MEMORANDUM AND ORDER

The plaintiffs fall into two classes: (1) unincorporated associations of general contractors and subcontractors engaged in the building and construction industry in San Francisco and (2) contractors and subcontractors so engaged. None of the plaintiffs is a “nonwhite” owned business. Defendant San Francisco Unified School District (hereafter “District”) is a duly organized public body consisting of the public schools in San Francisco. Defendant San Francisco Board of Education (hereafter “Board”) is the responsible governing body of the District. Intervenors are two associations of minority contractors, respectively, National Association of Minority Contractors and Minority Contractors’ Association of Northern California, Inc.

On March 17, 1977, this Court issued a preliminary injunction preventing the District and the Board from carrying out what was called an Affirmative Action Policy. That so-called policy required that a bidder, in order to be awarded a construction contract as a general contractor, utilize minority owned businesses for no less than twenty-five percent of the base bid amount, or that the bidder be a minority owned business. The injunction was granted on the sole ground that the evidence had failed to establish that the so-called policy was “the will of the Board established by Board action appropriate to carry out that will.”

On March 22, 1977, the Board, voting unanimously, took appropriate action to declare and enforce a new and considerably different Affirmative Action policy. Based upon the adoption of the new Policy, the District and Board now move for dissolution of the preliminary injunction. Plaintiffs, of course, oppose.

At the hearing on the motion, all parties stipulated to this effect: In deciding the matter, the Court should pass upon the new Affirmative Action Policy to the same extent as if plaintiffs were moving to enjoin its enforcement. Accordingly, the Court now considers the new Policy and, in determining whether or not the preliminary injunction should be dissolved, reaches its decision on the same basis as if the issues were generated by plaintiffs’ motion for a preliminary injunction against carrying out the new Policy.

The Board action establishing it may be summarized as follows:

The Board resolution then lays down the following requirements:

The good faith and good intentions of the Board are not open to question. There is no evidence to suggest that it had any purpose, in laying down the Affirmative Action Policy, other than the laudable one of curbing and correcting racial discrimination which the Board found to have been practiced with respect to nonwhite owned subcontracting businesses. The Board’s purpose is manifestly based upon the premise — requisite to the freedoms protected by our Constitution — that there be an end to racial discrimination denying equality of economic opportunity.

Plainly, then, the crucial legal question here presented is not one of purpose. It is one of power.

Does the Board have legal authority to proclaim and carry out the Affirmative Action Policy?

As the law now stands, there is little doubt that the State of California itself could require compliance with an Affirmative Action Policy of the kind here before the Court. The state could also authorize school boards to declare and effectuate such policies. Many decisions confirm the power of state legislatures (and of other governmental bodies authorized to establish public policy) to mandate preferences for racial minorities, when the mandate is based upon proper findings of past discrimination against those minorities. For example, the State of Massachusetts can require a eon-•tractor for publicly funded construction work at Boston State College to

The underlying rationale of this and other like decisions is well stated in the First Circuit’s opinion written by Chief Judge Coffin. Agreeing with Justice Harlan’s famous observation that the United States Constitution is colorblind, Judge Coffin remarked:

To say that the legislature of the State of California (or the people by initiative) could lawfully require conformity to the Affirmative Action Policy or could empower subordinate bodies, such as boards of education, to do so, is not to say that the San Francisco Board of Education has that power. As will be seen, the Board’s powers are limited, under the state constitution and statutory enactments, to those closely related to public education and school administration. They do not enable the Board to require building contractors and subcontractors to conform to a social policy declared by the Board, however enlightened and desirable that policy may be.

The powers of the Board derive entirely from the state constitution and a state statute, the California Education Code. They are limited to those matters having a reasonably direct relationship to the operation of schools — matters such as administration, staffing, curricula, textbooks, school building construction and maintenance, rules for admission, disciplinary procedures, etc. See, e. g., Calif.Constit. Art. 9, § 14; Calif.Educ.Code §§ 1051, 15351.

Nevertheless, the Board claims that the state legislature has given it authority to lay down and enforce the Affirmative Action Policy. It is to be found, the Board contends, in the provisions of California Education Code § 15951 reading as follows:

In particular, the Board relies upon the word "responsible”.

