Opinion

Comfort Ex Rel. Neumyer v. Lynn School Committee

283 F. Supp. 2d 328
2003 WL 22204155

Court: District Court, D. Massachusetts
Filed: Sep 5, 2003
Status: Published
Author: Gertner
On the bench: Gertner
Cited by: 12 cases
Authority: More cited than 68.8%

noting expert testimony describing racial stereotyping as a “ ‘habit of mind’ that is difficult to break once it forms” and explaining that “[i]t 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”

How later courts described this case

noting expert testimony describing racial stereotyping as a “ ‘habit of mind’ that is difficult to break once it forms” and explaining that “[i]t 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”
noting that the Plan's original 10% range was expanded to 15% for elementary schools to "permit more choice" and that Lynn considered a 20% range in 1994 but determined that it would compromise student body diversity
summarizing expert's testimony that "[i]t 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"
holding that a school district had a compelling interest in ameliorating the effects of de facto residential segregation

Written by the judges who cited it.

The opinion

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AMENDED

MEMORANDUM AND ORDER

GERTNER, District Judge.

TABLE OF CONTENTS

I.INTRODUCTION. CO CO CO

II.PROCEDURAL

HISTORY. lO CO CO

The Comfort

Litigation. CO CO

1. Parties. CO CO

Preliminary

Injunction.'. CO CO

Motions to

Dismiss. CO CO

The Bollen

Litigation. CO CO

III. TRIAL. 00 CO CO

Plaintiffs’

Case. 00 CO CO

Defendants’

Case. 05 CO CO

The Administrators:

. CO CO

The Parents and

Students:. ^ CO

Defendants’

Experts:. ^ CO

C. Plaintiffs’Rebuttal. ^ cO

IV.

FINDINGS OF

FACT.

The Racial Imbalance

Act.

Racial Imbalance in Lynn’s Public

Schools.

1977: The First

Warning.

1979: Washington, the First Magnet

School.

1980s: Profound Changes in

Lynn.

1986: A Series of Failed Voluntary

Plans.

1987-1988: Greater Imbalance; More

Accusations.

1988-1990: Drafting the Current

Plan.

The Current

Plan.

Continuous

Monitoring.

A Current Snapshot of the Lynn School

District.

Residential Segregation and Geographical

Separation.

‘White Flight” and Its Decline after Implementation of the Lynn

Plan.

Racial Balance or

Imbalance.

The Special Problem of

Poverty. lO

School Construction and

Renovation.,. to

“Magnet"

Schools. to

The Lynn Schools at

Present. to

Observations by

Participants.. 1C

Expert

Testimony. lO

Dr. Oifield: Desegregation

Expert. ic

Drs. Dovidio and Kitten: Social and Developmental Psychologist, Respectively

. 00 Ol Ci

(1)

Intergroup Contact

Theory. OO Cn CJi

(2)

“Critical

Mass”. 00 Oi <1

(3)

Impact of Resegregation

. 00 OJ 00

Nancy McArdle: Limitations Imposed by the Demographics in

Lynn. 00

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Plaintiffs ’

Rebuttal. 00

LEGAL ANAÍYSIS

Jurisdictional Issues

Amendments to Prior Decisions (Comfort Plaintiffs)

Partial Motion to Dismiss (Bollen Plaintiffs)

Claims for Injunctive and Declaratory Relief...

Nominal

Damages.

Equal

Protection.

Strict or Intermediate

Scrutiny?.

Facial Challenge to the Racial Imbalance

Act.

The Strict Scrutiny Standard

Compelling State

Interest.

Narrow

Tailoring.

(1)

Are the means necessary; are there adequate race-neutral

alternatives?. CO -Q M

(2)

Is the policy proportional to the compelling

interest. CO to

(3)

What Is the Impact on Third

Parties?. CO CO

(4)

Miscellaneous Concerns; Deference to School Boards’ “Narrow

Tailoring. CO CO

The Goals of the Plan

. CO CR

Curricular Goals: “Promoting Racial and Ethnic Diversity,” “Increasing Educational Opportunities for All Students and Improving the Quality of Education,” “Ensuring Safety”

1C 1> CO

(1)

Are These Curricular Goals Compelling State Interests? ... lO

l> CO

(2)

Is the Plan Narrowly Tailored to These Compelling Interests?

. vO CO

(a)

Are the Plan’s Means Necessary to Achieve its Ends?

ÍO CO

(b)

Proportionality of the

Means. CO

(c)

Minimal Burden on Third Parties; the Issue of Stigma

c* 00

(3)

Plaintiffs’Arguments Do Not Apply in

Lynn. 00 CO

(a)

A White/Nonwhite Distinction Is

Appropriate. o CO

(b)

Additional Resources Would Not Have Been Adequate to Accomplish the Curricular Goals; the Significance of “Critical

Mass”. © 00 CO

Remedying the Effects of De Facto Segregation; “Reducing Minority

Isolation”.. 00 CO

(1)

Is this Remedial Interest

Compelling?. 00 CO

(2)

Is the Lynn Plan Narrowly Tailored to this Compelling

Interest?. © 00 CO

(3)

Race-Neutral Alternatives are not

Feasible. t> 00 CO

Interest (5): “Providing an Education to All Students that Satisfies Federal and State Constitutional Requirements”

CO 00 ©

(1)

The Command and Promise of Brown v. Board of Education

. CO

(2)

State Constitutional

Requirements. ©

Other Federal

Claims. ©

1..

