996 F.Supp. 120 (D.Mass. 1998), Civ. 97-11923, Wessmann by Wessmann v. Boston School Committee

Docket Nº:CIV. 97-11923-JLT.
Citation:996 F.Supp. 120
Party Name:Sarah P. WESSMANN, a minor child by her parent, Henry Robert WESSMANN, Plaintiff, v. BOSTON SCHOOL COMMITTEE, Felix D. Arroyo, Robert P. Gittens, Alfreda J. Harris, Edwin Melendez, Susan Naimark, Elizabeth Reilinger, William Spring, Thomas Payzant, and Catherine A. Ellison, Defendants.
Case Date:May 28, 1998
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 120

996 F.Supp. 120 (D.Mass. 1998)

Sarah P. WESSMANN, a minor child by her parent, Henry Robert WESSMANN, Plaintiff,

v.

BOSTON SCHOOL COMMITTEE, Felix D. Arroyo, Robert P. Gittens, Alfreda J. Harris, Edwin Melendez, Susan Naimark, Elizabeth Reilinger, William Spring, Thomas Payzant, and Catherine A. Ellison, Defendants.

No. CIV. 97-11923-JLT.

United States District Court, D. Massachusetts.

May 28, 1998

Page 121

Michael C. McLaughlin, Boston, MA, for Plaintiff.

Frances S. Cohen, Janet A. Viggiani, Andres W. Lopez, Hill & Barlow, Boston, MA, Merita A. Hopkins, City of Boston Law Dept., Boston, MA, Diane Dilanni, Boston School Dept., Legal Advisor, Boston, MA, for Defendants.

MEMORANDUM

TAURO, Chief Judge.

Plaintiff brings this lawsuit challenging the constitutionality of the policy, adopted by the Boston School Committee, that governs admission to Boston's three examination schools (the "Policy"): the Boston Latin School ("Boston Latin"), the Boston Latin Academy ("Latin Academy"), and the John D. O'Bryant School of Mathematics and Science ("O'Bryant"). The Policy admits half of each class solely on the basis of "composite score" ranking. The second half of the class is also admitted on the basis of composite score ranking, but in conjunction with "flexible racial/ethnic guidelines."

The plaintiff, Sarah Wessmann, alleges that, but for the application of the Policy, she would have been admitted to the ninth grade at Boston Latin. She asserts that she was denied admission due to her race and that defendants' policies and procedures violate the Fifth and Fourteenth Amendments to the United States Constitution.

After a hearing, this Court denied the plaintiff's request for a preliminary injunction that would have required her admission to Boston Latin, pending the resolution of this case on the merits. Following extensive discovery, a thirteen-day trial was commenced on January 28, 1998. The case was taken under advisement following the submission of post-trial briefs.

I.

THE PARTIES

The plaintiff, Sarah P. Wessmann, is a white ninth-grade student now attending Latin Academy. Her father, Henry Robert Wessmann, brings this suit on her behalf.

Sarah attended the Advent School, a small private school on Brimmer Street in Beacon Hill, through the sixth grade. While there, Sarah took a test preparation course for the Independent School Entrance Examination (the "ISEE") and applied to Boston Latin and Latin Academy. She was denied admission to Boston Latin's seventh-grade class, but she did enroll at Latin Academy, her second choice.

In the fall of 1996, Sarah applied for admission to Boston Latin's ninth-grade class for the 1997-98 school year. She was not admitted and continues to attend Latin Academy. It was this later denial of admission that prompted this law suit.

The defendants Felix D. Arroyo, Robert O. Gittens, Alfreda J. Harris, Edwin Melendez, Susan Naimark, Elizabeth Reilinger, and William Spring are members of the Boston School Committee. On December 18, 1996, Defendant Arroyo, Gittens, Harris, Melendez, Reilinger, and Spring each voted for the adoption of the Policy. The defendant Susan Naimark was not a member of the Boston School Committee when the Policy was adopted. The defendant Thomas W. Payzant has been the Superintendent of the Boston Public Schools since October of 1995. The defendant Catherine A. Ellison is the Senior Officer of the Department of Implementation.

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II.

