McLAUGHLIN BY McLAUGHLIN v. Boston School Committee

• Decision Date: 22 August 1996
• Docket Number: Civil Action No. 95-11803-WAG.
• Citation: 938 F. Supp. 1001
• Parties: Julia A. McLAUGHLIN, by Catherine McLAUGHLIN, Plaintiff, v. BOSTON SCHOOL COMMITTEE, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

938 F. Supp. 1001

Julia A. McLAUGHLIN, by Catherine McLAUGHLIN, Plaintiff, v. BOSTON SCHOOL COMMITTEE, et al., Defendants.

Civil Action No. 95-11803-WAG.

United States District Court, D. Massachusetts.

August 22, 1996.

COPYRIGHT MATERIAL OMITTED

Mark A. White, O'Brien, Partlow & White, P.C., Boston, MA, Michael C. McLaughlin, Law Offices of Michael C. McLaughlin, Boston, MA, R. Keith Partlow, O'Brien, Partlow & White, P.C., 50 Congress Street, Boston, MA, for Julia A. McLaughlin.

Henry C. Dinger, John H. Branson, Goodwin, Proctor & Hoar, Boston, MA, for Boston School Committee, Felix D. Arroyo.

MEMORANDUM AND ORDER FOR PRELIMINARY INJUNCTION

GARRITY, District Judge.

In this case, plaintiff presents an individual equal protection claim challenging an offshoot of a class action, also based upon the Fourteenth Amendment, Morgan v. Kerrigan, 509 F.2d 580 (1st Cir.1974) cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975), in which a remedial order entered in 1976 set aside for black and Hispanic students 35% of the seats available at three Boston public schools to which admission is based on a combination of entrance examination scores and sixth grade marks. In 1989, two years after termination of the Court's jurisdiction in the area of student assignments, the defendant Boston School Committee ("BSC") voted to continue the set aside, thereby converting it into a voluntary affirmative action program in favor of the black and Hispanic plaintiff classes in the Morgan litigation. Plaintiff claims that the voluntary continuation of the Court order by the BSC resulted in her being denied admission to Boston Latin School ("BLS") in 1995, in violation of her constitutional rights.

Last August, soon after the case was filed, the Court denied plaintiff's motion for a preliminary injunction enjoining defendants¹ from denying her admission as a seventh grader. Now before the Court is a renewal of her motion for a preliminary injunction asking that the defendants be enjoined from denying her admission to BLS as an eighth grader.

FACTUAL BACKGROUND

To enhance understanding of the parties' contentions and the Court's findings, we allude preliminarily to the uniqueness of BLS, the nature and derivation of the set aside at issue, and certain demographic features of the school system of which BLS is a part. In a few instances, we rely on undisputed evidence presented in the Morgan litigation over which we presided in the District Court for more than 20 years.

BLS is often referred to generally as one of Boston's high schools. It is much more than that. It is a six-year college preparatory school whose graduates compete with those of nationally-known prep schools such as Exeter, Choate, and Lawrenceville for acceptance at the most prestigious colleges in the country. Established in 1635, it is the oldest public school in the United States, and its graduates include Cotton Mather, Samuel Adams, Charles Sumner and John Hancock. Nowadays, applications for admission always far exceed its 2,415 assignable seat capacity, and several elementary school programs are designed expressly to help pupils excel on the entrance examination.² BLS is also distinguished by an official alumni association, established by an act of the Massachusetts legislature 150 years ago, which supports the school and its students in many ways, and joins its faculty and student body in jealously guarding its reputation as the best public secondary school in the City of Boston; its motion for leave to appear as amicus curiae in this case was allowed without opposition last August.

A functional description of the school appears in an affidavit submitted by Michael G. Contompasis, an alumnus, who has been BLS's Headmaster for over 20 years and who previously taught there. In it, he attests that black and Hispanic students who would not have been accepted but for the 35% set aside generally succeed. He continues:

Boston Latin School may be an elite school, but it is also a public school. In my view, it exists not simply to provide a high quality education to many of the most academically talented children in the city, but also to instill in the future leaders of the city those values and attitudes that are essential to the maintenance of a civil and democratic society.

