Justia Federal District Court Opinions

The City of Boston operates three renowned "examination schools," the most prestigious of which is Boston Latin School (BLS). The entrance points for admission to BLS occur principally at the seventh- and ninth-grade levels. In this litigation, plaintiff-appellant Henry Robert Wessmann, on behalf of his minor child, Sarah P. Wessmann, challenges the constitutionality of BLS's admissions policy (the Policy). The district court rebuffed Wessmann's challenge. See Wessmann v. Boston Sch. Comm., 996 F.Supp. 120 (D.Mass.1998). On appeal, we must decide whether the Policy, which makes race a determining factor in the admission of a subset of each year's incoming classes, offends the Constitution's guarantee of equal protection. We conclude that it does.

We essay a brief historical reconnaissance to set the present dispute in perspective.

Over two decades ago, a federal district court adjudged the City of Boston (through its School Committee) to have violated the constitutional rights of African-American children by promoting and maintaining a dual public school system. See Morgan v. Hennigan, 379 F.Supp. 410, 480-81 (D.Mass.1974) (Morgan I ). Although the court found the school system as a whole guilty of de jure segregation, no specific evidence was produced to suggest that BLS's examination-based admissions policy discriminated against anyone or that those responsible for running BLS intended to segregate the races. See id. at 467-68. Nonetheless, BLS exhibited some of the symptoms of segregation: an anomalously low number of African-American students attended the school, see id. at 466 (tabulating statistics for examination schools), and the school had just changed its entrance testing methods pursuant to a consent decree settling charges that the earlier methods were themselves discriminatory, see id. at 467-68. These factors, combined with the City's inability to demonstrate that existing racial imbalances were not a result of discrimination, led the court to conclude that the City's examination schools (BLS included) were complicit in promoting and maintaining the dual system. See id. The presumption established by the Supreme Court in Keyes v. School Dist. No. 1, 413 U.S. 189, 210, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), to the effect that a finding of intentional segregation in a "meaningful portion" of a school system suggests that other segregated schooling in the system is not accidental, played a pivotal role both in the district court's holding and in our ensuing affirmance. See Morgan v. Kerrigan, 509 F.2d 580, 594 (1st Cir.1974) (affirming Morgan I, 379 F.Supp. at 467).

The remedy adopted by the district court, among other things, obligated BLS to ensure that at least 35% of each entering class would be composed of African-American and Hispanic students. See Morgan v. Kerrigan, 401 F.Supp. 216, 258 (D.Mass.1975). Relying on the Keyes presumption, we affirmed this set-aside as part of a comprehensive plan to ameliorate pervasive and persistent constitutional infirmities throughout the Boston public schools. See Morgan v. Kerrigan, 530 F.2d 401, 425 (1st Cir.1976).

The Boston school system began gradually to mend its ways. By 1987, systemic progress permitted us to conclude that, for all practical purposes, the School Committee had achieved unitariness in the area of student assignments. See Morgan v. Nucci, 831 F.2d 313, 326 (1st Cir.1987). We based our conclusion not only on the distribution of students throughout the City's schools, but also on the good faith demonstrated by school administrators in conforming with the demands of meaningful change. See id. at 319-26. Because comparable improvement had not been accomplished in other areas, such as faculty and staff integration and the renovation of facilities, we instructed that federal court supervision of elements other than student assignment continue. See id. at 327-32. The district court thereupon relinquished control over student assignments, even while retaining active supervision over other aspects of the school system.

After 1987, the City's three examination schools--BLS, Boston Latin Academy, and the O'Bryant School--were no longer under a federal court mandate to maintain a 35% set-aside. Nevertheless, the School Committee remained committed to the policy until 1995, when a disappointed applicant challenged the setaside's constitutionality. The district court granted injunctive relief directing the complainant's admission to BLS. See McLaughlin v. Boston Sch. Comm., 938 F.Supp. 1001, 1018 (D.Mass.1996). The School Committee then discontinued the 35% set-aside.

Concerned that the number of African-American and Hispanic students admitted to the examination schools might drop precipitously without a predetermined set-aside, school officials began researching alternative admissions policies in hopes of finding one that might prevent that result without offending the Constitution. The effort started in mid-1996 under the hegemony of Thomas Payzant, superintendent of the Boston public schools. Payzant commissioned Bain & Co. (Bain), a consulting firm, to review an array of admissions options ranging from lotteries to strict merit-selection plans and to report on how each option might affect the racial and ethnic composition of the examination schools' entering classes.

