Boston Parent Coalition for Academic Excellence Corp. v. The School Committee of the City of Boston

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

______________________________

)

BOSTON PARENT COALITION FOR )

ACADEMIC EXCELLENCE CORP. )

)

Plaintiff, )

)

v. ) CIVIL ACTION

) NO. 21-10330-WGY

THE SCHOOL COMMITTEE OF THE )

CITY OF BOSTON, )

ALEXANDRA OLIVER-DAVILA, )

MICHAEL O’NEILL, )

HARDIN COLEMAN, )

LORNA RIVERA, )

JERI ROBINSON, )

QUOC TRAN, )

ERNANI DEARAUJO, and )

BRENDA CASSELLIUS, )

SUPERINTENDENT OF THE )

BOSTON PUBLIC SCHOOLS, )

)

Defendants, )

AND )

)

THE BOSTON BRANCH OF THE )

NAACP, THE GREATER BOSTON )

LATINO NETWORK, ASIAN PACIFIC )

ISLANDER CIVIC ACTION NETWORK,)

ASIAN AMERICAN RESOURCE )

WORKSHOP, MAIRENY PIMENTEL, )

and H.D., )

)

Defendants-Intervenors. )

______________________________)

YOUNG, D.J. October 1, 2021

INDICATIVE RULE 60(b) RULING

I. PROCEDURAL BACKGROUND

The Boston School Committee (the “School Committee”)

consists of seven persons appointed by the Mayor of Boston and

is responsible for managing the Boston Public Schools. Joint

Agreed Statement Facts (“Joint Statement”) ¶¶ 1-2, ECF No. 38.

During the COVID-19 pandemic, the School Committee has made many

decisions regarding education in the Boston Public Schools, one

of which pertains to the application process for three of

Boston’s public schools: Boston Latin School, Boston Latin

Academy, and the John D. O’Bryant School of Mathematics and

Science (“O’Bryant”) (collectively, the “Exam Schools”). Unable

to host a standardized test safely, the School Committee

developed an interim admissions plan (the “Plan”), which

deviated from the Exam Schools’ past admissions process. After

public meetings on the Plan, the School Committee formally

adopted it on October 21, 2020. Joint Statement ¶¶ 3-48.

On February 26, 2021, the Boston Parent Coalition for

Academic Excellence Corp. (the “Coalition”) brought this action

against the School Committee, its members, and the

Superintendent of the Boston Public Schools, Dr. Brenda

Cassellius. See generally Verified Compl. (“Compl.”), ECF No.

1. The Coalition sought preliminary and permanent injunctions

for alleged violations of the Equal Protection Clause of the

Fourteenth Amendment and Massachusetts General Laws chapter 76,

section 5. See generally Am. Compl., ECF No. 96.

This Court promptly scheduled a hearing upon the

Coalition’s request for a preliminary injunction. Electronic

Notice (Feb. 26, 2021), ECF No. 9. At that hearing, this Court

-- as is its wont -- collapsed the further hearing on the

preliminary injunction with trial on the merits pursuant to

Federal Rule of Civil Procedure 65(a), but see Nwaubani v.

Grossman, 806 F.3d 677, 680-81 & n.7 (1st Cir. 2015) (Thompson,

J.) (cautioning against overuse of this procedural device),

allowed the intervention of various interest groups, and urged

the parties to agree upon all undisputed facts, Electronic

Clerk’s Notes (Mar. 3, 2021), ECF No. 27.

The parties turned to with a will and on March 15, 2021

filed a quite comprehensive joint agreed statement of facts (the

“Joint Statement”) -- or so I thought. The Coalition pronounced

itself satisfied with the Joint Statement as a basis for

judgment in its favor or, at the very least, under the strict

scrutiny test, for shifting to the School Committee the burden

of proving that a compelling governmental interest warranted

upholding the Plan. Tr. Status Conference 24:11-19, ECF No.

100. The School Committee maintained that the Joint Statement

supported judgment in its favor under the rational basis test

but, cautiously, reserved its right to proffer evidence should

that be necessary. Id. 34:9-35:22.

Accordingly, the arguments held on April 6, 2021 were

analogous to arguments for and against judgment at the close of

the plaintiff’s case in chief in a jury-waived trial. See Fed.

R. Civ. P. 52. In such a situation, before judgment can enter,

this Court must provide findings of fact and rulings of law.

Id.

On April 15, 2021, this Court entered its findings of fact,

rulings of law, and order for judgment. See generally Boston

Parent Coal. for Acad. Excellence Corp. v. City of Bos. (“Boston

Parent I”), Civil Action No. 21-10330-WGY, 2021 WL 1422827 (D.

Mass. Apr. 15, 2021), opinion withdrawn sub nom. Boston Parent

Coal. for Acad. Excellence Corp. v. Sch. Comm. of City of Bos.

(“Boston Parent III”), CIVIL ACTION NO. 21-10330-WGY, 2021 WL

3012618 (D. Mass. July 9, 2021). In Boston Parent I this Court

found and ruled that the Plan governing admission to Boston’s

three Exam Schools for the 2021-2022 school year (and only the

2021-2022 school year) had a rational basis furthering a

legitimate governmental interest, comported with the Fourteenth

Amendment’s Equal Protection Clause, and did not

violate Massachusetts General Laws chapter 76, section 5. Id.

at *17. This Court subsequently entered judgment for the School

Committee. Judgment, ECF No. 105.

The Coalition appealed the judgment to the First Circuit

and moved to enjoin the Plan’s implementation pending resolution

of the appeal. See generally Boston Parent Coal. for Acad.

Excellence Corp. v. Sch. Comm. of City of Bos. (“Boston Parent

II”), 996 F.3d 37 (1st Cir. 2021). The First Circuit denied the

Coalition’s motion. Id. at 51.

The matter seemed to be resolved -- until a newspaper

published discriminatory text messages between two School

Committee members sent during the board meeting in which the

School Committee adopted the Plan. The Coalition moved for

relief from judgment under Rule 60(b), Mot. Pursuant Fed. R.

60(b), ECF No. 112, and on July 9 this Court heard argument on

the motion, withdrew its opinion in Boston Parent I, and took

the matter under advisement, Electronic Clerk’s Notes (July 9,

2021), ECF No. 121. On July 23, the First Circuit suspended the

appellate briefing schedule until such time as this Court has

addressed the Rule 60(b) motion. Order Court, ECF No. 125.

For the reasons developed below, if granted jurisdiction,

this Court would DENY the motion.

II. FACTUAL BACKGROUND1

A. The Boston Public Schools

Approximately 80,000 K-12 students live in Boston. Joint

Statement, Ex. 11, City Enrollment by Race (SY 18-19), ECF No.

38-11. Almost seventy percent of them attend Boston Public

Schools, and the quality of education among the schools is

1 The Joint Statement, as stipulated by the parties, is

substantially reproduced below and supplemented with the

information that subsequently came to light.

anything but equivalent. Id.; id. Ex. 14, Massachusetts

Department of Elementary and Secondary Education Report (“MDESE

Report”) 2, ECF No. 38-14. The home of the oldest and most

prestigious public schools in the country is also home to

thirty-four schools “among the lowest performing [ten percent]

of schools in the state.”2 MDESE Report 2; Joint Statement ¶¶ 8-

11.

The Exam Schools are the Boston Public Schools system’s

highest performing and most prestigious schools.3 Joint

Statement ¶ 11. These schools serve seventh through twelfth-

grade students, and there are generally two opportunities for

students to apply. Id. ¶¶ 7, 13. Students apply while in sixth

grade for admission into seventh grade or in eighth grade for

admission into ninth grade.4 Id.

2 Most of the 17,000 students attending these thirty-four

low-performing schools “come from historically underserved

student groups.” MDESE Report 2.

3 The parties stipulate to the prestige of these schools and

the respective ranking assigned to each school by U.S. News &

World Report in 2020. Joint Statement ¶ 11. As of the 2020-

2021 school year, 5,859 students were enrolled at the Exam

Schools: 2,472 were enrolled at Boston Latin School, 1,771 were

enrolled at Boston Latin Academy, and 1,616 were enrolled at

O’Bryant. Id. ¶ 12.

4 The School Committee allots most available seats in these

schools for sixth-grade applicants. Joint Statement ¶ 13.

Although any resident-student in Boston is eligible to

apply, only a fraction is admitted. Id. ¶¶ 7, 11. For

reference, over 4,000 students attending public, private,

charter, and Metropolitan Council for Educational Opportunity

schools applied for admission to the Exam Schools for the 2020-

2021 school year. Id. ¶ 18; id. Ex. 15, Historical Applicant

Pool by Race & School Type, ECF No. 38-15; id. Ex. 16, Exam

School 3-Year Invitation Data by Race (“Invitation Data”), ECF

No. 38-16. Only thirty-five percent of applicants were invited

to attend.5 Compare Invitation Data, with Joint Statement ¶ 20.

B. The Old Admissions Process

The Boston Public Schools system uses a unified application

process for admission to the Exam Schools. Joint Statement

¶ 15. For many years, this process remained relatively

unchanged and involved three factors: a GPA score, a

standardized test score, and the applicant’s school preference.

