PALMIERI, District Judge:

In this appeal we are called upon to determine whether a statutory and constitutional challenge to facially neutral but allegedly discriminatory official action may be resolved on the pleadings. The issues presented for review are narrow but significant, involving troublesome questions of legal interpretation and of the proper role of the federal judiciary in overseeing the decisions of local administrative bodies in the field of public education.

The plaintiffs are young women with low incomes burdened with the problems of child rearing, whose essential complaint is that the lack of campus child care facilities in the San Mateo Community College District (the District) has deprived them of an equal educational opportunity. They have brought this action on their own behalf and on behalf of others similarly situated under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Jurisdiction exists under 28 U.S.C. § 1343(3) and (4).

The thrust of plaintiffs' action is that defendants — the Board of Trustees and Chancellor of the District and the Presidents of the District's three colleges — have followed a policy of opposing all efforts of students and community groups to establish child care facilities in the District, thereby denying and burdening plaintiffs' equal access to the District's educational opportunities. Plaintiffs allege that the impact of this policy falls overwhelmingly on women, and that the resultant absence of child care facilities effectively bars them from obtaining the benefits of higher education. In particular, it is asserted that defendants arbitrarily maintain a "policy and practice" of refusing to allow child care facilities on campuses, refusing to apply for or accept funds for the establishment or maintenance of child care centers, and refusing to allow District funds to be used for these purposes.

The complaint pleads four claims for relief. In their first claim plaintiffs state that the defendants have violated their federal right to be free from sex discrimination in educational programs receiving federal monies under Title IX of the Education Act Amendments of 1972, 20 U.S.C. § 1681, which provides, in part, as follows:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.

Plaintiffs' second claim states that defendants' actions are violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they constitute intentional, invidious, gender-based discrimination and because they are arbitrary and unrelated to the legitimate goal of providing education.

In their prayer for relief, plaintiffs request, inter alia, a declaratory judgment to the effect that defendants have acted illegally and unconstitutionally, and temporary and permanent injunctions restraining defendants from maintaining their allegedly discriminatory "anti-child-care" policy and requiring them to take affirmative steps with a view to the development of child care in the District, including the allowance of private centers on campuses, the acceptance of federal, state, and county funds for this purpose, and the use of its own funds to this end.

In response to a motion by defendants pursuant to Rule 12(b) of the Federal Rules of Civil Procedures, the District Court dismissed the entire complaint on the ground that it failed to state any claim upon which relief could be granted. Plaintiffs appeal only from so much of the District Court's order as dismissed their first two claims for relief. Their third and fourth claims, involving matters of California law, stand finally dismissed and are not before us.

I.

The standard to be applied in ruling on a motion to dismiss claims for legal insufficiency — a motion viewed with disfavor in the federal courts, Rennie Laughlin, Inc. v. Chrysler Corporation, 242 F.2d 208, 213 (9th Cir. 1957) — is well established. In the words of the test most often applied:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted).

The issue is not whether a plaintiff's success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims. Moreover, in passing on a motion to dismiss, the allegations of the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See 5 Wright Miller, Federal Practice and Procedure: Civil § 1355.

Our task, then, is clearly defined. We must determine whether or not it appears to a certainly under existing law that no relief can be granted under any set of facts that might be proved in support of plaintiffs' claims.

II.

The Nature of the Alleged Discrimination

The satisfactory characterization of the allegedly unlawful governmental action sought to be remedied by the present suit poses a legal problem of some novelty and no little magnitude, one whose solution requires a closer scrutiny of the precise claims made. We begin, then, with a more thorough review of the specific conduct challenged by the plaintiffs.

After chronicling the apparently severe shortage of child care facilities for low-income families in San Mateo County, the complaint states, and we quote at some length:

In order to document the great need for child care for presentation to the Board of Trustees, in the Fall of 1973, the Associated Students of the College of San Mateo, (ASCSM) conducted a survey of over 3500 students as to their needs for child care. The ASCSM also began a co-operative effort with members of the District Planning Staff to conduct a feasibility study for child care on campus. Pursuant to these efforts, defendants were persuaded to hire a child care consultant, Sue Brock, to do a study for a District-wide approach to solving the child care problem.

In August, 1974, the ASCSM presented to defendants, Board of Trustees, the results of their survey showing an overwhelming need for child care, and the report of the child care consultant which further documented the overwhelming need and recommended a five-step program to deal with the child care problem including application for state and federal funding. With support from representatives of various community groups . . . ASCSM recommended that space be designated immediately on campus for the use of students who had organized to care co-operatively for their youngsters while a comprehensive program of child care was being developed.