After Payzant informed the School Committee of Bain's preliminary findings, Robert P. Gittens, the School Committee chairman, appointed a task force to study the matter. The task force held meetings, hosted public hearings, and ultimately recommended the adoption of Bain's "Option N50." Bain's study showed that a major difference between Option N50 and some other possible alternatives (such as a strict merit-selection option) was that the former would minimize the diminution of black and Hispanic student admissions expected to result from abandonment of the 35% set-aside. Three members dissented from this recommendation. The School Committee nonetheless accepted Option N50, effective for the 1997-98 school year. Option N50 thereupon became the core of the Policy.

We recount the Policy's most salient features, leaving aside complexities not relevant to the case at hand. To gain admission to one of Boston's three examination schools, a student must take a standardized test. Based on a mathematical formula that purports to predict academic performance, school hierarchs combine each applicant's test score with his or her grade point average, derive a composite score, rank all applicants accordingly, and proceed to assign individuals to the applicant pool for the examination school(s) in which they have indicated an interest. To be eligible for admission to any of the examination schools, an applicant must be in the qualified applicant pool (QAP), a group composed of those who rank in the top 50% of the overall applicant pool for that particular school.

Half of the available seats for an examination school's entering class are allocated in strict accordance with composite score rank order. The other half are allocated on the basis of "flexible racial/ethnic guidelines" promulgated as part of the Policy. To apply these guidelines, school officials first determine the relative proportions of five different racial/ethnic categories--white, black, Hispanic, Asian, and Native American--in the remaining pool of qualified applicants (RQAP), that is, the QAP for the particular school minus those persons already admitted on the basis of composite score rank order alone. They then fill the open seats in rank order, but the number of students taken from each racial/ethnic category must match the proportion of that category in the RQAP. Because the racial/ethnic distribution of the second group of successful applicants must mirror that of the RQAP, a member of a designated racial/ethnic group may be passed over in favor of a lower-ranking applicant from another group if the seats allotted for the former's racial/ethnic group have been filled.

Sarah Wessmann encountered such a fate. BLS had 90 available seats for the 1997 ninth-grade entering class. Based on her composite score, Sarah ranked 91st (out of 705) in the QAP. To fill the first 45 seats, the school exhausted the top 47 persons on the list (two aspirants declined in order to accept invitations from another examination school). Had composite scores alone dictated the selection of the remainder of the ninth-grade entering class, Sarah would have been admitted. But the racial/ethnic composition of the RQAP was 27.83% black, 40.41% white, 19.21% Asian, 11.64% Hispanic, and 0.31% Native American. Consequently, the Policy required school officials to allocate the final 45 seats to 13 blacks, 18 whites, 9 Asians, and 5 Hispanics. As a result, black and Hispanic students whose composite score rankings ranged from 95th to 150th displaced Sarah and ten other white students who had higher composite scores and ranks.

Acting to Sarah's behoof, her father sued a coterie of defendants (collectively, the School Committee), alleging that the Policy had defeated her candidacy and challenging its constitutionality. Following a 13-day bench trial, the district court held that the School Committee's interests in promoting a diverse student body and remedying vestiges of past discrimination were compelling, and that the means crafted by the School Committee to further these interests were not so expansive as to raise constitutional concerns. See Wessmann, 996 F.Supp. at 127-32. This appeal ensued.

We divide our analysis into four segments, beginning with the standards that govern our review, then addressing the general idea of "compelling governmental interests," and, finally, proceeding to consider seriatim the two justifications asserted by the School Committee in defense of the Policy.

A. Standards of Review.

The Supreme Court consistently employs sweeping language to identify the species of racial classifications that require strict scrutiny, see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (plurality op.) (concluding upon a review of the Court's precedents that government must "justify any racial classification subjecting [a] person to unequal treatment under the strictest judicial scrutiny"); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality op.) (remarking that racial distinctions of "any sort" invite "the most exacting judicial examination") (citation and internal quotation marks omitted), and the Policy fits comfortably within this rubric. We conclude, therefore, that strict scrutiny is the proper standard for evaluating the Policy. Hence, the Policy must be both justified by a compelling governmental interest and narrowly tailored to serve that interest in order to stand.

