United States District Court District Of Massachusetts

SAMANTHA J. COMFORT, et al. Plaintiffs,
v.
LYNN SCHOOL COMMITTEE, et al., Defendant
COMMONWEALTH OF MASSACHUSETTS, Defendants.
Civil Action No. 99-cv-11811 NG
__________________________________________

BRIEF OF THE UNITED STATES AS AMICUS CURIAE
INTEREST OF THE UNITED STATES

The United States Department of Justice has significant responsibilities for the judicial enforcement of the Equal Protection Clause of the Fourteenth Amendment in the context of the desegregation of public schools, see 42 U.S.C. § 2000c-6, and for the enforcement of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, which prohibits recipients of federal funds from discriminating on the basis of race, color, and national origin. The Department of Education, which exercises initial enforcement responsibilities under Title VI, also administers the Magnet Schools Assistance Program, 20 U.S.C. § 7201 et seq., a grant program that assists local educational agencies, inter alia, in efforts to desegregate schools and to reduce, eliminate, and prevent racial isolation. The United States thus has an interest in the orderly development of the law regarding the use of race in a wide variety of educational contexts.

BACKGROUND

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 Section 37D is one section of a larger statute referred to as "the Racial Imbalance Act," which was originally enacted in 1965.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.

ARGUMENT The Court Should Not Grant a Preliminary Injunction in This Case.

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). >

Updated August 6, 2015

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