PRIOR LITIGATION

This case is the latest chapter in a longer history of prior litigation. 1 The seminal Morgan case was decided in 1974. Morgan I, 379 F.Supp. at 410. In that case, Judge Garrity concluded that the Boston School Committee had segregated the Boston Public Schools, including the examination schools, "with the purpose or intent to" do so. Id. at 480. Judge Garrity then assumed oversight of the Boston Public Schools. Among the issues that Judge Garrity addressed in Morgan I was black enrollment in the examination schools, which was:

Id. at 466.

In examining the then-existing admissions policies for the examination schools, Judge Garrity noted that students from schools with high percentages of whites performed "two to three times greater [on the admissions examination] than students from schools with high percentages of blacks." Id. at 467. The First Circuit later observed that the Boston School Committee was aware "that whites were much more successful than blacks on the entrance examinations, yet they made no effort to reconsider the appropriateness of the examinations." Morgan v. Kerrigan, 509 F.2d 580, 594 (1st Cir. 1974).

With these observations in mind, Judge Garrity held that the Boston School Committee had an " 'affirmative obligation' to reverse the consequences of their unconstitutional conduct" and to "eliminate all vestiges of the dual system." Morgan I, 379 F.Supp. at 482. In determining what remedy would be effective, Judge Garrity observed that "ideally every school in the system would have the same racial proportions [as the city as a whole]." Id. at 483. The First Circuit affirmed Judge Garrity's conclusions, noting that "[t]he broad scope of the court's remedial program was necessary to transform" Boston's segregated system "into 'a unitary system in which racial discrimination would be eliminated root and branch.' " Morgan III, 831 F.2d at 316.

Judge Garrity fashioned a desegregation plan for the examination schools, providing that "[a]t least 35% of each of the entering classes at Boston Latin School, Boston Latin Academy and Boston Technical High in September 1975 shall be composed of black and Hispanic students." Morgan II, 401 F.Supp. at 258. In establishing this 35% set-aside, Judge Garrity noted that, in conjunction with Asian enrollment of between 6% and 8%, "the anticipated enrollment in the entering class at the examination schools will be similar regarding racial and ethnic composition to that at other citywide high schools." Id. at 244. In affirming Judge Garrity's remedial order, the First Circuit observed that the set-aside was a "basic tool in remedying constitutional violations." Morgan v. Kerrigan, 530 F.2d at 424 n. 35 (citations omitted).

In 1987, after more than sixteen years of his oversight, the First Circuit directed Judge Garrity to return control over the student assignment process to the Boston School Committee "in recognition that the 'local autonomy of school districts is a vital national tradition.' " Morgan III, 831 F.2d at 318 (quoting Dayton Board of Education v. Brinkman, 433 U.S. 406, 410, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977)). But, the First Circuit also made clear that " 'unitariness' (i.e., complete desegregation) in all aspects of

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the Boston schools has not yet been achieved. For example, we point out [that] ... the school system has yet to attain targeted goals in minority faculty hiring." Id. In returning control over student assignment to the Boston School Committee, the First Circuit stated, "We have no reason to question the good faith of the present Boston School officials ... or to doubt that the return to local autonomy will do anything but preserve the gains the schools have made over the past 15 years." Id. at 326 n. 19.

On July 19, 1994, Judge Garrity issued a "Final Judgment As Amended" in the Morgan litigation, which enjoined the defendants in four areas. Final Judgement as Amended, Morgan II, 401 F.Supp. 216 (D.Massachusetts1975) (unpublished order) (hereinafter "Order"). First, it required them "to complete implementation of [the] Unified Facilities Plan." Order, at p. 2. Second, it required the defendants to maintain the Department of Implementation substantially in the way that it had been established by the court. Order, at p. 2-3. Third, it required the defendants to achieve and maintain a desegregated faculty and administrative staff. Order, at p. 3-5. Fourth, Judge Garrity "permanently enjoined" the defendants "from discriminating on the basis of race in the operation of the public schools of the City of Boston and from creating, promoting or maintaining racial segregation in any school or other facility in the Boston public school system." Order, at p. 5.

