Appendix — Comfort ex rel. Neumyer v. Lynn School Committee

App.ll

provisions of the Lynn Plan did not violate Article 111 of

the Massachusetts Declaration of Rights. Id, at 393-400.

A panel of this court reversed, holding that the Plan

could not the survive strict scrutiny review required by

the Equal Protection Clause. Relying on the Supreme

Court's decision in Grutter upholding a race-conscious

admissions policy at the University of Michigan Law

School, the panel recognized a compelling interest in

“obtaining the educational benefits of a racially diverse

student body.” Comfort v. Lynn Sch. Comm., No. 03-

2415, slip op. at 30 (1st Cir. Oct. 20, 2004), withdrawn by

2004 WL 2348505 (lst Cir. Nov. 24, 2004). It concluded,

however, that the Plan is not narrowly tailored to that

interest because it uses race “mechanically” and “forgoes

individualized consideration of transfer applications.” Id.

at 40. The panel also citec' other narrow tailoring flaws,

including the Plan's breadth and indefinite duration. We

granted en banc rehearing and now affirm.®

II. Standing

“(T]he general rule is that a court should first confirm

the existence of rudiments such as jurisdiction and

stending before tackling the merits of a controverted

case." Berner v. Delahanty, 129 F.3d 20, 23 (ist Cir.

1997). This is because “standing is a necessary

concomitant to the court's power to adjudicate a case.”

R.L. Ass'n of Realtors v. Whitehouse, 199 F.3d 26, 30 (ist

Cir. 1999). Thus, we begin by considering the plaintiffs’

standing.

To establish standing in federal court, a party must

demonstrate three things:

First, the plaintiff must nave suffered an “injury

in fact” -- an invasion of a legally protected

interest which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or

hypothetical. Second, there must be a causal

*We express our appreciation ty the many amici curiae for their

valuable assistance.

App.12

connection between the injury and the conduct

complained of -- the injury has to be fairly

traceable io the challenged action of the

defendant, and not the result of the independent

action of some third party not before the court.

Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992) (citations and internal quotation marks omitted).

The plaintiffs must have standing to obtain both forms of

relief they seek: an injunction against the race-conscious

aspects of the Plan and a declaration that the RIA is

facially unconstitutional. See Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185

(2000).

With respect to the Lynn Plan, one Bollen plaintiff

(Gina Leone) clearly meets the threshold standing

requirement. Leone sues on behalf of her minor son, Troy

Lamothe, whose transfer request was denied on the

ground that it would be segregative. The fact that Troy

was allowed to attend the school of his choice pending the

outcome of this litigation does not defeat standing. See

Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731,

735 n.3 (ist Cir. 1995) (accepting plaintiffs standing

despite agreement not to enforce disputed ordinance

pending outcome of litigation). So long as one plaintiff

has standing to seek a particular form of global relief, the

court need not address the standing of other plaintiffs

seeking the same relief. See Watt v. Energy Action Educ.

Found. 454 U.S. 151, 160 (1981); Houlton Citizens’

Coalition v. Town of Houlton, 175 F.3d 178, 183 (1st Cir.

1999).

Standing to seek injunctive or declaratory relief

against the RIA is a different matter. The parties

stipulated, and the district court confirmed, that the

mandatory portion of the RIA (i.e., the provision under

which the Board of Education can require a district to

App.13

adopt a plan to reduce racial imbalance) has not been

applied to Lynn. Comfort IV, 283 F. Supp. 2d at 367. The

plaintiffs nevertheless launch a facial attack against the

RIA's mandatory provisions, Mass. Gen. Laws ch. 71,

§37D, contending that they offend the Fourteenth

Amendment Equal Protection Clause and Article 111 of

the Massachusetts Constitution by giving white children

a right to transfer out of isolated schools and nonwhite

children a right to transfer out of imbalanced schools, but

not vice versa (i.e., white children cannot transfer out of

imbalanced schools and nonwhite children cannot

transfer out of isolated schools). Even if that is true in

theory, the plaintiffs cannot overcome the fact that only a

person who was denied a transfer on the basis of the

mandatory provisions of the RIA has standing to

challenge them.

The mandatory provisions of §37D apply only to

school districts that refuse to create voluntary plans to

combat identified racial imbalance. See Sch. Comm. of

Springfield v. Bd. of Educ., 319 N.E.2d 427, 429 (Mass.

1974). Lynn never refused to take action; rather, it

drafted and implemented a voluntary plan. The plaintiffs

therefore have not suffered a cognizable injury from §37D

of the RIA.” Accordingly, they lack standing to seek a

declaration as to its validity.

The plaintiffs also lack standing to seek injunctive or

declaratory relief against the RIA provisions that offer

incentives to districts that voluntarily adopt plans to

combat racial imbalance. See Mass. Gen. Laws ch. 15, "

il, iJ, 1K; id, ch. 71, §37C. Redressability, one of the

prerequisites for standing, see N.H. Right to Life PAC v.

Gardner, 99 F.3d 8, 13 (lst Cir. 1996), requires a

substantial likelihood that the relief sought will in fact

remedy the alleged injury, Bonas v. Town of N.

Smithfield, 265 F. 3d 69, 73 n.4 (1st Cir. 2001). Plaintiffs

7Nor have the plaintiffs shown that they are under any imminent

threat of being subjected to these mandates.

App.14

describe their injury as both a racially-based denial! of

transfers and the stigma of their inability to “compete” on

equal terms for transfers. Even assuming arguendo that

this asserted injury is somehow traceable to the RIA, the

plaintiffs cannot show that an injunction against the

RIA's incentive provisions will lead to racially

unrestricted transfers within the Lynn public schools or

eliminate the perceived stigmatic harm.

This point is apparent from the record. Under the

terms of the RIA, Lyun has received state funding for

construction and busing based on its voluntary efforts to

combat racial! imbalance. Even if we directed the Board to

distribute aid without regard to racial balancing efforts,

the plaintiffs have not demonstrated that redress would

likely follow. There is no reason to believe that Lynn

would cancel its transfer program merely because state

funding was no longer contingent on it.

In an effort to sustain their claim, the plaintiffs and

amicus Pacific Legal Foundation also present a second

theory for prospective relief. They assert that the

incentive provisions of the RIA are effectively mandatory

because they coerce school districts to adopt race-

conscious plans by tying state aid to the adoption of those

plans. There is a flaw in this argument. While the RIA's

incentive provisions reward schools that address racial

imbalance, they do not dictate a procedure or

methodology by which schools must do so. See Mass. Gen.

Laws ch. 15, §11; id. ch. 71, §37C. Given the absence of a

requirement that schools adopt race-conscious plans to

comply with the RIA, the plaintiffs have not shown that

the incentive provisions of the RIA are causally

responsible for the voluntary adoption of race-conscious

transfer policies.

Even if the plaintiffs did have standing to mount a

facial challenge to the voluntary provisions of the RIA, we

agree with the district court that such a challenge would

fail. Comfort IV, 283 F. Supp. 2d at 367-68. "A facial

challenge to a legislative Act is .. . the most difficult

challenge to mount successfully, since the challenger

App.15

must establish that no set of circumstances exists under

which the Act would be valid.” United States v. Salerno,

481 U.S. 739, 745 (1987). Such circumstances exist here.

As the district court recognized, "[a] school district may

theoretically adopt a plan that improves racial imbalance

without explicitly introducing race-based criteria at all.”

Comfort IV, 283 F. Supp. 2d at 367-68 & n.77 (noting that

"if a small district with racially identifiable school

attendance zones built a single central elementary,

middle, and high school to absorb its entire enrolled

student populations, this strategy would qualify as a

racial balancing plan under the RIA, and it would not

trigger any equal protection scrutiny"); see also Boston's

Children First v. Boston Sch. Comm,, 260 F. Supp. 2d

318, 327 (D. Mass. 2003) (finding that the RIA's goals

may be satisfied by race-neutral methods), affd sub nom.

Anderson v. City of Boston, 375 F.3d 71 (1st Cir. 2004).

Ifl. Federal Equal Protection Claims

The main issue on appeal is the constitutionality of

the Lynn Plan's race-conscious transfer restrictions. The

plaintiffs contend that by mechanically taking race into

account, the Plan viclates the Equal Protection Clause of

the Fourteenth Amendment and various federal civil

rights statutes. The resolution of the federal statutory

claims depends on the fate of the constitutional challenge.

See infra Part III.D. Consequently, we focus on the equal

protection issue.

A. Standard of Review

We review the court's findings of fact for clear error

and its legal conclusions, including its application of the

law to the facts, de novo. See Wessmann v. Gittens, 160

F.3d 790, 795 (ist Cir. 1998).

The Supreme Court has reviewed racial classifications

under the strict scrutiny standard, which requires that

the policy be narrowly tailored to a compelling state

interest. Grutter, 539 U.S. at 326; Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 227 (1995). The defendants

App.16

urge us to apply a more relaxed standard here. They

emphasize that although the Plan is race-conscious, it is

unlike affirmative action because it affects whites and

nonwhites equally.

This argument is foreclosed by the Supreme Court's

recent decision in Johnson v. California, 125 S. Ct. 1141

(2005). There, the Court considered an unwritten policy of

the California Department of Corrections whereby

inmates are segregated by race for up to sixty days after

entering a new correctional facility. Rejecting the State's

argument that its volicy should be subjected to relaxed

scrutiny because it “neither benefits nor burdens one

group or individual more than any other group or

individual,” id. at 1147, the Court explained that all

racial classifications

raise special fears that they are motivated by an

invidious purpose. Thus, we have admonished

time and again that, "[a]bsent searching judicial

inquiry into the justification for such race-based

measures, there is simply no way of determining

. . what classifications are in fact motivated by

illegitimate notions of racial inferiority or simple

racial politics." Richmond v. J.A. Croson Co., 488

U.S. 469, 493 (1989) (plurality opinion). We

therefore apply strict scrutiny to all racial

classifications to smoke out illegitimate uses of

race by assuring that [government] is pursuing a

goal important enough to warrant use of a highly

suspect tool.

Id. at 1146 (internal quotation marks omitted). This rule

applies in the present context just as firmly. The Plan

must be reviewed under strict scrutiny.

This standard is not "strict in theory, but fatal in

fact.” Id. at 1151; see also Grutter, 539 U.S. at 326-27

("Although all governmental uses of race are subject to

strict scrutiny, not all are invalidated by it.”). Strict

scrutiny “is designed to provide a framework for carefully

examining the importance and the sincerity of the

App.17

reasons advanced by the governmental decisionmaker for

the use of race in that particular context." Grutter, 539

U.S. at 327. We therefore bear in mind the court's

admonition that "[clontext matters when reviewing race-

based governmental action under the Equal Protection

Clause." Id.

B. Compelling State Interest

Until recently, there was some question as to whether

diversity could constitute a compelling interest in the

educational context. See Wessmann, 160 F.3d at 795-96.

The Supreme Court has now answered that question in

the affirmative, holding in Grutter that a law school's

interest in obtaining the educational benefits that flow

from a diverse student body was compelling enough to

justify the narrowly tailored use of race in admissions.

539 U.S. at 343.

Grutter involved a challenge to the University of

Michigan Law School's admissions policy, which took into

account racial and ethnic background as one of several

"soft variables” used in assessing applicants. Id. at 315.

The Law School justified this strategy as furthering its

goal of assembling a class that was both "exceptionally

. . » qualified and broadly diverse." Id, at 329. It also

sought to enroll a "critical mass" of minority students,

thereby enhancing its quest for broad diversity. Id. at

330.

The Grutter Court stressed that the Law School's plan

did not pursue a critical mass of minority students for its

own sake, but rather for the sake of obtaining the

educational benefits that flow from having a racially

diverse student body. Id. at 329-30 (acknowledging that

racial balancing for its own sake is unconstitutional).

These educational benefits include promoting cross-racial

understanding, breaking down stereotypes, fostering

livelier and better informed class discussions, and

preparing students to succeed in an increasingly diverse

society. Id. at 330. The Court largely deferred to the Law

School's educational judgment not only in determining

App.18

that diversity would produce these benefits, but also in

determining that these benefits were critical to the

school's educational mission. Id. at 328-33. The Court

warned, however, that “scrutiny of the interest asserted

by the Law School is no less strict for taking into account

complex educational judgments in an area that lies

primarily within the expertise of the university.” Id, at

328. Nevertheless, the Court concluded that the pursuit

of these benefits constituted a compelling state interest.

Id. In so ruling, it recognized “the overriding importance

of [education in] preparing students for work and

citizenship.” Id, at 331.

Against this background, we consider the interest that

Lynn's race-conscious Plan seeks to advance. This is not a

case where the racial classification is aimed at remedying

past segregation. See Comfort IV, 283 F. Supp. 2d at 390

n.101. Rather, the parties stipulated that Lynn's interests

include fostering integrated public schools and

what Lynn believes are [their] positive effects;

reducing minority isolation and avoiding

segregation and what Lynn believes are their

negative effects; promoting a positive racial

climate at schools and a safe and healthy school

environment; fostering a cohesive and tolerant

community in Lynn; promoting § diversity;

ensuring equal education and life opportunities

and increasing the quality of education for all

students.

The district court grouped these interests into two

categories: (i) reaping the educational benefits that flow

from having a racially diverse student body in each of

Lynn's public schools, and (ii) avoiding the negative

educational consequences that accompany racial

isolation.

Although there are some differences between these

interests, we conclude that they are essentially two sides

of the same coin. The negative consequences of racial

isolation that Lynn seeks to avoid and the benefits of

App.19

diversity that it hopes to achieve are rooted in the same

central idea: that all students are better off in racially

diverse schools. We therefore restate the interests at

stake here as obtaining the educational benefits of a

racially diverse student body.

Lynn maintains that ensuring a racially diverse

student body in its schools has produced, and will

continue to produce, many of the same benefits cited by

the Grutter Court: disarming racial stereotypes,

increasing racial tolerance, and preparing students to live

and work in an increasingly multi-racial society. The

defendants’ expert evidence also suggests that racially

isolated students often feel psychological burdens that

can lead to poor attendance and academic woes, and that

these effects can be combated by racial integration.

Consistent with these assertions, Lynn's schools have

indeed experienced many positive developments

including higher attendance rates, declining suspension

rates, a safer environment, and improved standardized

test scores -- since the Plan's inception.

In Lynn's view, these developments can be explained

by the intergroup contact theory. This theory holds that

“under certain conditions, interaction between students of

different races promotes empathy, understanding,

positive racial attitudes[,]) and the disarming of

stereotypes.” Comfort IV, 283 F. Supp. 2d at 356. Under

the intergroup contact theory, there are four basic

conditions for success: (1) equal status among racial

groups, (2) the presence of teachers and staff trained to

facilitate interactions between members of different

groups, (3) common goals and cooperative activities, and

(4) opportunities for personalized contact with a sufficient

number of children from different racial groups to disrupt

stereotypes. Id. at 356-57.

Lynn's experts explained that meaningful intergroup

contact (the fourth condition of intergroup contact theory)

requires that a school have a “critical mass” of students of

each group, i.e., white and nonwhite. Id. at 357. Lynn's

experts also testified, and the district court found, that

App.20

the benefits of intergroup contact continue to accrue as a

school becomes increasingly diverse. Id. Citing this theory

and crediting the defense experts who explained its

application in Lynn, the district court agreed that there

was a causal link between improvements in the school

system and increased racial diversity. Id. at 353-54.

While acknowledging improvements in the Lynn

schools since the Plan's inception, the plaintiffs disagree

that these changes can be attributed to the race-conscious

aspect of the Lynn Plan. More significantly, they also

contend that regardless of whether there are educational

benefits to racial diversity, Lynn does not have a

compelling interest in achieving those benefits. We

disagree.

Lynn's transfer policy expressly aims at attaining

racial diversity in the city's schools. Where a community

does not seek racial diversity for its own sake, but rather

to advance a compelling interest in the educational

benefits that diversity provides, there is no absolute bar

to pursuing racial diversity. See Grutter, 539 U.S. at 330.

The district court found that this was Lynn's purpose,

Comfort TV, 283 F. Supp. 2d at 375-76, and the record

supports that finding. We see no reason to second-guess

it. Cf. Grutter, 539 U.S. at 328 (stating that, typically, a

school’s “educational judgment that .. . diversity is

essential to its educational mission is one to which we

defer”).

The plaintiffs assert that, unlike Grutter, this case

does not implicate a compelling interest that would

justify the pursuit of racial diversity. The admissions

plan at issue in Grutter strove for diversity along many

axes, including race, in an effort to create a student body

with diverse viewpoints, thereby enriching classroom

discussion and academic experiences. See 539 U.S. at 329

("As part of its goal of assembling a class that is ...

broadly diverse, the Law School seeks to enroll a critical

mass of minority students.” (internal quotation marks

omitted)). The plaintiffs contend that Grutter’s

recognition of a compelling interest in “the educational

App.21

benefits that flow from student body diversity," 539 U.S.

at 330, is thus limited to the benefits that flow from

viewpoint diversity in the higher education context and

does not extend to the benefits that flow from racial

diversity in the K-12 context.

