United States Court of Appeals For the First Circuit
No. 21-1303
BOSTON PARENT COALITION FOR ACADEMIC EXCELLENCE CORP.,
Plaintiff, Appellant,
v.
THE SCHOOL COMMITTEE OF THE CITY OF BOSTON; ALEXANDRA OLIVER- DAVILA; MICHAEL O'NEILL; HARDIN COLEMAN; LORNA RIVERA; JERI ROBINSON; QUOC TRAN; ERNANI DEARAUJO; BRENDA CASSELLIUS,
Defendants, Appellees,
THE BOSTON BRANCH OF THE NAACP; THE GREATER BOSTON LATINO NETWORK; ASIAN PACIFIC ISLANDER CIVIC ACTION NETWORK; ASIAN AMERICAN RESOURCE WORKSHOP; MAIRENY PIMENTAL; H.D.,
Defendants, Intervenors, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.
Callan G. Stein, Mary Grace W. Metcalfe, William H. Hurd, Christopher W. Carlson, Jr., and Troutman Pepper Hamilton Sanders LLP on brief for appellant. Kay H. Hodge, John M. Simon, and Stoneman, Chandler & Miller LLP on brief for appellees. Susan M. Finegan, Andrew N. Nathanson, Mathilda S. McGee- Tubb, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Doreen M. Rachal, Sidley Austin LLP, Lauren Sampson, Oren Sellstrom, Janelle Dempsey, Lawyers for Civil Rights, Daniel Manning, and Greater Boston Legal Services on brief for intervenors-appellees.
April 28, 2021 KAYATTA, Circuit Judge. Plaintiff, a corporation acting
on behalf of fourteen parents and children who reside in Boston,
alleges that a plan promulgated by the Boston Public Schools for
admitting students to Boston Latin School, Boston Latin Academy,
and John D. O'Bryant School of Mathematics and Science for the
2021–2022 school year violates the Equal Protection Clause of the
Fourteenth Amendment and chapter 76, section 5 of the
Massachusetts General Laws. After considering the agreed-upon
facts and the parties' arguments, the district court entered
judgment in defendants' favor. Bos. Parent Coal. for Acad.
Excellence Corp. v. Sch. Comm. of Boston (Boston Parent Coalition),
--- F. Supp. 3d ---, Civil Action No. 21-10330-WGY, 2021 WL
1422827, at *17 (D. Mass. Apr. 15, 2021). Plaintiff has appealed
the district court's judgment and moves in this court for an
injunction preventing the implementation of the 2021-2022
admissions plan pending resolution of the appeal. For the
following reasons, we deny plaintiff's motion.
I.
A thorough summary of the facts appears in the district
court's opinion, which in turn relied on the parties' agreed-upon
statement of facts. We provide the broad framework and then
address in our analysis those particular facts deemed significant
by the parties in their motion papers on appeal.
- 3 - Known for the strength of their academic programs, the
three above-mentioned schools (what the parties call the "Exam
Schools") have fewer admission slots than there are Boston students
who wish to attend them; for the 2020-2021 school year, over 4,000
students applied for about 1,400 slots. For the past twenty years
or so, they have selected students for admission based on the
students' grade point averages in English Language Arts and Math
courses, scores on a standardized admissions test, and their school
preferences. Boston Parent Coalition, 2021 WL 1422827, at *3.