Id. Each applicant ranked the Exam Schools by preference when

5 Of the 1,433 students invited to attend the Exam Schools,

1,025 were admitted to the seventh grade and 408 were admitted

to the ninth grade. Joint Statement, Ex. 20, Questions from

Michael O’Neill (“Admissions Chart”) 3, ECF No. 38-20. Boston

Latin School invited 542 students (484 to seventh grade and 58

to ninth grade), Boston Latin Academy invited 425 students (336

to seventh grade and 89 to ninth grade), and O’Bryant invited

466 students (205 to seventh grade and 261 to ninth grade).

Admissions Chart.

he or she sat for the standardized test.6 Id. ¶ 14.

Administrators at the Boston Public Schools would average and

assign a numeric value to the applicant’s grades in English

Language Arts and Math. Id. ¶ 15. This GPA numeric value was

added to the applicant’s standardized test score to create a

composite score, by which applicants were ranked. Id. Starting

with the student with the highest composite score, each student

received an invitation to his or her first choice of the Exam

Schools. Id. If the student’s first choice was full, the

student was invited to his or her next choice. Id. This

process continued until all seats in the three Exam Schools were

filled. Id.

C. The Procedure to Change the Admissions Process

In the summer of 2019, the Boston Public Schools’ Office of

Data and Accountability conducted several analyses to determine

how potential changes to the Exam School admissions criteria

would affect diversity at the Exam Schools. Id. ¶ 27 (citing

id. Ex. 31, Analysis Possible Admissions Criteria Changes, ECF

No. 38-31). In the fall of 2019, the Superintendent established

6 For the 2020-2021 school year, thirty-five percent of

applicants ranked Boston Latin School as their first choice,

thirty-seven percent of applicants ranked Boston Latin Academy

as their second choice, and thirty-five percent of applicants

ranked O’Bryant as their third choice. Joint Statement, Ex. 17,

Exam School Ranks School/Race SY 20-21 Enrollment (“Exam School

Ranks”), ECF No. 38-17.

a Review Committee to solicit and evaluate responses to a

request for proposal for a new examination to be administered to

Exam School applicants. Id. ¶ 28.

On March 10, 2020, Governor Charles Baker declared a state

of emergency because of the COVID-19 pandemic. Id. ¶ 22. Since

March 10, 2020, the Governor has occasionally limited the size

of gatherings according to the pandemic’s fluctuations within

the Commonwealth. Id. ¶ 23. On March 15, 2020, the Governor

suspended all normal in-person instruction and educational

operations of K-12 public schools through the end of the 2019-

2020 school year. Id. ¶ 22. Accordingly, the Boston Public

Schools were fully remote from March 17, 2020, until October 1,

2020, and remained partially remote thereafter. Id. ¶ 24.

Shifting from conventional schooling to remote learning brought

with it challenges for the School Committee to address. Id.

¶ 25. “The COVID pandemic has had significant impacts on

[Boston Public School students] and [was] a regular topic of

discussion at School Committee meetings.” Id. The School

Committee provided laptops and internet access to students and

implemented remote learning guidelines. Id.

By July 2, 2020, the Review Committee had finished its

evaluation. Id. ¶ 29. The Superintendent announced that the

new plan for Exam School admissions would use the Measures of

Academic Progress Growth Test for the 2021-2022 school year.

Id.; see id. Ex. 1, Official Minutes Remote Boston School

Committee Meeting (July 22, 2020), ECF No. 38-1. Later that

month, the School Committee adopted the Superintendent’s

recommendation to establish the Working Group.7 Joint Statement

¶ 31. The Working Group was to

[d]evelop and submit a recommendation to the Superintendent

on revised exam school admissions criteria for [the 2021-

2022 school year] entrance in light of the potential impact

of the COVID-19 pandemic on the prospective applicants

during the latter half of the [2019-2020 school year] and

potential impact on [the 2020-2021 school year].

Id.; see id. Ex. 32, Exam School Admissions Criteria Working

Group Charter, ECF No. 38-32. From August 2020 through October

2020, the Working Group met weekly or bi-weekly in meetings

closed to the public. Joint Statement ¶¶ 34, 35.

The Working Group studied a wide range of information,

including the admissions criteria used by other cities, the

results of the existing admission criteria, the use of test

scores, the population of eligible students in Boston, median

7 Nine members sat on the Working Group: (1) Samuel Acevedo,

Boston Public School Opportunity and Achievement Gap Task Force

Co-Chair; (2) Acacia Aguirre, parent of an O’Bryant student; (3)

Michael Contompasis, Former Boston Latin School Headmaster and

Boston Public School Superintendent; (4) Matt Cregor, Staff

Attorney, Mental Health Legal Advisors Committee; (5) Tanya

Freeman-Wisdom, O’Bryant Head of School; (6) Katherine Grassa,

Curley K-8 School Principal; (7) Zena Lum, parent of a Boston

Latin Academy student; (8) Rachel Skerritt, Boston Latin School

Head of School; and (9) Tanisha Sullivan, President of the

NAACP’s Boston Branch. Joint Statement ¶ 32; see id. Ex. 2,

Official Minutes Remote Boston School Committee Meeting (Aug. 5,

2020), ECF No. 38-2.

family income by zip code, application and admissions data by

race, the population of the Exam Schools, and the feasibility,

equity, and impacts of potential changes to the admission

criteria. Id. ¶¶ 34, 37-41, 44; see id. Exs. 31, 34-36, ECF

Nos. 38-31, 38-34, 38-35, 38-36. It used simulations to

understand how various admission criteria would affect the

socioeconomic, racial, and geographic representation of sixth-

grade students admitted to the Exam Schools. Joint Statement

¶¶ 40-41; see id. Exs. 44-54, ECF Nos. 38-44, 38-45, 38-46, 38-

47, 38-49, 38-50, 38-51, 38-52, 38-53, 38-54, 38-55. The

Working Group also analyzed administrative and operational

issues with the use of each criterion, such as the feasibility

of using prior exam scores, the variability of grades within and

outside the Boston Public School system, and schools practicing

grade inflation.8 Joint Statement ¶¶ 37, 42-43; see id. Exs. 35,

55-58, 60-61, ECF Nos. 38-35, 38-55, 38-56, 38-57, 38-58, 38-60,

38-61.

At its meeting on September 29, 2020, the Working Group

made its Admissions Recommendation to the Superintendent, and,

8 In 2016, for example, sixty-nine percent of applicants to

Boston Latin School from one private parochial school in West

Roxbury had A+ GPA averages. Joint Statement ¶ 43; see id. Ex.

61, Exam School Admissions Working Group Data Summary 4, ECF No.

38-61. For reference, between ten and twenty-two percent of

applicants from other schools had A+ GPA averages. Exam School

Admissions Working Group Data Summary 4.

with the Superintendent’s support, the Working Group presented

its initial recommendation to the School Committee on October 8,

2020. Joint Statement ¶¶ 45-46. After this meeting, the

Working Group responded to questions by the School Committee

members and completed an Equity Impact Statement using the

Boston Public Schools’ Equity Impact Planning Tool. Id. ¶ 47.

The Equity Impact Planning Tool is a district-mandated six-

step process for every major policy program, initiative, and

budget decision. Id. Ex. 64, BPS Racial Equity Planning Tool 3,

ECF No. 38-64. The tool acknowledges that the Boston Public

School system “does not consistently provide authentic learning

opportunities for [its] students who are most marginalized to

develop into self-determined, independent learners, able to

pursue their aspirations,” and that these “failures lead to

disengaged students and significant achievement gaps.” Id. To

rectify this, the six-step process focuses the policy proponents

on racial and ethnic inequalities so that the proponents

consider whether and how their proposal aligns with the

district’s broader goals. Id. 1; id. Ex. 63, Equity Impact

Statement School Committee Proposals (“Equity Impact Statement”)

2, ECF No. 38-63. The Equity Impact Planning Tool explains the

difference between equity and equality and how the two “can in

fact stand in opposition to each other.” BPS Racial Equity

Planning Tool 12. It further explains that “[t]o eliminate

opportunity gaps persistent for Black and Latinx communities in

Boston Public Schools, we must make a hard pivot away from a

core value of equality -- everyone receives the same -- to

equity: those with the highest needs are prioritized.” Id. The

Working Group completed the Equity Impact Statement for its

Admissions Recommendation and stated the following as its

desired outcome:

Ensure that students will be enrolled (in the three

exam high schools) though a clear and fair process for

admissions in the [2021-2022] school year that takes

into account the circumstances of the COVID-19 global

pandemic that disproportionately affected families in

the city of Boston.

Work towards an admissions process that will support

student enrollment at each of the exam schools such

that it better reflects the racial, socioeconomic and

geographic diversity of all students (K-12) in the

city of Boston.

Equity Impact Statement 1.

Members of the School Committee and Working Group made

various remarks during the October 8, 2020 meeting. These

remarks included acknowledging the desire to “rectify[] historic

racial inequities” at the Exam Schools, Joint Statement, Ex. 5,

Remote Boston School Committee Meeting (Oct. 8, 2020) (“Oct. 8

Tr.”), 173:9-14, ECF No. 38-5, court decisions involving race in

Boston Public Schools, see id. 158:16-159:19, performance and

admission disparities among different demographics, see id.

165:10-166:5; Joint Statement, Ex. 18, Recommendation Exam

Schools Admissions Criteria SY21-22 (“Recommendation”) 8, 13,

ECF No. 38-18, disappointment about such disparities and the

desire to have the Exam Schools better reflect Boston’s

diversity, see Oct. 8 Tr. 213:8-1, and the merits of considering

race and ethnicity during the process, see id. 184:17-185:3.