Again, we disagree. Lynn's asserted interests bear a

strong familial resemblance to those that the Grutter

Court found compelling. There is no reason to believe that

these interests are advanced by viewpoint diversity but

not racial diversity, or that they are substantially

stronger in the context of higher education than in the

context of elementary and secondary education. See

McFarland v. Jefferson Cty. Pub. Schs., 330 F. Supp. 2d

834, 852-53 (W.D. Ky. 2004) (reasoning that the benefits

recognized in Grutter also “accrue to students in racially

integrated public schools"); cf, Plyler v. Doe, 457 U.S. 202,

221 (1982) (emphasizing the importance of K-12

education "in maintaining the fabric of our society"). In

fact, there is significant evidence in the record that the

benefits of a racially diverse school are more compelling

at younger ages. See, e.g., Comfort [V, 283 F. Supp. 2d at

356 (summarizing expert's testimony that "[ijt 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”).

The plaintiffs correctly point out that the benefits

attributed to the Lynn Plan are not identical to those

described in Grutter. But Grutter teaches that the

compelling state interest in diversity should be judged in

relation to the educational benefits that it seeks to

produce. 539 U.S. at 330. The Lynn Plan uses race in

pursuit of many of the same benefits that were cited

approvingly by the Grutter Court, including breaking

down racial barriers, promoting cross-racial

understanding, and preparing students for a world in

App.22

which “race unfortunately still matters." Id, at 333.8

There are, of course, some variances between the benefits

sought. For example, the law school plan at issue in

Grutter focused on the advantages of viewpoint diversity

in the classroom, while Lynn emphasizes the positive

impact of racial diversity on student safety and

attendance. But it is natural that safety and attendance

issues will loom larger in elementary and secondary

schools than in graduate schools. Conversely, lively

classroom discussion is a more central form of learning in

law schools (which prefer the Socratic method) than in a

K-12 setting. These differences do not negate a

compelling interest in racial diversity in a K-12 setting.

Instead, they are the logical result of context.

We are persuaded by the extensive expert testimony

in the record, rooted in observations specific to Lynn, that

there are significant educational benefits to be derived

from a racially diverse student body in the K-12 context.

Lynn has a compelling interest in obtaining those

benefits. See Brewer v. W. Irondequoit Cent. Sch. Dist.,

212 F.3d 738, 752 (2d Cir. 2000); McFarland, 330 F.

Supp. 2d at 855.

C. Narrow Tailoring

Recognizing that public schools have a compelling

interest in obtaining the educational benefits of racial

diversity does not give schools a blank check to adopt

race-conscious policies. Rather, the government's use of

race must be narrowly tailored to achieve its compelling

interest. See Grutter, 539 U.S. at 333. "The purpose of

the narrow tailoring requirement is to ensure that ‘the

means chosen ‘fit’. . . thie] compelling goal so closely that

there is little or no possibility that the motive for the

classification was illegitimate racial prejudice or

stereotype.” Id. (quoting Richmond, 488 U.S. at 493).

"Notably, one of the studies that the Supreme Court cited as

demonstrating that diversity produces educational benefits was

authored by the defendants’ expert is this case, Dr. Gary Orfield.

App.23

Narrow tailoring generally requires the proponent to

show that a plan or practice is (i) necessary to the

declared purpose, (ii) proportional to the declared

purpose, and (iii) not more burdensome than necessary on

third parties. See United States v. Paradise, 480 U.S.

149, 171 (1987) (plurality opinion). It is a context-specific

inquiry that must be "calibrated to fit the distinct issues

raised" in a given case, taking “relevant differences into

account.” Grutter, 539 U.S. at 334 (internal quotation

marks omitted).

Although the Supreme Court has not yet considered a

constitutional challenge to a voluntary race-based

transf.. policy for elementary and secondary schools, its

recent opinions in Grutter and Gratz provide some

guidance for our narrow tailoring inquiry into the use of

race to obtain the educational benefits of diversity. Thus

we consider these cases further.

1. Gratz and Grutter

Gratz involved a challenge to the University of

Michigan's undergraduate admissions program. The

University automatically assigned twenty points -- one-

fifth of the 100 points necessary to guarantee admission -

- to an applicant from an underrepresented racial or

ethnic minority group. Gratz, 539 U.S. at 255. This

twenty-point bonus effectively made race/ethnicity

determinative for minimally qualified minority

applicants. Id. at 272. Grutter involved a challenge to the

University of Michigan Law School's admissions policy.

The Law School took race into account as one of several

variables in an individual's application. Grutter, 539 U.S.

at 340. It assigned no mechanical score based on an

applicant's race; instead, it considered race only as one of

several possible ways in which an applicant could enrich

the diversity of the student body. Id. at 315-16.

The Supreme Court struck down the undergraduate

admissions plan in Gratz while upholding the law school

admissions policy in Grutter. In arriving at these

decisions, the Court followed a four-part narrow tailoring

App.24

inquiry. First, a race-conscious program cannot

institutionalize a quota system or otherwise insulate one

category of applicants from competition with another

solely because of race. Id.; Gratz, 539 U.S. at 334. Second,

the government must consider whether there are any

workable, race-neutral alternatives. Grutter, 539 U.S. at

339. Third, the plan must not “unduly harm members of

any racial group." Id, at 341. Fourth, the use of racial

distinctions must be limited in time. Id, at 342.

Much of this inquiry is relevant here despite

significant differences between the competitive

admissions plans at issue ir. Gratz and Cirutter and the

Lynn Plan, which is non-competitive and governs only

student transfers, not initial assignments. The

requirement that the court consider race-neutral

alternatives addresses whether the Plan is necessary; if

there were a race-neutral way to achieve the benefits of

diversity and reduced racial isolation, the use of race

would be unnecessary and therefore not narrowly

tailored. The requirements that a race-conscious policy

not unduly harm members of any racial group and that it

be limited in time minimize the scope of the Plan,

ensuring that its use of race is no broader than necessary.

The weight of these considerations may vary somewhat

from the Grutter setting to ours, but they remain

applicable and we will return to them shortly.

The first Grutter criterion relating to competition,

however, is less useful to our narrow tailoring inquiry.

The University of Michigan admissions policies were

designed to “assemble a student body that is diverse in

ways broader than race.” Grutter, 539 U.S. at 340.

Individualized assessments, in which race was only one

consideration among many, were the most narrowly

tailored way to achieve such diversity. The mechanical

use of race, by contrast, would preclude an admissions

committee from considering students’ “background,

experiences, and characteristics to assess [their]

individual ‘potential contribution to diversity.” Gratz,

App.25

539 U.S. at 274 (quoting Regents of Univ. of Cal, v.

Bakke, 438 U.S. 265, 317 (1978) (opinion of Powell, J.)).

Unlike the Gratz and Grutter policies, the Lynn Plan

is designed to achieve racial diversity rather than

viewpoint diversity.’ The only relevant criterion, then, is

a student's race; individualized consideration beyond that

is irrelevant to the compelling interest. Cf, Brewer, 212

F.3d at 752 (If reducing racial isolation is -- standing

alone -- a constitutionally permissible goal, .. . then there

is no more effective means of achieving that goal than to

base decisions on race.”)

The concerns motivating the individualized

consideration requirement in a competitive, race-

preferential admissions context that focuses on diversity

along a number of axes (e.g., the Gratz and Grutter

policies) are simply not present in a non-competitive K-12

transfer policy aimed at racial diversity. Because

transfers under the Lynn Plan are not tied to merit, the

*As we have already discussed, gee supra Part III.B., the Lynn Plan's

focus on racial diversity rather than viewpoint diversity is the result of

contextual differences between higher education, where the emphasis

is on the exchange of ideas, and primary education, where the

emphasis is on fostering interracial cooperation. The district court

explained this point in distinguishing Grutter, which was then

pending vefore the Supreme Court:

In contrast [to Grutter], the “critical mass” sought by the

Lynn Plan is different, because Lynn's goal is not viewpoint

diversity. As I have said, at te elementary, middie, and

high echool level, the goal of teaching socialization is at

least as important as the subject matter of instruction. The

value of a diverse classroom setting at these ages does not

inhere in the range of perspectives and experience that

students can offer in discussions; rather, diversity is

valuable because it enables students to learn racial

tolerance by building cross-racial relationships. In this

context a meaningful presence of racial minorities -- and of

whites at minority-dominated schools -- is crucial not only to

reducing feelings of tokenisem, but also to disarming

stereotypes that students in the classroom majority might

harbor about st» dents of other races

Comfort [Y, 283 F. Supp. 2d at 381 n.90

App.26

Plan's use of race does not risk imposing stigmatic harm

by fueling the stereotype that “certain groups are unable

to achieve success without special protection.” Bakke,

438 U.S. at 298 (opinion of Powell, J.) (raising the

possibility of stigmatic harm in the affirmative action

context). There is also little chance that the decisive use

of race in a plan concerned strictly with racial diversity

creates the unwarranted presumption that race is a proxy

for viewpoint. See Gratz, 539 U.S. at 271 (recognizing this

as a risk when members of a group are favored based on a

presumption that “persons think in a manner associated

with their race"). Indeed, the Plan strives for exactly the

opposite result -- that is, to preempt racial stereotypes

through intergroup contact.

The plaintiffs emphasize that the Supreme Court has

also criticized the mechanical use of race on the ground

that it may breed cross-racial tension. As the Court

recently explained in considering a prison policy of

segregating prison inmates by race,

racial classifications threaten to . . . incite racial

hostility. Indeed, by insisting that inmates be

housed only with other inmates of the same race,

it is possible that prison officials will breed

further hostility among prisoners and reinforce

r¢ cial and ethnic divisions. By perpetuating the

notion that race matters most, racial segregation

of inmates may exacerbate the very patterns of

[violence that it is] said to counteract.

Johnson, 125 S. Ct. at 1147 (internal quotation marks,

citations, and emphasis omitted). These concerns,

however, are not applicable to the Lynn Plan, which

takes race into account to foster intergroup contact rather

than to segregate. As the Johnson Court acknowledged,

“racial integration . . . tends to diffuse racial tensions and

thus diminish interracial violence." Id, (citing the opinion

of former corrections officials and a study finding that

"the rate of violence between inmates segregated by race .

. surpassed the rate among those racially integrated").

App.27

The Lynn Plan validates this conclusion: by reducing

racial isolation and increasing intergroup contact, it has

ameliorated racial and ethnic tension and bred interracial

tolerance. Comfort, 283 F. Supp. 2d at 376. We therefore

see no reason to impose a blanket prohibition on the use

of race as a decisive factor in a student transfer plan to

further a compelling interest in obtaining the educational

benefits of racial diversity. If a non-competitive,

voluntary student transfer plan is otherwise narrowly

tailored, individualized consideration of each student is

unnecessary. !°

2. The Lynn Plan

The district court determined, and we agree, that the

Plan's use of transfer limits to achieve racial diversity has

produced benefits central to Lynn's educational mission."

Under the genera! narrow tailoring framework, however,

we must also consider whether the Plan's use of race is no

broader than necessary and whether race-neutral

We note that this conclusion in no way rests on the administrative

difficulties that would be inherent in individually considering each of

the thousands of transfer requests that Lynn receives each year.

Administrative difficulty “does not render constitutional an otherwise

problematic system.” Gratz, 539 U.S. at 275.

“Plaintiffs argue that improvements in Lynn schools cannot be

attributable to racial diversity. They emphasize (i) that levels of

diversity vary at schools in the district; (ii) that at least one school

slipped below critical mass during the 2000-01 academic year; and (iii)

that defense experts testified that all schools they visited -- including

schools that had slipped below critical mass -- demonstrated the

benefits that intergroup contact theory attributes to racial diversity.

Plaintiffs reason that the experts’ uniformly positive testimony is

inconsistent with a theory that increased diversity produces increased

benefits, and that the benefits must be attributable instead to race-

neutral factors present in equal measure throughout the district. We

do not find this argument persuasive. The defendants point out that

although some of Lynn's schools occasionally fal] below critical mass,

those deviations are small and temporary. Students do not

automatically forfeit the lessons learned from integration when they

attend a school with relatively short-term or marginal deviation from

critical mass.

App.28

alternatives are available. See Grutter, 539 U.S. at 339-

42; see also Wygant v. Jackson Bd. of Educ., 476 U.S. 267,

280 n.6 (1986) (noting that the term “narrowly tailored”

requires “consideration of whether lawful alternative and

less restrictive means could have been used” or that “the

classification at issue must ‘fit’ with greater precision

than any alternative means”).

a. Breadth

The defendants maintain that the Plan's use of race is

minimally invasive. First, it governs only voluntary

transfers, rather than initial student assignments

Instead of forcing children to attend schools far from their

homes, as might be the result of a controlled choice

plan, the Lynn Plan preserves the traditional

neighborhood school model. Second, the Plan allows

students to transfer freely between racially balanced

schools and provides an appeals process for students

whose transfer requests are denied on racial] grounds."’

The Plan is also less burdensome on third parties here

than in other contexts because of the nature of the

“benefit” at issue, namely the grant of a transfer request.

Every chiid in Lynn is guaranteed a seat in a district

where, as the parties have stipulated, every school

provides a comparable education. The denia! of a transfer

Controlled choice plans are an alternative to neighborhood school

assignments. See, eg... Anderson, 375 F.3d at 74-77 (describing

controlled choice plans used by the Boston Public Schools). "Under

such programs, parents can choose among a select number of schools,

but their choices and their likelihood of getting their choice are

controlled to help ensure a particular racial balance.” Wendy Parker,

The Legal Cost of the "Split Double Header” of Gratz and Grutter, 31

Hastings Const. L.Q. 587, 603 n.76 (2003).

Appeals are granted to unite siblings or when parents can show a

medical, safety, or other hardship, including one based on daycare

arrangements. The district court found that the Parent Information

Center (Lynn's central registration office) “goes out of its way to make

the appeals process accessible to everyone.” Comfort TY, 283 F. Supp

2d at 349. Additionally, a student whose appeal is denied wil) be

presented with alternative placement options.

App.29

under the Plan is therefore markedly different from the

denial of a spot at a unique or selective educational

institution. See, e.g., Gratz, 539 U.S. at 251 (University of

Michigan); Wessmann, i160 F.3d at 793 (Boston Latin

School); cf, Wygant, 476 U.S. at 282-83 ("Though hiring

goals may burden some innocent individuals, they simply

do not impose the same kind of injury that layoffs impose.

Denial of a future employment opportunity is not as

intrusive as loss of an existing job."). This is not to say

that the denial imposes no harm at all; the transfer

request itself indicates that despite the availability of a

comparable education at any school in Lynn, students (or

their parents) do not view the schools as fungible. But in

construing the narrow tailoring requirement that a race-

conscious plan not unduly harm members of any racial

group, we view the diminished nature of any harm here

as significant.

i. Calibration

Despite the minimally invasive nature of the Plan, the

plaintiffs contend that it imposes undue harm because of

its calibration. Emphasizing the defense experts’

testimony that the educational benefits of diversity are

predicated on the presence of a critical mass of white and

nonwhite students, a figure that social science literature

approximates at 20%, the plaintiffs assert that the Plan's

numerical guidelines are substantially more restrictive

than necessary. In their view, a plan narrowly tailored to

the defendants’ compelling interest in the benefits of

educational diversity would prohibit only those transfers

that would upset critical mass. They point out that

because the Plan is calibrated around district

demographics rather than around critical mass, it

prohibits some transfers that do not bring a school

population below 20% white. For example, because

nonwhites made up 58% of Lynn's student population at

the time of trial, an elementary school with a 40%

nonwhite enrollment qualified as racially isolated, and

therefore subject to transfer limits, even though it

App.30

contained a critical mass of white and nonwhite

students. '4

In response, the defendants rely on expert testimony

that while critical mass is the point at which educational

benefits begin to accrue, those benefits increase as a

school nears an even balance between white and

nonwhite students. Relying on this evidence, the district

court found that "gains occur along a continuum: as the

racial composition of school populations creeps closer to

balanced, racial stereotyping and tension is [sic] reduced

and racial harmony and understanding increase.”

Comfort IV, 283 F. Supp. 2d at 357. It thus concluded

that the Plan was narrowly tailored, despite its

orientation around district demographics rather than

critical mass. See id, at 384 (The Plan “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.”).

