Plaintiffs filed this complaint for declaratory, injunctive, and monetary
relief alleging that the Lynn School Committee and the Commonwealth of
Massachusetts (the Commonwealth) violated the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution and Title VI
of the Civil Rights Act of 1964, as well as various state laws, in the
operation of student transfer policies. Specifically, Plaintiffs argue
that Chapter 71, § 37D of the General Laws of Massachusetts employs
an impermissible racial classification and that, in taking cognizance of
the race of students who request out-of-zone transfers, the Lynn School
Committee has violated the civil rights of the student-plaintiffs. Plaintiffs
have moved for class certification.
Plaintiffs allege that Chapter 71, section 37D of the General Laws of
Massachusetts is unconstitutional. Section 37D is one section of a larger
statute referred to as "the Racial Imbalance Act," which was originally
enacted in 1965. The Racial Imbalance Act was promulgated in response to
a State Board of Education Report which concluded, inter alia, that racial isolation "is detrimental to sound education" in that it "does moral damage by encouraging prejudice within children regardless of color" and "presents an inaccurate picture of life to both white and Negro children and prepares them inadequately for a multi-racial community, nation and world." See School Committee of Springfield v. Board of Education, 319 N.E.2d 427, 429 n.5 (Mass. 1974), cert. denied, 421 U.S. 947
(1975). The Racial Imbalance Act (the Act) was adopted "to encourage all school committees to adopt as educational objectives the promotion of racial balance and the correction of existing racial imbalance in the public schools." Mass. Gen. Laws. Ann. ch. 71, § 37C. The Act defines "racial imbalance"
as "the condition of a public school in which the student body is more than 50% non-white." Id. at § 37D. The Act defines "racial isolation" as the condition of a public school in which the student body
is 70% or more white. Id. The Act defines "racial balance" as the condition of a public school in which between 30% and 50% of the students are non-white. While the Act uses terms such as "racial balance" and "racial isolation," the Act does not mandate that school districts achieve any particular racial balance in their schools.
Section 37D establishes definitions which are referenced throughout the Act; according to the defendants, however, section 37D does not control the terms of the Lynn Public School policies which are challenged by plaintiffs.(1) There is another section of the Act wherein the Commonwealth encourages the adoption of voluntary desegregation plans in local school districts which operate schools where the student body is more than 50% minority, or where the entire school district's student body is more than 50% minority. See Mass. Gen L. c. 15, §1(I); Mass. Regs. Code tit. 603, §
17.02. The Commonwealth provides certain technical and financial assistance to school districts which adopt voluntary desegregation plans. Id. Since 1988, Lynn Public Schools has operated under a Voluntary Plan for School Improvement and the Elimination of Racial Isolation (the Lynn Plan) which was developed pursuant to chapter 15, section 1(I) of the Act.(2)
The Lynn Public Schools educates approximately 15,000 students in Kindergarten
through 12th grade. It is a racially diverse student body: according to
statistics provided by the Massachusetts Department of Education, the student
body of Lynn Public Schools is 15.2% African American; 25.3% Hispanic;
13.8% Asian; 45.3% white; and .3% Native American. See www.doe.mass.edu/directory/dir163.htm.
Lynn Public Schools operates eighteen (18) elementary schools; minority
student enrollment in the various schools ranges approximately from 15%
to 80%. See id. Under the Lynn Plan, elementary schools are
considered racially balanced if the minority enrollment is within fifteen
(15) percent, plus or minus, of the district-wide minority enrollment.
Middle and high schools are considered racially balanced if the minority
enrollment is within ten (10) percent, plus or minus, of the district-wide
minority enrollment. While Lynn's Plan defines these terms, in operation,
the Plan appears to permit any student to transfer to any school in which
students of the requesting student's minority or non-minority status are
less prevalent; i.e., minority students are allowed to transfer
to any school with a lower percentage of minority students than their current
school. See Birchenough Affidavit at paras. 20, 66, 67.
Students attending Lynn Public Schools are assigned to local school
zones based on residence. Each zone defines a contiguous geographic section
of Lynn within which the school is located. Under the Lynn Plan, each student
has the right to attend his/her zone school (except in limited circumstances
not at issue in the instant case, e.g., some students are assigned
out of zone in order to consolidate students who need special services).
Students are allowed to transfer to schools where the transfer would reduce
racial isolation or improve racial balance in either the sending or receiving
school (even if the transfer does not make the school racially balanced
as that term is defined under Lynn's Plan). In addition, other transfer
requests are considered on an individual basis and granted on the basis
of hardship (e.g., health concerns, daycare considerations, sibling unification).
