dissenting in part and concurring in part:

I dissent in part and concur in part with the reasoning and the result of the amended majority opinion.

This case has suffered a lengthy and tortuous history. It was first argued before this panel on November 12,1981. The opinion of the panel was not filed until January 28, 1984. During the intervening years, the United States Supreme Court issued opinions in two major and relevant cases. 1 Based on these two cases, the appellant filed a petition for rehearing on February 6, 1984. Now the majority has elected to file an amended opinion.

In light of the majority’s decision to proceed by amended opinion, my prior dissent must stand except to the extent that my views concerning the findings on intentional discrimination are now in concurrence with the majority. Specifically, I disagree with two elements of the majority’s amended opinion: (1) affirmation of the district court’s finding that the use of standard IQ tests in the E.M.R. placement process violated federal statutes under a discriminatory effects analysis; 2 and (2) affirmation of the overbroad remedy announced by the district court. But I now concur with the amended majority opinion in rejecting the district court’s findings that appellant violated the equal protection clause by intentionally discriminating against minority children. In addition, I concur with the amended majority opinion’s holding that this court is without jurisdiction to adjudicate claims under the California Constitution. 3

I. FEDERAL STATUTORY CLAIMS

The majority affirms the trial court’s conclusion that the defendants’ use of unvalidated IQ tests to place minority children in E.M.R. classes violates the federal statutes invoked by the appellees. These violations are based upon the discriminatory impact evidenced by the disproportionate number of black students in classes. In my view, the appellees failed to produce sufficient evidence to satisfy their initial burden under a discriminatory effects analysis.

In Guardians Association v. Civil Service Commission of City of New York, 463 *986 U.S. 582 , 103 S.Ct. 3221 , 77 L.Ed.2d 866 (1983), a majority of the Justices indicated that a violation of the regulations adopted pursuant to Title VI may be established by proof of discriminatory impact. Id. at 3235, n. 1 (Powell, J. concurring). Although the Title VI regulations in Guardians Association were enforced pursuant to a suit under 42 U.S.C. § 1983 , the majority here finds the discriminatory effects test applicable to the appellees’ federal statutory claims. 4

Under such an analysis, the plaintiff makes out a prima facie case by demonstrating discriminatory impact. Board of Education of New York v. Harris, 444 U.S. 130,151 , 100 S.Ct. 363, 375 , 62 L.Ed.2d 275 (1979).. Implicit within this initial burden is the requirement that the defendant’s discriminatory policies or actions have an adverse impact. 5 In the instant case, the appellees have shown only that a higher percentage of blacks were placed in the E.M.R. classes. As I interpret those cases applying a discriminatory effects analysis, the appellees should have been required to show that a disproportionate number of minority students were improperly placed by virtue of their IQ test scores.

Proper placement in the E.M.R. classes is a benefit, not a stigmatic dead-end assignment. As discussed in the majority opinion, these classes were established to assist students incapable of satisfactory achievement in the regular school curriculum. The program was thought to be extremely helpful to enrollees in that it permitted those individuals to acquire skills within their capabilities that in turn would permit them to have useful and productive lives and thus reach their full potential. It is, and always has been, a completely voluntary program, requiring two fully informed parental consents, one for permission to initially test and one to place a child in such a program. Placement in the program requires testing, evaluation and observation by trained personnel, as well as the objective measure of IQ testing procedures. Once enrolled, parents had the option at any time to withdraw their child from the program.

Yet, solely because of the disproportionate number of black children within the E.M.R. program, the district court struck down the heretofore accepted IQ tests 6 and required the composition of the class to *987 mirror the racial percentages of the school district. That holding ignores the beneficial aspect of proper placement and misstates the appellees’ burden of proof. Before the tests in question can be labeled as discriminatory, there must be a showing that they produced improper placement into the E.M.R. program. No such showing was made. The only arguable finding of specific misplacement is the conclusory observation of the district court that

Larry P. v. Riles, 495 F.Supp. 926, 988 (N.D.Cal.1979).