Title

VI. ©

4% U.S.C. §

1981. ©

42 U.S.C. §§ 1985 ,

1986. ©

Article 111 of the Massachusetts Declaration of

Rights. ©

Applicable Principles of Constitutional

Interpretation. ©

The Lynn Plan and the Purpose of Article

111. ©

SJC Interpretation of Similar

Language. to

State Constitutional Harmony and Federal Constitutional Doubt

VI.

CONCLUSION

400

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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. 488 , 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”)

because it takes race into account in permitting children to transfer from their neighborhood schools to other schools within the district.

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”),

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 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”

does not depend on color, a child must interact with children of other

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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,

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

— 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— 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

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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.

The Comfort Litigation

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 indi

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vidual members,

the Superintendent of Lynn Schools,

the City of Lynn and its Mayor. In December 1999 the Commonwealth of Massachusetts intervened as a party defendant for limited purposes.

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 .

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 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.

Motions to Dismiss

The defendants moved to dismiss a number of the

Comfort

plaintiffs’ claims on the

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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 ex rel. Neumyer v. Lynn School Comm.,

131 F.Supp.2d 253, 254 (D.Mass.2001).

I also held that the Eleventh Amendment barred declaratory relief against the Commonwealth.

Id.

at 256 .

See infra

Section V.A.I.

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 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. 15, § II, ¶¶ 3, 4.

The city of Lynn submits yearly “entitlement reports” certifying the number of desegregative student transfers that occurred in its school sys

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tem 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.

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.

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 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 Rostan, and Ms. Mallett.

1977: The First Warning

In 1977, the Board of Education first confronted Lynn about the racial imba

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lance 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.

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.

1980s: Profound Changes in Lynn

Between 1980 and 2000 racial and ethnic minorities moved into Lynn in considerable 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 integrat

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ed 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 83% 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.

1986: A Series 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.

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 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:

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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.

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.

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

and cases of extreme hardship.

This Plan is the one that the plaintiffs challenge.

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

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or her neighborhood.

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.

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

population falls within -1-/15% of the overall percentage of minority students in the Lynn district.

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 48% and 78% 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

— when it would improve the racial balance of the sending

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 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.

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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 partnerships with the schools to improve the quality of instruction.

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-

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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.

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.

A Current Snapshot of the Lynn School District

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 northeastern — 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.

“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 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

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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).

Racial Balance or Imbalance

There are presently twenty-five schools in the Lynn system — eighteen elementary schools, four middle schools, and three high schools.

Under the Lynn Plan, “racially balanced” elementary schools in 2001-2002 had minority populations of between 43% and 73%; nine schools qualified.

Six schools were racially isolated.

Four elementary schools were “racially imbalanced.”

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%).

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 Afri

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can American students, and 79.8% of the Asian American students.

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 identi-fíably white schools.

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.

“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.”

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

; 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.

Observations by Participants

Since the Plan has been in place, Lynn school superintendent Nicholas Kostan 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.

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.

Expert Testimony

The expert testimony in this case corroborated the moving observations of the 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.

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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 eleventh grade students from all three of Lynn’s high schools. The 72-question survey, jointly designed by leading experts on school desegregation,

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 developmental 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, a developmental and social psychologist, respectively, viewed the data through the lens of their expertise: social and cognitive development, intergroup contact and attitudes, 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.

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 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

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group, have worked on projects across racial lines in their classes, feel comfortable in discussing issues across racial lines.

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.

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.

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

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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.

Drs. Dovidio and Killen: Social and Developmental Psychologist, Respectively

Drs. John Dovidio and Melanie Killen, a social and developmental psychologist, respectively, 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 science, including social and developmental 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 different racial groups; (2) authority support for interactions between members of the groups (that is, teachers and staff who advocate and facilitate the contact); (3)

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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.”

(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 white and nonwhite 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.

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 that many of the elementary schools feeding into it were racially balanced in their

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own right.

(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.

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 northeast 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 6% minority, Aborn from 35% to 12% minority, Cobbet from 83% to 86% minority, and Connery from 80% to 87%. 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

defacto

segregation that a neighborhood school system would bring. The areas that would need the most attention, the racial enclaves in northeast 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, 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 warrant, shrink its scope and limit its duration”).

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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 systems for which the school boards were found responsible. But when the records

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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,

508 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, 331 (1st Cir.1987). It is only logical to afford at least as much deference to a school board that voluntarily undertakes desegregation efforts.

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 eases, 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).

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.

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.

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,

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 riven 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 sense of community that crosses racial barriers, improved student discipline, a stable enrollment of white students, and safer schools.

The plaintiffs concede the importance of these goals. Indeed, they agree that Lynn schools are considerably better and safer than they were before the Plan was instituted. What they dispute is whether the race-conscious elements of the Plan are crucial to achieving these benefits, that is, whether the Plan’s use of race is narrowly tailored within the meaning of the law.

(2)

Is the Plan Narrowly Tailored to These Compelling Interests?

(a)

Are the Plan’s Means Necessary to Achieve its Ends?

As a general matter, the Lynn Plan necessarily meets the requirement of narrow tailoring: When a government’s ends are fundamentally concerned with race— and those ends are recognized as compelling — it is natural that race-conscious means provide the “snuggest fit” to those ends.