For the 1999-2000 school year, approximately 5,135 Lynn Public School elementary
and middle school students transferred from their home zone schools to
other schools. Of those 5,135 transfers, 3,858 improved the racial balance
or reduced the racial isolation of the sending or receiving school. According
to the Lynn Public Schools, for the 1999-2000 school year, approximately
59 transfer denials were appealed; about half of those appealed were granted
and half continued to be denied (26 of 59 were granted while 33 were denied).
Plaintiffs have filed applications for preliminary injunctions against
both the Commonwealth and the Lynn School Committee. See Application
for a Preliminary Injunction Against the Lynn Defendants, December 9, 1999
(Plaintiffs' December 9, 1999 Application); Application for a Preliminary
Injunction Against the Commonwealth of Massachusetts, December 23,
1999 (Plaintiffs' December 23, 1999 Application). The applications seek
broad preliminary injunctive relief which goes well beyond the implementation
of the transfer statute that they claim is unconstitutional. The plaintiffs
request the court to preliminarily enjoin and order the Lynn defendants,
inter alia, to eliminate the use of race and any reference to race
in any phase of students assignments. In addition, plaintiffs request that
all students be permitted to transfer to schools nearer their homes. Plaintiffs'
December 9, 1999 Application at 1-2. The preliminary injunction sought
against the Commonwealth is equally broad, requesting the court require
the Commonwealth, inter alia, to discontinue the consideration of
racial balance in the provision of any state education aid, but to continue
all funding currently provided by the Act. Plaintiffs' December 23, 1999
Application at 1-2. The plaintiffs are not seeking any preliminary relief
now regarding their current school assignments.
In their memoranda in support of the preliminary injunction applications,
plaintiffs argue that Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998), and Freeman v. Pitts, 503 U.S. 467 (1992), entitle them to preliminary injunctive relief. See Memorandum in Support of Plaintiffs' Application for a Preliminary Injunction Against the Lynn Defendants, December 9, 1999 (Plaintiffs' December 9, 1999 Memorandum); Memorandum in Support of Plaintiffs' Application for a Preliminary Injunction Against the Commonwealth of Massachusetts, December 23, 1999 (Plaintiffs' December 23, 1999 Memorandum). Plaintiffs cite to Wessmann and Freeman, arguing that: First, where there is no allegation of intentional, government-sponsored racial discrimination in school demographic composition, the Constitution does not "impose a duty on school officials to ensure the maintenance of certain percentages of any racial or ethnic group in any particular school." Plaintiffs' December 9, 1999 Memorandum at 5 (quoting Wessmann, 160 F.3d at 790 (emphasis added). Second, plaintiffs cite to Wessmann for the proposition that racial balancing was not "a legitimate or necessary means of advancing the lofty principles recited in the Policy [at issue in Wessmann]." Id. (quoting Wessmann, 160 F.3d at 799 (emphasis added). Plaintiffs rely on the same precedent to establish that the Commonwealth's statute is violative of the Equal Protection Clause, adding a citation to City of Richmond v. Croson, 488 U.S. 469 (1989). See Plaintiffs' December 23, 1999 Memorandum at 5 (characterizing
the holding in Croson as "rejecting contracting quota which was narrowly tailored to only achieve racial balancing"). Plaintiffs assert that these principles establish their strong likelihood of success on the merits and, ergo, their right to preliminary injunctive relief.
In their motions, plaintiffs seek far-reaching preliminary relief, which
would change significantly the status quo, including the discontinuation
of Lynn's voluntary integration program and the invalidation of a statute
that could affect other Massachusetts school districts' voluntary integration
programs. They also seek reassignment of Lynn students for the 2000-2001
school year. All this is sought without a trial on the merits.
As discussed below, the Court should not grant a preliminary injunction
because the plaintiffs have not demonstrated that they are entitled to
such relief. The plaintiffs have not demonstrated that they are likely
to succeed on the merits. The cases upon which they rely are distinguishable,
both on the facts and the law. Merely because the statute contains the
term racial balance does not render it unconstitutional. Indeed, the challenged
statute and program serve, inter alia, the compelling governmental
interests in reducing, eliminating, and preventing racial isolation and
in providing the educational benefits which flow from integrated schools.
This interest is different than the interest in diversity which was discussed
in Bakke and applied to the challenged program in Wessmann.
Moreover, the limited use of race in furtherance of a compelling educational
interest is permissible, provided that the use of race is narrowly tailored;
only through the presentation of testimony and evidence can the narrowly-tailored
inquiry be undertaken. In addition, plaintiffs have not demonstrated irreparable
harm, and the relief they seek prior to trial would harm the defendants
as well other students who have the benefit of the voluntary integration
program's laudable objectives.