The onset of the COVID-19 pandemic threatened the
schools' ability to conduct the admissions process as in recent
years, prompting the School Committee of the City of Boston, the
group responsible for managing the Boston Public Schools, to create
a Working Group charged with "[d]evelop[ing] and submit[ting] a
recommendation to the Superintendent [of the Boston Public
Schools, Dr. Brenda Cassellius,] on revised exam school admissions
criteria for [the 2021-2022 school year]." Id. at *1, 3 (first
and last alterations in original). After the Working Group studied
the issue, proposed a new plan, and modified that plan based on
feedback from School Committee members, the School Committee
adopted the 2021-2022 Admissions Plan at a meeting on October 21,
2020. Id. at *3–5.
The Plan as adopted conditions a student's eligibility
to compete for admission to the Exam Schools on three criteria:
- 4 - (1) residence in one of Boston's twenty-nine zip codes (or
inclusion in a special zip code created for students who are
homeless or in the custody of the Department of Children and
Families); (2) maintenance of a B average or better in English
Language Arts and Math during the fall and winter of the 2019-2020
school year or receipt of a "Meets Expectations" or "Exceeds
Expectations" score in English Language Arts and Math on the Spring
2019 Massachusetts Comprehensive Assessment System test; and
(3) performance at grade level under the Massachusetts Curriculum
standards. Eligible students seeking admission must submit a
ranked list of school preferences.
The Plan's admissions process plays out in two phases.
In phase one, all eligible students are ranked city-wide by grade
point average accumulated in English Language Arts and Math courses
during the fall and winter of the 2019-2020 school year. The
highest-ranking students are assigned to their first-choice
schools until twenty percent of each school's seats are full. If
twenty percent of the seats at a high-ranking student's
first-choice school are already full, that student's application
is considered during the process's second phase.
Phase two begins with the allotment of the remaining
eighty percent of seats among the various zip codes based on the
proportion of Boston schoolchildren residing in each zip code.
Then, the remaining eligible students are ranked by grade point
- 5 - average within their zip code rather than city-wide as in phase
one. Phase two assigns each zip code's allotted seats over the
course of ten rounds. Each round fills ten percent of the seats
remaining after phase one. In the first round, starting with the
zip code that has the lowest median household income with children
under age eighteen (hereinafter "family income"), the highest-
ranking applicants in that zip code receive seats at their first-
choice schools until ten percent of the zip code's allotted seats
are filled. The first round continues by filling ten percent of
the seats allotted to the zip code with the next-lowest family
income and the round ends with the assignment of ten percent of
the seats allotted to the zip code with the highest family income.
In each round, if an applicant's first-choice school is full, that
applicant gets an open seat at his or her next-choice school, if
one is available. After this process cycles through nine more
rounds, the Exam Schools are fully enrolled.
The Plan opened applications for admissions for the Exam
Schools on November 23, 2020, and closed applications on
January 15, 2021. It anticipated invitations being issued to
successful applicants in March 2021, a date subsequently pushed
back, we are told, to no later than the end of this week.
Because the invitations have not yet issued, neither
party is in a position to say with conviction what the demographic
results of the admissions process will be. The Working Group,
- 6 - however, prepared a projection based on a non-final version of the
Plan that was used in public meetings. The projection estimates
that White students, who constitute 16 percent of the city's
school-age population, will receive 32 percent of the invitations
to the three schools; Asian students, who constitute 7 percent of
the school-age population, will receive 16 percent of the
invitations; Black students, who constitute 35 percent of the
school-age population, will receive 22 percent of the invitations;
and Latinx students, who constitute 36 percent of the school-age
population, will receive 24 percent of invitations.1
At this point the careful reader might well assume that
the plaintiff represents Black and Latinx students, who, as a
group, are projected to receive many fewer admissions invitations
than one might expect would result under, for example, a lottery
or other random method. In fact, plaintiff sues on behalf of White
and Asian students who prefer an admissions procedure (e.g., use
of GPA only) that would result in even more invitations going to
White and Asian students, with correspondingly fewer invitations
to Black and Latinx students.2
1 To track the record compiled below, we follow the parties in using the terms White, Black, Asian, and Latinx, as well as the term Multi-Race/Other to refer to the group of students projected to receive the remainder of the invitations. 2 Plaintiff asserts that sixty-five more White and Asian students would be admitted under its preferred selection procedure, using GPA only.
- 7 - Suing the School Committee, its members, and the
Superintendent of the Boston Public Schools, plaintiff alleges
that the Plan, and its use of zip codes ranked in reverse order by
family income, violates the Equal Protection Clause of the
Massachusetts General Laws because defendants intended for the
Plan to discriminate against White and Asian students. Boston
Parent Coalition, 2021 WL 1422827, at *1. Plaintiff's operative
complaint seeks injunctive relief barring the defendants from
implementing the Plan, using zip codes as a factor in any future
admissions decisions, or making use of race or ethnicity in future
admissions decisions.