On October 21, 2020, the School Committee adopted the

Working Group’s 2021-2022 Admissions Plan (i.e., the Plan),

which included some changes from the Working Group’s original

Admissions Recommendation. Joint Statement ¶ 48. During this

meeting, the School Committee Chairperson “made statements that

were perceived as mocking the names of Asian members of the

community who had come to the meeting to comment on the 2021

Admission Plan.” Id. ¶ 66. Vice-Chairperson Alexandra Oliver-

Davila (“Oliver-Davila”) and a voting member, Dr. Lorna Rivera

(“Rivera”), exchanged text messages recounting what had

transpired, offering their sympathies before the inevitable

backlash, stating that it was hard not to laugh, and generally

not knowing what to do with themselves. Id. Ex. 72,

Transcription Oct. 21, 2020 Text Messages 1-2, ECF No. 38-72.

Oliver-Davila also exchanged text messages with the

Superintendent, in which the Oliver-Davila called the meeting

the “[b]est meeting ever.” Id. 2.

Members of the School Committee and Working Group also

acknowledged the Plan’s potential to advance racial equality,

see Remote Boston School Committee Meeting (Oct. 21, 2020)

(“Oct. 21 Tr.”) 365:18-366:2, ECF No. 38-7, their desire for all

Boston Public Schools to reflect the student population as a

whole, see id. 397:19-398:2, 399:5-8, and the limitations of the

Plan to achieve a student body that more closely reflects the

demographics of Boston’s school-age children, see id. 368:5-14.

D. The New Admissions Process9

The Plan opened admissions for the Exam Schools on November

23, 2020, and closed admissions on January 15, 2021. Joint

Statement ¶ 53. Under the Plan, applicants were not required to

take an admissions exam.10 Id. ¶ 50. Instead, applicants had to

satisfy three criteria to be eligible for admission. Id. ¶ 51.

First, the student must be a resident of one of Boston’s twenty-

nine zip codes. Id. Students who were homeless or in the

custody of the Massachusetts Department of Children and Families

qualified for a special “zip code” created for them to

participate in the Plan. Id. Second, the student must hold a

minimum B average in English Language Arts and Math during the

9 The parties only stipulated to the mechanisms of the

seventh-grade admissions process in detail. The parties did,

however, stipulate that “students also enter in[to] the ninth

and tenth grades using a similar process.” Joint Statement ¶ 51

n.5.

10 In recommending this change, the Superintendent and the

Working Group cited the difficulties of administering a test

during the pandemic. Joint Statement ¶ 50.

fall and winter of the 2019-2020 school year or have received a

“Meets Expectations” or “Exceeds Expectations” score in English

Language Arts and Math on the Massachusetts Comprehensive

Assessment System administered in the spring of 2019. Id.

Finally, the student must “[p]rovide verification from the

school district (or equivalent) that the student is performing

at grade level based on the Massachusetts Curriculum standards.”

Id.

The Plan also required eligible students to submit a list

of the Exam Schools according to his or her preference. Id.

¶¶ 54-55. For students attending Boston Public Schools, these

eligibility criteria were self-certified by the district, and

eligible students were asked to submit their Exam School

preferences by January 29, 2021.11 Id. ¶ 54. Non-Boston Public

School students were required to submit their proof of

eligibility and Exam School preferences by December 31, 2020.12

Id. ¶ 55.

The Plan had two rounds through which applicants were

invited to the Exam Schools. Id. ¶¶ 57-63. Using the eligible

11 This deadline was later extended to March 5, 2021. Joint

Statement ¶ 54.

12 This deadline was later extended to January 15, 2021, and

information was communicated to the non-Boston Public School

students through their respective schools. Joint Statement

¶ 55.

applicants’ English Language Arts and Math GPAs for the first

two grading periods of the 2019-2020 school year, the highest

graded students in the first round were invited to the first

twenty percent of seats in each Exam School. Id. ¶ 57. Each

student within this top twenty percent of GPAs was invited to

his or her first-choice Exam School. Id. If, however, twenty

percent of that student’s first-choice Exam School was filled,

that student moved to the second round of the Plan. Id.

The second round again ranked eligible applicants by their

English Language Arts and Math GPAs for the first two grading

periods of the 2019-2020 school year. Id. ¶ 58. In this round,

however, the students were ranked within their zip code

according to their GPA. Id. Each zip code was allocated a

percentage of the remaining eighty percent of seats at the Exam

Schools according to the proportion of school-age children

residing in that zip code. Id. ¶ 59.

Students were then assigned to the Exam Schools over ten

rounds until each Exam School was filled. Id. Ex. 66, 2020-2021

BPS Exam Schools Admissions Process 23, ECF No. 38-66. Ten

percent of the Exam Schools’ seats allocated to each zip code

were assigned each round. Id. Starting with the zip code with

the lowest median household income with children under the age

of eighteen according to the American Community Survey, the

highest ranked applicants were assigned to his or her first-

choice Exam School until ten percent of that zip code’s

allocated seats were filled. Id. If an applicant’s first-

choice Exam School was filled, the applicant was assigned to his

or her next choice. Id. Once a zip code filled its ten percent

of seats, the next zip code’s applicants were assigned. Id.

Invitations under both processes were issued at the same time,

and the school year began on September 9, 2021.

E. Demographics and the Impact of the Plan

The City of Boston has twenty-nine zip codes. Id. ¶ 39.

According to the 2019 edition of the United States Census

Bureau’s American Community Survey of Demographic and Housing

Estimates, the racial and ethnic demographics of Boston were as

follows: 44.9 percent White, 22.2 percent Black, 19.7 percent

Hispanic or Latinx, 9.6 percent Asian, and 2.6 percent two or

more races, not including Hispanic or Latinx. Id. ¶ 21 (citing

id. Ex. 21, ACS Demographic & Housing Estimates, ECF No. 38-21).

The demographics of the school-age population in Boston,

however, is significantly more diverse than the City’s general

population, compare id., with Recommendation 18, and for the

2020-2021 school year, the racial and ethnic demographics of

Boston’s school-age population were sixteen percent White, seven

percent Asian, thirty-five percent Black, thirty-six percent

Latinx, and five percent mixed race, Recommendation 18.

Historically, the student body of the Exam Schools has not

reflected the same level of diversity. Recommendation 8.

According to simulations by the Working Group, had the initial

version of the Plan been applied during the 2020-2021 admissions

cycle, it would have impacted the number of admitted students

within virtually every zip code when compared to the number of

admitted students under the old, exam-based admissions process

used for the 2020-2021 school year. Id. Ex. 71, Additional

Background Information & Data Reviewed Boston Public Schools

Exam Schools Admissions Criteria Working Group 5, ECF No. 38-71.

Similarly, the Working Group’s simulations demonstrated that had

the initial version of the Plan been applied during the 2020-

2021 admissions cycle, the racial make-up of the incoming class

would have changed. Recommendation 18. Under the old plan, the

racial and ethnic demographics of the incoming class were the

following: thirty-nine percent White, twenty-one percent Asian,

fourteen percent Black, twenty-one percent Latinx, and five

percent “Multi-Race/Other.” Id. The new Plan resulted in a

class make up that was thirty-one percent White, eighteen

percent Asian, twenty-three percent Black, twenty-three percent

Latinx, and six percent “Multi-Race/Other.” See Mem. Pursuant

Court Order & Further Supp. Relief J. Rule 60(b), Ex. N,

Simulation Comparison, ECF No. 134-14.

F. The Parties

The Coalition is a Massachusetts not-for-profit

organization. Suppl. Statement Agreed Facts (“Suppl.

Statement”) ¶ 1, ECF No. 78. The Coalition’s stated purposes

include “promoting merit-based admissions to Boston Exam Schools

(including Boston Latin School, Boston Latin Academy and

O’Bryant School of Science and Math) and promoting diversity in

Boston high schools by enhancing K-6 education across all

schools in Boston.” Id. ¶ 2 (brackets and quotations omitted).

The Coalition’s membership is open to any student, alumni,

applicant, or future applicant of the Boston Exam Schools, as

well as their family members. Id. ¶ 3. The Coalition brings

this action “on behalf of [its] members whose children are

students applying for one or more of the Boston Exam Schools for

the classes entering in the fall of 2021.” Id. ¶ 4.

Specifically, the Coalition represents the interests of fourteen

students of Asian or White ethnicity and their member-parents.

Id. The students reside in four of Boston’s twenty-nine zip

codes: Chinatown (zip code 02111), Beacon Hill/West End (zip

code 02114), Brighton (zip code 02135), and West Roxbury (zip

code 02132). Id. Each student “is a sixth-grade student . . .

and an applicant to one or more of the Boston Exam Schools for

the class entering in the fall of 2021,” and each member-parent

supports his or her child’s application to the Exam Schools.

Id.

The School Committee is the governing body of the Boston

Public Schools. Joint Statement ¶ 1. During the meetings when

the Plan was discussed and developed, the School Committee had

three types of members: one Chairperson, Michael Loconto, one

Vice-Chairperson, Alexandra Oliver-Davila, five voting members,

Michael O’Neill, Dr. Hardin Coleman, Dr. Lorna Rivera, Jeri

Robinson, and Quoc Tran, and one non-voting member, Khymani

James. Id. ¶ 4. After Chairperson Loconto resigned, the Mayor

appointed Ernani DeAraujo to the School Committee as a voting

member, Oliver-Davila became the Chairperson, and O’Neill became

the Vice-Chairperson. Id. ¶ 5. Oliver-Davila, O’Neill,

Coleman, Rivera, Robinson, Tran, and DeAraujo are named

defendants in this action. Id. ¶¶ 4-5. Defendant Brenda

Cassellius is the Superintendent of the Boston Public Schools.