In a case with the complex and socially-significant issues that are
presented here, the Court should have the benefit of a full-record, after
a trial, before it considers what relief, if any, is appropriate. Preliminary
injunctive relief was sought and denied in Wessmann v. Gittens,
996 F. Supp. 120, 121 (D. Mass. 1998); and in Boston's Children First
v. City of Boston, 62 F. Supp. 2d 247, 262 (D. Mass. 1999).
We also note that in Capacchione v. Charlotte-Mecklenburg
Bd. of Educ., (4th Cir. December 30, 1999) (CA-99-2389) (attached),
the Court of Appeals stayed the implementation of a district court order,
entered after a full trial, which required the school district to reassign students without consideration of race for the 2000-2001 school year. In staying implementation, the court observed that "'in the long-run there would be less inconvenience and hardship to all parties if appellate review is had prior to' compliance with the injunction." Id. (quoting Metropolitan County Bd. Of Educ. v. Kelley, 453 U.S. 1306, 1307 (1981) (Stevens, J.)). The same considerations are applicable here a fortiori, where
there not only has not been any appellate review, but there has not even been a trial on the merits.
I. Legal Standard
In order to grant a preliminary injunction, the court must find "(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on defendant; (3) that plaintiff has exhibited a likelihood
of success on the merits; and (4) that the public interest will not be adversely affected by the granting of an injunction." Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981) The likelihood of success on the merits is considered "critical in determining the propriety of injunctive relief." Lancor v. Lebanon Housing Auth., 760 F.2d 361, 362 (1st Cir. 1985).
II. The Plaintiffs Have Not Demonstrated a Likelihood of Success on the Merits
Because the statute at issue classifies students on the basis of race, it must be subjected to strict scrutiny.(3) See Wessmann v. Gittens, 160 F.3d 790, 794 (1st Cir. 1998). Therefore, the statute "must be both justified by a compelling governmental interest and narrowly tailored to serve that interest in order to stand."
Id.
A. The Statute Serves a Compelling Governmental Interest
The compelling educational interest in reducing, eliminating, and preventing racial isolation and preparing students to live in a pluralistic society through integrated education is supported by prior cases, congressional findings, and social science research demonstrating the benefits of integrated
schools.
1. Supreme Court Decisions
Since 1954, when legal segregation was first held to violate the Equal Protection Clause, the Supreme Court has repeatedly recognized the value of racial and ethnic integration, particularly in the elementary and secondary school context. See Brown v. Board of Educ., 347 U.S. 483, 493 (1954); Ambach v. Norwick, 441 U.S. 68, 77 (1979) (describing public schools as "an assimilative force by which diverse and conflicting elements in our society are brought together on a broad but common ground")(internal quotation marks omitted); Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 472 (1982) ("[W]hite as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom.") (internal citation and quotation marks omitted); see also Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 94-95 (1977) ("This court has expressly recognized that substantial benefits flow to both whites and blacks from interracial association and that Congress has made a strong national commitment to promote integrated housing.") (citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972)). Public elementary and secondary schools have been considered among the most important social institutions for preparing children for participation in the larger society:
Today, education is perhaps the most important function of state and
local governments. Compulsory school attendance laws and the great expenditures
for education both demonstrate our recognition of the importance of education
to our democratic society. It is required in the performance of our most
basic public responsibilities, even service in the armed forces. It is
the very foundation of good citizenship. Today it is a principal instrument
in awakening the child to cultural values, in preparing him for later professional
training, and in helping him to adjust normally to his environment.
Brown v. Board of Educ., 347 U.S. at 493. It is in this role
as social assimilator that public schools have been charged with preparing
students to be citizens in a pluralistic society. When society at large
"is largely shaped by members of different racial and cultural groups,
minority children can achieve their full measure of success only if they
learn to function in -- and are fully accepted by -- the larger community.
Attending an ethnically diverse school may help accomplish this goal by
preparing minority children for citizenship in our pluralistic society,
while, we may hope, teaching members of the racial majority to live in
harmony and mutual respect with children of minority heritage." Seattle
School Dist. No. 1, 458 U.S. at 472-73 (internal citations and quotations
marks omitted).
2. Other Federal Court Decisions
Other federal courts also have recognized the compelling educational
interest in preparing students for participation in a pluralistic society
through integrated educational settings. In reviewing a plan adopted by
New York City, the Second Circuit held that "the Board's goal of ensuring
the continuation of relatively integrated schools for the maximum number
of students, even at the cost of limiting freedom of choice for some
minority students, survived strict scrutiny as a matter of law." The
Parent Assoc. of Andrew Jackson High Sch. v. Ambach, 738 F.2d 574,
579 (2d Cir. 1984) (upholding plan in absence of remedial purpose) (emphasis
added); but see Brewer v. West Irondequoit Central Sch. Dist.,
1999 WL 26909 (W.D.N.Y. Jan. 14, 1999) (rejecting reduction in racial isolation
as a compelling governmental interest), appeal pending, No. 99-7186
(2d Cir.);
see also Jacobson v. Cincinnati Bd. of Educ.,
961 F.2d 100, 102 (6th Cir. 1992) (affirming constitutional authority of
school officials to implement an integration policy "particularly when
such a policy is implemented in order to prepare students for life in a
pluralistic society") (applying intermediate scrutiny). In an eloquent
and oft-quoted articulation of the compelling educational interest served
by integrated schools, a three-judge panel stated:
Although there may be no constitutional duty to undo de facto segregation,
it is by now well recognized by educational authorities that the elimination
of racial isolation in the schools promotes the attainment of equal educational
opportunity and is beneficial to all students, both black and white.