Rather than specifically examining the accuracy of the placements, the district court employed, and the majority adopts, the following reasoning to support a finding of discriminatory impact: (a) there is disparity in the E.M.R. program; (b) improper placement in the E.M.R. classes has an adverse effect; therefore, (c) the use of IQ tests to place a disproportionate number of minority students in the special classes is prima facie evidence of discrimination.

That analysis assumes that the statistical disparity in the composition of the classes is caused by improper placement of black children. Upon that unsubstantiated premise rests the district court’s finding that the appellees made an initial showing of discriminatory impact. The burden then shifted to the defendants to justify the use of IQ tests in the E.M.R. placement process, despite the fact that none of the named appellees were shown to have been improperly placed in the classes. In so doing, the district court and the majority invert the allocation of proof on the critical issue presented in the case; namely, did the appellants’ testing procedures place black children in the E.M.R. program who did not belong there.

Though regrettable, it is not surprising the district court neglected to ascertain the validity of the specific E.M.R. placements. It would seem difficult, if not impossible, to identify an individual as a proper candidate for the E.M.R. program without employing some form of standardized IQ testing. Faced with the unenviable task of pinpointing educably retarded children on the basis of subjective data independent of the challenged IQ tests, the district court elected to base its conclusions on the supposition detailed above. Yet, the school districts are left in the same difficult position of proving that certain black students belong in the E.M.R. program in those districts where statistical disparity remains. 7

It is clear that the causes of racially disparate placement are complex, as well as controversial. Experts in the area have disagreed in the past and continue to disagree. The particular methodology chosen and the understandable failure to account for the universe of potential explanatory variables opens every purported finding to criticism. The record in this case shows that widely recognized IQ tests employed by defendants have long been hailed for their ability to correct the exact abuse complained of in this case — misevaluations and misplacement. Educators recognize that subjective evaluation, uncorroborated by objective criteria, carries enormous potential for abuse and misplacement based on the personal or cultural values of the evaluator. Here we strike the only objective criteria.

Though I am mindful of the “clearly erroneous” standard of review to be employed under Fed.R.Civ.P. 52(a), I am left with the definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 541 , 92 L.Ed. 746 (1948).

II. REMEDY

The remedy set forth in Section VI.B.2 of the district court opinion is also troubling. *988 It is well established that when a constitutional violation is found, the scope of the remedy should be tailored to the nature and extent of the violation. Dayton Board of Education v. Brinkman, 433 U.S. 406, 420 , 97 S.Ct. 2766, 2775 , 53 L.Ed.2d 851 (1976); Columbus Board of Education v. Penick, 443 U.S. 449, 466 , 99 S.Ct. 2941, 2951 , 61 L.Ed.2d 666 (1979). The Supreme Court decision in Guardians Association, supra, holds that only limited injunctive relief should be granted for unintended violations of Title VI. Guardians Association, 103 S.Ct. at 3232 (White, J.)

Though it is true the appellees challenged the placement process, the entire focus of the litigation was on the use of IQ testing as a placement device. The evidence adduced and the findings of the court go to the use and validity of the intelligence tests. Section B.2 of the remedy reaches far beyond the primary thrust of the appellees’ case. Each school district with a racial imbalance in the E.M.R. pupil enrollment is required to prepare and adopt a plan to correct the imbalance in enrollment rates. Should an imbalance persist, the school district must report to the district court and stand subject to further orders. This requirement transcends the evidence presented on misplacement due to IQ testing, an evil that is presumably resolved by the injunction and reevaluation portions of the remedy. Section B.2 addresses the general assumption that blacks and whites must be perfectly equal in the distribution of all human attributes.

The remedy set forth by the district court implies that even if IQ tests were validated for minorities, and all other evaluative methods employed were likewise validated, all defendants would nonetheless be acting in a discriminatory fashion if the result were a less than proportionate distribution. This places the defendants not in the position of employing the best evaluative procedures in the hope of properly placing individuals according to their needs. Instead, they are directed to “make the numbers fit.”