Brewer,

212 F.3d at 752 (finding that “there is no more effective means” of reducing racial isolation “than to base decisions on race”).

The evidence from defendants’ impressive array of experts established the essential relationship between the race-conscious aspects of the Plan and the curricular ends outlined above. The evidence establishes the following: If the compelling goal of the Plan is to train citizens to function in a multiracial world, actual intergroup racial contact is

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essential. No amount of

race-neutral

resource apportionment would accomplish this result. Second, intergroup contact cannot be achieved with only token numbers of minorities in a overwhelmingly white school (or

vice

versa). Third, there is a tipping point of 20% white or nonwhite students, well-recognized by experts in this field and dubbed the “critical mass,” that is crucial to catalyzing positive intergroup contact.

(b)

Proportionality of the Means

The Plan’s use of race is measured and proportional to these compelling goals. The policies that have been implemented are less intrusive than other potential means at the district’s disposal. Every parent can choose a neighborhood school for his or her child'. A parent has the further option of participating in the district’s integration effort. Should the parent choose to do so, his or her child is entitled to any transfer that does not exacerbate racial segregation in the schools.

There are no rigid quotas, no unchanging formula — even with respect to the 20% figure advocated by the experts. While the Plan aims for that number because of its acknowledged effect of improved race relations, only the demographics of Lynn at this time (42% white and 58% nonwhite) make it possible to achieve that number systemwide. In effect, the Plan has a hybrid goal that befits the complexity of the situation and evinces a sensitivity to all of Lynn’s constituencies — to maximize integration and aim for a minimum 20% minority representation, consistent with a neighborhood school system and Lynn’s demographics.

The Plan’s use of race is flexible, and of limited duration. An automatic shut-off mechanism is built in: If the racial composition of a school falls in line with the districtwide white/nonwhite ratio, the limits on transfers evaporate. In fact, because all of Lynn’s high schools meet the district’s racial balance standard, students may transfer freely among them, space permitting.

As the demographics of the city of Lynn change, so do the parameters of the Plan. It foists no more or no less “diversity” on the schools of the city than the demographics of the city and a neighborhood system allow.

(c)

Minimal Burden on Third Parties; the Issue of Stigma

Finally, Lynn’s chosen means place a minimal burden on innocent third parties. Nothing compels a school district to allow parents to choose their child’s school. There is no entitlement to attendance at a given school, and no special qualifications or prerequisites for admission to any school.

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Nor does any stigma attach to the failure to get one’s first choice of transfer school, or to the government’s recognition of an individual’s race. Part of the thrust of

Brown

was that

de jure

segregation sent a clear message to minority students that school officials believed they did not belong in classrooms with their white counterparts.

Brown,

347 U.S. at 493-94 , 74 S.Ct. 686 (“To separate [minority students] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”).

The Lynn Plan sends quite the contrary message — it conveys to all students that notwithstanding residential segregation, students of different races can and should coexist in integrated, cooperative learning environments, and that the school district is committed to encouraging that. Lynn uses race in school admissions not because an individual student’s race matters, but because the district recognizes that race relations matter. Dr. Dovidio testified that racial identity is a social construct: although racial differences are perceived and not real, that perception of difference has enough historical momentum that one must acknowledge it in order to defeat it. Race is the elephant in the room that does not go away until it is confronted.

It has been suggested that when a school district inquires into a child’s race at registration for school assignment purposes, that gesture, whatever the underlying motives, leaves an indelible scar on the child’s psyche.

See Tuttle v. Arlington Cty. School Bd.,

195 F.3d 698 , 707 & n. 12 (4th Cir.1999). Putting aside the fact that this view, as a general matter, would impugn remedial desegregation orders even in

de jure

cases, the Lynn school district’s commitment to promoting racial harmony and celebrating the city’s diversity deprives this argument of any specific force in this case.

Even if it were reasonable to conclude (and I find it highly doubtful) that students in Lynn come away from school registration with the mistaken belief that the district means to remind them of racial difference, everything about the Lynn experience is directed at clarifying and correcting this misapprehension. As Drs. Killen and Dovidio testified in their discussion of the “authority sanction” component of in-tergroup contact, Lynn’s teachers, administrators and staff are committed to the principle that students of all races are to enjoy equal status, that the city’s multiracial character is something to celebrate, and that students have much to gain from cross-racial relationships. Indeed, that Lynn officials have tried to accomplish their integrative purpose through a voluntary transfer system — with neighborhood schools absolutely available should parents so desire — speaks volumes about their sensitivity to third-party interests.

Unlike programs in colleges and universities, the Lynn Plan does not control access to any limited benefit. The parties agree that all students will get a comparable education. Curricula are standard and the differences between schools are largely variations on a theme. Competency levels are evaluated on a systemwide basis; if any given school falters, remedial action will be taken to ensure that it meets the standards set by its counterparts in the district.

Finally, there are no race-neutral adequate alternatives for integrating the school populations.

See infra

Section V.B.4.b(3).

(3)

Plaintiffs’ Arguments Do Not Apply in Lynn

The plaintiffs make several “narrow tailoring” challenges. First, they suggest

*379

that the Plan’s focus on racial minorities is inconsistent with the end of “genuine diversity.” Second, plaintiffs argue that the improvements in Lynn schools could have been accomplished through additional resources.