The School Committee's rejoinder--that the Policy is not a quota--is a non sequitur. We agree that the Policy does not constitute a quota--at least not in the literal sense of an unchanging set-aside--but that fact gains the School Committee little ground. At a certain point in its application process--specifically, during the selection of the second half of each incoming class--the Policy relies on race and ethnicity, and nothing else, to select a subset of entrants. Thus, whether the Policy is truly a quota or whether it is best described otherwise is entirely irrelevant for the purpose of equal protection analysis. Attractive labeling cannot alter the fact that any program which induces schools to grant preferences based on race and ethnicity is constitutionally suspect. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 289, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.) (noting that regardless of whether the limitation at issue is described as "a quota or a goal," it is "a line drawn on the basis of race and ethnic status"); cf. Lutheran Church-Mo. Synod v. FCC, 141 F.3d 344, 354 (D.C.Cir.1998) (articulating similar sentiments anent employment preferences).

The School Committee also asserts an entitlement to more lenient review because the Policy neither benefits nor burdens any particular group. Under the flexible guidelines, the argument goes, the racial/ethnic distribution of the entering classes will change yearly, and thus, there is no real preference for any single group.

This assertion leads nowhere, for the manner in which the Policy functions is fundamentally at odds with the equal protection guarantee that citizens will be treated "as individuals, not as simply components of a racial, religious, sexual or national class." Miller v. Johnson, 515 U.S. 900, 911, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (citations and internal quotation marks omitted). Even though we may not know before the fact which individuals from which racial/ethnic groups will be affected, we do know that someone from some group will be benefitted and a different someone from a different group will be burdened. Because a court's obligation to review race-conscious programs and policies cannot be made to depend "on the race of those burdened or benefitted by a particular classification," City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality op.) (citations omitted), no more is exigible to bring strict scrutiny into play.¹

A remaining issue under this heading concerns our review of the district court's findings and conclusions. We accord deferential review to specific findings of fact emanating from a bench trial. See Fed.R.Civ.P. 52(a). Here, however, because the issues advanced in this appeal--specifically, whether diversity and curing vestiges of past discrimination satisfy strict scrutiny--raise either questions of law or questions about how the law applies to discerned facts, our review is essentially plenary. See Vecinos De Barrio Uno v. City of Holyoke, 72 F.3d 973, 978 (1st Cir.1995).

B. Compelling Interests: An Overview.

The question of precisely what interests government may legitimately invoke to justify race-based classifications is largely unsettled. Of course, we know that such state action is acceptable upon a showing, inter alia, that it is needed to undo the continuing legacy of an institution's past discrimination. See Miller, 515 U.S. at 920, 115 S.Ct. 2475. We also know that the Court has rejected the "role model" theory as a compelling interest. See Croson, 488 U.S. at 497-98, 109 S.Ct. 706. Beyond these examples, the case law offers relatively little guidance.

A few cases suggest (albeit in dictum) that remedying past discrimination is the only permissible justification for race-conscious action by the government. See, e.g., id. at 493, 109 S.Ct. 706 (stating that unless classifications based on race are "strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility"). But in certain milieus, some courts have accepted race-based taxonomies that are not linked to remedying past discrimination, particularly in settings such as law enforcement and corrections. See Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir.1996) (collecting cases);² see also Croson, 488 U.S. at 521, 109 S.Ct. 706 (Scalia, J., concurring) (stating that, "[a]t least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb" may justify race-conscious action).

In considering whether other governmental interests, beyond the need to heal the vestiges of past discrimination, may be sufficiently compelling to justify race-based initiatives, courts occasionally mention "diversity". At first blush, it appears that a negative consensus may be emerging on this point. The Wittmer court noted that the defendants "did not rely on generalities about racial balance or diversity" to justify their hiring program, suggesting that such an attempted justification would have lacked vitality. 87 F.3d at 920. Other courts have stated the conclusion more explicitly. See Lutheran Church-Mo. Synod, 141 F.3d at 354 (ruling out diversity as a compelling governmental interest in the employment context); Hopwood v. State of Texas, 78 F.3d 932, 948 (5th Cir.1996) (similar, in the educational context).

