United States Court of Appeals For the First Circuit

“ To the contrary, the School Committee relies only on broad generalizations by a few witnesses, which, in the absence of solid and compelling evidence, constitute no more than rank speculation. Given both the Constitution's general prohibition against racial balancing and the potential dangers of stereotyping, we cannot allow generalities emanating from the subjective judgments of local officials to dictate whether a particular percentage of a particular racial or ethnic group is sufficient or insufficient for individual students to avoid isolation and express ideas. ”

“ None of these defects of fit is surprising because, at bottom, the plan is not seriously suited to be a temporary measure to remedy low teacher expectations that are the supposed remnants of discrimination. It is instead a thoughtful effort to assist minorities historically disadvantaged while, at the same time, preserving the essentially competitive character of the schools in question. So viewed, there is no misfit between problem and remedy; the only misfit is with Croson's requirements for the use of racial preferences, requirements that only the Supreme Court can relax. ”

“ Even on the assumption that the need for racial and ethnic diversity alone might sometimes constitute a compelling interest sufficient to warrant some type of corrective governmental action, it is perfectly clear that the need would have to be acute — much more acute than the relatively modest deviations that attend the instant case. ”

“ While the idea of "socialization" may be intellectually elegant, courts must insist on seeing concrete evidence. Without such substantiation, Payzant's testimony is no more compelling than the conclusory statements of the Richmond city councillor rejected as insufficient by the Supreme Court in Croson, 488 U.S. at 500-01, 109 S.Ct. 706.
To the extent that the School Committee notes other causal factors or indicia of discrimination, they, too, are insufficient either to show ongoing vestiges of system-wide discrimination or to justify a race-conscious remedy. ”

“ After all, there is no reason to assume that granting a remedy to one member of a particular race or ethnic group comprises a condign remedy for harm done to another, especially when those who have been harmed are easily identifiable and still within the institution that allegedly suffers from the vestiges of past discrimination. ”

“ Its scope is narrowed further in that it takes into account only five groups — blacks, whites, Hispanics, Asians, and Native Americans — without recognizing that none is monolithic. No more is needed to demonstrate that the School Committee already has run afoul of the guidance provided by the principal authority on which it relies: "The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." ”

“ The Committee's evidence on the connection between prior discrimination and low teacher expectations, and low teacher expectations and the achievement gap, was undeniably a mix of statistical and anecdotal evidence. Although the majority finds this mix unacceptable, courts have often held that statistical evidence documenting a disparate impact or a pattern or practice of disparate treatment can combine with anecdotal evidence of acts of discrimination to establish a prima facie case of discrimination. ”

“ If one is to limit consideration to generalities, any proponent of any notion of diversity could recite a similar litany of virtues. Hence, an inquiring court cannot content itself with abstractions. Just as Justice Powell probed whether the racial classification at issue in Bakke in fact promoted the institution's stated goals, see id. at 315-19, 98 798*798 S.Ct. 2733, we must look beyond the School Committee's recital of the theoretical benefits of diversity and inquire whether the concrete workings of the Policy merit constitutional sanction. ”

“ Even if the School Committee had proven the requisite connection between the Policy and the vestiges of past discrimination, the Policy could not endure. When authorized by the Constitution, race-conscious remedies not only must respond to a compelling governmental interest, but also must be narrowly tailored to rectify the specific harms in question. ”

“ 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. ”

“ Thus, it is impossible to tell, even on the assumption that differing curricula caused the achievement gap, whether this was a consequence of discriminatory conduct. In a nutshell, there is not a shred of evidence in the record supporting the contention that unstable leadership and the absence of uniform curriculum standards bore any relationship either to discrimination in the Boston schools or to the existence of the achievement gap. ”

“ The disadvantaged plaintiff challenged the existence of the discrimination itself, not whether that discrimination had actually harmed minorities. In response to that challenge to the existence of the discrimination itself, Justice O'Connor made the point in Wygant and Johnson that the public employer did not have the burden of convincing the court of its liability for prior unlawful discrimination, nor did the court have to make a finding of prior discrimination based on the 818*818 employer's proof to uphold the affirmative action program. ”

“ However, in the context of the long history of de jure discrimination against African-Americans and Hispanics in the Boston school system, this separate categorization of Asians does not undermine the fundamental remedial purpose of the admissions program. Moreover, the record suggests the possibility of a remedial interest with regard to Asians. There is evidence of a significant language-skills achievement gap for Asian students in the public schools. If there is future litigation about this aspect of the program, more achievement gap evidence relating to Asians might be produced. ”

“ In such a case, the extent of the injury and the consequent remedy will have been judicially, legislatively, or administratively defined. Also, the remedial action usually remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit. Without such findings of constitutional or statutory violations, it cannot be said that the government has any greater interest in helping one individual than in refraining from harming another. Thus, the government has no compelling justification for inflicting such harm. ”