We agree with the district court's reasoning. The Plan

does not seek racial balancing for its own sake, nor does it

use rigid quotas to ensure a pre-determined level of

diversity at each of Lynn's schools. See Grutter, 539 U.S.

at 335-36 ("The . . . goal of attaining a critical mass of

[nonwhite] students does not transform [a] program into

a quota.”). Rather, the transfer policy conditioned on

district demographics (+/- 10-15%) reflects the

defendants’ efforts to obtain the benefits of diversity in a

stable learning environment.'* The Plan thus provides a

“Under the Plan, an elementary school is racially isolated if its

nonwhite enrollment falls more than 15% below the percentage of

Lynn's total student population that is nonwhite. If Lynn's student

population was 58% nonwhite, as it was during the 2001-02 academic

year, a school whose student body was less than 43% nonwhite (i.e.,

more than 15% below 58%) was racially isolated.

‘This conclusion is bolstered by the testimony of Dr. Orfield, a

nationally recognized expert on school desegregation, who concluded

that the Plan “used race no more than was necessary to allow Lynn to

App.31

sufficiently close "fit" to the defendants’ compelling

interest to ensure that “the motive for the classification

was [not] illegitimate racial prejudice or stereotype.” Id,

at 333 (quoting Croson, 488 U.S. at 493 (plurality op.)).

The plaintiffs launch a second attack at the Plan's

calibration on the grounds that it is inconsistent with the

defendants’ statements that the benefits they seek

maximize as a school moves closer to 50%

white/nonwhite. They point out that as of December 2004,

Lynn's student population was more than 61.9%

minority. A middle school that is 50% minority (the

proportion that the defendants have described as ideal)

would now fall outside of the +/- 10% range for racial

balance and would instead be considered racially isolated,

resulting in transfer limitations.

This argument misses the mark. The Lynn Plan's goal

is to improve the racial balance not of any particular

school, but across the school system as a whole. The

optimal balance for each school might well be 50%, but

Lynn's 61.9% minority population means that for every

school closer to that ideal, another will be further away

from it. Evaluating schools by reference to the racial

composition of the city's population is a sensible way for

Lynn to strive for the best racial balance attainable

across its entire school system, while acknowledging that

practical constraints make it impossible for Lynn to have

an equal population of minority and non-minority

students in every individual school.

ii. White/nonwhite distinction

In addition to challenging the Plan's numerical

ranges, the plaintiffs also argue that the Plan is not

narrowly tailored to advance a compelling interest in

racial diversity because it paints with too broad a brush

by distinguishing only between white and nonwhite

students, thereby blurring the many subgroups within

meet its educational goal of preparing students to live in a multiracial

society.” Comfort [V, 283 F. Supp. 2d at 355.

App.32

each category. However, this white/nonwhite distinction

reflects the reality of Lynn's experience. As the district

court found, before 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.” Comfort IV, 283 F. Supp. 2d at 379. By increasing

diversity along the white/nonwhite axis, the Plan reduced

racial tensions and produced positive educational

benefits. Narrow tailoring does not require that Lynn

ensure diversity among every racial and ethnic subgroup

as well. See Grutter, 539 U.S. at 316 (noting that the Law

School sought to enroll a critical mass of “minority”

students, a category that included African-Americans,

Hispanics, and Native Americans).

iii. Duration

A narrowly tailored plan must be limited not only in

scope, but also in time. See id. at 342. The Court held in

Grutter that this durational requirement can be met by

“periodic reviews to determine whether racial preferences

are still necessary to achieve student body diversity.” Id.

The Lynn Plan includes such review. The PIC

continuously monitors the schools’ demographics,

gathering data on racial composition and transfers.

Under the Plan, transfer limits are suspended among

schools that are racially balanced. Comfort IV, 283 F.

Supp. 2d at 377. This feature is not merely theoretical.

Students may now transfer freely among all three Lynn

high sch»vols. Lynn has also periodically reevaluated the

calibration of its Plan with an eye toward maximizing the

availability of transfers while maintaining diverse

schools. jd, at 348 n.38 (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), We expect that Lynn will

continue to do so, presuming, as did the Grutter Court,

App.33

that school officials will demonstrate a good faith

commivmnent to monitoring the continued need for racial

restrictions. See 539 U.S. at 343.

b. Consideration of race-neutral alternatives

Because narrow tailoring dictates that the

government use race only when necessary to achieve a

compelling interest, it requires “serious, good-faith

consideration of workabie race-neutral alternatives that

will achieve the diversity [the government actor] seeks.”

Grutter, 539 U.S. at 339; see also Wygant, 476 U.S. at

280 n.6. Here, the defendants have met their burden. The

record reflects that they seriously considered, and

plausibly rejected, a number of race-neutral alternatives.

These included (i) a no-transfer policy, see Comfort IV,

283 F. Supp. 2d at 387-88 (crediting evidence from a

demographics expert that instituting such a policy would

throw several elementary schools into racial imbalance);

(ii) a policy of unrestricted transfers, see id, at 388

(crediting evidence that instituting such a policy would

result in 500 to 800 segregative transfers per year); (iii) a

redrawing of district lines, see id. at 387-48 (noting that

this would be impractical); (iv) forced busing, see id. at

387-88 (concluding that the problems that accompany

forced busing justified Lynn's rejection of a controlled

choice scheme); (v) a lottery system, see id, at 389 (finding

that demographic and sr’vseduling factors made this

impracticable); and (vi) a pian conditioning transfers on

socioeconomic status, rather than race, see id. at 389

n.100 (noting that because of residential patterns, this

system would exacerbate existing ri ial imbalance).

The plaintiffs argue that there are several other

alternatives that the defendants failed to consider. They

point specifically to a Department of Education study

reviewing successful race-neutral programs based on

socioeconomic status or a lottery, see U.S. Dep't of Educ.,

Achiev; Di ty Race. 1 Al -

American Education (Feb. 2004), available at

http://www.ed.gov/about/offices/list/ocr/raceneutral.html,

App.34

and to the race-neutral student assignment plan adopted

in Boston, see Anderson, 375 F.3d at 76-77. As noted,

Lynn has already considered, and rejected, the possibility

of basing student assignments on socioeconomic status or

a lottery. While the record does not reflect whether Lynn

has considered the Boston plan in depth, we note that the

Boston plan is specific to the residential patterns in

Boston, which differ from those in Lynn. Lynn must keep

abreast of possible alternatives as they develop, see

Grutter, 539 U.S. at 342-43, but it need not prove the

impracticability of every conceivable model for racial

integration. It is sufficient that it demonstrate a good

faith effort to consider feasible race-neutral alternatives,

as it has done here. We therefore hold that the Lynn Plan

is narrowly tailored to the defendants’ compelling interest

in obtaining the benefits of racial diversity.

D. Related Federal Claims

The plaintiffs also advance several statutory equal

protection claims, contending that the Lynn Plan violates,

inter alia, 42 U.S.C." 1981 and 1983,"* and Title VI of the

Civil Rights Act of 1964, 42 U.S.C. §2000d."" Our

resolution of the constitutional equal protection challenge

controls those claims. Title VI "proscribe[s] only those

racial classifications that would violate the Equal

Protection Clause.” Alexander v. Sandoval 532 U.S. 275,

280-281 (2001) (quoting Bakke, 438 U.S. at 287 (Powell,

J.)). Courts have also treated the bar on racial

discrimination imposed by §1981 and §1983 as

coextensive with the protections of the Equal Protection

Clause. See Mescal] v. Burrus, 603 F.2d 1266, 1271 (7th

*42 U.S.C. § 1981 provides that “[ajll persons within the jurisdiction

of the United States shall have the same right . . . to the full and equa!

benefit of all laws.” 42 U.S.C. § 1983 provides a cause of action based

on the deprivation of constitutional rights “under color of any statute,

ordinance, regulation, custom, or usage, of any State."

"Title VI forbids racial discrimination “urder any program or activity

receiving Federal financial assistance.” 42 U.S.C. § 2000d.

App.35

Cir. 1979) ("The relationships of " 1981 and 1983 to the

Fourteenth Amendment are so close . . . that we believe

the use of each section must be guided by the principles

announced by the Supreme Court for application of the

Fourteenth Amendment to discrimination cases.”); see

also Anderson, 375 F.3d at 77 n.7 (concluding that

plaintiffs’ claims under Title VI, §1981 and §1983 “turn

on the resolution of the equal protection claim"). The

district court was therefore correct in holding that the

plaintiffs are not entitled to federal statutory relief.

IV. Article 111

Article 111 of the Massachusetts Declaration of Rights

provides that "[njo student shall be assigned to or denied

admittance to a public school on the basis of race, color,

national origin[,) or creed.” Plaintiffs contend that when

a child is prevented from making a segregative transfer

under the Lynn Plan, he is illegally "denied admittance to

a public school on the basis of race.” Mass. Const. amend.

art. 111. The district court rejected this position as

inconsistent with the meaning of Article 111, which was

designed to limit forced busing and to protect

neighborhood schools. Comfort IV, 283 F. Supp. 2d at 393.

The court also emphasized that although “no court has

ever expressly interpreted Article 111, the SJC [Le., the

Massachusetts Supreme Judicial Court] has consistently

construed similarly worded statutes narrowly, holding

that they do not categorically ban suspect classifications

but rather merely subject them to strict scrutiny.” Id.

Finally, the district court suggested that if Article 111

were read broadly to prohibit any race-conscious student

assignment plan, as the plaintiffs urge, it would likely

run afoul of the federal Constitution and other sections of

the Massachusetts Declaration of Rights. ld. We review

the district court's interpretation of the Article de novo.

‘The defendants assert that we should not consider the substance of

the Article 111 claim at all, maintaining that the Commonwealth was

a@ necessary party to adjudicate this claim but could not be joined

because of the Eleventh Amendment gee Fed. R. Civ. P. 19%)

App.36

See Blockel v. J.C. Penney Co., Inc., 337 F.3d 17, 29

(2003).

Although the SJC has not yet considered Article 111,

it has identified the considerations that guide judicial

interpretation of the state's constitution:

In determining the meaning of a constitutional

provision, ‘ve look to the language and structure

of the provision, so that it is construed so as to

accomplish a reasonable result and to achieve its

dominating purpose. We do so bearing in mind

the Constitution was written to be understood by

the voters to whom it was submitted for

approval. It is to be interpreted in the sense must

obvious to the common intelligence. Its phrases

are to be read and construed according to the

familiar and approved usage of the language.

The words of a constitutional provision are to be

given their natural and obvious sense according

to common and approved usage at the time of its

adoption.

Moreover, the Constitution is to be

interpreted in the light of the conditions under

which it and its several parts were framed, the

ends which it was designed to accomplish, the

benefits which it was expected to confer, and the

evils which it was hoped to remedy.

McDuffy v. Sec'y of the Executive Office of Educ,, 615

N.E.2d 516, 523 (Mass. 1993) (citations and internal

quotation marks omitted).

To determine whether Article 111 prohibits a race-

conscious plan for voluntary student transfers, we begin,

as the SJC has instructed, with the language of the

provision. ]d. at 524. The plaintiffs contend that the plain

Alternatively, they urge us to certify a question regarding the proper

interpretation of Article 111 to the SJC pursuant to Maas. R. Sup. Jud

Ct. 1.03. We reject both contentions, finding it appropriate to reach the

merits as the district court did

App.37

language of the Article unequivocally invalidates the

Lynn Plan. They reason that when a student is precluded

from transferring because of the transfer’s impact on

racial balance, that student is “denied admittance to a

public school on the basis of race” within the meaning of

Article 111.

it is not readily apparent, however, that a student

denied a transfer is “denied admittance” to a school

within the meaning of the provision. The Article's pairing

of the terms “assigned” and “denied admittance” suggests

that it contemplated initial student placements, not

subsequent transfers. Under the Lynn Plan, students are

assigned to their neighborhood schools without regard to

race; conversely, no student is denied that placement

based on race. Only after a student has been assigned to

a school and wishes to transfer does race enter the

calculus.

The “specific circumstances of the adoption" of Article

11%, see McDuffy, 615 N.E.2d at 528, convince us that the

provision does not preclude such a plan. Article 111 was

adopted as an amendment to the Massachusetts

constitution in 1978. The House and Senate bills that

became Article 111 were introduced by legislators on

behalf of Massachusetts Citizens Against Forced Busing.

See Comfort IV, 283 F. Supp. 2d at 395. When the bill

was presented to voters for ratification, the

constitutionally required description that accompanied

it’® explained:

A “YES VOTE” would guarantee the right of

parents or guardians of school-age children to

educate those children free from any arbitrary

assignment by school authorities to schools

'*The Massachusetts Constitution requires the Secretary of State to

publish and distribute information regarding ballot questions,

including the full text of every measure, “a fair, concise summary of

the measure as such summary will appear on the ballot [and] other

information and arguments for and against the measure.” Mass

Const. art. 48, Gen. Prov., pt. TV, as amended by arts. 74 and 108

App.38

outside the school district. Any public

assignment to a school outside the school district,

based on achieving any established racial quota-

system or ethnic balance[,] would require the

permission of a parent or guardian.

Id, (citing Massachusetts Information for Voters (1978));

see also Bates v. Dir. of Office of Campaign and Political

Finance, 763 N.E.2d 6, 22-23 (Mass. 2002) (using

Information for Voters statement as an aid to statutory

construction).

We would be hard-pressed to extrapolate from these

circumstances an intent that Article 111 bar an entirely

voluntary student transfer program narrowly tailored to

a compelling interest in the educational benefits of

diversity. As the district court noted, "the benefit (Article

111] was expected to confer’ was preservation of

neighborhood schools, and the ‘evil which it was hoped to

remedy’ was the politically divisive resort to forced

busing.” Comfort IV, 283 F. Supp. at 395 (quoting

McDuffy, 615 N.E.2d at 523). The Lynn Plan advances

those goals. It protects neighborhood school assignments

and does not entail any forced non-neighborhood

assignments. Race-conscious transfers occur only if

initiated by a student's parent or guardian, a result

entirely consisten* with the explanation of the Article put

before the voters.

The plaintiffs do not dispute that Article 111 was

designed to prevent forced busing. Rather, they argue

that any inquiry into the Article's legislative history is

improper because the provision is clear on its face. As we

have already explained, the application of the Article to

the context of voluntary transfers is not entirely clear

from the statutory language. Moreover, the SJC has

expressly provided that the state constitution's words

"must be given a construction adapted to carry into effect

its purpose.” Cohen v. Att'y Gen,, 259 N.F..2d 539, 543

(Mass. 1970) (quoting Tax Comm'r v. Putnam, 116 N.E.

904, 906 (Mass. 1917)). The Article's legislative history

App. 39

helps us determine its purpose, and thereby points us to a

construction that furthers that purpose. Locking to

legislative history is therefore entirely consistent with the

principles of constitutiona! interpretation set forth by the

SJC.

Our conclusion that the Lynn Plan does not violate

Article 111 would be the same even if the Article did

apply to a voluntary transfer system. As the district court

recognized, the SJC has treated provisions similar to

Article 111 not as banning the use of race outright, but

rather as subjecting the use of race to strict scrutiny.

Comfort IV, 283 F. Supp. 2d at 396; see also McDuffy, 615

N.E.2d at 545 (noting that the court's decision on a

matter of first impression was consistent with earlier

decisions).

In Attorney General v. Massachusetts Interscholastic

Athletic Association, Inc., 393 N.E.2d 284 (Mass. 1979),

the SJC considered a challenge, brought under the

Massachusetts Equal Rights Amendment ("ERA") and a

state statute, to a rule prohibiting boys from joining girls’

sports teams. The ERA provides that “[e]quality under

the law shall not be denied or abridged because of sex,

race, color, creed or nationa! origin.” Mass. Const. pt. 1,

art. 1, as amended by art. 196. The relevant statute

provides: “[njo person shall be excluded from or

discriminated against in admission to a public school. . .

or in obtaining the advantages, privileges and courses of

study of such public school on account of race, color, sex,

religion, national origin or sexual orientation.” Mass.

Gen. L. ch. 76, ' 5. Although both of these provisions

speak in absolute terms, the SJC did not treat them as

automatically invalidating the gender-based prohibition

at issue. Rather, it subjected the “no boys on girls’ teams”

rule to something akin to strict scrutiny. 393 N.E.2d at

291-93. We have already determined that the Lynn Plan

survives the strict scrutiny required by the federal Equal

Protection Clause. Therefore, it would also survive review

under Article 111, if the Article did apply in this context.

Either way, the plaintiffs’ claim fails.

App.40

V. Recusal

Finally, the plaintiffs assert that the district court

judge should have recused herself from this case. Their

argument is as follows: (1) prior to her appointment to the

federal bench, Judge Gertner was a member of the

Lawyers’ Committee for Civil Rights ("LCCR"), a

nonprofit organization; (2) LCCR unsuccessfully moved to

intervene in this litigation on the side of the defendants,

and therefore (3) the law required that Judge Gertner

recuse herself. Judge Gertner denied the recusal motion

in an order dated March 21, 2002. We review that ruling

for abuse of discretion. Camacho v. Autoridad de

Telefonos, 868 F.2d 482, 490 (1st Cir. 1989).

