Anderson Ex Rel. Dowd v. City of Boston

United States Court of Appeals
For the First Circuit

No. 03-2021

NICHOLAS ANDERSON, a minor, by his parent and next
friend, ELLEN DOWD; KAYLEIGH BARRY-MELTZER, a minor,
by her parents and next friends, CATHLEEN BARRY and
GEORGE MELTZER; JOHN P. FEENEY, JR., a minor, by his
parents and next friends, ENA and JOHN FEENEY;
MICHAEL GATTOZZI, a minor, by his parents and
next friends, JOSEPH and PATRICE GATTOZZI;
JAMIE LEE HIGGINS, a minor, by her parents and
next friends, KERRY ANN and JOSEPH HIGGINS;
JOHN K. O'TOOLE, JR., a minor, by his parents and
next friends, JOHN and ROSE O'TOOLE;
KATHLEEN MCCOY, a minor, by her parents
and next friends, CAROL and JOHN MCCOY;
ANDREW SHARAFFA, a minor, by his parents and next
friends, DAVID and MAE SHARAFFA; SEAN J.
and THOMAS E. STODDARD, minors, by their
parents and next friends, MARY K. and STEPHEN STODDARD,

Plaintiffs, Appellants,

BOSTON'S CHILDREN FIRST,
Plaintiff,

v.

CITY OF BOSTON; THOMAS MENINO, Mayor of the City
of Boston; THOMAS W. PAYZANT, Superintendent of the
Boston Public Schools; BOSTON SCHOOL COMMITTEE;
ELIZABETH REILINGER, Boston School Committee
Chairperson; ALFREDA J. HARRIS, School Committee
Vice-Chairperson; FELIX D. ARROYO, School Committee
Member; ROBERT P. GITTENS, School Committee Member;
SUSAN NAIMARK, School Committee Member;
MARCHELLE RAYNOR, School Committee Member;
WILLIAM SPRING, School Committee Member,

Defendants, Appellees.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]
[Hon. Richard G. Stearns, U.S. District Judge]

Before

Boudin, Chief Judge,
and Lynch and Lipez, Circuit Judges.

Michael Williams, with whom Robert J. Roughsedge, Chester
Darling, and Citizens for the Preservation of Constitutional
Rights, Inc., were on brief, for appellants.

Frances S. Cohen, with whom Erica L. Hovani, Matthew M. Lyons,
and Dechert LLP, were on brief, for appellees.

Sharon L. Brown on brief for amicus curiae Pacific Legal
Foundation.

July 12, 2004
 LIPEZ, Circuit Judge. At the outset of its penultimate

ruling in this protracted litigation, the district court observed:

"This case may possibly be the concluding chapter in thirty years

of litigation over the effort to desegregate the Boston Public

Schools." Boston's Children First v. Boston School Comm., 260 F.

Supp. 2d 318, 319 (D. Mass. 2003). That cautious prediction may be

accurate.

Boston's Children First, a non-profit advocacy group, and

parents of several white students sued the City of Boston, Boston

Mayor Thomas Menino, Boston Public Schools (BPS) Superintendent

Thomas Payzant, and members of the Boston School Committee

(collectively, the defendants), claiming that BPS's now-defunct

race-conscious assignment system violated their children's rights

under the Fourteenth Amendment's Equal Protection Clause, 42 U.S.C.

§§ 1981 and 1983, 42 U.S.C. § 2000d (commonly known as Title VI),

and Article 111 of the Amendments to the Massachusetts Declaration

of Rights. Prompted at least in part by the lawsuit against them,

the Boston School Committee, at the recommendation of

Superintendent Payzant, voted to remove the racial guidelines from

the assignment system on July 14, 1999. After BPS adopted a

facially race-neutral assignment plan in November 1999, the

plaintiffs continued to press their suit, seeking declaratory

relief, several forms of injunctive relief, compensatory damages,

and nominal damages. Over the course of four rulings, the district

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court denied all of plaintiffs' claims save one: an award of

nominal damages of $1.00 each to the two students who would have

been assigned to the school of their choice under the old system

but for their race. Plaintiffs appeal. Finding no error, we

affirm the district court rulings in all respects.

I.

With four published district court decisions setting out

the factual background of this case in considerable detail, we

limit ourselves here to a recitation of the facts most pertinent to

the issues before us on appeal. For greater detail, we refer

readers to Boston's Children First v. City of Boston, 62 F. Supp.

2d 247 (D. Mass. 1999) ("BCF I"); Boston's Children First v. City

of Boston, 98 F. Supp. 2d 111 (D. Mass. 2000) ("BCF II"); Boston's

Children First v. Boston School Comm., 183 F. Supp. 2d 382 (D.

Mass. 2002) ("BCF III"); and Boston's Children First v. Boston

School Comm., 260 F. Supp. 2d 318 (D. Mass. 2003) ("BCF IV").

Additionally, the majority and dissenting opinions in Wessmann v.

Gittens, 160 F.3d 790 (1st Cir. 1998), provide a useful historical

overview of BPS's desegregation-related litigation in federal

court.

In quick review, thirty years ago the Massachusetts

federal district court held that the City of Boston promoted and

maintained a racially segregated dual public school system in

violation of constitutionally guaranteed rights. Morgan v.

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Hennigan, 379 F. Supp. 410, 482 (D. Mass. 1974). After twelve

years of supervision by the district court, the court returned

control over student assignments to BPS, declaring that BPS's

student assignment system had achieved unitariness, Morgan v.

Nucci, 831 F.2d 313, 318 (1st Cir. 1987), "i.e. a fully integrated,

non-segregated system." Id. at 316. At that point, BPS adopted an

assignment system known as the Controlled Choice Student Assignment

Plan, (the "Old Plan"), which went into effect for the 1989-90

academic year.

A. The Old Plan

BPS assigns students to schools at the transition grades

during students' public school careers, each of which corresponds

to a student's advancement to a new type of school: kindergarten 1

(programs for 4-year-olds), kindergarten 2 (programs for five-year-

olds), first grade (elementary school), sixth grade (middle

school), and ninth grade (high school). While high school

assignments are made on a citywide basis, Boston is divided into

three Attendance Zones--the North, East, and West Zones--for

purposes of the elementary and middle school assignments at issue

in this case. These zones were drawn by the district court as part

of its desegregation orders, and the lines largely hew to major

transportation routes to keep traditional neighborhoods intact as

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much as possible.1 Students are eligible to attend any of the

schools located in the Attendance Zone in which the students

reside.

As part of the assignment process, students rank their

preferences for the schools within their Attendance Zone, as well

as for the few schools that accept students from any part of the

city without regard to Attendance Zone lines.2 Students whose

siblings attend a school receive a preference for that school

during the assignment process. Similarly, students who live within

the walk zone3 of a given school receive a preference for seats at

that school. Finally, every student receives a randomly assigned

lottery number, with the lower numbers being considered more

advantageous.

Under the Old Plan, BPS assigned students to schools

using the following critera: the student's rank preference for the

school; whether a sibling already attended the school; whether the

1
All of the plaintiffs here reside in the East Zone. While
plaintiffs challenged the Attendance Zone concept earlier in this
litigation, they do not press any claim related to the Attendance
Zones on appeal.
2
Each Attendance Zone contains approximately 30 elementary
schools; while students are free to rank all of those schools,
along with the citywide programs, in order of their preference,
most students actually rank only five to six schools.
3
For elementary schools, the walk zone includes the geocodes,
or smaller geographic units within each Attendance Zone, within a
one-mile radius of the school. For middle schools, the walk zone
radius increases to 1.5 miles.

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student lived within the school's walk zone; whether the student

had already matriculated at the school on a temporary basis;4 and,

as a tie-breaker, the student's random number, with a lower random

number winning out over higher numbers. Assignments under the Old

Plan operated with one additional constraint--the "ideal racial

percentage" for each grade's population, as calculated by the

racial and ethnic composition of the student population in that

grade within each of the three Attendance Zones. If admitting a

student would cause a deviation of more than 15% from the "ideal

racial percentage," that student would not be admitted. The Old

Plan operated largely without change for ten years, from 1989

through 1999.

B. Boston's Exam School Assignment System and
Related "Reverse Discrimination" Lawsuits

In June 1999, the first four of what ultimately became

ten individual plaintiffs, along with Boston's Children First,5

4
This criterion applied when a school had more kindergarten
seats than first grade seats. Students with "permanent"
kindergarten seats were assured placement in that school's first
grade, while students with "temporary" seats had to apply for a
first grade seat. BCF III, 183 F. Supp. 2d at 386-87.
5
Plaintiffs-appellants in this case are now ten individual
minor children, represented by their respective parent(s).
Boston's Children First was the organizational plaintiff when the
case was initially filed. However, the district court found that
Boston's Children First had no standing to bring suit. BCF III,
183 F. Supp. 2d at 403. This ruling was not appealed.
Accordingly, Boston's Children First is not a party before this
court on appeal, and we refer to the individual minors collectively
as "plaintiffs" throughout the opinion.