Plaintiffs urge that the quoted section does not sanction the Affirmative Action Policy. The Court agrees.

The manifest purpose of section 15951— clear from its plain language — is to protect the public against corrupt or wasteful expenditure of school funds. Defendants' reliance upon the word “responsible” as authorizing the Board’s Affirmative Action Policy calls for transforming section 15951 from one narrowly focusing upon honesty and economy into an enactment of public policy by which the California legislature undertook to redress, or permit school boards to redress, past racial discrimination by contractors dealing with school boards. No such broad intendment can reasonably be read into the section.

Defendants, arguing to the contrary, rely upon an opinion of the California Attorney General issued in 1963 and upon a 1969 decision of the Supreme Court of Ohio rendered by a divided court.

Upon careful analysis, it will be seen that the Attorney General’s opinion (42 Ops. Att’y Gen. 169 (1963)) does not support defendants’ contention. The question presented to the Attorney General was whether the Berkeley Unified School District and its Board of Education could include, in school construction contracts, clauses prohibiting builders from engaging in racial and religious discrimination in their employment practices. The Attorney General found that such clauses were “consistent with and in aid of existing statutes”. The opinion then proceeded to state that “conformity to the laws prohibiting employment discrimination on public works would appear to be a criterion well within the requirements of being a ‘responsible bidder’ especially in view of the fact that such laws represent an urgent policy of this state.”

The Ohio case, upon which defendants place great reliance, is Weiner v. Cuyahoga Community College Dist., supra, note 3. It is not clear from either the majority nor the minority opinion as to precisely what was required by the school board policy in that case. But there again, as is true of the California Attorney General’s opinion, the question involved related to the power of the district (a college district in that case) to require a bidder to conform to law. The majority opinion stated:

It is one thing to say that a bidder is not responsible if he is unwilling to comply with the law. It is quite another to say that the Board can declare a social policy and then categorize a bidder as not responsible within the terms of section 15951 for failing or refusing to comply when that policy transcends the authorized power of the Board. See Broidrick v. Lindsay, 39 N.Y.2d 641 , 385 N.Y.S.2d 265 , 350 N.E.2d 595 (1976).

The most recent, authoritative interpretation of the term “lowest responsible bidder” is to be found in a decision of the California Supreme Court, City of Inglewood v. Superior Court, 7 Cal.3d 861 , 103 Cal.Rptr. 689 , 500 P.2d 601 (1972). After pointing out that trustworthiness, quality, fitness and capacity are included in the term “responsible bidder”, the California Supreme Court goes on to say: “Thus, a contract must be awarded to the lowest bidder unless it is found that he is not responsible, i. e., not qualified to do the particular work under consideration.” 7 Cal.3d at 867 , 103 Cal. Rptr. at 692 , 500 P.2d at 604 . There is not the slightest hint in Inglewood nor any other California case that the term “lowest responsible bidder” is sufficiently broad to justify the construction that a bidder is not responsible if he does not comply with a social policy adopted by the Board without constitutional or statutory authorization.

To repeat, the Affirmative Action Policy of the San Francisco Board of Education serves desirable purposes, but it goes beyond requiring compliance with duly enacted laws. In other words, it is a Board policy which lacks legislative authorization and therefore may not be legally imposed. Defendants must turn to the California legislature or to the California electorate (through the initiative process) for authorization of that policy.

A Ninth Circuit decision, William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (1975), binding upon this Court, lays down the standards governing the issuance of preliminary injunctions. It rules that a plaintiff is entitled to a preliminary injunction upon showing (1) probable success on the merits and (2) the possibility of irreparable injury. In this case, plaintiffs’ probable success on the merits is augured because of the Board’s lack of authority to lay down the Affirmative Action Policy. And, as to the possibility of irreparable injury, the Board’s Affirmative Action Policy must mean in some cases, at least, that white owned subcontractors will be rejected or by-passed in favor of nonwhite owned subcontractors solely because the former are white. It necessarily follows that white owned subcontractors are faced with “the possibility of irreparable injury”.