We think that any such consensus is more apparent than real. In the education context, Hopwood is the only appellate court to have rejected diversity as a compelling interest, and it did so only in the face of vigorous dissent from a substantial minority of the active judges in the Fifth Circuit. See Hopwood v. State of Texas, 84 F.3d 720, 721 (5th Cir.1996) (Politz, C.J., with whom King, Wiener, Benavides, Stewart, Parker, and Dennis, JJ., joined, dissenting from denial of rehearing en banc). The question that divided the Fifth Circuit centered on the precedential value of Justice Powell's controlling opinion in Bakke. The panel in Hopwood pronounced that opinion dead. The dissenting judges countered that the reports of Bakke 's demise were premature.

It may be that the Hopwood panel is correct and that, were the Court to address the question today, it would hold that diversity is not a sufficiently compelling interest to justify a race-based classification. It has not done so yet, however, and we are not prepared to make such a declaration in the absence of a clear signal that we should. See Agostini v. Felton, 521 U.S. 203, ----, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997). This seems especially prudent because the Court and various individual Justices from time to time have written approvingly of ethnic diversity in comparable settings, see, e.g., Wygant, 476 U.S. at 315, 106 S.Ct. 1842 (Stevens, J., dissenting); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 472-73, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982), or have noted that the issue remains open, see Wygant, 476 U.S. at 286, 106 S.Ct. 1842 (O'Connor, J., concurring). But see Metro Broad., Inc. v. FCC, 497 U.S. 547, 614, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (O'Connor, J., dissenting) ("Like the vague assertion of societal discrimination, a claim of insufficiently diverse broadcasting viewpoints might be used to justify equally unconstrained racial preferences, linked to nothing other than proportional representation of various races.").

As matters turn out, we need not definitively resolve this conundrum today. Instead, we assume arguendo--but we do not decide--that Bakke remains good law and that some iterations of "diversity" might be sufficiently compelling, in specific circumstances, to justify race-conscious actions. It is against this chiaroscuro backdrop that we address the School Committee's asserted "diversity" justification for the Policy. Thereafter, we turn to its alternate justification: that the Policy is an appropriate means of remediating the vestiges of past discrimination.

C. Diversity.

The word "diversity," like any other abstract concept, does not admit of permanent, concrete definition. Its meaning depends not only on time and place, but also upon the person uttering it. See Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372 (1918) (Holmes, J.) ("A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."); Hanover Ins. Co. v. United States, 880 F.2d 1503, 1504 (1st Cir.1989) (warning of the fallacy of believing that "a word is a word is a word"). It would be cause for consternation were a court, without more, free to accept a term as malleable as "diversity" in satisfaction of the compelling interest needed to justify governmentally-sponsored racial distinctions.

The School Committee demurs. Citing to Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (stating that school authorities have "broad power to formulate and implement educational policy," including prescribing a specific percentage of minority students to attend each school "in order to prepare students to live in a pluralistic society") (dictum), it labors to persuade us that we would be warranted in deferring to its judgment because school officials necessarily enjoy substantial discretion in making education policy. We are not convinced.

The Swann song upon which the School Committee relies cannot be wrested from the score. Cf. Gomillion v. Lightfoot, 364 U.S. 339, 343-44, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) (admonishing that, "[p]articularly in 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, must not be applied out of context in disregard of variant controlling facts"). Swann was decided when dual educational systems were a reality and efforts to dismantle them were being frustrated by school officials who demonstrated little ardor for implementing the mandates of desegregation. Chary that the exigencies of the need for change might precipitate a rush to judgment, the Justices confirmed that federal courts must put the horse before the cart, that is, they must diagnose some constitutional malady before beginning to dispense remedies. See Swann, 402 U.S. at 16, 91 S.Ct. 1267. Thus, the Swann dictum, properly construed, recognizes that a low percentage of minority students in a particular school does not necessarily betoken unconstitutional conduct, but may result from innocent causes (say, the population distribution of a given district), and warns that, unless a skewed enrollment pattern is caused by unconstitutional student assignment practices, federal courts must defer to school officials' discretion and refrain from imposing remedies.