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filed this lawsuit, prompted in part by the successful "reverse

discrimination" lawsuits brought by the families of two white

children who were denied admission to their choice of one of BPS's

three competitive exam schools. See McLaughlin v. Boston School

Comm., 938 F. Supp. 1001 (D. Mass. 1996); Wessmann v. Gittens, 160

F.3d 790 (1st Cir. 1998). These exam schools admit students using

a different system than that used by the other schools in the BPS

system. At the time Julia McLaughlin applied to Boston Latin

School, admissions were based on a combination of an applicant's

grade point average and standardized test scores (collectively

called the "z-score"), subject to a 35% minority set-aside

previously imposed by the federal desegregation order and still in

effect at that time. After McLaughlin filed suit and obtained a

preliminary injunction admitting her to Boston Latin, BPS

voluntarily discontinued use of the 35% quota, admitted students

similarly situated to McLaughlin, and commissioned a consulting

company to devise a new admissions policy.

The replacement exam school admission policy eventually

adopted by BPS defined the "qualified applicant pool" for each exam

school as the 50% of students with z-scores above the mean in any

given year. Then, BPS filled half of each exam school's seats

based on the students' expressed preferences for each school and

their rank order z-scores. The remainder of the seats were also

allocated by students' school preferences and rank order z-scores,

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subject to mirroring the racial composition of the remaining

qualified applicant pool not yet admitted. Sarah Wessmann was

denied admission to Boston Latin under the new exam school

admission system, sued, and ultimately prevailed on appeal. We

found the admission system unconstitutional because its use of

racial classifications was not narrowly tailored to meet a

compelling state interest. See Wessmann, 160 F.3d at 807-09.

C. The New Plan

Based in no small part on Superintendent Payzant's frank

assessment to the School Committee that, in light of Wessmann and

other reverse discrimination lawsuits, plaintiffs in this case

would almost certainly prevail in their challenge to the Old Plan,

the School Committee voted on July 14, 1999, to discontinue the use

of the racial classifications in the Old Plan. See BCF IV, 260 F.

Supp. 2d at 324 n.10. At the time of this vote, the School

Committee also charged the Superintendent with developing a new

student assignment plan that did not consider "race as a factor in

making student assignments" and would also reflect "other changes

necessary to maximize access to choice, to support diversity, and

promote quality education for the children of the City of Boston."

BCF IV, 260 F. Supp. 2d at 325.

On October 20 and November 3, 1999, the Superintendent

recommended that the Old Plan be further modified in two salient

ways: by reducing the percentage of available seats allocated for

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students within a school's walk zone from 100% to 50%, and by

treating students who did not actually live within the walk zone of

any school as though they had a walk-zone preference for their

first or second choice school. On November 10, the School

Committee adopted the Superintendent's recommendations to the

Controlled Choice Student Assignment Plan with the modification

that students lacking a walk-zone school would be given a walk-zone

preference for both their first and second choice schools. For

convenience, we refer to the modified Controlled Choice Student

Assignment Plan as the "New Plan."

Under the New Plan, which went into effect for the 2000-

01 school year, students still rank their choice of schools and

receive random numbers. Students are sorted by their school choice

and ordered by their random number, with the lowest numbers put at

the top of the list. BPS then computes the number of available

seats at each school and sets aside 50% of those seats for students

who live within the school's walk zone. The seats at each school

are then filled according to the following priorities: first

priority to students within the school's walk zone and with a

sibling already in attendance; second priority to students outside

the school's walk zone but with a sibling already in attendance;

and third priority to students within the school's walk zone but

with no sibling already in attendance. If there are more students

in a priority tier than seats available, the seats will go to the

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students with the better random numbers. As students are admitted,

the system updates the number of walk zone seats that are

available. Once those walk zone seats are filled, a student's

walk-zone status drops out of consideration and students are

assigned in accordance with the school preferences by the rank of

their random number.6 Finally, the applications and assignments

are done in rounds; if a student fails to meet the first round

application deadline, she can submit her preferences in the second

round, and so on.

D. Course of Litigation Below

As previously mentioned, four plaintiffs and Boston's

Children First filed suit in federal district court on June 21,

1999, claiming that the Old Plan violated the Equal Protection

Clause, which provides that no State shall "deny to any person

within its jurisdiction the equal protection of the laws"; 42

U.S.C. §§ 1981 and 1983, which collectively prohibit deprivations

of constitutional rights under color of state law; Title VI, which

prohibits institutions receiving federal funds from engaging in

racial discrimination; and Article 111 of the Amendments to the

Massachusetts Declaration of Rights, which states that "[n]o

student shall be assigned to or denied admittance to a public

6
From what we can glean from the record, it appears that the
assignment system virtually always accommodates the sibling
priority.

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school on the basis of race, color, national origin or creed."7

Plaintiffs sought injunctive relief and class certification to

represent all similarly situated white children.

On July 14, 1999, the School Committee voted to

discontinue the use of race in assignments. On August 10, 1999,

the district court denied plaintiffs' request for injunctive relief

that would have, inter alia, ordered BPS to cease using race or

ethnicity in any phase of the school assignment process and to re-

open the assignment process to students who attempted to transfer

schools the previous year, as well as those entering kindergarten

and first grade. BCF I, 62 F. Supp. 2d at 262.

Some time after BCF I, six other plaintiff children

joined the suit, and plaintiffs' claims for relief expanded

considerably. Plaintiffs now sought at least six forms of

injunctive relief, including (1) admitting plaintiffs to their

schools of choice, (2) enjoining defendants from the use of any

7
Because there is no dispute that the defendants are subject
to Title VI, § 1981, and § 1983, all of plaintiffs' claims under
these provisions turn on the resolution of the equal protection
claim. See General Building Contractors Assn., Inc. v.
Pennsylvania, 458 U.S. 375, 389-390 (1982) (purposeful
discrimination that violates the Equal Protection Clause also will
violate § 1981); Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (§
1983 "is not itself a source of substantive rights, but a method
for vindicating federal rights elsewhere conferred"); Alexander v.
Sandoval, 532 U.S. 275, 281 (2001) (Title VI proscribes only those
racial classifications that would violate the Equal Protection
Clause or the Fifth Amendment). Accordingly, we, like the parties,
direct our analysis to the Equal Protection Clause arguments. We
treat the Article 111 claim separately in Part III.B.4.

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race-based practice in all aspects of school assignments and

governance, (3) requiring all students in the BPS system to reapply

under the terms of the New Plan, (4) dismantling the Attendance

Zones, (5) granting Boston's Children First access to BPS records

to monitor compliance, and (6) retaining jurisdiction in federal

court for three years to monitor compliance. Plaintiffs also

sought declaratory relief stating that the New Plan violated their

rights under the relevant federal and state laws, nominal damages

for all plaintiffs, and compensatory damages for five plaintiffs.8

On October 29, BPS moved to dismiss plaintiffs' claims, arguing

that the suit was moot in light of its voluntary discontinuance of

the Old Plan.

On May 19, 2000, the BCF II court ruled that all of these

claims survived defendants’ motion to dismiss, with one exception.

Finding that five "of the plaintiffs did not seek assignments in

the 1999-2000 school year and have not indicated any present

intention to seek an assignment in the 2000-01 school year," the

district court held that "injunctive relief is unnecessary to

redress the injuries of these [five] plaintiffs as they have not

indicated that they will even participate in the future school

assignment plan." BCF II, 98 F. Supp. 2d at 117. Accordingly, the

court granted defendants' motion to dismiss in so far as it related

8
The plaintiffs seeking compensatory damages were Jamie Lee
Higgins, John O'Toole, Andrew Sharaffa, and Sean and Thomas
Stoddard.

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to the injunctive relief of those five plaintiffs,9 and otherwise

denied the motion. Id.

In BCF III, the court disposed of additional claims.

First, the court dismissed as moot the remaining five plaintiffs'

request for injunctive relief admitting them to their school of

choice because three plaintiffs (Sharaffa, O'Toole, and Feeney)

left the BPS system prior to the 2001 admissions season, and the

final two plaintiffs (Higgins and Thomas Stoddard) chose to remain

at their current schools. BCF III, 183 F. Supp. 2d at 395.

Second, the court rejected plaintiffs' claims that the three

Attendance Zones were "racially gerrymandered," explaining that

"[b]ecause the zones today, whatever role race may have played in

their creation, serve administrative, rather than racial balancing

purposes, I conclude that no viable 'case or controversy' exists

regarding their current configuration." Id. at 397-99. This

holding disposed of both the injunctive request related to

dismantling the Attendance Zones and the declaratory relief request

to the extent that it rested on the allegedly racial purpose of the

Attendance Zones. Third, the court denied plaintiffs' request for

an injunction requiring every student in the BPS system to reapply

under the New Plan, explaining that

even if a showing could be made that one or
more of the plaintiffs might derive an

9
These five plaintiffs are Michael Gattozzi, Kathleen McCoy,
Nicholas Anderson, Kayleigh Barry-Meltzer, and Sean Stoddard.