The defendant Board of Trustees refused to take any action.

In September, 1973, the District Advisory Committee for Early Childhood Education, a committee composed of faculty and students of the Early Childhood Education Department and of representatives of the community and community public service agencies, issued a report recommending the development of a child care facility to provide care for children of students and to provide additional laboratory [ sic] for Early Childhood Education students. Defendants refused to act on this recommendation and have repeatedly refused to do so each year since 1973.

* * * * * *

In February, 1975, a faculty member at Canada College, with support from women students, applied for a grant from San Mateo County under Title I of the Comprehensive Employment and Training Act ([29] U.S.C. §§ 801 et seq.) to pay staff to manage a child care center. The application had been encouraged by the staff of a local Manpower agency as the County Manpower Planning Council had allocated $78,000.00 for child care in the area where Canada College was located. The application received preliminary approval from the Manpower staff for the full $78,000.00. However, approval by defendants was necessary before final approval. Defendants refused to accept these monies.

* * * * * *

In the Summer of 1975, a group of mothers who were students at Canada College and had organized a child [care] co-operative were given permission to use space in a church on a temporary basis, rent free. The group appealed to defendants for any support the District could possibly give. They were denied support of any form.

In September, 1975, defendants refused a group of women students at the College of San Mateo who had formed a child care co-op permission to use a vacant room or any other space at the College. In October, 1975, a group of women students at Skyline College approached the local elementary school district and were offered space for a child care center if the District would co-operate in the establishment of such a center. The District did not respond to the offer.

In December, 1975, the two groups of women students who had formed child care co-operatives applied to the State Board of Education for funds appropriated under the Campus Child Development Act (Stats. 1975, Ch. 1012, p. 2654 [2391]) to fund child care centers in off-campus locations. These applications were approved by the State subject to acceptance by the District. On January 14, 1976, the Board voted to refuse the funds, again thwarting attempts to establish child care centers. The District would not have been required to spend any of its own funds, nor to donate any of its own facilities as private sources could have provided the required matching funds and locations for the centers.

Initially, it is difficult to conceive how this course of events, which would seem to reflect little more than a series of political defeats in an area traditionally reserved to the sound policy-making discretion of administrative and legislative bodies, can form the predicate for a legal challenge. However, upon closer inspection it appears that the plaintiffs have amply stated a claim of discrimination entitling them to an opportunity to make good on their allegations. A review of the governing authorities makes clear that this is so.

There are two fundamentally different ways in which governmental action can run afoul of the Equal Protection Clause of the Fourteenth Amendment or statutes prohibiting invidious discrimination. The first occurs when the Government explicitly classifies or distinguishes among persons by reference to criteria — such as race, sex, religion, or ancestry — which have been determined improper bases for differentiation. Such governmental action is often termed "facially" discriminatory. Not all such discriminations, of course, are unlawful, but only those which cannot sufficiently be accounted necessary to the accomplishment of legitimate objectives.

A second and more subtle variety of discrimination focuses, not on the form of the governmental action, as does the first, but rather upon its results. As with facial discriminations, decisions or actions which, while in form nondiscriminatory, produce effects which weigh adversely and disproportionately upon the members of a particular protected group of individuals, may require explanation in terms of non-invidious purposes.

Here there can be no claim of discrimination of the first sort. The decisions and actions of the District which plaintiffs seek to subject to judicial scrutiny are not restricted in their application to the members of one sex or the other; on-campus child care facilities are equally unavailable to both men and women, and to those both with and without child-rearing responsibilities. No classification by sex or employment of gender-related criteria appears. This fact has the consequence of rendering largely inapplicable the growing body of cases dealing with explicit gender-based discrimination, and compelling us to navigate somewhat at the margin of existing equal protection doctrine.

The decisions of the United States Supreme Court in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), establish that litigants proceeding on the second theory of discrimination outlined above are required to prove two essential elements before they can be entitled to relief under the Fourteenth Amendment: discriminatory effect and invidious discriminatory intent or purpose. While proof of the latter element may not be necessary in the context of certain statutes prohibiting discrimination, see note 16 infra, a sufficient demonstration of the former, discriminatory effect, is equally required there. Leaving the nature and necessity of proof of intent or purpose to the following sections, we devote the remainder of our present discussion to an explication of the concept of discriminatory effect and our conclusion that one has been pleaded by the plaintiffs here. To do so will require a review of a number of recent decisions in which that concept has been employed and from which, accordingly, we will need to draw in the further course of our discussion.

