Comfort v. Lynn School Comm

• Court: Court of Appeals for the First Circuit
• Decided: October 20, 2004
• Docket: 03-2415
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 03-2415

SAMANTHA J. COMFORT, ET AL.,

Plaintiffs, Appellants,

v.

LYNN SCHOOL COMMITTEE, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Boudin, Chief Judge, Torruella, Selya, Lipez, and Howard, Circuit Judges.

Michael Williams, with whom Robert J. Roughsedge, Chester Darling, and Citizens for the Preservation of Constitutional Rights were on brief, for plaintiffs. Sharon L. Browne on brief for Pacific Legal Foundation, amicus curiae. Richard W. Cole, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, and John R. Hitt, Assistant Attorney General, were on brief, for state defendants. James P. Lamanna, Assistant City Solicitor, and John C. Mihos on consolidated brief for municipal defendants. Edward J. Barshak and Sugarman, Rogers, Barshak & Cohen, P.C. on brief for Asian-American Lawyers Association of Massachusetts, Boston Bar Association, Community Change, Inc., Fair Housing Center of Greater Boston, Jewish Alliance for Law and Social Action, New England Area Conference of the NAACP, and Greater Boston Civil Rights Coalition, amici curiae. Patricia A. Brannan, Maree Sneed, and Hogan & Hartson, LLP on brief for Council of the Great City Schools, American Association of School Administrators, National Association of Secondary School Principals, National Education Association, National School Boards Association and Public Education Network, amici curiae. Nathalie F.P. Gilfoyle, General Counsel, Lindsay Childress- Beatty, Deputy General Counsel, David W. Ogden, and Wilmer, Cutler, Pickering, Hale and Dorr, LLP on brief for American Psychological Association, amicus curiae. Theodore M. Shaw, Director-Counsel, Norman J. Chachkin, and Chin Quang Le on brief for Northshore Branch of the NAACP, NAACP Legal Defense & Educ. Fund, Inc., Lawyers' Comm. for Civil Right of the Boston Bar Association, and various individuals, amici curiae. Donna Brewer MacKenna and Casner & Edwards, LLP on brief for Lynn Business Education Foundation and Lynn Business Partnership, Inc., amici curiae. Thomas Miller, Attorney General (Iowa), Eliot Spitzer, Attorney General (New York), Caitlin J. Halligan, Solicitor General (New York), Michelle Aronowitz, Deputy Solicitor General (New York), Natalie R. Williams, Deputy Bureau Chief, and Hilary B. Klein, Assistant Attorney General (New York), G. Steven Rowe, Attorney General (Maine), and Mark L. Shurtleff, Attorney General (Utah), on brief for States of Iowa, New York, Maine, and Utah, amici curiae. Thomas J. Henderson, Derek Black, Harris J. Yale, Bernadette McCann Ezring, Samantha G. Fisherman, Virginia Johnson, and Weil, Gotshal & Manges, LLP on brief for Lawyers' Comm. for Civil Rights Under Law, amicus curiae. David B. Broughel and Day, Berry & Howard, LLP on brief for Mass. Coalition for Equitable Educ., Mass. Teachers Ass'n, Mass. Fed'n of Teachers, Mass. Ass'n of Sch. Superintendents, Metro Council for Educ. Opportunity, Inc., Center for Law and Educ., Citizens for Pub. Sch., Mass. Ass'n of Hispanic Attorneys, League of Women Voters of Mass., Mass. Law Reform Inst., Alliance for High Standards NOT High Stakes, Schott Center for Public and Early Educ., Nat'l Center for Fair & Open Testing, and Progressive Jewish Alliance, amici curiae. Angelo N. Ancheta on brief for Civil Rights Project at Harvard Univ., amicus curiae.

June 16, 2005

Opinion En Banc LIPEZ, Circuit Judge. This appeal requires us to review

certain features of a voluntary plan designed to achieve the

educational benefits of racial diversity in the public schools of

Lynn, Massachusetts ("Lynn Plan" or "Plan"). The Plan addresses

resource allocation, curricula, and other aspects of the classroom

experience. Relevant to this appeal, it also controls school

assignments and transfers. Under the Plan, each student is

entitled to attend his or her neighborhood school. Students who do

not wish to attend their neighborhood school may apply to transfer

to another school. Approval of a transfer depends, in large part,

on the requesting student's race and the racial makeup of the

transferor and transferee schools.

Parents whose children were denied transfers on race-

conscious grounds challenged the transfer provisions of the Lynn

Plan, claiming, inter alia, that the provisions violate the

Fourteenth Amendment Equal Protection Clause. The district court

rejected the parents' challenges and upheld the Plan. A panel of

this court reversed, finding that the Plan was not narrowly

tailored to the defendants' compelling interest in achieving the

benefits of educational diversity. We granted review en banc and

now affirm.

Our review of the equal protection challenge is informed

by the Supreme Court's recent decisions regarding affirmative

action in higher education, Grutter v. Bollinger, 539 U.S. 306

-3- (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003). We conclude,

based on those cases, that Lynn has a compelling interest in

securing the educational benefits of racial diversity. Applying

the analytic framework set forth in Grutter and Gratz to the

context of a K-12, non-competitive transfer plan, we hold that the

Lynn Plan is narrowly tailored to meet this compelling interest.

The plaintiffs assert a number of other claims as well.

We do not reach the merits of their facial challenge to the

Massachusetts Racial Imbalance Act, which fails for lack of

standing. We treat the plaintiffs' federal statutory claims as

foreclosed by our equal protection ruling and reject their

challenge to the Plan under Article 111 of the Massachusetts

Declaration of Rights. Finally, we conclude that the district

court properly denied the plaintiffs' motion for recusal.

I. Background

This case comes to us with a rich factual background,

described in detail in a series of district court rulings. See

Comfort v. Lynn Sch. Comm., 283 F. Supp. 2d 328 (D. Mass. 2003)

(Comfort IV); Comfort v. Lynn Sch. Comm., 150 F. Supp. 2d 285 (D.

Mass. 2001) (Comfort III); Comfort v. Lynn Sch. Comm., 131 F. Supp.

2d 253 (D. Mass. 2001) (Comfort II); Comfort v. Lynn Sch. Comm.,

100 F. Supp. 2d 57 (D. Mass. 2000) (Comfort I). We set forth only

those facts necessary to put this case into context, drawing upon

the largely unchallenged findings of the district court.

-4- A. Lynn Public Schools

Lynn is the ninth-largest city in Massachusetts, with a

population of approximately 89,000. At all relevant times, its

school system has been neighborhood-centered, entitling students to

attend their local schools as a matter of right. By the mid-1970s,

several of Lynn's schools were experiencing significant racial

imbalance. In 1977, for example, the Washington Community

Elementary School had a nonwhite student population of 57%, more

than six times the nonwhite percentage in the school system as a

whole. Predominantly nonwhite schools suffered disproportionately

from resource shortages, overcrowding, discipline problems, and

teacher apathy. The school system was plagued by high absentee

rates, racial tension, and low test scores.

In an effort to combat these problems, Lynn established

its first magnet school in 1979. At the same time, it inaugurated

a voluntary transfer program aimed at attracting white students to

that school (which apparently was located in a predominantly

nonwhite area of the city). The magnet school was only modestly

successful in alleviating racial imbalance.

In the meantime, Lynn was undergoing a demographic shift.

Between 1980 and 2000, the city went from being 93% white to 63%

white, with the school-age population becoming more than half

nonwhite by 2000. Residential segregation by race increased during

-5- this period as whites clustered in the northern and western areas

of Lynn and nonwhites concentrated in its south-central region.

Because of the neighborhood school system, these

residential patterns heightened the racial imbalance of Lynn's

schools. By 1987, seven of eighteen elementary schools had white

enrollments of 90% or more, while four others had predominantly

nonwhite student bodies. Lynn responded by developing a plan to

launch ten magnet schools,1 but city leaders did not believe that

the magnet program, on its own, would effectively combat the

growing racial imbalance. In September 1989, the Lynn School

Committee ("Lynn") adopted the Plan that is the subject of this

litigation.2

B. The Lynn Plan

The defendants describe the Lynn Plan as a voluntary plan

for school improvement and the elimination of minority isolation.

The Plan begins with the premise that every child is entitled to

attend his or her neighborhood school. Race is taken into account

1 Ordinarily, the label "magnet school" describes an elite public school with a competitive admissions policy. Lynn's magnet schools, however, do not use a competitive admissions policy. Rather, Lynn uses the term for schools that feature an educational theme beyond the standard curriculum, designed partially to attract cross-neighborhood transfers. Examples of such themes include "Life Science" and "Reading and Writing Literary and Whole Language." Despite this specialization the parties have stipulated that "the education provided . . . in each of the elementary, middle, and high schools in Lynn is comparable in quality, resources[,] and curriculum." 2 The Plan was amended in 1990 and again in 1999.

-6- only when a student seeks to transfer to a school other than his or

her neighborhood school.

Lynn operates eighteen elementary schools (six of which

are magnets), four middle schools (three of which have magnet

programs), and three high schools.3 In the 2001-02 school year,

15,444 students were enrolled in the Lynn public schools. Out of

this group, approximately 42% of students were white, 15% African-

American, 29% Hispanic, and 14% Asian (for a total "minority" or

nonwhite population of roughly 58%).

For purposes of the Lynn Plan, schools are placed in one

of three categories. A "racially balanced" school is one in which

the percentage of nonwhite students falls within a set range of the

overall proportion of minorities in Lynn's student population. The

range is +/- 15% for elementary schools and +/- 10% for other

schools. For example, an elementary school with between 43% and

73% nonwhite students during the 2001-02 school year was considered

racially balanced, as was a middle or high school that had a

nonwhite enrollment of 48% to 68%. In the 2001-02 school year,

nine of Lynn's elementary schools, one of its middle schools, and

all three of its high schools were racially balanced.

3 Lynn also operates six alternative schools, offering such things as special needs education and vocational training. These schools are not subject to the transfer provisions of the Lynn Plan.

-7- If a school's nonwhite population falls below the

racially balanced range (i.e., if the percentage of nonwhite

students in 2001-02 fell below 43% for an elementary school or 48%

for a middle or high school), it is "racially isolated."