Nothing in this opinion is to be construed as in anywise precluding defendants from requiring, as a condition of bidding, that the bidder must agree to comply with all applicable state and federal antidiscrimination laws, including the Constitution of the United States and. that of the State of California.

For all of the foregoing reasons, defendants’ motion to dissolve the preliminary injunction is hereby denied.

EXHIBIT “A”

FINDINGS AND AFFIRMATIVE ACTION POLICY RELATING TO PARTICIPATION OF MINORITY CONTRACTORS IN SCHOOL CONSTRUCTION PROGRAM AND INTERIM REGULATIONS-1977 (P 3665.1)

This Board of Education of the San Francisco Unified School District finds:

1. That on July 24, 1964, the Board of Supervisors of the City and County of San Francisco adopted Ordinance No. 209-64 based upon findings duly made, among other things, that:

2. That on October 10, 1966, the Board of Supervisors of the City and County of San Francisco adopted Ordinance No. 261- 66, adding Chapter 12B to the San Francisco Administrative Code and requiring affirmative action nondiscrimination practices in the award of all city contracts; and that on January 16, 1968, by Resolution No. 81-16A1, this Board adopted the provisions of said Chapter 12B prohibiting discrimination in the award of contracts for and on behalf of the San Francisco Unified School District.

3. That on January 20, 1970, this Board adopted Resolution No. 01-20A1 authorizing formation of a committee to formulate procedures for an affirmative action program in the awarding of school construction contracts and to secure increased participation of minority contractors in the bidding and awarding of such contracts, and did, on May 19, 1970, by Resolution No. 05-19A1 adopt an affirmative action policy governing the award of school construction contracts and assigning the Superintendent of Schools the responsibility for carrying out said policy.

4. That on December 15,16 and 17,1970, the Office of Contract Compliance, Equal Employment Opportunity, United States Department of Labor, held hearings in the City and County of San Francisco for the purpose of determining what action should be taken to ensure equal employment opportunity in the construction industry in San Francisco, California, and, further, to determine the availability and utilization of minority contractors on Federally-involved contracts. It was thereupon found that minority workers have been prevented from fully participating in the construction trades and that utilization of minority subcontractors by contractors could significantly expand the participation of minority craftsmen on projects of federal construction contractors. The San Francisco Plan (41 C.F.R. 60-6), was adopted by the United States Department of Labor setting minimum goals for participation of minorities in federal contracts.

This Board further finds:

1. That during the period commencing January 1964 to and including June 30, 1975, contracts for school construction projects were let and awarded for and on behalf of the School District in the total dollar amount of $87,241,573; that minority contractors and subcontractors participated in the performance of said contracts in the total dollar amount of $2,532,205, representing 4.99 per cent minority contractor participation in the total dollar amount of said contracts; that on or about July 1,1975, the School District administratively, and pursuant to authority conferred upon the Superintendent aforesaid, adopted and implemented a policy of requiring a minimum of 25 per cent minority participation in the dollar amount of all contracts let or awarded by or on behalf of the School District; that commencing July 1, 1975, to and including October 30, 1976, school construction contracts containing said affirmative action requirement were let and awarded in the total dollar amount of $20,620,788, of which minority contractors participated in the sum of $6,892,264, representing 33.4 per cent of the total dollar amount of said contracts.

2. That there are now, and have been, in the City and County of San Francisco and immediate environs, during all of the times herein mentioned, competent and qualified minority contractors and subcontractors who are now, and have been, ready, willing and able to perform school construction contracts and to participate more fully in the performance thereof; and that the failure of minority contractors and subcontractors to participate more fully in the performance of school construction contracts has resulted primarily from exclusion from participation therein and discrimination based upon race, religion, color, sex or national origin contrary to federal, state and local laws.

3. That the implementation and administration of an affirmative action policy in the award of school construction contracts which will ensure minimum minority participation in the performance of school construction contracts requires that this Board adopt a policy which shall ensure contracts shall be awarded to the lowest responsible bidder whose bid is consistent with the affirmative action policy of the San Francisco Unified School District herein set forth.

