We have been tracking the litigation over the Boston Public Schools plan to reduce Asian enrollment at academically-elite public schools through the subterfuge of including a zip code component displacing the prior heavy emphasis on standardized testing and grades.Our initial post described the nature of the claims, Boston Parents Sue Alleging Discrimination Against Asians and Whites In Change of Prestigious Public School Admissions. The plan worked, As Predicted, Boston “Zip Code Quota Plan” For Elite Public Schools Reduced Asian and White Admissions, Raised Black and Latino.Judge William Young initially dismissed the case, finding that the use of zip codes was race-neutral. That ruling was upended when leaked school committee text messages showed anti-Asian and anti-White bias:
The last we checked in on July 9, 2021, Judge Young ruled that he was withdrawing the Opinion, and would receive briefing as to what he still had jurisdiction to do now that that case was on appeal. He also wanted briefing on whether lawyers for the school committee improperly concealed and redacted the text messages, or at least had knowledge it was done, Judge Withdraws Opinion Dismissing Boston Zip Code Quota Plan Case – “I’ve Been Misled” By Concealment of Anti-White Text Messages.I checked the PACER electronic docket almost weekly, since there’s no way that I know of for someone who has not entered an appearance to receive electronic notice of court action. Then I fell a little bit asleep at the wheel, and multiple weeks went by without checking in.And of course, that’s when the court rendered its decision on October 1, 2021. I found out about it a week or so ago, but finally found the bandwidth to write about it. So, I’m late to this.The decision is called an “indicative” ruling because the case, and jurisdiction, are in the Court of Appeals. It is a recognized appellate procedure for the trial court, when something substantial happens while the case is on appeal, to “indicate” how it would rule. And so that’s what Judge Young did.The substance of the decision is very similar to the prior ruling that the zip code plan is racially neutral and that the parents have not proven their claims.
The law here has been and remains clear: where the governmental action is facially race neutral and uniformly applied, “good faith [is] presumed in the absence of a showing to the contrary” that the action has a disparate impact, the spawn of an invidious discriminatory purpose….Now, having lost unequivocally on the theory it advanced at trial, but armed with the serendipitous revelation that the School Committee improperly responded to prior, independent public records requests, the Coalition advances a new theory under the guise of Rule 60(b). The Coalition argues that it is entitled to relief from judgment under Rule 60(b) because (1) new evidence has come to light that the Coalition could not have discovered with reasonable diligence, and (2) the School Committee’s fraud, misrepresentation, or misconduct substantially interfered with the Coalition’s ability to prepare for trial….
The Judge went on to hold that the parents’ lawyers were not diligent, and should have done more discovery to prove their case. The court also held that the concealment of the text messages was not enough, because that happened during a public records process, not during the court discovery process:
First, it is simply inapposite to conflate shoddy handling of public records requests with conduct during adversarial litigation. What happened here is a world apart from the responsibilities and duties owed during the judicially imposed discovery process. The controlling precedent cited above involves misconduct during judicially imposed discovery.
Also, the court found sloppiness due to the stress of litigation, not an intent to deceive the court:
Second, while it is true that trial counsel were less diligent than one would have expected in reviewing and producing the client School Committee’s own records, this was not fraud but inadvertence stemming from the burden of operating at flank speed to prepare for what it very much wanted to be a timely, dispositive hearing18 — as events so proved. While this Court will not excuse or reward such lack of diligence, on the totality of this record it is not an occasion for Rule 60(b) relief.Finally, the Coalition here elected to forgo pressing for discovery NOT because it felt as though it had turned over every evidentiary rock but because, given its erroneous view of the law, it saw no need to overturn any more rocks than it already had examined….Against this backdrop, the Coalition fails to satisfy the second and fourth elements of Rule 60(b)(2). See González-Piña, 407 F.3d at 433; Karak, 288 F.3d at 19-20. Although these racist text messages are clearly new evidence, they are evidence that could have been discovered earlier by the Coalition had it not chosen to forgo discovery and followed to fruition its suspicions that Oliver-Davila and Rivera harbored racial animus….This Plan is not the celebrated result of transcending racial classifications that this Court once found it to be. Three of the seven School Committee members harbored some form of racial animus, and it is clear from the new record that the race-neutral criteria were chosen precisely because of their effect on racial demographics. In other words, but for the increase in Black and Latinx students at the Exam Schools, the Plan’s race-neutral criteria would not have been chosen. While the increase of a zero-sum resource to one group necessitates the reduction of that resource to others, the case law is clear — the concern is action taken because of animus toward a group, not in spite of an action’s necessary effect on a group or groups….The Plan’s criteria are all facially race neutral.
Judge Young ended with a footnote addressed to students, basically saying how shabbily the adults have acted:
23 A NOTE TO BOSTON SCHOOL STUDENTS: Are you following this case? Not a very edifying spectacle, is it? The Boston School Committee is charged, under law, with providing each of you with the finest education possible within the budget. In voting on your Exam School Admissions plan, the then chair mocked some of you, your parents, or your friends. Two of the then members texted they “hated” you, your parents, or your friends. The Public Meeting Law requires disclosure of officials’ discussions of public matters. Instead, the lawyers who are sworn to uphold the law and who should have enforced this law simply deleted the comments. When found out, their trial lawyers first offered the lamest of lame excuses. As you well know, saying that you “hate” a group of people is not the same as saying that you “love Kit Kats.” When you agree that a document is “true and accurate” you are necessarily agreeing that it is “complete.” And me? The trial judge? –- I am revealed as a Pollyanna, wanting to believe better of people than was in fact the case, something you probably knew all along.
You can do better than this.With love and respect, you will.We’re counting on you.
So the case now is back on appeal. I’m not sure what will come of it even if it moves forward, the school district already has modified the plan on how it will reduce Asian enrollment.
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