This well-accepted principle does not help the School Committee. The Swann Court had no occasion to consider the question, central to this appeal, of whether and to what extent the Constitution circumscribes school officials' discretion to formulate and implement an admissions policy that embraces a particular brand of pluralism. Cf. Bakke, 438 U.S. at 314, 98 S.Ct. 2733 (opinion of Powell, J.) ("Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded."). In the end, then, the School Committee's reference to Swann only begs the question: Swann reiterated that federal courts must grant remedies where there are constitutional violations, and the question here is whether the School Committee itself has violated the Constitution. It follows that, in order to persuade us that diversity may serve as a justification for the use of a particular racial classification, the School Committee must do more than ask us blindly to accept its judgment. It must give substance to the word.³

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

Stated at this level of abstraction, few would gainsay the attractiveness of diversity. Encounters between students of varied backgrounds facilitate a vigorous exchange of ideas that not only nourishes the intellect, but also furthers mutual understanding and respect, thereby eroding prejudice and acting as a catalyst for social harmony. Indeed, Justice Powell's opinion in Bakke acknowledges that these very attributes may render an educational institution's interest in promoting diversity compelling. See id. In the last analysis, however, the School Committee's reliance on generalizations undercuts its construct. If one is to limit consideration to generalities, any proponent of any notion of diversity could recite a similar litany of virtues. Hence, an inquiring court cannot content itself with abstractions. Just as Justice Powell probed whether the racial classification at issue in Bakke in fact promoted the institution's stated goals, see id. at 315-19, 98 S.Ct. 2733, we must look beyond the School Committee's recital of the theoretical benefits of diversity and inquire whether the concrete workings of the Policy merit constitutional sanction. Only by such particularized attention can we ascertain whether the Policy bears any necessary relation to the noble ends it espouses. In short, the devil is in the details.

By its terms, the Policy focuses exclusively on racial and ethnic diversity. Its scope is narrowed further in that it takes into account only five groups--blacks, whites, Hispanics, Asians, and Native Americans--without recognizing that none is monolithic. No more is needed to demonstrate that the School Committee already has run afoul of the guidance provided by the principal authority on which it relies: "The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Id. at 315, 98 S.Ct. 2733. A single-minded focus on ethnic diversity "hinder[s] rather than further[s] attainment of genuine diversity." Id. Nor is the Policy saved because the student assignments that it dictates are proportional to the composition of the RQAP. See id. (noting that the adoption of a "multitrack" program "with a prescribed number of seats set aside each for identifiable category of applicants" would not heal the admissions plan's constitutional infirmity).

When we articulated this concern at oral argument, the School Committee's able counsel responded that it is unnecessary for the Policy to consider other indicia of diversity because BLS historically has been diverse with respect to everything but race and ethnicity. For empirical confirmation of this assertion, the School Committee points to Bain's handiwork. Having analyzed various admissions options, Bain suggested that all the options would result in substantial gender, neighborhood, and socioeconomic diversity, but that, unless race and ethnicity were explicitly factored into the admissions calculus, attainment of racial and ethnic diversity might be jeopardized. This attempted confirmation does not pass constitutional muster.

If, as we are told, diversity has been attained in all areas other than race and ethnicity, then the School Committee's argument implodes. Statistics compiled for the last ten years show that under a strict merit-selection approach, black and Hispanic students together would comprise between 15% and 20% of each entering class, and minorities, in toto, would comprise a substantially greater percentage. Even on the assumption that the need for racial and ethnic diversity alone might sometimes constitute a compelling interest sufficient to warrant some type of corrective governmental action, it is perfectly clear that the need would have to be acute--much more acute than the relatively modest deviations that attend the instant case. In short, the School Committee's flexible racial/ethnic guidelines appear to be less a means of attaining diversity in any constitutionally relevant sense and more a means for racial balancing. The Policy's reliance on a scheme of proportional representation buttresses this appearance and indicates that the School Committee intended mainly to achieve a racial/ethnic "mix" that it considered desirable. Indeed, Bain's Option N50 was chosen and incorporated into the Policy because it held out the promise of increasing minority representation over the roughly 18% that Bain anticipated would result on a strict merit-selection basis.

The testimony at trial amply confirms this suspicion. Superintendent Payzant testified that a "fair representation of a cross-section of students" of the Boston public schools would constitute a proper "reference point" for defining a "diverse mix" of students. The "cross-section" to which he referred is comprised of the proportions of seventh- and ninth-grade black, Hispanic, white, and Asian students enrolled in Boston's public high schools. Another "reference point" mentioned by Payzant was the "proportional representation" embodied by the Policy, which, given his other testimony, is ultimately designed to move in the direction of the same racial/ethnic distribution.⁴ Other school officials, such as Dr. Elizabeth Reilinger and Dr. Edwin Melendez, testified to like effect, sometimes invoking the notion of "underrepresentation."