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), a unanimous Court construed Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, to proscribe "not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Id. at 431, 91 S.Ct. at 853. In language which has since become famous, Congress was held to have required "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." Id. (emphasis added). The result serving to establish a claim of discrimination in that case was the disqualification of a markedly disproportionate number of blacks from employment or job transfer flowing from the respondent's requirements of a high school diploma and passage of standardized intelligence tests. Because these requirements were not shown to have been related to successful job performance or otherwise to have fulfilled a legitimate business need, id. at 431-32, 91 S.Ct. at 854, their use was held to be violative of the Act.

Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), involved a claim of discrimination under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Non-English-speaking students of Chinese ancestry argued that the failure of San Francisco's public schools to provide them with supplemental courses in the English language or some other means of overcoming their linguistic deficiency denied them an equal educational opportunity. A majority of the Justices of the Supreme Court agreed, holding that discrimination which had the effect of depriving the petitioners of an equal educational opportunity was barred, "even though no purposeful design is present." Id. at 568, 94 S.Ct. at 789.

Washington v. Davis, supra, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, and Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, both represent instances in which a "discriminatory effect" challenge under the Fourteenth Amendment was unsuccessful because of the failure of the challengers to establish the existence of a discriminatory purpose. They are of interest in the present context, however, because of the additional light they shed on the nature of the other element necessary to be proved in a legal attack upon facially neutral official action — discriminatory effect itself.

The effect challenged in Davis was the highly disproportionate exclusion of black applicants from employment with the District of Columbia police department caused by the department's use of a qualifying test. In Arlington Heights it was the denial of housing and allegedly resulting employment opportunities to a large group of poor and minority persons through a municipality's refusal to re-zone certain land sought to be used for low- and moderate-income housing. While holding that a racially disproportionate impact is not the "sole touchstone" of an invidious discrimination and alone is insufficient to establish a violation of the Constitution, 426 U.S. at 242, 96 S.Ct. 2040; 429 U.S. at 264-65, 97 S.Ct. 555, the Court in both cases clearly intimated that such an impact, when coupled with proof of invidious intent, would establish such a violation. It is instructive to note that the Court in Davis used the terms "discriminatory impact" and "disproportionate impact" interchangeably, 426 U.S. at 242, 96 S.Ct. 2040, and that throughout both opinions the preferred term for the "effect" element seems to be the latter.

In Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), this "discriminatory effect" analysis was employed in the context of a claim of gender-based discrimination. There, the Court affirmed a finding of the district court that a prima facie case of unlawful sex discrimination was established by a showing that certain facially neutral height and weight employment standards had a disproportionate impact upon women applicants. Citing Griggs, supra, and Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the Court observed:

Those cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern.

433 U.S. at 329, 97 S.Ct. at 2726.

These cases, and many more which could be cited, demonstrate that the term "discriminatory effect" and its paraphrases simply serve to capture the sort of differential, disparate, or disproportionate consequences which facially nondiscriminatory laws, decisions, or other actions may have upon the members of a particular protected minority. As such, they operate only to signal the beginning of analysis — an analysis which must ultimately answer the question whether the effected discrimination is invidious and thus unlawful. Nowhere has the Court intimated that these terms are to be assigned any special or technical meaning, or that they play any substantially independent role in the analysis. While the procedural and substantive significance of an allegation or finding of discriminatory effect will, of course, depend upon the legal and factual environment in which it is made, the concept itself is relatively elementary, straightforward, and capable of application in a wide variety of factual contexts.

The application of these principles to the present suit does not pose any insuperable problem. Remaining, as we must, on the level of allegation, it is clear that at least some child care centers in addition to those already in existence would have been established had the defendants not acted — or refused to act — as they did. The alleged effect of this consequence upon the plaintiffs and the class they claim to represent is stated in the following excerpts from the complaint:

The plaintiffs in this action include mothers who would attend a community college in San Mateo County but who cannot attend a community college solely because of the lack of child care facilities. Other plaintiffs in this action are able to attend community college but only through the use of makeshift and temporary child care arrangements. All of the plaintiffs in this case are being denied an opportunity for education or are threatened with a denial of educational opportunity solely on account of the lack of child care facilities in the San Mateo Community College District. Since the plaintiffs cannot find employment without more education, the denial of child care facilities forces the plaintiffs into low paying jobs or onto welfare.

* * * * * *

Plaintiffs and the class they represent are thus being deprived of their right of access to educational opportunities on the basis of sex in that the lack of child care facilities is a burden which falls almost exclusively on women and prevents women from participating in and denies them the benefits of educational programs in the District.