The elimination of racial segregation in the schools . . . can effect
positive changes in interracial understanding for all children. . . . If
children of different races and economic and social groups have no opportunity
to know each other and to live together in school, they cannot be expected
to gain the understanding and mutual respect necessary for cohesion in
society. The stability of our social order depends, in large measure, on
the understanding and respect which is derived from a common educational
experience among diverse racial, social, and economic groups -- integrated
education.
Lee v. Nyquist, 318 F. Supp. 710, 714 (W.D.N.Y. 1970), aff'd,
402 U.S. 935 (1971); see Seattle Sch. Dist. No. 1, 458 U.S.
at 469 (citing with approval to Lee v. Nyquist); see also
Martin v. School Dist. of Philadelphia, 1995 WL 564344 (E.D. Pa.
1995) (applying strict scrutiny and denying preliminary injunction sought
to enjoin school district from granting and denying transfers on the basis
of race in order to foster school integration); Willan v. Monomonee
Falls Sch. Bd., 658 F. Supp. 1416, 1422 (E.D. Wis. 1987) (applying
strict scrutiny to inter-district transfer plan and upholding plan which
"encourage[d] integration, rather than requir[ing] it"); cf. Hunter
v. Regents of the Univ. of Cal., 190 F.3d 1061, 1063 (9th Cir. 1999)
(affirming the valid use of race in furthering the compelling governmental
interest "in the operation of a research-oriented elementary school dedicated
to improving the quality of education in urban public schools").
3.The Government of the United States Has Found a Compelling Interest in Integrated Educational Environments
The Congress of the United States has endorsed the voluntary and properly-limited
use of race in elementary and secondary school assignments to reduce, eliminate,
and prevent racial isolation, finding that elimination of racial isolation
has significant benefits. In 1972, Congress passed the Emergency School
Aid Act (ESAA), 20 U.S.C. § 1601 (1972), the purpose of which was
to eliminate racial isolation in the public schools, whether de jure
or de facto. See S. Rep. No. 61, 92d Cong., 1st Sess. at
6 (1971); Board of Educ. v. Harris, 444 U.S. 130, 141 (1979). In
interpreting ESAA, the Supreme Court explained:
At the time of the ESAA's passage, it was generally believed that the
courts, when implementing the Constitution, could not reach de facto segregation.
See e.g., 117 Cong. Rec. 11519 (1971) (remarks of Sen. Mondale). Congress,
apparently, was not then in much of a mood to mandate a change in the status
quo. The midgroud solution found and adopted was the enticement approach
"to encourage the voluntary elimination, reduction, or prevention of minority
isolation," as § 702(a)(2) of [ESAA] recites. Thus, it would make
no sense to allow a grant to a school district that, although not violating
the Constitution, was maintaining a de facto segregated system.
Id. at 141-42.
After ESAA was consolidated with other federal education funding programs,(4)
Congress in 1984 enacted the Magnet Schools Assistance Program (MSAP),
Pub. L. No. 98-377, 98 Stat. 1299, to continue to provide financial assistance
to local educational agencies to eliminate de jure or de facto
racial isolation. Congress reauthorized the MSAP most recently in 1994.
See 20 U.S.C. § 7201, et seq. The legislative history
of both ESAA and the MSAP reflect Congress' conclusion that "racially integrated
education improves the quality of education for all children." H.R. Rep.
No. 576, 92d Cong., 1st Sess. at 10 (1971). The Senate concluded that "[e]ducation
in an integrated environment, in which children are exposed to diverse
backgrounds, is beneficial to both" minority and white children. S. Rep.
No. 61, 92d Cong., 1st Sess. at 7 (1971). In reauthorizing the MSAP in
1994, Congress again made specific findings that "it is in the best interest
of the Federal Government to -- "(A) continue the Federal Government's
support of . . . school districts seeking to foster meaningful interaction
among students of different racial and ethnic backgrounds, beginning at
the earliest stage of such students' education." 20 U.S.C. § 7201(5).(5)
Moreover, the United States Department of Labor has published a report
determining that the ability to work effectively in a multicultural setting
is one of the basic competencies required to be an effective member of
the United States labor force. See SCANS (Secretary of Labor's Commission
on Achieving Necessary Skills), Skills and Tasks for Jobs: A SCANS Report
for America 2000 (Washington, DC, Government Printing Office 1991).
