# Comfort Ex Rel. Neumyer v. Lynn School Committee

> District Court, D. Massachusetts · June 6, 2003 · 263 F. Supp. 2d 209

URL: https://www.frixlaw.com/law-library/cases/2505495

## Case

- **Full name:** Samantha J. COMFORT, on Behalf of Her Minor Child and Friend, Elizabeth NEUMYER, Et Al., Plaintiffs, v. LYNN SCHOOL COMMITTEE, Et Al., Defendants, and Commonwealth of Massachusetts, Defendant-Intervenor; Todd Bollen, Et Al., Plaintiffs, v. Lynn School Committee, Et Al., Defendants
- **Court:** District Court, D. Massachusetts
- **Decided:** June 6, 2003
- **Citations:** 263 F. Supp. 2d 209; 2003 U.S. Dist. LEXIS 9486; 2003 WL 21299571
- **Precedential status:** Published
- **Opinion:** Opinion by Gertner
- **Judges:** Gertner
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

GERTNER, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION.213
II.
PROCEDURAL
HISTORY. lO r — ( (M
A.
The Comfort
Litigation. CP rH iM
1. Parties.
SO
t-H (M
2.
Preliminary Injunction ZO
(M
3.
Motions to
Dismiss_ I> N
B.
The Bollen
Litigation. t — 1 W
III. TRIAL.218
A.
Plaintiffs ’
Case.218
B. Defendants’Case_.219
1.
The Administrators:
. 219
2.
The Parents and
Students:.220
3.
Defendants’
Experts:.220
C. Plaintiffs’Rebuttal.221
IV.
FINDINGS OF
FACT.222
A.
The Racial Imbalance
Act.222
B.
Racial Imbalance in Lynn’s Public
Schools.224
1.
1977: The First
Warning.225
2.
1979: Washington, the First Magnet
School.. ■.225
3.
1980s: Profound Changes in
Lynn.225
4.
1986: A Series of Failed Voluntary
Plans.226
5.
1987-1988: Greater Imbalance; More
Accusations.226
6. 1988-1990: Drafting the Current Plan.227
C.
The Current Plan
.228
D.
Continuous
Monitoring.230
E.
A Current Snapshot of the Lynn School
District.230
1.
Residential Segregation and Geographical
Separation.230
2.
“White Flight” and Its Decline after Implementation of the Lynn
Plan.230
3.
Racial Balance or
Imbalance.:.231
4.
The Special Problem of
Poverty.232
5.
School Construction and
Renovation.232
6.
“Magnet”
Schools.232
F.
The Lynn Schools at
Present.■.232
1.
Observations by
Participants.233
*212
2.
Expert
Testimony. CO 04
a.
Dr. Orfield: Desegregation
Expert. 00 04
b.
Drs. Dovidio and Kitten: Social
Psychologists. CO <M
(1)
Intergroup Contact
Theory. CO 04
(2)
“Critical
Mass”. CO 04
(3)
Impact of Resegregation
. CO 04
c.
Nancy McArdle: Limitations Imposed by the Demographics in
Lynn. 00 CO 04
d.
Plaintiffs ’
Rebuttal. 05 CO 04
V.
LEGAL ANALYSIS
.
A.
Jurisdictional Issues
..
1.
Amendments to Prior Decisions (Comfort
Plaintiffs).
2.
Partial Motion to Dismiss (Bollen Plaintiffs)
.
a.
Claims for Injunctive and Declaratory
Relief.
b.
Nominal
Damages.
B.
Equal
Protection.
1.
Strict or Intermediate Scrutiny
?.
2.
Facial Challenge to the Racial Imbalance
Act.
3.
The Strict Scrutiny Standard
.
a.
Compelling State
Interest.
b.
Narrow
Tailoring.
(1)
Are the means necessary; are there adequate race-neutral
alternatives?. H
(2)
Is the policy proportional to the compelling interest
. H
(3)
What Is the Impact on Third
Parties?. CO
(4)
Miscellaneous Concerns: Deference to School Boards’ “Narrow
Tailoring. CO UD 04
4.
The Goals of the Plan
. iO ID 04
a.
Curricular Goals: “Promoting Racial and Ethnic Diversity, ” “Increasing Educational Opportunities for All Students and Improving the Quality of Education,” “Ensuring Safety”
to
ox ox
(1)
Are These Curricular Goals Compelling State Interests? ...
to
ox ox
(2)
Is the Plan Narrowly Tailored to These Compelling Interests?
. CO lO
(a)
Are the Plan’s Means Necessary to Achieve its Ends?
CO
(b)
Proportionality of the
Means. fc-
(c)
Minimal Burden on Third Parties; the Issue of Stigma
lO
(3)
Plaintiffs’Arguments Do Not Apply in
Lynn. 05 IO
(a)
a White/nonwhite Distinction Is
Appropriate. 05 io
(b)
Additional Resources Would Not Have Been Adequate to Accomplish the Curricular Goals; the Significance of “Critical
Mass”. to 05 O
b.
Remedying the Effects ofDe Facto Segregation: “Reducing Minority
Isolation”. to 05 ^
(1)
Is this Remedial Interest
Compelling?. to 05 4^-
(2)
Is the Lynn Plan Narrowly Tailored to this Compelling
Interest?. to 05 05
(3)
Race-Neutral Alternatives are not
Feasible. to 05 -3
c.
Interest (5): “Providing an Education to All Students that Satisfies Federal and State Constitutional Requirements”
05 CO CO
(1)
The Command and Promise of Brown v. Board of Education
. to 05 CO
(2)
State Constitutional
Requirements. to •<! l —
1
C.
Other Federal
Claims. to to
1.
Title
VI. to —0 to
2.
U2 U.S.C §
1981. to —0 to
3.
12 U.S.C. §§ 1985 , 1986
. to --O CO
D.
Article 111 of the Massachusetts Declaration of
Rights. to *-0 CO
*213
1.
Applicable Principles of Constitutional
Interpretation.274
2.
The Lynn Plan and the Purpose of Article
111.274
3.
SJC Interpretation of Similar
Language.276
4.
State Constitutional Harmony and Federal Constitutional
Doubt.277
YI. CONCLUSION.280
MEMORANDUM AND ORDER
I.
INTRODUCTION
The issues raised in this litigation are critically important, not just for the parties, but for the nation. This case and others like it around the country require courts to grapple with whether and how public school officials may implement race-conscious programs in order to fulfill the Constitution’s promise of the Equal Protection of the laws, a promise articulated with special force fifty years ago in
Brown v. Board of Education,
347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954).
Plaintiffs, parents of elementary school children in Lynn, Massachusetts, challenge their city’s school assignment plan (the “Lynn Plan”)
1
because it takes race into account in permitting children to transfer from their neighborhood schools to other schools within the district.
2
Since the implementation of the Lynn Plan entitles the Lynn Public Schools to certain additional aid from the Commonwealth of Massachusetts under the state’s Racial Imbalance Act (“RIA”),
3
the plaintiffs also challenge the state law on its face and as applied in this case. Both the Lynn Plan and the state laws under which it was enacted, they say, violate the Constitutions of the United States and Massachusetts, as well as various federal civil rights statutes. They petition the Court to invalidate the Lynn Plan and to enjoin, the defendants from employing racial classifications in student assignments and in the distribution of state aid. For the reasons set forth below, I DISMISS plaintiffs’ claims and enter JUDGMENT in favor of the defendants.
To the plaintiffs, the issues could not be simpler: Taking race into account in school transfers violates the Equal Protection Clause. They contend that it sends the wrong message to the children of Lynn, namely, that their race matters when, in fact, the Constitution requires color blindness. Plaintiffs concede that reducing racial isolation and educating students to be citizens in a multiracial nation are important goals. They also concede that Lynn has accomplished those goals and has vastly improved its schools since the Plan’s implementation. But they claim that neither these goals nor this record are sufficiently compelling under the Constitution to justify Lynn’s race-conscious school transfer policy.
To the defendants, the Lynn Plan not only complies with the Equal Protection Clause but is critical to maintaining that compliance. The Plan seeks to encourage
*214
learning and good citizenship in a racially diverse environment. The message it conveys to the students is that our society is heterogeneous, that racial harmony matters — a message that cannot be conveyed meaningfully in segregated schools. In order to teach that the “content of [one’s] character”
4
does not depend on color, a child must interact with children of other races, an interaction that necessarily challenges nascent stereotypes. Without meaningful social contact, talk of tolerance and cooperation is nothing but an abstraction. If the Lynn school transfer plan were eliminated, the elementary schools of Lynn would become more and more racially segregated, with a host of pernicious consequences.
While there has been a rising tide of litigation challenging the government’s use of racial preferences, both in and outside of the educational context, and while courts increasingly treat such programs with suspicion, it is not established — as the plaintiffs, not to mention many in the media, contend — that
any
government use of race for the purpose of promoting diversity is unconstitutional. The answer to the question “Can schools constitutionally use race in furtherance of education in a multiracial society?” is and has always been “It depends.” It depends upon the setting — for example, K-12 education,
5
in contrast to higher education or employment, raises very different issues requiring distinct legal analysis. And it depends upon the nature of the plan — its purposes, its flexibility, the level of coercion involved, its history, its administration.
On both axes — the setting and the nature of the plan — the Lynn Plan is different from race-conscious plans that have been successfully challenged. In constitutional parlance, the Lynn Plan passes muster even under the most stringent “strict scrutiny” test: It serves “compelling” state interests and is “narrowly tailored” to achieve them.
On the setting: Unlike cases involving law schools, undergraduate degree programs, or even elite “magnet” high schools, Lynn’s school transfer policies are not about admissions or rejections in a competitive environment where merit supposedly determines “winners” and “losers” in a zero-sum game. The fact that one child may transfer to a particular elementary school while another may not does not affect the quality of the educational experience for either. The parties agree that, under the Plan, all Lynn schools are not only comparable, but by 2003, equally successful.
Indeed, K-12 education involves a setting in which diversity has a different resonance than in any other. The goal of elementary education is, as the Supreme Court noted nearly fifty years ago, to foster good citizenship
6
— not, for example, to train skilled professionals or to engage in a commercial enterprise. And in the twenty-first century, good citizenship necessarily entails the ability to function in an ever more heterogeneous democracy.
On the Plan: The Plan that Lynn officials created, and that the state authorities approved, is minimally intrusive. It uses public funds for two critical public goals—
*215
to enable parents to choose integrated schools over segregated ones and to minimize racial imbalance across the school system. Since a racially diverse learning environment is essential for citizens-to-be, the Plan is a critical part of a comprehensive, districtwide plan to improve the quality of education for all Lynn’s children.
Unlike many of the school desegregation efforts that have roiled courts and legislatures in the years since
Brown ,
the Lynn Plan does not entail coercive assignments or forced busing; nor does it prefer one race over another. It allows every child to attend his or her neighborhood school. It also allows — and indeed encourages— elective transfers to schools outside the neighborhood, not to offer “choice” for its own sake, but to promote as much integration as possible while maintaining a neighborhood school system. Space permitting, transfers are approved unless they thwart the goal of reducing segregation in the city.
The history and track record of the Plan also set it apart. Before the Plan, Lynn’s neighborhood schools were troubled, overcrowded, and racially segregated. City officials were accused of exacerbating these problems by allowing white students to transfer out of minority schools, but not
vice versa.
And even when official discrimination ended, racial divisions persisted, with documented results: Schools that were largely populated by minority students received less funding, had high teacher turnover, and had lower test scores. Throughout the system, even in the largely white schools, racial tensions and divisions persisted. White enrollment was declining at an alarming rate — the phenomenon known as “white flight.”
After experimenting with race-neutral alternatives without success, Lynn officials sought the advice of experts, including social psychologists, educators, and even demographers. They concluded that the only way to improve the schools was to implement a comprehensive program that employed not only the race-conscious transfer policy at issue here, but a host of other innovations and resource infusions. Their goal was not simply to create a diverse learning environment, but also to support it and to ensure its success through curricular changes and materials, teacher and staff training, as well as improved facilities. They created a flexible plan, based on sophisticated data collection and analysis, that changes with the conditions in Lynn. Anyone denied the placement of his or her choice can appeal, as many of the plaintiffs in this case have done.
By 2002, when the trial of this case began, it was clear that the Lynn Plan played an important part in creating a thriving, diverse, and integrated urban school system, successful on all fronts and by all measures — where race relations are positive and racial and ethnic tensions are absent; where students from diverse backgrounds maintain friendships and are well represented in student government and extracurricular activities; where student attendance rates are uniformly high and test results reflect substantial gains, particularly in the schools located in Lynn’s urban center; and where there are extraordinarily low levels of student conflict, crime, and violence.