In that regard, I disagree with the majority’s reasoning that the remedy does not constitute an impermissible quota because the district court’s order tolerates disproportion up to one standard deviation. The remedy establishes an arbitrary constraint on the placement process, which at some point makes race the sole criterion in the evaluation of potential E.M.R. students. That is precisely the evil that Bakke sought to avoid. Regents of University of California v. Bakke, 438 U.S. 265, 315-318 , 98 S.Ct. 2733, 2761-2762 , 57 L.Ed.2d 750 (1978). 8

III. INTENTIONAL DISCRIMINATION

The district court found that appellant Riles, along with the other state officials, violated the equal protection clause by intentionally discriminating against minority children. The amended majority opinion rejects the district court’s finding on two grounds. First, the majority concludes in its discussion of the facts that the district court’s finding specifically does not apply to Dr. Riles. This conclusion is the result of a “discrete examination of the role actually taken by [Dr. Riles],” resolving that he, unlike the other state officials, did not possess the affirmative intent to discriminate. Second, the amended majority opinion holds that although the discriminatory effects analysis suffices to establish a violation of Title VI, intentional discrimination under the equal protection clause requires *989 more than a showing of the “pervasiveness of discriminatory effect.”

I concur and support the majority’s conclusion in its amended decision that Dr. Riles did not intentionally or purposefully discriminate against black pupils.

The Supreme Court has consistently held that where a neutral classification has a disproportionate effect upon a racial minority, it is unconstitutional under the equal protection clause only if that impact can be traced to a discriminatory purpose. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 , 99 S.Ct. 2282 , 60 L.Ed.2d 870 (1979); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 , 97 S.Ct. 555 , 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976). Yet the district court, after recognizing that the adoption of a plan with foreseeable disproportionate consequences is not in itself sufficient, nonetheless found intentional discrimination based on nothing more. Washington v. Davis held that foreseeability of segregative consequences does not make out a prima facie case of purposeful discrimination, but is one type of relevant evidence of such purpose. Justice Powell in Village of Arlington Heights suggests other possible factors for ascertaining intent. Village of Arlington Heights, supra, 429 U.S. at 265-67 , 97 S.Ct. at 563-64 .

While the district court applied these factors to the instant case, the analysis does not establish any discriminatory purpose. The district court appears to have fallen into the trap that Justice Rehnquist warned against in his dissent in Columbus Board of Education v. Penick, 443 U.S. 449 , 99 S.Ct. 2941 , 61 L.Ed.2d 666 (1979):

Id. at 509-10 , 99 S.Ct. at 2963.

Though the manner in which discriminatory purpose is to be proved is not clear in cases such as Washington v. Davis or Arlington Heights, the Supreme Court’s subsequent directive in Feeney is quite unambiguous:

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 , 99 S.Ct. 2282, 2296 , 60 L.Ed.2d 870 (1979) (emphasis added).

A finding of purposeful, intentional discrimination by Wilson Riles, a respected black educator of national reputation, is clearly contrary to the record. That he did so by deliberately and improperly placing black children, by means of invalid and discriminatory IQ test into “dead-end” E.M.R. classes, simply does not comport with the realities of this case or his oath as Superintendent of Schools. The trial court notes that in 1969 Dr. Riles recognized the problem of disproportionate numbers of minorities in the E.M.R. classes, as evidenced by his statement:

Larry P., 495 F.Supp. at 945 .

Later, the district court noted that when asked whether he thought genetic inferiority could possibly explain the disproportionate placement, Riles responded, “The whole concept is reprehensive. No, I do not agree.” Id. at 955 .

*990 Despite his statements, the district court concluded that Dr. Riles intentionally discriminated against appellees. The record does not support the conclusion that Dr. Riles selected and retained the use of IQ tests because of their adverse effects on minority students.