4. There is Substantial Social Science Evidence Supporting the Compelling Interest in Integrated Educational Environments
The courts and other governmental entities which have recognized the
compelling nature of the educational interest in integrated schools have
done so not only because of integration's self-evident value as part of
the American experience, but also in recognition of the large body of educational
research and social science evidence that demonstrates its value. As the
Lee court observed in 1970, "it is by now well documented and widely
recognized by educational authorities that the elimination of racial isolation
in the schools promotes the attainment of equal educational opportunity
and is beneficial to all students, both black and white." Lee, 318
F. Supp. at 714 (collecting secondary sources on which New York policy-makers
relied); see also Ambach, 441 U.S. at 76-77 ("[P]erceptions
of the public schools as inculcating fundamental values necessary to the
maintenance of a democratic political system have been confirmed by social
scientists.").
There is solid and compelling evidence to support the educational value
of integration and the reduction, elimination, and prevention of racial
isolation in preparing students to participate in a pluralistic society.
Social scientific studies support the proposition that students who attend
school with children of other races are less racially prejudiced than students
without similar cross-racial exposure at school. In a review of the social
science research available, Professor of Sociology Maureen Hallinan, Ph.D.,
concluded that "black and white students in desegregated schools are less
racially prejudiced than those in segregated schools." Maureen Hallinan,
Diversity Effects on Student Outcomes: Social Science Evidence, 50 Ohio
State L. J. 733, 745 (1998). Another review of the evidence concluded that
"attending desegregated schools improves the attitudes of both blacks and
whites toward future interracial situations." Jomills H. Braddock II, Robert
L. Crain, and James M. McPartland, A Long-Term View of School Desegregation:
Some Recent Studies of Graduates as Adults, Phi Delta Kappan, Dec. 1984,
at 259. Integrated schooling also has been positively linked to working
in integrated workplaces and living in integrated neighborhoods. See
Jomills H. Braddock II, Marvin P. Dawkins, and William Trent, Why Desegregate?
The Effect of School Desegregation on Adult Occupational Desegregation
of African Americans, Whites and Hispanics, 31 Int'l J. of Contemp. Sociology
273 (1994); Amy Stuart Wells and Robert L. Crain, Perpetuation Theory and
the Long-Term Effects of School Desegregation, 64 Review of Educ'l Research
531 (Winter 1994). One review of the available evidence concluded:
The research evidence is impressive that students who graduate from
racially mixed schools often are better prepared for adult roles and will
encounter fairer career opportunities and less segregation in their adult
lives. . . . For example, school desegregation may be a uniquely necessary
ingredient to open up fairer career opportunities for minorities, to penetrate
barriers to black and white adult desegregation, and for black and white
students to develop skills at working in multi-racial settings.
Jomills H. Braddock II and James M. McPartland, The Social and Academic
Consequences of School Desegregation, Equity and Choice 5, 70 (Feb.
1988).
5. The Constitution Permits More Than it Requires in Furthering the Compelling Interest in Integrated Educational Environments
This strong basis in the social scientific evidence provides educators
and political leaders with the evidentiary basis to justify integrated
schools. But it is important to recognize that this is a political decision
undertaken voluntarily as an expression of public policy. The state's ability
to foster integration is not coextensive with a court's authority to order
desegregation; it is in fact much broader. "[I]n the absence of a constitutional
violation, the desirability and efficacy of school desegregation are matters
to be resolved through the political process." Seattle Sch. Dist. No.
1, 458 U.S. at 474; see also Missouri v. Jenkins, 515
U.S. 70, 111 (O'Connor, J., concurring) (recognizing that the representative
branches are better suited than courts to deal with the "myriad factors
of human existence which can cause discrimination in a multitude of ways
on racial, religious, or ethnic grounds") (quoting Swann v. Charlotte-Mecklenburg
Bd. of Ed., 402 U.S. at 22). To be sure,
Wessmann stands for
the proposition that courts cannot rubber-stamp the race-conscious plans
of school officials. See Wessmann, 160 F.3d at 796-97. But
there is a difference between what federal courts can require and what
the constitution will permit. Merely because a federal court cannot order
a particular plan, as plaintiffs apparently argue, does not mean that the
plan is forbidden:
School authorities are traditionally charged with broad power to formulate
and implement educational policy and might well conclude, for example,
that in order to prepare students to live in a pluralistic society each
school should have a prescribed ratio of Negro to White students reflecting
the proportion of the District as a whole. To do this as an educational
policy is within the broad discretionary powers of school authorities;
absent a finding of constitutional violation, however, that would not be
within the authority of a federal court.