(a)

A White/Nonwhite Distinction Is Appropriate

There are sixty-five racial and ethnic groups within Lynn’s student population, the plaintiffs argue, and far from targeting classrooms that reflect the range of ethnic diversity in Lynn, the Plan’s notions of racial balance seek only to ensure extensive contacts between whites and nonwhites. Relying on

Wessmann ,

the plaintiffs claim that a policy that targets racial diversity, rather than “genuine diversity,” can never be narrowly tailored.

Plaintiffs’ critique is off the mark. The Plan does not target the “genuine diversity” that the First Circuit found absent in

Wessmann .

Wessmann ,

as I have noted, the court held that the Boston Latin School’s commitment to “racial and ethnic diversity” did not comport with the “genuine diversity” that a plurality of the Supreme Court approved in

Bakke

as a means to foster a robust exchange of ideas.

Wessmann,

160 F.3d at 798 . Bakke-type diversity is an expressive “diversity of viewpoints” and is predicated on the notion that people of different backgrounds will make unique contributions to academic discourse. As such, it “encompasses a far broader array of qualifications ... of which racial or ethnic origin is but a single though important element.”

Id.

(quoting

Bakke,

488 U.S. at 315 , 98 S.Ct. 2733 ) (internal quotation marks omitted). In any case, race classifications directed at viewpoint diversity, the

Wessmann

court held, are nothing more than mechanisms for “racial balancing” based on broad generalizations about the contributions different races and ethnic groups will make to the classroom.

Wessmann,

160 F.3d at 799 .

The Lynn Plan does not pursue “racial balancing” toward the end of filling stereotyped “viewpoint” niches. As I stated earlier:

The diversity interest defendants argue here makes no assumptions about any groups’ unique contribution. Rather, it reflects a concern that elementary school children simply get used to being in classrooms with people different from themselves. In fact, it assumes that the more diverse a classroom is, the more likely students will learn that all people are different no matter what their color or ethnic background. It is not a form of stereotyping, but a method to prevent the formation of stereotypes.

Comfort,

100 F.Supp.2d at 65, n. 12 . If the goal is to block the formation of stereotypes and racist attitudes, the most effective route, bar none, is to promote multiracial interaction.

The Lynn Plan’s white/nonwhite distinction does indeed, as the plaintiffs suggest, “paint with a broad brush,” but one that precisely reflects the facts on the ground in Lynn. Lynn school officials and teachers observed that in the years predating the Plan, racial divisions and ethnic conflict between students occurred predominantly along a white/nonwhite axis. The growing gap in understanding between these groups burdened the schools in ways that more precise shades of racial and ethnic difference did not.

Defense experts cited evidence in developmental psychology to support the view that tolerance of difference begins with acceptance of

visible

difference. A white elementary school student is more likely to differentiate himself from an English-speaking student in a racial minority than

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for a white European immigrant student who does not speak his language.

In fact, were Lynn to set its eye on a “true diversity” that reflected in each school the range of sixty-five ethnicities represented in its student body, the Plan’s use of race (and now ethnicity as well, which is also subject to strict scrutiny,

see Bakke,

438 U.S. at 290 , 98 S.Ct. 2733 ) would be substantially

more intrusive

than is currently the case. The Plan is crafted to use race only as frequently as is necessary to produce a measure of racial diversity that is meaningful enough to enable the schools to teach their students citizenship in a multicultural society.

See Jacobson,

961 F.2d at 102 (citing

Swann,

402 U.S. at 16 , 91 S.Ct. 1267 ).

(b)

Additional Resources Would Not Have Been Adequate to Accomplish the Curricular Goals; the Signifícance of “Critical Mass”

Plaintiffs’ second argument is that Lynn could have accomplished the stunning turnaround in the fortunes of its schools since the 1980s with race-neutral policies. They contend that other components of the Plan — new facilities, increased funding from the state, teachers’ commitment to and cultivation of equal status and diversity — amply account for the strides that Lynn’s schools have taken.

Implicit in the plaintiffs’ critique are two others: (1) Integrated classrooms are not necessary to achieve the curricular benefits Lynn touts. Merely deluging the system with additional resources would surely do the trick. And (2) even if integrated classrooms are necessary, this race-conscious plan is not required to accomplish them. A free choice plan coupled with magnet school incentives would have been as effective. Because it bears on Lynn’s compelling interests in reducing

de facto

segregation as well as the district’s curricular goals, I will address (2) in a separate Section V.B.4.b(3),

infra,

on whether the Lynn Plan was necessary to effect system-wide integration.

Deluging the system with resources— without the race-conscious transfer policy — would not have been adequate. With respect to intergroup contact, the number of students in a classroom of a racial minority matters. Abstract instruction about racial tolerance is insufficient without meaningful contact with students of a different race. Social science literature — including social and developmental psychology literature — cited by the defendants’ experts instructs that racial isolation adversely impacts both minority attitudes and the attitudes of those in the majority. This impact becomes more pronounced as a racial minority within a group dwindles in size.