Nothing about the plaintiffs’ challenge or the government’s constitutional and statutory obligations obliges the Court to dismantle this Plan.
II.
PROCEDURAL HISTORY
Before me presently are two civil actions,
Comfort v. Lynn School Committee,
Civ. No. 99-11811, and
Bollen v. Lynn School Committee,
Civ. No. 01-10365.
*216
A.
The Comfort Litigation
1.
Parties
Samantha J. Comfort, Rhonda Campbell, Karen Agnew, Andrew and Cattibell DiGaetano, and Jean and William O’Neil, all parents of school children enrolled in the Lynn district, brought the
Comfort
action in 1999. The
Comfort
plaintiffs sued the Lynn School Committee, its individual members,
7
the Superintendent of Lynn Schools,
8
the City of Lynn and its Mayor. In December 1999 the Commonwealth of Massachusetts intervened as a party defendant for limited purposes.
9
The
Comfort
plaintiffs challenged the RIA and the Lynn Plan under the Equal Protection Clause of the United States Constitution, Article 111 of the Massachusetts Declaration of Rights, and several federal civil rights statutes, including 42 U.S.C. §§ 1981 , 1983, and 2000d. The RIA obliges the state Board of Education to address
de facto
segregation in Massachusetts’ public schools, either by funding voluntary efforts of individual school districts to integrate or, if necessary, by compelling them to adopt plans to improve racial balance in school populations.
Comfort v. Lynn School Comm.,
100 F.Supp.2d 57, 62 (D.Mass.2000). The Lynn Plan, as I describe more fully below, entails a neighborhood school system that permits transfers to out-of-neighborhood schools, unless such transfers would result in increased “racial isolation (too low a minority percentage) or racial imbalance (too high a minority percentage)” in a particular school.
Id.
at 61 .
2.
Preliminary Injunction
The
Comfort
plaintiffs sought a preliminary injunction to enjoin the district’s use of race in the Plan. I denied the motion, finding that the plaintiffs showed neither a likelihood of success on the merits nor irreparable harm.
Id.
at 59-60 . The First Circuit in
Wessmann v. Gittens,
160 F.3d 790 (1st Cir.1998), held that diversity “might be sufficiently compelling, in specific circumstances, to justify race-conscious actions.”
Id.
at 796 . The intensely fact-bound question of what educational circumstances would permit race-conscious actions was hardly amenable to resolution on the truncated record of a preliminary injunction.
Comfort,
100 F.Supp.2d at 66 . Nor could the
Comfort
plaintiffs demonstrate irreparable harm from the continuation of the Plan since, as described below, most were content with the schools their
*217
children were in and did not intend to seek further transfers.
Id.
at 63-64 .
The plaintiffs did not appeal the denial of their Motion for a Preliminary Injunction.
3.
Motions to Dismiss
The defendants moved to dismiss a number of the
Comfort
plaintiffs’ claims on the grounds that (1) the Constitution does not allow a state to be sued for damages, and (2) the plaintiffs lacked standing to sue because their children had been placed in the schools of their choice and no longer wished to transfer. With certain exceptions, I granted these motions.
I dismissed the federal statutory civil rights claims for damages against the Commonwealth on Eleventh Amendment grounds, since there was no question that the state may not be sued for damages.
Comfort v. Lynn School Comm.,
131 F.Supp.2d 253, 254 (D.Mass.2001).
10
I also held that the Eleventh Amendment barred declaratory relief against the Commonwealth.
Id.
at 256 .
See infra
Section V.A.1.
In a subsequent opinion,
Comfort v. Lynn School Comm.,
150 F.Supp.2d 285 (D.Mass.2001), I held that the plaintiffs lacked standing to seek injunctive relief against any of the defendants.
Id.
at 288 . The plaintiffs had children who were contentedly enrolled in schools of their choosing and could not “demonstrate either actual present harm or a likely danger of direct injury in the future.”
Id.
at 295-98 .
I held that the
Comfort
plaintiffs could pursue limited declaratory relief, as well as nominal damages.
Id.
at 298-99, 302. Specifically, I found that “prospective” declaratory relief was unavailable to the plaintiffs,
id.
at 302, but that they were nonetheless entitled to sue for a “retrospective” declaration that the Lynn Plan violated their legal rights. I now conclude that this finding was erroneous: a declaration, prospective or retrospective, is available only to plaintiffs that have standing because of a present case or controversy.
See also infra
Section V.A.1. In any event, the
Comfort
plaintiffs were free to litigate the substance of their claims for nominal damages.
Comfort,
150 F.Supp.2d at 298-99 .
Of the original
Comfort
plaintiffs, only Samantha Comfort remains in this case.
11
B.
The Bollen Litigation
Rather than amend the existing action, plaintiffs’ counsel added new parent plaintiffs in a separately filed lawsuit.
12
The
Bollen
plaintiffs, Todd and Laurie Bollen, Janeen Goodwin, Gina Leone, LeAnne Manuel, Michael and Meta Stinson, and Karen Tsaltas
13
sued the same defendants
*218
but added claims under 42 U.S.C. §§ 1985 and 1986 and listed members of the Massachusetts State Board of Education as defendants in their official capacities. Defendants move to dismiss a number of the
Bollen
plaintiffs’ claims on standing grounds. That motion [document # 174] is GRANTED IN PART AND DENIED IN PART.
14
See infra
Section V.A.2.a.
III.
TRIAL
The parties filed multiple summary judgment motions, all of which I denied. In June 2002, the parties presented evidence in an eleven-day bench trial.
A.
Plaintiffs’Case
Consistent with their view that the case was a simple one, plaintiffs offered one live witness, Meta Stinson, a Lynn parent and plaintiff; the deposition testimony of state Board of Education member Abigail Thernstrom; and several exhibits.
Ms. Stinson, who has three daughters currently attending Lynn schools, sought to have her daughter, Angelica Jackson, transferred from Breed Middle School to Pickering Middle School. That transfer was initially denied because Stinson had listed her daughter as “white” when she first registered her for school. Although Angelica’s father is white, Stinson herself is of mixed racial and ethnic background— French Canadian, Irish, Jewish, Barbadian, and African American. Upon learning of the denial, Stinson went to the Parent Information Center (“PIC”) and added an additional racial designation of “black,” but to no avail. Stinson conceded that although she was advised of her right to appeal, and indeed, even though that appeal would have been successful,
15
she elected not to do so. In the interim, the district announced that at the Sewell-Anderson school fifth graders could remain for the sixth grade, and Stinson was satisfied with that placement.
16
Significantly, Stinson testified that Angelica maintains a number of interracial friendships .with her classmates, has a positive attitude about race, and gets along well with students of other races, even though Stinson has not personally discussed matters of race with her daughter. Stinson conceded that it is an important component of Lynn’s educational mission to ensure that its students overcome racial stereotypes and acquire a better understanding of students with different racial backgrounds.
The plaintiffs also introduced the deposition testimony of Abigail Thernstrom, a member of the Massachusetts Board of Education. Thernstrom, though not offered as an expert, took issue with the views of
*219
certain school desegregation experts — including Dr. Gary Orfield, a nationally renowned expert who testified in the defendants’ case. She challenged Orfield’s view that America’s schools are growing increasingly racially segregated principally because she did not believe that “[t]he dividing line in America” is “between whites and nonwhites.”
17
Deposition of Abigail Thernstrom (“Thernstrom Deposition”), Oct. 9, 2001, at 22.
Although a member of the 'Board of Education and charged with enforcing the RIA, Thernstrom opposed the Act in principle. She conceded that she could not speak with authority on the law since she lacked day-to-day familiarity with its terms.
18
Moreover, she acknowledged that she had no personal knowledge or experience of specific conditions in Lynn.
Finally, plaintiffs offered exhibits that pertained to the operation of the Lynn Plan and RIA and the extent to which racial categories are used in making transfer decisions.
B.
Defendants’Case
Defendants countered with ten witnesses, five of whom were district administrators and educators with twenty to thirty years’ experience in the Lynn system variously as students, teachers, and administrators. Significantly, these witnesses were in a position to describe the troubled state of Lynn schools before the Lynn Plan was implemented, and to attest to its impact afterward. They described pre-Plan efforts to improve the schools, all to no avail. And they lauded the current state of the school system under the Lynn Plan and the substantial improvements it has effected. Defendants also offered the testimony of a Lynn parent and a student, who described the actual workings of the system in the schools with which they were familiar.
Finally, defendants offered the testimony of a number of nationally known experts. The experts based their testimony on their personal observations of Lynn schools, a survey of Lynn students, interviews with teachers and administrators and other Lynn-specific data. The experts affirmed the importance of Lynn’s race-conscious transfer policy to the district’s educational objectives.
1.
The Administrators:
Janet Birchenough has been Director of Equity and Program Support for the Lynn public schools since January 1992. Birche-nough managed and supervised Lynn’s Parent Information Center, the school district’s central registration office, which oversees the day-to-day implementation of the Lynn Plan. In addition, the PIC gathers the data that Lynn officials use to certify that the Plan remains precisely tailored to accomplish the Plan’s goals — data about the school system, its schools, its students, simulations about demographic patterns in. Lynn, and the likely composition of the schools if the Plan were to be eliminated.
19
Moreover, Birchenough tes
*220
tified from the perspective of nearly forty years’ experience in the Lynn schools — as an art teacher working in eleven of the district’s eighteen elementary schools and ultimately as an administrator. I found her testimony credible and relevant, and her knowledge of the system — of individual schools and the history of the Plan-encyclopedic.
Patricia Barton, currently the principal of the Fecteau-Leary Middle School, also has 30 years of professional experience in the Lynn system. She testified credibly about her experience as a student attending racially isolated schools, as a teacher in a segregated system, and as an administrator who presided over that system’s transformation under the Lynn Plan.
Nicholas Kostan, the current Superintendent of the Lynn School Department, also testified with considerable authority about the changes he has seen. He has been a teacher and a professional administrator in the Lynn school system for 31 years, first as a principal of the Breed Middle School. He serves as liaison between the Lynn School Committee and the Lynn School Department and at the same time oversees the PIC and works with teachers, parents, students, and the community.
Patricia Mallett is currently a teacher in the media center at the Briekett school, having taught in Lynn schools for twenty-six years. During the transition to magnet school programming, she was the system’s Magnet School Facilitator. Mallett testified from that unique perspective on the race-neutral alternatives that were tried and considered, as well as the success of the current Plan.
2.
The Parents and Students:
Karen Horner is an African American parent of two current Lynn public school students. She is active in and serves as the Acting Secretary for the Lynn branch of the NAACP. She moved from Boston to avoid living in a segregated neighborhood and to provide her children with an integrated education. Horner’s children, Kyle, age 17, and Erroll, age 14, have attended neighborhood and out-of-neighborhood schools in Lynn, and she spoke movingly about the quality of her children’s experiences.
Nicole Oak is a white student who had just graduated from the Lynn school system in June 2002 and described her educational experience there.
3.
Defendants ’ Experts:
Dr. Gary Orfield is a nationally recognized political scientist and one of the leading national experts in the field of education and equal educational opportunity, which encompasses issues such as racial segregation, racial isolation, desegregation, housing and racial change, and their effects on students in primary, secondary, and higher education.
20
He is a professor
*221
of education and social policy at Harvard University, where he is co-director of-the Harvard Project in School Desegregation. The Project in school desegregation- is an interdisciplinary research center that commissions research across the nation on issues of civil rights policy, racial change, and racial inequality. Significantly, Dr. Orfield based his testimony not only on his own research, experience, and studies from other jurisdictions but also on an extensive amount of data and information about Lynn and its public schools in particular. Orfield put the full resources of the Harvard Civil Rights Project (“Harvard Project”) (a separate entity from the Project-in school desegregation with a broader research focus) into his study of Lynn and gathered information firsthand during a site visit as well.
Nancy McArdle testified as an expert on the demographic and housing trends in Lynn. She was a researcher with the Joint Center for Housing Studies at Harvard for fourteen years. McArdle has researched, consulted, and published in the field of housing policy, with specific attention to demographic, population, and immigration trends. Like Dr. Orfield, McArdle relied on a wide variety of data sources specific to Lynn.