We do not question the School Committee's good intentions. The record depicts a body that is struggling valiantly to come to terms with intractable social and educational issues. Here, however, the potential for harmful consequences prevents us from succumbing to good intentions. The Policy is, at bottom, a mechanism for racial balancing--and placing our imprimatur on racial balancing risks setting a precedent that is both dangerous to our democratic ideals and almost always constitutionally forbidden. See Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992); Croson, 488 U.S. at 507, 109 S.Ct. 706. Nor does the School Committee's reliance on alleviating underrepresentation advance its cause. Underrepresentation is merely racial balancing in disguise--another way of suggesting that there may be optimal proportions for the representation of races and ethnic groups in institutions. See Lutheran Church-Mo. Synod, 141 F.3d at 352.

It cannot be said that racial balancing is either a legitimate or necessary means of advancing the lofty principles recited in the Policy. The closest the School Committee comes to linking racial balancing to these ideals is by introducing the concept of "racial isolation." The idea is that unless there is a certain representation of any given racial or ethnic group in a particular institution, members of that racial or ethnic group will find it difficult, if not impossible, to express themselves. Thus, the School Committee says, some minimum number of black and Hispanic students--precisely how many, we do not know--is required to prevent racial isolation.

Fundamental problems beset this approach. In the first place, the "racial isolation" justification is extremely suspect because it assumes that students cannot function or express themselves unless they are surrounded by a sufficient number of persons of like race or ethnicity. Insofar as the Policy promotes groups over individuals, it is starkly at variance with Justice Powell's understanding of the proper manner in which a diverse student body may be gathered. See Bakke, 438 U.S. at 318, 98 S.Ct. 2733. Furthermore, if justified in terms of group identity, the Policy suggests that race or ethnic background determines how individuals think or behave--although the School Committee resists this conclusion by arguing that the greater the number of a particular group, the more others will realize that the group is not monolithic. Either way, the School Committee tells us that a minimum number of persons of a given race (or ethnic background) is essential to facilitate individual expression. This very position concedes that the Policy's racial/ethnic guidelines treat "individuals as the product of their race," a practice that the Court consistently has denounced as impermissible stereotyping.⁵ Miller, 515 U.S. at 912, 115 S.Ct. 2475.

In the second place, the School Committee has failed to give us a plausible reason why we should believe that racial balancing of any type is necessary to promote the expression of ideas or any of the other ideals referenced in the Policy. We assume for argument's sake--albeit with considerable skepticism--that there may be circumstances under which a form of racial balancing could be justified by concerns for attaining the goals articulated by the Policy. To justify something so antithetical to our constitutional jurisprudence, however, a particularly strong showing of necessity would be required. The School Committee has provided absolutely no competent evidence that the proportional representation promoted by the Policy is in any way tied to the vigorous exchange of ideas, let alone that, in such respects, it differs significantly in consequence from, say, a strict merit-selection process. Nor has the School Committee concretely demonstrated that the differences in the percentages of students resulting from the Policy and other, constitutionally acceptable alternatives are significant in any other way, such as students' capacity and willingness to learn. To the contrary, the School Committee relies only on broad generalizations by a few witnesses, which, in the absence of solid and compelling evidence, constitute no more than rank speculation. Given both the Constitution's general prohibition against racial balancing and the potential dangers of stereotyping, we cannot allow generalities emanating from the subjective judgments of local officials to dictate whether a particular percentage of a particular racial or ethnic group is sufficient or insufficient for individual students to avoid isolation and express ideas.

This brings us full circle. Although Justice Powell endorsed diversity as potentially comprising a compelling interest, he warned that a proper admissions policy would be such that if an applicant "loses out" to another candidate, he will "not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname." Bakke, 438 U.S. at 318, 98 S.Ct. 2733. The Policy does precisely what Justice Powell deemed anathematic: at a certain point, it effectively forecloses some candidates from all consideration for a seat at an examination school simply because of the racial or ethnic category in which they fall. That happened to Sarah Wessmann. It violated the Equal Protection Clause. See People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 538 (7th Cir.1997) (concluding that preventing "children who are not beneficiaries of past discrimination" from becoming cheerleaders solely because of their race is "a barefaced denial of equal protection").