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 advantage from a system-wide reprocessing of
all student assignments, any benefit conferred
would be outweighed by the consequent
demoralization of a school system that has yet
to fully absorb the effects of a quarter-
century effort to bring itself into compliance
with court-ordered desegregation.

Id. at 401. Fourth, the court held that Boston's Children First

lacked standing as an organizational plaintiff to press the

lawsuit. Id. at 403. The BCF III court reserved all of the other

claims in the suit pending further discovery, briefing, and trial.

Id.

Following a bench trial on the merits, the district court

issued a ruling in BCF IV on April 23, 2003. The BCF IV court

found that (1) the New Plan, with its change in the walk zone

preference from 100% to 50% of seats, was facially race-neutral,

(2) there was no evidence that the policy was applied in a

discriminatory manner, and (3) plaintiffs did not show that the

policy was adopted with a discriminatory intention and applied in

a way that had a discriminatory effect. BCF IV, 260 F. Supp. 2d at

331-32. Accordingly, the district court declined to apply strict

scrutiny to the New Plan. Id. at 333. Instead, it evaluated the

New Plan under rational basis review and found that it "satisf[ied]

the reasonableness test." Id. The court also held that

plaintiffs' "[m]ere skepticism . . . about the defendants' future

intentions[] cannot justify" an injunction prohibiting the school

system from using race as a factor in the assignment system in the

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future. In consequence, the court entered judgment for defendants,

id. at 334, and noted that it would address the bifurcated claims

for nominal damages separately. Id. at n.28.

On May 27, 2003, the court issued a short memorandum and

order awarding nominal damages of $1.00 each to Feeney and McCoy

because, as BPS admitted, those plaintiffs "were denied seat

assignments at their preferred schools because of their race" under

the Old Plan. Boston's Children First v. Boston School Comm., No.

99-11330-RGS (D. Mass. May 27, 2003) (unpublished) ("BCF V"). The

court also held that "[a]s the remaining plaintiffs can make no

showing of a deprivation under Texas v. Lesage, 528 U.S. 18, 21

(1999) (per curiam), no damages, nominal or otherwise, may be

awarded." BCF V, at 1.

II.

On this factually rich and comprehensively litigated

background, we are now presented with plaintiffs' appeal from a

variety of adverse rulings. Although we find some confusion in the

record and the briefs over both the exact nature of the relief

sought on appeal and whether certain claims for injunctive relief

sought by plaintiffs were dismissed for mootness or lack of

standing, or instead resolved on the merits, we ultimately

understand that plaintiffs seek three forms of relief on appeal.

First, plaintiffs seek a declaratory judgment that the New Plan is

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unconstitutional.10 Second, plaintiffs seek an injunction

prohibiting BPS from using race in any way in a modified school

assignment system. Third, plaintiffs request nominal damages for

the eight plaintiffs to whom nominal damages were previously

denied.11 After discussing the standards of review which guide our

analysis of the issues, we will address these three claims

seriatim.

III.

A. Standards of Review

"We accord deferential review to specific findings of

fact emanating from a bench trial." Wessmann, 160 F.3d at 795

(citing Fed. R. Civ. P. 52(a)). However, when the issues on appeal

"raise[] either questions of law or questions about how the law

applies to discerned facts," such as whether the proffered evidence

establishes a discriminatory purpose or a disproportionate racial

impact, "our review is essentially plenary." Id. at 795.

10
Although plaintiffs do not explicitly request reversal of the
district court's denial of a declaratory judgment holding the New
Plan unconstitutional, they claim that they have standing to seek
such a declaratory judgment. Further, they argue at length in
their briefs that the New Plan is unconstitutional. We cannot read
these arguments as anything other than a request that the New Plan
be declared unconstitutional.
11
According to their brief, plaintiffs explicitly "no longer
seek relief in the form of individual reassignments to their
schools of choice." Furthermore, plaintiffs apparently no longer
seek compensatory damages or any of the myriad forms of injunctive
relief once requested, save the injunction prohibiting the use of
race in future school assignment systems.

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Similarly, we review de novo the district court's other legal

conclusions, Cohen v. Brown Univ.,101 F.3d 155, 192 (1st Cir.

1996), including the level of scrutiny it applied when evaluating

the constitutionality of the New Plan and, in the context of

denying eight plaintiffs nominal damages, its interpretation of

Texas v. Lesage, 528 U.S. 18 (1999) (per curiam). Dispositions of

a request for injunctive relief are typically "review[ed] only to

ensure that the district court did not abuse its discretion in

granting, or failing to grant, such relief," Caroline T. v. Hudson

School Dist., 915 F.2d 752, 754 (1st Cir. 1990), although related

legal determinations, such as mootness, are reviewed under the

usual de novo review afforded to all conclusions of law. See

Cotter v. City of Boston, 323 F.3d 160, 166 (1st Cir. 2003).

B. The Constitutionality of the New Plan

A key question in analyzing the constitutionality of the

New Plan is whether strict scrutiny or rational basis review

applies. Plaintiffs present several arguments that strict scrutiny

applies, including that the unconstitutionality of the Old Plan12

requires a presumption that the New Plan is unconstitutional and

12
Although the district court never explicitly described the
Old Plan as unconstitutional, it awarded nominal damages to two
plaintiffs who had been denied school assignments under the Old
Plan because of their race; and nominal damages in this context
require a constitutional violation. Since the defendants neither
appealed from the award nor sought to defend the constitutionality
of the Old Plan, we accept for purposes of our analysis the
colorable premise that the Old Plan was unconstitutional.

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that the defendants' stated goal of diversity requires a finding

that the New Plan is unconstitutional. Even if those arguments

fail, plaintiffs contend, the New Plan has a discriminatory effect

from which a discriminatory intent can be inferred.

1. Adoption of the New Plan

When designing and choosing among methods for assigning

students to schools, school boards seek to promote certain values

and policies, and they operate within certain historical,

political, financial, and legal constraints. Defendants in this

case are no exception. As they considered the adoption of the New

Plan in 1999, they saw a system burdened with a significant

inequity in the number of walk zone schools available to students

in different parts of the city. For example, while about 30% of

elementary school students had only one to three walk zone choices,

approximately 37% had six to ten. In fact, when the New Plan was

adopted in November 1999, 1772 students were not within the walk

zone of any school. Furthermore, at the neighborhood level, some

areas of the city had an excess capacity of school seats compared

to the number of school-age children, while other areas faced

significant shortages. For example, Roxbury and South Dorchester

both faced shortages of around 2500 seats, while Jamaica Plain and

Allston/Brighton collectively had excess capacity of around 1600

seats. Additionally, some schools in significant demand were over-

chosen by parents and students, while others lacked enough

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applicants to fill the available seats. In the East Zone, where

plaintiffs reside, Everett Elementary had 7.3 applicants for each

available seat for the 2002-03 academic year, while Lee Elementary

had just 0.6 applicants for each available seat.

The substantial disparities among the Boston

neighborhoods regarding school quality and capacity, numbers of

resident students, and walk zone choices were significant

considerations in the adoption of the New Plan and its reduction of

the walk zone preference to 50% of the seats. Additionally, BPS

compiled statistics showing that of the parents and students

ranking their school choices, approximately 50% chose a walk zone

school as their first choice, while the other 50% chose as their

first choice a school whose walk zone did not include the student.

BPS also had been concerned about the potentially

resegregative impact of removing the racial guidelines of the Old

Plan and simultaneously leaving the 100% walk zone preference in

place. Apparently, though, BPS's analysis allayed those concerns,

showing that there would be little immediate resegregative effect

of removing the racial guidelines. Superintendent Payzant

explained to the Massachusetts Board of Education that when the

School Committee was considering changes to the Old Plan, BPS

did some simulations to see what the impact
would be as a result of removing race from the
plan, and based on the data we had to work
with at the time, . . . the result of removing
race was really very, very small. In fact, we
found out we only had three additional schools

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 that would not meet the racial guidelines in
one or more grades . . . .

Although the immediate racial impact of removing the racial

guidelines would be "very small," BPS was still concerned about the

impact on access and choice that would flow from a 100% walk zone

preference. Accordingly, BPS simulated the results of leaving the

walk zone preference at 100%, reducing it to 75%, and reducing it

to 50%. Ultimately, Superintendent Payzant recommended the 50%

reduction in an October 20, 1999, memo to the School Committee.