“ The Wygant case dealt with racial preferences in employment, an arena where the shadow of Title VII suits by disappointed minority job seekers inevitably looms over a public employer using selection criteria with the potential to produce an unjustifiable "disparate impact" on minorities. The same considerations apply in the context of a selective public secondary school: the mere act of selection exposes the school system to challenge from minorities based on the disparate impact of the selection criteria used. ”

“ If the School Committee was not simultaneously addressing the underlying teacher expectations problem, there might be a narrow tailoring concern related to the duration of the remedial program. The School Committee is, in fact, addressing this underlying problem. It has been making substantial efforts towards instituting a standardized curriculum in the primary schools. A standard curriculum sets forth what is expected from every student, independently of what any individual teacher might otherwise expect from any individual student. ”

“ In the second place, the School Committee has failed to give us a plausible reason why we should believe that racial balancing of any type is necessary to promote the expression of ideas or any of the other ideals referenced in the Policy. We assume for argument's sake — albeit with considerable skepticism — that there may be circumstances under which a form of racial balancing could be justified by concerns for attaining the goals articulated by the Policy. ”

“ He studied the observations of a well-trained administrator in the Boston school system describing teacher performances in the classroom, the impact of these performances on students, and faulty attempts to alter teacher attitudes. He knew the history of segregation in the Boston school system. Seeing statistics and patterns in Boston that he had observed in other school systems where he had found a link between student achievement gaps and prior discrimination, he testified to the probability of such a link in the Boston school system. ”

“ We do not propose that the achievement gap bears no relation to some form of prior discrimination. We posit only that it is fallacious to maintain that an endless gaze at any set of raw numbers permits a court to arrive at a valid etiology of complex social phenomena. Even strong statistical correlation between variables does not automatically establish causation. ”

“ Thus, the School Committee says, some minimum number of black and Hispanic students — precisely how many, we do not know — is required to prevent racial isolation.
Fundamental problems beset this approach. In the first place, the "racial isolation" justification is extremely suspect because it assumes that students cannot function or express themselves unless they are surrounded by a sufficient number of persons of like race or ethnicity. ”

“ Where affirmative action deals with selective programs like promotions or competitive schools, however, the impact of the preference may have to be small because of the narrow tailoring requirement that beneficiaries be qualified. Any preference can only respond to remedial needs in proportion to the success of minorities in raising themselves into the qualified pool. Thus, the preference in Stuart, for example, gave "only limited advantage" to minority applicants, increasing their numbers "gradually over time." ”

“ As indicated by the discussion of the Supreme Court and First Circuit precedents in Part II, that strong basis is provided by a prima facie case of causation. In voluntarily undertaking remedial measures, the School Committee did not have to establish an airtight case for its own liability to minority students. By setting the bar of proof for the School Committee unrealistically high, the majority has ignored precedents that impose only a prima facie burden on the School Committee. ”

“ Drawing on the testimony of various witnesses (school administrators, experts, and alumni) , the Committee asserts that, because our society is racially and ethnically heterogeneous, future leaders must learn to converse with and persuade those who do not share their outlook or experience. This imperative becomes even more urgent because technology, now more than ever, forces heretofore estranged nations and cultures to communicate and cooperate. For these reasons, the School Committee exhorts us to find that diversity is essential to the modern learning experience. ”

“ Nor does the School Committee's reliance on alleviating underrepresentation advance its cause. Underrepresentation is merely racial balancing in disguise — another way of suggesting that there may be optimal proportions for the representation of races and ethnic groups in institutions. ”

“ One way to measure the achievement gap is in terms of relative performance on standardized tests. Over the years, whites and Asians have scored significantly higher, on average, than blacks and Hispanics. The School Committee theorizes that, because of this achievement gap, BLS receives fewer African-American and Hispanic applicants than otherwise might be the case, and even in comparison to this modest universe, an abnormally small number of black and Hispanic students qualify for admission. ”

“ We do not question the School Committee's good intentions. The record depicts a body that is struggling valiantly to come to terms with intractable social and educational issues. Here, however, the potential for harmful consequences prevents us from succumbing to good intentions. The Policy is, at bottom, a mechanism for racial balancing — and placing our imprimatur on racial balancing risks setting a precedent that is both dangerous to our democratic ideals and almost always constitutionally forbidden. ”

“ If, as we are told, diversity has been attained in all areas other than race and ethnicity, then the School Committee's argument implodes. Statistics compiled for the last ten years show that under a strict merit-selection approach, black and Hispanic students together would comprise between 15% and 20% of each entering class, and minorities, in toto, would comprise a substantially greater percentage. ”

“ As Justice O'Connor characterized the analogous employment situation, "public employers are trapped between the competing hazards of liability to minorities if affirmative action is not taken to remedy apparent employment discrimination and liability to nonminorities if affirmative action is taken." ”

“ We do not write on a pristine page. The Supreme Court's decisions in Croson and Adarand indicate quite plainly that a majority of the Justices are highly skeptical of racial preferences and believe that the Constitution imposes a heavy burden of justification on their use. Croson, in particular, leaves no doubt that only solid evidence will justify allowing race-conscious action ”