, [U. S. v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507] we said that “the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.” And in Tenney v. Brandhove we said that “[t]he claim of an unworthy purpose does not destroy the privilege.” If the mere allegation that a valid legislative act was undertaken for an unworthy purpose would lift the protection of the Clause, then the Clause simply would not provide the protection historically undergirding it. “In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and believed.”
Id. at 508-09, 95 S.Ct. at 1824 (emphasis in original, citations omitted). Significantly, the Court has extended the reach of the Speech and Debate Clause to the states by finding an implied, congressionally-created immunity for state legislators from actions under 42 U.S.C. § 1983. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).
. I find unpersuasive Professor Brest’s rather cursory argument to the contrary. Brest, supra note 4, at 128-30. Proving discriminatory motive by clear and convincing evidence does nothing to lessen the magnitude of the judicial intrusion into other branches of government.
. The lower courts have also recognized that “if what the legislature has done is constitutional, the reasons why it has done so are irrelevant.” Bulluck v. Washington, supra, 152 U.S.App.D.C. at 45, 468 F.2d at 1102 (footnote omitted); accord, Felix v. Young, 536 F.2d 1126, 1133 n. 15 (6th Cir. 1976).
I believe that this rule should apply with equal force to charges of discrimination against private parties, but since the defendants in this case are local public officials, that question need not be reached.
. The term “facially neutral” should be used cautiously because it may describe at least two distinct kinds of behavior: (1) that the conduct in question is not based on overt racial, sexual, or other classifications, yet still generates discriminatory effects, and (2) that the conduct cannot be said to have discriminatory effects at all. I find the defendants’ alleged conduct to be facially neutral in the latter sense, as explained in part IV of the text. The majority apparently believes the complaint alleges action which is facially neutral in the former sense.
. As the Court put it in Gilbert, “a distinction which on its face is not sex related might nonetheless violate the Equal Protection Clause if it were in fact a subterfuge to accomplish a forbidden discrimination.” 429 U.S. at 136, 97 S.Ct. at 408 (emphasis added).
. * The mere fact that conduct discriminates does not, of course, make it per se unlawful. There may be valid defenses to the discrimination.
. City of Los Angeles, Dep’t of Water and Power v. Manhart, supra, 98 S.Ct. 1370, offers implicit support to this reading. In Manhart, the Court points out that the plaintiffs in Gilbert “not only had . . . failed to establish a prima facie case by proving that the plan was discriminatory on its face, but they had also failed to prove any discriminatory effect.” Id. at 1379 (footnote omitted). Nowhere does Manhart suggest that a prima facie case might also have been made out had discriminatory purpose alone been proved.
. The allegations of discriminatory intent are set forth in the majority’s opinion. It is not clear to me whether the plaintiffs have alleged that the defendants desired that women should suffer from the lack of day care facilities, or merely that they were aware of that result. I *75believe that only the former mental state qualifies as discriminatory intent within the meaning of Washington v. Davis, supra, 426 U.S. at 229, 96 S.Ct. 2040. See United Jewish Organizations v. Carey, 430 U.S. 144, 179-80, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (Stewart, J., concurring); United States v. South Carolina, 445 F.Supp. 1094, 1102 (D.S.C.1977) (three-judge district court). The reason for this should be obvious. If mere knowledge of a discriminatory effect were sufficient to satisfy the intent requirement, a premium would thereby be placed on ignorance of the very conditions that need correcting. Despite the complaint’s ambiguity in this respect, however, I am prepared to assume, for purposes of this opinion, that the requisite discriminatory intent has been alleged.
. If all it takes to state a cause of action under the Fourteenth Amendment are allegations (1) that someone acting under color of state authority has refused to take an action which would be especially helpful to a certain category of persons, most of whom are women, and (2) that the refusal was discriminatorily motivated, I fail to see why a host of other possible welfare or economic proposals might not be subject to judicial creation if a federal judge is convinced that the defendant is biased against women. Such “judicial activism” in the name of “equal protection” would distort the concept beyond recognition..