* * * * * *

As a result of defendants' policy and practices, educational opportunities are not made available or are made available on an unequal basis to substantial numbers of women. . . . [T]he direct effect of their actions is to exclude or burden substantial numbers of women.

There can be little doubt that a discriminatory effect, as that term is properly understood and has been used by the Supreme Court, has been adequately alleged. The concrete human consequences flowing from the lack of sufficient child care facilities, very practical impediments to beneficial participation in the District's educational programs, are asserted to fall overwhelmingly upon women students and would-be students. The abstract character of this effect is legally indistinguishable from that characterized as disproportionate impact or discriminatory effect in Lau and Arlington Heights. Additionally, it cannot be said from the pleadings that plaintiffs will be unable to establish the degree of statistical imbalance which sufficed to trigger further inquiry in such cases as Griggs, Davis, and Dothard. If an unsurmounted obstacle to the successful statement of a claim of discrimination is to be identified, it must be found elsewhere.

It remains to consider a number of other preliminary objections which may be advanced to the actionability of the alleged facts. Initially, it may be questioned how the defendants' inaction or refusal to act can form the basis for a claim of discrimination. It may even be said that no "act" of discrimination has been alleged at all. The answer to this objection is that the form of the challenged conduct is of little relevance to suits proceedings upon a theory of discriminatory effect. By their decisions in the child care area defendants have surely "acted." The fact that this action assumed a negative character can no more be a bar to the present suit than it was in Arlington Heights or Lau.

In a more persuasive refinement of this objection, however, our dissenting brother argues, on the strength of Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 30 L.Ed.2d 34 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977), that no discriminatory effect may be shown where one simply "declines to extend an additional benefit of disproportionate value to certain members" of a particular group of people, so long as existing benefits are made available in a neutral fashion. Post at p. 69. From Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), he would draw a correlative principle, viz., that the effect or impact upon the would-be beneficiaries of a particular social or economic program which a government body decides not to initiate or support is excluded from the definition of discriminatory effect. Post at p. 70-71. For the reasons set forth in the margin, we conclude that Geduldig, Gilbert, and Satty, on the one hand, and Palmer,

on the other, when fairly read, do not countenance such firm conclusions and that the reliance of the dissent upon these decisions is misplaced. One reason is that each of these cases was decided on a relatively full evidentiary record and not, as here, upon a construction of the pleadings. An eagerness to find in these decisions the seeds of a solution to the present case should be dampened, however, by one more fundamental observation.

The benefits not granted or programs not offered in each of the above cases were not alleged to have been essential or even related to the enjoyment of benefits already conferred or programs already in existence. That no public swimming pools were maintained by the city in Palmer did not prevent blacks and other citizens from taking full advantage of other, integrated public facilities. Similarly, the decision of employers in Geduldig, Gilbert and Satty to exclude disabilities resulting from pregnancy from the risks covered by their insurance plans did not impair the value of the included coverages. Here, by contrast, the essence of plaintiffs' grievance is that the absence of child care facilities renders the included benefits less valuable and less available to women; in other words, that the effect of the District's child care policy is to render the entire "package" of its educational programs of lesser worth to women than to men. Thus, there is some doubt that the situation which they challenge may be fitted nicely into the rubric of "underinclusiveness." Were the object of their challenge simply a refusal to initiate or support a program or course of particular interest and value to women — women's studies, for instance — the case might be a much easier one. Where, however, a refusal to confer additional benefits is alleged, on account of the peculiar nature of those benefits, to impair the value of existing programs to members of a particular group, the principles sought to be derived from Gilbert et al. do not support the conclusion that this allegation may be deemed meritless prior to any consideration of its evidentiary basis.

A second and related objection would attribute the complained-of effects to a "totally external and independent social condition," one which in no way can be the responsibility of defendants to remedy. This, of course, has a large element of truth, but it mistakes the nature of the claim being made. Plaintiffs do not charge the District with an affirmative obligation to remedy conditions not of their making. Rather, they demand that its decisions, particularly those weighing adversely upon large numbers of women, be made in furtherance of constitutionally permissible objectives and purposes. While both Arlington Heights and Lau involved situations not fairly attributable to the alleged discriminators, this circumstance did not serve to undermine the actionability of the complaints in those cases.

Lastly, one may point to the fact that the effects of the challenged "policy" do not fall exclusively upon women, as did those in Gilbert or Geduldig, but affect as well men with child-rearing responsibilities. This, however, is in the very nature of the theory upon which plaintiffs have proceeded. Challenges which rely upon disparate impact inevitably will involve consequences which are not restricted in their operation to one group or another. The essence of this sort of legal attack is imbalance and disproportionality. The lack of pure gender-specificity is no bar here, as it was no bar to a finding of discriminatory effect in Dothard, supra.

