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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0218%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 1061

## Text

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 at 30 (1st Cir. Oct. 20, 2004), withdrawn by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 int

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0218%3A2. Public record. Not legal advice.