RATIONALE
One hundred percent walk zone preference in a
controlled choice plan without racial
guidelines could result in all available seats
being assigned to students within the walk
zone. The result would limit choice and access
for all students, including those who have no
walk zone or live in walk zones where there are
insufficient seats to serve the students
residing in the walk zone. . . .

Until more neighborhoods without schools or
with insufficient numbers of schools have [more
schools], [a] one hundred percent walk zone
preference would limit choice and access for
too many families to the schools they want
their children to attend. On the other hand,
the policy also should and does recognize the
interests of families who want to choose a walk
zone school.

Superintendent Payzant concluded the memo by stating that a 50%

walk zone preference "provides a fair balance and enables the

School Committee to establish a policy which will result in

progress in meeting the goal[s] of excellence, equity and diversity

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through access and educational opportunity throughout the Boston

Public Schools."

The evidence supports the conclusion that the racial

impact of removing the racial guidelines was not significant, and

the School Committee adopted the 50% reduction in walk-zone seats

primarily because they were concerned about limited choice and

equity for students with an insufficient number of walk-zone

schools. Additionally, Superintendent Payzant and the School

Committee concluded that the 50% reduction was consistent with

progress towards BPS's existing goals of excellence, equity, and

diversity.

2. Applicability of Strict Scrutiny Review

"The central purpose of the Equal Protection Clause of

the Fourteenth Amendment is the prevention of official conduct

discriminating on the basis of race." Washington v. Davis, 426

U.S. 229, 239 (1976). Accordingly, "[p]roof of racially

discriminatory intent or purpose is required to show a violation of

the Equal Protection Clause." Village of Arlington Heights v.

Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977). When

the government uses explicit racial classifications for the

distribution of benefits, discriminatory intent is presumed, and

those policies are always subjected to strict scrutiny. See, e.g.,

Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979) ("A racial

classification, regardless of purported motivation, is

-22-
presumptively invalid and can be upheld only upon an extraordinary

justification."); Grutter v. Bollinger, 539 U.S. 306, 326 (2003)

("[A]ll racial classifications imposed by government must be

analyzed by a reviewing court under strict scrutiny.") (internal

quotations and citation omitted). "We apply strict scrutiny to all

racial classifications to ''smoke out' illegitimate uses of race by

assuring that [government] is pursuing a goal important enough to

warrant use of a highly suspect tool.'" Grutter, 539 U.S. at 326

(quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)

(plurality opinion).) The term racial classification "normally

refers to a governmental standard, preferentially favorable to one

race or another, for the distribution of benefits." Raso v. Lago,

135 F.3d 11, 16 (1st Cir. 1998).

Here, though, the New Plan does not employ racial

classifications. Indeed, plaintiffs concede, as they must, that

the New Plan is facially race-neutral. In contrast, then, to the

automatic application of strict scrutiny to overt racial

classifications, "when facially neutral legislation is subjected to

equal protection attack, an inquiry into intent is necessary to

determine whether the legislation in some sense was designed to

accord disparate treatment on the basis of racial considerations."

Washington v. Seattle School Dist., 458 U.S. 457, 484-85 (1982)

(emphasis added). Although plaintiffs may also invoke strict

scrutiny review by showing that the facially neutral policy is

-23-
applied in a discriminatory manner, Yick Wo v. Hopkins, 118 U.S.

356, 373-74 (1886), plaintiffs have pointed to no evidence that the

New Plan is applied in a discriminatory manner, nor do we see any

in the record.13

In reviewing a uniformly applied facially neutral

statute, "[d]etermining whether invidious discriminatory purpose

was a motivating factor [in its adoption] demands a sensitive

inquiry into such circumstantial and direct evidence of intent as

may be available." Arlington Heights, 429 U.S. at 266. The

Supreme Court nonexhaustively enumerated several factors relevant

to the inquiry: the degree of disproportionate racial effect, if

any, of the policy; the justification, or lack thereof, for any

disproportionate racial effect that may exist; and the legislative

or administrative historical background of the decision. Id. at

266-68. We will evaluate plaintiffs' various theories supporting

strict scrutiny review through the lens provided by Arlington

13
As the BCF IV court noted, only one school deviates from the
50% walk zone preference: the new K-8 Orchard Gardens School,
located in the predominately minority neighborhood of Roxbury
Crossing, uses a 75% walk zone preference. BCF IV, 260 F. Supp. 2d
at 331. Although the district court called this deviation
"troubling," id. at n.24, it noted that the Orchard Gardens School
is located in an area that has traditionally had too few schools to
serve the resident student population. Id. at 331. Also, Orchard
Gardens School is one of only three K-8 pilot schools, which are
subject to fewer restrictions than the vast majority of non-pilot
schools in the BPS system, and one of only two schools with a walk
zone that crosses Attendance Zone lines. More to the point,
plaintiffs do not argue on appeal that the Orchard Gardens School
walk zone preference is proof of BPS applying the facially neutral
walk zone policy in a discriminatory manner.

-24-
Heights, although we take the factors in a different order to

better track plaintiffs' arguments.

a. Historical background: alleged
presumption of discriminatory intent

Plaintiffs claim that because the Old Plan was

unconstitutional, and the New Plan perpetuates the Old Plan's

effects in violation of defendants' alleged "duty to eliminate

their duel [sic] assignment system" of the Old Plan, we should

infer that the New Plan was adopted with a discriminatory intent.

To support this contention, plaintiffs quote two bedrock Supreme

Court desegregation cases from the 1970s: Dayton Bd. of Educ. v.

Brinkman, 443 U.S. 526 (1979) (Dayton II); and Keyes v. School

Dist., 413 U.S. 189 (1973). The very language plaintiffs quote

from these cases, as well as their significantly different facts,

demonstrate the inaptness of these cases.

As plaintiffs point out, the Keyes Court held that "there

is a high probability that where school authorities have

effectuated an intentionally segregative policy in a meaningful

portion of the school system, similar impermissible considerations

have motivated their actions in other areas of the system." Keyes,

413 U.S. at 208. Plaintiffs quote Dayton II for the proposition

that such a system is "under a continuing duty to eradicate the

effects of that system, and [] the systemwide nature of the

violation furnished prima facie proof that current segregation in

the [] schools was caused at least in part by prior intentionally

-25-
segregative official acts." Dayton II, 443 U.S. at 536 (internal

citation omitted).

Keyes and Dayton II were ongoing school desegregation

cases that involved purposeful discrimination by school systems

attempting to avoid their affirmative obligation to undo systemic

discrimination under Brown v. Bd. of Educ., 347 U.S. 483, 495

(1954) (Brown I) (holding that the concept of "separate but equal"

has no place in public education) and Brown v. Bd. of Educ., 349

U.S. 294, 301 (1955) (Brown II) (ordering an end to segregated

public education "with all deliberate speed."). That was the

status of the Boston school desegregation case at the time of the

initial liability findings in 1974 and the remedial plan in 1976.

See Morgan v. Kerrigan, 509 F.2d 580, 593-94 (1st Cir.

1974)(relying in part on Keyes in upholding liability); Morgan v.

Kerrigan, 530 F.2d 401, 425 (1st Cir. 1976)(relying in part on

Keyes in upholding the remedial plan).

This case arises in a completely different context.

After going through school desegregation, Boston was found in 1987

to have achieved a unitary school assignment system. See Morgan,

831 F.2d at 318. The defendants here acted not with the intent to

maintain a system of de jure segregation, but with the purpose of

maintaining the post-segregation unitary system. Indeed, the Old

Plan, toward this end, incorporated aspects of the Boston school

-26-
desegregation plan that were constitutionally compelled.14

Additionally, when the school committee adopted the Old Plan for

the 1989 school year, the questionable constitutionality of such

race-conscious efforts to minimize the tendency to resegregate was

far from clear.

In essence, plaintiffs would like to limit the relevant

history of this case to the period following the adoption of the

Old Plan. However, there is also a relevant history of de jure

discrimination against minorities that predates 1989, as the long

history of the BPS desegregation litigation shows. In consequence,

the present-day Boston school system really faces two "legacies"--

the system it administered for decades that intentionally

14
At the time that the BPS student assignment system was
declared unitary, it included the following court-ordered racial
guidelines:

The enrollment guidelines are based upon the
racial/ethnic composition of the public school
population within each community district and
at each grade level: elementary, middle, and
high school. . . . [A]ssignment totals at a
particular school may diverge from the
community district standard within a range
established by adding and subtracting 25% from
each racial/ethnic group's proportion . . . .
Thus, for example, if 48% of the elementary
school students residing in a subdistrict
consisted of a particular racial/ethnic group,
25% of 48, i.e., 12, would be added and
subtracted to result in an allowable range
from 36% to 60% for the assignment of these
students to each elementary school in the
community district.

Morgan v. Nucci, 620 F. Supp. 214, 221 (D. Mass. 1985).