Conversely, a school whose nonwhite population rises above the

racially balanced range (i.e., over 73% for an elementary school or

68% for a middle or high school) is considered "racially

imbalanced." In 2001-02, five of Lynn's elementary schools and one

of its middle schools were classified as racially isolated, while

four elementary schools and two middle schools were racially

imbalanced.

The transfer policy is straightforward. Space

permitting, a student whose neighborhood school is racially

balanced may transfer to another racially balanced school without

regard to race. Because all three of Lynn's high schools are

currently racially balanced, for example, students may transfer

freely among them. Students are also permitted to make

"desegregative" transfers. That is, a white student may transfer

out of a racially isolated school and into a racially imbalanced

school (i.e., to a school with a lower percentage of white

students), and a nonwhite student may transfer out of a racially

imbalanced school and into a racially isolated school (i.e., to a

school with a lower percentage of nonwhite students). By contrast,

absent certain exceptions, students may not make "segregative"

-8- transfers. A segregative transfer is one that would exacerbate

racial imbalance in the sending or receiving school (i.e., a white

student may not transfer to a racially isolated school, and a

nonwhite student may not transfer to a racially imbalanced

school).4

A student whose transfer request is denied is entitled to

appeal. Roughly half of all appeals are granted. Common grounds

for successful appeals are medical and safety concerns, daycare

issues, and other types of hardship. Appeals will also be granted

when the denial would result in siblings attending different

schools. The Plan is implemented by the Parent Information Center

("PIC"), which processes all admissions and transfers, works with

parents on appeals, and monitors enrollment and racial composition

of individual schools and the district in general.

As the plaintiffs point out, the Lynn Plan can result in

unequal treatment based on race. Consider, for example, two

children, one white and one African-American, who are initially

assigned to the same neighborhood elementary school for the 2001-02

school year. The school is racially isolated (i.e., less than 43%

minority). Both children request a transfer to a nearby school

that is racially imbalanced (i.e., greater than 73% minority).

4 Any student who qualifies as "multi-racial" is not subject to the race-conscious transfer limits.

-9- Under the Plan, the white student will be permitted to transfer,

and the African-American student will not.

Although the race-conscious transfer policy is the focus

of this appeal, the Lynn Plan also includes numerous other

provisions aimed at improving the quality of all schools in the

district. It calls for curricular programs and teacher training

designed to foster cross-racial understanding and reduce racial

tension. It also implemented a standardized curriculum throughout

Lynn's schools; developed performance indicators for schools,

programs and students; took measures to improve student attendance;

and created business/college partnerships with schools to improve

the quality of instruction. Finally, the Plan envisions a

construction program to upgrade school facilities and alleviate

overcrowding.

All parties agree that Lynn's public schools have

improved markedly since the Plan's inception, although they dispute

which aspects of the Plan are responsible for this improvement. In

any event, students' standardized test scores have increased,

absentee levels have decreased, and racial tensions have diminished

under the Plan.

C. The Racial Imbalance Act

The Racial Imbalance Act ("RIA"), Mass. Gen. Laws ch. 15,

§§ 1I, 1J, 1K; id. ch. 71, §§ 37C, 37D, directs the Massachusetts

Board of Education to remedy de facto segregation in the public

-10- schools throughout the state. See Sch. Comm. of Boston v. Bd. of

Educ., 227 N.E.2d 729, 732 (Mass. 1967). The legislature enacted

the RIA in response to findings that dramatic levels of racial

imbalance in the public schools threatened to harm students'

educational opportunities. See id. at 733-34. The RIA has two

main effects: it authorizes the Board to fund voluntary efforts to

improve racial balance, Mass. Gen. Laws ch. 15, § 1I, and it allows

the Board to require that school districts adopt integration plans

in certain circumstances, id. ch. 71, § 37D.

The Lynn school system has received significant state aid

under the voluntary provisions of the RIA. These funds have helped

pay for new construction and school renovations.5 Lynn also

receives a state stipend of $500 for each desegregative student

transfer, and the state defrays certain costs associated with

cross-neighborhood transportation and the creation of magnet

schools.

D. Procedural History

In 1999, the parents of children who had been denied

transfers under the Lynn Plan ("Comfort plaintiffs") brought a

civil action against the Lynn School Committee, its individual

members, and several governmental officials. They claimed that the

5 Before 2001, the RIA provided reimbursement for school construction and renovations undertaken for the purpose of reducing racial imbalance. The law has been amended to change this funding structure, but that amendment applies prospectively and does not affect Lynn's state funding.

-11- Lynn Plan and the RIA violate the Fourteenth Amendment Equal

Protection Clause, several federal civil rights statutes, and

Article 111 of the Massachusetts Declaration of Rights. The

Commonwealth intervened as a party defendant for the limited

purpose of defending the RIA. See 28 U.S.C. § 2403(b). The

district court denied a motion to preliminarily enjoin the race-

conscious aspects of the Lynn Plan, see Comfort I, 100 F. Supp. 2d

at 59-60, and dismissed several of the plaintiffs' claims, see

Comfort III, 150 F. Supp. 2d at 289, 296-97, 302; Comfort II, 131

F. Supp. 2d at 254, 256. Only one of the original Comfort

plaintiffs remains in the case. Other parents ("Bollen

plaintiffs") then filed a second action that included the Comfort

plaintiffs' claims, as well as other statutory claims. The Bollen

plaintiffs also added as defendants the members of the Board of

Education in their official capacities. The district court

consolidated the two cases.

Following an eleven-day bench trial, the district court

issued a lengthy opinion dismissing a number of the Bollen

plaintiffs' claims on standing grounds. Comfort IV, 283 F. Supp.

2d at 361-63. It rejected the facial attack on the RIA, id. at

366-68, and determined that the Plan's transfer provisions are

narrowly tailored to several compelling state interests, and thus

constitutional. Id. at 375-92. The court also rejected the

plaintiffs' remaining federal statutory claims, treating the

-12- statutory provisions as co-extensive with the Equal Protection

Clause. Id. at 392-93. Finally, the court held that the transfer

provisions of the Lynn Plan did not violate Article 111 of the

Massachusetts Declaration of Rights. Id. at 393-400.

A panel of this court reversed, holding that the Plan

could not the survive strict scrutiny review required by the Equal

Protection Clause. Relying on the Supreme Court's decision in

Grutter upholding a race-conscious admissions policy at the

University of Michigan Law School, the panel recognized a

compelling interest in "obtaining the educational benefits of a

racially diverse student body." Comfort v. Lynn Sch. Comm., No.

03-2415, slip op. at 30 (1st Cir. Oct. 20, 2004), withdrawn by 2004

WL 2348505 (1st Cir. Nov. 24, 2004). It concluded, however, that

the Plan is not narrowly tailored to that interest because it uses

race "mechanically" and "forgoes individualized consideration of

transfer applications." Id. at 40. The panel also cited other

narrow tailoring flaws, including the Plan's breadth and indefinite

duration. We granted en banc rehearing and now affirm.6

II. Standing

"[T]he general rule is that a court should first confirm

the existence of rudiments such as jurisdiction and standing before

tackling the merits of a controverted case." Berner v. Delahanty,

6 We express our appreciation to the many amici curiae for their valuable assistance.

-13- 129 F.3d 20, 23 (1st Cir. 1997). This is because "standing is a

necessary concomitant to the court's power to adjudicate a case."

R.I. Ass'n of Realtors v. Whitehouse, 199 F.3d 26, 30 (1st Cir.

1999). Thus, we begin by considering the plaintiffs' standing.

To establish standing in federal court, a party must

demonstrate three things:

First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

(citations and internal quotation marks omitted). The plaintiffs

must have standing to obtain both forms of relief they seek: an

injunction against the race-conscious aspects of the Plan and a

declaration that the RIA is facially unconstitutional. See Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 185 (2000).

With respect to the Lynn Plan, one Bollen plaintiff (Gina

Leone) clearly meets the threshold standing requirement. Leone

sues on behalf of her minor son, Troy Lamothe, whose transfer

request was denied on the ground that it would be segregative. The

fact that Troy was allowed to attend the school of his choice

-14- pending the outcome of this litigation does not defeat standing.

See Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 n.3

(1st Cir. 1995) (accepting plaintiff's standing despite agreement

not to enforce disputed ordinance pending outcome of litigation).

So long as one plaintiff has standing to seek a particular form of

global relief, the court need not address the standing of other

plaintiffs seeking the same relief. See Watt v. Energy Action

Educ. Found., 454 U.S. 151, 160 (1981); Houlton Citizens' Coalition

v. Town of Houlton, 175 F.3d 178, 183 (1st Cir. 1999).

Standing to seek injunctive or declaratory relief against

the RIA is a different matter. The parties stipulated, and the

district court confirmed, that the mandatory portion of the RIA

(i.e., the provision under which the Board of Education can require

a district to adopt a plan to reduce racial imbalance) has not been

applied to Lynn. Comfort IV, 283 F. Supp. 2d at 367. The

plaintiffs nevertheless launch a facial attack against the RIA's

mandatory provisions, Mass. Gen. Laws ch. 71, § 37D, contending

that they offend the Fourteenth Amendment Equal Protection Clause

and Article 111 of the Massachusetts Constitution by giving white

children a right to transfer out of isolated schools and nonwhite

children a right to transfer out of imbalanced schools, but not

vice versa (i.e., white children cannot transfer out of imbalanced

schools and nonwhite children cannot transfer out of isolated

schools). Even if that is true in theory, the plaintiffs cannot

-15- overcome the fact that only a person who was denied a transfer on

the basis of the mandatory provisions of the RIA has standing to

challenge them.

The mandatory provisions of § 37D apply only to school

districts that refuse to create voluntary plans to combat

identified racial imbalance. See Sch. Comm. of Springfield v. Bd.

of Educ., 319 N.E.2d 427, 429 (Mass. 1974). Lynn never refused to

take action; rather, it drafted and implemented a voluntary plan.

The plaintiffs therefore have not suffered a cognizable injury from

§ 37D of the RIA.7 Accordingly, they lack standing to seek a

declaration as to its validity.