The next significant chapter in the Boston school saga came in August of 1995 when Julia McLaughlin, then a seventh-grade white student, filed suit against the Boston School Committee, alleging that, as a result of the 35% set-aside for black and Hispanic students, she had been unconstitutionally denied admission to Boston Latin. McLaughlin, 938 F.Supp. at 1001. Judge Garrity initially denied a motion for a preliminary injunction, which sought to admit Julia to Boston Latin for the 1995-96 school year, id. at 1003, but, on August 22, 1996, he granted the injunction, admitting Julia for the 1996-97 year. 2 Id. at 1018.

On December 10, 1996, in light of the Boston School Committee's decisions to permit Julia to remain at Boston Latin and to adopt a new admissions policy that would eliminate the 35% set-aside, Judge Garrity dismissed the McLaughlin case as moot. McLaughlin v. Boston School Committee, 952 F.Supp. 33, 35 (D.Massachusetts1996).

III.

DEVELOPMENT OF THE POLICY

Mindful of Judge Garrity's injunction, the Boston School Committee made the task of developing a new admissions policy for Boston's examination schools a front-burner issue. For several months, extensive analysis and deliberation were undertaken, including: (1) an internal study directed by Superintendent Payzant; (2) the appointment of a Task Force and the issuance of its report following meetings and public hearings; (3) review and discussion by Boston School Committee members at public meetings; and (4) the recommendation of the Superintendent.

A. The Internal Study

Sparked by the request of Superintendent Payzant, the Boston School Department reviewed admissions policy alternatives. They were assisted by Bain & Company,...

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4 practice notes
  • PICS, Grutter, and elite public secondary education: using race as a means in selective admissions.
    • United States
    • Washington University Law Review Vol. 87 Nbr. 3, May 2010
    • 1 Mayo 2010
    ...challenge to Boston Latin's admission policy as an "offshoot" of the Morgan class action); Wessmann v. Boston Sch. Comm., 996 F. Supp. 120, 122 (D. Mass. 1998) (describing the suit as "the latest chapter in a longer history of prior litigation" with the 1974 Morgan case ......
  • 19 F.Supp.2d 449 (D.Md. 1998), Civ.A. AW 98-2797, Eisenberg v. Montgomery County Public Schools
    • United States
    • Federal Cases United States District Courts 4th Circuit District of Maryland
    • 4 Septiembre 1998
    ...as citizens, and in the preservation of the values on which our society rests." Wessmann by Wessman v. Boston School Committee, 996 F.Supp. 120, 128 (D.Mass.1998) (quotation While Eisenberg points out that Justice Powell did not enjoy the support of any other Justice with respect to hi......
  • 160 F.3d 790 (1st Cir. 1998), 98-1657, Wessmann v. Gittens
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • 19 Noviembre 1998
    ...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 incomi......
  • 32 F.Supp.2d 619 (W.D.N.Y. 1999), 98-CV-6393, Brewer v. West Irondequoit Central School Dist.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Western District of New York
    • 14 Enero 1999
    ...in adopting a policy that seeks to attain the educational benefits of diversity for its students." Wessmann v. Boston Sch. Comm., 996 F.Supp. 120, 128 (D.Mass.1998). On appeal, the First Circuit stated that in the absence of a clear signal from the Supreme Court that Justice Powell's d......
3 cases
  • 19 F.Supp.2d 449 (D.Md. 1998), Civ.A. AW 98-2797, Eisenberg v. Montgomery County Public Schools
    • United States
    • Federal Cases United States District Courts 4th Circuit District of Maryland
    • 4 Septiembre 1998
    ...as citizens, and in the preservation of the values on which our society rests." Wessmann by Wessman v. Boston School Committee, 996 F.Supp. 120, 128 (D.Mass.1998) (quotation While Eisenberg points out that Justice Powell did not enjoy the support of any other Justice with respect to hi......
  • 160 F.3d 790 (1st Cir. 1998), 98-1657, Wessmann v. Gittens
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • 19 Noviembre 1998
    ...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 incomi......
  • 32 F.Supp.2d 619 (W.D.N.Y. 1999), 98-CV-6393, Brewer v. West Irondequoit Central School Dist.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Western District of New York
    • 14 Enero 1999
    ...in adopting a policy that seeks to attain the educational benefits of diversity for its students." Wessmann v. Boston Sch. Comm., 996 F.Supp. 120, 128 (D.Mass.1998). On appeal, the First Circuit stated that in the absence of a clear signal from the Supreme Court that Justice Powell's d......
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