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971);
accord North Carolina Bd. of Educ. v. Swann, 402 U.S. 43,
45 (1971) ("We observed in Swann that school authorities have wide discretion
in formulating school policy, and that as a matter of educational policy
school authorities may well conclude that some kind of racial balance in
the schools is desirable quite apart from any constitutional requirements.")
(emphasis added). Especially in the area of educational policy, where the
tradition of local control is perhaps at its zenith, courts should not
condemn all that they cannot require. As Justice Rehnquist stated in refusing
to stay an integration plan ordered by the California courts under California
law: "while I have the gravest doubts that the Supreme Court of California
was required by the United States Constitution to take the action that
has been taken in this case, I have very little doubt that it was permitted
by that Constitution to take such action." Bustop, Inc. v. Board of
Educ. of the City of Los Angeles, 439 U.S. 1380 (1978) (Rehnquist,
Circuit Justice); see also School Committee of Springfield v.
Board of Educ., 319 N.E.2d 427 (Mass. 1974), cert. denied, 421 U.S.
947 (1975).
6. The Compelling Interest In an Integrated Educational Environment
Is Distinct From the Interest In Promoting Diversity Articulated in
Bakke
It is important to note that the compelling interests in reducing, eliminating,
and preventing racial isolation and in pluralism as recognized in Swann
and Seattle are distinct from the interest in diversity that was
outlined in Bakke and discussed in Wessmann. See Regents
of Univ. of Cal. v. Bakke, 438 U.S. 265, 289 (1978) (opinion of Powell,
J.); Wessmann, 160 F.3d at 797-98.
Promoting these compelling interests through integrated schools seeks
to introduce students to our multiracial and multicultural society through
exposure to and experience with children of other races and ethnicities.
It is not based on racial stereotyping, or the belief that students
of one racial or ethnic background will bring any particular outlook to
the classroom. It is based on the belief that exposing children at an early
age to children of other races fosters social understanding and tolerance.
An integrated educational setting may disabuse students of pre-existing
notions about members of other racial or ethnic groups, including the assumption
that all members of a particular group think or act in a particular way.
As Congress heard when it was considering the ESAA:
Integration is an educational matter. It involves the changing of attitudes,
behavior, and understanding of people of all kinds of age levels. For school
children, it means an environment conducive to the positive interaction
of children from diverse backgrounds in which they learn that differences
among peoples are not as great as similarities and that difference is a
source of richness and value rather than a thing to be feared and denied.
An integrated environment is one that teaches the child to judge individuals
for what they are rather than what group they belong to.
Needs of Elementary and Secondary Education for the Seventies: Hearings
on H.R. 2266 and H.R. 4847 before the Subcomm. on Educ. of the House Comm.
on Educ. and Labor, 92d Cong. 159, 200 (1971) (Testimony of Dr. Ewald Nyquist,
New York State Commissioner of Education). It is through actual experience
with children of other races and with different ethnic backgrounds that
students best learn about the differences and similarities among people.
This interest in the educational benefits of reducing, eliminating,
and preventing racial isolation is different than the interest in diversity
as that term was used in Bakke. Bakke-type diversity, as
articulated by Justice Powell, is concerned with the free exchange of many
different ideas and viewpoints. Diversity of backgrounds, talents and interests
was and is recognized as an asset to institutions of higher learning. An
interest in Bakke-type diversity, however, applies more directly
when individuals are being selected for the unique contributions they can
offer to a particular academic setting. The First Circuit applied the Bakke
framework to the selective admissions plan at Boston's "renowned 'examination
schools,'" Wessmann, 160 F.3d at 791, but the Bakke framework
is less helpful in articulating the educational importance of preparing
students to live in a pluralistic society through integrated public schools.(6)
Plaintiffs seek to condemn the statute and Lynn's program simply through
applying the label of racial balancing. But one of the teachings of Wessmann
is that courts do not scrutinize government programs on the basis of what
the programs are called, but rather on the basis of how they operate. See
Wessmann, 160 F.3d at 796 (quoting Towne v. Eisner, 245 U.S.
418, 425 (1918) (Holmes, J.)). Merely pointing out that the challenged
program uses the term "racial balance" does not affect the requisite constitutional
analysis; "racial balance," in and of itself, is not constitutional or
unconstitutional. The interest in reducing racial isolation and providing
the educational benefits of integration are different than the diversity
interest discussed in Bakke and considered in
Wessmann and
should be reviewed on their own merits.