Again, let us be perfectly clear. We are aware that two of our sister courts of appeals have suggested that diversity may never constitute a compelling governmental interest sufficient to warrant race-based classifications. See Lutheran Church-Mo. Synod, 141 F.3d at 354; Hopwood, 78 F.3d at 948. For purposes of resolving this appeal, however, we need not speak definitively to that vexing question. Experience is "the life of the law," Justice Holmes commented, and more probably ought to be said before this chapter of constitutional inquiry is closed. We conclude today only that the School Committee's Policy does not meet the Bakke standard and, accordingly, that the concept of "diversity" implemented by BLS does not justify a race-based classification.

D. Vestiges of Past Discrimination.

The School Committee endeavors, in the alternative, to uphold the Policy as a means of redressing the vestiges of past discrimination. The court below accepted this explanation. See Wessmann, 996 F.Supp. at 131. We do not.

Governmental bodies have a significant interest in adopting programs and policies designed to eradicate the effects of past discrimination. See Miller, 515 U.S. at 920, 115 S.Ct. 2475; Mackin v. City of Boston, 969 F.2d 1273, 1275 (1st Cir.1992). Before embarking on such projects, however, government actors must be able to muster a "strong basis in evidence" showing that a current social ill in fact has been caused by such conduct. See Croson, 488 U.S. at 500, 109 S.Ct. 706. In giving meaning to the phrase "strong basis in evidence," we are guided primarily by the Court's particularized analysis in Croson and by the "body of appellate jurisprudence [that] has developed to provide that label with meaningful content." Engineering Contractors Ass'n of S. Fla., Inc. v. Metropolitan Dade County, 122 F.3d 895, 909 (11th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1186, 140 L.Ed.2d 317 (1998).

The threshold problem that we confront in this instance is that the School Committee disclaims the necessity for such evidence. Its disclaimer rests on the premise that a decree issued in the quarter-century-old desegregation litigation mandates local authorities to remedy any racial imbalance occurring in the school system and thereby obviates the need for an independent showing of causation. This premise lacks force.

The decree in question was entered in 1994 by Judge Garrity, pursuant to our instructions in Morgan v. Nucci, 831 F.2d 313 (1st Cir.1987). The particular provision to which the School Committee refers is entitled "Permanent Injunction." It enjoins the School Committee "from discriminating on the basis of race in the operation of the public schools of the City of Boston and from creating, promoting or maintaining racial segregation in any school or other facility in the Boston public school system." Nothing in the plain language of this provision requires school officials to undertake any affirmative action, let alone to adopt a race-based classification (such as is contained in the Policy). Perhaps more important, the cited provision is not (as the School Committee would have it) a mandatory injunction. Rather, it operates as a negative injunction, forbidding the defendants from engaging in the acts that supported the original cause of action.⁶ As long as school officials do not engage in discrimination against minorities--and there is no evidence that such conduct persists at BLS--they have not violated the injunction.

The School Committee's contention that racial imbalance, without more, mandates action also is discordant with established precepts of constitutional law. Once there is a finding of unitariness and the "affirmative duty to desegregate has been accomplished," school authorities are not expected to make "year-by-year adjustments of the racial composition of student bodies" absent a "showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools." Swann, 402 U.S. at 32, 91 S.Ct. 1267; see also Freeman, 503 U.S. at 494, 112 S.Ct. 1430 ("Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.").

That ends this aspect of the matter. We concluded over ten years ago that Boston had restored the unitariness of student assignments, see Nucci, 831 F.2d at 319-26, and there is no contention here that any municipal actor has attempted intentionally to subvert the demographic composition of BLS (or any other school, for that matter). Under such circumstances, neither the Constitution nor the 1994 decree impose a duty on Boston's school officials to ensure the maintenance of certain percentages of any racial or ethnic group in any particular school.

Because the 1994 decree turns out to be a blind alley, the School Committee must identify a vestige of bygone discrimination and provide convincing evidence that ties this vestige to the de jure segregation of the benighted past. See Freeman, 503 U.S. at 494, 112 S.Ct. 1430. To meet this challenge, the School Committee cites an "achievement gap" between black and Hispanic students, on the one hand, and white and Asian students, on the other, and claims that this gap's roots can be traced to the discriminatory regime of the 1970s and before.