The controlling statute is 28 U.S.C. ' 455, which sets

forth the standards for recusal. That statute provides

that a judge “shall” recuse herself “in any proceeding in

which [her] impartiality might reasonably be questioned."

Id, ' 455(a). A party who suggests that recusal is

appropriate must support the motion with facts that

“provide what an objective, knowledgeable member of the

public would find to be a reasonable basis for doubting

the judge's impartiality." In re Boston's Children First,

244 F.3d 164, 167 (1st Cir. 2001) (quotizg In re United

States, 666 F.2d 690, 694 (ist Cir. 1981)). The plaintiffs

have failed to make this showing.

Every judge comes to the bench with a lifetime of

background experiences, a roster of associations, and a

myriad of views. This past history, in and of itself, is

seldom sufficient to require recusal. Brody v. President &

Fellows of Harvard Coll, 664 F.2d 10, 11 (ist Cir. 1981)

(per curiam). Unless there is a direct link that establishes

a reasonable basis for doubting impartiality, the judge

should not step aside. In re United States, 158 F.3d 26,

31 (ist Cir. 1998); cf, United States v. Giorgi, 840 F.2d

1022, 1035 (1st Cir. 1988) (explaining that unless a party

can establish a reasonable factual basis to doubt a judge's

impartiality “by some kind of probative evidence,” then

the “judge must hear a case as assigned”) (internal

quotation marks omitted)

App.41

These principles govern our decision here. LCCR is

not a party to this case. Even if it were, Judge Gertner's

relationship with that organization ended when she took

the bench on February 14, 1994. There is no allegation

that she has maintained ties with the LCCR. Given the

eight-year interval between the end of the judge's

connection with LCCR and the recusal motion, her prior

association with that organization cannot be the basis for

a reasonable attack on her impartiality. Thus, recusal

was not obligatory. See, e.g., Sierra Club v. Simkins

Indus., Inc., 847 F.2d 1109, 1117 (4th Cir. 1988) (holding

that an assomation with a nonprofit organization that

ended a decade before the proceedings commenced does

not form a reasonable basis for questioning the trial

judge's impartiality, even though the nonprofit

organization was a party to the litigation); cf, Veneklase

v. City of Fargo, 236 F.3d 899, 901 (8th Cir. 2000) (finding

seal unnecessary where judge's former law firm had

represented parties tangentially involved in civil rights

suit); United States v. Story, 716 F.2d 1088, 1090 (6th

Cir. 1983) (finding recusal unnecessary where judge had

represented victim in will contest matter thirteen years

earlier).

The plaintiffs’ argument that our decision in Boston's

Children First dictates recusal here ignores an important

difference between the two cases. In Boston's Children

First, we ordered recusal not because of the judge's past

association with civil rights organizations, but because

the judge had publicly commented on a pending case. See

244 F.3d at 169-70. The judge's passing comment in this

case that LCCR was eligible to apply for amicus status

does not constitute a basis on which to require recusal.

The plaintiffs’ claim of bias is equally unpersuasive.

The only evidence of bias they cite involves their view of

the judge's policy preferences. That perception, standing

alone, does not warrant our interference with the district

judge's recusal decision. If judges were subject to

disqualification on such a basis, our judicial system would

be paralyzed. See Camacho, 868 F.2d at 491. We

App.42

therefore conclude that the court did not abuse its

discretion in denying the motion for recusal.

Affirmed.

- Concurring and Dissenting Opinions Follow -

App.43

BOUDIN, Chief Judge, concurring. The Lynn plan

at issue in this case is fundamentally different from

almost anything that the Supreme Court has previously

addressed. It is not, like old-fashioned racial

discrimination laws, aimed at oppressing blacks, e.g.,

Brown v. Bd. of Educ., 347 U.S. 483 (1954); Strauder v.

West Virginia, 100 U.S. 303 (1880); nor, like modern

affirmative action, does it seek to give one racial group an

edge over another (either to remedy past discrimination

or for other purposes). E.g., Adarand Constructors, Inc. v.

Pena, 515 U.S. 200 (1995). By contrast to John v.

California, 125 S. Ct. 1141 (2005), the plan does not

segregate persons by race. See also Loving v. Virginia,

388 U.S. 1 (1967). Nor does it involve racial quotes. E.g.,

Regents ot the Univ. of Cal. v. Bakke, 438 U.S. 265, 273-

79 (1978).

Instead, the plan uses race as an express criterion to

permit transfers where they are consistent with

maintaining schools with a racial inix of students, and to

limit transfers where they would increase racial

imbalance within the school system beyond certain

predetermined limits. The plan does not purport to favor

one race over another, nor have the parties claimed that

it does so. Every child can as a matter of right attend his

or her local school. And the parties have stipulated that

Lynn's schools are educationally equal in quality; thus a

child who is unable to transfer to a non-local school of

choice is not relegated to an inferior education.

Whether such a plan is desirable as a matter of social

policy is open to reasonable debate. So, too, are claims as

to the extent of educational or civic benefits derived from

the plan. But, in the absence of a constitutional violation,

these choices are customarily left to legislatures, city

councils, school boards and veters. Cf. Harris v. McRae,

448 U.S. 297, 326 (1980). Indeed, one of the advantages of

our federal regime is that different communities try

different solutions to common problems and gravitate

toward those that prove most successful or seem to them

App.44

best to suit their individual needs. See United States v.

Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring).

Some may be offended by any express use of race as a

touchstone for transfers, believing that a race-based

criterion is the wrong lessan for school boards to teach

and students to absorb. But ours is a society with a

heritage of racial problems growing out of generations of

slavery and post-slavery segregation, and it may be

unrealistic to suppose that everything will work out well

if only race is ignored in every context. In any event, the

Supreme Court has upheld the use of race-conscious

solutions in certain settings.”° The question is where and

how one draws the line.

If we knew how the Supreme Court would decide the

case before us, it would be right to adopt its answer in

advance--whatever this court's members might prefer. Cf,

Wessmann v. Gittens, 160 F.3d 790, 809-10 (lst Cir.

1998) (Boudin, J., concurring). But where the outcome in

the Supreme Court is uncertain and past

pronouncements were made in contexts different than the

one now presented, the appellate court must exercise its

own judgment on whether the local flan is

constitutionally forbidden. There is very little to be said

for mechanically extrapolating from general phrases

visibly addressed to different issues. United States v.

Jerrold Elecs. Corp., 187 F. Supp. 545, 555-56 (£.D. Pa.

1960), affd, 365 U.S. 567 (1961) (per curiam).

Treated as an open question, this is a difficult case.

The Supreme Court’s language disfavors racial tests and,

without flatly forbidding them, has restricted their use

with particular rubrics (corz.clling interest, narrow

tailoring). See, e.g., Adarand, 515 U.S. at 227. But such

rubrics depend on degree and context; there is no

yardstick that crisply determines when an interest is

compelling enough or how narrow is sufficiently so. The

See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003); Fullilove v.

Klutznick, 448 U.S. 448 (1980); Bakke, 438 U.S. 265; cf, Swann v.

Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 (1971).

App.45

way the Lynn plan uses race is certainly more benign

than laws that favor or disfavor one race, segregate by

race, or create quotas for or against a racial group.

The goal of the Lynn plan--to achieve the educational

and civic benefits of exposing youngsters to those of

different racc3--is not unlawful; the attack is upon the

means. Yet given the goal, it is not easy to see how it can

be achieved in a community like Lynn without using race

as a touchstone. The problem is that in Lynn, as in many

other cities, minorities and whites often live in different

neighborhoods. Lynn's aim is to preserve local schools as

an option without having the housing pattern of de facto

segregation projected into the school system. The choice is

between openly using race as a criterion or concealing it

through some clumsier proxy device (e.g., transfer

restrictions based upon family income).

If the plan were patently offensive to core equal

protection principles, this would be an easy case. But the

Lynn plan is far from the original evils at which the

Fourteenth Amendment was addressed. The Fourteenth

Amendment sought to forbid the oppression of one race by

another. We are here working from doctrines concerning

the use of race-based criteria that are mainly the product

of twentieth-century jurisprudence. This is not a case in

which, against the background of core principles, all

doubts should be resolved against constitutionality.

Rather, we are faced with a local experiment,

pursuing plausible goals by novel means that are not

squarely condemned by past Supreme Court precedent.

The problems that the Lynn plan addresses are real, and

time is more likely than court hearings to tell us whether

the solution is a good one; indeed, indications so far are

that Lynn's efforts have met with success. To bring that

success to a halt in this court seems neither advisable nor

necessary. The Supreme Court has not passed upon a

plan anything like the one before us. That Court is free to

extend its precedents to the present context, but that is

its role--not ours. Cf. State Oil Co. v. Khan, 522 U.S. 3, 20

(1997).

App.46

SELYA, Circuit Judge (with whom HOWARD,

Circuit Judge, joins), dissenting. While no two cases

are exactly alike, the function of the judiciary in passing

upon a constitutional challenge is to read the pertinent

text of the Constitution, examine the universe of relevant

legal precedents, extract guiding principles from that case

law, and apply those principles to the facts at hand. This

case, like most cases, presents a factual scenario that

contains certain idiosyncratic elements. There is neither

a Supreme Court decision squarely addressing whether

racial diversity alone may constitute a compelling

interest sufficient to justify the government's race-

conscious preferences nor one addressing the narrow

tailoring of racial classifications in voluntary, non-

competitive school transfer plans. The majority

accentuates those idiosyncracies, tut chooses to overlook

the elephant in the room: the fact that this case arises

against a backdrop of Supreme Court jurisprudence,

recently revisited in Grutter v. Bollinger, 539 U.S. 306

(2003), and Gratz v. Bollinger, 539 U.S. 244 (2003), that

must guide our decision.

The majority's eagerness to justify departing from

precedent frees it to strike out on its own, fashioning a

rule that flies in the teeth of the Supreme Court's

stalwart opposition to the use of inflexible, race-

determinative methods in granting or denying benefits to

citizens.2*_ Because that departure is inconsistent with

the role that an intermediate appellate court should play

in the federal system, I respectfully dissent.

To my mind, the precedents are rather clear. The two

latest Supreme Court decisions illustrate the point. I

begin by briefly rehearsing the facts upon which those

decisions turned.

2tWhile such methods may be justified to remedy the effects of past

discrimination, see, e.g., Swann v. Charlotte-Mecklenburg Bd. of Ed.,

402 U.S. 1 (1971), no such justification exists in this case.

App.47

Gratz involved the University of Michigan's

undergraduate admissions program. Thée University

automatically assigned 20 points — one-fifth of the 100

points needed to guarantee admission — to an applicant

from an underrepresented racial or ethnic minority

group. Gratz, 539 U.S. at 255. This 20-point bonus

effectively made race/ethnicity determinative for

minimally qualified minority applicants. Id. at 272.

Grutter involved law school admissions. The law

school took race into account as one of several variables

in an individual's application. Grutter, 539 U.S. at 340.

The school assigned no mechanical score based on an

applicant's race; instead, it considered race only as one of

several possible ways in which an applicant could enrich

the diversity of the student body. Id. at 315-16. Moreover,

the school set no quotas for racial or ethnic minorities. Jd.

at 335-36.

The Supreme Court struck down the plan used in

Gratz while upholding the one used in Grutter. In

arriving at these decisions, the Court made it crystal

clear that a race-conscious admissions program must use

race in “a flexible, non-mechanical way” if it is to be

considered narrowly tailored (and, thus, if it is to pass

constitutional muster). Id. at 334. Such a plan cannot

institutionalize a quota system or in any way insulate one

category of applicants from another solely on account of

race. See id.; Gratz, 539 U.S. at 2&3, 270-72. Race can,

however, be used as a plus factor in the course of

individualized consideration of each applicant. Grutter,

539 U.S. at 334.

The majority, emphasizing that context matters,

simply writes this requirement out of the narrow-

t2iloring analysis. That, to me, requires more than a

soupcon of legal legerdemain. While I agree that context

matters, the Supreme Court has catalogued a

compendium of dangers flowing from the mechanical,

inflexible, and exclusive use of race as a determinant. For

one thing, such an approach insulates the preferred

category of applicants from competition with other

App.48

applicants. Grutter, 539 U.S. at 334. For another thing,

suc! an approach feeds the stereotype that students from

the preferred group lack academic merit and, thus, raises

the specter of stigmatic harm. See Regents of Univ. of

Cal. v. Bakke, 438 U.S. 265, 298 (1978) (opinion of Powell,

J.) (stating that “preferential programs may only

reinforce common stereotypes holding that certain groups

are unable to achieve success without special protection").

The majority argues that these dangers are less

ominous in a setting, like this one, that neither skews a

competitive process nor substitutes race as a proxy for

academic merit. But competitive disadvantage and the

substitution of race for academic merit are not the only

reasons behind the Supreme Court's understandable

disdain for quotas and other inflexible uses of racial

determinants. Regardless of the burden imposed by a

racial preference, the simple act of granting benefits

based on a quota or other mechanical use of race will

breed cross-racial tension. See Richmond v. J. A. Croson

Co., 488 U.S. 469, 493 (1989) (plurality op.). Moreover,

when government indulges in the automatic and

unflinching use of race in the bestowal of any benefit,

that usage counteracts the ultimate goal of relegating

racial distinctions to irrelevance. Id. at 495. As the Court

reminded us earlier this year, the mechanical use of

racial classifications inflicts stigmatic harm wherever and

whenever it occurs — a consequence that is by no means

limited to contexts that involve schools, students, or

academic merit. See Johnson v. California, 125 S. Ct.

1141, 1147 (2008) (explaining in a prison context that

"racial classifications threaten to stigmatize individuals

by reason of their membership in a racial group” and

“perpetuate the notion that race matters most").

Nothing in either Grutter or Gratz (or in any other

case, for that matter) dispels the notion that mechanical,

race-based programs work this harm — and, indeed, the

Lynn Plan inflicts it upon a number of students seeking

to benefit from a program that Lynn knows is appealing

without regard to racial reasons. To illustrate, consider

App.49

that the Plan can succeed only if the opportunity tc

transfer to a distant school is attractive to parents. It is

conceivable that some parents would transfer a child out

of a desire to have the child learr in a more integrated

environment. But the Lynn Plan actively creates and

exploits other methods of benign coercion in search of its

goal. For instance, Lynn admits that a major function of

its “theme” schools is to entice parents to transfer their

children. Another method is selling convenience to

parents. School officials are aware that some of schools

are located near after-school programs or near high-

employment areas. Every student, of every race, in every

school zone, has some potential benefit — yet the school

committee's policy evaluates whether students may take

part in the transfer program based solely on the color of a

student's skin. Only after experiencing a racially based

rejection can an affected student plead for relief from the

stated policy.

In one sense, then, this plan is even more harmful

than the racially inflexible program struck down in

Gratz. There, prospective non-minority students could be

admitted by the terms of the policy itself and thus those

who were rejected could look to something other than

race as a reason for their failure.

The majority writes off these concerns, stating that

Lynn's goal is increased racial harmony for the student

body as a whole. But the end cannot be allowed to justify

the use of unconstitutional means; even laudable goals

must be attained in constitutional ways. The Lynn Plan's

inflexible use of race offends this principle.

Moreover, the majority's attempted justification

misses a crucial point. The Fourteenth Amendment

protects individuals, not groups. Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 227 (1995). There is a harm

inflicted on a student when her government denies her

transfer for the sole or determinative reason of race — an

immutable condition that she cannot change. That harm

cannot Se ignored simply because it serves what others

(be they school committee members or my distinguished

App.50

colleagues) perceive as a greater good. Cf, Grutter, U.S. at

341 (holding that narrow tailoring requires program to

not unduly harm members of any racial group).

If more were needed — and I doubt that it is — the

mechanical use of race is not necessary to meet the

compelling interests that Lynn asserts here. A flexible,

race-conscious transfer program, creating a strong but

non-determinative “plus” factor for integrative transfers

but permitting other transfers based on the strength of

individual requests, would serve to increase diversity and

avoid the harm arising from an unflinching use of race.

The children rejected for transfer under such a plan

would not be rejected solely because of the color of their

skin but because the reasons supporting their transfer

requests were comparatively insubstantial. That kind of

harm is not constitutionally suspect.

Lynn hardly can be heard to complain that such a

plan is unworkable. By its own admission, it already

allows more than half of the students denied transfers

under its race-based policy to have an exemption for non-

race-related reasons. These transfers have not

undermined the benefits of diversity in the school

community. The city persists, however, in subjecting all

the students who request transfers to what is in effect a

two-tier process — one in which the student is evaluated

soicly on the basis of color and a second in which e

rejected student must convince the school that his or her

color should not matter.

Many good things can be said about the Lynn Plan. I

do not doubt that it is well-intentioned and thet it has

helped to promote greater diversity in the public schools.