7. The Precedent Cited By Plaintiffs Does Not Support the Legal Proposition
Advanced By Plaintiffs
The plaintiffs over-simplify the precedent in their application for
a preliminary injunction when they state that Wessmann and Freeman
assure their success on the merits. In particular,
Freeman is concerned
with the equitable power of courts to order desegregation, not with
the authority of local governments to embrace integrated education. See
Freeman, 503 U.S. 467 (1992). Freeman instructed the lower
federal courts to focus on returning school districts under desegregation
orders to local control; Freeman had no occasion to consider the
kind of voluntary state action which plaintiffs want this court to enjoin.
One of the central holdings of Freeman is that "local autonomy of
school districts is a vital national tradition." Id. at 490 (quoting
Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410 (1977)). Wessmann,
too, while certainly bearing on the issues before the court, does not purport
to resolve the issues for which it is cited by plaintiffs. Wessmann
involved a selective admissions process to a "renowned examination school."
SeeWessmann, 160 F.3d at 791-93. Moreover, Wessmann itself
was far more narrow than plaintiffs' characterization, concluding "only
that the [Boston] School Committee's Policy does not meet the Bakke standard
and, accordingly, that the concept of 'diversity' implemented by the BLS
does not justify a race-based classification." Wessmann, 160 F.3d
at 800. The Wessmann court did not reject racial balancing, or diversity,
as per se unconstitutional but rather found that the evidence presented
at trial was insufficient to demonstrate a compelling interest in basing
admissions on the racial composition of the applicant pool in that case.
As this court noted in Boston's Children First, it is significant
whether the plan at issue "involves an examination school (or a college
or a law school) for which there are significant qualifications, or an
elementary school, for which there are not." Boston's Children First
v. City of Boston, 62 F. Supp. 2d 247, 259 (D. Mass. 1999) (denying
preliminary injunction). The plaintiffs' simplistic invocation of Freeman
and Wessmann belie the complexity of the law, a complexity that
militates against the grant of a preliminary injunction.
Croson is even less applicable to the present case. See
City of Richmond v. J.A. Croson, 488 U.S. 469 (1989). Croson,
which invalidated a 30 percent "set-aside" provision in Richmond's contracting
policies, did not involve the educational context or a program designed
to further a government interest in pluralism. See id. at
477-78. Indeed, as Justice Stevens pointed out, it is difficult to think
of any valid purpose, other than a remedial one, for considering race in
the public contracting context, which involves very different interests
from those implicated in the educational context. See Id.
at 512-13 (Stevens, J., concurring).
A. To Determine Whether the Statute is Narrowly Tailored Would Require
the Development of Evidence on the Record
The Court would need to conduct a careful evaluation to assess whether
Lynn's Plan is narrowly tailored to the compelling governmental interests
that it is intended to serve. In general, the factors that bear on the
narrow tailoring analysis include the necessity for the consideration of
race and whether the efficacy of race neutral alternatives has been considered;
the flexibility and duration of the use of race; and the impact on the
rights of third parties. See United States v. Paradise, 480
U.S. 149, 171 (1987) (plurality opinion). The development of a factual
record and the presentation of evidence are necessary to a consideration
of the relevant factors and an ultimate determination as to whether the
Plan is narrowly tailored.
We note, however, that Lynn's Plan appears to have elements of narrow
tailoring. No student is mandatorily assigned to a school on the basis
of race. To the contrary, every student has the right to attend his/her
neighborhood school. The limited ability to transfer out of a neighborhood
school is less burdensome than the mandatory reassignment to a remote location
for the purpose of racial balance. Cf. Wygant v. Jackson Bd.
of Educ., 476 U.S. 267, 282-83 (1986)("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.") (plurality opinion); see also
Bakke, 438 U.S. at 300 n. 39 (Powell, J., concurring) (distinguishing
the denial of admission to medical school from the busing of children to
comparable schools for desegregation). In addition, there is an appeals
process and some exemptions to the transfer policy are accommodated. In
order to conduct the detailed inquiry required by the narrow tailoring
analysis, the court would need to hear from the officials who administer
the plan.
III. The Plaintiffs Cannot Demonstrate Irreparable Harm if the Injunction
is Not Granted
The plaintiffs point to two sources of potential harm to themselves
if the injunction is not granted. First, the plaintiffs claim that being
classified on the basis of race in and of itself constitutes a harm. This
argument is dependent on the plaintiffs' likelihood of success on the merits.
If the plan satisfies strict scrutiny, then as a legal matter there is
no harm caused by the classification. The second category of harm identified
by the plaintiffs undermines their own argument: Plaintiffs claim that
"[i]f this Court does not intervene before [next school year's] assignments
are made, the school children of Lynn face severe disruption in their education
after the merits of this case have been heard at trial and a remedial order
is issued." Plaintiffs' December 23, 1999 Memorandum at 8. Implicit in
the plaintiffs' argument is that assignment of students should be undertaken
as few times as possible in order to avoid disrupting students' education.