The plaintiffs also lack standing to seek injunctive or

declaratory relief against the RIA provisions that offer incentives

to districts that voluntarily adopt plans to combat racial

imbalance. See Mass. Gen. Laws ch. 15, §§ 1I, 1J, 1K; id. ch. 71,

§ 37C. Redressability, one of the prerequisites for standing, see

N.H. Right to Life PAC v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996),

requires a substantial likelihood that the relief sought will in

fact remedy the alleged injury, Bonas v. Town of N. Smithfield, 265

F. 3d 69, 73 n.4 (1st Cir. 2001). Plaintiffs describe their injury

as both a racially-based denial of transfers and the stigma of

their inability to "compete" on equal terms for transfers. Even

7 Nor have the plaintiffs shown that they are under any imminent threat of being subjected to these mandates.

-16- assuming arguendo that this asserted injury is somehow traceable to

the RIA, the plaintiffs cannot show that an injunction against the

RIA's incentive provisions will lead to racially unrestricted

transfers within the Lynn public schools or eliminate the perceived

stigmatic harm.

This point is apparent from the record. Under the terms

of the RIA, Lynn has received state funding for construction and

busing based on its voluntary efforts to combat racial imbalance.

Even if we directed the Board to distribute aid without regard to

racial balancing efforts, the plaintiffs have not demonstrated that

redress would likely follow. There is no reason to believe that

Lynn would cancel its transfer program merely because state funding

was no longer contingent on it.

In an effort to sustain their claim, the plaintiffs and

amicus Pacific Legal Foundation also present a second theory for

prospective relief. They assert that the incentive provisions of

the RIA are effectively mandatory because they coerce school

districts to adopt race-conscious plans by tying state aid to the

adoption of those plans. There is a flaw in this argument. While

the RIA's incentive provisions reward schools that address racial

imbalance, they do not dictate a procedure or methodology by which

schools must do so. See Mass. Gen. Laws ch. 15, § 1I; id. ch. 71,

§ 37C. Given the absence of a requirement that schools adopt race-

conscious plans to comply with the RIA, the plaintiffs have not

-17- shown that the incentive provisions of the RIA are causally

responsible for the voluntary adoption of race-conscious transfer

policies.

Even if the plaintiffs did have standing to mount a

facial challenge to the voluntary provisions of the RIA, we agree

with the district court that such a challenge would fail. Comfort

IV, 283 F. Supp. 2d at 367-68. "A facial challenge to a

legislative Act is . . . the most difficult challenge to mount

successfully, since the challenger must establish that no set of

circumstances exists under which the Act would be valid." United

States v. Salerno, 481 U.S. 739, 745 (1987). Such circumstances

exist here. As the district court recognized, "[a] school district

may theoretically adopt a plan that improves racial imbalance

without explicitly introducing race-based criteria at all."

Comfort IV, 283 F. Supp. 2d at 367-68 & n.77 (noting that "if a

small district with racially identifiable school attendance zones

built a single central elementary, middle, and high school to

absorb its entire enrolled student populations, this strategy would

qualify as a racial balancing plan under the RIA, and it would not

trigger any equal protection scrutiny"); see also Boston's Children

First v. Boston Sch. Comm., 260 F. Supp. 2d 318, 327 (D. Mass.

2003) (finding that the RIA's goals may be satisfied by race-

neutral methods), aff'd sub nom. Anderson v. City of Boston, 375

F.3d 71 (1st Cir. 2004).

-18- III. Federal Equal Protection Claims

The main issue on appeal is the constitutionality of the

Lynn Plan's race-conscious transfer restrictions. The plaintiffs

contend that by mechanically taking race into account, the Plan

violates the Equal Protection Clause of the Fourteenth Amendment

and various federal civil rights statutes. The resolution of the

federal statutory claims depends on the fate of the constitutional

challenge. See infra Part III.D. Consequently, we focus on the

equal protection issue.

A. Standard of Review

We review the court's findings of fact for clear error

and its legal conclusions, including its application of the law to

the facts, de novo. See Wessmann v. Gittens, 160 F.3d 790, 795

(1st Cir. 1998).

The Supreme Court has reviewed racial classifications

under the strict scrutiny standard, which requires that the policy

be narrowly tailored to a compelling state interest. Grutter, 539

U.S. at 326; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227

(1995). The defendants urge us to apply a more relaxed standard

here. They emphasize that although the Plan is race-conscious, it

is unlike affirmative action because it affects whites and

nonwhites equally.

This argument is foreclosed by the Supreme Court's recent

decision in Johnson v. California, 125 S. Ct. 1141 (2005). There,

-19- the Court considered an unwritten policy of the California

Department of Corrections whereby inmates are segregated by race

for up to sixty days after entering a new correctional facility.

Rejecting the State's argument that its policy should be subjected

to relaxed scrutiny because it "neither benefits nor burdens one

group or individual more than any other group or individual," id.

at 1147, the Court explained that all racial classifications

raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and again that, "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining . . . what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion). We therefore apply strict scrutiny to all racial classifications to smoke out illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.

Id. at 1146 (internal quotation marks omitted). This rule applies

in the present context just as firmly. The Plan must be reviewed

under strict scrutiny.

This standard is not "strict in theory, but fatal in

fact." Id. at 1151; see also Grutter, 539 U.S. at 326-27

("Although all governmental uses of race are subject to strict

scrutiny, not all are invalidated by it."). Strict scrutiny "is

designed to provide a framework for carefully examining the

importance and the sincerity of the reasons advanced by the

governmental decisionmaker for the use of race in that particular

context." Grutter, 539 U.S. at 327. We therefore bear in mind the

-20- court's admonition that "[c]ontext matters when reviewing race-

based governmental action under the Equal Protection Clause." Id.

B. Compelling State Interest

Until recently, there was some question as to whether

diversity could constitute a compelling interest in the educational

context. See Wessmann, 160 F.3d at 795-96. The Supreme Court has

now answered that question in the affirmative, holding in Grutter

that a law school's interest in obtaining the educational benefits

that flow from a diverse student body was compelling enough to

justify the narrowly tailored use of race in admissions. 539 U.S.

at 343.

Grutter involved a challenge to the University of

Michigan Law School's admissions policy, which took into account

racial and ethnic background as one of several "soft variables"

used in assessing applicants. Id. at 315. The Law School

justified this strategy as furthering its goal of assembling a

class that was both "exceptionally . . . qualified and broadly

diverse." Id. at 329. It also sought to enroll a "critical mass"

of minority students, thereby enhancing its quest for broad

diversity. Id. at 330.

The Grutter Court stressed that the Law School's plan did

not pursue a critical mass of minority students for its own sake,

but rather for the sake of obtaining the educational benefits that

flow from having a racially diverse student body. Id. at 329-30

-21- (acknowledging that racial balancing for its own sake is

unconstitutional). These educational benefits include promoting

cross-racial understanding, breaking down stereotypes, fostering

livelier and better informed class discussions, and preparing

students to succeed in an increasingly diverse society. Id. at

330. The Court largely deferred to the Law School's educational

judgment not only in determining that diversity would produce these

benefits, but also in determining that these benefits were critical

to the school's educational mission. Id. at 328-33. The Court

warned, however, that "scrutiny of the interest asserted by the Law

School is no less strict for taking into account complex

educational judgments in an area that lies primarily within the

expertise of the university." Id. at 328. Nevertheless, the Court

concluded that the pursuit of these benefits constituted a

compelling state interest. Id. In so ruling, it recognized "the

overriding importance of [education in] preparing students for work

and citizenship." Id. at 331.

Against this background, we consider the interest that

Lynn's race-conscious Plan seeks to advance. This is not a case

where the racial classification is aimed at remedying past

segregation. See Comfort IV, 283 F. Supp. 2d at 390 n.101.

Rather, the parties stipulated that Lynn's interests

include fostering integrated public schools and what Lynn believes are [their] positive effects; reducing minority isolation and avoiding segregation and what Lynn believes are their negative effects; promoting a positive racial

-22- climate at schools and a safe and healthy school environment; fostering a cohesive and tolerant community in Lynn; promoting diversity; ensuring equal education and life opportunities and increasing the quality of education for all students.

The district court grouped these interests into two

categories: (i) reaping the educational benefits that flow from

having a racially diverse student body in each of Lynn's public

schools, and (ii) avoiding the negative educational consequences

that accompany racial isolation.

Although there are some differences between these

interests, we conclude that they are essentially two sides of the

same coin. The negative consequences of racial isolation that Lynn

seeks to avoid and the benefits of diversity that it hopes to

achieve are rooted in the same central idea: that all students are

better off in racially diverse schools. We therefore restate the

interests at stake here as obtaining the educational benefits of a

racially diverse student body.

Lynn maintains that ensuring a racially diverse student

body in its schools has produced, and will continue to produce,

many of the same benefits cited by the Grutter Court: disarming

racial stereotypes, increasing racial tolerance, and preparing

students to live and work in an increasingly multi-racial society.

The defendants' expert evidence also suggests that racially

isolated students often feel psychological burdens that can lead to

poor attendance and academic woes, and that these effects can be

-23- combated by racial integration. Consistent with these assertions,

Lynn's schools have indeed experienced many positive developments

-- including higher attendance rates, declining suspension rates,

a safer environment, and improved standardized test scores -- since

the Plan's inception.

In Lynn's view, these developments can be explained by

the intergroup contact theory. This theory holds that "under

certain conditions, interaction between students of different races

promotes empathy, understanding, positive racial attitudes[,] and

the disarming of stereotypes." Comfort IV, 283 F. Supp. 2d at 356.

Under the intergroup contact theory, there are four basic

conditions for success: (1) equal status among racial groups, (2)

the presence of teachers and staff trained to facilitate

interactions between members of different groups, (3) common goals

and cooperative activities, and (4) opportunities for personalized

contact with a sufficient number of children from different racial

groups to disrupt stereotypes. Id. at 356-57.

Lynn's experts explained that meaningful intergroup

contact (the fourth condition of intergroup contact theory)

requires that a school have a "critical mass" of students of each

group, i.e., white and nonwhite. Id. at 357. Lynn's experts also

testified, and the district court found, that the benefits of

intergroup contact continue to accrue as a school becomes

increasingly diverse. Id. Citing this theory and crediting the

-24- defense experts who explained its application in Lynn, the district

court agreed that there was a causal link between improvements in

the school system and increased racial diversity. Id. at 353-54.

While acknowledging improvements in the Lynn schools

since the Plan's inception, the plaintiffs disagree that these

changes can be attributed to the race-conscious aspect of the Lynn

Plan. More significantly, they also contend that regardless of

whether there are educational benefits to racial diversity, Lynn

does not have a compelling interest in achieving those benefits.