-27-
discriminated against minorities to maintain an unequal and

segregated system, and the system it administered for ten years

that subjected seat assignments to racial guidelines to maintain

the racial integration achieved during the intervening twelve years

of court-ordered desegregation.

There is no gainsaying that the system still must

confront the fallout from its days of over-serving what were

traditionally white communities and under-serving what were

traditionally minority, then mostly black, communities. As the BCF

IV court stated: "Any assignment plan in the Boston School system

is, and will be for the foreseeable future, constrained by the

mismatch between school capacity and neighborhood demand, due in

part to demographic shifts, and in part to the dual system's legacy

of over-serving what were historically white neighborhoods." BCF

IV, 260 F. Supp. 2d at 325.

We decline to adopt plaintiffs' circumscribed view of

history. Likewise, we decline to find that plaintiffs have

established a prima facie case of discriminatory intent in the

adoption of the New Plan simply because the Old Plan was

constitutionally unsound. Over forty years ago, the Supreme Court

advised federal courts that context matters:

[I]n dealing with claims under broad
provisions of the Constitution, which derive
content by an interpretive process of
inclusion and exclusion, it is imperative that
generalizations, based on and qualified by the
concrete situations that gave rise to them,

-28-
 must not be applied out of context in
disregard of variant controlling facts.

Gomillion v. Lightfoot, 364 U.S. 339, 343-44 (1960) (evaluating the

validity of a redistricting plan under, inter alia, the Equal

Protection Clause). Here, BPS voluntarily discontinued use of the

Old Plan once it concluded that the plan was constitutionally

suspect--in fact, within eight months of our decision in Wessmann--

and replaced it with a racially neutral assignment system that was

designed to maximize, not minimize, the equitable distribution of

seats in the public schools.

We recognize that "[b]enign intentions do not immunize

government action," Raso, 135 F.3d at 16, and we do not suggest

otherwise. There is no doubt that governmental policies that

employ racial classifications for the distribution of benefits, or

otherwise evince racial discrimination, should be subjected to

strict scrutiny review. If plaintiffs could make such a showing,

we would not hesitate to apply strict scrutiny to the New Plan.

However, by declining to extend the reach of Keyes, Dayton II, and

similar cases beyond their facts to create a presumption of

racially discriminatory purpose in the adoption of the New Plan, we

simply refuse to conflate vastly dissimilar cases.

b. Historical background: inclusion of
diversity as a goal of the New Plan

Plaintiffs also argue that the New Plan was adopted for

racially discriminatory reasons and should be subject to strict

-29-
scrutiny because Superintendent Payzant and the Boston School

Committee identified diversity as one of the several goals of the

student assignment system. Plaintiffs equate this commitment to

racial diversity with an illegitimate commitment to racial

balancing. See Wessmann, 160 F.3d at 800 (noting the

"Constitution's general prohibition against racial balancing"). To

prove their point, plaintiffs cite the testimony of Superintendent

Payzant elicited on cross-examination during this litigation:

Q. So this 50% walk-to plan actually preserved
the racial balance gained by the Old Plan;
isn't that correct?

A. Right, which is precisely why I didn't want
to keep 100% walk-zone preference in the New
Plan after racial guidelines were withdrawn.

In addition, plaintiffs cite communications from defendants trying

to convince the Racial Imbalance Advisory Council (RIAC)15 and the

Board of Education that after the adoption of the New Plan, BPS

should still qualify for funds under the Racial Imbalance Law,

M.G.L. c. 71, § 37C, et seq. (RIL).16 Essentially, Superintendent

15
This council advises the Massachusetts Commissioner of
Education and the Massachusetts Board of Education on issues
related to the development and maintenance of school desegregation
and integration in public schools within the Commonwealth. Much of
that communication and testimony related to BPS's eligibility for
funding under the Racial Imbalance Law. See footnote 16, infra.
16
The RIL, inspired by Title VI and adopted in 1965, states a
policy "to encourage all school committees to adopt as educational
objectives the promotion of racial balance and the correction of
existing racial imbalance in the public schools." M.G.L. c. 71, §
37C. To be eligible for funds under the RIL, school boards must
provide the State Board of Education with statistics demonstrating

-30-
Payzant argued that (1) BPS qualified for funds under the Old Plan,

(2) the New Plan maintained approximately the same racial balance

within the schools as the Old Plan, so (3) BPS should still qualify

for RIL funds, even though the New Plan lacked the explicit racial

guidelines of the Old Plan.

Plaintiffs' reliance on selected excerpts ignores the

totality of the evidence. As already noted, BPS's statistical

analyses showed that, even with the elimination of the racial

guidelines and a 100% walk zone preference in place, there was only

a "very, very small" racial result. Superintendent Payzant

testified at trial that BPS compared the results of a 100% walk

zone preference applied both with and without the use of the racial

guidelines called for in the Old Plan

to let the data speak for themselves and show
to the Commissioner, and ultimately the State
Board of Education, that the impact of the
change in the student assignment plan by
removing racial guidelines but keeping the
other elements of the controlled choice would
enable us to come very close to the same
circumstances that we had that qualified us
for . . . meeting the standards of the Racial
Imbalance Law before the policy was changed.

their compliance with the racial balancing requirements of the RIL.
Id. § 37D. BPS last received RIL funds in November 2001 because
the Massachusetts legislature defunded the program for 2002. The
program remains unfunded, and its validity is currently being
challenged in the federal courts. Comfort ex rel. Neumyer v. Lynn
School Comm., 283 F. Supp. 2d 328 (D. Mass. 2003) appeal docketed,
No. 03-2415 (1st Cir. Oct. 17, 2003).

-31-
 The data are indeed telling. According to Superintendent

Payzant's testimony to the Board of Education, when BPS simulated

the first-round transition grade assignments for the 1999-2000 year

using actual parent choices but eliminating only the use of the

racial guidelines, it found that just three additional schools

would have one or more transitional grades falling outside the

racial guidelines. Using the parental choice data to analyze the

effect on individual student placements without the use of the

racial guidelines revealed that only 938 out of 13,057 (or seven

percent) of students would have been assigned to different schools.

About fifty-three percent of those 938 individual changed

assignments would have resulted in the student being assigned to a

school which she had ranked higher, and, correspondingly, forty-

seven percent would have been assigned to a school which she had

ranked lower. Whites, Asians, and Hispanics fared slightly better

as groups, while blacks and Native Americans fared slightly worse.

In sum, BPS's analyses showed that, even after removing

the racial guidelines of the Old Plan, the BPS school assignment

system did not need further modification to maintain the "racial

balance" required to be eligible for RIL funds. Although

defendants were pressured by RIAC to continue explicit racial

balancing, they refused to comply, despite the substantial RIL

funds at stake.

-32-
 However, the Superintendent and the School Committee were

also concerned about equity of choice and access across the system,

particularly for students who lived in neighborhoods with

inadequate capacity or underperforming schools. In his July 14,

1999 memo to the School Committee, Superintendent Payzant commented

that "it is important to note that this is not an issue of

returning to neighborhood schools. That can happen in an equitable

way only when new quality schools are built in neighborhoods that

now have an insufficient number of schools to serve resident school

age children . . . ." This concern is further reflected in the

summary description of the New Plan provided to the Commissioner of

Education as part of BPS's RIL compliance presentation. That

document stated that the Superintendent and the School Committee

are confident that the [New Plan] continues to
ensure both choice and access beyond a
student's particular neighborhood in order to
preserve racial and ethnic diversity and
reduce the likelihood of racial isolation
within its schools. In addition, the [New
Plan] retains all of the educational benefits
of the original Controlled Choice Student
Assignment Plan, including the promotion of
school improvement, continuity and stability
of placement, and equitable distribution of
resources and educational opportunity
district-wide.

The defendants' public confidence that the New Plan preserved

racial diversity while advancing the other values that they

identified was not an admission that the New Plan was a suspect

-33-
device to achieve the numerically precise racial balancing of the

Old Plan.

Contrary to plaintiffs' arguments, the mere invocation of

racial diversity as a goal is insufficient to subject the New Plan

to strict scrutiny. In those cases where the Supreme Court

inquired whether diversity is a compelling state interest and

whether the program at issue could survive strict scrutiny, the

programs were all subjected to strict scrutiny because they used

explicit racial classifications to achieve the goal of diversity.17

None of these cases, nor any other case to which our attention has

been drawn, has subjected a governmental program to strict scrutiny

simply because the state mentioned diversity as a goal. As the

district court succinctly put it: "Motive, in other words, is not

always suspect. Means, however, may be." BCF IV, 260 F. Supp. 2d

at 330. The Supreme Court has explained that the motive of

increasing minority participation and access is not suspect. See,

17
See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-12
& 319 (1978) (noting that a "diverse student body . . . is a
constitutionally permissible goal for an institution of higher
education" but striking down a two-track medical school admissions
system that used "explicit racial classification[s]") (opinion of
Powell, J.); Gratz v. Bollinger, 539 U.S. 244 (2003) (striking down
as not narrowly tailored an undergraduate admissions system that
automatically awarded twenty points in admissions scoring to
members of under-represented ethnic and racial minority groups);
Grutter v. Bollinger, 539 U.S. 306, 334 & 328 (2003) (holding that
"[u]niversities can . . . consider race or ethnicity more flexibly
as a 'plus' factor in the context of individualized consideration
of each and every applicant" and that a diverse student body is a
sufficiently compelling interest to justify such use of race).

