160 F.3d 790 (1st Cir. 1998), 98-1657, Wessmann v. Gittens

Docket Nº:98-1657.
Citation:160 F.3d 790
Party Name:Sarah P. WESSMANN, p.p.a. Henry Robert Wessmann, Plaintiff, Appellant, v. Robert P. GITTENS, Chairperson of the Boston School Committee, et al., Defendants, Appellees.
Case Date:November 19, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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160 F.3d 790 (1st Cir. 1998)

Sarah P. WESSMANN, p.p.a. Henry Robert Wessmann, Plaintiff, Appellant,


Robert P. GITTENS, Chairperson of the Boston School

Committee, et al., Defendants, Appellees.

No. 98-1657.

United States Court of Appeals, First Circuit

November 19, 1998

Heard July 30, 1998.

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Michael C. McLaughlin for appellant.

Chester Darling on brief for Citizens for the Preservation of Constitutional Rights, amicus curiae.

Frances S. Cohen, with whom Janet A. Viggiani, Hill & Barlow, Merita Hopkins, Corporation Counsel of the City of Boston, and Diane DiIanni, Special Assistant Corporation Counsel (Boston School Committee), were on brief, for appellees.

Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, and Kimberly West-Faulcon, NAACP Legal Defense and Educational Fund, Ozell Hudson, Jr., Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association, E. Macey Russell, Peabody & Arnold, Jonathan M. Albano, Denise J. Casper and Bingham Dana LLP on brief for Boston Branch, NAACP, and various individuals, amici curiae.

Before SELYA, BOUDIN and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

The City of Boston operates three renowned "examination schools," the most prestigious of which is Boston Latin School (BLS). The entrance points for admission to BLS occur principally at the seventh- and ninth-grade levels. In this litigation, plaintiff-appellant Henry Robert Wessmann, on

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behalf of his minor child, Sarah P. Wessmann, challenges the constitutionality of BLS's admissions policy (the Policy). The district court rebuffed Wessmann's challenge. See Wessmann v. Boston Sch. Comm., 996 F.Supp. 120 (D.Mass.1998). On appeal, we must decide whether the Policy, which makes race a determining factor in the admission of a subset of each year's incoming classes, offends the Constitution's guarantee of equal protection. We conclude that it does.


We essay a brief historical reconnaissance to set the present dispute in perspective.

Over two decades ago, a federal district court adjudged the City of Boston (through its School Committee) to have violated the constitutional rights of African-American children by promoting and maintaining a dual public school system. See Morgan v. Hennigan, 379 F.Supp. 410, 480-81 (D.Mass.1974) (Morgan I ). Although the court found the school system as a whole guilty of de jure segregation, no specific evidence was produced to suggest that BLS's examination-based admissions policy discriminated against anyone or that those responsible for running BLS intended to segregate the races. See id. at 467-68. Nonetheless, BLS exhibited some of the symptoms of segregation: an anomalously low number of African-American students attended the school, see id. at 466 (tabulating statistics for examination schools), and the school had just changed its entrance testing methods pursuant to a consent decree settling charges that the earlier methods were themselves discriminatory, see id. at 467-68. These factors, combined with the City's inability to demonstrate that existing racial imbalances were not a result of discrimination, led the court to conclude that the City's examination schools (BLS included) were complicit in promoting and maintaining the dual system. See id. The presumption established by the Supreme Court in Keyes v. School Dist. No. 1, 413 U.S. 189, 210, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), to the effect that a finding of intentional segregation in a "meaningful portion" of a school system suggests that other segregated schooling in the system is not accidental, played a pivotal role both in the district court's holding and in our ensuing affirmance. See Morgan v. Kerrigan, 509 F.2d 580, 594 (1st Cir.1974) (affirming Morgan I, 379 F.Supp. at 467).

The remedy adopted by the district court, among other things, obligated BLS to ensure that at least 35% of each entering class would be composed of African-American and Hispanic students. See Morgan v. Kerrigan, 401 F.Supp. 216, 258 (D.Mass.1975). Relying on the Keyes presumption, we affirmed this set-aside as part of a comprehensive plan to ameliorate pervasive and persistent constitutional infirmities throughout the Boston public schools. See Morgan v. Kerrigan, 530 F.2d 401, 425 (1st Cir.1976).