We disagree.

Lynn's transfer policy expressly aims at attaining racial

diversity in the city's schools. Where a community does not seek

racial diversity for its own sake, but rather to advance a

compelling interest in the educational benefits that diversity

provides, there is no absolute bar to pursuing racial diversity.

See Grutter, 539 U.S. at 330. The district court found that this

was Lynn's purpose, Comfort IV, 283 F. Supp. 2d at 375-76, and the

record supports that finding. We see no reason to second-guess it.

Cf. Grutter, 539 U.S. at 328 (stating that, typically, a school's

"educational judgment that . . . diversity is essential to its

educational mission is one to which we defer").

The plaintiffs assert that, unlike Grutter, this case

does not implicate a compelling interest that would justify the

pursuit of racial diversity. The admissions plan at issue in

-25- Grutter strove for diversity along many axes, including race, in an

effort to create a student body with diverse viewpoints, thereby

enriching classroom discussion and academic experiences. See 539

U.S. at 329 ("As part of its goal of assembling a class that is

. . . broadly diverse, the Law School seeks to enroll a critical

mass of minority students." (internal quotation marks omitted)).

The plaintiffs contend that Grutter's recognition of a compelling

interest in "the educational benefits that flow from student body

diversity," 539 U.S. at 330, is thus limited to the benefits that

flow from viewpoint diversity in the higher education context and

does not extend to the benefits that flow from racial diversity in

the K-12 context.

Again, we disagree. Lynn's asserted interests bear a

strong familial resemblance to those that the Grutter Court found

compelling. There is no reason to believe that these interests are

advanced by viewpoint diversity but not racial diversity, or that

they are substantially stronger in the context of higher education

than in the context of elementary and secondary education. See

McFarland v. Jefferson Cty. Pub. Schs., 330 F. Supp. 2d 834, 852-53

(W.D. Ky. 2004) (reasoning that the benefits recognized in Grutter

also "accrue to students in racially integrated public schools");

cf. Plyler v. Doe, 457 U.S. 202, 221 (1982) (emphasizing the

importance of K-12 education "in maintaining the fabric of our

society"). In fact, there is significant evidence in the record

-26- that the benefits of a racially diverse school are more compelling

at younger ages. See, e.g., Comfort IV, 283 F. Supp. 2d at 356

(summarizing expert's testimony that "[i]t is more difficult to

teach racial tolerance to college-age students; the time to do it

is when the students are still young, before they are locked into

racialized thinking").

The plaintiffs correctly point out that the benefits

attributed to the Lynn Plan are not identical to those described in

Grutter. But Grutter teaches that the compelling state interest in

diversity should be judged in relation to the educational benefits

that it seeks to produce. 539 U.S. at 330. The Lynn Plan uses

race in pursuit of many of the same benefits that were cited

approvingly by the Grutter Court, including breaking down racial

barriers, promoting cross-racial understanding, and preparing

students for a world in which "race unfortunately still matters."

Id. at 333.8 There are, of course, some variances between the

benefits sought. For example, the law school plan at issue in

Grutter focused on the advantages of viewpoint diversity in the

classroom, while Lynn emphasizes the positive impact of racial

diversity on student safety and attendance. But it is natural that

safety and attendance issues will loom larger in elementary and

secondary schools than in graduate schools. Conversely, lively

8 Notably, one of the studies that the Supreme Court cited as demonstrating that diversity produces educational benefits was authored by the defendants' expert in this case, Dr. Gary Orfield.

-27- classroom discussion is a more central form of learning in law

schools (which prefer the Socratic method) than in a K-12 setting.

These differences do not negate a compelling interest in racial

diversity in a K-12 setting. Instead, they are the logical result

of context.

We are persuaded by the extensive expert testimony in the

record, rooted in observations specific to Lynn, that there are

significant educational benefits to be derived from a racially

diverse student body in the K-12 context. Lynn has a compelling

interest in obtaining those benefits. See Brewer v. W. Irondequoit

Cent. Sch. Dist., 212 F.3d 738, 752 (2d Cir. 2000); McFarland, 330

F. Supp. 2d at 855.

C. Narrow Tailoring

Recognizing that public schools have a compelling

interest in obtaining the educational benefits of racial diversity

does not give schools a blank check to adopt race-conscious

policies. Rather, the government's use of race must be narrowly

tailored to achieve its compelling interest. See Grutter, 539 U.S.

at 333. "The purpose of the narrow tailoring requirement is to

ensure that 'the means chosen 'fit' . . . th[e] compelling goal so

closely that there is little or no possibility that the motive for

the classification was illegitimate racial prejudice or

stereotype.'" Id. (quoting Richmond, 488 U.S. at 493).

-28- Narrow tailoring generally requires the proponent to show

that a plan or practice is (i) necessary to the declared purpose,

(ii) proportional to the declared purpose, and (iii) not more

burdensome than necessary on third parties. See United States v.

Paradise, 480 U.S. 149, 171 (1987) (plurality opinion). It is a

context-specific inquiry that must be "calibrated to fit the

distinct issues raised" in a given case, taking "relevant

differences into account." Grutter, 539 U.S. at 334 (internal

quotation marks omitted).

Although the Supreme Court has not yet considered a

constitutional challenge to a voluntary race-based transfer policy

for elementary and secondary schools, its recent opinions in

Grutter and Gratz provide some guidance for our narrow tailoring

inquiry into the use of race to obtain the educational benefits of

diversity. Thus we consider these cases further.

1. Gratz and Grutter

Gratz involved a challenge to the University of

Michigan's undergraduate admissions program. The University

automatically assigned twenty points -- one-fifth of the 100 points

necessary to guarantee admission -- to an applicant from an

underrepresented racial or ethnic minority group. Gratz, 539 U.S.

at 255. This twenty-point bonus effectively made race/ethnicity

determinative for minimally qualified minority applicants. Id. at

272. Grutter involved a challenge to the University of Michigan

-29- Law School's admissions policy. The Law School took race into

account as one of several variables in an individual's application.

Grutter, 539 U.S. at 340. It assigned no mechanical score based on

an applicant's race; instead, it considered race only as one of

several possible ways in which an applicant could enrich the

diversity of the student body. Id. at 315-16.

The Supreme Court struck down the undergraduate

admissions plan in Gratz while upholding the law school admissions

policy in Grutter. In arriving at these decisions, the Court

followed a four-part narrow tailoring inquiry. First, a race-

conscious program cannot institutionalize a quota system or

otherwise insulate one category of applicants from competition with

another solely because of race. Id.; Gratz, 539 U.S. at 334.

Second, the government must consider whether there are any

workable, race-neutral alternatives. Grutter, 539 U.S. at 339.

Third, the plan must not "unduly harm members of any racial group."

Id. at 341. Fourth, the use of racial distinctions must be limited

in time. Id. at 342.

Much of this inquiry is relevant here despite significant

differences between the competitive admissions plans at issue in

Gratz and Grutter and the Lynn Plan, which is non-competitive and

governs only student transfers, not initial assignments. The

requirement that the court consider race-neutral alternatives

addresses whether the Plan is necessary; if there were a race-

-30- neutral way to achieve the benefits of diversity and reduced racial

isolation, the use of race would be unnecessary and therefore not

narrowly tailored. The requirements that a race-conscious policy

not unduly harm members of any racial group and that it be limited

in time minimize the scope of the Plan, ensuring that its use of

race is no broader than necessary. The weight of these

considerations may vary somewhat from the Grutter setting to ours,

but they remain applicable and we will return to them shortly.

The first Grutter criterion relating to competition,

however, is less useful to our narrow tailoring inquiry. The

University of Michigan admissions policies were designed to

"assemble a student body that is diverse in ways broader than

race." Grutter, 539 U.S. at 340. Individualized assessments, in

which race was only one consideration among many, were the most

narrowly tailored way to achieve such diversity. The mechanical

use of race, by contrast, would preclude an admissions committee

from considering students' "background, experiences, and

characteristics to assess [their] individual 'potential

contribution to diversity.'" Gratz, 539 U.S. at 274 (quoting

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978)

(opinion of Powell, J.)).

Unlike the Gratz and Grutter policies, the Lynn Plan is

designed to achieve racial diversity rather than viewpoint

-31- diversity.9 The only relevant criterion, then, is a student's

race; individualized consideration beyond that is irrelevant to the

compelling interest. Cf. Brewer, 212 F.3d at 752 ("If reducing

racial isolation is -- standing alone -- a constitutionally

permissible goal, . . . then there is no more effective means of

achieving that goal than to base decisions on race.")

The concerns motivating the individualized consideration

requirement in a competitive, race-preferential admissions context

that focuses on diversity along a number of axes (e.g., the Gratz

and Grutter policies) are simply not present in a non-competitive

K-12 transfer policy aimed at racial diversity. Because transfers

9 As we have already discussed, see supra Part III.B., the Lynn Plan's focus on racial diversity rather than viewpoint diversity is the result of contextual differences between higher education, where the emphasis is on the exchange of ideas, and primary education, where the emphasis is on fostering interracial cooperation. The district court explained this point in distinguishing Grutter, which was then pending before the Supreme Court: In contrast [to Grutter], the "critical mass" sought by the Lynn Plan is different, because Lynn's goal is not viewpoint diversity. As I have said, at the elementary, middle, and high school level, the goal of teaching socialization is at least as important as the subject matter of instruction. The value of a diverse classroom setting at these ages does not inhere in the range of perspectives and experience that students can offer in discussions; rather, diversity is valuable because it enables students to learn racial tolerance by building cross-racial relationships. In this context a meaningful presence of racial minorities -- and of whites at minority-dominated schools -- is crucial not only to reducing feelings of tokenism, but also to disarming stereotypes that students in the classroom majority might harbor about students of other races. Comfort IV, 283 F. Supp. 2d at 381 n.90.

-32- under the Lynn Plan are not tied to merit, the Plan's use of race

does not risk imposing stigmatic harm by fueling the stereotype

that "certain groups are unable to achieve success without special

protection." Bakke, 438 U.S. at 298 (opinion of Powell, J.)

(raising the possibility of stigmatic harm in the affirmative

action context). There is also little chance that the decisive use

of race in a plan concerned strictly with racial diversity creates

the unwarranted presumption that race is a proxy for viewpoint.