But the overriding fact is that it unnecessarily inflicts

racially based wounds on a large and diverse group of its

students and, consequently, fails to satisfy the narrow-

tailoring requirement set out in the Supreme Court's

equal protection jurisprudence. Because that is so, I must

respectfully dissent from what I view to be an erroneous

App.51

APPENDIX B

United States Court 6f Appeals

For the First Circuit

No. 03-2415

SAMANTHA J. COMFORT, ETC., ET AL.,

Piaintiffs, Appellants,

v.

LYNN SCHOOL COMMITTEE ET AL..,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Dyk" and Howard,

Ciecuit Fudan

Michael Williams, with whom Robert J. Roughsedge,

Chester Darling, and Citizens for the Preservation of

Constitutional Rights were on brief, for plaintiffs.

* Of the Federal Circuit, sitting by designation.

App.52

Sharon L. Browne on brief for Pacific Legal Found.,

amicus curiae.

Richard W. Cole, Assistant Attorney General, with

whom Thomas F. Reilly, Attorney General, and John R.

Hitt, Assistant Attorney General, were on brief, for state

defendants.

John C. Mihos, with whom James P. Lamanna,

Assistant City Solicitor, was on consolidated brief for

municipal defendants.

Edward J. Barshak and Sugarman, Rogers, Barshak

& Cohen, P.C. on brief for Asian-Am. Lawyers Ass'n of

Mass., Boston Bar Ass'n, Community Change, Inc., Fair

Housing Center of Greater Boston, Jewish Alliance for

Law and Social Action, New Engl. Area Conf. of the

NAACP, and Greater Boston Civil Rights Coalition, amici

curiae,

Patricia A. Brannan, Maree Sneed, and Hogan &

Hartson LLP on brief for Council of the Great City

Schools, Am. Ass'n of Sch. Adm'rs., Nat'l Ass'n of

Secondary Sch. Principals, Nat'l Educ. Ass'n, Nat'l Sch.

Bds. Ass'n, and Public Educ. Network, amici curiae.

Nathalie F.P, Gilfoyle, General Counsel, Lindsay

Childress-Beatty, Deputy General Counsel, David W.

Ogden, and Wilmer Cutler Pickering Hale and Dorr LLP

on brief for Am. Psychological Ass'n, amicus curiae.

Theodore M. Shaw, Director-Counsel, Norman J.

Chachkin, and Chin Quang Le on brief for Northshore

Branch of the NAACP, NAACP Legal Defense & Educ.

Fund, Inc., Lawyers’ Comm. for Civil Rights of the Boston

Bar Ass‘n., and various individuals, amici curiae.

Donna Brewer MacKenna and Casner & Edwards,

LLP on brief for Lynn Bus. Educ. Found. and Lynn Bus.

P'ship, Inc., amici curiae.

Thomas Mille. Attorney General (Iowa), Eliot

Spitzer, Attorm ‘ .uuieral, Caitlin J. Halligan, Solicitor

General, Miche * Aronowitz, Leputy Solicitor General,

Natalie R. Willia.as, Deputy Bureau Chief, and Hilary B.

Klein, Assistant Attorney General (New York), G. Steven

Rowe, Attorney General (Maine), and Mark L. Shurtleff,

App.53

Attorney General (Utah), on brief for States of lowa, New

York, Maine, and Utah, amici curiae.

brief for Lawyers Comm. for Civil Rights Under Law,

amicus curiae.

David B. Broughel and Day, Berry & Howard LLP on

brief for Mass. Coalition for Equitable Educ., Mass.

Teachers Ass'n, Mass. Fed'n of Teachers, Mass. Ass'n of

Sch. Superintendents, Metro. Council for Educ.

Opportunity, Inc., Center for Law and Educ., Citizens for

Pub. Sch., Mass. Ass'n of Hispanic Attorneys, League of

Women Voters of Mass., Mass. Law Reform Inst.,

Alliance for High Standards NOT High Stakes, Schott

Center for Public and Early Educ., Nat'l Center for Fair

& Open Testing, and Progressive Jewish Alliance, amici

curiae.

Angelo N. Ancheta on brief for Civil Rights Project at

Harvard Univ., amicus curiae.

October 20, 2004

SELYA, Circuit Judge. This appeal requires us to

review certain features of a voluntary plan for scholastic

improvement and elimination of racial isolation adopted

in Lynn, Massachusetts (the Lynn Plan). Under that

arrangement, each student is entitled to attend his or her

neighborhood school from kindergarten through the

twelfth grade (K-12). Those assignments are race-neutral.

The rub, however, is that if a student wishes to transfer

to a non-neighborhood school, the school system restricts

the right of transfer based on the student's race and the

racial makeup of the transferor and transferee schools.

Parents whose children were denied the right to

transfer on race-conscious grounds challenged the

App.54

transfer provisions of the Lynn Plan, claiming, inter alia,

that those provisions violate rights secured to them under

the Equal Protection Clause of the United States

Constitution. The district court rejected the parents’

asseverational array (including their equal protection

challenge), and this appeal ensued.

To resolve the equal protection issue, we turn to the

Supreme Court's recent decisions in Grutter v. Bollinger,

539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244

(2003). We remain cognizant, however, that the factual

backdrop for our inquiry differs in two critical respects:

first, the Lynn Plan operates at the K-12 level, not at the

university level; and second, the Lynn Plan restricts

voluntary transfers, not competitive admissions. After

careful perscrutation of an amplitudinous record, we

conclude that the Lynn School Committee has made a

persuasive case that racial diversity in K-12 education

may produce real educational benefits. Nevertheless, we

conclude that the Lynn Plan as currently conceived

transgresses the Equal Protection Clause because it is

not narrowly tailored to meet the school system's asserted

interest.

Other issues lurk at the periphery of this appeal. We

treat the federal statutory claims mounted by the

plaintiffs pursuant io 42 U.S.C. § 1983 and Title VI as

congruent with their equal protection claim, but treat

their other federal statutory claims as mooted by our

equal protection determination. We dismiss for want of

standing the plaintiffs’ challenge to the state law that

prompted the adoption of the Lynn Plan. That leaves the

plaintiffs’ insistence that the district judge should have

disqualified herself from presiding in this matter.

Because this case will require further proceedings below,

we address that issue and hold that recusal was not

obligatory. In the end, we reverse th ‘uling sanctioning

the disputed transfer provisions, vacate the judgment,

affirm the district court's denial of the plaintiffs’ motion

for recusal, and remand for further proceedings

consistent with this opinion. On remand, we direct the

App.55

district court to enter a revised judgment granting, inter

alia, appropriate declaratory and injunctive relief to the

plaintiffs.

I. BACKGROUND

The district court has laid cut the relevant’ facts in

exquisite detail. See Comfort v. Lynn Sch. Comm., 283 F.

Supp. 2d 328 (D. Mass. 2003) (Comfort IV); Comfort v.

Lynn Sch. Comm., 150 F. Supp. 2d 285 (D. Mass. 2001)

(Comfort IIT); Comfort v. Lynn Sch. Comm., 131 F. Supp.

2d 253 (D. Mass. 2001) (Comfort ID; Comfort v. mar EY

Comm., 100 F. Supp. 2d 57 (D. Mass. 2000) (Comfort I.

We rehearse only those facts necessary to put this appeal

into proper perspective.

We begin with a brief overview of the historical

antecedents of the Lynn Plan. We then limn the contours

of the Plan and describe how it operates on the ground.

Next, we explore the Massachusetts racial imbalance law

and its relation to the Lynn Plan. Finally, we trace the

evolution of the instant litigation.

A. Historical Antecedents.

The district court made a series of findings, largely

unchallenged, regarding the experiential predicate for the

Lynn Plan. Comfort IV, 283 F. Supp. 2d at 344-47. We

provide a bri of synopsis.

Lynn is the ninth largest city in Massachusetts, with

a population of approximately 89,000. At all times

relevant hereto, its school system has followed a

neighborhood-school-centered paradigm, that entitles

pupils to attend their local schools as a matter of right.

By the mid-1970s, several of Lynn's schools were

experiencing significant racial imbalance. In 1977, for

example, the Washington Community Elementary Schocl

had a non-white student population of 57% (more than

six times the non-white percentage in the school system

as a whole). Predominantly minority schools suffered

disproportionately from resource shortages,

overcrowding, discipline problems, and teacher apathy.

App.56

There were also indications of a high degree of racial

tension throughout the system.

In an effort to combat these problems, Lynn

established its first magnet school in 1979. At the same

time, it inaugurated a voluntary transfer program aimed

at attracting white students to that school (which

apparently was located in a predominantly nonwhite

area). The magnet program grew in fits and starts. It

produced only modest success in alleviating racial

imbalance.

In the meantime, demographics were shifting.

Between 1980 and 2000, Lynn was transformed from 93%

white to 63% white, with the school-age population

outpacing the trend (that population had become more

than half non-white by 2000). In the same time frame,

the city became more racially segregated; increasingly,

whites clustered in the northern and western areas and

non-white: »opulated the south central region.

These residential patterns heightened the racial

imbalance of Lynn's schools. By 1987, seven of eighteen

elementary schools had white enrollments of 90% or

more. Four others had predominantly non-white student

bodies. Lynn responded by developing a plan to launch

ten magnet schools,' but municipal leaders remained

concerned that the magnet school program, on its own,

would not suffice to combat growing racial imbalance. In

September of 1989, the School Committee announced a

1 This plan was aspirational, and the total number of magnet schools

in Lynn has yet to reach the target figure. In all events, Lynn's use of

the term “magnet school” differs from the conventional definition of

that term. Ordinarily, the term denotes an elite public school with

competitive admissions policies. In Lynn's lexicon, however, the term

refers to a school that features an educationa) theme beyond the

standard scholastic curriculum, designed partially to entice cross-

neighborhood transfers. Despite this specialization, however, the

parties have stipulated that “the education provided . . . in each of the

elementary, middle, and high schools in Lynn is comparable in

quality, resources, and curriculum.”

App.57

new approach: the Lynn Plan. That plan, as amended in

1990 and again in 1999, is described below.

B. The Lynn Plan.

The defendants describe the Lynn Plan as a voluntary

plan for school improvement and the elimination of

minority isolation. Its school assignment provisions

revolve around the time-honored concept of neighborhood

schools. Under that concept, each pupil is guaranteed an

assignment to his or her neighborhood school. Race is

taken into account only when a student seeks to transfer

(or to be assigned) to a school other than his or her

neighborhood school.

Lynn operates eighteen elementary schools (six of

which are magnet schools), four middle schools (three of

which have magnet programs), and three high schools.? In

the 2001-2002 school year, 15,444 students attended the

Lynn public schools. Out of this group, approximately

42% were white, 15% Black/African-American, 29%

Hispanic, and 14% Asian (for a total “minority”

population of roughly 58%).

For purposes of the Lynn Plan, schools are placed in

one of three categories. A “racially balanced” school is one

in which the percentage of minority students (defined by

Lynn to include Black/African-Americans, Hispanics,

Asians and Native Americans) falls within a set range of

the overall proportion of minorities in Lynn's student

population. The range is plus or minus 15% for

elementary schools and plus or minus 10% for other

schools. To illustrate, an elementary school enrolling

between 43% and 73% minority students during the 2001-

2002 school year was considered racially balanced. So too

was a middle school or high school that had a minority

enrollment of 48% to 68%. In that school year, nine of

2 In addition, Lynn operates six alternative schools, offering such

things as special needs and vocational training. Because these

additional schools are not subject to the transfer provisions of the

Lynn Plan, we abjure any further mention of them.

App.58

Lynn's elementary schools and one of its middle schools

were racially balanced. All three high schools qualified

under that rubric.

If a school falls below the target range (i.e., if the

percentage of minority students in 2001-2002 fell below

43% for an elementary school or 48% for a middle or high

school), it is considered “racially isolated.” Conversely, a

school whose minority representation rose above the

target range (i.e., over 73% for an elementary school or

68% for a middle or high school) 1s deemed to be “racially

imbalanced.” In 2001-2002, five of Lynn's elementary

schools and one of its middle schools fit the racially

- isolated mold, whereas four elementary schools and two

middle schools were racially imbalanced.

The basic mechanism of the transfer policy is simple.

Subject to certain exceptions, a white student desirous of

transferring may rot transfer to a school with a higher

percentage of white students than his or her

neighborhood school. Similarly, a minority student may

not transfer to a school with a higher percentage of

minority students than his or her neighborhood school.

Lynn prohibits such transfers because it regards them as

“segregative.” Conversely, transfers that Lynn regards as

“desegregative” are generally allowed (indeed,

encouraged). These are transfers of white students to

schools with lower percentages of white students and

transfers of non-white students to schools with lower

percentages of non-white students. Finally, any student

whose assigned neighborhood school is racially balanced

can tramsfer to another racially balanced school without

regard to whether the transfer is segregative or

desegregative.

Two exceptions are worth noting. First, any student

who qualifies as “multi-racial” is not subje.' to the

described limitations on transfer. Second, transfers will

be allowed unreservedly in order to unite students with

siblings attending non-neighborhood schools.

Despite the exceptions, the Lynn Plan opens the door

to unequal treatment based on race. Take, for example,

App.59

‘the following not-so-hypothetical scenario. Two

youngsters, one white, one African-American, are initially

assigned to the same neighborhood elementary school for

school year 2001-2002. The school is racially isolated (its

census of minority pupils is less than 43% of the total

student body). Both children ask to attend a nearby

school that is racially imbalanced (its non-white

population is above 73%). The white student will be

permitted to transfer; the African-American student will

not.

To be sure, those whose transfer requests are denied

for reasons of race are entitled to appeal. Common

grounds for successful appeals include medical and safety

concerns, daycare issues, and other types of hardship.

The record indicates that roughly half of all appeals are

successful. Moreover, the transfer policy is only part of

the Lynn Plan, which includes significant curricular

innovations designed to foster cross-racial understanding.

The Plan also envisions a construction program designed

to improve the condition of facilities, alleviate

overcrowding, and make space available for desegregative

transfers.

C. The Racial I-nbalance Law.

The racial imbalance law (the RIL), Mass. Gen. Laws

ch.15, §§ 11, 1J, 1K, ch. 71, §§ 37C, 37D (1965), directs the

Board of Education, a state agency, to remedy de facto

segregation in the public schools throughout the

Commonwealth. See Sch. Comm. v. Bd. of Educ., 227

N.E.2d 729, 732 (Mass. 1967). The legislature enacted the

RIL in response to findings that racial imbalance had

reached dramatic levels in the public schools and

threatened to harm students’ educational opportunities.

See id. at 733-34. The RIL prescribes two main anodynes:

first, it authorizes the Board to fund voluntary efforts to

improve racial balance, Mass. Gen. Laws ch. 15, § 1];

second, it empowers the Board to compel school districts

to adopt integration plans in certain circumstances, id.

App.60

ch. 71,§ 37D, or, alternatively, to impose mandatory plans

upon recalcitrant districts, id. ch. 15, § 11.

Since the passage of the RIL, the Lynn school system

has received significant state aid for its voluntary efforts

to combat racial imbalance. These funds have helped pay

for new construction and school renovations.’ Moreover,

Lynn is paid a state stipend of $500 for each and every

desegregative student transfer. Finally, the

Commonwealth, pursuant to the RIL, defrays certain

costs associated with cross-neighborhood transportation

and the establishment of magnet schools.

D. Travel of the Case.

In 1999, parents of children who had been denied

transfers under the Lynn Plan (the Comfort plaintiffs)

brought a civil action against the Lynn School

Committee, its individual members, and _ several

municipal hierarchs. They claimed that the Lynn Plan,

and by implication the RIL, violated the Equal Protection

Clause, several federal civil rights statutes (including 42

U.S.C. § 1983), and Article 111 of the Massachusetts

Declaration of Rights. The Commonwealth intervened as

a party defendant for the limited purpose of defending the

constitutionality of the RIL. See 28 U.S.C. § 2403(b). The

district court denied a motion to enjoin preliminarily the

use of racial classifications in the Lynn Plan. Comfort I,

100 F. Supp. 2d at 59-60. Even though the plaintiffs

suffered some setbacks in the course of serial rulings on

motions to dismiss, see, e.g., Comfort III], 150 F. Supp. 2d

at 289, 296-97, 302; Comfort IJ, 131 F. Supp. 2d at 254,

256, the case survived. Other parents (the Bollen

plaintiffs) filed a second action. Their complaint stated

roughly the same set of claims, but added as official

3 Prior to 2001, the RIL provided reimbursement for school

construction and renovations undertaken for the purpose of reducing

racial imbalance. The current iteration of the law no longer provides

such incentives. See Mass. Gen. Laws ch. 15, § 11; see also Comfort IV,

283 F. Supp. 2d at 344.

App.61

capacity defendants the members of the Board of

Education. The district court consolidated the two cases.