There is a point at which the presence of a racial minority becomes substantial enough to catalyze intergroup relations, a

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tipping point” or “critical mass”

: Defendants’ experts were unanimous on this issue. Dr. Killen analogized the accrual of intergroup contact benefits to a continuum: as a school’s racial balance increases, racial tolerance accrues. Studies suggest, however, that the most significant increase in benefits occurs as the share of a school’s racial minority students surpasses the 20% mark. The direct observations of the experts on the ground in the Lynn schools buttress this view,

as did the testimony of teachers, students and administrators.

Plaintiffs counter by suggesting first, that even a few minorities are enough to achieve the effects the Lynn Plan seeks, second, that even if “more” integration is needed, no research provides support for a specific percentage, and finally, whatever the legitimacy of the “critical mass” concept, it is not effected in Lynn. After all, the Plan, keyed to the demographics of the city, does not necessarily assure the critical mass. Several schools already have fallen out of line. Moreover, plaintiffs’ expert, Dr. Rossell, testified that as long

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as schools maintain

some

degree of heterogeneity (the amount, unclear) such that there is

some

percentage of both whites and nonwhites to interact cross-racially, it is possible to obtain benefits from inter-group contact.

Plaintiffs’ position is totally inconsistent with the credible evidence, and the aspects of the Plan that they identify as the weaknesses of the plan are in fact its strengths. As I have noted earlier, I find Dr. Rossell’s testimony to be less than credible and surely less reliable than the defense experts. Although Dr. Rossell based her opinions on twenty-six years of experience with other schools, she made no firsthand observation of Lynn’s schools and conducted no surveys or interviews of Lynn’s students, teachers, or parents.

See Wess-mann,

160 F.3d at 804 (discounting an expert’s testimony because it “relies on evidence from one locality to establish the lingering effects of discrimination in another”). In fact, at the time she formulated her opinion in this case and for some time afterward, Dr. Rossell’s understanding of Lynn’s student assignment process was fundamentally wrong. She insisted that it was a “controlled choice plan” that did not guarantee students access to their neighborhood schools. Not only did Dr. Ros-sell’s testimony reflect an unfamiliarity with the conditions in the Lynn district; it is not clear from the record that she

ever

understood exactly how the challenged practice in this lawsuit — Lynn’s school assignment policy — actually works.

And as to critical points in her testimony, Dr. Rossell has taken contradictory positions in the past. In this proceeding, she testified that there are no “concrete data” that show that a “critical mass” of minority students is a precondition for the success of intergroup contact techniques. Yet a 1983 publication to which Dr. Rossell was a major contributor advocated the very proposition she rejects here, namely, cultivation of critical mass of racial and ethnic minorities within schools.

In a striking admission for an expert, Dr. Ros-sell dismissed the earlier work as not based on “an ounce of research,” but instead “on people’s intuition.” And she testifies as an expert in this case against the Lynn Plan, a position diametrically opposed to the position she took in 1988, when she was a consultant to the Lynn schools and noted that Lynn “stood an excellent chance” of desegregating its schools.

In any event, Dr. Rossell’s current positions are without basis. It cannot be her position that there are no scientifically acceptable studies validating the concept of “critical mass.” There plainly are, and the defense experts noted, summarized, and cited them — in testimony that I credit. Rather, what she seems to be saying is that the studies and conclusions of social and developmental psychologists somehow do not count, no matter how esteemed the scholar or how peer-reviewed and accepted are his or her findings. To Dr. Rossell, the only satisfactory proof would be statistical, the result of a rigorous multiple regression analysis that quantified intergroup contact benefits and statistically isolated those that were directly attributable to classroom integration.

*383

Defense experts suggest that such a study cannot be done in Lynn, and indeed, need not be done. For example, Dr. Dovi-dio noted that the study Dr. Rossell suggested could not be done in Lynn because the range of racial balance (or imbalance) in Lynn’s schools is not broad enough to conduct a meaningful study of this kind. Isolation of the importance of racial balance to intergroup contact efforts might be possible if the range were broader — that is, if some schools enrolled as few at 6% white or nonwhite students. At best, Dr. Dovidio explained, the study that Dr. Ros-sell proposed “doesn’t provide a critical test of [whether] the plan [is] working, it just says within the context of a plan that is working, is more [minority representation] better?”

Moreover, such a study need not be done. Desegregation experts and social and developmental psychologists nationwide, using methodologies established in their fields, have conducted studies, published their findings, presented papers, and even testified in court as experts, all concluding that a critical mass of 20% facilitates intergroup contact. Just because Dr. Rossell, a political scientist, rejects their approach does not mean that I should as well. Plainly, not everything admits of quantification.

This is not a case of scientific precision, where too much or too little of an active ingredient ruins a chemical reaction — and scientific precision should not be required.

See Parent Ass’n of Andrew Jackson High School v. Ambach

(hereinafter

“Andrew Jackson II”),

738 F.2d 574, 580-81 (2d Cir.1984) (requiring, for narrow tailoring purposes, that a race-conscious school assignment plan’s articulate a “tipping point” for white flight that triggered not “the

only

significant drop in white enrollment,” but that triggered “(on average) the

most

significant drop”).

The dynamics in this case — interpersonal relations — are far more complex than that.

Statistical analysis may suffice to establish narrow tailoring in remedial cases, where the state’s compelling interest is to correct minority under-representation within an institution, that is, where the wrong to be righted is quantifiable. Where, as here, the compelling interest fundamentally relates to shaping human growth and relations, a Rossell-style multiple regression analysis cannot be necessary — and arguably could not be sufficient on its own — to justify the use of race.