Upon receipt of the parties' Joint Agreed Statement of
Facts, the district court advanced the case to a trial on the
merits, consolidated with a hearing on the plaintiff's motion for
a preliminary injunction. Id. (citing Fed. R. Civ. P. 65(a)).
Treating the Joint Agreed Statement as containing the entirety of
plaintiff's proffered evidence, the court made findings of fact,
stated its conclusions of law, and entered final judgment against
plaintiff under Federal Rules of Civil Procedure 52(a) and 58.
The court managed to do all of this, and produce a detailed and
thoughtful forty-eight-page opinion, in less than two months.
Plaintiff promptly appealed and moved pursuant to Federal Rule of
- 8 - Civil Procedure 62(d) for an order enjoining defendants from
implementing the Plan during the pendency of this appeal.
II.
Before turning to plaintiff's request for injunctive
relief, we must answer a preliminary procedural question.
Ordinarily, a litigant must seek an injunction pending appeal first
in the district court before asking a court of appeals to issue
such an injunction. Fed. R. App. P. 8(a)(1)(C). This requirement
may be overlooked when the party seeking relief "show[s] that
moving first in the district court would be impracticable." Fed.
R. App. P. 8(a)(2)(A)(i). Here, plaintiff argues that it would
have been impracticable to seek injunctive relief in the district
court before moving in this court because the issuance of
admissions decisions under the Plan is imminent and the district
court's decision was "fundamentally inconsistent with the issuance
of an injunction."
We disagree with plaintiff that the district court's
rejection of plaintiff's claims on the merits suffices to show
that moving first in the district court would have been
impracticable. See Washington Metro. Area Transit Comm'n v.
Holiday Tours, Inc., 559 F.2d 841, 844-45 (D.C. Cir. 1977) ("Prior
recourse to the initial decisionmaker would hardly be required as
a general matter if it could properly grant interim relief only on
a prediction that it has rendered an erroneous decision."); Bayless
- 9 - v. Martine, 430 F.2d 873, 879 n.4 (5th Cir. 1970) ("It does not
follow from the refusal to grant a preliminary injunction pending
a trial in the court below that the district court would refuse
injunctive relief pending an appeal.").
Nevertheless, plaintiff also contends that the action
sought to be enjoined is so imminent that insufficient time would
remain to seek relief on appeal if plaintiff -- or this court --
gave the district court first crack at plaintiff's request for an
injunction pending completion of the appeal. To support this
contention, plaintiff points to statements by defendants
suggesting that invitations might go out by April 15, and more
recently indicating that they need to go out by the end of this
month. Cf. Commonwealth v. Beshear, 981 F.3d 505, 508 (6th Cir.
2020) (finding that "[m]oving first in the district court" to stay
preliminary injunctive relief that would have permitted activity
at issue to occur within a few days "would . . . have been
impracticable"); Gonzalez ex rel. Gonzalez v. Reno, No. 00-11424-
D, 2000 WL 381901, at *1 n.4 (11th Cir. Apr. 19, 2000) (finding
that "Plaintiff has sufficiently shown that it would have been
impracticable to move first in the district court" in part because
of "the time-sensitive nature of the proceedings").
As we will explain in Part V of this opinion, plaintiff
itself bears considerable responsibility for creating this
exigency. It nevertheless seems best to consider the ramifications
- 10 - of that responsibility in weighing the request for injunctive
relief rather than in deciding whether to entertain the request.
We therefore agree with plaintiff that the tight timeframe present
here renders prior recourse to the district court sufficiently
impracticable, albeit just barely so, to allow plaintiff to proceed
with its motion in this court.
III.
In reviewing a motion to stay a judgment pending appeal,
we consider the following factors: "(1) [W]hether the stay
applicant has made a strong showing that [it] is likely to succeed
on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies." Nken v.
Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill,
481 U.S. 770, 776 (1987)). The first two factors "are the most
critical." Id. "It is not enough that the chance of success on
the merits be better than negligible. . . . By the same token,
simply showing some possibility of irreparable injury fails to
satisfy the second factor." Id. at 434–35 (citations and internal
quotation marks omitted).
When considering a request for injunctive relief pending
appeal, we consider the same factors, but the bar is harder to
clear. Respect Maine PAC v. McKee, 562 U.S. 996, 996 (2010)
- 11 - (explaining that obtaining injunctive relief from an appellate
court "'demands a significantly higher justification' than a
request for a stay" pending appeal (quoting Ohio Citizens for
Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986)
(Scalia, J., in chambers))). This is so because an injunction
"does not simply suspend judicial alteration of the status quo but
grants judicial intervention that has been withheld by [a] lower
court[]." Id. (quoting Ohio Citizens, 479 U.S. at 1313 (Scalia,
J., in chambers)).
The trial court's findings of fact for the most part
track the Joint Agreed Statement of Facts, see Boston Parent
Coalition, 2021 WL 1422827, at *2, and are therefore treated by
the parties as largely uncontroversial. Nevertheless, "when the
issues on appeal 'raise[] either questions of law or questions
about how the law applies to discerned facts,' such as whether the
proffered evidence establishes a discriminatory purpose or a
disproportionate racial impact, 'our review is essentially
plenary.'" Anderson ex rel. Dowd v. City of Boston, 375 F.3d 71,
80 (1st Cir. 2004) (alteration in original) (emphasis added)
(quoting Wessmann v. Gittens, 160 F.3d 790, 795 (1st Cir. 1998)).
"Similarly, we review de novo the district court's other legal
conclusions, including the level of scrutiny it applied when
evaluating the constitutionality of" the challenged action. Id.
(citation omitted).
- 12 - IV.
As is often the case in equal protection litigation, the
district court's judgment largely turned on the degree of scrutiny
brought to bear on the challenged governmental action. For reasons
it carefully explained, the district court concluded that rational
basis review, rather than strict scrutiny, applied. Boston Parent
Coalition, 2021 WL 1422827, at *10–16. Plaintiff trains its focus
on that conclusion in claiming that it is likely to prevail on
appeal.
To begin, the district court found that the admissions
criteria employed under the Plan (zip codes rank-ordered by family
income, grade point average, and school preference) "are
completely race neutral" on their face. Id. at *1. Plaintiff
does not challenge this conclusion in its submission to this court.
Absent a showing of discriminatory purpose, we review an equal
protection challenge to race-neutral selection criteria for a
rational basis only. Anderson, 375 F.3d at 90. And plaintiff
tenders no argument that its claim can prevail under rational basis
review.
Plaintiff must therefore argue that notwithstanding the
exclusive use of race-neutral admissions criteria, a
discriminatory purpose motivated the Plan's adoption, requiring
the application of strict scrutiny in assessing the vulnerability
of the Plan to plaintiff's equal protection challenge. See
- 13 - Washington v. Davis, 426 U.S. 229, 241 (1976) (placing the burden
on the plaintiff to establish a "prima facie case of discriminatory
purpose"). In general, a plaintiff may establish that a
discriminatory purpose motivated a facially neutral governmental
action -- and thus that strict scrutiny of that action is warranted
-- in two ways. See Anderson, 375 F.3d at 82–83. The first is to
show that "a clear pattern, unexplainable on grounds other than
race, emerges from the effect of the state action." Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266
(1977). Plaintiff makes no attempt to prove unlawful
discriminatory purpose in this manner. Rather, plaintiff urges us
to follow a second approach described in Arlington Heights, calling
for " a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available." 429 U.S. at 266. Factors
bearing on discriminatory intent may include "the degree of
disproportionate racial effect, if any, of the policy; the
justification, or lack thereof, for any disproportionate racial
effect that may exist; and the legislative or administrative
historical background of the decision." Anderson, 375 F.3d at 83
(citing Arlington Heights, 429 U.S. at 266–68).