An eleven-day bench trial ensued. In a lengthy

opinion, the district court dismissed a number of the

Bollen plaintiffs’ claims on standing grounds. Comfort IV,

285 F. Supp. 2d at 361-63. It then rebuffed the facial

attack on the RIL, id, at 366-68, and determined that the

transfer provisions of the Lynn Plan passed

constitutional muster as a narrowly tailored response to

several compelling state interests, id. at 275-92. The

court proceeded to reject the plaintiffs’ federal statutory

claims, finding the prophylaxis of those statutes

coextensive with that of the Equal Protection Clause. Id.

at 392-93. Finally, the court held that the transfer

provisions of the Lynn Plan did not violate Article 111 of

the Massachusetts Declaration of Rights. Id. at 393-400.

This appeal followed. Unlike the district court, we

have had the benefit of the Supreme Court's decisions in

Grutter and Gratz. Applying the teachings of these

opinions to this plethoric record and affording careful

consideration to the extensive briefing submitted both by

the parties and by a host of able amici, we now invalidate

the transfer provisions of the Lynn Plan.

II. STANDING

“(T]he general rule is that a court should first confirm

the existence of rudiments such as jurisdiction and

standing before tackling the merits of a controverted

case.” Berner v. Delahanty, 129 F.3d 20, 23 (ist Cir.

1997). This is because “standing is a necessary

concomitant to the court's power to adjudicate a case.”

R.L_Ass'n of Realtors v. Whitehouse, 199 F.3d 26, 30 (1st

Cir. 1999). Thus, we pause at the outset to consider the

plaintiffs’ standing.

In order to achieve standing, a party seeking to invoke

federal jurisdiction must demonstrate three things:

First, the plaintiff must have suffered an “injury

in fact” — an invasion of a legally protected

App.62

interest which is (a) concrete and particularized,

and (b\ actual or imminent, not conjectural or

hypot . cal. Second, there must be a causal

conne. _ a between the injury and the conduct

complained of — the injury has to be fairly

traceable to the challenged action of the

defendant, and not the result of the independent

action of some third party not before the court.

Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992) (citations and internal quotation marks omitted).

Here, the plaintiffs launch two separate challenges: they

seek both an injunction against further application of the

allegedly discriminatory portions of the Lynn Plan and a

declaration that the RIL is unconstitutional on its face.

Under prevailing precedents, the plaintiffs must

demonstrate that they have standing to obtain each form

of relief sought. Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).

With respect to the Lynn Plan, one plaintiff (Gina

Leone) plainly meets the threshold standing requirement.

Leone sues on behalf of her minor son, Troy Lamothe.

The record indicates that in March of 2000, Troy sought

to transfer from his neighborhood school. The school

system denied the request on the ground that the

proposed transfer would be segregative. Although Troy

was allowed to attend the school of his choice pendente

lite, standing is manifest. See Nat'l Amusements, Inc. v.

Town of Dedham, 43 F.3d 731, 735 n.3 (1st Cir. 1995)

(accepting plaintiffs standing despite defendant's

agreement not to enforce disputed ordinance pending

outcome of litigation).

That ends this aspect of the matter. So long as one

plaintiff has standing to press for a particular form of

global relief (here, declaratory and injunctive relief

against the race-conscious transfer provisions of the Lynn

App.63

Plan), an inquiring court need not address the standing of

other plaintiffs seeking that relief. See Watt v. Energy

Action Educ. Found,, 454 U.S. 151, 160 (1981); Houlton

Citizens’ Coalition v. Town of Houlton, 175 F.3d 178, 183

(ist Cir. 1999).

‘Standing with respect to prospective injunctive or

declaratory relief against the RIL is a horse of a different

hue. The parties stipulated, and the district court

confirmed, that the portion of the RIL dealing with

mandates for the reduction of racial imbalance has not

been applied in Lynn. Comfort IV, 283 F. Supp. 2d at 367.

Notwithstanding this lack of imbrication, the plaintiffs

attempt to mount a facial attack on those mandatory

provisions. The plaintiffs say that those mandates,

codified at Mass. Gen. Laws ch. 71, § 37D, give white

children a right to transfer out of isolated schools and

minority children a right to transfer out of imbalanced

schools — rights that are denied to minority children in

isolated schools and to white children in imbalanced

schools. Appellants’ Br. at 56. Even if that is so in theory,

only a person who was denied a transfer on the basis of

those provisions has standing to challenge them. The

plaintiffs cannot overcome this obstacle. We explain

briefly.

The mandatory provisions of section 37D apply only to

recalcitrant school districts, that is, to communities that

eschew voluntary action to combat identified racial

imbalance. Sch. Comm. of Springfield v. Bd. of Educ., 319

N.E.2d 427, 429 (Mass. 1974). Lynn took a proactive

stance: it drafted and implemented a voluntary plan —

and it is the terms of that plan, not the strictures of the

RIL, which curtail the plaintiffs’ transfer rights. Thus,

the plaintiffs have sustained no cognizable injury from

the mandatory provisions of the RIL.‘ Accordingly, the

4 We add that the plaintiffs have not shown that they are under any

imminent threat of being subjected to these mandates. That possibility

will depend, in large part, upon Lynn's response to this decision.

App.64

plaintiffs lack standing to seek a declaration anent their

validity.

The plaintiffs also lack standing to seek prospective

injunctive or declaratory relief against those portions of

the RIL that encourage — but do not command — the

creation of voluntary plans to combat racial imbalance.

Redressability is a prerequisite for standing, see N.H.

Right to Life PAC v. Gardner, 99 F.3d 8, 13 (ist Cir.

1996), and it requires a substantial likelihood that the

sought-after relief will in fact palliate the alleged injury.

Bonas v. Town of N. Smithfield, 265 F.3d 69, 73 n.4 (ist

Cir. 2001); Am. Postal Workers Union v. Frank, 968 F.2d

1373, 1376-77 (ist Cir. 1992). In this instance, the

plaintiffs describe their alleged injury as both a racially-

based denial of transfers and a stigmatic harm stemming

from their inability to “compete” on equal terms for

transfers. Even assuming for argument's sake that this

asserted injury is traceable in some way to the RIL, the

plaintiffs cannot show that their first form of requested

relief — enjoining the Board of Education from insisting

upon “racial balancing plans” as a condition of any

financial assistance to local schools — will either pave the

way for racially unrestricted transfers within the Lynn

public schools or eliminate the perceived stigmatic harm.

To illustrate the point, one need only look at the

record. Under the grandfathered terms of the pre-2001

RIL, see supra note 3 and accompanying text, Lynn does

receive state funding for construction and busing based

on its voluntary efforts to combat racial imbalance. Even

so, were we to grant the requested relief and direct the

Board to allocate financial assistance without regard to

racial balancing efforts, redress would not necessarily

follow. There is simply no reason to believe that Lynn

would cancel its transfer program merely because it could

receive state subsidies without it.

In an effort to parry this thrust, the plaintiffs and

their amicus present a second theory for prospective

relief. They posit that the RIL is the de facto cause of

their injury in that it effectively coerces school districts

App.65

into adopting discriminatory racial balancing schemes

(and for that reason is unconstitutional). If this were

true, declaratory relief would clearly redress their harm.

See N.H. Right to Life PAC, 99 F.3d at 13.

The difficulty is that the “voluntary plan” provisions

of the RIL comprise a declaration of a policy goal to fight

de facto segregation, see Mass. Gen. Laws ch. 71, §37C,

coupled with a pledge of financial aid to help schools

achieve it, id. ch. 15, §11. Those provisions do not dictate

a procedure or methodology that communities must use

in order to achieve this goal. The plaintiffs would need to

show that the aspirational provisions of the RIL are

causally responsible for a school district's institution of

an unconstitutional racial classification. The plaintiffs

have made no such showing in the case at hand.

What is more, even if such a causal link could be

forged, none of the plaintiffs seeking to overturn the RIL

could credibly claim that the RIL threatened to cause him

or her the predictable future harm necessary for

prospective relief. The voluntary provisions of the RIL —

the only provisions that arguably apply to Lynn at this

point in time — contain no requirement that school

systems employ racially restrictive transfer methods (or

any other particular methods, for that matter). Comfort

IV, 283 F. Supp. 2d at 342 n.25. Unlike the affirmative

action context, in which set-asides for minority applicants

place all non-minorities at a competitive disadvantage,

the goal of non-competitive racial balancing does not

predictably cause one racial group as opposed to another

to be burdened. The plaintiffs can only speculate, then,

that any possible future plan that may be conceived

under the auspices of the RIL's voluntary provisions will

harm them based on their race. Such rank speculation

does not rise to the level of an Article III case or

controversy, and the fact that past damage occurred due

to the prior misuse of a discredited policy does not abate

the speculation. See City of Los Angeles v. Lyons, 461

U.S. 95, 101-02 (1983).

App.66

In other words, unless and until Lynn adopts a

specific methodology for achieving the goals suggested by

the RIL, the plaintiffs will not be able to show that they

are under an imminent threat of injury “that affects

[them] in a personal and individual way.” Lujan, 540 at

561 n.1. Accordingly, the plaintiffs do not have standing

to challenge the aspirational provisions of the RIL.®

Ill. EQUAL PROTECTION

The main issue on appeal concerns’ the

constitutionality of the use of race to restrict a student's

ability to transfer to a non-neighborhood public school.

The plaintiffs contend that by mechanically taking race

into account, the Lynn Plan runs afoul of the Equal

Protection Clause and various federal statutes (including

42 U.S.C. § 1983 and Title VI). The resolution of the

section 1983 and Title VI claims depends on the fate of

the constitutional challenge — and the successful pursuit

of that challenge, see text infra, moots the remaining

federal statutory claims (both in the traditional sense and

in the sense that they have been presented to this court

without sufficiently developed argumentation).

Consequently, we shape our analysis in terms of the

equal protection issue.

A. Standard of Review.

5 We add that, even if the plaintiffs had shown standing, we largely

agree with the district court that a facial challenge to the RIL must

fail. Comfort [V, 283 F. Supp. 2d at 367-68. After all, “[a] facial

challenge to a legislative Act is .. . the most difficult challenge to

mount successfully, since the challenger must establish that no set of

circumstances exists under which the Act would be valid.” United

States v. Salerno, 481 U.S. 739, 745 (1987). It cannot be disputed that

such circumstances exist here. See Boston's Children First v. Boston

Sch. Comm,, 260 F. Supp. 2d 318, 327 (D. Mass. 2003) (finding that

the goals espoused by the RIL may be satisfied by race-neutral

methods), affd sub nom. Anderson v. City of Boston, 375 F.3d 71 (ist

Cir. 2004).

App.67

This appeal comes to us at the conclusion of a bench

trial. Consequently, we accord deferential review to the

court's findings of fact and plenary review to its legal

conclusions. Wessmann v. Gittens, 160 F.3d 790, 795 (ist

Cir. 1998). The latter standard applies where, as here, we

dea] with questions of whether the facts, as found, justify

the court's legal conclusions. Id.

B. Level of Scrutiny.

The Equal Protection Clause commands that no State

shal] “deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. Amend. XIV, § 1. By

its terms, the Equal Protection Clause applies to persons,

not groups. See Shelley v. Kraemer, 334 U.S. 1, 22 (1948).

It follows that whenever a state or local government

takes an action based on race — a particularly irrelevant

and generally prohibited type of group classification — it

is the courts’ role to ensure that an individual's personal

right to equal protection has not been infringed by that

classification. Grutter, 539 U.S. at 326;. Adarand

Constructors, Inc. v Pena, 515 U.S. 200, 227 (1995).

The law is adamantine that all racial classifications

imposed by government must be analyzed by a reviewing

court under strict scrutiny. Gratz, 539 U.S. at 270. This

principle has particular bite because “[t]he Supreme

Court consistently employs sweeping language to identify

the species of racial classifications that require strict

scrutiny.” Wessmann, 160 F.3d at 794. Under the Lynn

Plan, a student's race may be determinative of whether

he or she can transfer to a given non-neighborhood

school. Strict scrutiny is a natural fit for such a race-

conscious regime. See Parents Involved in Cmty. Schs. v

Seattle Sch. Dist., 377 F.3d 949, 960-61 (9th Cir. 2004)

(applying strict scrutiny to factually similar school

assignment plan).

Remarkably, the defendants and some of their amici

strive to persuade us that we should apply a more relaxed

level of scrutiny here. They cite cases such as Anderson v.

City of Boston, 375 F.3d 71, 87-88 (lst Cir. 2004), and

App.68

Raso v. Lago, 135 F.3d 11, 16-17 (1st Cir. 1998), for the

proposition that race-neutral diversity plans are not

necessarily subject to strict scrutiny. Building on this

foundation, they then posit that the Lynn Plan does not

employ classifications preferring the interests of one race

over those of another because (i) it affects whites and

nonwhites equally, and (ii) given the parties’ stipulation

that all of Lynn's schools provide equivalent educational

opportunities, the transfer policy imposes no unequal

burden or benefit on anyone. We find these protests

unavailing: the Lynn Plan is not race-neutral, and no

amount of artful advocacy can change that fact.

As for the defendants’ first point, burdening different

groups equally does nothing to pull the constitutional

sting from classifications based on race. See Loving v.

Virginia, 388 U.S. 1, 8 (1967); Wessmann, 160 F.3d at 795

n.l. Similarly, the fact that the racial identity of the

burdened party will change with the circumstances of a

particular transfer does not alter the reality that, in each

instance, “someone from some group will be benefited

[sic] and a different someone from a different group will

be burdened” through the explicit use of race. Wessmann,

160 F.3d at 794. This reality demands the application of

strict scrutiny. See Gratz, 539 U.S. at 270.

As for the defendants’ second point, we refuse to

entertain the fiction that because all of Lynn's schools

provide equivalent academic training, no person is

benefitted or burdened by the preferential handling of

transfer requests. The Court made it pellucid a half-

century ago that, in terms of public education, separate is

never equal. See Brown v. Bd. of Educ., 347 U.S. 483, 495

(1954). This is common sense: there are factors other

than academic quality that often influence « student's

preference to attend a particular school. This reality is

amply demonstrated by the fact that parents (the

plaintiffs in these cases are exemplars) find one school so

far preferable to another that they elect to forfeit the

convenience of neighborhood schooling in search of a

better, albeit more distant, education.

App.69

We conclude, therefore, that the Lynn Plan must be

subjected to strict scrutiny. Under that standard, “[racial]

classifications are constitutional only if they are narrowly

tailored to further compelling governmental interests.”

Grutter, 539 U.S. at 326. To facilitate this inquiry, the

law assigns the proponents of race-based classifications

the burden of demonstrating that the strict scrutiny

standard is satisfied. Gratz, 539 U.S. at 270.

While it is exacting, strict scrutiny is not a mandatory

death sentence for a race-conscious policy. Grutter, 539

U.S. at 326; Adarand, 515 U.S. at 237. “When race-based

action is necessary to further a compelling government

interest, such action does not violate the constitutional

guarantee of equal protection so long as the narrow-

tailoring requirement is also satisfied.” Grutter, 539 U.S.

at 327.

We add, moreover, that strict scrutiny is not blind to

context. That type of inquiry “is designed to provide a

framework for carefully examining the importance and

the sincerity of the reasons advanced by the

governmental decisionmaker for the use of race in that

particular context.” Id. (emphasis supplied). Bearing this

in mind, courts must judge racial classifications in light

of the situations in which they arise. Wessmann, 160 F.3d

at 796. Consequently, to determine whether a particular

racial classification offends the equal protection

guarantee, a reviewing court must factor any and-all

relevant contextual considerations into the decisional

calculus. Adarand, 515 U.S. at 228.

C. Compelling State Interest.

Against this backdrop, we turn to the existence vel

non of a compelling state interest. We begin this phase of

our analysis with a close look at the Grutter Court's

pronouncements about what constitutes a compelling

interest in the educational context.

To understand Grutter, we must retreat to Justice

Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438

U.S. 265 (1978). That opinion, decisive in the case,

App.70

indicated that, wholly apart from any remedial

considerations, a university's interest in a diverse student

body might, in some circumstances, rise to the level of a

compelling state interest. Id. at 311-12, 320 (opinion of

Powell, J.). The Supreme Court's statements over the

next fifteen years did little to reinforce the view that

diversity could be a sufficiently compelling interest

outside the remedial context. See, e.g., Richmond v. J.A.

Croson Co., 488 U.S. 469, 493 (1989) (plurality op.);

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986)

(plurality op.). Grutter supplied the missing

reinforcement, holding that a law school's interest in

obtaining the educational] benefits that flow from having

a diverse student body was compelling enough to justify

the narrowly tailored use of race in admissions. Grutter,

539 U.S. at 343.

Identifying precisely the compelling interest

sanctioned in Grutter is easier said than done. Grutter

involved law school admissions. The defendant took into

account an applicant's racial and ethnic background as

one of several “soft variables” used in assessing that

applicant's prospects for admission. Id. at 315. The school

justified this strategy as furthering its stated goal of

assembling a class that was both “exceptionally . .

qualified and broadly diverse.” Id, at 329. A subsidiary

goal was to enroll a “critical mass” of minority students

and, thus, enhance the law school's quest for broad

diversity. Id.