. On July 1, 1983 the United States Supreme Court filed its opinion in Guardians Association v. Civil Service Commission of the City of New York, 463 U.S. 582 , 103 S.Ct. 3221 , 77 L.Ed.2d 866 (1983). Although this court is applying that decision to the instant case, the parties neither briefed nor argued its applicability.

On January 23, 1984 the Court decided Penn-hurst State School and Hospital v. Halderman, 465 U.S. 89 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984). That decision was not included in this court’s decision filed on January 28, 1984. It has, however, been applied to this amended decision. The parties neither briefed nor argued the Pennhurst case.

. The decision in Guardians Association, supra, is directly applicable to this point and I reiterate that I would vote to grant rehearing so that the parties might present argument on this case.

. The decision in Pennhurst, supra, clearly held that the federal courts have no jurisdiction to adjudicate claims against a state based on that state’s law, and that pendent jurisdiction does not provide any jurisdiction.

. The majority concludes that Guardians makes the "effects" test applicable to the plaintiffs’ statutory claims based on the regulations to Title VI. But Guardians instructs that only suits brought under 42 U.S.C. § 1983 to enforce the regulations may be proved by discriminatory effect. Plaintiffs invoking the implied right of action under Title VI are “limited by the discriminatory-intent standard required to prove violations of Title VI." Guardians, supra, 103 S.Ct. 3235 , n. 1 (Powell, J.). The plaintiffs here did invoke the private right of action of Title VI, and did not proceed under Section 1983. Larry P. v. Riles, 495 F.Supp. 926, 961 (N.D.Cal.1979).

The majority approaches the claims under the Rehabilitation Act and Education For All Handicapped Children Act in similar fashion. They presume discriminatory effect is established by the disparate percentages of black children in the E.M.R. program and require the defendants to establish that the IQ tests were validated for proper placement. As discussed infra, that reasoning shifts the burden to the defendants before the plaintiffs proved their prima facie case. The Rehabilitation Act and the Education For All Handicapped Children Act proscribe discriminatory programs, not mere statistical disparity. 29 U.S.C. § 794 ; 20 U.S.C. § 1412 (5)(C).

. Title VI violations based on a disparate impact theory invariably involve some policy or practice which yields an actual discriminatory effect on a particular group or class. In Guardians Association, supra, black and Hispanic police officers suffered decreased seniority benefits because of low test scores on a challenged entrance exam. Board of Education of City School Districts, Etc. v. Harris, 444 U.S. 130, 133 , 100 S.Ct. 363, 365 , 62 L.Ed.2d 275 (1976), involved a pattern of racially disproportionate assignments of minority teachers in relation to the number of minority students enrolled at certain schools. In Lau v. Nichols, 414 U.S. 563 , 94 S.Ct. 786 , 39 L.Ed.2d 1 (1974), defendants failed to provide English language courses for students of Chinese ancestry.

. The IQ tests in question are 12 separate tests, primarily the Stanford-Binet and the Wechsler Intelligence Scale for Children (WISC). These are perhaps the most widely used and accepted IQ testing devices, which are thought by experts to measure or predict performance in school programs, though not in life, job or career.

. Section B.2 of the trial court’s remedy requires a school district with a racially imbalanced E.M.R. program to prepare and implement a plan to correct the imbalance. Should the imbalance persist, the majority contemplates that the school district can retain the disproportionate classes, if they can demonstrate that minority students belong there.

. As I read Bakke in the context of this case, any arbitrary limitation on the racial makeup of the E.M.R. classes violates the 14th Amendment because at some point individual students will be included or excluded from the program on the basis of race, rather than their ability to perform in regular school curriculum. This will occur, in my opinion, if educators are forced to monitor the racial makeup of the respective E.M.R. classes. If the percentage of minority students approaches the cutoff established by the trial court, the school district may exclude black children from the program who otherwise belong in the class. At the same time, non-minority children might be placed in the classes because there is a “white" space open. That approach denies all students the right to "individualized consideration without regard to [their] race.” Bakke, supra, 438 U.S. at 317, n. 52 , 98 S.Ct. at 2762, n. 52 .