Dr. Melanie Killen, a developmental and education psychologist, testified on how racial segregation and racial diversity impact the social and moral development of children and adolescents. She is a Professor of Human Development in the College of Education at the University of Maryland, and she presently serves as Associate Director for the Center for Children, Relationships and Culture, a research department with faculty from developmental psychology and education psychology. Dr. Killen has focused specifically on how children and adolescents evaluate exclusion based on race and ethnicity, as well as on intergroup relationships and conflict resolution across lines of ethnicity. She, too, based her expert testimony oh a series of direct observations and interviews on site in the Lynn Public Schools, as well as her review of the Harvard data.
21
Finally, Dr. John Francis Dovidio testified as a nationally renowned social psychologist with a particular interest in the subdiscipline of intergroup relations and the development of racist attitudes. Dr. Dovidio is presently the Charles A. Dana Professor of Psychology and Dean of Faculty and Provost at Colgate University. His research has focused on social psychology and race relations among elementary school children, secondary school students, adolescents, and college students. He testified about how and when stereotypes are formed and what strategies can be deployed to prevent their formation. He offered his expert opinion based on personal visits and the Harvard data.
C.
Plaintiffs
’
Rebuttal
Plaintiffs offered one witness in rebuttal, Dr. Christine Rossell, a professor of political science at Boston University. Dr. Ros-sell’s field - of interest is the comparative efficacy of different approaches to school integration.
While Dr. Rossell had been a paid consultant to Lynn in the development of its original school desegregation plan in 1987 (when she supported an earlier, and more intrusive iteration of the Plan), at the time
*222
of her testimony, she had no current knowledge of the Plan. She based her conclusions on her research involving other school systems and what she had remembered of that early draft of the Lynn Plan from fifteen years earlier.
IV.
FINDINGS OF FACT
A.
The Racial Imbalance Act
In 1965, Massachusetts became the first state in the nation to enact a law addressing racial imbalance in the public schools.
22
The Racial Imbalance Act (“RIA”), Mass. St.1965, c. 641, §§ 1
et seq.
(codified at Mass: Gen. Laws c. 71 §§ 37C, 37D, and c. 15 §§ II, 1J, IK), had its origin in a legislative finding that racial imbalance in Massachusetts public schools was so dramatic as to reach a crisis level, with damaging effects on the students. The Massachusetts Board of Education’s “Kiernan Report” not only concluded that “[r]acial imbalance represents a serious conflict with the American creed of equal opportunity,”
School Comm. v. Bd. of Education,
366 Mass. 315 , 318 n. 5, 319 N.E.2d 427 (1974) (quoting the Kiernan Report) (internal quotation marks omitted), it also underscored the extraordinary impact of racial imbalance throughout the school system. Racial imbalance was found to encourage prejudice among students of all races, inadequately prepare students for life in multiracial communities, and produce inferior educational facilities for African Americans.
23
Id.
As a result, the legislature found that racial imbalance in state public schools posed an “emergency” situation,
see School Comm. v. Bd. of Education,
352 Mass. 693, 698 , 227 N.E.2d 729 (1967), and enacted the RIA to correct it. Section 1 of the RIA provides:
It is hereby declared the policy of the commonwealth to encourage all school committees to adopt as educational objectives the promotion of racial balance and the correction of existing racial imbalance in the public schools.
Mass. St.1965, c. 641, § 1 (codified with amendments at Mass. Gen. Laws c. 71 § 37C). Toward this end, the RIA encour
ages
— but
does not require
— all schools to devise “plans” to promote racial balance. The only instance in which the law imposes a
duty
upon a school committee to prepare such a plan is when the school committee has proven unable to satisfy requests from
*223
nonwhite students attending racially isolated (predominantly minority) schools to transfer to racially imbalanced (predominantly white) schools.
24
Mass. Gen. Laws, c. 71, § 37D;
see also School Comm.,
366 Mass. at 322-23 , 319 N.E.2d 427 .
The state Board of Education
25
is to assist in the development of any plan, voluntary or mandatory, and must approve it prior to implementation. Mass. Gen. Laws c. 76, § 12A. The plan must set forth in detail the district’s proposed changes in school attendance zones; any possible alteration to or expansion of existing facilities, as well as any planned addition of new school buildings; and any “other measures” that the district anticipates implementing to ensure space for students seeking “desegregative transfers,”
i.e.,
transfers that will reduce racial imbalance. Mass. Gen. Laws c. 71, § 37D.
26
Under the RIA, the Commissioner of Education has the power to withhold school construction funds and other state aid if a school district does not act within a reasonable time to reduce an identified racial imbalance in its system. Mass. Gen. Laws c. 15, § II, ¶2;
see also School Comm.,
366 Mass. at 323 , 319 N.E.2d 427 . A 1974 amendment provided affirmative financial rewards to school districts that undertake voluntary plans. Mass. St.1974, c. 636, § 1. Such incentives included 100% state reimbursement of certain student transportation costs, substantial funding of the costs of establishing magnet schools, and payments of $500 to the district for each student transfer that reduces racial imbalance or isolation. Mass. Gen. Laws c.
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15, § II, ¶¶ 3, 4.
27
The city of Lynn submits yearly “entitlement reports” certifying the number of desegregative student transfers that occurred in its school system in the prior school year; the state responds with aid monies based on the numbers Lynn provides.
From 1974 until 1984, the Act authorized state reimbursement for up to 75% of the cost of approved school renovation or construction directed at reducing racial imbalance in school populations. By 1984, the rate of reimbursement was increased to 90%, Mass. St.1984, c. 394, § 5, where it remained until 2001, when the legislature eliminated the reimbursement, Mass. St.2000, c. 159, § 36.
28
In Lynn’s case, state assistance provided under the RIA supplied 90% of the funding for school renovations and construction that the city outlined in its 1990 voluntary plan.
B.
Racial Imbalance in Lynn’s Public Schools
In the nearly ten years preceding the adoption of the Lynn Plan, Lynn faced two serious problems — substantial overcrowding of its neighborhood schools and significant levels of racial imbalance. Significantly, the state attributed the latter not only to growing residential segregation within the community, but also to the school district’s
own
policies and practices. Indeed, correspondence during this period suggests that state officials felt Lynn’s actions and inactions made the city vulnerable to state and/or federal lawsuits alleging
de jure
segregation.
The emergence of increasingly racially identifiable schools in Lynn created a crisis. A number of witnesses told of conditions not unlike those targeted in the Kier-nan Report. Janet Birchenough observed racial polarization and severe resource inequalities between the predominantly minority and identifiably white schools where she taught. These inequalities were apparent on all fronts, including building facilities, learning materials, and teacher commitment. The predominantly white schools were well-maintained and well-managed; parents were deeply involved in their children’s education. The minority schools, in contrast, limped along with crowded classes and outdated materials. There were discipline problems: parents and administrators alike were apathetic; students were angry, felt abandoned, and often lashed out. Attendance rates were low; achievement at all levels suffered. Class sizes were larger in identifiably minority schools than in identifiably white schools.
Wherever possible, teachers with seniority — who had priority in choosing new openings — transferred out of minority schools into the identifiably white, wealthier schools, where the school climate was more conducive to learning and teaching. There was no professional training for teachers to prepare them for teaching a diverse student population, and little or no curricular support.
Birchenough observed that the racially charged and intolerant atmosphere in the schools led to cross-racial conflict, the students’ frequent resort to racial slurs, as well as tendencies to self-segregate by race at recess and in cafeterias and classrooms. This was so in all of Lynn’s
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schools, in the better-off, predominantly white schools that harbored small minority populations as well as in the more racially mixed schools. Birchenough’s observations were confirmed by other participants, including Principal Barton, Superintendent Kostan, and Ms. Mallett.
1.
1977: The First Warning
In 1977, the Board of Education first confronted Lynn about the racial imbalance in its schools. Specifically, the Washington Community School (“Washington”), one of Lynn’s elementary schools, was found to have a 57.2% minority student population, when the overall district was only 9% minority. The Board of Education attributed the concentration of minority students at Washington in part to residential patterns, but more significantly to the district’s school assignments, which the state roundly condemned. Administrators regularly allowed minority transfers into the already racially isolated Washington Community School and assigned
all
bilingual classes to that school’s annex.
Over the next decade the Board of Education regularly warned Lynn that its action and inaction exposed it to charges of
de jure
segregation. In contrast to other cities across the nation, however, by implementing its voluntary Plan, Lynn officials ultimately headed off court involvement and dramatically changed its schools for the better.
2.
1979: Washington, the First Magnet School
In 1979 a magnet school program was established at the Washington school. The state offered supplemental funding to the Washington magnet school program, conditioned on the district’s adoption of a voluntary transfer policy that would attract white students. Lynn accepted this invitation and adopted a voluntary transfer policy.
In April 1980 the district announced a more comprehensive plan. Neighborhood schools remained the centerpiece of the plan with these exceptions: White students from schools that were 70% or more white had the right to transfer to the Washington school, whereas white students already enrolled in that school would not be permitted to transfer out of it. Nonwhite students in the Washington district and elsewhere had the right to transfer to any school that was more than 70% white, but white students were not permitted to make such transfers.
Again, there was official manipulation of the policy. Officials were accused of bending the rules for white parents. Administrators regularly approved the requests of white parents to transfer their children out of predominantly minority neighborhood schools. For example, in the 1987-1988 school year 107 out-of-neighborhood white students were attending the 93% white Aborn high school as a result of transfers. Of these 107 students, more than half of them resided in the attendance zone that fed into the Ingalls high school, which was located in a minority neighborhood. Lynn officials conceded that these transfers were in blatant violation of the school assignment policy in place at the time.
29
3.1980s: Profound Changes in Lynn
Between 1980 and 2000 racial and ethnic minorities moved into Lynn in considera
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ble numbers, transforming a city that was 93% white to 63% white. Defense expert Nancy McArdle, citing census data, noted that the child population of Lynn went from 90% white to more than half minority during this period. More and more, Lynn’s residents began to self-sort into neighborhoods by race.
The 1980 Census found that the northern and western areas of Lynn were 90% white, while a belt of moderately integrated neighborhoods surrounded a minority enclave in south central Lynn. By the end of the decade, these trends intensified.
The schools, like Lynn’s neighborhoods, likewise grew more and more racially polarized. While the magnet program at Washington — the only such program in Lynn in the early 1980s — saw minor changes in minority concentration, dropping from well above 50% to 44% during this period, the minority share in other minority-identifiable elementary schools in Lynn dramatically increased.
The school system was troubled, with high absentee rates, racial tension and conflict, and chronically low test scores. Racial polarization in Lynn’s neighborhoods and schools continued into the mid-1980s. By 1984, notwithstanding the city’s demographics, then roughly 84% white and 17% minority, four of Lynn’s seventeen elementary schools had minority populations of between 35% and 50%. The remaining schools were overwhelmingly white and remained so until 1987, even as the minority student population in Lynn climbed to 26% over the intervening three years.
30
4.
1986: A Seríes of Failed Voluntary Plans
The state Department of Education urged Lynn to adopt a long-term, comprehensive plan to defeat racial isolation and imbalance. Lynn formulated such a plan in April 1986 but elected not to seek state approval (as the RIA requires). As a result, grant monies offered by the state for Lynn’s “desegregation coordinator” were suspended mid-year, due to Lynn’s stalled progress. The district ultimately drafted a second voluntary plan, which the state approved in September 1986 but Lynn never implemented.
5.
1987-1988: Greater Imbalance; More Accusations
By 1987 four elementary schools had become minority dominated, four other elementary schools were at least 95% white, and three more were hovering at around 90% white student enrollment.
In April 1987, the Lynn School Committee developed a third voluntary plan, which the Board of Education approved. Lynn would launch and develop five schools, designated “magnet” schools, in the first year of implementation, with five more to follow in the next year. With the state’s approval would come additional funds to support the necessary construction and renovation of facilities to improve these schools. The plan also approved a redrawing of elementary and junior high school attendance zones to assist with the desegregative effort.
However, certain aspects of the plan, slated for implementation in September of 1987, were delayed. The district did not
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implement its proposed class-size máxi-mums, and the school year began with the elementary and middle school attendance zones unchanged.
Significantly, school officials continued to approve improper segregative transfers. By January 1988, state officials made their accusations more pointed than ever before. In a letter to Lynn’s Superintendent they noted:
It appears that the condition of minority identifiable schools in Lynn is directly [attributable to past actions and inac-tions by Lynn School officials. The most significant finding is that the School Committee failed to enforce its own controlled transfer policy and has admitted to that fact.
