Anderson ex rel. Dowd v. City of Boston

375 F.3d 71

Nicholas ANDERSON, a minor, by his parent and next friend, Ellen DOWD; Kayleigh Barry-Meltzer, a minor, by her parents and next friends, Cathleen Barry and George Meltzer; John P. Feeney, Jr., a minor, by his parents and next friends, Ena and John Feeney; Michael Gattozzi, a minor, by his parents and next friends, Joseph and Patrice Gattozzi; Jamie Lee Higgins, a minor, by her parents and next friends, Kerry Ann and Joseph Higgins; John K. O'Toole, Jr., a minor, by his parents and next friends, John and Rose O'Toole; Kathleen McCoy, a minor, by her parents and next friends, Carol and John McCoy; Andrew Sharaffa, a minor, by his parents and next friends, David and Mae Sharaffa; Sean J. and Thomas E. Stoddard, minors, by their parents and next friends, Mary K. and Stephen Stoddard, Plaintiffs, Appellants Boston'S Children First, Plaintiff, v. CITY OF BOSTON; Thomas Menino, Mayor of the City of Boston; Thomas W. Payzant, Superintendent of the Boston Public Schools; Boston School Committee; Elizabeth Reilinger, Boston School Committee Chairperson; Alfreda J. Harris, School Committee Vice-Chairperson; Felix D. Arroyo, School Committee Member; Robert P. Gittens, School Committee Member; Susan Naimark, School Committee Member; Marchelle Raynor, School Committee Member; William Spring, School Committee Member, Defendants, Appellees.

No. 03-2021.

United States Court of Appeals, First Circuit.

Heard January 6, 2004.

Decided July 12, 2004.

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Michael Williams, with whom Robert J. Roughsedge, Chester Darling, and Citizens for the Preservation of Constitutional Rights, Inc., were on brief, for appellants.

Frances S. Cohen, with whom Erica L. Hovani, Matthew M. Lyons, and Dechert LLP, were on brief, for appellees.

Sharon L. Brown on brief for amicus curiae Pacific Legal Foundation.

Before BOUDIN, Chief Judge, and LYNCH and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

At the outset of its penultimate ruling in this protracted litigation, the district court observed: "This case may possibly be the concluding chapter in thirty years of litigation over the effort to desegregate the Boston Public Schools." Boston's Children First v. Boston School Comm., 260 F.Supp.2d 318, 319 (D.Mass.2003). That cautious prediction may be accurate.

Boston's Children First, a non-profit advocacy group, and parents of several white students sued the City of Boston, Boston Mayor Thomas Menino, Boston Public Schools (BPS) Superintendent Thomas Payzant, and members of the Boston School Committee (collectively, the defendants), claiming that BPS's now-defunct race-conscious assignment system violated their children's rights under the Fourteenth Amendment's Equal Protection Clause, 42 U.S.C. §§ 1981 and 1983, 42 U.S.C. § 2000d (commonly known as Title VI), and Article 111 of the Amendments to the Massachusetts Declaration of Rights. Prompted at least in part by the lawsuit against them, the Boston School Committee, at the recommendation of Superintendent Payzant, voted to remove the racial guidelines from the assignment system on July 14, 1999. After BPS adopted a facially race-neutral assignment plan in November 1999, the plaintiffs continued to press their suit, seeking declaratory relief, several forms of injunctive relief, compensatory damages, and nominal damages. Over the course of four rulings, the district court denied all of plaintiffs' claims save one: an award of nominal damages of $1.00 each to the two students who would have been assigned to the school of their choice under the old system but for their race. Plaintiffs appeal. Finding no error, we affirm the district court rulings in all respects.

I.

With four published district court decisions setting out the factual background of this case in considerable detail, we limit ourselves here to a recitation of the facts most pertinent to the issues before us on appeal. For greater detail, we refer readers to Boston's Children First v. City of Boston, 62 F.Supp.2d 247 (D.Mass.1999) ("BCF I"); Boston's Children First v. City of Boston, 98 F.Supp.2d 111 (D.Mass. 2000) ("BCF II"); Boston's Children First v. Boston School Comm., 183 F.Supp.2d 382 (D.Mass.2002) ("BCF III"); and Boston's Children First v. Boston School Comm., 260 F.Supp.2d 318 (D.Mass.2003) ("BCF IV"). Additionally, the majority and dissenting opinions in Wessmann v. Gittens, 160 F.3d 790 (1st Cir.1998), provide a useful historical overview of BPS's desegregation-related litigation in federal court.