Id. ¶ 6.

Several organizations and individuals moved to intervene in

this matter. Mot. Boston Branch NAACP, Greater Boston Latino

Network, Asian Pacific Islander Civic Action Network, Asian

American Resource Workshop, Maireny Pimentel, & H.D. Leave

Intervene Defs., ECF No. 20. Organizational intervenor Boston

Branch of the NAACP sought “intervention on behalf of both

itself as well as its members whose children have currently

pending applications to the [Exam Schools], including but not

limited to” an NAACP member and their child, who have a pending

application to the Exam Schools and who live in zip code 02119.

Mem. Law. Supp. Mot. Boston Branch NAACP, Greater Boston Latino

Network, Asian Pacific Islander Civic Action Network, Asian

American Resource Workshop, Maireny Pimentel, & H.D. Leave

Intervene Defs. 4, ECF No. 21. The mission of organizational

intervenor Greater Boston Latino Network “centers on educational

equity -- especially ending segregation and promoting equal

access and opportunity.” Id. Organizational intervenor Asian

Pacific Islander Civic Action Network seeks to “advance[] the

interests of Massachusetts’ Asian and Pacific Islander American

communities with a shared agenda to further equity and oppose

discrimination through year-round civic action.” Id. 5.

Dorchester-based organizational intervenor Asian American

Resource Workshop “is a grassroots, member-led group organizing

Asian American communities throughout Greater Boston through

political education, creative expression, and both issue- and

neighborhood-based organizing.” Id. Individual intervenor

Maireny Pimentel resides in Boston’s South End (zip code 02118)

with her older eighth-grade son, who has a pending application

at Boston Latin Academy, and with her younger sixth-grade son,

who “intends to apply to the [Boston Exam Schools] in fall

2021.” Id. 6. Individual intervenor H.D., a sixth-grade

student who resides in Dorchester (zip code 02122), “is

currently waiting to hear about admission decisions from [the

Exam Schools].” Id.

III. SUBSEQUENT REVELATION

The day after the October 21, 2020 meeting, during which

the School Committee adopted the Plan, the Boston Globe

submitted a public records request for all communications by and

between the School Committee members. Mem. Law Behalf City

Boston Att’ys Catherine Lizotte & Henry C. Luthin, Ex. B, Second

Aff. Catherine Lizotte ¶ 6, ECF No. 137-2. This request was

assigned to Catherine Lizotte, the Legal Advisor to the Boston

Public Schools. Id. ¶¶ 3-5. Among the communication Lizotte

collected was an exchange between Olivia-Davila and Rivera. See

generally Mem. Supp. Mot. Pursuant Fed. R. 60(b), Ex. A, Decl.

Darragh Murphy (“Murphy Decl.”), Attach. I-2, Text Message

Screenshots, ECF No. 113-1. These text messages included the

following:

Rivera: “Best s[chool] c[ommittee] m[ee]t[in]g ever I am

trying not to cry”

Oliver-Davila: “Me too!! Wait [un]til the white racists

start yelling [a]t us!”

Rivera: “Whatever . . . they are delusional”

. . . .

Rivera: “Ouch I guess that was for me!”

Rivera: “I still stand by my statement”

Oliver-Davila: “I said [Boston Public Schools] students

should get preference and stand by this.”

Rivera: “Oh then it was both of us!”

Oliver-Davila: “This guy wrote to me twice”

Rivera: “Me too”

Oliver-Davila: “White guy who is silent majority. He

writes for [B]oston [H]erald”

Rivera: “Not good”

Oliver-Davila: “He complains becaise [sic] he wants to have

a vote. I do think the students should vote. But his

tweets are excessive”

Rivera: “Agree”

Rivera: “I hate W[est] R[oxbury]”

Oliver-Davila: “Sick of westie whites”

Rivera: “Me too I really feel [l]ike saying that!!!!”

Id. 77, 79-82.

In responding to the Boston Globe’s public records request,

Lizotte consulted with the corporation counsel, the first

assistant corporation counsel, and the director of public

records to determine which records were responsive to the

request. Second Aff. Catherine Lizotte ¶ 9. The messages

reproduced above were omitted, the messages deemed responsive

were transcribed, and the City’s response to the records request

included a disclosure that read as follows:

With respect to the text messages, it is important to note

that none of the members possess a mobile phone that is

owned by [Boston Public Schools] or the City of Boston.

Each member was contacted and asked to provide text message

records from the respective personal devices that are

responsive to your request. While no portions of texts

were redacted based on statutory exemptions to the public

records law, [Boston Public Schools] did omit portions

deemed not “related to [Boston Public Schools] issues.”

Id. ¶¶ 9-12.

A few weeks later, on November 19, 2020, the Coalition

filed its articles of organization with the Secretary of the

Commonwealth. See Mass. Sec’y of Commonwealth, Boston Parent

Coalition for Academic Excellence Corp., Articles of

Organization, Filing No. 202014808120 (“Coalition Articles of

Organization”),

https://corp.sec.state.ma.us/CorpWeb/CorpSearch/CorpSummary.aspx

?sysvalue=7CRKuYbTPkRPyuWnn71TU66SrAk8ygttTnL67y84NkY-. The

same day, Darragh Murphy, a member of the Coalition, filed six

public records requests. Murphy Decl. ¶ 5. The six requests

asked for following information:

ISEE exam scores and Grade Point Average (GPA’s) for school

year 2019/2020 of all 6th grade students who did NOT

receive invitations for School Year 2020/2021 to Boston

Latin Academy, the O’Bryant School, and Boston Latin

School, de-identified with the name of the exam school to

which each applicant was NOT invited to attend, the sending

school name, and the ZIP code of each applicant.

Second Aff. Catherine Lizotte, Ex. 12, Murphy Public Records

Request No. 1, ECF No. 137-2.

ISEE exam scores and Grade Point Averages (GPA’s) for

school year 2019/2020 of all 6th grade students admitted

for School Year 2020/2021 to Boston Latin Academy, the

O’Bryant School, and Boston Latin School, de-identified,

with the name of the exam school to which each applicant

was invited to attend, and the sending school name, and the

ZIP code of each applicant.

Id. Ex. 13, Murphy Public Records Request No. 2, ECF No. 137-2.

Grade Point Averages (GPA’s) for school year 2019/2020 of

all 6th grade students admitted for School Year 2020/2021

to Boston Latin Academy, the O’Bryant School, and Boston

Latin School, de-identified, with sending school name and

ZIP code of each applicant.

Id. Ex. 14, Murphy Public Records Request No. 3, ECF No. 137-2.

Copies of all electronic communications, including emails,

text messages, voicemails, social media messages, tweets,

etc, to and from Superintendent Cassellius, her staff

and/or assistants, and all members of the Boston School

committee, and all members of the Exam School Working Group

regarding the Exam School Working Group, including,

electronic attachments to all electronic communications.

Id. Ex. 15, Murphy Public Records Request No. 4, ECF No. 137-2

(emphasis added).

Copies of all formulas, algorithms, calculations,

instructions, rubrics, and guidelines used by Boston Public

Schools to convert, analyze, and standardize Grade Point

Averages (GPA’s) for all 6th grade applications to Boston

Latin Academy, the O’Bryant School, and Boston Latin

School.

Id. Ex. 16, Murphy Public Records Request No. 5, ECF No. 137-2.

Copies of all data sets, spreadsheets, formulas,

algorithms, calculations, instructions, rubrics, and

guidelines used by the Superintendent’s Exam School Working

Group to identify the number of school aged children in

each Boston ZIP code, the median income of each Boston ZIP

code, and the allocation of exam school seats per Boston

ZIP code, including copies of all simulations run by the

Exam School Working Group, the Superintendent’s Office, the

Boston Public School department, and the Boston School

Committee, and all electronic communication to and from all

members of the Exam School Working Group, the

Superintendent, the Boston School Committee, the Mayor’s

Office, the Boston City Council, and the Boston Public

Schools offices, regarding the work of the Exam School

Working group, its data and findings, and the simulations.

Id. Ex. 17, Murphy Public Records Request No. 6, ECF No. 137-2

(emphasis added). The requests did not include any indicia of

membership in the newly formed Coalition, and Murphy was not a

registered agent of the Coalition. See Second Aff. Catherine

Lizotte ¶ 17; see generally Coalition Articles of Organization.

On November 20, 2020, the Coalition made fifteen requests for

information and data sets regarding the October 21, 2020 exam

school admissions presentation to the School Committee. Second

Aff. Catherine Lizotte ¶ 18. Lizotte responded to both Murphy’s

requests and the Coalition’s requests on January 13, 2021. Id.