Finally, plaintiffs contend that “critical mass” is obviously not essential because some Lynn schools have achieved positive race relations without these numbers, pointing particularly to the Fecteau-Leary middle school.

The defendants’ response to this is more convincing. First, as they have noted, the 20% mark is aspirational, not written in stone. The Plan seeks to achieve that level in a manner that is consistent with a neighborhood school model of a student assignment that is in turn keyed to the demographics of Lynn. In any case, all defense experts credibly suggest a continuum of effects leading to the point when intergroup contact is finally

*384

significant. It would be absurd to suggest that when a school dips marginally below 20% critical mass, a climate of racial tolerance evaporates and racial infighting instantly follows.

In any case, what the plaintiffs view as a fatal flaw, I understand to be a point in the Plan’s favor. Plaintiffs claim that Lynn’s student assignment policy is not narrowly tailored because it is not designed to guarantee a 20% critical mass in every school misses the mark. The Lynn Plan is not a “20% no matter what” plan; the use of race only triggers when the schools pertinent to a proposed transfer deviate too much from distrietwide demographics. Were the Plan calibrated to yield, without fail, a 20% critical mass in every school, it would risk characterization as a quota, be needlessly rigid and neglectful of changing conditions in Lynn. Likewise, it would override the wishes of parents who want their children to attend their neighborhood schools and would entail a more intrusive use of race in school assignment than the Lynn Plan currently provides. As such, it would hardly be “narrowly tailored.”

In fact, plaintiffs’ position turns on its head the very purpose of the narrow tailoring requirement, to invalidate a program because it does not use race

enough

to establish a perfect “fit” between means and end. As I noted before, the Plan’s goals are hybrid and flexible: It effectively generates integration in Lynn’s schools in such quantity as to catalyze intergroup contact while still respecting the neighborhood school principle and Lynn’s ever-changing demographics. As such, it ensures all the corollary educational benefits to which the parties stipulate.

Remedying the Effects of De Facto Segregation: “Reducing Minority Isolation”

(1)

Is this Remedial Interest Compelling?

An important goal of the Lynn Plan is to ameliorate the effects of

de facto

residential segregation. It cannot change demographic patterns. It chose not to trench on the ability of a parent to send his or her child to a neighborhood school. Rather, the Plan tries to shape educational environments that neutralize the effects of these patterns, to make certain that these patterns are not determinative of a child’s opportunity.

Comfort,

100 F.Supp.2d at 65 n. 12.

A number of adverse educational effects flow from racially segregated schools, as described generally in the Kiernan Report that led to the RIA’s enactment, and, more importantly, in the record in this case. In the 1980s the increasing racial polarization of Lynn schools, created in part through official misconduct, led to documented inequalities within the system: minority schools had inferior materials and facilities and the more experienced teachers transferred to the better funded, managed, and maintained white schools.

It would make no sense if Lynn officials were obliged to take responsibility for addressing these adverse consequences but at the same time were constitutionally barred from taking voluntary action aimed at nipping some of these effects in the bud. In effect, what the Plan sought to do was to forestall the development of racially isolated schools before the separation and the inequities become so intense that even

*385

more intrusive action — perhaps court-ordered — was required.

Plainly the “reduction of racial isolation resulting from de facto segregation can be a compelling government interest justifying racial classifications.”

Brewer,

212 F.3d at 758. In

Brewer

the Second Circuit vacated a district court’s preliminary injunction suspending the race-conscious elements of a student assignment plan very much like the one presently before this Court. The plan at issue in

Brewer

allowed students to transfer from their neighborhood schools under strict conditions:

[O]nly minority pupils are allowed to transfer from “predominantly minority city schools” to participating suburban schools, and non-minority students may transfer from suburban schools to city schools provided that their transfers “do not negatively affect the racial balance of the receiving school.”

Id.

at 742. The Second Circuit found that the plaintiff parents were not likely to succeed in their challenge to these race-based restrictions on transfers.

The

Brewer

court relied on the

“Andrew Jackson

cases,” in which the Second Circuit held that a school district may take affirmative steps to combat

de facto

racial imbalance, even though such steps are not constitutionally required.

See Parent Ass’n of Andrew Jackson High School v. Ambach

(hereinafter

“Andrew Jackson I”),

598 F.2d 705, 713-14 (2d Cir.1979); see

also Andrew Jackson II,

738 F.2d at 581 n. 9. Like

Brewer,

the

Andrew Jackson

cases dealt with integration plans restricting the availability of student transfers that exacerbated conditions of racial imbalance. Specifically, the New York City school district implemented a “Controlled Rate of Change” scheme designed to reduce racial imbalance at the predominantly minority Andrew Jackson High School in Queens. Minority students in the school’s attendance zones were given the opportunity to attend any high school in New York City whose student body was more than 50% white.

Andrew Jackson I,

598 F.2d at 710-11 .

There was a further restriction due to the district’s concern that these transfers might trigger “white flight”; minority students could not transfer to schools in such numbers as to alter the racial balance by 4% or one fourth of the difference between the school’s white enrollment and a 50% white enrollment (whichever was less).

Id.

at 711-12 .