Again, the message was clear: Lynn’s “actions and inactions,” its failure to enforce its own plan in an evenhanded way, and its own admissions of these facts made the district vulnerable to charges of
de jure
segregation. The state withdrew its approval of Lynn’s Plan.
6.
1988-1990: Drafting the Current Plan
In its February 1988 Plan, Lynn officials admitted that official actions had exacerbated racial isolation and imbalance. They redoubled their efforts, this time soliciting feedback from the community, which — no doubt because of Lynn’s history — eyed Lynn’s proposed actions warily. A letter from Christine Rossell — who consulted for Lynn during this period but now serves as the
’plaintiffs’
expert in this case — was more sanguine, observing that Lynn stood “an excellent chance of desegregating its six minority schools and minority isolated schools.”
A key point of contention was student assignment. The state Department of Education was concerned that Lynn’s use of voluntary transfers and magnet programs would not be sufficient to reverse the decades-long trends toward racial imbalance, a trend exacerbated by official action.
31
Lynn, however, remained committed to a voluntary transfer plan and refused to assent to “restricted choice” or “controlled choice” regimes that the Department was recommending.
Finally, in September 1989, Lynn devised yet another amended plan, which the state accepted. This new Plan, the terms of which I will set forth in detail below, guaranteed that every student could attend his or her neighborhood school. In addition, a student could transfer from the neighborhood school to another school
as long as
the transfer improved the racial balance in either the neighborhood or the destination school. The Plan gave assurances that there would be space for such transfers in new and renovated schools.
In February 1990 the Plan was amended to allow for “neutral transfers,” that is, transfers that would neither improve nor adversely affect racial balance in the schools that were party to the transfer. The state approved this amendment.
A 1999 amendment to the Plan added more flexibility to the transfer system, instituting an appeals process for transfer denials and certain exemptions for bi- and multiracial students
32
and cases'of ex
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treme hardship.
33
This Plan is the one that the plaintiffs challenge.
C.
The Current Plan
It is important to note at the outset that under the Lynn Plan every student in Lynn is entitled to attend the school in his or her neighborhood.
34
Students have options beyond their neighborhood schools if their proposed transfers are “desegrega-
tive”
— ie., when they contribute to the districtwide integration effort. Additional “neutral transfers” are allowable as well, provided that they are approved by the school district’s PIC and the sending and receiving principals.
35
Whether or not a transfer is desegrega-tive or neutral turns on the interplay of three factors: the racial composition of the sending and receiving schools and the student’s race. Schools are classified as either “racially balanced,” “racially isolated,” or “racially imbalanced.” An elementary school is considered “racially balanced” if its minority
36
population falls within 4-/15% of the overall percentage of minority students in the Lynn district.
37
For the middle and high schools racial balance is +/10% of the district population. When the proportion of minority students in a school exceeds the range of racial balance, that school is classified as “racially imbalanced.” Likewise, a school in which the number of white students surpasses the outer bounds of racial balance is “racially isolated.”
For example, Lynn’s student population for the 2001-2002 school year was 42% white and 58% nonwhite. By the Lynn Plan’s definitions, then, an elementary school that enrolled between 43% and 73% minority students would qualify as racially balanced. Middle and high schools required a tighter fit of between 48% and 68% minority students. Elementary schools with more than 73% minority students in the 2001-2002 school year — and middle or high schools with more than 68% minority students — were designated as racially imbalanced. Conversely, an elementary school that was fewer than 43% minority or a middle or high school that was fewer than 48% minority would be considered “racially isolated.”
A proposed transfer is desegregative— always allowed, space permitting
38
— when it would improve the racial balance of the sending
or
the receiving school. For example, a minority student may always transfer
out of
a racially imbalanced school (“School A”) or
into
a racially isolated school (“School B”). Conversely, a white student may always transfer out of the
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racially isolated School B and into the racially imbalanced School A. A transfer is segregative, and never allowed, when it would exacerbate an already existing condition of racial imbalance in the sending or receiving school. A requested transfer that is neither desegregative nor segre-gative is “neutral” and conditionally allowable, as I explained above.
At a district level, white and nonwhite students are equally subject to the Plan; sometimes a white student may be denied a transfer, sometimes a nonwhite student. But at the individual level, there are times when, all else being equal, a student’s ability to transfer turns on his or her race. To continue the above example, with School A as a racially imbalanced school and School B as a racially isolated school: A student who seeks a transfer from School A to School B may do so (again, space permitting) if he or she is a minority student. A white student requesting the same transfer, however, would not be eligible, unless she or he qualified for certain exceptions.
Such a student, denied a transfer because it would exacerbate racial imbalance in the system, may appeal the decision to the PIC’s Director, who may occasionally refer the matter to or consult with the district Superintendent. The appeals process is not an empty formality. The district will override transfer denials on appeal when the denial would result in siblings attending different schools or when parents can make a showing of medical, safety, or other extreme hardship.
Moreover, the PIC goes out of its way to make the appeals process accessible to everyone. It assists parents in preparing documentation required to establish hardship. It then arranges a meeting with the parents to discuss the student’s options. If conditions at the destination school preclude the transfer, the PIC will present the student with alternative destination schools. Finally, the unique considerations posed by bi- and multiracial students have led Lynn to amend its Plan to permit parents to appeal the district’s race designations directly to the Superintendent. Significantly, a number of the plaintiffs in this case have successfully invoked the appeals process.
The Plan’s drafters also recognized that integration involves more than race-conscious school assignment policies, more than simply the mixing of students of different racial backgrounds. Thus, the Plan included substantial curricular innovations designed to ensure positive racial interaction; training and development of staff to address the challenges of teaching children of diverse backgrounds; programs that would create opportunities for positive interaction among students, school personnel and parents from different racial and ethnic groups,' which are not normally found within regular school programming; integrated leadership opportunities and training to give students the skills necessary to deal effectively with racial tension and conflict,
etc.
In addition, the Plan’s drafters acknowledged that the improvements it sought could not be sustained in the long term unless all the schools were made attractive to all Lynn parents, whatever their race. Thus, the Plan included an ambitious construction program, largely funded by the state, to ensure sufficient space for out-of-neighborhood transfers. It involved the development and standardization of curriculum so that there would be equal instructional opportunities across Lynn; development of indicators of performance and achievement for individual schools, programs and students; development of measures designed to improve school attendance; and creation of business/college
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partnerships with the schools to improve the quality of instruction.
D.
Continuous Monitoring
The district’s PIC oversees the ongoing implementation of the Lynn Plan. In effect, it is the vehicle through which the Plan administrators certify that the Plan is narrowly tailored to meet its goals.
Chief among the PIC’s responsibilities is the processing of all admissions and re-admissions to the district and all transfers within the school system. It assesses students for special needs and maintains an ongoing database of each student’s transfer history. That database, which features thirty-five data fields per student, enables Birchenough to monitor class size and enrollment by school, as well as the racial composition of individual schools and the district more generally.
The PIC prepares monthly reports tracking movements of students into and out of the district, as well as between the schools, to ascertain how many of these transfers qualify as desegregative. It provides regular reports to the state Department of Education on the progress and status of the district’s magnet school programs, as well as the number of desegre-gative transfers.
39
Significantly, the data that the PIC gathers enable it to continuously monitor the need for the Plan. The PIC tracks the patterns of Lynn residential segregation. It attempts to predict the choices of white or minority parents if there were no restrictions on transfers. Based on that data, Birchenough (and the defendants’ experts) predicted that in a pure choice model, white parents would seek transfers to predominately white schools,- and minority parents to minority schools.
40
E.
A Current Snapshot of the Lynn School District
1.
Residential Segregation and Geographical Separation
According to McArdle’s expert testimony, recent censuses and the data kept by the Lynn PIC reveal that Lynn remains geographically segregated by race. In the 1990s white populations continued to move to the northern — and particularly northwestern — areas of Lynn, while the concentration of racial minorities in south central Lynn expanded to consume all of southern Lynn and more of central Lynn, with a transition zone of racially mixed neighborhoods between these two enclaves. In addition, the elementary schools located in the predominantly white sections of Lynn and the elementary schools in the predominantly minority sections are separated by significant distances. The travel time between the two areas, whether by private car or public transportation, is not insubstantial.
2.
“White Flight” and Its Decline after Implementation of the Lynn Plan
In 1979, before the Lynn Plan’s implementation, when the city’s schools were the most polarized, statistics show that the overall number of students in the Lynn
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public schools began to decline — a direct result of the decline in white enrollment, what has been described as “white flight.”
Significantly, after the Plan’s implementation, this trend began to reverse. The number of students now enrolled in Lynn schools is similar to enrollment in the 1970s, just before the most significant increase in the number of minority students enrolled in the school system. While the percentage of Lynn students attending private and parochial schools rose as high as 17.4% in 1987, it has since declined dramatically to a low of 10% in 2001. Of the 15,444 students attending Lynn public schools in the 2001-2002 school year, 42% were white and 58% were nonwhite (15% African American, 29% Hispanic, and 14% Asian).
3.
Racial Balance or Imbalance
There are presently twenty-five schools in the Lynn system — eighteen elementary schools, four middle schools, and three high schools.
41
Under the Lynn Plan, “racially balanced” elementary schools in 2001-2002 had minority populations of between 43% and 73%; nine schools qualified.
42
Six .schools were racially isolated.
43
Four elementary schools were “racially imbalanced.”
44
Under the Plan’s stricter requirements for the middle and high schools, namely, a racial makeup falling within +/10% of the districtwide breakdowns, which in 2001-2002 translated into 48% and 68% minority enrollment to qualify as racially balanced, only one middle school of the four was racially balanced, while all three high schools met the test. The Breed middle school (49%) was racially balanced, while the Marshall (72%) and Fecteau-Leary (81%) middle schools were racially imbalanced, and Pickering (33%) was racially isolated. Lynn’s high schools were all racially balanced with the following percentages: Lynn Classical (51%), English (51%) and Lynn Vocational Technical (63%).
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4.
The Special Problem of Poverty
Many of the city’s resident families live at or near the poverty level, a situation that greatly complicates any school’s educational mission. In the 2001-2002 school year, 65% of all Lynn students received free or reduced-cost lunch (eligibility for which is based on family income), including 40.7% of white students, 72% of the African American students, and 79.8% of the Asian American students.
45
Fourteen of Lynn’s eighteen elementary schools enroll a sufficient number of impoverished students to qualify for federal Title I assistance. Significantly, the four that do not receive assistance are the four most identifiably white schools.
5.
School Construction and Renovation
Since the Plan was implemented, Lynn has been able to renovate and expand six of its elementary schools, for which the state provided 90% of the funding. Lynn is currently planning another phase of construction that would include renovations to existing facilities and the construction of two new middle schools and two or three elementary schools. Elimination of Lynn’s restrictions on segregative transfers would render this project ineligible for 90% funding under the RIA.
6.
“Magnet” Schools
Of the ten magnet programs envisioned in early iterations of the Plan, only seven were ultimately developed. The district added two more programs in September 1999. However, the term “magnet school” in this setting needs to be clarified. It does not connote a competitive admissions process or the provision of a more elite education.
See infra
note 72.
Lynn’s “magnets” differ from its other schools only insofar as they have adopted certain “educational themes.” The magnet themes currently include “Brickett by the Sea,” “Reading and Writing Literary and Whole Language,” “Technology and Language/Citizenship Skills for the Future,” “Life Science,” “Rainbow Connection Society,” “User Friendly Society,” “Pickering After School Support,” and “Healthy Schools Make Healthy Communities.”
While the schools offer and provide varying academic programs, which are designed to draw students from other neighborhoods elsewhere in Lynn in order to further the integration effort, the parties stipulate that “the education provided ... in each of the elementary, middle, and high schools in Lynn is comparable in quality, resources, and curriculum.”
F.
The Lynn Schools at Present
By all accounts, and by all measures, since the implementation of the Plan the Lynn schools have become a success story. That success was recounted in the moving testimony of the participants, in expert testimony, and in the data.
The defendants have identified certain compelling interests to justify the Plan: First, to prevent racial isolation; second, to promote racial and ethnic diversity; third, to increase educational opportunities for all students and to improve the quality of education
46
; fourth, to provide a suffi
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cient education by state constitutional standards; fifth, to ensure the safety of Lynn’s public school students; and sixth, to implement the clear command of -the Supreme Court’s decision in
Brown v. Board of Education.
1.