-34-
e.g., City of Richmond v. JA Croson Co., 488 U.S. 469, 507 (1989)

(approving the use of race-neutral means to increase minority

participation in governmental programs).

We said as much in Raso v. Lago, 135 F.3d 11 (1998),

where we considered an equal protection and § 1983 challenge to a

facially race-neutral policy change regarding the award of housing

units that, at the end of the day, resulted in fewer white

residents receiving a preference for the units to which they would

have otherwise been entitled because of their prior residency.

After acknowledging that the change in policy was motivated by a

desire to ensure that all races had equal access to the new

housing, we stated that "plaintiffs are mistaken in treating

'racial motive' as a synonym for a constitutional violation." Raso,

135 F.3d at 16.

Employing de novo review and placing Superintendent

Payzant's cited testimony in the context of the entire record, we

find that the plaintiffs have not shown that the defendants' use of

the word "diversity" was simply a subterfuge for "racial

balancing." While defendants frankly acknowledged that they valued

the degree of integration BPS had attained since it came under

federal court order thirty years ago, their analyses using actual

parental choice patterns showed that removing the racial guidelines

of the Old Plan and the maintenance of a 100% walk-zone preference

would not significantly erode those integration gains. BPS then

-35-
resisted pressure to adhere to strict racial balancing, even with

RIL funds potentially on the table, and adopted the race-neutral

New Plan. To increase the likelihood of a favorable outcome on

diversity and to promote "school improvement, continuity and

stability of placement, and equitable distribution of resources and

educational opportunity district-wide," as well as the system's

ongoing goals of "excellence, equity and diversity," the defendants

opted for the 50% walk-zone preference.

As the district court put it, Superintendent Payzant's

reference to diversity "simply restated his more convincing point

that the revised assignment plan is intended to address issues of

equity by giving parents in under-served neighborhoods fairer

access to the school system's resources." BCF IV, 260 F. Supp. 2d

at 332. To the extent that the School Committee's adoption of the

New Plan promoted choice and equitable access to BPS resources for

all students in the BPS system, as well as diversity, there is

nothing in that mix of goals or the means of achieving them that

triggers strict scrutiny under our own precedents or those of the

Supreme Court.

c. Disproportionate effect

Having rejected plaintiffs' claims that the history of

the New Plan's adoption, and its stated goal of diversity, require

the application of strict scrutiny review, we now turn to their

evidence regarding the impact of the New Plan. As we previously

-36-
noted, a disproportionate racial effect of a policy can be evidence

of an invidious discriminatory purpose. Although plaintiffs cite

to "individual examples of the racial effect" of the 50% reduction

in walk zone seats under the New Plan, they neither describe these

examples as a "disproportionate effect" nor accept that any such

disproportionate effect of the New Plan is relevant to establishing

defendants' purportedly racially discriminatory purpose. Instead,

they argue that their individual examples suffice to establish an

equal protection violation. Before explaining how plaintiffs

apparently misunderstand the relevant case law and their resultant

evidentiary burden in this case, we first recount the evidence they

presented on the racial effect of the New Plan.

To establish the allegedly discriminatory effect of the

New Plan's reduction of the walk zone preference from 100% to 50%

of available seats, plaintiffs relied exclusively on the testimony

of Ann Walsh, president of Boston's Children First.18 Although

Walsh testified that she reviewed admissions data from "every

school in the city," she only presented data for the 2002-03

admission rounds for one class in each of three schools: a pre-

kindergarten program at the Wolfgang Amadeus Mozart Elementary

18
Walsh has a Master's Degree in mathematics and was enrolled
in law school while the trial was ongoing. BCF IV, 260 F. Supp. 2d
at 328. She also was "a couple of courses short a Master's Degree
in computer science." Id. (quoting the trial transcript). Walsh
"has never worked as a statistician," id., and apparently lacks
formal training in that area.

-37-
School, and two kindergarten programs at the Richard J. Murphy

Elementary School and the Mary Lyon Elementary School. Walsh

testified that she selected these particular schools because she

"looked for schools with white walkers who were pushed aside by the

[change to a] 50% [walk zone preference], and [these three schools

were] an example of that."

Walsh prepared one-page charts for each of these schools,

comparing the racial demographics of students who were admitted to

the selected classes under the New Plan, with its 50% walk zone

preference, to the racial demographics of students who would have

been admitted if a full 100% of the seats had been reserved for

students who lived within the walk zone. Walsh's testimony, and

the charts she prepared for this litigation, show that in the three

elementary schools--out of the 85 or so in the BPS system--a total

of twenty white students who would have been admitted under a

hypothetical 100% walk zone preference were not admitted under the

actual 50% walk zone preference. In plaintiffs' view, with this

showing of "individual examples of the racial effect" of the change

in the walk zone preference, there was no need to engage in any

systemwide analysis of the racial impact of the walk zone seat

reduction. Indeed, Walsh did not attempt to project a systemwide

impact from her three-school analysis. Walsh explicitly testified

that she is "opposed to the concept that the overall impact on the

school system is the issue."

-38-
 Plaintiffs erred in this minimalist approach to their

evidentiary burden in this case. To be sure, the Equal Protection

Clause protects individuals: "rights created by the first section

of the Fourteenth Amendment are, by its terms, guaranteed to the

individual. The rights established are personal rights." Shelley

v. Kraemer, 334 U.S. 1, 22 (1948). When a governmental policy

employs overt racial classifications, the impact of race on an

individual outcome is clear. As we have explained, courts will

then apply strict scrutiny to determine whether the use of the

racial classification is narrowly tailored to serve a compelling

state interest. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 275-

76 (2003). As we discuss infra in Part III.D., the Old Plan used

explicit racial guidelines, and two plaintiffs in this case--John

Feeney and Kathleen McCoy--showed that they were denied seats at

their schools of choice under the Old Plan because of their race

and the imposition of racial caps in force at that time.

Accordingly, they were awarded nominal damages in recognition of

that injury.

In contrast, when evaluating a facially race-neutral

policy, the impact of race on an individual outcome is not always

immediately clear. Courts can only infer that an invidious racial

purpose motivated a facially neutral policy when that policy

creates disproportionate racial results. "Sometimes a clear

pattern, unexplainable on grounds other than race, emerges from the

-39-
effect of the state action even when the governing legislation

appears neutral on its face." Village of Arlington Heights v.

Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 (1977) (emphasis

added). See also Washington v. Davis, 426 U.S. 229, 242 (1976)

("an invidious discriminatory purpose may often be inferred from

the totality of the relevant facts, including the fact, if it is

true, that the law bears more heavily on one race than another.").

In this context, showing only isolated instances of

students not receiving assignments at their first choice schools is

insufficient. Here, there is no clear pattern of disparate racial

impact, much less the "stark" pattern contemplated by Arlington

Heights. Id. ("Absent a pattern as stark as that in Gomillion or

Yick Wo, impact alone is not determinative . . . .") (footnotes

omitted). At most, plaintiffs have established that in three

schools the reduction from 100% to 50% of seats set aside for

students in the walk zone resulted in twenty white students, out of

the approximately 25,000 or so elementary (K-5) students in the BPS

system, not being assigned to their first choice school. More

relevantly, Walsh's own charts show that seven of the twenty

students who actually were assigned to the disputed seats were

white, meaning that the impact on whites as a group was a net loss

of thirteen seats.19 Isolated examples that only show a small net

19
Specifically, in terms of net numbers, plaintiffs showed that
eight fewer white students were admitted to the Murphy School under
the New Plan's 50% walk zone preference as compared to a 100% walk

-40-
loss of seats to white students in selected schools is a far cry

from showing that the New Plan disproportionately affects white

students in the BPS system. In fact, as the district court

emphasized, even with the reduction in walk zone seats, "in the

2002-2003 school year, 80 percent of white applicants received

their first choice of schools, as compared to 77 percent of black

applicants." BCF IV, 260 F. Supp. 2d at 332.

Even if this showing could be characterized as evidence

of a disproportionate effect, a characterization which we reject,

the "individual examples of the racial effect" cited by plaintiffs

are explainable "on grounds other than race." Arlington Heights,

429 U.S. at 266. As the district court found, plaintiffs "have not

been able to show [] that the loss was due to discrimination . . .