Looking at the degree of disproportionate racial effect
resulting from the challenged practice is doubly problematic for
plaintiff. First, as compared to a random distribution of
invitations, the Plan has no adverse disparate impact on White and
- 14 - Asian students. Rather, plaintiff is able to generate a supposed
adverse impact principally by comparing the projected admissions
under the Plan to prior admissions under the predecessor plan.
Alternatively, plaintiff compares projections under the Plan to
projections of admissions based only on GPA. Either comparator
does produce even higher percentages of White and Asian students
than does the Plan. But plaintiff offers no analysis or argument
for why these particular comparators, rather than a plan based on
random selection, are apt for purposes of determining adverse
disparate impact. Cf. Jones v. City of Boston, 752 F.3d 38, 47
(1st Cir. 2014) (explaining that Title VII plaintiffs seeking to
prove disparate impact must show that a policy produced results
"that are not randomly distributed by race").
Second, even as to its preferred comparators, plaintiff
offers no evidence establishing that the numerical decrease in the
overrepresentation of Whites and Asians under the Plan is
statistically significant. A party claiming a disparate impact
generally does not even get to first base without such evidence.
Cf. id. at 43-44, 48, 53 (discussing evidence of statistical
significance in evaluating a Title VII disparate impact claim).
Whether either or both of these weaknesses doom
plaintiff's appeal on the merits we need not decide. Rather, for
present purposes we need only observe that these weaknesses
certainly cut against finding that the degree of disproportionate
- 15 - effect contributes to plaintiff's likelihood of success on the
merits.
Having thus forgone any serious engagement with how to
analyze the implications of the numerical data, plaintiff points
to the district court's finding that defendants employed
"socioeconomic, racial, and geographic diversity as interests to
help guide" the Plan's development. Boston Parent Coalition, 2021
WL 1422827, at *14. Plaintiff argues that this finding -- that
one of the guides informing the Plan's development was a preference
for racial diversity -- categorically mandates strict scrutiny.
But our most on-point controlling precedent, Anderson ex rel. Dowd
v. City of Boston, makes clear that a public school system's
inclusion of diversity as one of the guides to be used in
considering whether to adopt a facially neutral plan does not by
itself trigger strict scrutiny. See 375 F.3d at 85–87 (holding
that strict scrutiny did not apply to attendance plan adopted based
on desire to promote student choice, equitable access to resources
for all students, and racial diversity). In Anderson, we expressly
held that "the mere invocation of racial diversity as a goal is
insufficient to subject [a facially neutral school selection plan]
to strict scrutiny." Id. at 87.
Plaintiff relies on our opinion in Wessmann v. Gittens,
which predated Anderson, to argue that the Plan is subject to
strict scrutiny because it "induces schools to grant preferences
- 16 - based on race and ethnicity." 160 F.3d at 794. In Wessmann,
though, the plan at issue was not at all race-neutral on its face.
Rather, that plan explicitly used race as an admission selection
criterion: "[D]uring the selection of the second half of each
incoming class . . . the [plan] relies on race and ethnicity, and
nothing else, to select a subset of entrants." Id. Here, by
contrast, all selection criteria are indisputably facially
neutral.
Moving on from its assault on the defendants' admitted
aim of enhancing three forms -- socioeconomic, racial, and
geographic -- of diversity, plaintiff presses its major point:
There is evidence that some of the persons involved in developing
the Plan sought to achieve racial balancing, rather than racial
diversity.
Plaintiff points to the Working Group's "Recommendation
of Exam Schools Admissions Criteria for SY21-22." Under the
heading "Equity Impact," the Recommendation notes two "Desired
Outcomes":
● Ensure that students will be enrolled through a clear and fair process for admission in the 21-22 school year that takes into account the circumstances of the COVID-19 global pandemic that disproportionately affected families in the city of Boston.
● Work towards an admissions process that will support student enrollment at each of the exam schools such that it better reflects the racial, socioeconomic[,] and geographic
- 17 - diversity of all students (K-12) in the city of Boston.