The Grutter Court took pains to clarify that the law

school's plan did not pursue a critical mass of minority

students for its own sake, but, rather, for the sake of the

educational benefits that flow from having a diverse

student body. Id, at 329-30 (acknowledging that racial

balancing, for its own sake, is patently unconstitutional).

These educational benefits included promoting cross-

racial understanding, breaking down stereotypes,

creating livelier and better informed class discussions,

and preparing students to succeed in an increasingly

diverse society. Id. at 330.

App.71

The Grutter Court largely deferred to the law school's

educational judgment not only in determining that

diversity would yield these educational] benefits, but also

in determining that these benefits were critical to the

school's educational mission. Id. at 328-33. The Court

seemed to take comfort in the fact that the law school's

conclusions were bolstered by expert evidence. Id. at 330.

Justice O'Connor warned, however, that the Court's

“scrutiny of the interest asserted by the Law School is no

less strict for taking into account complex educational

judgments in an area that lies primarily within the

expertise of the university.” Id. at 328.

The Grutter Court concluded that the quest for these

benefits comprised a compelling state interest. Id. In so

ruling, the Court acknowledged “the overriding

importance of preparing students for work and

citizenship . . . as pivotal to sustaining our political and

cultural heritage.” Id. at 331 (citation and internal

quotation marks omitted). In a comment that seems

particularly pertinent to the university context, the Court

emphasized “that the path to leadership [must] be visibly

open to talented and qualified individuals of every race

and ethnicity” so that our nation’s leaders will have

“legitimacy in the eyes of the citizenry.” Id. at 332.

With this foundation in place, we mull the stated

interest that Lynn seeks to achieve through use of racial

classifications. This is not a case where the racial

classification is aimed at remedying past segregation.

Comfort IV, 283 F. Supp. 2d at 390 n.101. Rather, the

parties stipulated that Lynn's interests

include fostering integrated public schools and

what Lynn believes are its positive effects;

reducing minority isolation and avoiding

segregation and what Lynn believes are their

negative effects; promoting a positive racial

climate at schools and a safe and healthy school

environment; fostering a cohesive and tolerant

community in Lynn; promoting diversity;

App.72

ensuring equal education and life opportunities

and increasing the quality of education for all

students.

At first blush, Lynn's avowed interests appear to fall

into two distinct categories: (i) reaping the educational

benefits that flow from having a racially diverse student

body in each of its public schools, and (ii) avoiding the

negative educational consequences that attend racial

isolation. Closer inspection shows these interests to be

two sides of the same coin.

In advocating the importance of racial diversity in its

schools, Lynn maintains that ensuring a racially diverse

student body has produced, and will continue to yield,

benefits central to its educational mission. These benefits

include many of the same benefits cited by the Grutter

Court: disarming racial stereotypes, increasing racial

tolerance, and preparing students to live and work in an

increasingly multi-racial world. To some extent, Lynn has

history on its side. Since the inception of the Lynn Plan,

the school system has experienced many positive changes,

such as higher attendance rates, declining suspension

rates, a safer environment, and apparent academic gains.

All of these benefits can be explained, in the

defendants’ view, by two related theories. The first is an

intergroup contact theory, which posits that “under

certain conditions, interaction be:ween students of

different races promotes empathy, understanding,

positive racial attitudes and the disarming of

stereotypes.” Comfort IV, 283 F. Supp. 2d at 356. The

second is a critical mass theory, which posits that “unless

there is a ‘critical mass’ of white and nonwhite students

in a given school,” it will be difficult to obtain the benefits

envisioned by intergroup contact. Id, at 357. Citing these

theoretical underpinnings, the district court gave

credence to the defendants’ assertion of a causal link

between improvements in the school system and

increased racial balance. Id. at 354.

App.73

Lynn's second claimed compelling interest — avoiding

the damaging educational effects of racial isolation in its

schools — is largely an inverse restatement of the first.

See Eisenberg v. Montgomery County Pub. Sch., 197 F.3d

123, 130 (4th Cir. 1999); Brewer v. W. Irondequoit Cent.

Sch. Dist., 32 F. Supp. 2d 619, 627 (W.D.N.Y. 1999).

According to the defendants, the Lynn Plan aspires to

reduce or eliminate the number of schools which, as a

result of residential segregation, enroll a significantly

outnumbered racial minority population. The defendants’

expert evidence suggests that racially isolated students

often feel psychological burdens that can lead to poor

attendance and parlous academic performance.

When all is said and done, these two interests collapse

into one. Whether stated as achieving the benefits of

intergroup contact and critical mass or avoiding the

pitfalls of racial isolation, the central idea is that

students — all students — are better off in racially

diverse schools. We therefore restate the interest at stake

here as obtaining the educational benefits of a racially

diverse student body.

A short time ago, we expressly reserved the question

whether the need for racial diversity alone might, under

certain circumstances, constitute a compelling

governmental interest sufficient to warrant some type of

race-conscious action.* See Wessmann, 160 F.2d at 798.

The Lynn Plan poses that reserved question.

At trial, the defendants presented considerable

evidence of both educational and environmental gains

(e.g., improved achievement test scores, decreased racial

tension). The plaintiffs do not gainsay that progress, but,

rather, question whether these advancements fairly can

be attributed to the race-conscious elements of the Lynn

Plan. The plaintiffs variously contend that the Supreme

® Grutter did not explicitly resolve the question, referring instead to

the compelling interest in obtaining the benefits that accrue from a

diverse student body. 539 U.S. at 328. Racial diversity is a subset of

that broader diversity.

App.74

Court has foreclosed the possibility that obtaining

educational benefits from racial diversity can ever

constitute a compelling state interest; that increased

academic achievement and racial harmony can be

explained by other, race-neutra] aspects of the Lynn Plan

(eg., mew facilities, greater economic resources,

curriculum changes, and teacher training); that the

defendants offered no relevant statistical analyses; and

that, in all events, any connection between racial balance

and educational benefit is belied by the fact that, as the

parties have stipulated, the quality of education is

comparable throughout Lynn's schools (even those

deemed racially isolated or imbalanced). Upon careful

examination, we find these contenticns unpersuasive.

To begin, we acknowledge that the Lynn Plan's

transfer mechanism expressly aims at attaining a racial

balance in the city’s schools, and the Court frequently has

warned that racial balancing, for its own sake, can never

survive strict scrutiny. See, e.g., Grutter, 539 U.S. at 330;

re v. Pitts, 503 U.S. 467, 494 (1992). Still, we reject

the idea that obtaining educational benefits from racial

diversity can never constitute a compelling state interest.

Where a community does not seek racial balance for its

own sake but for the sake of the educational benefits that

diversity plausibly may provide, there is no absolute bar.

See Grutter, 539 U.S. at 330. The district court found

that this was Lynn's purpose, Comfort IV, 283 F. Supp.

2d at 375-76, and the record supports that finding. We

see no reason to second-guess it. Cf. Grutter, 539 U.S. at

328 (stating that, typically, an “educational judgment

that . . . diversity is essential to its educational mission is

one to which we defer”).

It is a closer question whether the defendants have

proven that racial diversity is compelling in the K-12

context. On one hand, the educational improvements that

Lynn has experienced are consistent with the social

science testimony offered in support of the Plan. The

parties’ stipulation that “the education provided .. . in

each of the elementary, middle, and high schools in Lynn

App.75

is comparable in quality, resources, and curriculum” does

not negate the possibility that racial diversity has

produced some of these gains. On the other hand, the

question lingers as to whether the dearth of evidence

explicitly linking educational advancements to improved

racial balance is fatal. See Wessmann, 160 F.3d at 805

(discussing a party's failure to eliminate non-racial

variables in evaluating the necessity of a race-conscious

policy). The tiebreaker, as we see it, is that the interests

asserted bear a strong familial resemblance to those that

the Grutter Court found compelling. There is no reason to

believe that these interests are substantially more potent

in the context of higher education than in the context of

elementary and secondary education.’ See Parents

Involved, 377 F.3d at 964; cf. Plyler v. Doe, 457 U.S. 202,

221 (1982) (emphasizing the importance of K-12

education “in maintaining the fabric of our society”).

In the last analysis, we agree with Judge O’Scannlain

that, “[a]t bottom, Grutter plainly accepts that

constitutionally compelling internal educational and

external societal benefits flow from the presence of racial

and ethnic diversity in educational institutions.” Parents

Involved, 377 F.3d at 964. Though the benefits attributed

to the Lynn Plan do not mimic exactly the benefits

described in Grutter, one important lesso. f Grutter is

that the compelling state interest in diversity should be

judged in relation to the educational benefits that it seeks

to produce. 539 U.S. at 330. The Lynn Plan's use of race

aspires to create many of the same benefits that were

cited approvingly by the Grutter Court, including

breaking down racial barriers, promoting cross-racial

? In point of fact, there war significant evidence presented at trial

supporting the view that the benefits to be derived from a racially

diverse educational milieu are more compelling at younger ages. See,

eg. Comfort IV. 283 F. Supp. 2d at 356 (summarizing expert's

testimony to the effect that “[ijt 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’).

App.76

understanding, and the umbrella notion of preparing

students for a world in which “race unfortunately still

matters.” Id, at 333. While Lynn adds benefits not

contemplated in Grutter (e.g., student safety and

attendance) and downplays the advantages of viewpoint

diversity in the classroom — a benefit heralded in

Grutter, id, at 330 — these differences seem to be the

logical result of context. It is natural to presume that

safety and attendance issues will loom larger in

elementary and secondary schools as opposed to graduate

schools and, conversely, that lively classroom discussion

is a more prominent form of le: ning in law schools

(which generally prefer the Socratic method) than in a K-

12 setting.

The short of it is that the defendants have made a

persuasive case that a public school system has a

compelling interest in obtaining the educational benefits

that flow from a racially diverse student body. Accord

Parents Involved, 377 F.3d at 964; Brewer v. W.

Irondequoit Cent. Sch. Dist., 212 F.3d 738, 753 (2d Cir.

2000). We so hold.

D. Narrow Tailoring.

Even when the use of racial distinctions is permissible

to advance a compelling governmental interest, the

government's use of such distinctions must be sculpted to

fit the permitted purpose. Grutter, 539 U.S. at 333.

Insisting on a close fit between means and end not only

ensures that the use of race is no broader than necessary

to achieve the government's legitimate interests, but also

enables courts to flush out those racial classifications that

are constitutionally impermissible. Gratz, 539 U.S. at

270.

This component of the equal protection analysis is

known as the narrow-tailoring requirement. Stated

generally, narrow tailoring demands that the proponent

show that the chosen plan or practice is (i) necessary to

the declared purpose, (ii) proportional to that purpose,

(iii) limited in time, and (iv) not-productive of a greater

\pp.77

than necessary burden on third parties. See United

States v. Paradise, 480 U.S.» 149, 171 (1987) (plurality

op.). This is, however, the view from 50,000 feet — and at

that level of generality the formulation is of limited value.

With that in mind, the Supreme Court repeatedly has

reminced us that the narrow-tailoring inquiry is case-

specific; it “must be calibrated to fit the distinct issues

raised by the use of race” in a given context. Grutter, 539

U.S. at 333-34. Thus, the factors used to judge whether a

particular plan or practice is narrowly tailored will

depend, in the first instance, on the nature of the

compelling interest that the government seeks to further.

The Court has not yet considered a constitutional

attack on a race-based transfer policy for elementary and

secondary schools. Nevertheless, the recent opinions in

Grutter and Gratz “define the contours of the narrow-

tailoring inquiry with respect to race-conscious university

admissions programs,” Grutter, 539 U.S. at 333, and thus

furnish some relevant guideposts for how the narrow-

tailoring inquiry should function where the State's

professed interest is achievement of diversity inthe K-12

setting.

Gratz involved the University of Michigan's

undergraduate admissions program. The University

automatically assigned 20 points — one-fifth of the 100

points needed to guarantee admission — to an applicant

from an underrepresented racial or ethnic minority

group. Gratz, 539 U.S. at 255. This 20-point bonus

effectively made _ race/ethnicity determinative for

minimally qualified minority applicants. Id, at 272.

Grutter involved law school admissions. The law

school took race into account as one of severa! variables

in an individual's application. Grutter, 539 U.S. at 340.

The school assigned no mechanical score based on an

applicant's race; instead, it considered race only as one of

several possible ways in which an applicant could enrich

the diversity of the student body. Id, at 315-16. Moreover,

the law school set no quotas for racial or ethnic

minorities. Id, at 335-38.

App.78

The Supreme Court struck down the plan used in

Gratz while upholding the one used in Grutter. In

arriving at these decisions, the Court delineated how to

calibrate the narrow-tailoring inquiry. First, a race-

conscious admissions program must use race in “a

flexible, non-mechanical way” if its plan is to be

considered narrowly tailored. The pian cannot

institutionalize a quota system or in any way insulate one

category of applicants from competition with another

solely on account of race. Id.; Gratz, 539 U.S. at 258, 270-

72. Race can, however, be used as a plus factor in the

course of an individualized consideration of each

applicant. Grutter, 539 U.S. at 334. Second, the Court

chanted a familiar mantra: that government must

consider, as a preferred option, workable, race-neutral

alternatives that hold out the promise of achieving the

compelling interest that prompts a particular plan or

practice. ld. at 339. Third, narrow tailoring “requires that

a race-conscious admissions program not unduly harm

members of any racial group.” Id. at 341. Fourth, the use

of racial distinctions must be limited in time. Id, at 342.

In the university context, “the durational requirement

can be met by sunset provisions .. . and periodic reviews

to determine whether racial preferences are still

necessary.” Id.

If we were to import into this case the Court's first

narrow-tailoring requirement, the Lynn Plan could not

survive strict scrutiny. See Parents Involved, 377 F.3d at

969. The Lynn Plan explicitly hinges the availability of a

transfer on a student's race. There is no individualized

consideration of a student's qualifications, no head-to-

head comparison of one student to another, and no weight

given to a student's other potential contributions to

diversity. Apart from an appeals process that allows

exceptions only for hardship or other special

circumstances, race generally determines the fate of a

student's application to transfer to a non-neighborhood

school. So viewed, the Lynn Plan is even more mechanical

App.79

and even less flexible than the collegiate admissions

policy that the Gratz Court found wanting.*

Still and all, we hesitate to stop at that point because

transplanting the first narrow-tailoring requirement root

and branch from Grutter and Gratz would ignore the

Court's admonition that context matters. It is conceivable

that a nuanced comparison between the context of

competitive collegiate or graduate school admissions and

non-competitive primary or secondary school transfers

may show that a mechanical consideration of race in the

latter context should not be treated as the shibboleth that

it is in the former. We essay that comparison.

In the admissions c~ntext, the Supreme Court has

catalogued several dangers flowing from the mechanical,

inflexible, and exclusive use of race as a determinant. For

one thing, such an approach insulates the preferred

category of applicants from competition with other

applicants. Grutter, 539 U.S. at 334. For another thing,

such an approach feeds the stereotype that stude”its from

the preferred group lack merit, thus raising the specter of

stigmatic harm. See Bakke, 438 U.S. at 298 (opinion of

Powell, J.) (stating that “preferential programs may only

reinforce common stereotypes holding that certain groups

are unable to achieve success without special protection”).

These dangers are far less ominous, if not altogether

absent, in the K-12 setting. In particular, the transfer

provisions of the Lynn Plan do not operate competitively:

“X” is granted or denied a transfer on the basis of a set

(albeit race-conscious) standard, not on the basis of how

he stacks up when compared to “Y.” Thus, the provisions

neither skew a competitive process nor substitute race as

* It is no response to suggest, as have several amici, that the volume of

applicants for transfer in Lynn, combined with the school system's

limited resources, vitiates the need for individualized review. “{T}he

fact that the implementation of a program capable of providing

individualized consideration might present administrative challenges

does not render constitutional an otherwise problematic system.”

Gratz, 539 U.S. at 275.

App.80

a proxy for an applicant's merit. It is also arguable that

the denial of a transfer does not inhibit the would-be

transferee's access to a limited public good. After all, the

parties have stipulated that Lynn's schools are

academically equivalent, and the Lynn Plan denies no

child a scholastically comparable education.°

Competitive disadvantage and stigmatic harm are

not, however, the only reasons behind the Supreme

Court's disdain for quotas and other inflexible uses of

race. The Court has recognized that such policies foster

the unwarranted presumption that all members of a

given racial group represent the same viewpoint. See

Gratz, 539 U.S. at 271. Regardless of the burden imposed

by a racial preference, the simple act of granting benefits

based on a quota or mechanical use of race will breed

cross-racial tension. See Croson, 488 U.S. at 493.