See Gratz, 539 U.S. at 271 (recognizing this as a risk when members

of a group are favored based on a presumption that "persons think

in a manner associated with their race"). Indeed, the Plan strives

for exactly the opposite result -- that is, to preempt racial

stereotypes through intergroup contact.

The plaintiffs emphasize that the Supreme Court has also

criticized the mechanical use of race on the ground that it may

breed cross-racial tension. As the Court recently explained in

considering a prison policy of segregating prison inmates by race,

racial classifications threaten to . . . incite racial hostility. Indeed, by insisting that inmates be housed only with other inmates of the same race, it is possible that prison officials will breed further hostility among prisoners and reinforce racial and ethnic divisions. By perpetuating the notion that race matters most, racial segregation of inmates may exacerbate the very patterns of [violence that it is] said to counteract.

Johnson, 125 S. Ct. at 1147 (internal quotation marks, citations,

and emphasis omitted). These concerns, however, are not applicable

to the Lynn Plan, which takes race into account to foster

-33- intergroup contact rather than to segregate. As the Johnson Court

acknowledged, "racial integration . . . tends to diffuse racial

tensions and thus diminish interracial violence." Id. (citing the

opinion of former corrections officials and a study finding that

"the rate of violence between inmates segregated by race . . .

surpassed the rate among those racially integrated"). The Lynn

Plan validates this conclusion: by reducing racial isolation and

increasing intergroup contact, it has ameliorated racial and ethnic

tension and bred interracial tolerance. Comfort, 283 F. Supp. 2d

at 376. We therefore see no reason to impose a blanket

prohibition on the use of race as a decisive factor in a student

transfer plan to further a compelling interest in obtaining the

educational benefits of racial diversity. If a non-competitive,

voluntary student transfer plan is otherwise narrowly tailored,

individualized consideration of each student is unnecessary.10

2. The Lynn Plan

The district court determined, and we agree, that the

Plan's use of transfer limits to achieve racial diversity has

produced benefits central to Lynn's educational mission.11 Under

10 We note that this conclusion in no way rests on the administrative difficulties that would be inherent in individually considering each of the thousands of transfer requests that Lynn receives each year. Administrative difficulty "does not render constitutional an otherwise problematic system." Gratz, 539 U.S. at 275. 11 Plaintiffs argue that improvements in Lynn schools cannot be attributable to racial diversity. They emphasize (i) that levels

-34- the general narrow tailoring framework, however, we must also

consider whether the Plan's use of race is no broader than

necessary and whether race-neutral alternatives are available. See

Grutter, 539 U.S. at 339-42; see also Wygant v. Jackson Bd. of

Educ., 476 U.S. 267, 280 n.6 (1986) (noting that the term "narrowly

tailored" requires "consideration of whether lawful alternative and

less restrictive means could have been used" or that "the

classification at issue must 'fit' with greater precision than any

alternative means").

a. Breadth

The defendants maintain that the Plan's use of race is

minimally invasive. First, it governs only voluntary transfers,

rather than initial student assignments. Instead of forcing

children to attend schools far from their homes, as might be the

of diversity vary at schools in the district; (ii) that at least one school slipped below critical mass during the 2000-01 academic year; and (iii) that defense experts testified that all schools they visited -- including schools that had slipped below critical mass -- demonstrated the benefits that intergroup contact theory attributes to racial diversity. Plaintiffs reason that the experts' uniformly positive testimony is inconsistent with a theory that increased diversity produces increased benefits, and that the benefits must be attributable instead to race-neutral factors present in equal measure throughout the district. We do not find this argument persuasive. The defendants point out that although some of Lynn's schools occasionally fall below critical mass, those deviations are small and temporary. Students do not automatically forfeit the lessons learned from integration when they attend a school with relatively short-term or marginal deviation from critical mass.

-35- result of a controlled choice plan,12 the Lynn Plan preserves the

traditional neighborhood school model. Second, the Plan allows

students to transfer freely between racially balanced schools and

provides an appeals process for students whose transfer requests

are denied on racial grounds.13

The Plan is also less burdensome on third parties here

than in other contexts because of the nature of the "benefit" at

issue, namely the grant of a transfer request. Every child in Lynn

is guaranteed a seat in a district where, as the parties have

stipulated, every school provides a comparable education. The

denial of a transfer under the Plan is therefore markedly different

from the denial of a spot at a unique or selective educational

institution. See, e.g., Gratz, 539 U.S. at 251 (University of

Michigan); Wessmann, 160 F.3d at 793 (Boston Latin School); cf.

12 Controlled choice plans are an alternative to neighborhood school assignments. See, e.g., Anderson, 375 F.3d at 74-77 (describing controlled choice plans used by the Boston Public Schools). "Under such programs, parents can choose among a select number of schools, but their choices and their likelihood of getting their choice are controlled to help ensure a particular racial balance." Wendy Parker, The Legal Cost of the "Split Double Header" of Gratz and Grutter, 31 Hastings Const. L.Q. 587, 603 n.76 (2003). 13 Appeals are granted to unite siblings or when parents can show a medical, safety, or other hardship, including one based on daycare arrangements. The district court found that the Parent Information Center (Lynn's central registration office) "goes out of its way to make the appeals process accessible to everyone." Comfort IV, 283 F. Supp. 2d at 349. Additionally, a student whose appeal is denied will be presented with alternative placement options.

-36- Wygant, 476 U.S. at 282-83 ("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.").

This is not to say that the denial imposes no harm at all; the

transfer request itself indicates that despite the availability of

a comparable education at any school in Lynn, students (or their

parents) do not view the schools as fungible. But in construing

the narrow tailoring requirement that a race-conscious plan not

unduly harm members of any racial group, we view the diminished

nature of any harm here as significant.

i. Calibration

Despite the minimally invasive nature of the Plan, the

plaintiffs contend that it imposes undue harm because of its

calibration. Emphasizing the defense experts' testimony that the

educational benefits of diversity are predicated on the presence of

a critical mass of white and nonwhite students, a figure that

social science literature approximates at 20%, the plaintiffs

assert that the Plan's numerical guidelines are substantially more

restrictive than necessary. In their view, a plan narrowly

tailored to the defendants' compelling interest in the benefits of

educational diversity would prohibit only those transfers that

would upset critical mass. They point out that because the Plan is

calibrated around district demographics rather than around critical

-37- mass, it prohibits some transfers that do not bring a school

population below 20% white. For example, because nonwhites made up

58% of Lynn's student population at the time of trial, an

elementary school with a 40% nonwhite enrollment qualified as

racially isolated, and therefore subject to transfer limits, even

though it contained a critical mass of white and nonwhite

students.14

In response, the defendants rely on expert testimony that

while critical mass is the point at which educational benefits

begin to accrue, those benefits increase as a school nears an even

balance between white and nonwhite students. Relying on this

evidence, the district court found that "gains occur along a

continuum: as the racial composition of school populations creeps

closer to balanced, racial stereotyping and tension is [sic]

reduced and racial harmony and understanding increase." Comfort

IV, 283 F. Supp. 2d at 357. It thus concluded that the Plan was

narrowly tailored, despite its orientation around district

demographics rather than critical mass. See id. at 384 (The Plan

"effectively generates integration in Lynn's schools in such

quantity as to catalyze intergroup contact while still respecting

14 Under the Plan, an elementary school is racially isolated if its nonwhite enrollment falls more than 15% below the percentage of Lynn's total student population that is nonwhite. If Lynn's student population was 58% nonwhite, as it was during the 2001-02 academic year, a school whose student body was less than 43% nonwhite (i.e., more than 15% below 58%) was racially isolated.

-38- the neighborhood school principle and Lynn's ever-changing

demographics.").

We agree with the district court's reasoning. The Plan

does not seek racial balancing for its own sake, nor does it use

rigid quotas to ensure a pre-determined level of diversity at each

of Lynn's schools. See Grutter, 539 U.S. at 335-36 ("The . . .

goal of attaining a critical mass of [nonwhite] students does not

transform [a] program into a quota."). Rather, the transfer policy

conditioned on district demographics (+/- 10-15%) reflects the

defendants' efforts to obtain the benefits of diversity in a stable

learning environment.15 The Plan thus provides a sufficiently close

"fit" to the defendants' compelling interest to ensure that "'the

motive for the classification was [not] illegitimate racial

prejudice or stereotype.'" Id. at 333 (quoting Croson, 488 U.S. at

493 (plurality op.)).

The plaintiffs launch a second attack at the Plan's

calibration on the grounds that it is inconsistent with the

defendants' statements that the benefits they seek maximize as a

school moves closer to 50% white/nonwhite. They point out that as

of December 2004, Lynn's student population was more than 61.9%

15 This conclusion is bolstered by the testimony of Dr. Orfield, a nationally recognized expert on school desegregation, who concluded that the Plan "used race no more than was necessary to allow Lynn to meet its educational goal of preparing students to live in a multiracial society." Comfort IV, 283 F. Supp. 2d at 355.

-39- minority. A middle school that is 50% minority (the proportion

that the defendants have described as ideal) would now fall outside

of the +/- 10% range for racial balance and would instead be

considered racially isolated, resulting in transfer limitations.

This argument misses the mark. The Lynn Plan's goal is

to improve the racial balance not of any particular school, but

across the school system as a whole. The optimal balance for each

school might well be 50%, but Lynn's 61.9% minority population

means that for every school closer to that ideal, another will be

further away from it. Evaluating schools by reference to the

racial composition of the city's population is a sensible way for

Lynn to strive for the best racial balance attainable across its

entire school system, while acknowledging that practical

constraints make it impossible for Lynn to have an equal population

of minority and non-minority students in every individual school.

ii. White/nonwhite distinction

In addition to challenging the Plan's numerical ranges,

the plaintiffs also argue that the Plan is not narrowly tailored to

advance a compelling interest in racial diversity because it paints

with too broad a brush by distinguishing only between white and

nonwhite students, thereby blurring the many subgroups within each

category. However, this white/nonwhite distinction reflects the

reality of Lynn's experience. As the district court found, before

the Plan, "racial divisions and ethnic conflict between students

-40- occurred predominantly along a white/nonwhite axis. The growing

gap in understanding between these groups burdened the schools in

ways that more precise shades of racial and ethnic difference did

not." Comfort IV, 283 F. Supp. 2d at 379. By increasing diversity

along the white/nonwhite axis, the Plan reduced racial tensions and

produced positive educational benefits. Narrow tailoring does not

require that Lynn ensure diversity among every racial and ethnic

subgroup as well. See Grutter, 539 U.S. at 316 (noting that the

Law School sought to enroll a critical mass of "minority" students,

a category that included African-Americans, Hispanics, and Native

Americans).

iii. Duration

A narrowly tailored plan must be limited not only in

scope, but also in time. See id. at 342. The Court held in

Grutter that this durational requirement can be met by "periodic

reviews to determine whether racial preferences are still necessary

to achieve student body diversity." Id. The Lynn Plan includes

such review. The PIC continuously monitors the schools'

demographics, gathering data on racial composition and transfers.