AFFIRMATIVE ACTION POLICY

BUSINESS PARTICIPATION POLICY OF NONWHITE OWNED BUSINESSES

I. POLICY AND PURPOSE

The policy of the Board in enacting this Affirmative Action Program, and in setting forth goals therein, is as follows:

II. AFFIRMATIVE ACTION GOALS

III. Interim Regulations 1977 covering specific types of business formations are hereby passed effective to and including June 30,1977, pending further study and recommendation by the Superintendent.

INTERIM REGULATIONS 1977

A. RECOGNIZED BUSINESS OWNERSHIP

B. “NONWHITE” Defined

. This stipulation was made by the parties and approved by the Court in the interest of expeditious administration of justice. Absent the stipulation, defendants would have been entitled to dissolution of the injunction on the ground that the present policy is, unquestionably, that laid down by the Board. Then, the plaintiffs would have had to have filed a new motion for a preliminary injunction against enforcement of the new policy, and the defendants would have had to have filed their opposition to the new motion. The stipulation enables the Court to decide, without duplicative paperwork by the parties or undue delay, the question as to whether or not a preliminary injunction should be issued against carrying out the new Policy. . The entire Policy, contained in five typewritten pages, is appended as Exhibit A. Exhibit A is an exact duplicate, without editing or correction, of the Policy as certified to the Court by the defendant Board and not challenged by plaintiffs as to authenticity. The Court’s summary in text is greatly abbreviated. . Other cases in accord with Altshuler include: Franks v. Bowman Transp. Co., 424 U.S. 747 , 96 S.Ct. 1251 , 47 L.Ed.2d 444 , (1976), permitting seniority relief for minorities; Southern Ill. Builders Ass’n v. Ogilvie, 471 F.2d 680 (7th Cir. 1972), upholding the Ogilvie Plan for the recruitment, placement and training of minorities in the highway construction industry of southern Illinois; Contractors Ass’n of E. Pa. v. Secretary of Labor, 442 F.2d 159 , 175 (3d Cir.), cert. denied, 404 U.S. 854 , 92 S.Ct. 98 , 30 L.Ed.2d 95 (1971), upholding the Philadelphia Plan which required bidders on construction projects to have an affirmative action policy so as to advance the Plan’s goals for minority hiring; Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970), cert. denied, 402 U.S. 944 , 91 S.Ct. 1612 , 29 L.Ed.2d 112 , (1971), holding that the promotion by the Newark Board of Education of black teachers over white teachers, in disregard of a promotional list, was constitutional; Germann v. Kipp, 429 F.Supp. 1323 , (W.D.Mo., 1977), upholding the promotion of minorities ahead of whites in the Kansas City, Mo., Fire Department; Joyce v. McCrane, 320 F.Supp. 1284 (D.N.J.1970), upholding the Newark Plan which set goals for the utilization of minority journeymen on construction projects; Weiner v. Cuyahoga Community College Dist., 19 Ohio St.2d 35 , 249 N.E.2d 907 (1969), cert. denied, 396 U.S. 1004 , 90 S.Ct. 554 , 24 L.Ed.2d 495 (1970), holding that Cuyahoga Community College District properly rejected the lowest financial bid for a construction project where that bidder failed to assure the District that he would comply with antidiscrimination laws. . The term “lowest responsible bidder” has been unchanged since the original enactment of what has become section 15951. 1917 Cal. Stats, c. 552, p. 741. No amendment has affected the meaning of the quoted phrase as used from the beginning. . In reaching its decision, the Court has not disregarded the difficult problem faced by the Board when it adopted the Affirmative Action Policy. It had found that nonwhite subcontractors had been discriminated against by general contractors for some ten years. It had further found that a remedy thereafter invoked for a year had helped correct the invidious discrimination. On these facts, failure to remedy past discrimination could open the Board to charges that it was tolerating, if not itself participating in, unlawful discrimination. See Ethridge v. Rhodes, 268 F.Supp. 83, 88 (S.D.Ohio 1967). But the logic underlying any such charge is more inviting than compelling. It begs the question of limitation on the Board’s power. If the Board lacks the power to require others to correct past racial discrimination, it cannot gain that power simply because it has seen others engage in such discrimination nor because the Board was able to correct it by exceeding the Board’s authority.