The Boston school system began gradually to mend its ways. By 1987, systemic progress permitted us to conclude that, for all practical purposes, the School Committee had achieved unitariness in the area of student assignments. See Morgan v. Nucci, 831 F.2d 313, 326 (1st Cir.1987). We based our conclusion not only on the distribution of students throughout the City's schools, but also on the good faith demonstrated by school administrators in conforming with the demands of meaningful change. See id. at 319-26. Because comparable improvement had not been accomplished in other areas, such as faculty and staff integration and the renovation of facilities, we instructed that federal court supervision of elements other than student assignment continue. See id. at 327-32. The district court thereupon relinquished control over student assignments, even while retaining active supervision over other aspects of the school system.

After 1987, the City's three examination schools--BLS, Boston Latin Academy, and the O'Bryant School--were no longer under a federal court mandate to maintain a 35% set-aside. Nevertheless, the School Committee remained committed to the policy until 1995, when a disappointed applicant challenged the setaside's constitutionality. The district court granted injunctive relief directing the complainant's admission to BLS. See McLaughlin v. Boston Sch. Comm., 938 F.Supp. 1001, 1018 (D.Mass.1996). The

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School Committee then discontinued the 35% set-aside.

Concerned that the number of African-American and Hispanic students admitted to the examination schools might drop precipitously without a predetermined set-aside, school officials began researching alternative admissions policies in hopes of finding one that might prevent that result without offending the Constitution. The effort started in mid-1996 under the hegemony of Thomas Payzant, superintendent of the Boston public schools. Payzant commissioned Bain & Co. (Bain), a consulting firm, to review an array of admissions options ranging from lotteries to strict merit-selection plans and to report on how each option might affect the racial and ethnic composition of the examination schools' entering classes.

After Payzant informed the School Committee of Bain's preliminary findings, Robert P. Gittens, the School Committee chairman, appointed a task force to study the matter. The task force held meetings, hosted public hearings, and ultimately recommended the adoption of Bain's "Option N50." Bain's study showed that a major difference between Option N50 and some other possible alternatives (such as a strict merit-selection option) was that the former would minimize the diminution of black and Hispanic student admissions expected to result from abandonment of the 35% set-aside. Three members dissented from this recommendation. The School Committee nonetheless accepted Option N50, effective for the 1997-98 school year. Option N50 thereupon became the core of the Policy.

We recount the Policy's most salient features, leaving aside complexities not relevant to the case at hand. To gain admission to one of Boston's three examination schools, a student must take a standardized test. Based on a mathematical formula that purports to predict academic performance, school hierarchs combine each applicant's test score with his or her grade point average, derive a composite score, rank all applicants accordingly, and proceed to assign individuals to the applicant pool for the examination school(s) in which they have indicated an interest. To be eligible for admission to any of the examination schools, an applicant must be in the qualified applicant pool (QAP), a group composed of those who rank in the top 50% of the overall applicant pool for that particular school.

Half of the available seats for an examination school's entering class are allocated in strict accordance with composite score rank order. The other half are allocated on the basis of "flexible racial/ethnic guidelines" promulgated as part of the Policy. To apply these guidelines, school officials first determine the relative proportions of five different racial/ethnic categories--white, black, Hispanic, Asian, and Native American--in the remaining pool of qualified applicants (RQAP), that is, the QAP for the particular school minus those persons already admitted on the basis of composite score rank order alone. They then fill the open seats in rank order, but the number of students taken from each racial/ethnic category must match the proportion of that category in the RQAP. Because the racial/ethnic distribution of the second group of successful applicants must mirror that of the RQAP, a member of a designated racial/ethnic group may be passed over in favor of a lower-ranking applicant from another group if the seats allotted for the former's racial/ethnic group have been filled.

Sarah Wessmann encountered such a fate. BLS had 90 available seats for the 1997 ninth-grade entering class. Based on her composite score, Sarah ranked 91st (out of 705) in the QAP. To fill the first 45 seats, the school exhausted the top 47 persons on the list (two aspirants declined in order to accept invitations from another examination school). Had composite scores alone dictated the selection of the remainder of the ninth-grade entering class, Sarah would have been admitted. But the racial/ethnic composition of the RQAP was 27.83% black, 40.41% white, 19.21% Asian, 11.64% Hispanic, and 0.31% Native American. Consequently, the Policy required school officials to allocate the final 45 seats to 13 blacks, 18 whites, 9 Asians, and 5...

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