Under the Plan, transfer limits are suspended among schools that

are racially balanced. Comfort IV, 283 F. Supp. 2d at 377. This

feature is not merely theoretical. Students may now transfer

freely among all three Lynn high schools. Lynn has also

periodically reevaluated the calibration of its Plan with an eye

-41- toward maximizing the availability of transfers while maintaining

diverse schools. Id. at 348 n.38 (noting that the Plan's original

10% range was expanded to 15% for elementary schools to "permit

more choice" and that Lynn considered a 20% range in 1994 but

determined that it would compromise student body diversity). We

expect that Lynn will continue to do so, presuming, as did the

Grutter Court, that school officials will demonstrate a good faith

commitment to monitoring the continued need for racial

restrictions. See 539 U.S. at 343.

b. Consideration of race-neutral alternatives

Because narrow tailoring dictates that the government use

race only when necessary to achieve a compelling interest, it

requires "serious, good-faith consideration of workable race-

neutral alternatives that will achieve the diversity [the

government actor] seeks." Grutter, 539 U.S. at 339; see also

Wygant, 476 U.S. at 280 n.6. Here, the defendants have met their

burden. The record reflects that they seriously considered, and

plausibly rejected, a number of race-neutral alternatives. These

included (i) a no-transfer policy, see Comfort IV, 283 F. Supp. 2d

at 387-88 (crediting evidence from a demographics expert that

instituting such a policy would throw several elementary schools

into racial imbalance); (ii) a policy of unrestricted transfers,

see id. at 388 (crediting evidence that instituting such a policy

would result in 500 to 800 segregative transfers per year); (iii)

-42- a redrawing of district lines, see id. at 387-88 (noting that this

would be impractical); (iv) forced busing, see id. at 387-88

(concluding that the problems that accompany forced busing

justified Lynn's rejection of a controlled choice scheme); (v) a

lottery system, see id. at 389 (finding that demographic and

scheduling factors made this impracticable); and (vi) a plan

conditioning transfers on socioeconomic status, rather than race,

see id. at 389 n.100 (noting that because of residential patterns,

this system would exacerbate existing racial imbalance).

The plaintiffs argue that there are several other

alternatives that the defendants failed to consider. They point

specifically to a Department of Education study reviewing

successful race-neutral programs based on socioeconomic status or

a lottery, see U.S. Dep't of Educ., Achieving Diversity: Race-

Neutral Alternatives in American Education (Feb. 2004), available

at http://www.ed.gov/about/offices/list/ocr/raceneutral.html, and

to the race-neutral student assignment plan adopted in Boston, see

Anderson, 375 F.3d at 76-77. As noted, Lynn has already

considered, and rejected, the possibility of basing student

assignments on socioeconomic status or a lottery. While the record

does not reflect whether Lynn has considered the Boston plan in

depth, we note that the Boston plan is specific to the residential

patterns in Boston, which differ from those in Lynn. Lynn must

keep abreast of possible alternatives as they develop, see Grutter,

-43- 539 U.S. at 342-43, but it need not prove the impracticability of

every conceivable model for racial integration. It is sufficient

that it demonstrate a good faith effort to consider feasible race-

neutral alternatives, as it has done here. We therefore hold that

the Lynn Plan is narrowly tailored to the defendants' compelling

interest in obtaining the benefits of racial diversity.

D. Related Federal Claims

The plaintiffs also advance several statutory equal

protection claims, contending that the Lynn Plan violates, inter

alia, 42 U.S.C. §§ 1981 and 1983,16 and Title VI of the Civil Rights

Act of 1964, 42 U.S.C. § 2000d.17 Our resolution of the

constitutional equal protection challenge controls those claims.

Title VI "'proscribe[s] only those racial classifications that

would violate the Equal Protection Clause.'" Alexander v. Sandoval

532 U.S. 275, 280-281 (2001) (quoting Bakke, 438 U.S. at 287

(Powell, J.)). Courts have also treated the bar on racial

discrimination imposed by § 1981 and § 1983 as coextensive with the

protections of the Equal Protection Clause. See Mescall v. Burrus,

16 42 U.S.C. § 1981 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right . . . to the full and equal benefit of all laws." 42 U.S.C. § 1983 provides a cause of action based on the deprivation of constitutional rights "under color of any statute, ordinance, regulation, custom, or usage, of any State." 17 Title VI forbids racial discrimination "under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d.

-44- 603 F.2d 1266, 1271 (7th Cir. 1979) ("The relationships of §§ 1981

and 1983 to the Fourteenth Amendment are so close . . . that we

believe the use of each section must be guided by the principles

announced by the Supreme Court for application of the Fourteenth

Amendment to discrimination cases."); see also Anderson, 375 F.3d

at 77 n.7 (concluding that plaintiffs' claims under Title VI, §

1981 and § 1983 "turn on the resolution of the equal protection

claim"). The district court was therefore correct in holding that

the plaintiffs are not entitled to federal statutory relief.

IV. Article 111

Article 111 of the Massachusetts Declaration of Rights

provides that "[n]o student shall be assigned to or denied

admittance to a public school on the basis of race, color, national

origin[,] or creed." Plaintiffs contend that when a child is

prevented from making a segregative transfer under the Lynn Plan,

he is illegally "denied admittance to a public school on the basis

of race." Mass. Const. amend. art. 111. The district court

rejected this position as inconsistent with the meaning of Article

111, which was designed to limit forced busing and to protect

neighborhood schools. Comfort IV, 283 F. Supp. 2d at 393. The

court also emphasized that although "no court has ever expressly

interpreted Article 111, the SJC [i.e., the Massachusetts Supreme

Judicial Court] has consistently construed similarly worded

statutes narrowly, holding that they do not categorically ban

-45- suspect classifications but rather merely subject them to strict

scrutiny." Id. Finally, the district court suggested that if

Article 111 were read broadly to prohibit any race-conscious

student assignment plan, as the plaintiffs urge, it would likely

run afoul of the federal Constitution and other sections of the

Massachusetts Declaration of Rights. Id. We review the district

court's interpretation of the Article de novo.18 See Blockel v.

J.C. Penney Co., Inc., 337 F.3d 17, 29 (2003).

Although the SJC has not yet considered Article 111, it

has identified the considerations that guide judicial

interpretation of the state's constitution:

In determining the meaning of a constitutional provision, we look to the language and structure of the provision, so that it is construed so as to accomplish a reasonable result and to achieve its dominating purpose. We do so bearing in mind the Constitution was written to be understood by the voters to whom it was submitted for approval. It is to be interpreted in the sense most obvious to the common intelligence. Its phrases are to be read and construed according to the familiar and approved usage of the language. The words of a constitutional provision are to be given their natural and obvious sense according to common and approved usage at the time of its adoption. Moreover, the Constitution is to be interpreted in the light of the conditions under which it and its

18 The defendants assert that we should not consider the substance of the Article 111 claim at all, maintaining that the Commonwealth was a necessary party to adjudicate this claim but could not be joined because of the Eleventh Amendment, see Fed. R. Civ. P. 19(b). Alternatively, they urge us to certify a question regarding the proper interpretation of Article 111 to the SJC pursuant to Mass. R. Sup. Jud. Ct. 1:03. We reject both contentions, finding it appropriate to reach the merits as the district court did.

-46- several parts were framed, the ends which it was designed to accomplish, the benefits which it was expected to confer, and the evils which it was hoped to remedy.

McDuffy v. Sec'y of the Executive Office of Educ., 615 N.E.2d 516,

523 (Mass. 1993) (citations and internal quotation marks omitted).

To determine whether Article 111 prohibits a race-

conscious plan for voluntary student transfers, we begin, as the

SJC has instructed, with the language of the provision. Id. at

524. The plaintiffs contend that the plain language of the Article

unequivocally invalidates the Lynn Plan. They reason that when a

student is precluded from transferring because of the transfer's

impact on racial balance, that student is "denied admittance to a

public school on the basis of race" within the meaning of Article

111.

It is not readily apparent, however, that a student

denied a transfer is "denied admittance" to a school within the

meaning of the provision. The Article's pairing of the terms

"assigned" and "denied admittance" suggests that it contemplated

initial student placements, not subsequent transfers. Under the

Lynn Plan, students are assigned to their neighborhood schools

without regard to race; conversely, no student is denied that

placement based on race. Only after a student has been assigned to

a school and wishes to transfer does race enter the calculus.

The "specific circumstances of the adoption" of Article

111, see McDuffy, 615 N.E.2d at 528, convince us that the provision

-47- does not preclude such a plan. Article 111 was adopted as an

amendment to the Massachusetts constitution in 1978. The House and

Senate bills that became Article 111 were introduced by legislators

on behalf of Massachusetts Citizens Against Forced Busing. See

Comfort IV, 283 F. Supp. 2d at 395. When the bill was presented to

voters for ratification, the constitutionally required description

that accompanied it19 explained:

A "YES VOTE" would guarantee the right of parents or guardians of school-age children to educate those children free from any arbitrary assignment by school authorities to schools outside the school district. Any public assignment to a school outside the school district, based on achieving any established racial quota-system or ethnic balance[,] would require the permission of a parent or guardian.

Id. (citing Massachusetts Information for Voters (1978)); see also

Bates v. Dir. of Office of Campaign and Political Finance, 763

N.E.2d 6, 22-23 (Mass. 2002) (using Information for Voters

statement as an aid to statutory construction).