In quick review, thirty years ago the Massachusetts federal district court held that the City of Boston promoted and maintained a racially segregated dual public school system in violation of constitutionally guaranteed rights. Morgan v. Hennigan, 379 F.Supp. 410, 482 (D.Mass. 1974). After twelve years of supervision by the district court, the court returned control over student assignments to BPS, declaring that BPS's student assignment system had achieved unitariness, Morgan v. Nucci, 831 F.2d 313, 318 (1st Cir.1987), "i.e. a fully integrated, non-segregated system." Id. at 316. At that point, BPS adopted an assignment system known as the Controlled Choice Student Assignment Plan, (the "Old Plan"), which went into effect for the 1989-90 academic year.

A. The Old Plan

BPS assigns students to schools at the transition grades during students' public school careers, each of which corresponds to a student's advancement to a new type of school: kindergarten 1 (programs for 4-year-olds), kindergarten 2 (programs for five-year-olds), first grade (elementary school), sixth grade (middle school), and ninth grade (high school). While high school assignments are made on a citywide basis, Boston is divided into three Attendance Zones — the North, East, and West Zones — for purposes of the elementary and middle school assignments at issue in this case. These zones were drawn by the district court as part of its desegregation orders, and the lines largely hew to major transportation routes to keep traditional neighborhoods intact as much as possible.¹ Students are eligible to attend any of the schools located in the Attendance Zone in which the students reside.

As part of the assignment process, students rank their preferences for the schools within their Attendance Zone, as well as for the few schools that accept students from any part of the city without regard to Attendance Zone lines.² Students whose siblings attend a school receive a preference for that school during the assignment process. Similarly, students who live within the walk zone³ of a given school receive a preference for seats at that school. Finally, every student receives a randomly assigned lottery number, with the lower numbers being considered more advantageous.

Under the Old Plan, BPS assigned students to schools using the following criteria: the student's rank preference for the school; whether a sibling already attended the school; whether the student lived within the school's walk zone; whether the student had already matriculated at the school on a temporary basis;⁴ and, as a tie-breaker, the student's random number, with a lower random number winning out over higher numbers. Assignments under the Old Plan operated with one additional constraint — the "ideal racial percentage" for each grade's population, as calculated by the racial and ethnic composition of the student population in that grade within each of the three Attendance Zones. If admitting a student would cause a deviation of more than 15% from the "ideal racial percentage," that student would not be admitted. The Old Plan operated largely without change for ten years, from 1989 through 1999.

B. Boston's Exam School Assignment System and Related "Reverse Discrimination" Lawsuits

In June 1999, the first four of what ultimately became ten individual plaintiffs, along with Boston's Children First,⁵ filed this lawsuit, prompted in part by the successful "reverse discrimination" lawsuits brought by the families of two white children who were denied admission to their choice of one of BPS's three competitive exam schools. See McLaughlin v. Boston School Comm., 938 F.Supp. 1001 (D.Mass. 1996); Wessmann v. Gittens, 160 F.3d 790 (1st Cir.1998). These exam schools admit students using a different system than that used by the other schools in the BPS system. At the time Julia McLaughlin applied to Boston Latin School, admissions were based on a combination of an applicant's grade point average and standardized test scores (collectively called the "z-score"), subject to a 35% minority set-aside previously imposed by the federal desegregation order and still in effect at that time. After McLaughlin filed suit and obtained a preliminary injunction admitting her to Boston Latin, BPS voluntarily discontinued use of the 35% quota, admitted students similarly situated to McLaughlin, and commissioned a consulting company to devise a new admissions policy.

The replacement exam school admission policy eventually adopted by BPS defined the "qualified applicant pool" for each exam school as the 50% of students with z-scores above the mean in any given year. Then, BPS filled half of each exam school's seats based on the students' expressed preferences for each school and their rank order z-scores. The remainder of the seats were also allocated by students' school preferences and rank order z-scores, subject to mirroring the racial composition of the remaining qualified applicant pool not yet admitted. Sarah Wessmann was denied admission to Boston Latin under the new exam school admission system, sued, and ultimately prevailed on appeal. We found the admission system unconstitutional because its use of racial classifications was not narrowly tailored to meet a compelling state interest. See Wessmann, 160 F.3d at 807-09.

C. The New Plan

Based in no small part on Superintendent Payzant's frank assessment to the School Committee that, in light of Wessmann and other reverse...