A final test will confirm the soundness of the reasoning to this point. Let us assume, for the moment, that the plaintiffs are able to prove, pursuant to the principles reviewed in the following section, that the proximate motivation for the District's refusal to initiate or support the development of child care facilities has been an invidious, sex-discriminatory purpose; for example, to pick an extreme case, a desire to disadvantage women students so as to prevent their increase in the student population, arising, perhaps, from a conviction that higher education for women is superfluous and unimportant. Let us assume further that were it not for such a purpose, child care facilities would long ago have been developed in the District, either pursuant to outside funding or through cooperation with community organizations. Upon this assumption — extravagant, perhaps, but one which cannot be ruled out without this Court allowing itself to be case sub silentio into the role of a finder of fact — would the plaintiffs' case fail simply because the effects of the District's decision, albeit falling disproportionately upon the persons intended to be disadvantaged, could not be brought within the confines of the concept of discriminatory effect? To state the question is almost to answer it, and to answer it in the negative. For if actions of this nature were subject to dismissal on this ground, the Government would be given a wide range of areas in which to pursue and accomplish patently unconstitutional and illegal ends, unimpeded by any possibility of judicial review. Were this so, there would have been no reason for the Supreme Court in Arlington Heights to have articulated the necessity for proof of invidious intent; such proof would have been a futile gesture, the character and effects there of the challenged governmental action being equally outside of a narrowly drawn concept of discriminatory effect. On the contrary, any fair reading of Arlington Heights compels the conclusion that, had the requisite discriminatory intent been shown, the challenged decision would have been invalidated. This is likewise so, we believe, in this case.

III. [35] Equal Protection

As already noted, the decisions in Washington v. Davis, supra, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, and Arlington Heights v. Metropolitan Housing Development corp., supra, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, make it clear that official action, neutral on its face, will not be held violative of the Equal Protection Clause simply because it results in a racially disproportionate impact. A fortiori, the allegation of a sexually disproportionate impact here, standing alone, is insufficient to state a violation of the Constitution. Had plaintiffs restricted themselves to an allegation of disparate impact, therefore, the dismissal of their equal protection claim would have been proper.

The complaint, however, cannot fairly be viewed as so limited. In addition to asserting the unequal effect of defendants' actions, plaintiffs have alleged a course of conduct by defendants susceptible of an inference of intentional discrimination:

Knowing that their actions resulted in women being denied access to education, defendants intentionally continued a policy and practice of thwarting all attempts to provide child care to plaintiffs and the class they represent.

* * * * * *

Defendants have a policy and practice of refusing to recognize the need for and provide child care services for students and of opposing all attempts to establish such services.

* * * * * *

Defendants' actions in denying women equal educational opportunities are arbitrary and completely unrelated to the goal of providing education. Defendants have acted knowing that the direct effect of their actions is to exclude or burden substantial numbers of women.

* * * * * *

By their child care policy, defendants are denying women equal access to education and are invidiously discriminating against plaintiffs and the class they represent on the basis of sex in violation of their rights to equal protection of the law.

The Supreme Court has noted that "an invidious discriminatory purpose may often be inferred from the totality of the relevant facts." Davis, supra, 426 U.S. at 242, 96 S.Ct. at 2048. The primacy or exclusiveness of an invidious purpose need not be proved. Justice Powell's opinion in the Arlington Heights case makes this clear:

Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant" or "primary" one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.

429 U.S. at 265-66, 97 S.Ct. at 563.

Determining whether invidious discriminatory purpose was a motivating factor demands a "sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 266, 97 S.Ct. at 564. The Court in Arlington Heights suggested a number of evidentiary sources relevant to this determination, including the existence of a "clear pattern" unexplainable on grounds other than discrimination, the historical background of a decision, the "specific sequence of events" leading up to the challenged action, and "departures" from the normal procedural sequences and substantive policies. Id. at 266-68, 97 S.Ct. 555. Indeed, the impact of the official action, while not the "sole touchstone" of an invidious discrimination, is not irrelevant to the question of intent, and may provide an important starting point. Id. at 266, 97 S.Ct. 555.

It is not an easy matter to state just what would constitute an "invidious purpose" in the context of this case. The search for sex-discriminatory motivation cannot halt simply upon a demonstrated absence of manifest misogyny. On the other hand, it would be inappropriate and unwise for the courts to attempt to probe the thought processes of every decision-maker with legislative or administrative responsibilities for traces of sexual bias. Precisely where, between these two untenable extremes, the proper level of judicial sensitivity is reached is a matter which must rest, in the first instance, upon the analysis and discernment which the District Judge brings to bear upon the controverted facts.