¶ 19. Lizotte, however, did not produce the same text messages

to Murphy’s requests as she had to the Boston Globe’s requests

because Murphy’s requests specifically asked for information

regarding the Exam School Working Group. Id. Murphy made

subsequent records requests, including one on February 23, 2021

for

Copies of ALL electronic text messages, instant messages,

and any other form of electronic communication sent and/or

received, including any and all “group” messages sent

and/or received by more than one of the following listed

individuals, during the School Committee meeting scheduled

for October 21, 2020, from the time the meeting started on

10/21/2020 until it was officially adjourned on Thursday,

October 22, 2020, between and among each and all of the

following: Superintendent Brenda Cassellius, SC Chair

Michael Loconto[,] SC Members: Lora Rivera[,] Jeri

Robinson[,] Michael O’Neil[l][,] Alexandra Oliver-Davila[,]

Hardin LK Coleman[,] [and] Quoc Tran[.]

Id. Ex. 22, City Public Records Request / R000337-022321, ECF

No. 137-2. On March 9, 2021, Lizotte responded to Murphy’s

February 23 request by forwarding the transcribed text messages

that she had previously provided in response to the Boston

Globe’s records request. Second Aff. Catherine Lizotte ¶ 28.

Murphy never appealed or objected to the March 9 response (or

indeed to any of the responses she had received). Id. ¶ 29. On

February 26, 2021, the Coalition filed the present action. See

generally Compl.

Lizotte filed her appearance in this present action

before the School Committee hired outside counsel. Thereafter

Lizotte had minimal involvement in any trial-related matters.

See generally id.

In March 2021 the present action was in full swing, this

Court having collapsed the request for preliminary injunction

with trial on the merits and exhorted the parties to agree upon

the relevant facts. The parties, through counsel, were busily

engaged in the process of stipulating to a joint statement of

facts. Although the first draft statement sent by the Coalition

did not include the transcribed text messages, subsequent

attachments included excerpts from the transcribed text

messages. Id. ¶¶ 30-31. No party made any reference to or

mention of the omitted text messages during the revisions of the

joint statement, and all parties confirmed that the text message

excerpts produced were true and accurate. On June 7, 2021, the

Boston Globe, having apparently been tipped off, published a

story revealing the omitted text messages. Bianca Vázquez

Toness & Felicia Gans, After Sharing Racially Charged Texts

About West Roxbury Families in October, a Boston School Official

Has Resigned, Bos. Globe, June 7, 2021,

https://www.bostonglobe.com /2021/06/07/metro/boston-appears-

have-illegally-withheld-inappropriate-texts-after-career-ending-

school-committee-meeting/.

IV. LEGAL ANALYSIS

Throughout this action, the Coalition has maintained two

arguments despite conceding that the Plan is facially race

neutral: (1) that the Plan uses proxies for race and that any

proxy for race automatically triggers strict scrutiny, and (2)

that the Plan was motivated by interests in racial diversity and

that this automatically triggers strict scrutiny because any

consideration of race is impermissible.13 See, e.g., Mem. Supp.

13 When this Court pressed the Coalition at the hearing on

its position, the following exchange took place:

THE COURT: I just want to be clear on your argument.

So long as race was one of the things considered,

albeit the others are all legitimate, your contention

is that this plan fails constitutionally?

J. & Inj. Relief 14-15, ECF No. 63; Pl.’s Post Hr’g Br. 1-5, 11-

14, ECF No. 97. Remarkably, the Coalition maintained this

erroneous position despite explicit contrary law within this

Circuit, this Court pressing the Coalition on the legal

foundation for its position, this Court’s prior withdrawn order

plainly rejecting it, and the First Circuit’s denial of the

motion for injunctive relief on the same grounds as this Court’s

prior order. See generally Anderson ex rel. Dowd v. City of

Bos., 375 F.3d 71 (1st Cir. 2004); Parents Involved in Cmty.

Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 788 (2007)

(Kennedy, J.) (concurring in part and concurring in judgment)

(accepting diversity as a compelling governmental interest along

with the four dissenters); Boston Parent I, 2021 WL 1422827, at

*10; Boston Parent II, 996 F.3d at 46.

The law here has been and remains clear: where the

governmental action is facially race neutral and uniformly

applied, “good faith [is] presumed in the absence of a showing

MR. HURD: Your Honor, our position is that, yes . . . .

THE COURT: [A]ll right, your argument is -- in deciding

what the level of scrutiny is, because race was one factor

that they considered, it must be subject to strict

scrutiny.

MR. HURD: Yes, your Honor.

Tr. Case-Stated Hr’g 15:24–16:3, 16:13-17, ECF No. 101.

to the contrary” that the action has a disparate impact, the

spawn of an invidious discriminatory purpose. Regents of the

Univ. of Cal. v. Bakke, 438 U.S. 268, 318-19 (1978).

“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.” Village of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 266 (1977). “The Supreme Court non-

exhaustively enumerated several factors relevant to the inquiry:

the degree of disproportionate racial effect, if any, of the

policy; the justification, or lack thereof, for any

disproportionate racial effect that may exist; and the

legislative or administrative historical background of the

decision.” Anderson, 375 F.3d at 83.

In the words of the First Circuit,

the mere invocation of racial diversity as a goal is

insufficient to subject [an otherwise race-neutral

plan] to strict scrutiny. In those cases where the

Supreme Court inquired whether diversity is a

compelling state interest and whether the program at

issue could survive strict scrutiny, the programs were

all subjected to strict scrutiny because they used

explicit racial classifications to achieve the goal of

diversity. None of these cases, nor any other case to

which our attention has been drawn, has subjected a

governmental program to strict scrutiny simply because

the state mentioned diversity as a goal.

Id. at 87. Furthermore, “[t]he Supreme Court has explained that

the motive of increasing minority participation and access is

not suspect.” Id. (citing City of Richmond v. JA Croson

Co., 488 U.S. 469, 507 (1989) (approving the use of race-neutral

means to increase minority participation in governmental

programs)). In Parents Involved in Community Schools v. Seattle

School District Number 1, Justice Kennedy not only ruled this

motive permissible, but fortified its use through race-neutral

proxies aimed at accomplishing its end:

School boards may pursue the goal of bringing together

students of diverse backgrounds and races through

other means, including strategic site selection of new

schools; drawing attendance zones with general

recognition of the demographics of neighborhoods;

allocating resources for special programs; recruiting

students and faculty in a targeted fashion; and

tracking enrollments, performance, and other

statistics by race.

551 U.S. at 789 (Kennedy, J.) (concurring in part and concurring

in judgment) (emphasis added). Although these proxies are race-

conscious, it is “unlikely any of them would demand strict

scrutiny to be found permissible” because they do not define

students by their race in violation of the Equal Protection

Clause of the Fourteenth Amendment. Id. (citing Bush v.

Vera, 517 U.S. 952, 958 (1996) (plurality opinion) (“Strict

scrutiny does not apply merely because redistricting is

performed with consciousness of race. . . . Electoral district

lines are facially race neutral, so a more searching inquiry is

necessary before strict scrutiny can be found applicable in

redistricting cases than in cases of classifications based

explicitly on race.” (quotations omitted))).

Similarly, the Third, Fifth, and Sixth Circuits have held

that considering racial data is not a racial classification and

does not trigger strict scrutiny. See Doe ex rel. Doe v. Lower

Merion Sch. Dist., 665 F.3d 524, 548 (3d Cir. 2011) (“Appellants

also conflate a school assignment policy that explicitly

classifies based on race with the consideration or awareness of

neighborhood racial demographics during the development and

selection of a policy. . . . The consideration or awareness of

race while developing or selecting a policy, however, is not in

and of itself a racial classification. Thus, a decisionmaker’s

awareness or consideration of race is not racial classification.

Designing a policy ‘with racial factors in mind’ does not

constitute a racial classification if the policy is facially

neutral and is administered in a race-neutral fashion.” (quoting

Hayden v. Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999)));

Lewis v. Ascension Par. Sch. Bd., 806 F.3d 344, 358 (5th Cir.

2015) (“[T]he district court’s legal conclusion that the Board’s

consideration of demographic data in formulating [the plan at

issue] ‘does not amount to adopting a rezoning plan that assigns

students on the basis of race’ conforms to Supreme Court case

law and is in accord with the decisions of this Court’s sister

circuits. Accordingly, we hold that the district court did not

err in concluding that [the plan at issue] does not make express

racial classifications and so is not subject to strict scrutiny

on that basis.” (brackets and citations omitted)); Spurlock v.

Fox, 716 F.3d 383, 394 (6th Cir. 2013) (“Racial classification

requires more than the consideration of racial data. If

consideration of racial data were alone sufficient to trigger

strict scrutiny, then legislators and other policymakers would

be required to blind themselves to the demographic realities of

their jurisdictions and the potential demographic consequences

of their decisions.”); see also United States v. Hays, 515 U.S.

737, 745 (1995) (“[T]he legislature always is aware of race when

it draws district lines, just as it is aware of age, economic

status, religious and political persuasion, and a variety of

other demographic factors. That sort of race consciousness does

not lead inevitably to impermissible race discrimination.”

(quotations omitted)).

There has never been a question but that the School

Committee and the Working Group were keenly aware of the Plan’s

effect on diversity and interested in increasing the Exam

Schools’ “racial, socioeconomic and geographic diversity [better

to reflect the diversity of] all students (K-12) in the city of

Boston.” Equity Impact Statement 1; see supra Section II.C.

Similarly, it is beyond question that at least one member of the

School Committee harbored animus toward groups that allegedly

suffered disparate impacts. The School Committee Chairperson

made racist comments publicly during the October 21, 2020

meeting directed at Boston’s Asian American communities, which

led to his resignation. See Joint Statement ¶¶ 48-68.