In crafting its recommendation and assessing the Plan's "Equity
Impact," the Group consulted the Boston Public Schools' Racial
Equity Planning Tool, which points to "opportunity gaps . . . for
Black and Latinx communities in Boston Public Schools," and in
that context contains a statement calling for "a hard pivot away
from a core value of equality -- everyone receives the same -- to
equity: those with the highest needs are prioritized."
We find these statements to be significantly less
telling than plaintiff suggests. To begin, the Group's
Recommendation simply does not claim as its aim the balancing of
racial demographics in the Exam Schools so that they equal the
numeric demographics of the city or any other specified proportion.
Rather, the stated aim is to "better reflect[]" the city's
"diversity" in the three stated respects. Similarly, the resulting
decision to use neutral criteria that take into consideration those
"opportunity gaps" is hardly an expression of racial bias. Indeed,
equity was one of the principal goals of the plan we reviewed for
a rational basis in Anderson. See 375 F.3d at 91.
In arguing that the Plan's legislative history reveals
its discriminatory purpose, plaintiff also stresses that three
School Committee members made statements reflecting a goal of
achieving for each racial group a percentage share of admissions
- 18 - comparable to that group's percentage of Boston's population. Such
a Plan might have been the equivalent of a quota, meaning that at
some point in the admissions process some students with a given
GPA, but not others with the same GPA, would be denied admission
because of their race. But the Plan poses no such scenario. At
the margins of GPA scores, students may be denied admission because
of the family income in their zip code. But no student's race
will be the reason for admission or rejection. While the
defendants clearly viewed increasing geographic, socioeconomic,
and racial diversity as goals, the district court observed that
the Plan ultimately employed (in addition to GPA and preference)
only geography and family income -- not race -- as selection
factors.
[T]he Plan principally anchors itself to geographic diversity by equally apportioning seats to the City's zip codes according to the criterion of the zip code's percentage of the City’s school-age children. The Plan similarly anchors itself to socioeconomic diversity by ordering the zip codes within each round by their median family income. The Plan is devoid, however, of any anchor to race.
Boston Parent Coalition, 2021 WL 1422827, at *13 (citations
omitted). In rejecting plaintiff's argument that the chosen
criteria masked a discriminatory purpose, the district court found
that the Plan's criteria genuinely reflected the School
Committee's priorities:
- 19 - The School Committee’s goal of a more racially representative student body, although more often discussed and analyzed, did not commandeer the Plan, and it in fact necessarily took a back seat to the Plan’s other goals, which the Plan more aptly achieved. Consequently, any effect on the racial diversity of the Exam Schools is merely derivative of the Plan’s effect on geographic and socioeconomic diversity -- not the reverse.
Id. We see no likely error in the district court's conclusion
that a discriminatory purpose did not motivate the Plan's adoption.
The fact that public school officials are well aware that
race-neutral selection criteria -- such as zip code and family
income -- are correlated with race and that their application would
likely promote diversity does not automatically require strict
scrutiny of a school system's decision to apply those neutral
criteria.
Plaintiff's argument to the contrary contorts the
Supreme Court's opinion in Arlington Heights. In that case, the
Court rejected an equal protection challenge to a race-neutral
refusal to rezone that caused an impact on Black residents but
concerning which there was no evidence of any discriminatory
purpose. 429 U.S. at 268–71. From that holding -- that a
successful challenge to disparate results of applying race-neutral
rules requires proof that a racially discriminatory purpose was a
factor motivating the adoption of those rules, accord Washington
v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 484–85 (1982) --
- 20 - plaintiff infers a different rule nowhere expressed in the Court's
opinion. Under plaintiff's purported "rule," a selection process
based solely on facially neutral criteria that results in an
increase in the percentage representation of an underrepresented
group is subject to strict scrutiny if those designing the program
sought to achieve that result. Such a rule would pretty much mean
that any attempt to use neutral criteria to enhance diversity --
not just measures aimed at achieving a particular racial balance
-- would be subject to strict scrutiny. And that is just what
plaintiff says.