It is too early in the course of this litigation, then, to determine whether the defendants' conduct was free from discriminatory purpose. The "sensitive inquiry" mandated by the Supreme Court in Arlington Heights cannot satisfactorily be undertaken on a motion to dismiss. While it is not clear what level of "scrutiny" is applicable on the novel facts of this case, we cannot disregard plaintiffs' assertion that, in some respects, defendants' actions promoted no legitimate state interest and were completely without rational basis. While these allegations may prove to be entirely conclusory, plaintiffs are entitled to an opportunity to present specific facts in their support. See Fed.R.Civ.P. 56(e).

In the event that plaintiffs are successful on remand in making a threshold showing of discriminatory purpose, it will be necessary to determine whether the injuries they claim may fairly be attributed to its improper consideration. We refer to the test of "causation," as enunciated by the Supreme Court in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 286, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The application of this test, which may well provide the key to an ultimate solution of this litigation, is explained in the Arlington Heights case, decided the same day:

Proof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered. If this were established, the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose. In such circumstances, there would be no justification for judicial interference with the challenged decision.

429 U.S. at 270 n. 21, 97 S.Ct. at 566 n. 21.

IV. [45] Title IX

Plaintiffs' Title IX claim poses several difficult questions. We are met at the outset with the question of whether Title IX supplies plaintiffs with any rights they may enforce. The Court of Appeals for the Seventh Circuit has recently concluded that no private right of action was intended by the Congress in its enactment of Title IX and that no such right may be judicially inferred. Cannon v. University of Chicago, 559 F.2d 1063 (1976). However, one important difference from the case at bar renders Cannon an authority of limited significance.

The present action is based upon a section of the Civil Rights Act of 1871, 42 U.S.C. § 1983. While the plaintiff in Cannon also invoked this statute, the Seventh Circuit held that the requisite state action ingredient was absent, her suit being against a private university. In contrast, the alleged conduct of defendants here clearly constitutes state action. The consequent availability of an action under § 1983, independent of any implied private right of action under Title IX, confronts us with a question not reached by the Cannon court: namely, whether Title IX is to be read as establishing a right which may be vindicated by way of an action under § 1983. Although we have been unable to find any authority directly on point, we believe the answer must be in the affirmative.

The Seventh Circuit in Cannon distinguished Lau v. Nichols, supra, 414 U.S. 563, 94 S.Ct. 986, 39 L.Ed.2d 1, on the ground that Lau had been brought under the authority of 42 U.S.C. § 1983. 559 F.2d at 1083 (on rehearing). Lau, as we have seen, involved a claim of discrimination under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., which supplied the model for Title IX of the Education Act Amendments of 1972. The question of whether an implied right of action lay directly under the provisions of Title VI was not presented to or decided by the Supreme Court, presumably because state action was involved and § 1983 was pleaded. A number of lower courts have also entertained private claims under Title VI in the context of § 1983 actions.

Given the close relationship between Title VI and Title IX and the Supreme Court's decision in Lau, we conclude that it would be anomalous to deny plaintiffs here the right to raise asserted violations of Title IX in the context of their § 1983 action. Accordingly, we proceed to the question whether their allegations with respect to those asserted violations are sufficient in law to withstand a motion to dismiss.

The District Court based its dismissal of the Title IX claim on the ground that

where no specific program or service is offered to either men or women no discrimination under Title IX has occurred, even if the lack of such a program or service has a disproportionate impact upon women. Congress never intended that Title IX operate to require the affirmative development of previously non-existent educational services. If we were to accept plaintiffs' premise, the inevitable result would be judicially-imposed child care services in every community college district not already providing them. Had Congress intended such a result, we would undoubtedly have a specific mandate to that effect, probably coupled with provisions for Federal funding. What Congress more logically intended when it enacted Title IX was that all programs and services offered be made equally available to members of both sexes.