Observations by Participants
Since the Plan has been in place, Lynn school superintendent Nicholas Rostan has observed a “steady progression” of improvement in the schools. Racial tensions have subsided, attendance and test scores have increased, and suspensions of students have declined. Indeed, according to Kostan, Lynn’s school attendance rates are remarkable for an urban school district. He attributed this attendance record to the Lynn Plan, which he believes has cultivated feelings of comfort and safety among Lynn students that make them want to go to school. He has also noticed that students no longer self-segregate by race in their social interactions, which he believes is also a result of the Lynn Plan.
47
Patricia Mallett, a teacher at the Brick-ett elementary school, testified that since the Lynn Plan’s implementation, she has witnessed a stunning improvement in student race relations at Brickett. Prior to the Plan, she observed self-segregation and racial tension in Brickett, a predominantly white school. Now, students of different races seek out one another and form friendships, a result she attributes to the Plan’s fostering of cross-racial interaction in the crucial formative years.
48
2.
Expert Testimony
The expert testimony in this case corroborated the moving observations of the
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teachers, students, and administrators who testified on behalf of the district. McArdle and Drs. Orfield, Dovidio, and Killen together gave an internally consistent, multidisciplinary presentation that convincingly explained how essential the Lynn Plan’s use of race in school assignment was to the school district’s renaissance.
Broadly speaking, the expert presentation was compelling for three reasons:
First, Lynn’s experts based their opinions on their considerable expertise and a tremendous amount of data — the lion’s share of it personally obtained — specific to the conditions in Lynn. Nancy McAr-dle, the defendants’ demographics expert, performed a comprehensive study of demographic trends in Lynn. School desegregation expert Dr. Gary Orfield put the resources of the prestigious Harvard Civil Rights Project into his study of Lynn. Dr. Orfield oversaw the administration of the Harvard Project’s standard data-gathering questionnaire (“Diversity Assessment Questionnaire”) to students at Lynn Classical High School. The 72-question survey, jointly designed by leading experts on school desegregation,
49
is used to compare the success of desegregation efforts nationwide. Dr. Orfield followed up his survey with a visit to Lynn Classical High School in January 2002, where he met and spoke extensively with a number of leaders of student organizations.
In January and February 2002 Dr. Do-vidio visited the Lynn school system, conducted formal and informal interviews with teachers and administrators, reviewed what he called “archival evidence” — newspapers, yearbooks, student-made decorations, school mission statements — and observed the students in the classrooms, between classes, at lunch, and before and after school. Dr. Killen also visited the Lynn system independently of Dr. Dovidio. Dr. Killen sought out schools with a range of racial homogeneity and heterogeneity. With the students she deployed observational and interview methodologies standard in her field of social psychology. Dr. Killen then supplemented her findings with more formal interviews with teachers and administrators. Drs. Dovidio and Killen also reviewed Lynn student responses to the Harvard questionnaires.
Second, the experts looked at the data that they gathered from the distinct methodological perspectives of their fields of expertise. Dr. Orfield, a desegregation expert, considered the whole picture — the survey data and his own observations as well as those of the other experts — and situated Lynn’s experience in his broader experience with the many school systems he had studied. Drs. Killen and Dovidio, social psychologists, viewed the data through the lens of their expertise: inter-group contact and racial stereotyping. McArdle, the demographer, analyzed data about residential and school segregation.
Third, the defense experts were nationally renowned experts who could cite with authority the studies in their field and who used accepted methodologies and based them on opinions published findings in peer-reviewed journals. I found each of them to be credible and extremely persuasive.
a.
Dr. Orfield: Desegregation Expert
Under Dr. Orfield’s supervision, the Harvard Project analyzed the survey returns and concluded that Lynn is
a school district where all groups of students have experienced ability to
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work together, to share issues, to discuss across racial and ethnic lines, feel comfort — feel that they are prepared to live and work in interracial communities, feel prepared to work under the supervision of somebody of another racial group, have worked on projects, across racial lines in their classes, feel comfortable in discussing issues across racial lines.
50
Dr. Orfield testified' that the survey’s conclusions about the Lynn experience neatly align with the underlying theory of a new area of desegregation research: that benefits accrue to
all
children, not just minority children, as a result of school integration. Dr. Orfield cited several peer-reviewed studies — and referred to a number of other studies on their way to publication — finding that parents and students in areas where integration has been achieved (as it has in Lynn) acknowledge that side-by-side learning with students of other races confers substantial citizenship benefits on all students. If schools implement desegregation programs with supportive elements, such as training of teachers, and the schools are committed to creating a positive supportive atmosphere, all students obtain “benefits to the way of thinking, understanding of the society, [and] ability to function in society,” as well as gains in academic achievement across the board.
51
Relying in part on McArdle’s demographic data, Dr. Orfield also testified that the Lynn Plan used race no more than was necessary to allow Lynn to meet its educational goal of preparing students to live in a multiracial society. He observed that the Plan’s specified range of racial balance — for elementary schools, within 15% of the overall proportions of white and nonwhite students in the district, and for middle and high schools, within 10% — was typical of desegregation planning. In fact, Dr. Orfield found the range perhaps more flexible and accommodating to the interests of parents than he might have chosen: he said he “probably would have chosen 10%.”
Finally, Dr. Orfield testified about the likely impact of the resegregation of Lynn’s schools. He cited research on African American and Latino children concluding that educating students in racially isolated or segregated school environments has an adverse impact on school attendance and performance, with long-term consequences. Poverty exacerbates racial isolation and segregation for minority students. When schools that are already in areas with an overwhelming minority residential population and extreme poverty re-segregate, racial polarization is accelerated, with all of its deleterious effects.
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Significantly, resegregation would have a substantial impact on white students in Lynn as well. Based not only on his research, but on the studies and research of other nationally known experts, Orfield opined that, as a result of racial isolation and segregation, these students forfeit the opportunity to learn from other groups and are less prepared to handle interracial settings as an adult, conclusions underscored by the testimony of Drs. Killen and Dovidio.
b.
Drs. Dovidio and Killen: Social Psychologists
Drs. John Dovidio and Melanie Killen, both social psychologists, gave psychological content to Dr. Orfield’s conclusions. Dr. Killen testified that because racial (and certain ethnic) differences are observable, children key on them early in their social development. Differences that are visibly apparent to young children have deeper resonance with them. As a consequence of this early attendance to observable difference, stereotypes about race and (visible) ethnicity set in early and are extremely difficult to correct in adolescence and adulthood. Dr. Dovidio agreed that children attend more readily to racial distinctions than other differences.
Furthermore, Dr. Killen testified that the setting of stereotypes is harmful to all children. Students on the receiving end of stereotypical assumptions feel stigmatized in ways that compromise their academic prospects. Students who harbor stereotypes suffer as well: their reliance on stereotypes inhibits their ability to make individualized judgments when they interact with students of other races. As a result, even students who are not themselves the objects of negative stereotypes are nonetheless impaired in their ability to live in an interracial society.
Stereotypes do not as easily take hold of children who interact early and often with children of other racial and ethnic groups. The personal connections forged between students of disparate racial backgrounds challenge race-based assumptions they might otherwise develop about one another. It is Dr. Killen’s experience that children in heterogeneous environments understand better why it is wrong to judge or exclude others based on their race.
Both Drs. Killen and Dovidio testified that meaningful interracial exposure must occur early. Dr. Dovidio described racial stereotyping as a “habit of mind” that is difficult to break once it forms. It is more difficult to teach racial tolerance to college-age students; the time to do it is when the students are still young, before they are locked into racialized thinking. For her part, Dr. Killen cited studies showing that students begin to form rigid social cliques around the sixth and seventh grades, and that race can be a dominant factor that governs who joins what clique. Once students have found their cliques, the opportunity to defeat racial stereotypes with cross-racial interaction is lost.
(1)
Intergroup Contact Theory
Drs. Killen and Dovidio both attributed the turnaround in race relations in Lynn— and the overall preparedness of Lynn’s students to live in a multiracial society — to the district’s successful implementation, through the Lynn Plan, of “intergroup contact.” Intergroup contact theory is a 50-year-old prescriptive theory of race relations with volumes of support in the literature on social psychology. The theory holds that under certain conditions, interaction between students of different races promotes empathy, understanding, positive racial attitudes and the disarming of stereotypes. The four necessary conditions are (1) equal status between or among
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different racial groups; (2) authority support for interactions between members of the groups (that is, teachers and staff who advocate and facilitate the contact); (8) common goals and cooperative activities; and (4) opportunities for personalized contact to disrupt stereotypes.
Drs. Dovidio and Killen testified, based on their personal, independent observations, that Lynn schools amply satisfied all four of these conditions and that the positive racial climate in Lynn was directly attributable to intergroup contact. Both expressed amazement at how ideal the conditions in Lynn’s schools were for learning racial tolerance and concord. Dr. Killen found that this was true of all the schools she visited in Lynn: racial environments were “uniformly positive,” and she noted that “it wasn’t the case that one school really stood out as being ... seriously troubled, tough, problematic.”
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(2)
“Critical Mass”
Drs. Killen and Dovidio alike testified that racial balance within the schools is necessary and crucial to obtain the benefits of intergroup contact that they observed in such abundance at Lynn. Simply put, unless there is a “critical mass” of minority students in a given school, the efforts of schools to promote racial harmony lose much of their force. Such efforts are still desirable, Dr. Killen explained, but they lack significance and relevance in a school that is racially isolated or imbalanced. There is no “magical number,” in Dr. Killen’s experience, that indicates a critical mass, but she cited studies describing a 20% figure below which members of a racial minority in a given setting feel isolated or stigmatized. Dr. Dovidio underscored a critical mass estimate of 20% — a number well-established in the literature and affirmed in his own research as a prerequisite to making a meaningful amount of intergroup contact possible.
53
Dr. Killen took pains to emphasize that 20% is not a magical shut-off point for gains from intergroup contact. The gains occur along a continuum: as the racial composition of school populations creeps closer to balanced, racial stereotyping and tension is reduced and racial harmony and understanding increases. For example, the Fecteau-Leary middle school that Dr. Killen visited had a white population of just below 20% at the time. Dr. Killen explained that Fecteau-Leary had very recently exceeded a 20% white share and
*238
that many of the elementary schools feeding into it were racially balanced in their own right.
54
(3)
Impact of Resegregation
Both Drs. Killen and Dovidio were convinced that reversion to a
de facto
segregated system would forfeit the gains that Lynn has made. In fact, Dr. Dovidio noted, even when students in racially imbalanced schools receive the same instruction, skills, and training, they are “likely actually to have more racial incidents and racial problems” absent that critical mass of white or nonwhite students.
c.
Nancy McArdle: Limitations Imposed by the Demographics in Lynn
Just as critical mass is a precondition to achieving the benefits of intergroup contact, the defense experts agree that the Lynn Plan’s race-conscious student assignment policies are necessary to ensure that white and nonwhite populations in its schools reach that critical mass. Demographics expert Nancy McArdle projected that Lynn’s predominantly white residential areas will remain so in the coming five to ten years. Predominantly minority tracts in south central Lynn will become still more racially identifiable. The minority share of the population will increase in the mixed area between south central Lynn and the white dominated northwest portion of the city. Return to a strict no-transfer neighborhood school system would bring a number of schools below critical mass. For example, a neighborhood system would take the Lynn Woods school from 24% to 8% minority, Shoemaker from 30% to 18% minority, Aborn from 34% to 12% minority, Cobbet from 80% to 85% minority, and Connery from 80% to 83%. In McArdle’s assessment, if Lynn were to abandon its existing student assignment plan and return to a system of strict neighborhood school enrollment — no transfers allowed — the city’s schools would immediately assume a high level of
de facto
racial segregation.
Birchenough added that the district has considered and even tried to implement a variety of race-neutral methods to achieve the same measure of integration but rejected them all as not feasible. She testified that the present condition of residential segregation in Lynn is such that a redrawing of school attendance zones could not meaningfully alleviate the
de facto
segregation that a neighborhood school system would bring. The areas that would need the most attention, the racial enclaves in northwest and south central Lynn, are simply too far removed from one another. Because statistics show that white parents tend to request transfers to identifiably white schools and minority parents tend to prefer transfers to predominantly minority schools — the district in fact denies 500 to 800 requested segre-gative transfers per year — a system that allowed unfettered school choice would exacerbate segregation.
See also infra
Section V.B.4.b(3).
*239
d.
Plaintiffs ’ Rebuttal
The plaintiffs stipulate to the improvements in the Lynn school system since implementation of the Plan. Likewise, they do not dispute that Lynn meets the four conditions of intergroup contact. What the plaintiffs dispute, through their expert, Dr. Rossell, is (1) the extent to which a race-neutral plan would have accomplished the same result and (2) the extent to which a certain percentage of white or minority students is required in a school before the benefits of intergroup contact can obtain.