As a consequence, the court should be cautious in preliminarily enjoining
a student assignment plan which may be vindicated at trial and reinstated
by local school officials, thus compounding the disruption caused by the
lawsuit.
It is significant that the plaintiffs do not even attempt to articulate
an educational harm suffered under the current plan. Nor is it likely that
they could. See Benkeser v. DeKalb County Bd. of Educ., No.
1:97-CV-2369-WBH (N.D. Ga. Aug. 22, 1997) (denying preliminary injunction
where plaintiffs could gain admission to another, comparable school); Martin
v. School Dist. of Phila., No. 95-5650, 1995 WL 564344, at *3 (E.D.
Pa Sept. 21, 1995) (denying preliminary injunctive relief where burdens
on students who were denied transfers on the basis of race were found to
be "relatively light" where no student was involuntarily transferred or
denied an adequate education). Plaintiffs do not seek the immediate reassignment
or transfer of even one student. In a situation where each named plaintiff
is ostensibly attending the school of his/her choice, preliminary injunctive
relief would be inappropriate.
IV. Harm to the Defendants
The defendants are charged with representing the interests of all of
the students in Lynn Public Schools. In balancing the harm to defendants
in granting preliminary injunctive relief, the court must be cognizant
of the 3,858 Lynn Public School students who are currently enrolled in
schools other than those to which they were zoned pursuant to the provisions
of Lynn's Plan. If the transfer program is enjoined, these students may
lose the opportunity to attend the only school they have ever known. Moreover,
the benefit bestowed by these transfers inures not only to the students
who transfer, but also to the students at the sending and receiving schools
who attend more integrated schools. These benefits would be lost if the
transfer program were held unconstitutional.
V. The Public Interest
The public has an interest in the orderly and thoughtful adjudication
of the complex legal issues involved in a case such as this. See
Kennedy v. Silas Mason Co., 334 U.S. 249, 256-57 (1948) (observing
that "summary procedures, however salutary where issues are clear-cut and
simple, present a treacherous record for deciding issues of far-flung import"
and vacating the judgment because it lacked "the thoroughness that should
precede judgment of this importance"). Preliminary relief will upset the
status quo while the ultimate outcome remains far from certain.
VI. Conclusion
For the foregoing reasons, the plaintiffs' applications for a preliminary
injunction should be denied.
Respectfully Submitted,
DONALD K. STERN
United States Attorney
1 Courthouse Way
Suite 9200
Boston, MA 02210
(617) 223-9400
BILL LANN LEE
Acting Assistant Attorney General
JEREMIAH GLASSMAN
ROSS WIENER
Attorneys
U.S. Department of Justice
Civil Rights Division
Educational Opportunities Section
P.O. Box 65958
Washington, DC 20035-5958
(202) 305-1582
Fax: (202) 514-8337
ATTORNEYS FOR UNITED STATES
1. Plaintiffs have apparently misunderstood which
provisions of the Commonwealth's Act are implicated in this case and have
failed to adequately describe the operation of Lynn's Plan. These shortcomings
deny the court an adequate record upon which to base preliminary injunctive
relief.
2. From the plaintiffs' filings, it is unclear how
Lynn's Plan operates to regulate student transfers within the Lynn Public
Schools. Therefore, to the extent the operation of Lynn's Plan is described,
the information relied upon for this description is taken from the Commonwealth
and Lynn's Joint Opposition to the Plaintiffs' Applications for Preliminary
Injunctions and the supporting documentation.
3. Application of the constitutional strict scrutiny
standard obviates the need for a discrete Title VI analysis in the consideration
of the preliminary injunction applications. See Boston's Children
First v. City of Boston, 62 F. Supp. 2d 247, 260 n.31 (D. Mass. 1999).
4. In 1981, ESAA was consolidated with 30 other programs
as part of the Chapter 2 block grants under the Omnibus Budget Reconciliation
Act of 1981. See S. Rep. No. 100-222, at 45 (1987).
5. The regulations implementing the MSAP define "minority
group isolation" as " a condition in which minority group children constitute
more than 50 percent of the enrollment of the school." 34 C.F.R. §
280.4(b).
6. The Fourth Circuit has declined to recognize this
distinction in compelling government interests. See Eisenberg
v. Montgomery County Public Schools, 197 F.3d 123, 130 (4th Cir. 1999)
(describing interest in reducing or avoiding racial isolation and the interest
in diversity as "one and the same"), petition for cert. filed, (Dec.
23, 1999) (No. 99-1069); see also Tuttle v. Arlington County
School Board, 195 F.3d 698, 705 (4th Cir. 1999) (framing dispositive
inquiry as "whether the Policy was narrowly tailored to achieve diversity")
(emphasis added).