The pertinent case law says otherwise. As we have
already noted, our own precedent applying Arlington Heights does
not subject to strict scrutiny a race-neutral attendance plan
implemented to promote diversity as one of several ends. See
Anderson, 375 F.3d at 87. The most on-point decision from the
Supreme Court since our decision in Anderson is Parents Involved
in Community Schools v. Seattle School District No. 1, 551 U.S.
701 (2007). In both their filings in the district court and their
motion papers on appeal, the parties treat Justice Kennedy's
concurring opinion in Parents Involved as controlling. Not all
courts have done the same. Compare Spurlock v. Fox, 716 F.3d 383,
395 (6th Cir. 2013) (referring to "Justice Kennedy's controlling
concurrence" in Parents Involved), with Christa McAuliffe
Intermediate Sch. PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253, 282
- 21 - n.25 (S.D.N.Y.) (collecting cases concluding that Justice
Kennedy's opinion controls but reaching the opposite conclusion),
aff'd, 788 F. App'x 85 (2d Cir. 2019), and Doe ex rel. Doe v. Lower
Merion Sch. Dist., 665 F.3d 524, 544 n.32 (3d Cir. 2011) (stating
that "Justice Kennedy's proposition that strict scrutiny is
'unlikely' to apply to race[-]conscious measures that do not lead
to treatment based on classification does not 'explain[] the
result' of [Parents Involved]"). Regardless of whether all aspects
of his opinion are binding, Justice Kennedy's concurrence
reinforces, rather than undercuts, our reasoning and holding in
Anderson. The concurrence explains that school districts may
pursue diversity without engaging in individual racial
classification by drawing "attendance zones with general
recognition of the demographics of neighborhoods." Parents
Involved, 551 U.S. at 789 (Kennedy, J., concurring); see also Tex.
Dep't of Hous. & Cmty. Affs. v. Inclusive Communities Project,
Inc., 576 U.S. 519, 545 (2015) ("While the automatic or pervasive
injection of race into public and private transactions covered by
the [Fair Housing Act] has special dangers, it is also true that
race may be considered in certain circumstances and in a proper
fashion." (citing Parents Involved, 551 U.S. at 789 (Kennedy, J.,
concurring))). Plaintiff attempts to distinguish Parents Involved
by pointing out that it did not concern "magnet schools." But
nothing in Justice Kennedy's opinion suggests that public magnet
- 22 - schools must be treated differently from public schools generally
when evaluating whether a school district has violated the Equal
Protection Clause.
Since Parents Involved, other courts of appeals have
recognized that a school district's consideration of the effect of
a proposed plan on a school's racial makeup does not require strict
scrutiny of that plan in the same way that would be required if
such a plan classified students based on race. See Doe, 665 F.3d
at 548 ("The [Supreme] Court has never held that strict scrutiny
should be applied to a school plan in which race is not a factor
merely because the decisionmakers were aware of or considered race
when adopting the policy."); Spurlock, 716 F.3d at 394–95; Lewis
v. Ascension Par. Sch. Bd., 806 F.3d 344, 357–58 (5th Cir. 2015).
To be sure, as is the case with most increases in
diversity, the projected numbers in this case tended in the
direction of decreasing the numerical underrepresentation of a
racial group. But there is no likely controlling reason why one
cannot prefer to use facially neutral and otherwise valid
admissions criteria that cause underrepresented races to be less
underrepresented. The Supreme Court itself has pointed to the use
of fair, race-neutral selection criteria as a way to address
perceived underrepresentation of minorities in obtaining certain
benefits. See City of Richmond v. J.A. Croson Co., 488 U.S. 469,
509–10 (1989) (plurality opinion); id. at 507 ("If [minority
- 23 - business enterprises] disproportionately lack capital or cannot
meet bonding requirements, a race-neutral program of city
financing for small firms would, a fortiori, lead to greater
minority participation.").