The

Andrew Jackson

court, applying strict scrutiny,

id.

at 718 , affirmed the Plan. It agreed that integration — or “inhibiting the process of resegregation”— was in itself an end sufficient to justify the racial classification.

Id.

at 718 (citing

Otero v. New York City Housing Awth.,

484 F.2d 1122 , 1140 (2d Cir.1973) (affirming a housing authority’s ability to limit the availability of units to would-be tenants based on their race, “where it can show that such action is essential to promote a racially balanced community”)).

*386

As I explained above, the defendants in the present case offered substantial expert testimony as to the educational benefits that obtain from reducing minority isolation and

de facto

segregation in public schools. In this respect I predicate my conclusion, that reducing minority isolation is indeed a compelling interest that can justify race-conscious student assignment, on a record far more developed than the district and appeals courts had before them in the

Andrew Jackson

cases, or in

Brewer.

(2)

Is the Lynn Plan Narrowly Tailored to this Compelling Interest?

There is no doubt that Lynn’s race-conscious restrictions on voluntary transfers actually reduce minority isolation. The evidence is uncontroverted— and the logic unquestioned — that Lynn’s Plan, which forbids white students from transferring into and minority students from transferring out of schools regarded as “racially isolated.” Arguably, since the Plan’s attention to a student’s race is strictly limited to contexts in which a proposed transfer would exacerbate an identified condition of racial isolation, it is by definition narrowly tailored to the Lynn Defendants’ stated purpose of reducing racial isolation.

But that logic obviously cannot alone vindicate the Plan’s use of race. Lynn has to justify the specific parameters it has settled upon, and whether there are race-neutral alternatives to their use. A broader view of racial isolation, for example, would justify the use of race

often. If, for example, Lynn narrowed the range of allowable deviation from districtwide percentages to 1%, a school would be “racially isolated” in the 2001-2002 school year if fewer than 57% of its students were minorities. More schools would fit the definition of racial isolation, and the race-conscious restrictions on transfers would trigger more often. If Lynn is to appeal to “reducing racial isolation” as a compelling government interest, it must answer, in the context of narrow tailoring, for its definition of what “racial isolation” is.

I conclude that Lynn’s definition of racial isolation is appropriately calibrated. As the Second Circuit’s review of the school district’s 50% tipping point marker in

Andrew Jackson II

illustrates, this is an inexact science. A race-conscious recourse must be minimally intrusive, but it must also have enough force to effectuate its ends in a meaningful way,

see Wessmann,

160 F.3d at 810 (Boudin, J., concurring). This is a difficult channel for a school district to navigate, and if a court gives too little leeway, strict scrutiny becomes what the Supreme Court never intended it to be — “fatal in fact.”

See Adarand,

515 U.S. at 237 , 115 S.Ct. 2097 (quoting

Fullilove v. Klutznick,

448 U.S. 448, 519 , 100 S.Ct. 2758 , 65 L.Ed.2d 902 (1980) (Marshall, J., concurring)).

In this case Lynn’s definition of racial isolation is narrowly drawn. First, if the goal is to prepare students to live in a multiracial world, it makes sense to begin with an environment reflective of that world, namely, the demographics of the City of Lynn. The measure of balance that Lynn has selected, as Dr. Orfield, an expert on desegregation planning, noted, was tied to the overall breakdowns within the district, and so typical of desegregation efforts.

Cf. Belk v. Charlotte-Mecklenburg Bd. of Education,

269 F.3d 305 , 319 (4th Cir.2001) (observing that “the plus/minus fifteen percent variance is clearly with

*387

in accepted standards, and provides a reasonable starting point in the unitary status determination”). Second, the demographics of Lynn’s school-age children (42% white and 58% nonwhite) ensure that the most racially isolated schools in the district, Lynn Woods (25%), Sisson (27%), and Shoemaker (30%), have at least a “critical mass” of minority students. Third, the plan attempts to minimize racial imbalance and isolation while preserving neighborhood schools and eschewing forced busing.

(3)

Race-Neutral Alternatives are not Feasible

The plaintiffs maintain that, even if (as I have concluded) an improved racial balance in Lynn’s schools is crucial to Lynn’s educational goals, there were race-neutral methods of assignment that could have been adequate.

McArdle’s analysis of residential patterns in Lynn suggests that residential segregation is deepening. She described a community with neighborhoods that are growing increasingly segregated by race— in her expert opinion, that would not change in the next five to ten years. McArdle and Drs. Dovidio, Killen, and Or-field all predicted that Lynn’s schools would become more and more racially identifiable if students were allowed to attend only their neighborhood schools. In fact, McArdle gave evidence that, if school attendance zones were to remain intact, a neighborhood-only plan would reduce the minority population of Lynn Woods from 24% to 8%, Shoemaker from 30% to 6%, and Aborn from 35% to 12%. Conversely, minority populations would increase at Cobbet, from 83% to 86%, and at Connery, from 80% to 87%.

Dr. Rossell’s rebuttal was curious. She suggested that the school could redraw the neighborhood attendance zones to maximize integration. To be sure, Dr. Rossell did not bother to verify the feasibility of this alternative against the particulars of Lynn’s geographical residential patterns.

Moreover, she conceded that, as McArdle described, there is a large “separate and physically distinct” portion of northeastern Lynn that is predominantly white, but she could not explain how attendance zones would be drawn to integrate neighborhood schools given this geographic dispersion.