Nevertheless, the Coalition was so certain that its specious

approach to the Equal Protection doctrine was ironclad that it

never sought additional discovery and discouraged any further

development of the record14 -- essentially stopping at the

14 The following occurred at trial:

MR. HURD: [W]e don’t have to show that kind of hostility

and disrespect for Asians or whites in order to prevail,

all we have to show in order to get to strict scrutiny is

that the zip code quota plan was racially motivated.

Tr. Case-Stated Hr’g 10:15-19.

THE COURT: And you say -- and I’m following your argument,

you say, based upon this record, that’s so clear that . . .

the duty of the Court under the Constitution is so to

declare and to enter a permanent injunction at this

juncture in the proceedings?

MR. HURD: Yes, your Honor, that is our position.

THE COURT: All right.

MR. HURD: And as we note in our briefs, alternatively if

there is to be some continuation of these proceedings so

that they may somehow bolster their position, then we are

entitled at least to a preliminary injunction. But let me

go back and --

THE COURT: And at least as a matter of logic, I follow

that. Now you’ve made that clear, so let’s go on. Well just

so I understand, and you’’re making it clear, you say you

win today, but if you don’t win today, you at least get an

threshold of the doctrine and forgoing any serious development

of evidence necessary to advance a theory under Arlington

Heights. See Arlington Heights, 429 U.S. at 266; Boston Parent

II, 996 F.3d at 46 (noting that the Coalition “for[went] any

serious engagement” with statistically analyzing the Plan’s

alleged disparate impact); see generally Joint Statement.

Now, having lost unequivocally on the theory it advanced at

trial, but armed with the serendipitous revelation that the

School Committee improperly responded to prior, independent

public records requests, the Coalition advances a new theory

under the guise of Rule 60(b). The Coalition argues that it is

entitled to relief from judgment under Rule 60(b) because (1)

new evidence has come to light that the Coalition could not have

discovered with reasonable diligence, and (2) the School

Committee’s fraud, misrepresentation, or misconduct

substantially interfered with the Coalition’s ability to prepare

for trial. See Mem. Supp. Mot. Pursuant Fed. Rule 60(b) 9-14.

injunction -- and I don’t mean today, but when, in the very

near future, I enter an order, you’re entitled to an

injunction to hold things as we go forward to expand the

record?

MR. HURD: Yes, your Honor, that’s correct. And let me point

out why we believe the record does not need and should not

be expanded . . . .

Id. 21:4-22:3 (emphasis added).

A. Rule 60(b) Legal Standard

Federal Rule of Civil Procedure 60(b) enumerates six

reasons upon which a “court may relieve a party or its legal

representative from a final judgment, order, or

proceeding . . . .” Fed. R. Civ. P. 60(b). “[R]elief under

Rule 60(b) is extraordinary in nature,” and “motions invoking

that rule should be granted sparingly.” Karak v. Bursaw Oil

Corp., 288 F.3d 15, 19 (1st Cir. 2002). To prevail, the movant

must establish “that his motion is timely; that exceptional

circumstances exist, favoring extraordinary relief; that if the

judgment is set aside, he has the right stuff to mount a

potentially meritorious claim or defense; and that no unfair

prejudice will accrue to the opposing parties should the motion

be granted.” Id. In assessing the motion, this Court “may

assume the truth of fact-specific statements proffered by the

movant,” but “it need not credit bald assertions,

unsubstantiated conclusions, periphrastic circumlocutions, or

hyperbolic rodomontade.” See id. at 20 n.3 (quotations

omitted).

The Coalition moves under Rule 60(b)(2) in response to

“newly discovered evidence that, with reasonable diligence,

could not have been discovered in time to move for a new trial

under Rule 59(b),” and under Rule 60(b)(3) in response to “fraud

(whether previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing party . . . .”

Mem. Supp. Mot. Pursuant Fed. Rule 60(b) 7-8; see id. 9-14.

A party who moves under Rule 60(b)(2) must demonstrate that

(1) the evidence has been discovered since the trial; (2)

the evidence could not by due diligence have been

discovered earlier by the movant; (3) the evidence is not

merely cumulative or impeaching; and (4) the evidence is of

such a nature that it would probably change the result were

a new trial to be granted.

González-Piña v. Rodríguez, 407 F.3d 425, 433 (1st Cir. 2005);

see Karak, 288 F.3d at 19-20 (“[A] party who seeks relief from a

judgment based on newly discovered evidence must, at the very

least, offer a convincing explanation as to why he could not

have proffered the crucial evidence at an earlier stage of the

proceedings.”).

A party who moves under Rule 60(b)(3) must show (1) “the

opponent’s misconduct by clear and convincing evidence” and (2)

“that the misconduct substantially interfered with its ability

fully and fairly to prepare for, and proceed at, trial.”

Anderson v. Cryovac, Inc., 862 F.2d 910, 926 (1st Cir. 1988).

“Failure to disclose or produce materials requested in discovery

can constitute ‘misconduct’ within the purview of this

subsection.” Id. at 923. Proof of “‘[m]isconduct’ does not

demand proof of nefarious intent or purpose as a prerequisite to

redress” -- misconduct “can cover even accidental

omissions . . . .” Id. “By definition, lack of access to any

discoverable material forecloses ‘full’ preparation for trial

since the material in question will be missing. Yet concealed

evidence may turn out to be cumulative, insignificant, or of

marginal relevance. If that be the case, retrial would

needlessly squander judicial resources.” Id. at 924.

Nevertheless, because “[v]erdicts ought not lightly to be

disturbed . . . complainants [must] demonstrate convincingly

that they have been victimized by an adversary’s misconduct.”

Id. “[A]s with other defects in the course of litigation, the

error, to warrant relief, must have been harmful -- it must have

‘affect[ed] the substantial rights’ of the movant.” Id. (citing

Fed. R. Civ. P. 61). Such substantial impairment may exist

where “a party shows that the concealment precluded inquiry into

a plausible theory of liability, denied it access to evidence

that could well have been probative on an important issue, or

closed off a potentially fruitful avenue of direct or cross

examination.” Id. at 925. “Moreover, since parties ought not

to benefit from their own mis-, mal-, or nonfeasance,

uncertainties attending the application of hindsight in this

area should redound to the movant’s benefit.” Id. at 924.

Consequently, “[s]ubstantial interference may also be

established by presumption or inference” when the nondisclosure

was knowing or purposeful rather than accidental. See id. at

926.

B. Under These Circumstances, Relief from Judgment Is

Inappropriate.

Despite the School Committee’s best efforts to justify its

actions,15 there is no question that the School Committee

mishandled the public records requests from Murphy and the

Boston Globe. The omitted, racially charged text messages were

being sent even as the School Committee adopted the Plan

affecting the groups disparaged in those text messages. See

Murphy Decl., Attach. I-2, Text Message Screenshots 77, 79-82.

How and why Lizotte and company did not disclose these pertinent

messages is suspect and indicative of an effort by the School

Committee to keep them hidden, perhaps because they were so

embarrassingly racially charged.16 Indeed, the disclaimer

15 These included a stunningly hapless brief that sought to

equate the improperly withheld, racially charged texts with an

aside by a committee member that “I love Kit Kats” (the candy

bar) and an unethical suggestion that, having stipulated that

the texts produced were “true and accurate” a reader ought not

conclude they were “complete” absent specific stipulation. See

Defs.’ Opp’n Pl.’s Mot. Pursuant Federal Rule 60(b) 10, 14, ECF

No. 118.

16 A NOTE ON RACISM: Racism is the syphilis of American public

discourse and civic engagement. It is embarrassing, ugly,

deeply humiliating, oppressive, and infuriating, all five. We

wish it were gone but don’t know how to get there. So, mostly,

we don’t talk about it, since to do so we necessarily

acknowledge how deeply it affects (or infects) all of us, some

more than others.

No discussion of prejudice would be complete without an

acknowledgment of the racist history of our nation. Much as we

may wish it were not so, racism is a significant part of our

national heritage. After all, our very Constitution originally

embraced human slavery as a pragmatic matter. See U.S. Const.

art. I, § 2, cl. 3 (the Three-fifths clause); id. art. I, § 9,

cl. 1 (the 1808 clause); id. art. IV, § 2 (the Fugitive Slave

clause); id. art. V (prohibiting any amendment affecting the

1808 clause). Only in the wake of “a great civil war, testing

whether [our] nation, or any nation so conceived and so

dedicated can long endure,” Abraham Lincoln, Gettysburg Address,

Nov. 19, 1863, were the legal constraints of slavery struck

down. Yet today, more than 150 years later, on January 6th of

this very year, an apparent White supremacist dragged a

Confederate flag through the rotunda of our nation’s Capitol -–

something a genuine army, the Army of Northern Virginia, could

not accomplish in four years of hard-fought battles.

We ought not be surprised. As my classmate Howard Gray

brilliantly paraphrased Faulkner’s famous dictum: “History isn’t

dead. Hell, it isn’t even past.” See William Faulkner, Requiem

for a Nun 92 (1951) (“The past is never dead. It’s not even

past.”).

Today, racism in America demeans and degrades the very

fiber of our nation. Like cancer, when it appears it

metastasizes, spreading hate to recipients with all too

predictable consequences.