This general line of reasoning, however, seems foreclosed by the considerations developed in section II, ante. The abstract similarities between the claims successfully urged in Lau and other cases and those alleged here are too striking to allow the dismissal of these claims to stand. We are reluctant, in the absence of any findings of fact, to formulate conclusions with respect to the legality of any particular conduct or to promulgate a standard to be applied in Title IX cases. The statute, its legislative history, and the regulations published by the Department of Health, Education and Welfare pursuant to its mandate are not, unfortunately, conclusive in the matter. The jurisprudence in this general area is of very recent vintage and now in full process of development. As we have noted, the Supreme Court has employed a standard less stringent than intentional discrimination, at least for the purpose of determining whether a prima facie case has been established, under statute similar to Title IX. It is reasonable to expect additional guidance from that Court during the further development of litigation of this nature. We limit ourselves for present purposes to concluding that, just as intentional discrimination under the Equal Protection Clause cannot be ruled out, it cannot be said as a matter of law that plaintiffs would be entitled to no relief under Title IX upon proof of their allegations.

V. [52] Standing to Sue

The defendants have challenged the plaintiffs' standing to sue. There are four plaintiffs presently before the court. At the commencement of this action, one of them, De La Cruz, was a prospective high school graduate not then enrolled in any college of the District, but wishing to go to college at some future time. The other three plaintiffs are presently students in colleges of the District. Consequently, the defendants suggest that there is no causal relationship between any action or policy of the District and the plaintiffs' alleged lack of appropriate educational opportunities. Since the plaintiffs, the argument runs, have not been denied a college education or access to a college education because of any failure of the District to provide child-care facilities, they are suffering no deprivation of rights nor any legally cognizable injury. The motion to dismiss for lack of standing was not passed upon by the District Court, but since our jurisdiction to decide the case is implicated we are constrained to consider it.

The governing standard is clear:

For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.

Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).

Applying this principle, there can be little doubt that plaintiffs have standing to sue. They have alleged "such a personal stake in the outcome of the controversy" as to justify their "invocation of federal-court jurisdiction." Id. at 498-99, 95 S.Ct. at 2205, quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). They have alleged that they themselves are injured, and the complaint indicates that the alleged injury is fairly traceable to defendants' acts or omissions. Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. at 261, 97 S.Ct. at 555. Moreover, they meet the requirements enunciated by this Court in Bowker v. Morton, 541 F.2d 1347 (9th Cir. 1976). In brief, plaintiffs have alleged a "particularized injury," namely, the denial of their access to higher education; this injury is asserted to have "concretely and demonstrably result[ed] from defendants' action[s]"; and the injury alleged would be "redressed by the remedy sought." Id. at 1349. The plaintiffs' grievances have not become any less palpable or distinct to them because they attend college or expect to go to college, nor does the fact that several have made temporary arrangements for the care of their children eliminate from the case the alleged burdens and uncertainties they claim to suffer as a result of the challenged policy. Consequently, we conclude that they are not deprived of standing to sue.

VI.

We are not unmindful of the defendants' apprehension of a judicial usurpation of the District's functions. We suggest that this alarm may be premature. It is easy to overstate the practical effects of an ultimate decision in favor of plaintiffs in this action; nor would such effects, standing alone, necessarily warrant the denial of relief. To be sure, federal courts must show great deference to local democratic processes and refrain in most instances from interfering with decisions of school authorities. See Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); East Hartford Education Association v. Board of Education, 562 F.2d 838, 857 (2d Cir. 1977) (on rehearing en banc). Mr. Justice Powell drew attention to this caution in Frontiero v. Richardson, 411 U.S. 677, 692, 93 S.Ct. 1764, 1773, 36 L.Ed.2d 583 (1973) (concurring opinion), when he said:

There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.

Unquestionably, however, as Justice Powell had occasion to reiterate in the Arlington Heights case, quoted at page 59, ante, there come times when judicial deference cannot be justified. Whether this lawsuit will provide such an occasion remains to be seen. We emphasize, however, despite intimations to the contrary in the dissenting opinion, that judicial involvement in the general area of alleged discrimination, and indeed in this case, stems not from any sua sponte initiative in derogation of traditional principles, but rather from a number of relatively recent developments, including the expansion of national social legislation, the provision of federal financial support to social welfare projects, and the enunciation of novel legal theories by the Supreme Court.

There can be little doubt that numerous problems of national importance lie under the surface of this litigation and that the plaintiffs have made a first move in an effort to compel the defendants to adopt a policy having pervasive implications for the community at large. The briefs submitted by amici curiae attest to this. While it may be true that the plaintiffs are disadvantaged by the burdens of child rearing in their pursuit of a college education, this hardship appears comparable to a wide spectrum of conditions afflicting many other members of the student population, such as acute impediments to sight, hearing, or mobility and a narrow margin of economic self-sufficiency requiring students to be wage earners while attending college. These are problems which go to the very core of our societal organization and which affect profound social, economic, and cultural values. Surely it is not the prerogative of the judiciary to undertake the resolution of these problems, nor to review the wisdom of legislative and administrative efforts in that direction.