Dr. Rossell’s testimony was not credible. As noted above, unlike defendants’ experts, she did no independent investigation ■of the conditions in Lynn. She made sweeping conclusions without reviewing demographic or socioeconomic data and without having an accurate understanding of the Plan itself.
Her testimony was based on her experience with other systems and her memory of the Plan from her work fifteen years earlier. Significantly, her report was based on a fundamental misunderstanding of the Plan, which she characterized as a “controlled choice” plan. Lynn’s Plan in fact differs considerably from controlled choice. Controlled choice authorizes the mandatory reassignment of students from one school to another in the event that parents’ exercise of choice does not generate enough racial balance; likewise, controlled choice does not guarantee that students can attend their neighborhood schools.
Dr. Rossell treated Lynn’s student assignment policy as a controlled choice plan based on her experience in Lynn as a paid desegregation consultant to the City in 1987. She admitted that she believed until just prior to her testimony that the Lynn Plan incorporated provisions for mandatory reassignments from neighborhood schools.
This was never the case. A draft of the Plan subsequent to the one Dr. Rossell saw in 1987 excised the provisions for mandatory reassignments, and
before the Plan’s implementation in 1989
the Plan guaranteed Lynn students without exception the right to attend their neighborhood schools.
In addition, Dr. Rossell’s about-face on crucial issues is troubling here. She was a supporter of the Plan when she was the city’s paid expert, and when the draft Plan involved provisions far more intrusive than are at issue here. In the instant litigation, retained by a different party, she testified to precisely the opposite conclusions. Specifically, in this case, she challenged the concept of a critical mass, although in her earlier work, she was on record as having embraced it.
55
While Dr. Rossell concedes that some measure of racial heterogeneity in the schools is a precondition to inter-group contact, she now takes the position that the schools in Lynn would meet that minimum, even under a neighborhood system — a conclusion that every one of defendants’ experts rejects. Indeed, she testified that there is research to suggest that racial isolation can somehow facilitate the equal status contact that is a crucial ele
*240
ment of intergroup contact, as racial groups of equal size might be more competitive with one another.
Her testimony is unpersuasive on a number of fronts. First, Dr. Rossell does not work in the fields in which the studies cited by Dovidio and Killen were generated. She is not a social psychologist; she has no background in developmental psychology, the study of adolescent behavior, or the cognitive and social development of children.
Second, Dr. Rossell’s position that there is “no research” supporting the critical mass concept is flatly contradicted by the testimony of the nationally known defense experts equipped with years of expertise in their fields, an armful of social psychology literature on both critical mass and inter-group contact, and their extensive firsthand observations of the conditions in the Lynn schools.
Third, it appears that Dr. Rossell’s characterization of the field is skewed. Her insistence that there is “no research” whatsoever supporting the concept of critical mass conveyed, in essence, that she does not accept the validity of the studies cited in bulk by Drs. Dovidio and Killen— namely, studies in social psychology. It is Dr. Rossell’s position that unless the defense experts’ conclusions are buttressed by statistical studies of the kind she conducts (in particular, multiple regression analyses), they are unacceptable. I am not willing to jettison the considered judgments of the entire field of social psychology and the nationally known experts within it.
Finally, taking a position diametrically opposed to Dr. Dovidio’s, she stated that the experts could, for example, have surveyed schools with differing degrees of racial balance and determined the extent to which students at more balanced schools evinced healthier attitudes about race than their peers at less balanced schools. Dr. Dovidio suggested that such a study was impossible in Lynn because of the small numbers of schools that are racially imbalanced and the marginal differences among them. Moreover, Dr. Rossell testified that this “multiple regression analysis” could realistically control for race-neutral variables in the schools, including the schools’ different extracurricular programs, the relative poverty level of students, the extent to which different teachers have different levels of experience in cooperative learning. But Dr. Rossell did not conduct this analysis herself. No other expert in this case believed that such a study could be done, or that it had to be done, given the weight of the scholarly literature.
Finally, Dr. Rossell catalogued race-neutral alternatives that are available to
Lynn
— e.g., a transfer program that would permit any requested transfer (to a school with space) with continued use of magnet schools remaining an option. Dr. Rossell explained that Connecticut schools have created racial diversity by providing race-neutral magnet school programs. But whether the race-neutral alternatives she cited would work in Lynn was an opinion which Dr. Rossell was in no position to give — she had not reviewed the demographics of Lynn or studied the school system in recent years, and she fundamentally misunderstood the nature of the Plan.
Y.
LEGAL ANALYSIS
A.
Jurisdictional Issues
1.
Amendments to Prior Decisions (Comfort Plaintiffs)
Federal Rule of Civil Procedure 12(h)(3) authorizes, and in fact requires, a court to raise (or, as in this case, to revisit) a jurisdictional issue
sua sponte. Comfort,
150 F.Supp.2d at 294 n. 23 (citing Rule
*241
12(h)(3)).
56
Although it does not affect the substance of the matters litigated, for clarity’s sake I take this opportunity to aménd certain jurisdictional findings.
This Court earlier dismissed the
Comfort
plaintiffs’ actions for declaratory relief against the Commonwealth of Massachusetts as barred by the Eleventh Amendment.
Comfort,
131 F.Supp.2d at 256 . The decision to dismiss these claims was correct, but a clarification should be made. The Eleventh Amendment precludes suit for damages only; a suit for
prospective
relief, including declaratory relief, is permissible when brought against state, officials (but not against the state itself).
57
Mills v. Maine,
118 F.3d 37, 54 (1st. Cir.1997);
see also Ameritech Corp. v. McCann,
297 F.3d 582, 587 (7th Cir.2002) (finding that a declaratory judgment claim is “prospective” and therefore, under
Ex Parte Young,
209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), not subject to the Eleventh Amendment).
In a subsequent decision, I concluded that the
Comfort
plaintiffs lacked standing to sue the Lynn defendants for prospective relief, but I did allow them to sue for a declaration that the initial application of the Plan violated their rights.
Comfort,
150 F.Supp.2d at 302 . I now find that holding was incorrect. In
Berner v. Delahanty,
129 F.3d 20 (1st Cir.1997), the court held that a claim under the Declaratory Judgment Act is not sustainable absent a showing of “actual or imminent, not con-jfectural or hypothetical” harm.
Id.
at 24 (quoting
Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) (internal quotation marks omitted)). If a plaintiff lacks standing for injunctive relief, he or she lacks standing to bring declaratory relief claims as well. Thus, the
Comfort
plaintiffs’ declaratory claims, against the Lynn defendants and the state defendants are dismissed in their entirety.
Ultimately these clarifications do not affect the substance of the lawsuit. With nominal damages at stake, the parties amply litigated all of the constitutional questions brought before the Court in the complaint.
58
2.
Partial Motion to Dismiss (Bollen Plaintiffs)
After the trial, defendants filed a partial motion to dismiss certain of the
Bollen
plaintiffs’ claims on standing grounds. This motion is granted in part and denied in part.
59
a.
Claims for Injunctive and Declaratory Relief
Four of the
Bollen
plaintiffs, Todd and Laura Bollen,
60
Leanne Manuel,
61
and
*242
Karen Tsaltas,
62
have stipulated that they are satisfied with their existing school placements. Since it is at best speculative, and at worst unlikely, that these plaintiffs will request segregative transfers for their children in the future, they lack standing to seek an injunction.
63
I make a similar finding with respect to plaintiff Meta Stinson.
64
Although Stin-son’s daughter is presently registered with the district as white, she is in fact biracial, and therefore eligible under the Plan for essentially any transfer her mother might seek.
65
Just as the
Comfort
plaintiffs did, the
Bollen
plaintiffs attempt to characterize their harm not as the race-based denial of a transfer, but as the denial of the ability to compete on equal terms for school transfers.
See Comfort,
150 F.Supp.2d at 296 . The right to compete on equal terms is well-recognized as a passable, cognizable interest for standing purposes in cases involving a race-conscious government action.
Donahue v. City of Boston,
304 F.3d 110, 119 (1st Cir.2002) (citing
Texas v. Lesage,
528 U.S. 18, 21 , 120 S.Ct. 467 , 145 L.Ed.2d 347 (1999));
Comfort,
150 F.Supp.2d at 296 (citing
Lesage
and
Regents of the Univ. of Cal. v. Bakke,
438 U.S. 265 , 280-81 n. 14, 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978)).
The flaw in the plaintiffs’ argument is that they can show no imminent “competition.” Such disadvantage, if it even exists,
66
is speculative where it is not clear
*243
that the plaintiffs will again expose themselves to the race-conscious elements of the Plan by seeking transfers in the future.
See id.
Accordingly, the claims of these plaintiffs for declaratory and injunc-tive relief are dismissed for lack of subject-matter jurisdiction.
However, the defendants concede that one plaintiff, Gina Leone, who sues on behalf of her son Troy LaMothe, has standing to pursue prospective relief. On March 24, 2000, Leone requested to transfer her son from Ingalls, his neighborhood elementary school, to Aborn. The district denied the transfer. Leone received no relief on appeal, which confirmed that the proposed transfer was segregative and concluded that she did not merit a hardship exception. Pursuant to the agreement of counsel in the
Bollen
case, Leone was informed that her son could attend any school of her choice for the school year of 2001-2002. Leone chose the Aborn school, to which he otherwise would have been unable .to transfer under the Lynn Plan.
b.
Nominal Damages
Nominal damages are another matter. The defendants argue that Stinson and Karen Tsaltas- have no standing to sue even for nominal damages.
67
Tsaltas’s son was denied a transfer, but that denial was reversed on appeal. Stinson, pleased with the alternative assignment that the district offered, never appealed the denial of her daughter’s transfer.
I find that all of the
Bollen
plaintiffs, including Stinson and Tsaltas, can seek nominal damages, where the threshold for relief is lower.
68
Stinson and Tsaltas’s transfer requests were both at least initially denied pursuant to the race-conscious elements of the Lynn Plan. Since I held that Samantha Comfort could pursue nominal damages notwithstanding her successful appeal, the same must be true for Tsaltas despite her appeal, and certainly for Stinson, who did not appeal. The Motion to Dismiss on the issue of nominal damages is denied.
B.
Equal Protection
The plaintiffs challenge the RIA on its face and as applied in the Lynn Plan under the Equal Protection Clause of the Fourteenth Amendment. They urge the Court to evaluate the Act and the Plan by the standard of “strict scrutiny.”
Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 227 , 115 S.Ct. 2097 , 132 L.Ed.2d 158 (1995) (“[W]e hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.”);
Wessmann,
160 F.3d at 794 . Under strict scrutiny, a racial classification is unconstitutional unless its proponent can establish, first, that the policy furthers-a compelling state interest, and second, that it is narrowly tailored to achieve that interest.
Adarand,
515 U.S. at 227 , 115 S.Ct. 2097 . The burden of proving a compelling interest and narrow tailoring rests on the defendant.
Keyes v. School Dist. No. 1, Denver, Colorado,
413 U.S. 189, 209 , 93 S.Ct. 2686 , 37 L.Ed.2d 548 (1973).
As I discuss below, courts have used a different level of scrutiny, namely “intermediate scrutiny,” for policies that are race-conscious but do not classify,
i.e.,
prefer, members of one race over another.
See, e.g., Jacobson v. Cincinnati Bd. of
*244
Education,
961 F.2d 100 , 102 (6th Cir.1992);
Kromnick v. School Dist.,
739 F.2d 894 , 902-03 (3d Cir.1984). This test requires the government to show that the policy serves “important government objectives” to which the means chosen are “substantially related.”
United States v. Virginia,
518 U.S. 515, 533 , 116 S.Ct. 2264 , 135 L.Ed.2d 735 (1996) (citations omitted).
Amicus
filings in this case argue that I should apply intermediate scrutiny to the Lynn Plan, whereas the parties prepared and argued their cases on the assumption that the Plan is subject to strict scrutiny.
1.
Strict or Intermediate Scrutiny?
Amici
propose that I apply intermediate scrutiny to the Lynn Plan and the RIA because neither makes a racial classification in the sense of preferring the interests of one race over another. That is, while in
Adarand
the Court subjected a racial
classification
to strict scrutiny, the mere
consideration
of race, where no preference is given to members of one race over another, is distinguishable.
The
Adarand
Court confronted a federal policy that gave financial incentives to contractors on government projects to subcontract their work to small businesses certified as controlled by “social or economically disadvantaged” individuals. The policy presumptively designated racial minorities as “socially disadvantaged.”