Indeed, Superintendent Kostan, with far greater experience in Lynn, predicted that “even if we redistricted, you still would have predominantly ... minority schools and predominantly racially isolated white schools.”

While I agree with Dr. Rossell that it may always be

possible

in theory to craft attendance zones so that they draw equally from geographically separate racial enclaves, at a certain point they would be “neighborhood schools” in name only. Students would be required to travel con

*388

siderable distances to attend schools that are suddenly, by the fiction of redistricting, announced to be in their “neighborhood.” Students in the city’s minority core would be obliged to go to school in the overwhelmingly white northeastern region of Lynn (and

vice versa).

In fact, it is hard to imagine how, given Lynn’s existing pattern of residential segregation, the district could redraw its neighborhoods to desegregative effect without compromising the integrity of the neighborhood-school principle and, worse yet, initiating forced busing.

In contrast, the Lynn Plan, which guarantees a student’s admission to a “true” neighborhood school and affords additional options subject to overt racial restrictions, is more flexible and less restrictive than would be a race-motivated redrawing of neighborhoods.

Dr. Rossell also suggested that Lynn could create real magnet programs that would draw white students voluntarily from their predominantly white neighborhood schools into minority identifiable schools, and

vice versa.

Again, however, Superintendent Kostan, citing data culled by Lynn’s PIC on trends in transfer requests, and Lynn’s past experience, testified that a pure choice plan would result in resegregation: “trends would indicate that if you implemented a plan such as that, you probably would find that minority students would gravitate to racially isolated minority schools and white students would gravitate to racially isolated white schools.” And in fact. Lynn tried, without success, in the 1980s to draw white students into a magnet school in a minority neighborhood.

Studies by the Lynn PIC of parent preferences in Lynn show that minority parents favor schools in minority-dominated areas and white parents prefer schools in white areas. Parents tend to seek transfers to neighborhood schools contiguous to their own, as opposed to schools across town, with the result that — regardless of whether they intend to self-segregate— they choose schools in their own racial enclaves. Lynn school official and PIC director Janet Birchenough observed that white parents request 500 to 800 segre-gative transfers in a given year under the current Plan; all of these would have to be approved under a free-choice plan. Given the likelihood that free choice would result in still more requests for segregative transfers than are made presently (as the deterrent restrictions on such transfers would have been eliminated), it is difficult to see how a comparable measure of desegregation can be achieved this way.

Birchenough testified that Lynn has also considered school assignment by lottery. A lottery would randomly arrange students on a list; the school would make its assignments by proceeding down the list, accepting every parent’s first school choice, unless the favored school was al

*389

ready filled. In that case the student would be assigned to his second choice, and so on. This policy suffers from the same flawed underpinnings: the PIC has documented trends showing that white parents tend to choose schools that are predominantly white, and nonwhite parents favor predominantly nonwhite schools.

In fact, even to the extent that white and nonwhite students would seek transfers to the same school, resort to a lottery system would not result in an integrated population at that school. The PIC’s data demonstrate that under the current Plan white parents tend to bid for transfers much earlier in the year than do minority parents. Minority parents move into and between locations in the city more often, due to their comparative socioeconomic disadvantage. They are often not in a position to consider their children’s school options in March and April and May, when white parents typically register their children. Most minority registrations occur later in the year, particularly on the cusp of the school year in August and September.

According to Birehenough, the district could not feasibly hold a single end-of-summer lottery to determine school assignments for the entire district in order to accommodate minority parents. In order to make appropriate staff assignments and resource allocations, the district must have some measure of notice of what schools its students will be attending. Conversely, a monthly lottery system that slotted students beginning in March would be workable, but it would effectively result in white students obtaining their first choice placements before minority students even articulate their preferences. If there are schools that white and nonwhite students both want to attend, the monthly lottery system would ensure that these schools remained predominantly white.

100

Interest (5): “Providing an Education to All Students that Satis-fíes Federal and State Constitutional Requirements”

(1)

The Command and Promise of Brown v. Board of Education

The Lynn defendants argue that the Plan “serves the compelling state interest in voluntarily achieving the ‘clear command’ of

Brown v. Board of

Education.” While I conclude that the defendants are wrong to suggest that the Lynn Plan is

compelled

Brown ,

since there is no evidence of ongoing

de jure

segregation, they surely have an interest in fulfilling the

promise

Brown .

For nearly fifty years, courts have recognized that eliminating school segregation — whatever its cause — is a proper and compelling govern

*390

mental objective. While the courts in recent years have imposed more demanding requirements on the

means

to achieve integration, they have never repudiated the

goal.

Clearly, there was a period in time— during the 1970s and 1980s — when Lynn was vulnerable to a suit challenging the acts of school officials who knowingly exacerbated racial segregation within the district. But that moment passed, headed off by the very Plan in contention here. To be sure, it cannot be credibly suggested that this Plan in 2003 is narrowly focused on remedying the effects of 1980s discrimination.

101

The focus has to be in the present. And today, if Lynn eliminated the Plan, school segregation would follow directly on the heels of residential segregation. While Lynn contends that lifting the Plan’s restrictions, with knowledge of what would follow, would expose them to a charge of discrimination,

see, e.g., Diaz v. San Jose Unified School Dist.,

733 F.2d 660 , 670-71 (9th Ci

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