United States District Court, D. Massachusetts.

“ 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. ”

“ It should be noted, however, that the Court of Appeals for the Third Circuit [in Kromnick] has held that an intermediate standard of review is more appropriate when a given policy, such as the one involved here, is race-conscious but not race preferential; race-conscious means that although the policy considers race it ultimately impacts all races equally.... The interest served by the 35%/65% student transfer policy is the remedying of the de facto segregation in the Philadelphia public schools in order to insure that equal educational opportunities are provided across racial lines.... ”

“ 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. ”

“ Decisions regarding equal educational opportunity have concerned college and university education. Hence, there is no judicial precedent "on all fours" with this case.
The particulars of plaintiffs burden in moving for a preliminary injunction are well settled:
In the First Circuit, a plaintiff must satisfy four criteria in order to be entitled to a preliminary injunction. The Court must find: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant ”

“ Under the policy, students were not permitted to transfer from a school having 35% or fewer students of the same race as the applicant or to a school with 65% or more students of the same race. In denying plaintiffs' motion for injunctive relief, the court explained the applicable legal principles as follows:
The plaintiffs contend that race-based policies should be subject to strict scrutiny under the Fourteenth Amendment; in other words, they argue that such policies must be narrowly tailored to serve compelling state interests in order to be constitutional.... ”

“ In the past several years, approximately 65-70% of qualified applicants have been white or Asian-American; 20-25% have been black; and 7-10% have been Hispanic. Thus, a lottery could be expected to at least approximate BLS's current racial and ethnic mix.
Or, defendants could reserve some specified percentage, say one-third, of the seats in BLS's incoming classes for those with the highest examination score/sixth grade mark rankings, and then admit the rest of the class by lottery from among the pool of students with examination scores that qualify them for admission. ”

“ 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 ”

“ The second major component of the strict scrutiny inquiry is whether the challenged plan is "narrowly tailored" to advance any compelling government interests defendants may establish. As the Court has explained, a definitive ruling on this narrow-tailoring prong must be deferred until all the evidence on the compelling interests asserted by defendants has been received, as the propriety of the set aside should, in the end, be decided in light of the permissible goals it seeks to achieve. ”

“ The number of students now similarly situated to plaintiff, (i.e., who were excluded from BLS by the set aside and have satisfactorily completed the seventh grade at Boston Latin Academy) is but a fraction of the number of students similarly situated to her a year ago.
The harm which the defendants would suffer from granting the preliminary injunction is difficult to describe as anything but minimal. Unlike Faulkner, this is not a class action. ”

“ For example, defendants could change the present examination school election system so that separate applications are required for each school, and then assign a certain percentage of seats in each examination school to each racial and ethnic group, tailoring the percentages to the relevant qualified applicant populations and revisiting the policy periodically so as to ensure that demographic shifts and other factors do not render it obsolete. ”

“ While not in the record before us at this juncture of the proceedings, expert evidence at trial may ascribe a lesser number of black and Hispanic applicants for admission to BLS because so few applicants were admitted in former days. Similarly, past discrimination may be connected with minority students' lower GPA's in the sixth grade than would have been obtained in its absence. In sum, defendants have demonstrated plausible grounds for contending that the set aside is an apt response to lingering effects of prior discrimination. ”

“ This is the "gap" in the evidence presented thus far to which the Court referred in its Order to Show Cause under Fed. R.Evid. 706 dated April 17, 1996.
B. Student Body Diversity
Defendants also assert that a compelling state interest advanced by the 35% set aside is educational diversity. In this context, the phrase "educational diversity" is less than fully explanatory, as there is wide agreement that preferential measures undertaken for the sole purpose of assuring within a student body "some specified percentage of a particular group merely because of its race or ethnic origin ... ”

“ Also, procedures for integrating a transfer student into the student body at BLS were established years ago, and accommodating plaintiff will place no special burden on defendants. At a status conference last spring, defendants agreed to provide her with a list of books to be read in preparation for admission to the eighth grade at BLS.
A critical consideration in finding that plaintiff's showing of potential irreparable harm is sufficient for preliminary relief is the strong likelihood that she will succeed on the merits. See Frisch's Restaurant, Inc. ”

“ A well-designed and implemented Controlled Choice plan will work to eliminate all vestiges of unlawful segregation, prohibit future discriminatory assignment practices and will create a more equitable framework within which parents, students and educators can operate an educationally diverse and distinguished system of public schools.... ”

“ Subsequent to Stuart, the First Circuit again emphasized the particular importance of this narrow tailoring criterion: "In this case, only qualified minority candidates are specially advantaged; no minority candidate is placed on the eligibility list unless he or she has attained a passing score on the entrance examination. ”

“ It is, rather, the many educational benefits to which racial ethnic diversity might be thought a conduit that, when taken together, constitute the compelling diversity interest defendants here assert. ”

“ For purposes of the 35% set aside and student classification, Asian Americans and Native Americans, who never sought to intervene in the desegregation case, are grouped with whites.
[5] To the best of our knowledge, the number of appeals to the First Circuit Court of Appeals from various orders entered in the Morgan litigation is 17; and five petitions for certiorari were denied by the Supreme Court. ”

“ 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. ”