Adarand,
515 U.S. at 205-07 , 115 S.Ct. 2097 . Adarand Constructors, Inc., which was not so certified, did not get a subcontract despite its low bid.
69
The Court held similarly in other cases involving the use of race to prefer minorities for other benefits of limited availability,
ie.,
statutory incentives to government contractors to favor minorities,
City of Richmond v. J.A. Croson Co.,
488 U.S. 469, 493-94 , 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989); racial preferences in the hiring and promotion of government workers,
United States v. Paradise,
480 U.S. 149, 153 , 107 S.Ct. 1053 , 94 L.Ed.2d 203 (1987); and redistricting efforts directed at carving out enclaves of minority voters,
e.g., Bush v. Vera,
517 U.S. 952, 965-67 , 116 S.Ct. 1941 , 135 L.Ed.2d 248 (1996);
Miller v. Johnson,
515 U.S. 900, 904 , 115 S.Ct. 2475 , 132 L.Ed.2d 762 (1995).
In contrast, courts including the First Circuit have held that where differential treatment does not favor members of one race over another, there is no racial classification,
Adarand
is inapposite, and strict scrutiny does not apply.
See, e.g., Raso v. Lago,
135 F.3d 11, 16 (1st Cir.1998) (“The term [racial classification] normally refers to a governmental standard, preferentially favorable to one race or another, for the distribution of benefits.”);
70
cf. Wess-
*245
mann,
160 F.3d at 794 (quoting
Adarand’s
requirement that “a government ‘must justify any racial classification subjecting [a] person to
unequal treatment
under the strictest judicial scrutiny1 ” (emphasis added) (alteration in original)).
Amici
point out that in the present case, the evidence shows that each Lynn school provides equal educational opportunities to students. Indeed, the parties even stipulate, “the education provided to Lynn’s regular education students in each of the elementary, middle, and high schools in Lynn is comparable in quality, resources, and curriculum, even though schools do offer and provide varying academic programs.”
71
Thus, this is not a case, as in
Adarand
(government contracting),
Bakke
(medical school admissions), or
Grutter v. Bollinger,
288 F.3d 732 (6th Cir.),
cert. granted,
123 S.Ct. 617 , 123 S.Ct. 617 , 154 L.Ed.2d 514 (2002) (law school admissions), in which the defendant, in the distribution of limited resources, gives preference to some persons on the basis of race. Students like the plaintiffs may not be able to attend the specific school they want, but no student is advantaged over another on the basis of race.
Cf. Hampton v. Jefferson Cty. Bd. of Education,
102 F.Supp.2d 358, 380 (W.D.Ky.2000) (observing that race-based assignment in elementary and secondary school education is distinguishable from other contexts in which strict scrutiny is applied, where assignment to one school over another does not confer a preference based on race).
72
*246
Indeed, in an earlier decision, I analogized the Lynn Plan to a situation in which a school administrator sought to assign students to classrooms within a given building in order to maximize diversity and to prevent minority children from choosing one classroom and white children another.
Comfort,
100 F.Supp.2d at 67 n. 17.
73
Clearly this kind of decision would not warrant strict scrutiny.
I recognize, however, the need to proceed with caution. The parties may agree that all of Lynn’s schools provide equal educational opportunities, but the voluntary transfer system is rooted in the principle that parents will find one school preferable to another for personal reasons—
e.g.,
the convenience of its location or attractiveness of its “theme” program. As a result, although I am convinced by
amici
that intermediate scrutiny is the correct test to apply here, my analysis below will apply the more rigorous standard which the parties have briefed, strict scrutiny.
2.
Facial Challenge to the Racial Imbalance Act
The plaintiffs argue that the RIA violates the Equal Protection Clause of the Fourteenth Amendment and is therefore facially invalid. The standard for facial invalidation of a statute is rigorous: “[T]he challenger must establish that no set of circumstances exists under which the Act would be valid.”
United States v. Salerno,
481 U.S. 739, 745 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987).
74
It is clear to me
*247
that the plaintiffs cannot make out a facial claim against the statute.
As I have noted above, the RIA includes both hortatory and mandatory components. The statute urges school districts to adopt voluntary plans to alleviate racial imbalance. Mass. Gen. Laws c. 71, § 37C. The state is also empowered to induce compliance by offering grants and/or by withdrawing existing financial assistance.
Id.,
§ 371; Mass. Gen. Laws c. 15, § II, ¶¶2, 3, 4. However, if space limitations preclude a school district from accommodating a desegregative transfer out of a neighborhood school, the mandatory provisions of the Act are triggered. The school district is then required either to devise its own plan to accommodate such a transfer (subject to the approval of the state Board of Education) or to implement a plan drafted by the state. Mass. Gen. Laws c. 71, § 37D; Mass. Gen. Laws c. 15 § II, ¶ 1.
Although the plaintiffs challenge it, the mandatory provision of Section 37D is not at issue here;
75
Lynn adopted its plan voluntarily. The state never found that space constraints in Lynn schools precluded requested desegregative transfers. The compulsory provisions of the RIA were never triggered. As such, the plaintiffs can claim no injury from the mandatory provisions of the Act.
See Daggett v. Comm’n on Governmental Ethics and Election Practices,
205 F.3d 445, 463 (1st Cir.2000) (citing
Lujan,
504 U.S. at 560 , 112 S.Ct. 2130 ).
Plaintiffs claim that the distinction between the mandatory and hortatory elements of the law is a distinction without a difference. The statute, they say, not only encourages school districts to adopt racial balancing plans and rewards compliant school districts with funds, Mass. Gen. Laws c. 15, § II, ¶¶3, 4, it effectively coerces this practice by making state assistance to school districts contingent on the implementation of these “voluntary” plans,
id.,
§ II, ¶ 2.
But even if I were to find that the RIA’s use of funds to encourage voluntary plans were in fact coercive, and therefore the functional equivalent of its mandatory provisions, I would not find it unconstitutional. A school district may theoretically adopt a plan that improves racial imbalance with
*248
out explicitly introducing race-based criteria at all.
76
In fact, the City of Boston satisfied the Board of Education’s RIA review with a student assignment policy that this Court recently found to be completely race-neutral.
Boston’s Children First v. Boston School Comm.,
260 F.Supp.2d 318, 327 , 2003 WL 1957480, at *9 (D.Mass. Apr.23, 2003) (observing that the state Board of Education accepted Boston’s school assignment plan even though it did not incorporate racial enrollment targets or racial guidelines and likewise finding it immune to equal protection challenge).
77
Moreover, the fact that the goal of the RIA’s funding is race-conscious — to improve racial balance in the Massachusetts schools — does not necessarily invalidate it.
See Raso,
135 F.3d at 16 . Were that the case, Congress could never validly exercise its § 5 enforcement powers.
See
U.S. Const., amend. XIV, § 5 (noting that Congress “shall have power to enforce, by appropriate legislation, the provisions of this article,” including the Equal Protection Clause of § 1). All nondiscrimination statutes take notice of race in some way.
*249
3.
The Strict Scrutiny Standard
As noted above, proponents of a racial classification ordinarily must demonstrate that it advances “a compelling state interest,” an interest above and beyond ordinary government goals, and further, they must demonstrate that the classification is “narrowly tailored” to that end.
While these questions are ultimately questions of law,
Cotter v. City of Boston,
193 F.Supp.2d 323 , 341 n. 8 (citing
Wygant v. Jackson Bd. of Education,
476 U.S. 267, 274-76 , 106 S.Ct. 1842 , 90 L.Ed.2d 260 (1986)), and legal precedent can give guidance to courts, each case turns on the peculiarities of its own facts.
See, e.g., Wessmann,
160 F.3d at 797-98, 802 (finding the necessity of a race-based policy to be a “fact-sensitive inquiry” and cautioning that the “devil is in the details”).
An important part of this “fact-sensitive inquiry” is the setting — that is, the kind of policy at issue and the context in which it operates. Significantly, the Supreme Court has not yet heard a case dealing with the issues raised here — the use of race in a voluntary transfer program to maximize integrated learning in the K-12 grades. It is not easy to apply to public elementary school education the same legal frameworks established for employment, as, for example, in
Adarand or Croson,
78
or even higher education, as in
Bakke .
Nor is it easy to apply legal standards designed to analyze when race may be used retrospectively, to remedy past intentional discrimination, in settings where race is used prospectively, as part of a curriculum that encourages students to learn to interact in a multiracial environment.
a.
Compelling State Interest
“Diversity” may well be a compelling state interest in an educational setting, depending on the nature of the setting and the reasons why' diversity is sought. In
Regents of the University of California v. Bakke,
438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978), the Supreme Court evaluated an affirmative action program for medical school admissions. The University of California argued that it had a compelling interest in cultivating a “diversity” of viewpoints in its student body, and that an applicant’s racial background was relevant to the views that he or she would bring to the class.
Id.
at 311-15 , 98 S.Ct. 2733 . A plurality of the Court held that “genuine diversity” was a valuable contributor to a “robust exchange of ideas” at the university and so passable as a compelling interest.
Id.
at 312-14 , 98 S.Ct. 2733 . The Court explained, however, that the university’s use of race and ethnicity alone in its cultivation of genuine diversity would “hinder rather than further [its] attainment.”
Id.
at 315 , 98 S.Ct. 2733 . In other words, the university could not establish that its policy furthered its announced compelling interest of fostering “viewpoint diversity,” because that interest “encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”
Id.
Considerable debate has followed
Bakke
about the extent to which racial diversity can ever be a compelling interest. What the
Bakke
Court did make clear was that sounding the inherent value of “diversity” is not enough; the analysis is incomplete unless one looks to the specific, tangible
*250
benefits that diversity actually confers in a given situation.
79
The First Circuit spoke to this issue in
Wessmann .
There, the court confronted the Boston school district’s racial preference to African American and Hispanic applicants in its admissions process to the Boston Latin School, a competitive and prestigious public high school to which students applied for limited slots and were selected for admission primarily on the basis of academic merit.
Wessmann,
160 F.3d at 791, 793 . Following
Bakke’s
cue, the
Wessmann
court observed that Boston Latin’s exclusively racial preference could not foster the “genuine diversity” approved in
Bakke .
Nevertheless, in
Wessmann ,
the court (following the Second, Fourth and Ninth Circuits) refused to hold that race-based classifications are constitutional
only
when they are directed at redressing prior unlawful discrimination.
Id.
at 795-96 . In that regard, the court expressly parted company with the Fifth Circuit’s holding in
Hopwood v. Texas,
78 F.3d 932 (5th Cir.1996).
And further, like the Second, Fourth, and Ninth Circuits, the
Wessmann
court acknowledged that diversity could well be a compelling state interest in an educational setting, depending on the circumstances.
Wessmann,
160 F.3d at 796 ;
see also Brewer v. West Irondequoit Cent. School Dist.,
212 F.3d 738 , 748-49 (2d. Cir.2000) (citing
Eisenberg v. Montgomery Cty. Pub. Schools,
197 F.3d 123 , 130 (4th Cir.1999) (assuming that diversity can be a compelling interest)), and
Hunter v. Regents of the Univ. of Cal.,
190 F.3d 1061, 1067 (9th Cir.1999) (affirming the constitutionality of race-based admissions processes to an experimental elementary school based on the need for researchers to work with racially diverse classes of students).
80
The court
*251
rejected an all-or-nothing approach: Fostering diversity is not
always
a compelling interest, nor is it true that diversity is
never
a compelling interest.
Id.
at 796 (“[W]e assume
arguendo ...
that some iterations of ‘diversity’ might be sufficiently compelling, in specific circumstances, to justify race-conscious actions.”).
Although
Wessmann
and
Bakke
address race-conscious policies in public education, their holdings are of limited import here. First, both involve race-based preferences in the allocation of a limited government resource — a slot in a medical school or in an elite and selective high school. This is not an issue in Lynn. Second, in each case the defendant sought to justify its preference on the ground that, in the abstract, racial diversity is necessary to ensure viewpoint diversity. In contrast, Lynn’s appeal to diversity as described below is directed at altogether different and more specific goals, namely, preparing students to be citizens in a multiracial society and eliminating the concrete harmful consequences that
de facto
segregation inflicts on a public school system.
b.
Narrow Tailoring
The goal of the “narrow tailoring” requirement is to ferret out illicit uses of race by governments, to make certain that a racial classification is neither pretextual nor overbroad.
