Comfort v. Lynn School Committee, No. 03-2415 (Fed. 1st Cir. 10/20/2004)

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SAMANTHA J. COMFORT, ETC., ET AL., Plaintiffs, Appellants, v. LYNN SCHOOL COMMITTEE ET AL., Defendants, Appellees.

No. 03-2415.

United States Court of Appeals, First Circuit.

October 20, 2004.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS; [Hon. Nancy Gertner, U.S. District Judge].

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

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 Miller, Attorney General (Iowa), Eliot Spitzer, Attorney General, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, Natalie R. Williams, Deputy Bureau Chief, and Hilary B. Klein, Assistant Attorney General (New York), G. Steven Rowe, Attorney General (Maine), and Mark L. Shurtleff, Attorney General (Utah), on brief for States of Iowa, New York, Maine, and Utah, amici curiae.

Thomas J. Henderson, Derek Black, Harris J. Yale, Bernadette McCann Ezring, Samantha G. Fisherman, Virginia Johnson, and Weil, Gotshal & Manges LLP on 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.

Before Selya, Dyk^* and Howard, Circuit Judges.

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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 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 claim mounted by the plaintiffs pursuant to 42 U.S.C. § 1983 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 the ruling 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 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 out 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 III); Comfort v. Lynn Sch. Comm., 131 F. Supp. 2d 253 (D. Mass. 2001) (Comfort II); Comfort v. Lynn Sch. 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 brief 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 School 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. 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 non-white 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-whites populated 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,¹ 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 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...