. Rather, as defendants point out, white students have been denied

admission to certain schools, not because they were forced to

compete on a non-level playing field, but because their parents

have tended to over-choose these same schools." BCF IV, 260 F.

Supp. 2d at 332. If plaintiffs had been able to show that the New

Plan resulted in stark systemwide racial disparities regarding

assignments to first choice schools, we might--depending on the

circumstances--have reached the conclusion that intentional

discrimination occurred and so adopt a stricter standard of

zone preference; three fewer at the Mozart School; and two fewer at
the Lyon School.

-41-
scrutiny in assessing justification. Plaintiffs chose, however, to

eschew such analysis.

The BCF IV court rightly concluded that plaintiffs'

evidence fails to show any disproportionate effect of the New

Policy.

[I]t was open to plaintiffs to show that the
reduction in the walk zone preference has had
a disproportionate impact on white children,
that is, that a greater percentage of white
students have found themselves shut out of
their neighborhood schools. This plaintiffs
have not done.

Id. at 331-32. With plaintiffs having shown no racial

classification at play in the New Plan, no discriminatory purpose

for its adoption, and no discriminatory effect of its application,

we cannot conclude that the plan "in some sense was designed to

accord disparate treatment on the basis of racial considerations."

Washington v. Seattle School Dist., 458 U.S. 457, 485 (1982).

Consequently, the district court correctly held that the New Plan

was not subject to strict scrutiny.20

3. Rational Basis Review

20
We also note that plaintiffs' extensive reliance on Wessmann
is misplaced. Without belaboring the point, the admissions plan in
Wessmann subjected a certain number of seats to strict numerical
racial guidelines. Here, in contrast, the New Plan is facially
race-neutral with no mention of race, racial classifications, set-
asides, or quotas.

-42-
 Instead, since race-based classifications are not in play

and plaintiffs failed to show that the New Plan was adopted with a

discriminatory purpose, the New Plan must only survive rational

basis review: as long as the plan is rationally related to a

legitimate governmental interest, it must be upheld. See, e.g.,

Romer v. Evans, 517 U.S. 620, 631 (1996) (holding that "if a law

neither burdens a fundamental right nor targets a suspect class, we

will uphold the legislative classification so long as it bears a

rational relation to some legitimate end").

As we have explained at some length, defendants adopted

the New Plan to foster "excellence, equity and diversity through

access and educational opportunity throughout the Boston Public

Schools." All of those goals are legitimate state interests, and

the assignment process of the New Plan is rationally related to

achieving them. Plaintiffs do not contend otherwise. Again, we

think the district court said it well:

Because the School Committee has rescinded the
use of any form of racial classification,
direct or indirect, in the New Choice Plan,
its stated objectives of preserving parental
choice and opportunity, particularly for
parents who would otherwise be restricted in
their choice of schools, and of fostering
school excellence by permitting parents to
vote with their feet, satisfy the
reasonableness test.

BCF IV, 260 F. Supp. 2d at 333.

-43-
 Accordingly, we reject plaintiffs' claims that the New

Plan violates their rights under the Equal Protection Clause of the

Fourteenth Amendment, Title VI, or §§ 1981 and 1983.

4. Article 111 Claim

Although plaintiffs argue in their opening brief to this

court that the Old Plan violated Article 111 of the Amendments to

the Massachusetts Declaration of Rights, they only summarily state

once that "the District Court should have subjected the New Plan to

Strict Scrutiny under Article 111," (emphasis added), citing to

Comfort ex rel. Neumyer v. Lynn School Comm., 283 F. Supp. 2d 328

(D. Mass. 2003) without comment. When a party includes no

developed argumentation on a point, as is the case here, we treat

the argument as waived under our well established rule. See United

States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997) ("We have

steadfastly deemed waived issues raised on appeal in a perfunctory

manner, not accompanied by developed argumentation.").

We make two points, however. First, in the context of

arguing that the Old Plan violated Article 111, plaintiffs claim

that the "Comfort Court held that under Art. 111, school assignment

plans that deny students an assignment to their neighborhood

schools are subject to strict scrutiny . . . ." This misstates

Comfort. Comfort, 237 F. Supp. 2d at 366 ("I recognize . . . the

need to proceed with caution. . . . [A]lthough I am convinced by

amici that intermediate scrutiny is the correct test to apply here,

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my analysis below will apply the more rigorous standard which the

parties have briefed, strict scrutiny.") Second, and more

importantly, given our disposition of the federal claims, we would

not find that the New Plan assigns students "on the basis of race,

color, national origin or creed." Mass. Const. amend. art. 111.

C. Prospective Injunctive Relief

Injunctive relief21 is a discretionary remedy. Thus,

appellate courts typically review grants or denials of such relief

only for abuse of discretion. Caroline T. v. Hudson School Dist.,

915 F.2d 752, 754 (1st Cir. 1990). However, to the extent that the

disposition of the request for an injunction turns on an issue of

law, such as lack of standing or mootness, appellate courts review

such determinations de novo. See Langlois v. Abington Housing

Authority, 207 F.3d 43, 47 (1st Cir. 2000) (observing that although

injunctions are typically reviewed for abuse of discretion, "the

standard of review obviously depends on the issue under

consideration. Generally speaking, pure issues of law . . . are

reviewed de novo, findings of fact for clear error, and 'judgment

calls' with considerable deference depending upon the issue.")

21
In their brief to this court, plaintiffs' request for
prospective injunctive relief was limited to a prohibitory
injunction against the future use of the Old Plan. However, the
district court ruling on this issue addressed one of the broader
prohibitory injunctions plaintiffs sought during litigation--
namely, an injunction proscribing the future use of race in the
student assignment system in any way. BCF IV, 260 F. Supp. 2d at
333. Because of our disposition of this issue on appeal, the
discrepancy between these two requests is immaterial.

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 Plaintiffs argue that the district court erred by

dismissing their request for an injunction against BPS's future use

of race because of a lack of standing, citing to BCF II, 98 F.

Supp. 2d at 117 and BCF III, 183 F. Supp. 2d at 395, without

quoting any language of the district court. Plaintiffs misread the

district court's holdings. The district court in fact did not

dismiss the plaintiffs' request for a prohibitory injunction for

lack of standing. As it noted in its May 21, 2002 Memorandum and

Order regarding this standing issue:

In a January 25, 2002 Memorandum and Order
[BCF III], the court found that while
plaintiffs lacked standing to pursue immediate
injunctive relief (given the absence of any
cognizable injury), there was a strong
possibility that one or more plaintiffs had
standing to seek prospective relief enjoining
any racially-based allocation of walk zone
preferences. . . . Consequently, the court
afforded plaintiffs an opportunity "for
further briefing of the Lesage issues
identified in this opinion, as well as issues
of a constitutional dimension raised by the
School Committee's walk zone preference
policy." [citing BCF III, 183 F. Supp. 2d at
403.]

Boston's Children First v. Boston School Comm., No. Civ. A. 99-

11330-RGS, 2002 WL 1058923, at *1 (D. Mass. May 21, 2002) (citation

omitted) ("May 21 Order"). The "Lesage issues" identified in this

May 21 Order relate to the standing and mootness discussion in BCF

III, 183 F. Supp. 2d at 392-95.

In the May 21 Order, which addressed, inter alia,

plaintiffs' standing to seek the requested prohibitory injunction,

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the district court explained that seven of the ten plaintiffs22

either "attested to having applied for year 2002-2003 admission to

schools within their walk zones" or "attest[ed] to their intention

to remain in the Boston public school system to apply for middle

school assignments within their respective walk zones." May 21

Order at *1. The district court then concluded that "under Lesage

each [of the seven] has demonstrated standing to seek forward-

looking relief." Id.

Here, then, the district court explicitly held that seven

of the plaintiffs had standing to seek an injunction prohibiting

BPS from the unconstitutional use of race in future assignment

systems. As can be seen from both the May 21 Order and the

treatment of plaintiffs' request for forward-looking relief in BCF

IV, which we discuss next, the district court did not dismiss this

claim for want of standing. Accordingly, we can dispense with any

further analysis on that ground.

After a bench trial on the merits, the district court

denied plaintiffs' requests to enjoin defendants from the future

use of race and to retain jurisdiction over the assignment system.

BCF IV, 260 F. Supp. 2d at 333-34. Plaintiffs claim that the

22
These seven plaintiffs were Nicholas Anderson, Kayleigh
Barry-Meltzer, Michael Gattozzi, Kathleen McCoy, John O'Toole,
Andrew Sharaffa, and Thomas Stoddard. The three remaining
plaintiffs--John Feeney, Jamie Lee Higgins, and Sean Stoddard--
failed to attest that they intended to reapply for placement.

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district court misapplied City of Mesquite v. Aladdin's Castle,

Inc., 455 U.S. 283 (1982) in so ruling. There was no such error.