We would be hard-pressed to extrapolate from these

circumstances an intent that Article 111 bar an entirely voluntary

student transfer program narrowly tailored to a compelling interest

in the educational benefits of diversity. As the district court

19 The Massachusetts Constitution requires the Secretary of State to publish and distribute information regarding ballot questions, including the full text of every measure, "a fair, concise summary of the measure as such summary will appear on the ballot [and] other information and arguments for and against the measure." Mass. Const. art. 48, Gen. Prov., pt. IV, as amended by arts. 74 and 108.

-48- noted, "'the benefit [Article 111] was expected to confer' was

preservation of neighborhood schools, and the 'evil which it was

hoped to remedy' was the politically divisive resort to forced

busing." Comfort IV, 283 F. Supp. at 395 (quoting McDuffy, 615

N.E.2d at 523). The Lynn Plan advances those goals. It protects

neighborhood school assignments and does not entail any forced non-

neighborhood assignments. Race-conscious transfers occur only if

initiated by a student's parent or guardian, a result entirely

consistent with the explanation of the Article put before the

voters.

The plaintiffs do not dispute that Article 111 was

designed to prevent forced busing. Rather, they argue that any

inquiry into the Article's legislative history is improper because

the provision is clear on its face. As we have already explained,

the application of the Article to the context of voluntary

transfers is not entirely clear from the statutory language.

Moreover, the SJC has expressly provided that the state

constitution's words "must be given a construction adapted to carry

into effect its purpose." Cohen v. Att'y Gen., 259 N.E.2d 539, 543

(Mass. 1970) (quoting Tax Comm'r v. Putnam, 116 N.E. 904, 906

(Mass. 1917)). The Article's legislative history helps us

determine its purpose, and thereby points us to a construction that

furthers that purpose. Looking to legislative history is therefore

-49- entirely consistent with the principles of constitutional

interpretation set forth by the SJC.

Our conclusion that the Lynn Plan does not violate

Article 111 would be the same even if the Article did apply to a

voluntary transfer system. As the district court recognized, the

SJC has treated provisions similar to Article 111 not as banning

the use of race outright, but rather as subjecting the use of race

to strict scrutiny. Comfort IV, 283 F. Supp. 2d at 396; see also

McDuffy, 615 N.E.2d at 545 (noting that the court's decision on a

matter of first impression was consistent with earlier decisions).

In Attorney General v. Massachusetts Interscholastic

Athletic Association, Inc., 393 N.E.2d 284 (Mass. 1979), the SJC

considered a challenge, brought under the Massachusetts Equal

Rights Amendment ("ERA") and a state statute, to a rule prohibiting

boys from joining girls' sports teams. The ERA provides that

"[e]quality under the law shall not be denied or abridged because

of sex, race, color, creed or national origin." Mass. Const. pt.

1, art. 1, as amended by art. 106. The relevant statute provides:

"[n]o person shall be excluded from or discriminated against in

admission to a public school . . . or in obtaining the advantages,

privileges and courses of study of such public school on account of

race, color, sex, religion, national origin or sexual orientation."

Mass. Gen. L. ch. 76, § 5. Although both of these provisions speak

in absolute terms, the SJC did not treat them as automatically

-50- invalidating the gender-based prohibition at issue. Rather, it

subjected the "no boys on girls' teams" rule to something akin to

strict scrutiny. 393 N.E.2d at 291-93. We have already determined

that the Lynn Plan survives the strict scrutiny required by the

federal Equal Protection Clause. Therefore, it would also survive

review under Article 111, if the Article did apply in this context.

Either way, the plaintiffs' claim fails.

V. Recusal

Finally, the plaintiffs assert that the district court

judge should have recused herself from this case. Their argument

is as follows: (1) prior to her appointment to the federal bench,

Judge Gertner was a member of the Lawyers' Committee for Civil

Rights ("LCCR"), a nonprofit organization; (2) LCCR unsuccessfully

moved to intervene in this litigation on the side of the

defendants, and therefore (3) the law required that Judge Gertner

recuse herself. Judge Gertner denied the recusal motion in an

order dated March 21, 2002. We review that ruling for abuse of

discretion. Camacho v. Autoridad de Telefonos, 868 F.2d 482, 490

(1st Cir. 1989).

The controlling statute is 28 U.S.C. § 455, which sets

forth the standards for recusal. That statute provides that a

judge "shall" recuse herself "in any proceeding in which [her]

impartiality might reasonably be questioned." Id. § 455(a). A

party who suggests that recusal is appropriate must support the

-51- motion with facts that "provide what an objective, knowledgeable

member of the public would find to be a reasonable basis for

doubting the judge's impartiality." In re Boston's Children First,

244 F.3d 164, 167 (1st Cir. 2001) (quoting In re United States, 666

F.2d 690, 694 (1st Cir. 1981)). The plaintiffs have failed to make

this showing.

Every judge comes to the bench with a lifetime of

background experiences, a roster of associations, and a myriad of

views. This past history, in and of itself, is seldom sufficient

to require recusal. Brody v. President & Fellows of Harvard Coll.,

664 F.2d 10, 11 (1st Cir. 1981) (per curiam). Unless there is a

direct link that establishes a reasonable basis for doubting

impartiality, the judge should not step aside. In re United

States, 158 F.3d 26, 31 (1st Cir. 1998); cf. United States v.

Giorgi, 840 F.2d 1022, 1035 (1st Cir. 1988) (explaining that unless

a party can establish a reasonable factual basis to doubt a judge's

impartiality "by some kind of probative evidence," then the "judge

must hear a case as assigned") (internal quotation marks omitted).

These principles govern our decision here. LCCR is not

a party to this case. Even if it were, Judge Gertner's

relationship with that organization ended when she took the bench

on February 14, 1994. There is no allegation that she has

maintained ties with the LCCR. Given the eight-year interval

between the end of the judge's connection with LCCR and the recusal

-52- motion, her prior association with that organization cannot be the

basis for a reasonable attack on her impartiality. Thus, recusal

was not obligatory. See, e.g., Sierra Club v. Simkins Indus.,

Inc., 847 F.2d 1109, 1117 (4th Cir. 1988) (holding that an

association with a nonprofit organization that ended a decade

before the proceedings commenced does not form a reasonable basis

for questioning the trial judge's impartiality, even though the

nonprofit organization was a party to the litigation); cf.

Veneklase v. City of Fargo, 236 F.3d 899, 901 (8th Cir. 2000)

(finding recusal unnecessary where judge's former law firm had

represented parties tangentially involved in civil rights suit);

United States v. Story, 716 F.2d 1088, 1090 (6th Cir. 1983)

(finding recusal unnecessary where judge had represented victim in

will contest matter thirteen years earlier).

The plaintiffs' argument that our decision in Boston's

Children First dictates recusal here ignores an important

difference between the two cases. In Boston's Children First, we

ordered recusal not because of the judge's past association with

civil rights organizations, but because the judge had publicly

commented on a pending case. See 244 F.3d at 169-70. The judge's

passing comment in this case that LCCR was eligible to apply for

amicus status does not constitute a basis on which to require

recusal.

-53- The plaintiffs' claim of bias is equally unpersuasive.

The only evidence of bias they cite involves their view of the

judge's policy preferences. That perception, standing alone, does

not warrant our interference with the district judge's recusal

decision. If judges were subject to disqualification on such a

basis, our judicial system would be paralyzed. See Camacho, 868

F.2d at 491. We therefore conclude that the court did not abuse

its discretion in denying the motion for recusal.

Affirmed.

- Concurring and Dissenting Opinions Follow -

-54- BOUDIN, Chief Judge, concurring. The Lynn plan at issue

in this case is fundamentally different from almost anything that

the Supreme Court has previously addressed. It is not, like old-

fashioned racial discrimination laws, aimed at oppressing blacks,

e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954); Strauder v. West

Virginia, 100 U.S. 303 (1880); nor, like modern affirmative action,

does it seek to give one racial group an edge over another (either

to remedy past discrimination or for other purposes). E.g.,

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). By

contrast to Johnson v. California, 125 S. Ct. 1141 (2005), the plan

does not segregate persons by race. See also Loving v. Virginia,

388 U.S. 1 (1967). Nor does it involve racial quotas. E.g.,

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 273-79 (1978).

Instead, the plan uses race as an express criterion to

permit transfers where they are consistent with maintaining schools

with a racial mix of students, and to limit transfers where they

would increase racial imbalance within the school system beyond

certain predetermined limits. The plan does not purport to favor

one race over another, nor have the parties claimed that it does

so. Every child can as a matter of right attend his or her local

school. And the parties have stipulated that Lynn's schools are

educationally equal in quality; thus a child who is unable to

transfer to a non-local school of choice is not relegated to an

inferior education.

-55- Whether such a plan is desirable as a matter of social

policy is open to reasonable debate. So, too, are claims as to the

extent of educational or civic benefits derived from the plan.

But, in the absence of a constitutional violation, these choices

are customarily left to legislatures, city councils, school boards

and voters. Cf. Harris v. McRae, 448 U.S. 297, 326 (1980).

Indeed, one of the advantages of our federal regime is that

different communities try different solutions to common problems

and gravitate toward those that prove most successful or seem to

them best to suit their individual needs. See United States v.

Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring).

Some may be offended by any express use of race as a

touchstone for transfers, believing that a race-based criterion is

the wrong lesson for school boards to teach and students to absorb.

But ours is a society with a heritage of racial problems growing

out of generations of slavery and post-slavery segregation, and it

may be unrealistic to suppose that everything will work out well if

only race is ignored in every context. In any event, the Supreme

Court has upheld the use of race-conscious solutions in certain

settings.20 The question is where and how one draws the line.

If we knew how the Supreme Court would decide the case

before us, it would be right to adopt its answer in advance--

20 See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003); Fullilove v. Klutznick, 448 U.S. 448 (1980); Bakke, 438 U.S. 265; cf. Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 (1971).

-56- whatever this court's members might prefer. Cf. Wessmann v.

Gittens, 160 F.3d 790, 809-10 (1st Cir. 1998) (Boudin, J.,

concurring). But where the outcome in the Supreme Court is

uncertain and past pronouncements were made in contexts different

than the one now presented, the appellate court must exercise its

own judgment on whether the local plan is constitutionally

forbidden. There is very little to be said for mechanically

extrapolating from general phrases visibly addressed to different

issues. United States v. Jerrold Elecs. Corp., 187 F. Supp. 545,

555-56 (E.D. Pa. 1960), aff'd, 365 U.S. 567 (1961) (per curiam).