Croson,
488 U.S. at 493 , 109 S.Ct. 706 ;
Boston Police Super. Officers Fed’n v. City of Boston (“Boston Police”),
147 F.3d 13, 23 (1st Cir.1998). Three concerns are evident in the case law: (1) the extent to which the challenged policy is
necessary
to pursue a compelling interest (and whether there are adequate race-neutral alternatives), (2) the extent to which the policy is
proportional
to that interest, and (3) the proportionality between the benefits the policy provides and the harm caused to “innocent persons” as a result of its implementation.
(1)
Are the means necessary; are there adequate race-neutral alternatives?
The question of necessity logically breaks . down into two components — (1) does the race-based policy
actually
further the compelling interest? and (2) might race-neutral alternatives to the policy be as effective in pursuing the interest?
It goes without saying that a race-conscious policy is not narrowly tailored to a compelling interest if it does not, in practice, effectuate the ends contemplated by that interest. A classification that does not further the legitimate ends of government obviously would not even survive the less exacting rational basis review reserved for nonracial classifications.
E.g., Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356, 367 , 121 S.Ct. 955 , 148 L.Ed.2d 866 (2001). Strict scrutiny incorporates this bare-minimum requirement, but reaches still further for a showing of
necessity.
Since “narrow tailoring” is all about the “fit” between compelling ends and race-conscious means, a review of the goals of the enterprise and its settings is critical. The mission of the schools in
Wygant,
476 U.S. at 270-71 , 106 S.Ct. 1842 (reviewing preferential protection from layoffs for minority teachers), was to educate students. The mission of the City of Richmond in
Croson,
488 U.S. at 481 , 109 S.Ct. 706 (reviewing preferences for minority contractors), was- to install plumbing fixtures in a city jail. The mission of the Alabama Department of Public Safety in
Paradise,
480 U.S. at 153 , 107 S.Ct. 1053 (reviewing racial preferences in state trooper promotions), was to provide public safety. The reason for being, respectively, of these institutions was not to provide work for
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teachers, contracts for minority-owned businesses, or promotions for African American troopers. In those settings, the Court’s analysis started with proposed compelling interests and institutional ends askew. While that does not mean that such programs necessarily fail to pass constitutional muster, it does mean that the program’s proponents face an especially complex task of justification.
In contrast, an important mission of K-12 schools, in addition to fostering academic achievement, is the cultivation of social skills that enable students to function as citizens in a complex and diverse world. If “narrow tailoring” is about “fit,” the creation of an integrated school environment is surely likely to be a better “fit” relative to this goal than an integrated workplace is to a commercial setting.
Moreover, where educational policy is concerned, in contrast to a commercial enterprise, school officials possess a special expertise acknowledged in the case law. That expertise must play an important role in evaluating whether race-neutral alternatives will be effective in creating a multiracial learning environment and whether they are adequate to the task.
See infra
Section V.B.3.b.(4).
(2)
Is the policy proportional to the compelling interest?
Courts must also ascertain the extent to which the imposition of the challenged policy is proportional to the urgency of the stated government interests. A race-based government practice must not overshoot its articulated purpose by using race too often, too heavy-handedly, or for too long.
Again, the examples come from employment. In order to determine whether the use of race went beyond what was remedial, the
Paradise
Court, for example, scrutinized the
quantum
of racial preferment given to minorities and its relationship to the defendant’s interest in remedying the effects of discriminatory hiring practices.
Paradise,
480 U.S. at 179 , 107 S.Ct. 1053 . The Court focused on the proportionality between the “numerical relief ordered and the percentage of nonwhites in the relevant work force.”
Id.
Where the means are modest, and in fact undershoot the remedial goal, a court will affirm the policy, as in the
Cotter
case. The City of Boston departed from strict rank order to promote African American police officers in three of thirty-six promotions. Since the police department would have had to promote twenty African American officers to equalize the percentage of African American officers and African American sergeants, the Court concluded that the modest means chosen signified narrow tailoring.
Cotter,
323 F.3d at 171.
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A policy that is flexible and changes with changing conditions is also more likely to meet the proportionality test.
Id.
at 177-78. In addition, the duration of the state actor’s use of race figures into the analysis.
Id.
at 172; see
also, e.g., Paradise,
480 U.S. at 178 , 107 S.Ct. 1053 (touting the limited duration of a race-based remedial promotions policy as a sign that the policy was not a tool for the implementation of racial balancing in government employment);
Boston Police,
147 F.3d at 23 (inquiring into whether the challenged policy “contains (or fails to contain) built-in mechanisms which will, if time and events
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warrant, shrink its scope and limit its duration”).
Duration is an especially critical factor when the compelling interest involves remedying past discrimination. Once the problem is “cured,” the need for race-based standards arguably disappears.
Mackin v. City of Boston,
969 F.2d 1273, 1278 (1st Cir.1992) (“Finally, the decree’s life is limited, remaining in force only until its requirements have been met. Limitations of this sort are crucial factors in deflecting overbreadth challenges.” (citation omitted)). In contrast, where the targeted problem is ongoing and persistent, the analysis is more complex. Narrow tailoring does not necessarily require' a predetermined shut-off point. The parties can offer a more fluid approach so long as the race-conscious policy dovetails with the conditions that made it necessary in the first place.
(3)
What Is the Impact on Third Parties?
A court will also assess the promised and proven benefits of the racial criterion against the depth and breadth of its impositions upon innocent third parties.
Bakke,
438 U.S. at 308-09 , 98 S.Ct. 2733 . Innocent third parties are more at risk in decisions about hiring and firing in a commercial setting, the awarding of public contracts, or admission into a school of higher education. Each case represents the classic zero-sum game, where one party wins and another necessarily loses.
Moreover, where the benefit requires specialized skills, the impact on a qualified applicant with settled expectations, or even with an entitlement to the job or to a slot in a school, is more significant.
See Paradise,
480 U.S. at 182 , 107 S.Ct. 1053 (finding significant the fact that a racial classification prefers only qualified applicants of one race for hiring or promotion, and that the impact on qualified applicants of another race is minimal); Boston
Police,
147 F.3d at 24 (listing “the extent to which ... legitimate expectancies are frustrated or encumbered” as a factor in the narrow tailoring analysis).
Again, in a K-12 school system, educational and curricular policies intended to benefit all students may have an impact on “innocent third parties,” but not to the same degree as in competitive commercial or higher-education settings. The question in a school setting, to which I have already alluded, is not whether a given plaintiff will receive a given limited benefit (like a job or access to a unique institution of higher learning) to which he or she is entitled. Rather it is whether any student is. entitled to a particular school assignment at all and, in any event, whether the education the plaintiff will get at his or her second choice is comparable to that which he or she would receive at his or her first choice.
(4)
Miscellaneous Concerns: Deference to School Boards’ Narrow Tailoring ”
A school setting necessarily raises other questions relevant to the “narrow tailoring” analysis: To what extent do school boards deserve deference in making school assignment decisions that are intertwined with curricular decisions? Or, to rephrase the question, how far must a federal court go to micromanage the school board’s choices, after the court has assured itself that the basic constitutional standards are met? How perfect must be the “fit” once the broad legal standards have been met?
Clearly, in the school cases involving remedial race-conscious plans imposed to eliminate the vestiges of prior
de jure
segregation, courts have carefully supervised local school boards to make certain that they were dismantling the dual school sys-
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terns for which the school boards were found responsible. But when the records have suggested that those boards were finally operating in good faith to create an integrated system, the courts have done an about-face, giving deference to their determinations that unitary status has been achieved and that remedial plans should be discontinued.
See Freeman v. Pitts,
503 U.S. 467, 489-90 , 112 S.Ct. 1430 , 118 L.Ed.2d 108 (1992). As the First Circuit has observed:
Unitary status is not simply a mathematical construction. One non-quantitative factor of particular significance is whether the school defendants have a sufficiently well-established history of good faith in both the operation of the educational system in general and the implementation of the court’s student assignment orders in particular to indicate that further oversight of assignments is not needed to forestall an imminent return to the unconstitutional conditions that led to the court’s intervention.
See Morgan v. McDonough,
689 F.2d 265, 280 (1st Cir.1982) (“the ending of obstructionism plainly signals a return to greater local control”) ....
The relevance of good faith underscores the notion that unitariness is less a quantifiable “moment” in the history of a remedial plan than it is the general state of successful desegregation.
Morgan v. Nucci,
831 F.2d 313, 321 (1st Cir.1987). It is only logical to afford at least as much deference to a school board that voluntarily undertakes desegregation efforts.
In
Swann v. Charlotte-Mecklenburg Bd. of Education,
402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971), one of the first remedial cases, the Court described the deference due to school districts in
dicta:
School authorities are traditionally charged with broad power to formulate and implement education policy and might well conclude, for example, that in order to prepare to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of constitutional violation, however, that would not be within the authority of the federal court.
Id.
at 16 , 91 S.Ct. 1267 .
Swann
was cited by the Second Circuit in
Brewer,
212 F.3d at 749, a nonremedial case affirming a race-conscious school transfer program to ameliorate the impact of
de facto
segregation.
There are good reasons to give deference to school boards’ attendance to the details of their student assignments and determinations of whether race-neutral alternatives are adequate. They are the experts in what will or will not work because they are uniquely attuned to the needs of a diverse urban community. Over and over again, courts have given school boards discretion to weigh the constitutional rights of students against the unique demands of a public education setting and curricular needs.
See, e.g., Regents of the Univ. of Mich. v. Ewing,
474 U.S. 214, 226 , 106 S.Ct. 507 , 88 L.Ed.2d 523 (1985) (emphasizing courts’ “reluctance to trench on the prerogatives of state and local educational institutions,” as federal courts are ill-suited to “evaluate the substance of a multitude of academic decisions that are made daily” by experts in the field).
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To be sure, strict scrutiny re
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quires a rigorous analysis of the plan and its ramifications. Nevertheless, these cases should, at the very least, inform the weight I give to the conclusions of the administrators of the Lynn Plan.
4.
The Goals of the Plan
The Lynn Defendants claim that the race-conscious element of its school assignment plan is narrowly tailored to achieve several compelling state interests. Some interests are proactive, that is, affirmatively related to meeting the curricular goals and the educational mission of a diverse urban public school: promoting racial and ethnic diversity, increasing educational opportunities for all students and improving the quality of education and ensuring student safety. Several interests are more reactive, that is, related to the goal of eliminating the negative effects of
de facto
residential segregation on public education: reducing minority isolation and ensuring the safety of its public school students. Finally, some goals are related to the federal constitutional requirements spelled out in
Brown v. Board of Education
and the state constitution.
I have divided these goals into three categories, although they are analytically interwoven.
a.
Curricular Goals: “Promoting Racial and Ethnic Diversity,” “Increasing Educational Opportunities for All Students and Improving the Quality of Education,” “Ensuring Safety”
(1)
Are These Curricular Goals Compelling State Interests?
The defendants claim that their goals— promoting racial and ethnic diversity, increasing educational opportunities for all students, improving the quality of education, and ensuring school safety — are compelling state interests inextricably tied to the mission of a public K-12 school system. As I have noted, the purpose of the public school system is as much to teach citizenship to its students as it is to teach academic subjects. Indeed, at the elementary school level, to which this challenge is principally directed,
83
teaching citi
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zenship — the proverbial effort to ensure that students “work and play well with others” — is one of a school’s highest educational priorities.
And this is especially the case in a multiracial, urban community like Lynn. The years predating the Lynn Plan saw a district driven by racial tension, with the promise of still-greater tension due to deepening residential segregation. Lynn school officials had to confront a decline in day-to-day school attendance, a decrease in white enrollment, a sharp increase in incidents of conflict and confrontation between white and nonwhite students, and a specific failure in the district’s educational mission: Lynn’s students were not prepared to live and work in an increasingly racially diverse society.
The Plan was essential to reverse these trends. Its approach was comprehensive, going well beyond a race-conscious transfer policy to include specific curricular offerings on race relations, specialized training for teachers and students on diversity, standardization of curriculum and resource distribution between schools in white and minority neighborhoods, and the establishment of the Parent Information Center to foster parent involvement, in the schools.
And the Plan was successful. The defendants point to evidence of significant improvements in Lynn schools occasioned by the district’s adoption of the Plan— improvements that have increased educational opportunities for all students: the amelioration of racial and ethnic tension in Lynn schools, the emergence of a prevalent racial and ethnic tolerance in the schools, increased attendance, a growing feeling of comfort among students in engaging and confronting issues of race, an emerging sen

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2505495. Public record. Not legal advice.