A national magazine has recently reported that while it has become a focal objective among most feminist leaders to tailor their goals to the needs of both working women and homemakers, they have so far failed to obtain widespread support for child care — a facility that would help many women with the problem of juggling motherhood and work, and presumably, motherhood and college credits. One major source of resistance to the public funding of child care centers has been the magnitude of the costs involved. In his veto of a 1971 bill, S. 2007, 92nd Cong., 1st Sess., which would have provided extensive child care facilities at government expense, President Nixon noted that the proposed legislation contemplated an expenditure of two billion dollars, with a prospect of costs that could eventually reach twenty billion dollars annually.

While we must assume that the defendants have failed to adopt the policy advocated by the plaintiffs and have declined to undertake to provide the particular services the plaintiffs desire, we have no way to discern the true factual basis for their position. We note that the plaintiffs, in addition to requesting affirmative relief, also seek prohibitory relief against practices such as the refusal to accept funds or to allow vacant space to be used for private child care centers, which would not necessarily require District expenditures or the commitment of District time. There are many facets to the plaintiffs' allegations and only a thorough examination of the facts can properly illuminate the issues.

We of course intimate no views whatever on the merits of the claims asserted or on the propriety of any particular form of relief if those claims prove meritorious. Nor do we intend our opinion to be read as foreclosing any grounds for the termination of this case prior to trial beyond those explicitly considered herein. Conceivably, the development and refinement of the issues prior to trial may well justify the District Court in concluding, by way of summary judgment, Fed.R.Civ.P. 56, that a trial of one or more of the plaintiffs' claims would be futile and therefore unnecessary. What we do say unreservedly, however, is that this case cannot be resolved upon a construction of the pleadings.

The judgment of the District Court is reversed and the case is remanded for further proceedings consonant with this opinion.

. . . . .

It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.

Reed v. Reed has also provided the underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification. Hence, "archaic and overbroad" generalizations, Schlesinger v. Ballard, supra, [419 U.S.] at 508, 95 S.Ct. [572], 577, concerning the financial position of servicewomen, Frontiero v. Richardson, supra, [411 U.S.] at 689 n. 23, 93 S.Ct. [1764], 1772 and working women, Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 95 S.Ct. 1225, 1230, 43 L.Ed.2d 514 (1975), could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated misconceptions concerning the role of females in the home rather than in the "marketplace and world of ideas" were rejected as loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy. Stanton v. Stanton, [ 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975)]; Taylor v. Louisiana, 419 U.S. 522, 535 n. 17, 95 S.Ct. 692, 700, 42 L.Ed.2d 690 (1975). In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sex-centered generalization actually comported to fact. See, e. g., Stanley v. Illinois, supra, [405 U.S.] at 658, 92 S.Ct. [1208], 1216, 31 L.Ed.2d 551; cf. Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632, 650, 94 S.Ct. [791], 801, 39 L.Ed.2d 52 (1974).

* * * * * *

Thus, the judiciary's role as defender of the Bill of Rights and its occasional intrusion in the affairs of the legislative and executive branches of government result not from an arrogation of power but from compliance with a constitutional mandate. Those who criticize the federal courts for this occasional intrusion fail to recognize that, in the words of the French historian, Alexis de Tocqueville:

[T]he American Judge is brought into the political arena independently of his own will. He judges the law only because he is obliged to judge a case. The political question that he is called upon to resolve is connected with the interests of the parties, and he cannot refuse to decide it without a denial of justice.

* * * * * *

Thus, any doctrinal approach to interpreting the Constitution, at whichever extreme, is both inappropriate and unworkable. Adjudication of constitutional issues requires an openness of mind and a willingness to decide the issues solely on the particular facts and circumstances involved, not with any preconceived notion or philosophy regarding the outcome of the case. While a refusal to show proper deference to and respect for the acts and decisions of the coordinate branches of government is judicial intrusion and is, therefore, improper, a blind and unyielding deference to legislative and executive action is judicial abdication and is equally to be condemned.

* * * * * *

During the past several decades . . . there have been in our society a growing awareness of and concern for the rights and freedoms of the individual. This awareness and this concern are reflected in the steady shift in emphasis in constitutional litigation from property rights to individual rights. Congress has enacted social welfare statutes in such areas as education, voting, consumer protection, and environmental protection. Speaking through these enactments, Congress has made clear its desire that freedom, justice, and equality become a reality to and for all Americans. In many instances the responsibility for seeing that this salutary goal is accomplished lies with the federal judiciary.