We must each recognize the racism within us. We each must

acknowledge it. We must own it -– and we must transcend it.

And we can. We are not born racist. Oscar Hammerstein had

it right:

You’ve got to be taught to hate and fear.

You’ve got to be taught from year to year

* * *

Before you are six or seven or eight

To hate all the people your relatives hate.

You’ve got to be carefully taught.

Rodgers & Hammerstein, You’ve Got to Be Carefully Taught, on

South Pacific (1949).

We can transcend the evil we have learned. We must, lest

racism, like syphilis, drive us mad.

attached to the School Committee’s response acknowledged that

the decision to omit certain text messages lay outside any

statutory exemption. Second Aff. Catherine Lizotte ¶¶ 9-12.

Lizotte, however, failed to attach this disclaimer when she

provided the partial transcript in response to Murphy’s request,

despite the plain language of Murphy’s February 23 request that

she wanted a copy of all the text messages sent during the

School Committee hearing.17 See City Public Records Request /

R000337-022321. The question, therefore, is not whether a wrong

occurred -- the question is whether the circumstances of the

wrong warrants relief under Rule 60(b). See Karak, 288 F.3d at

19; Anderson, 862 F.2d at 924-26. This Court concludes it does

not.

First, it is simply inapposite to conflate shoddy handling

of public records requests with conduct during adversarial

litigation. What happened here is a world apart from the

responsibilities and duties owed during the judicially imposed

discovery process. The controlling precedent cited above

involves misconduct during judicially imposed discovery. See,

e.g., Anderson, 862 F.2d at 924 (“[A]s with other defects in the

course of litigation, the error, to warrant relief, must have

17 An interpretation that is even more obvious when compared

with Murphy’s prior requests. Compare City Public Records

Request / R000337-022321, with Murphy Public Records Request

Nos. 1-6.

been harmful -- it must have ‘affect[ed] the substantial rights’

of the movant.”). To conflate the Commonwealth’s records

request process with judicially imposed discovery and equate

misconduct in the former with misconduct in the latter finds no

support in precedent. Moreover, extending the law to equate the

two would compel public entities to treat all requesters as

adverse litigants. Absent some Massachusetts legislative or

judicial intimation that its statutes are to be so enforced,

this Court declines to make such an extension.

Moreover, Lizotte, in answering records requests on behalf

of the School Committee, had no way of knowing that the

Coalition meant to rely on the records requests of a third

party. There is no evidence that Lizotte had any idea that

Murphy was a member of the Coalition, particularly when the

Coalition filed fifteen public records requests on its own

behalf. Second Aff. Catherine Lizotte ¶ 18. The Coalition used

but an excerpt of the transcript Lizotte sent to Murphy -- a

transcript that had been previously sent to the Boston Globe --

so the mere appearance of an excerpt from the transcript is not

enough reasonably to put Lizotte or trial counsel on notice that

Murphy was working on the Coalition’s behalf.

Second, while it is true that trial counsel were less

diligent than one would have expected in reviewing and producing

the client School Committee’s own records, this was not fraud

but inadvertence stemming from the burden of operating at flank

speed to prepare for what it very much wanted to be a timely,

dispositive hearing18 -- as events so proved. While this Court

18 A NOTE ON SPEED:

The two great “enemies” of our American system of justice

are cost and delay . . . . [O]ur [civil justice] system is

so unwieldy, so stunningly expensive, and so ponderously

slow that only corporate America, the very rich, and those

so crippled that the contingent fee is attractive to the

bar stand a realistic chance of having a jury of their

peers.

Hon. William G. Young, Engage the Enemy More Closely, Forum,

Conn. Trial Laws. Mag. (forthcoming Nov. 2021).

Everyone agrees that an early firm trial date is the best

way to resolve cases and, after 43 years of judicial service, I

have come to believe that almost anything that will speed

matters up furthers the ends of justice.

One such technique is found in Fed. R. Civ. P. 65(a) -- the

judicial power to collapse further hearing on a preliminary

injunction with trial on the merits. I do this in every

appropriate case. Usually it works well, see, e.g., Victim

Rights Law Ctr. v. Cardona, CIVIL ACTION NO. 20-11104-WGY, 2021

WL 3185743 (D. Mass. July 28, 2021), order clarified, CIVIL

ACTION NO. 20-11104-WGY, 2021 WL 3516475 (D. Mass. Aug. 10,

2021), the first case out of a plethora of parallel litigation

to render a final judgment authoritative nationwide, see Brian

Bosworth, Lauren Bachtel & Christopher Cunio, How Court Ruling,

DOE Guidance Change DeVos’ Title IX Rule, Law360 (Aug. 27, 2021,

5:44 PM), https://www.law360.com/articles/1416729/how-court-

ruling-doe-guidance-change-devos-title-ix-rule.

In the present case, speedy resolution was a compelling

necessity. Sometimes, however, speed comes at the expense of

accuracy. So here. The text above explains what happened -- no

fraud, but unacceptable lacunae in the necessary preparation of

the factual record.

will not excuse or reward such lack of diligence, on the

totality of this record it is not an occasion for Rule 60(b)

relief.

Finally, the Coalition here elected to forgo pressing for

discovery NOT because it felt as though it had turned over every

evidentiary rock but because, given its erroneous view of the

law, it saw no need to overturn any more rocks than it already

had examined. Tr. Case-Stated Hr’g 10:15-19, 21:4-22:3, ECF No.

Why did this happen? Trial counsel were simply overwhelmed

by the magnitude of necessary trial preparation. Why was that,

especially among trial counsel whose conduct in every other

respect –- save for that silly brief –- was exemplary?

The answer lies in the symbiosis between a flawed business

model and a complicit judiciary. I have been at the bar now for

over half a century and in all that time judges have decried

delay with a fervor usually reserved for articles of faith.

Over that same period, trial counsel, from solo practitioners to

big firms, take every case they feel competent to handle (after

all, that’s what pays the bills) and bet they can juggle their

trial calendars to try the ones they cannot settle. At the same

time, trial judges (most of whom were trial lawyers or wish they

had been) recognize that trial counsel cannot be in two places

at once. The result is that cases move through the courts at

roughly a pace convenient to the local bar.

For example, I am presently responsible for 143 civil cases

in Massachusetts. During the past thirty days of September

2021, I received 26 motions for continuance and allowed 23 of

them. During the same time period, while responsible for 201

civil cases in the District of Puerto Rico, I received 45

motions for continuance and allowed 41 of them. And I am

considered “tough” on continuances.

Where, as here, the public necessity compels a much quicker

pace, trial counsel feel the strain as no firm can simply and

immediately “staff up” to meet a complex equity case.

101. The Coalition had evidence that the Chairperson of the

School Committee made racist remarks. Joint Statement ¶¶ 48-68.

The Coalition was already suspicious that Oliver-Davila and

Rivera harbored animus toward Whites and Asians. See Oct. 8 Tr.

184:17-185:3, 213:8-1; Oct. 21 Tr. 365:18-366:2, 368:5-14,

397:19-398:2, 399:5-8. Nevertheless, the Coalition insisted

that it need not prove animus because of the alternative theory

it advanced, was adamant that it would prevail on the Joint

Statement alone, and discouraged further development of the

record. See Tr. Case-Stated Hr’g 10:15-19, 15:24–16:3, 16:13-

17, 21:4-22:3.19

1. Rule 60(b)(2)

Against this backdrop, the Coalition fails to satisfy the

second and fourth elements of Rule 60(b)(2). See González-Piña,

407 F.3d at 433; Karak, 288 F.3d at 19-20. Although these

racist text messages are clearly new evidence, they are evidence

that could have been discovered earlier by the Coalition had it

not chosen to forgo discovery and followed to fruition its

suspicions that Oliver-Davila and Rivera harbored racial animus.

As for the fourth prong, this evidence is not of such a

nature that it would probably change the result were a new trial

19 For the foregoing reasons, and the analysis developed

further below, this Court would also deny relief under Rule

60(b)(6) if granted jurisdiction.

to be granted. See González-Piña, 407 F.3d at 433; Karak, 288

F.3d at 19-20. This Plan is not the celebrated result of

transcending racial classifications that this Court once found

it to be. Three of the seven School Committee members harbored

some form of racial animus, and it is clear from the new record

that the race-neutral criteria were chosen precisely because of

their effect on racial demographics. In other words, but for

the increase in Black and Latinx students at the Exam Schools,

the Plan’s race-neutral criteria would not have been chosen.

While the increase of a zero-sum resource to one group

necessitates the reduction of that resource to others, the case

law is clear -- the concern is action taken because of animus

toward a group, not in spite of an action’s necessary effect on

a group or groups. See Personnel Adm’r of Mass. v. Feeney, 442

U.S. 256, 258 (1979). The Plan’s criteria are all facially race

neutral. The precedent is clear that when the governmental

action is facially race neutral, “good faith [is] presumed in

the absence of a showing to the contrary,” i.e., unless the

plaintiff proves disparate impact and discriminatory animus

under Arlington Heights. See Bakke, 438 U.S. at 318-19; Village

of Arlington Heights, 429 U.S. at 266; Anderson, 375 F.3d at 83;

see also Parents Involved, 551 U.S. at 789 (Kennedy, J.)

(concurring in judgment and concurring in part); Lower Merion,

665 F.3d at 548; Lewis, 806 F.3d at 358; Spurlock, 716 F.3d at

394.