The physical plant and equipment at BLS are among the finest in the city, due to a complete renovation of the facility five years ago at a cost of $20,000,000. Because the project was represented to the State Board of Education by the BSC as one intended to reduce or eliminate racial imbalance and was tied to funding of the long-range Unified Facilities Plan ("UFP"), a segment of the Court's remedial orders in the desegregation case, 90% of the cost was paid by the State. But for the initiative and support of the black and Hispanic plaintiff classes in the Morgan litigation, necessary state funding would not have been available, and BLS would not be what it is today.

Until last year, plaintiff attended St. Mary of the Hills School in Milton, where she achieved a grade-point average of A - for the first two sixth grade marking periods. In November 1994, she took the ISEE, the results of which, in combination with her sixth-grade average, determined her eligibility for admission to one of Boston's three examination schools: BLS, Boston Latin Academy, and John D. O'Bryant School of Mathematics and Science. Plaintiff's first choice was BLS, which two older sisters had previously attended and which had 440 slots available for incoming seventh-grade students. Her ISEE test scores, combined with her sixth-grade point average, gave plaintiff a ranking of 479 among students seeking an examination school assignment.³ Because of the set aside no student with a ranking below 350 who was not black or Hispanic received an invitation to BLS. Accordingly, plaintiff was not extended an invitation to BLS.

Upon denial of her motion for a preliminary injunction a year ago, plaintiff was assigned to Boston Latin Academy, which was her second choice and where she recently completed the seventh grade. With the strong support of her parents and in the spirit of the times, she has, by her complaint in this case, challenged the status quo as violative of her constitutional rights.

The set aside originated in the remedial orders entered by the Court in 1975, Morgan v. Kerrigan, 401 F.Supp. 216 (D.Mass. 1975), and was explained in an accompanying memorandum of decision, id. at 242-45. It applied only to the 1975-76 school year, more as principle than a mechanism, until experience and additional data should warrant modifications. The original order was affirmed by the Court of Appeals in its omnibus ruling on the school desegregation plan. Morgan v. Kerrigan, 530 F.2d 401, 423-25 (1st Cir.1976). There, the appellate court discussed whether the set aside was "an impermissible racial quota" and rejected a contention by the Boston Home and School Association "that a racial preference for admission is unconstitutional discrimination on the basis of race," stating: "Whatever the constitutionality of racial preferences in the absence of past unlawful discrimination, they are a basic tool in remedying constitutional violations." Id. at 424 n. 35.

Four months later, in paragraph (2) on page 18 of unreported orders dated May 3, 1976, the Court issued a new formula for admission to the examination schools, including the 50th percentile cut-off point for accepting applications. The accompanying memorandum, at 11-15, left no doubt regarding the preferential nature of the set aside, which runs only one way, in favor of blacks and Hispanics. There is no corresponding guarantee for white students.⁴ For example, the memorandum stated: "If more than 35% black and hispanic students rank higher than competing white and other-minority students, they shall of course be admitted, i.e., the goal of 35% is not a ceiling." With minor changes, this formula is still in use. Since September 28, 1987, however, its use has been voluntary by BSC rather than pursuant to court order inasmuch as Morgan v. Nucci, 831 F.2d 313, 326 (1st Cir.1987), vacated all outstanding court orders in the area of student assignments.

Because the parties draw conflicting conclusions from the Nucci decision, which may have some relevance to the pending motion, we describe its scope and pertinent content. It decided four⁵ consolidated appeals, three from District Court orders entered on September 3, 1985 regarding student assignments generally, faculty desegregation, and facilities renovation and construction; and one from an unpublished order entered on May 24, 1985 regarding certain specific student assignments. Nucci vacated the injunctive orders addressing the student assignment process on three grounds: (a) the BSC's proven commitment to eliminating racial discrimination; (b) its success in dismantling virtually all the one-race schools the system had once maintained;⁶ and (c) its apparently desegregating the schools as much as possible given the realities of modern urban life. No issues having been framed or arguments submitted⁷ with respect to the examination schools, the First Circuit's opinion did not mention them except in a passing reference to the impact of their enrollments on the racial ethnic composition of some district middle schools. This relationship between enrollments at the examination and middle schools had been argued below in connection with the unpublished May 24, 1985 order, whose accompanying memorandum rejected a claim by the plaintiff classes that the 35% set aside should be raised to a higher percentage, viz., to the combined percentage of black and Hispanic students at other citywide schools. The memorandum stated:

However, the major factor in the under-representation of black and Hispanic students appears to be the inadequate preparation of Boston public school students for admission to the Latins in comparison to

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