Treated as an open question, this is a difficult case.

The Supreme Court’s language disfavors racial tests and, without

flatly forbidding them, has restricted their use with particular

rubrics (compelling interest, narrow tailoring). See, e.g.,

Adarand, 515 U.S. at 227. But such rubrics depend on degree and

context; there is no yardstick that crisply determines when an

interest is compelling enough or how narrow is sufficiently so.

The way the Lynn plan uses race is certainly more benign than laws

that favor or disfavor one race, segregate by race, or create

quotas for or against a racial group.

The goal of the Lynn plan--to achieve the educational and

civic benefits of exposing youngsters to those of different races--

is not unlawful; the attack is upon the means. Yet given the goal,

it is not easy to see how it can be achieved in a community like

-57- Lynn without using race as a touchstone. The problem is that in

Lynn, as in many other cities, minorities and whites often live in

different neighborhoods. Lynn's aim is to preserve local schools

as an option without having the housing pattern of de facto

segregation projected into the school system. The choice is

between openly using race as a criterion or concealing it through

some clumsier proxy device (e.g., transfer restrictions based upon

family income).

If the plan were patently offensive to core equal

protection principles, this would be an easy case. But the Lynn

plan is far from the original evils at which the Fourteenth

Amendment was addressed. The Fourteenth Amendment sought to forbid

the oppression of one race by another. We are here working from

doctrines concerning the use of race-based criteria that are mainly

the product of twentieth-century jurisprudence. This is not a case

in which, against the background of core principles, all doubts

should be resolved against constitutionality.

Rather, we are faced with a local experiment, pursuing

plausible goals by novel means that are not squarely condemned by

past Supreme Court precedent. The problems that the Lynn plan

addresses are real, and time is more likely than court hearings to

tell us whether the solution is a good one; indeed, indications so

far are that Lynn's efforts have met with success. To bring that

success to a halt in this court seems neither advisable nor

-58- necessary. The Supreme Court has not passed upon a plan anything

like the one before us. That Court is free to extend its

precedents to the present context, but that is its role--not ours.

Cf. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).

-59- SELYA, Circuit Judge (with whom HOWARD, Circuit Judge,

joins), dissenting. While no two cases are exactly alike, the

function of the judiciary in passing upon a constitutional

challenge is to read the pertinent text of the Constitution,

examine the universe of relevant legal precedents, extract guiding

principles from that case law, and apply those principles to the

facts at hand. This case, like most cases, presents a factual

scenario that contains certain idiosyncratic elements. There is

neither a Supreme Court decision squarely addressing whether racial

diversity alone may constitute a compelling interest sufficient to

justify the government's race-conscious preferences nor one

addressing the narrow tailoring of racial classifications in

voluntary, non-competitive school transfer plans. The majority

accentuates those idiosyncracies, but chooses to overlook the

elephant in the room: the fact that this case arises against a

backdrop of Supreme Court jurisprudence, recently revisited in

Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger,

539 U.S. 244 (2003), that must guide our decision.

The majority's eagerness to justify departing from

precedent frees it to strike out on its own, fashioning a rule that

flies in the teeth of the Supreme Court's stalwart opposition to

the use of inflexible, race-determinative methods in granting or

-60- denying benefits to citizens.21 Because that departure is

inconsistent with the role that an intermediate appellate court

should play in the federal system, I respectfully dissent.

To my mind, the precedents are rather clear. The two

latest Supreme Court decisions illustrate the point. I begin by

briefly rehearsing the facts upon which those decisions turned.

Gratz involved the University of Michigan's undergraduate

admissions program. The University automatically assigned 20

points — one-fifth of the 100 points needed to guarantee admission

— to an applicant from an underrepresented racial or ethnic

minority group. Gratz, 539 U.S. at 255. This 20-point bonus

effectively made race/ethnicity determinative for minimally

qualified minority applicants. Id. at 272.

Grutter involved law school admissions. The law school

took race into account as one of several variables in an

individual's application. Grutter, 539 U.S. at 340. The school

assigned no mechanical score based on an applicant's race; instead,

it considered race only as one of several possible ways in which an

applicant could enrich the diversity of the student body. Id. at

315-16. Moreover, the school set no quotas for racial or ethnic

minorities. Id. at 335-36.

21 While such methods may be justified to remedy the effects of past discrimination, see, e.g., Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 (1971), no such justification exists in this case.

-61- The Supreme Court struck down the plan used in Gratz

while upholding the one used in Grutter. In arriving at these

decisions, the Court made it crystal clear that a race-conscious

admissions program must use race in "a flexible, non-mechanical

way" if it is to be considered narrowly tailored (and, thus, if it

is to pass constitutional muster). Id. at 334. Such a plan cannot

institutionalize a quota system or in any way insulate one category

of applicants from another solely on account of race. See id.;

Gratz, 539 U.S. at 258, 270-72. Race can, however, be used as a

plus factor in the course of individualized consideration of each

applicant. Grutter, 539 U.S. at 334.

The majority, emphasizing that context matters, simply

writes this requirement out of the narrow-tailoring analysis.

That, to me, requires more than a soupcon of legal legerdemain.

While I agree that context matters, the Supreme Court has

catalogued a compendium of dangers flowing from the mechanical,

inflexible, and exclusive use of race as a determinant. For one

thing, such an approach insulates the preferred category of

applicants from competition with other applicants. Grutter, 539

U.S. at 334. For another thing, such an approach feeds the

stereotype that students from the preferred group lack academic

merit and, thus, raises the specter of stigmatic harm. See Regents

of Univ. of Cal. v. Bakke, 438 U.S. 265, 298 (1978) (opinion of

Powell, J.) (stating that "preferential programs may only reinforce

-62- common stereotypes holding that certain groups are unable to

achieve success without special protection").

The majority argues that these dangers are less ominous

in a setting, like this one, that neither skews a competitive

process nor substitutes race as a proxy for academic merit. But

competitive disadvantage and the substitution of race for academic

merit are not the only reasons behind the Supreme Court's

understandable disdain for quotas and other inflexible uses of

racial determinants. Regardless of the burden imposed by a racial

preference, the simple act of granting benefits based on a quota or

other mechanical use of race will breed cross-racial tension. See

Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality

op.). Moreover, when government indulges in the automatic and

unflinching use of race in the bestowal of any benefit, that usage

counteracts the ultimate goal of relegating racial distinctions to

irrelevance. Id. at 495. As the Court reminded us earlier this

year, the mechanical use of racial classifications inflicts

stigmatic harm wherever and whenever it occurs — a consequence that

is by no means limited to contexts that involve schools, students,

or academic merit. See Johnson v. California, 125 S. Ct. 1141,

1147 (2005) (explaining in a prison context that "racial

classifications threaten to stigmatize individuals by reason of

their membership in a racial group" and "perpetuate the notion that

race matters most").

-63- Nothing in either Grutter or Gratz (or in any other case,

for that matter) dispels the notion that mechanical, race-based

programs work this harm — and, indeed, the Lynn Plan inflicts it

upon a number of students seeking to benefit from a program that

Lynn knows is appealing without regard to racial reasons. To

illustrate, consider that the Plan can succeed only if the

opportunity to transfer to a distant school is attractive to

parents. It is conceivable that some parents would transfer a

child out of a desire to have the child learn in a more integrated

environment. But the Lynn Plan actively creates and exploits other

methods of benign coercion in search of its goal. For instance,

Lynn admits that a major function of its "theme" schools is to

entice parents to transfer their children. Another method is

selling convenience to parents. School officials are aware that

some of schools are located near after-school programs or near

high-employment areas. Every student, of every race, in every

school zone, has some potential benefit — yet the school

committee's policy evaluates whether students may take part in the

transfer program based solely on the color of a student's skin.

Only after experiencing a racially based rejection can an affected

student plead for relief from the stated policy.

In one sense, then, this plan is even more harmful than

the racially inflexible program struck down in Gratz. There,

prospective non-minority students could be admitted by the terms of

-64- the policy itself and thus those who were rejected could look to

something other than race as a reason for their failure.

The majority writes off these concerns, stating that

Lynn's goal is increased racial harmony for the student body as a

whole. But the end cannot be allowed to justify the use of

unconstitutional means; even laudable goals must be attained in

constitutional ways. The Lynn Plan's inflexible use of race

offends this principle.

Moreover, the majority's attempted justification misses

a crucial point. The Fourteenth Amendment protects individuals,

not groups. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227

(1995). There is a harm inflicted on a student when her government

denies her transfer for the sole or determinative reason of race —

an immutable condition that she cannot change. That harm cannot be

ignored simply because it serves what others (be they school

committee members or my distinguished colleagues) perceive as a

greater good. Cf. Grutter, U.S. at 341 (holding that narrow

tailoring requires program to not unduly harm members of any racial

group).

If more were needed — and I doubt that it is — the

mechanical use of race is not necessary to meet the compelling

interests that Lynn asserts here. A flexible, race-conscious

transfer program, creating a strong but non-determinative "plus"

factor for integrative transfers but permitting other transfers

-65- based on the strength of individual requests, would serve to

increase diversity and avoid the harm arising from an unflinching

use of race. The children rejected for transfer under such a plan

would not be rejected solely because of the color of their skin but

because the reasons supporting their transfer requests were

comparatively insubstantial. That kind of harm is not

constitutionally suspect.

Lynn hardly can be heard to complain that such a plan is

unworkable. By its own admission, it already allows more than half

of the students denied transfers under its race-based policy to

have an exemption for non-race-related reasons. These transfers

have not undermined the benefits of diversity in the school

community. The city persists, however, in subjecting all the

students who request transfers to what is in effect a two-tier

process — one in which the student is evaluated solely on the basis

of color and a second in which a rejected student must convince the

school that his or her color should not matter.

Many good things can be said about the Lynn Plan. I do

not doubt that it is well-intentioned and that it has helped to

promote greater diversity in the public schools. But the

overriding fact is that it unnecessarily inflicts racially based

wounds on a large and diverse group of its students and,

consequently, fails to satisfy the narrow-tailoring requirement set

out in the Supreme Court's equal protection jurisprudence. Because

-66- that is so, I must respectfully dissent from what I view to be an

erroneous decision.

-67-