Furthermore, when government indulges in the

automatic and unflinching use of race in the bestowal of

any benefit, that usage counteracts the ultimate goal of

relegating racial distinctions to irrelevance. Id. at 495.

The unbending use of race in the Lynn Plan heightens

these dangers. See Parents Involved, 377 F.3d at 969-70.

Although the question is close, we conclude that the

distinction between competitive admissions and non-

competitive transfer programs is insufficient to justify us

in disregarding the Supreme Court's recent guidance.

While the Court has emphasized the importance of

context in framing the narrow-tailoring inquiry, nothing

in either Grutter or Gratz indicates a willingness to

embrace mechanical, race-based programs in other

corners of the educational world. If there is to be a retreat

from the Supreme Court's blueprint, the Court itself must

light the way.

* This is not to say that an applicant who is denied a transfer suffers

no harm. Rather, we are merely raising the possibility that the harm

is different in scope and kind from that experienced in the competitive

admissions setting.

App.81

The outcome here flows naturally from this

determination. Although the Lynn Plan is not a pure

quota system, it uses race mechanically both to deprive

some individuals of a desired benefit and to grant the

same benefit to others. Because the Lynn Plan makes

race decisive and forgoes individualized consideration of

transfer applications, it cannot be deemed narrowly

tailored to the community's compelling interest in

obtaining the educational benefits of diversity. Accord

Parents Involved, 377 F.3d at 969-70; Eisenberg, 197

F.3d at 133; Tuttle v. Arlington County Sch. Bd., 195 F.3d

698, 707 (4th Cir. 1999).

Although we could end our analysis of the Lynn Plan

at this point, we think it wise to point out that the Plan

has other narrow-tailoring shortcomings. We briefly

discuss these flaws.

Even a flexible use of race will fail narrow tailoring

under the Grutter/Gratz test if it “unduly burden|[s]

individuals who are not members of the favored racial

and ethnic groups.” Grutter, 539 U.S. at 341 (citation and

internal quotation marks omitted). Thus, racial

classifications cannot be used more often than necessary

to satisfy the compelling governmental interest that is at

stake. See id. The Lynn Plan cannot pass muster in this

respect.

At trial, the defendants’ expert testimony was to the

effect that intergroup contact between students of

different races produces significant educational benefits,

and that those benefits only accrue when a critical mass

of minority and non-minority students exists in each

school. Although these witnesses did not pinpoint any

“magic number” sufficient to form a critical mass, they

agreed that 20% is the figure most often cited in the

relevant literature.

The plaintiffs argue persuasively that the Lynn Plan

is not narrowly tailored to achieve the educational

benefits of intergroup contact. The touchstone for gaining

the benefits of intergroup contact is the assembly of a

critical mass of minority and non-minority students in

App.82

each school. But the Lynn Plan is calibrated toward

proportional representation rather than critical mass; it

seeks to maintain within each school a racial mix within

10%-15% of the racial mix of the aggregate student

population (depending on the level of school). Thus,

because Lynn's overall non-white school-aged population

is 58%, an elementary school with a 40% non-white

enrollment qualifies as racially isolated even though that

school contains a critical mass of both white and

nonwhite students.

The district court's response to this apparent failing is

that while critical mass is required for educational

benefit, that benefit increases the closer a given school

comes to racial balance (that is, to mirroring the racial

makeup of the community). See Comfort IV, 283 F. Supp.

2d at 357 (stating that “gains occur along a continuum: as

the racial composition of school populations creeps closer

to balanced, racial stereotyping and tension is [sic]

reduced and racial harmony and _ understanding

increase[}”). This rationale exceeds the bounds of the

School Committee's presented theory and, in the end,

collapses of its own weight.

The compelling government interest that animates

the Lynn Plan is the interest in attaining the educational

benefits of a level of racial diversity commensurate with

critical mass. The use of race-conscious elements must,

therefore, be narrowly tailored toward accomplishing that

goal — not some other, more grandiose goal. A narrowly

tailored plan would attempt to assemble a sufficient

number of minority and non-minority students in each

school to enable intergroup contact (a number that the

defendants and their experts have equated with critical

mass). In the same vein, a narrowly tailored plan would

deny transfers on racial grounds only when such

transfers would tend to jeopardize that number (that is,

to jeopardize critical mass).’° The Lynn Plan does neither

© This is not to say that such a plan must be tailored to the

attainment of a critical mass of exactly 20%. Neither equal protection

App.83

of these things. Consider, for example, that for the 2001-

02 school year, two of Lynn's elementary schoo!s — Aborn

(35%) and Hood (42%) — had minority populations

substantially above the 20% necessary to achieve critical

mass but below the 43% necessary to qualify as racially

balanced. A minority student seeking to transfer from

either of these institutions to a racially balanced school

normally would be turned down, even though that

transfer would not deprive either the transferor or

transferee school of critical mass. A white student, on the

other hand, would be allowed to make the move. By

contrast, Lynn allows ali transfers that do not imperil

racial balance, even if particular transfers are

segregative. For instance, minority students may freely

transfer from Lincoln-Thomson (43% minority) to Ford

(71% minority), because neither the transferor nor

transferee school will be deprived of racial balance (as

that term is defined by Lynn).

Using racial restrictions to achieve benefits otherwise

absent is one thing; using those restrictions to edge closer

to racial balance is quite another. Except where necessary

to correct the effects of past constitutional violations — a

situation not extant here -- racial balancing is

“antithetical to our constitutional jurisprudence.”

Wessmann, 160 F.3d at 799. On this record, the numbers

tell the tale: the Lynn Plan is not narrowly tailored to

achieve the municipal defendants’ asserted diversity

interests.

Under the Grutter/Gratz test, narrow tailoring also

requires that those who would use race as a criterion first

demonstrate that they have exhausted race-neutral

alternatives. Grutter, 539 U.S. at 339-40; Wygant, 476

U.S. at 280 n.6. This does not require the proponents to

nor critical mass are matters of scientific precision, and an otherwise

proper plan could overshoot the number necessary for critical mass as

long as the plan was crafted with a view toward attaining critical

mass. Here, however, the plan is designed to achieve racial balance,

not critical mass.

App.84

try every conceivable alternative prior to the

implementation of a race-conscious plan; they may reject

alternatives that are shown, on the record, to be

unworkable or unpromising. Grutter, 539 U.S. at 339;

Croson, 488 U.S. at 507-08; Paradise, 480 U.S. at 171. We

find that the responsible parties here — the municipal

defendants — have not carried this burden.

We give credit where credit is due: the municipal

defendants did seriously consider, and piausibly reject, a

number of race-neutral alternatives. These included (i) a

no-transfer policy, see Comfort IV, 283 F. Supp. 2d at

387-88 (crediting evidence from a demographics expert

that instituting such a policy would throw several

elementary schools into racial imbalance); (ii) a policy of

unrestricted transfers, see id, at 388 (crediting evidence

that instituting such a policy would result in 500 to 800

segregative transfers per year); (iii) a redrawing of

district lines, see id, at 387-88 (noting the impracticalities

of such a reconfiguration); (iv) a regimen of forced busing,

see id. at 347 (concluding that the problems attendant to

forced busing, with all its historical baggage, justified

Lynn's rejection of a “controlled choice” scheme); (v) a

lottery system, see id. at 389 (finding that demographic

and scheduling factors warranted dismissal of this

concept); and (vi) a plan using socioeconomic status,

rather than race, as a benchmark for allowing transfers,

see id, at 389 n.100 (noting that transfers based

exclusively on socioeconomic status would exacerbate

existing racial imbalance)."

Notwithstanding these laudable efforts, it is equally

clear that the process of consideration and rejection of

these options was geared toward a goal of racial balance,

and not toward a goal of ensuring a critical mass of

11 We note that the use of socioeconomic status instead of race would

not trigger strict scrutiny. The sting of rejection based on having too

much money “pales in comparison to the insult of rejecting an

applicant solely because of the color of [one's] skin.” Parents Involved,

377 F.3d at 972 n.26.

App.85

minority and non-minority students in each school. If

Lynn decides to create another plan to alleviate the

perceived problem of de facto segregation, it would do

well to revisit these measures (or, at least, such of them

as held promise) in terms of critical mass theory. Lynn

should also take note of the’ successes of other

Massachusetts communities in creating race-neutral

plans and study whether those plans might work in Lynn.

See, e.g., Anderson, 375 F.3d at 74 (ist Cir. 2004)

(approving Boston's race-neutral plan for achieving

diversity in the city's schools).

The Lynn Plan arguably has another flaw. In order to

survive constitutional scrutiny on narrow-tailoring

grounds, the use of race-based distinctions must be

limited in time. Grutter, 539 U.S. at 342. This durational

requirement stems from the reality that a core purpose of

the Fourteenth Amendment — to eradicate governmental

discrimination based on race — sometimes necessitates

the use of race as a temporary means to its

accomplishment. See Croson, 488 U.S. at 497-98.

Consequently, even when race-conscious plans are

justified, educators should stand ready to replace them

with race-neutral alternatives as new programs became

available or as changing circumstances permit. Grutter,

539 U.S. at 342.

To this end, the Supreme Court, albeit in the context

of higher education, has recommended that

administrators consider sunset provisions in race-

conscious policies and assiduously review such policies “to

determine whether racial preferences are still necessary

to achieve student body diversity.” Id. We see no

meaningful distinction between higher education and

primary or secondary education when it comes to these

criteria. Lynn falls short on this ground.

To be sure, the district court believed that the Lynn

Plan had a “built-in” time-limiting mechanism because

racially restrictive transfers to a particular school cease

once that school is in line with the community's white-

nonwhite ratios. Comfort [V, 283 F. Supp. 2d at 377. We

App.86

find this feature inadequate. Grutter posits that schools

must periodically review the continued necessity of race-

conscious measures and implement changes as and when

race-neutral means become available. Id. at 342. So long

as that review is maintained, a race-conscious plan may

be somewhat open-ended. Id. at 343.

Here, however, the internal mechanism of the Lynn

Plan is insufficient to take account of external changes in

circumstances. The School Committee performs ongoing

demographic monitoring, gathering data on the schools’

racial composition, on transfers, and on the performance

of the magnet schools. What the record does not indicate,

though, is that the Committee has committed to

undertake any manner of periodic review to determine

whether ongoing developments might render the use of

racial restrictions superfluous. Without that review, the

mere compilation of statistics is not enough to satisfy the

durational requirement. See Eisenberg, 197 F.3d at 132.

Any narrowly tailored plan must include a commitment

adequate to ensure that school officials afford periodic,

serious, and good-faith consideration of the continued

need for racial restrictions.

To summarize succinctly, the seas of strict scrutiny

can be rough sailing. So it is here: for four reasons — the

mechanical use of race, a design sculpted more to the

achievement of racial balancing rather than to the

educational benefits flowing from the attainment of

critical mass, the failure fully to explore the feasibility of

race-neutral alternatives, and the absence of a

commitment to periodic review — we conclude that the

Lynn Plan is not narrowly tailored to achieve the

compelling governmental interest that spawned it in the

first place.

That gets the grease from the goose. We hold that the

transfer provisions of the Lynn Plan fail to survive the

plaintiffs’ equal protection challenge. We take no joy in

this conclusion — the School Committee's motivations

here were noble. Nevertheless, while we may empathize

with the School Committee, this case aptly illustrates

App.87

what government at every level should know: charting a

course that depends upon racial classifications is, in

constitutional terms, a risky business.

This holding means, of course, that the plaintiffs must

prevail on their section 1983 and Title VI claims.'? We

regard their other federal statutory claims as moot. So too

is their claim that the Lynn Plan violates Article 111 of

the Massachusetts Declaration of Rights. Consequently,

we do not address any of the latter claims.

IV. RECUSAL

Despite our resolution of the central issue on appeal,

we still must address the plaintiffs’ claim that the district

judge should have disqualified herself from hearing this

case. The argument for recusal involves the following

syllogism: (i) prior to her appointment to the federal

bench, Judge Gertner was a member of the Lawyers'

Committee for Civil Rights (LCCR), a _ nonprofit

organization; (ii) LCCR is an advocacy group that

unsuccessfully moved to intervene in this litigation on the

side of the defendants; and therefore (iii) the law required

that Judge Gertner recuse herself. Judge Gertner denied

the recusal motion in an unpublished order dated March

21, 2002. We review that ruling for abuse of discretion.

Camacho v. Autoridad de Telefonos, 868 F.2d 482, 490

(1st Cir. 1989).

The controlling statute is 28 U.S.C. § 455, which

limns the applicable standards for recusal. That statute

provides in pertinent part that a judge “shall” recuse

herself “in any proceeding in which [her] impartiality

might reasonably be questioned.” Id. § 455(a). A party

who suggests that recusal is appropriate must support

the motion with facts that “provide what an objective,

12 We note that “[djiscrimination that violates the Equal Protection

Clause . . . committed by an institution that accepts federal funds also

constitutes a violation of Title VJ.” Gratz, 539 U.S. at 276 n.23. It

follows, then, that the denial of school transfers based on race violates

both Title VI as well as section 1983.

App.88

knowledgeable member of the public would find to be a

reasonable basis for doubting the judge's impartiality.” In

re: Boston's Children First, 244 F.3d 164, 167 (1st Cir.

2001) (quoting In re United States, 666 F.2d 690, 694 (1st

Cir. 1981)). The plaintiffs have failed to cross this

threshold.

Judges do not spring from Zeus's brow, bereft of any

worldly contacts. To the contrary, every judge dons his or

her robe with a lifetime of background experiences, a

roster of acquaintances and associations, and a myriad of

views. This past history, in and of itself, seldom is

sufficient to require recusal. Brody v. President & Fellows

of Harvard Coll., 664 F.2d 10, 11 (ist Cir. 1981) (per

curiam). Unless there is a direct link sufficient to furnish

a reasonable basis for doubting impartiality, the judge

ought to continue to sit. In re United States, 158 F.3d 26,

31 (ist Cir. 1998); Blizard v. Frechette, 601 F.2d 1217,

1221 (1st Cir. 1979); cf. United States v. Giorgi, 840 F.2d

1022, 1035 (1st Cir. 1988) (explaining that unless a party

can establish a reasonable factual basis to doubt a judge's

impartiality “by some kind of probative evidence,” then

the “judge must hear a case as assigned”) (emphasis in

original) (internal quotation marks omitted).

These principles are dispositive here. LCCR is not a

party to this case. Even if it were, Judge Gertner’s

relationship with that organization terminated upon her

ascension to the bench on February 14, 1994. There is no

allegation that she has maintained continuing ties with

LCCR. Given the eight-year interval between the

severing of the judge's connection with LCCR and the

recusal motion, no reasonable attack on her impartiality

can be mounted on that basis. Thus, recusal was not

obligatory. See, e.g., Sierra Club v. Simkins Indus., Inc.,

847 F.2d 1109, 1117 (4th Cir. 1988) (holding that an

association with a nonprofit organization that ended a

decade before adversary proceedings commenced does not

form a reasonable basis for questioning the trial judge's

impartiality even though the nonprofit was a party to the

litigation); cf. Veneklase v. City of Fargo, 236 F.3d 899,

App.89

901 (8th Cir. 2000) (finding recusal unnecessary where

judge's former law firm had represented parties

tangentially involved in civil rights suit); United States v.

Story, 716 F.2d 1088, 1090 (6th Cir. 1983) (finding

recusal unnecessary where judge had represented victim

in civil matter thirteen years earlier).

Contrary to the plaintiffs’ importunings, our decision

in Boston's Children First does not require a different

result. There, we ordered recusal not because of the

judge's past association with civil rights organizations

but, rather, because the judge had made

contemporaneous extrajudicial statements about a

pending case. Boston's Children First, 244 F.3d at 169-70.

Here, the judge's passing comment that LCCR was

eligible to apply for amicus status is a far cry from the

statements that engendered our ruling in Boston's

Children First. That comment constitutes a wholly

insufficient basis on which to order recusal.

To be sure, the plaintiffs lodge a claim of bias. On

close examination, however, this is more cry than wool.

The only indicium of bias to which they allude revolves

around their perception of the judge's abstract policy

preferences. That subjective apprehension, standing

alone, is too weak a reed to warrant appellate

interference with the district judge's recusal decision. Our

judicial system would be paralyzed if judges were subject

to disqualification on so ephemeral a basis. See Camacho,

868 F.2d at 491. We therefore uphold the order denying

the motion for recusal.

V. CONCLUSION

We need go no further. For the reasons elucidated

above, we hold that the achievement of racial diversity

can be a constitutionally permissible interest in the

context of K-12 education. Nevertheless, the use of racial

distinctions always should be a last resort. Here, the

School Committee has failed to show that a

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