It ought be remembered that geographic and socioeconomic

diversity are appropriate, validated educational goals in their

own right, without any regard to racial demographics. If the

only change possible is change free from any ignoble purpose, no

change is ever possible.

As this Court noted in its prior order, and as the First

Circuit noted in its denial for injunctive relief, the Coalition

failed to establish a disparate impact from the Plan. Boston

Parent II, 996 F.3d at 46 (noting that the Coalition “for[went]

any serious engagement” with statistically analyzing the Plan’s

alleged disparate impact); id. at 45-46; Boston Parent I, 2021

WL 1422827, at *14-15 (finding and ruling that the Coalition

failed to prove a disparate impact).

At trial, the Coalition relied on a projection -- not of

the Plan it challenged but a projection of a prior plan that was

amended by the Working Group into the present plan. That

projection showed that White students would make up thirty-two

instead of thirty-nine percent of seats at the Exam Schools, and

that Asian students would make up sixteen instead of twenty-one

percent of seats at the Exam Schools.20 Recommendation 18. As

this Court noted, White and Asian students combined comprise

twenty-three percent of school-age children in Boston but

represented fifty percent of incoming students at the Exam

Schools. Id. Thus, the Coalition’s evidence of disparate

impact was a projection of a prior plan that showed White

students going from representing 243 percent of their share of

the school-age population in Boston to 200 percent, and Asian

students going from representing 300 percent of their share of

the school-age population in Boston to 228 percent. Id. Again,

20 As both this Court and the First Circuit noted, even the

comparator used by the Coalition was specious. The racial

demographics of the Exam Schools under the old plan were a

disjunctive consequence year to year; there was no guarantee

that any White or Asian student would even be admitted. To use

a variable consequence as the baseline against which all future

must comport is erroneous. White and Asian students are not

“losing” seats simply because last year different White and

Asian students were exceedingly privileged to win a high number

of seats without any evidence that this years’ students would

have fared the same. No such evidence was presented, and this

Court rejected the use of stereotypes to that effect. See

Boston Parent II, 996 F.3d at 46 (“[A]s compared to a random

distribution of invitations, the Plan has no adverse disparate

impact on White and Asian students. Rather, plaintiff is able

to generate a supposed adverse impact principally by comparing

the projected admissions under the Plan to prior admissions

under the predecessor plan. Alternatively, plaintiff compares

projections under the Plan to projections of admissions based

only on GPA. Either comparator does produce even higher

percentages of White and Asian students than does the Plan. But

plaintiff offers no analysis or argument for why these

particular comparators, rather than a plan based on random

selection, are apt for purposes of determining adverse disparate

impact.”).

this Court does not suggest that remaining overrepresented alone

precludes a disparate impact. It simply notes that when a group

is as overrepresented as White and Asian students at the Exam

Schools, nearly any changes to the admissions process will

likely result in some reduction, if only from the law of

averages. Absent any additional statistical analysis, such a

reduction is not a consequence that the caselaw considers a

disparate impact. See Boston Parent II, 996 F.3d at 46

(“[P]laintiff offers no evidence establishing that the numerical

decrease in the overrepresentation of Whites and Asians under

the Plan is statistically significant.”); see generally, e.g.,

McCleskey v. Kemp, 481 U.S. 279 (1987); Washington v. Davis, 426

U.S. 229 (1976); Village of Arlington Heights, 429 U.S. at 266;

Yick Wo v. Hopkins, 118 U.S. 356 (1886); see also generally

Anderson, 375 F.3d at 87-90 (holding that the results were not

“stark” and did not qualify as a disparate impact under

Arlington Heights).

In the words of the First Circuit, “[a] party claiming a

disparate impact generally does not even get to first base

without such evidence.” Boston Parent II, 996 F.3d at 46.

Therefore, the new evidence is not of such a nature that it

would probably change the result were a new trial to be granted.

See González-Piña, 407 F.3d at 433; Karak, 288 F.3d at 19-20;

see also United States v. Armstrong, 517 U.S. 456, 465-69 (1996)

(requiring the plaintiff to prove both discriminatory purpose

and discriminatory effect).

2. Rule 60(b)(3)

Similarly, the Coalition fails both prongs of Rule

60(b)(3). See Anderson, 862 F.2d at 926. First, the Coalition

fails to prove “misconduct by clear and convincing evidence.”

See id. As discussed above, the wrong established by the

Coalition is not the “misconduct” contemplated by Rule 60(b)(3)

because it occurred during an external state statutory process.

See Anderson, 862 F.2d at 924 (implying that “misconduct” under

Rule 60(b)(3) concerns misconduct between the parties during the

course of litigation). To the extent that wrong misled this

Court, both parties are partially responsible for baking it into

the Joint Statement. Moreover, the wrong did not substantially

interfere with the Coalition’s “ability fully and fairly to

prepare for, and proceed at, trial.” See id. at 926. As

discussed above, the Coalition elected to forgo a theory of

liability based upon racial animus. In fact, the Coalition was

so confident that the Joint Statement would prove its

alternative theory of liability that it elected to forgo

discovery, despite evidence that the School Committee

Chairperson made racist statements and despite the Coalition’s

suspicions that Oliver-Davila and Rivera had prejudices.21 See

Tr. Status Conference 23:2-5 (“We don’t have to show racial

animus.”); id. 15:24–16:3, 16:13-17, 21:4-22:3; Joint Statement

¶¶ 48-68; Transcription Oct. 21, 2020 Text Messages 1-2. This

Court would have to blind itself to many of the Coalition’s

tactical decisions and representations on the record to conclude

that the wrong “precluded inquiry into a plausible theory of

liability, denied it access to evidence that could well have

been probative on an important issue, or closed off a

21 At trial, the Coalition demonstrated its suspicions

toward School Committee Member Rivera’s statement at meetings,

such as the need to “be explicit about racial equity,”

“need[ing] to figure out again how we could increase those

admissions rates, especially for Latinx and [B]lack students,”

Oct. 8 Tr. 184:17-185:3, the Plan being a “step in the right

direction” for “addressing racial and ethnic disparities in

educational achievement and to advance ethnic studies and racial

equity in the school district,” Oct. 21 Tr. 365:18-366:2, and

the Plan not going “far enough because [W]hite students continue

to benefit from thirty-two percent of the seats . . . .” Id.

368:5-14.

The Coalition demonstrated similar suspicions toward School

Committee Vice-Chairperson Oliver-Davila’s statements, such as

“I want to see those schools reflect the District. There’s no

excuse, you know, for why they shouldn’t reflect the District,

which has a larger Latino population and [B]lack African-

American population.” Oct. 8 Tr. 213:8-1. “I mean, we know

that [B]lack and Latino youth are underrepresented, and they

have been locked out of this opportunity. And for me, you know,

it’s just criminal that the percentages have not increased.”

Oct. 21 Tr. 397:19-398:2. “I think that all of our schools

should reflect the student body that we have. We should not --

it should not be acceptable to have schools that don’t represent

that, just not acceptable.” Id. 399:5-8.

potentially fruitful avenue of direct or cross examination.”

See Anderson, 862 F.2d at 924; Tr. Case-Stated Hr’g 10:15-19,

15:24–16:3, 16:13-17, 21:4-22:3. Accordingly, it is not

appropriate to give the Coalition a second bite at the apple to

recast its theory of liability as one that the Coalition knew

existed but elected not to argue, and as to which there was some

evidence that the Coalition elected not to utilize.

V. CONCLUSION

For the reasons discussed above, the motion under Rule

60(b) would be denied were this Court granted jurisdiction by

the First Circuit.22

This Court is well aware that this indicative ruling is

devoid of the valedictory tone of Boston Parent I, the withdrawn

opinion. Indeed, it will doubtless complicate the work of

devoted public officials and public-spirited citizens involved

in crafting appropriate admissions procedures for the Exam

Schools in the 2022-2023 school year. That can’t be helped.

The first duty of a trial judge is to find the facts fairly and

accurately.23

22 For the foregoing reasons, the motion would also be

denied as to count II, violation of Massachusetts General Law

chapter 76, section 5.

23 A NOTE TO BOSTON SCHOOL STUDENTS: Are you following this case?

Not a very edifying spectacle, is it? The Boston School

Committee is charged, under law, with providing each of you with

the finest education possible within the budget. In voting on

your Exam School Admissions plan, the then chair mocked some of

you, your parents, or your friends. Two of the then members

texted they “hated” you, your parents, or your friends. The

Public Meeting Law requires disclosure of officials’ discussions

of public matters. Instead, the lawyers who are sworn to uphold

the law and who should have enforced this law simply deleted the

comments. When found out, their trial lawyers first offered the

lamest of lame excuses. As you well know, saying that you

“hate” a group of people is not the same as saying that you

“love Kit Kats.” When you agree that a document is “true and

accurate” you are necessarily agreeing that it is “complete.”

And me? The trial judge? –- I am revealed as a Pollyanna,

wanting to believe better of people than was in fact the case,

something you probably knew all along.

You can do better than this.

With love and respect, you will.

We’re counting on you.

WILLIAM G. foung

JUDGE

of the

UNITED STATES?+

24 This is how my predecessor, Peleg Sprague (D. Mass. 1841-

1865), would sign official documents. Now that I’m a Senior

District Judge I adopt this format in honor of all the judicial

colleagues, state and federal, with whom I have had the

privilege to serve over the past 43 years.

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