We discussed City of Mesquite in New England Regional

Council of Carpenters v. Kinton, 284 F.3d 9 (1st Cir. 2002), where

we held that when a governmental entity revised a challenged policy

to remove the offending language, plaintiffs' claim for injunctive

relief was mooted. Id. at 18. Directly addressing the Supreme

Court's decision in City of Mesquite, we explained that the Supreme

Court had "held that 'a voluntary cessation of a challenged

practice does not deprive a federal court of its power to determine

the legality of the practice.'" Id. (quoting City of Mesquite, 455

U.S. at 289). This is precisely the City of Mesquite language upon

which plaintiffs rely. As we made clear in Kinton, though, this

reliance is misplaced: "Under circuit precedent . . . the City of

Mesquite exception applies 'only when there is a reasonable

expectation that the challenged conduct will be repeated following

dismissal of the case.'" Kinton, 284 F.3d at 18 (quoting D.H.L.

Assocs., Inc. v. O'Gorman, 199 F.3d 50, 55 (1st Cir. 1999)). There

is no such reasonable expectation here. As the district court

observed in BCF IV: "Mere skepticism . . . about the defendants'

future intentions[] cannot justify the type of judicial

intervention that plaintiffs seek." BCF IV, 260 F. Supp. 2d at

333.

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 Whether this ruling is characterized as one based on

mootness concerns (reviewed de novo) or on the merits (reviewed for

abuse of discretion), we find that the district court did not err

in denying plaintiffs' claims for an injunction prohibiting BPS

from the unconstitutional use of race in future student assignment

plans. Defendants have voluntarily abandoned the unconstitutional

use of race in all of its student assignment systems, and they have

expressed in testimony and in letters to the Racial Imbalance

Advisory Council and the Board of Education their strong desire to

comply with constitutional requirements in all future assignment

systems. As we have discussed supra in Part III.B.2.b, the

defendants' commitment to diversity is not per se constitutionally

suspect. While there is ample evidence that defendants will

continue to monitor relevant school demographics and will consider

modifying the current assignment system to meet all of their stated

goals, including diversity, plaintiffs have been unable to show any

reasonable expectation that defendants will return to

unconstitutional means to achieve those goals. Accordingly, we see

no reason to overturn the district court's denial of the requested

prohibitory injunction.

D. Nominal Damages

Finally, in BCF V, the district court found that only two

plaintiffs were denied their preferred choice of schools because of

their race under the Old Plan, and to those two plaintiffs the

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district court awarded nominal damages. BCF V, at 2 (awarding

$1.00 each to John Feeney and Kathleen McCoy).23 On appeal, the

eight remaining plaintiffs seek nominal damages as well, claiming

that the district court erred in two regards.

First, plaintiffs state that

[i]t is impossible to deconstruct what
assignments would have been made under the Old
Plan had race not been a factor. The BPS
Director of Records Management admitted that
he could not simulate for how [sic] choices
would have changed had the racial caps and set
asides of the Old Plan not been in place.

Plaintiffs provide no citation to support this contention, and the

district court found as a matter of fact that BPS did indeed

demonstrate that the other eight plaintiffs were not denied seats

at their preferred schools because of race. See BCF III, 183 F.

Supp. 2d at 387-91 (detailing the assignment histories of each

plaintiff); see also BCF V. As we review factual determinations

for clear error, Wessmann, 160 F.3d at 795, and plaintiffs have

23
For the 2000-01 school year, John Feeney applied in the third
application round for a kindergarten seat, ranking five schools in
order of his preference. The first two had been filled in earlier
rounds. He was not assigned to his third and fourth choice schools
because under the racial guidelines then in force, no more seats
were available for white students. As a result, the remaining
available seats were assigned to black students with worse random
numbers. BCF III, 183 F. Supp. 2d at 388-89.
Similarly, for the 1996 school year, Kathleen McCoy applied
for assignment to four schools. She was unsuccessful in gaining
assignment to her first and second choice schools. At her third
choice school, Condon, she was denied a seat solely because of the
operation of the racial guidelines; black students with worse
random numbers than hers received assignments to Condon instead.
Id. at 389.

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pointed to no record evidence to contradict the district court's

relevant factual findings, we leave them undisturbed on appeal.

Second, plaintiffs claim that the district court misread

Texas v. Lesage, 528 U.S. 18 (1999) (per curiam). In Lesage, the

University of Texas denied a Caucasian applicant admission to a

Ph.D. program while admitting at least one minority candidate. The

parties agreed that "the school considered the race of its

applicants at some stage during the review process." Id. at 19.

The University showed that "even if the school's admissions process

had been completely colorblind, Lesage would not have been

admitted." Id. The Supreme Court held that if a defendant

"conclusively established that [plaintiff] would have been rejected

under a race-neutral policy," damages are not available. Id. at

20. The Court could not have been clearer: "The government can

avoid liability by proving that it would have made the same

decision without the impermissible motive." Id. at 21 (emphasis

added).

Plaintiffs claim that the "same decision" defense set

forth in Lesage is not available against claims for nominal damages

for constitutional violations. Plaintiffs misread Lesage in making

this argument. Lesage makes no distinction among the classes of

damages that become unavailable upon defendants' showing that they

would have reached the same admissions result even in the absence

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of an unconstitutional use of race. Lesage, 528 U.S. at 20.

Lesage is unambiguous:

Simply put, where a plaintiff challenges a
discrete governmental decision as being based
on an impermissible criterion and it is
undisputed that the government would have made
the same decision regardless, there is no
cognizable injury warranting relief under §
1983.

Id. at 21. Lesage did not limit this holding to compensatory

damages or qualify the type of relief in any way, other than to

mention that the case arose under § 1983. There is no doubt that

nominal damages are one of the forms of relief available under §

1983. See Farrar v. Hobby, 506 U.S. 103, 112 (1992) (stating that

in a § 1983 action, Supreme Court precedent "obligates a court to

award nominal damages when a plaintiff establishes the violation of

his right to procedural due process but cannot prove actual injury.")

As Farrar explains, where there is a deprivation of

constitutional rights that do not result in an "actual injury"

giving rise to compensatory damages, nominal damages are the

appropriate remedy. See also Carey v. Piphus, 435 U.S. 247, 266

(1978). However, Lesage makes clear that when the governmental

entity would have made the same decision even without the

impermissible consideration of race--as it did here for eight of

the plaintiffs--there is no deprivation of constitutional rights at

all. Lesage, 528 U.S. at 21. Without a deprivation of

-52-
constitutional rights, liability will not attach, and damages--

nominal, compensatory, or otherwise--cannot be imposed. Id.

In sum, we find no error in the district court's factual

findings that the eight plaintiffs seeking nominal damages on

appeal would not have been admitted to the school of their choice

even if BPS had not impermissibly considered race under the Old

Plan. Further, we find no error in the district court's

application of Lesage and other relevant precedent to the

plaintiffs' claims for nominal damages.

IV.

This case comes to us in the semi-centenary year of Brown

v. Board of Education, 347 U.S. 483 (1954). There, the Supreme

Court described the importance of public education:

Today, education is perhaps the most important
function of state and local governments.
Compulsory school attendance laws and the
great expenditures for education both
demonstrate our recognition of the importance
of education to our democratic society. It is
required in the performance of our most basic
public responsibilities, even service in the
armed forces. It is the very foundation of
good citizenship. Today it is a principal
instrument in awakening the child to cultural
values, in preparing him for later
professional training, and in helping him to
adjust normally to his environment. In these
days, it is doubtful that any child may
reasonably be expected to succeed in life if
he is denied the opportunity of an education.

Brown, 347 U.S. at 493. Given these high stakes in the access to

public education, it is not surprising that this case and those

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that preceded it have inspired deep passions among the parties and

their supporters. Indeed, in histories already written about the

aftermath of Brown in our large cities, Boston has often been cited

as a city that resisted fiercely the mandate of Brown and the

measures required to dismantle a public school system segregated by

government action.

Hopefully, future histories will also tell the rest of

the story. Attitudes in Boston have evolved, policies have

changed, institutions have reorganized. In many ways, the social

fabric has been re-knit. But this healing has not lowered the

stakes in public education. People of good faith, harboring only

the best of intentions, can--and do--disagree about the ultimate

resolution of the difficult legal and social issues that surround

public education generally and school assignment systems

specifically. These continuing disagreements do not diminish all

that has been accomplished.

In the end, we are grateful to the parties and their

attorneys, as well as the amicus curiae, whose advocacy has

illuminated the difficult issues before us. We also express our

appreciation to the able district court judges who thoughtfully and

thoroughly addressed the many complex and difficult issues in this

case. The fact-finding and careful reasoning set forth in the four

published opinions in this case have significantly aided our review

on appeal.

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 For all of the foregoing reasons, the judgments of the

district court are AFFIRMED in all respects. No costs shall be

awarded.

So ordered.

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