This is not a situation where a racially discriminatory
purpose is the only plausible explanation for the Plan's adoption.
Far from it: The Plan employs only uncontrived criteria that could
easily be adopted in a world in which there were no races. One
can readily see why a school system would prefer to curry city-
wide support for high-profile, pace-setting schools. And one can
easily see why selective schools might favor students who achieve
academic success without the resources available to those who are
capable of paying for summer schooling, tutoring, and the like.
Plaintiff points finally to comments of the School
Committee chair who resigned after being heard making fun of the
names of several Asian Americans who spoke at a public meeting.
Boston Parent Coalition, 2021 WL 1422827, at *16. But as the
district court concluded, none of the evidence to which plaintiff
points reasonably suggests that any other School Committee members
were supportive of the Chairperson's offensive statements. We
therefore see no likely error in the district court's conclusion
that those sophomoric and hurtful comments by the Chairperson did
not establish racial animus as a factor motivating the School
Committee as a whole to adopt the Plan. Id. at *16–17.
- 24 - Ultimately, the role of motive need be assessed within
the context of the means employed and the results achieved. Here,
officials expressed a variety of concerns regarding how best to
award seats in the Exam Schools. But the means they chose were
race-neutral and apt. And the result on its face manifested no
starkly disparate impact concerning which plaintiff can complain.
To find such conduct subject to strict scrutiny would render any
school admissions criteria subject to strict scrutiny if anyone
involved in designing it happened to think that its effect in
reducing the underrepresentation of a group was a good effect.
Plaintiff cites no case so holding.
For the foregoing reasons, plaintiff has not shown a
strong likelihood that it will prevail on the merits. Failure to
satisfy this critical prerequisite for obtaining injunctive relief
pending appeal counsels strongly against granting an injunction
preventing defendants from implementing the Plan.
In assessing plaintiff's request for an injunction, we
consider also the balance of potential harms that confront us as
a result of plaintiff sitting on its collective hands. Plaintiff
waited over four months after the Plan's long-anticipated adoption
before filing this lawsuit, even though all involved knew that
admissions invitations needed to go out to families early this
spring. Notwithstanding the district court's Herculean efforts,
- 25 - plaintiff has put itself in the position of now asking us on short
notice to enjoin implementation of the Plan, just days before
parents are to be informed of the admissions results. The school
system would then be left with no plan at a time when it would
normally be assigning teachers and resources across the city based
on how attendance figures pan out at each school in the wake of
matriculation decisions at the Exam Schools.
This court has previously withheld injunctive relief
that would have altered election procedures where a plaintiff filed
suit less than three months before ballots were to be cast. See
Colón-Marrero v. Conty-Pérez, 703 F.3d 134, 139 (1st Cir. 2012)
(noting that plaintiff filed complaint "less than two months
before" an election); Respect Maine PAC v. McKee, 622 F.3d 13, 16
(1st Cir. 2010) (noting that plaintiffs sued just under three
months before election was to begin). We do not lightly grant
emergency relief, especially where the "'emergency' is largely one
of [plaintiff's] own making" and the relief sought would interfere
with processes on which many others have reasonably relied.
Respect Maine PAC, 622 F.3d at 16. These principles as applied in
election cases have force here, too. See Benisek v. Lamone, 138
S. Ct. 1942, 1944 (2018) (per curiam) (explaining that the
requirement that a party seeking injunctive relief "must generally
show reasonable diligence" applies "in election law cases as
elsewhere").
- 26 - Due to plaintiff's delay, plaintiff's requested
injunctive relief threatens to injure the other interested parties
and the public. Enjoining defendants from making Exam School
admissions decisions based on the Plan at this juncture would
unsettle important expectations and the plans of thousands of
families awaiting those decisions. The public interest is best
served by permitting defendants to finalize and communicate
admissions decisions based on the Plan, not by entering plaintiff's
proposed injunction and throwing the Exam School admissions
process into chaos.
VI.
For each of the foregoing two reasons, we deny
plaintiff's motion for an injunction pending the completion of
this appeal.
- 27 -