The scope of what social phenomena the law considers vestiges of past discrimination presents an open question. The presumptive vestiges are the well-known factors that the Supreme Court enumerated in Green v. County Sch. Bd., 391 U.S. 430, 435, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) (mentioning student assignments, faculty, staff, facilities, transportation, and extra-curricular activities). Since Green, federal courts have recognized other permutations, including "quality of education." Freeman, 503 U.S. at 492, 112 S.Ct. 1430. What this means and how it is to be measured are difficult questions. Rather than entering that debate, we accept arguendo the School Committee's position that, in principle, a documented achievement gap may act as an indicator of a diminution in the quality of education. Even so, whether an achievement gap is a vestige of past discrimination depends on whether there is satisfactory evidence of a causal connection.

The court below short-circuited this inquiry. Citing Judge Garrity's 1994 order, the court reasoned that, once there has been a past judicial finding of institutional discrimination, no more evidence is needed to justify a policy that employs racial classifications. See Wessmann, 996 F.Supp. at 131 (stating that the 1994 order is a "manifestation" of the reality of vestiges of past discrimination and that it alone provides a "compelling basis" for adoption of the Policy). The lower court was wrong.

There are times when a history of discrimination, in itself, may supply a powerful evidentiary predicate sufficient to justify some race-conscious action. See, e.g., Boston Police Superior Officers Fed'n v. City of Boston, 147 F.3d 13 (1st Cir.1998). Nevertheless, such holdings do not hinge on the mere existence of a past judicial finding, but, rather, on a variety of considerations, including what transpired since the time of that finding. In Boston Police, for example, our detailed inquiry revealed not only that discrimination had been a fact of the past, but that it persisted in the Boston Police Department, and that relatively little had been done to alleviate the situation at certain levels. See id. at 19-23. The record showed, for instance, that notwithstanding the existence of a consent decree, progress toward the integration of the police force had been "halting" and "modest." Id. at 23. The statistical evidence supporting this view pertained not to a distant past, but to present realities. See id. at 21, 23. In the final analysis, it was the combination of all this evidence, and the detailed showing that the effects of earlier discriminatory conduct continued to the present, that underpinned our conclusions. Withal, we took pains to warn against indiscriminate reliance on history alone lest it permit the adoption of remedial measures "ageless in their reach into the past, and timeless in their ability to affect the future." Id. at 20-21 (citation and internal quotation marks omitted).

In sum, whether past discrimination necessitates current action is a fact-sensitive inquiry, and courts must pay careful attention to competing explanations for current realities. See Freeman, 503 U.S. at 495-96, 112 S.Ct. 1430 (explaining that "though we cannot escape our history, neither must we overstate its consequences in fixing legal responsibilities"). The mere fact that an institution once was found to have practiced discrimination is insufficient, in and of itself, to satisfy a state actor's burden of producing the reliable evidence required to uphold race-based action.⁷ See id. at 496, 112 S.Ct. 1430; Middleton v. City of Flint, 92 F.3d 396, 409 (6th Cir.1996).

Beyond history, the School Committee offers statistical and anecdotal evidence to satisfy its burden of demonstrating a strong evidentiary basis for the inauguration of remedial policies. The district court found the evidence favoring race-conscious remedies to be adequate, but the court's entire treatment of the subject comprises a lone paragraph composed of unrelievedly conclusory observations. See Wessmann, 996 F.Supp. at 131. In the absence of specific findings, we could remand. Given the time constraints applicable to the case, we opt instead to exercise plenary review, taking the statistical and anecdotal evidence in the manner suggested by the School Committee. See Vecinos De Barrio Uno, 72 F.3d at 989 (observing that appellate courts ordinarily "should fill in blanks in the district court's account when the record and the circumstances permit this to be done without short-changing the parties").

The centerpiece of the School Committee's showing consists of statistical evidence addressed to a persistent achievement gap at the primary school level between white and Asian students, on the one hand, and black and Hispanic students, on the other. One way to measure the achievement gap is in terms of relative performance on standardized tests. Over the years, whites and Asians have scored significantly higher, on average, than blacks and Hispanics. The School Committee theorizes that, because of this achievement gap, BLS receives fewer African-American and Hispanic applicants than otherwise might be the case, and even in comparison to this modest universe, an abnormally small number of black and Hispanic students qualify for admission. Accordingly, the Committee concludes that the statistics documenting the achievement gap, on their own, satisfy the "strong basis in evidence" requirement.

In mounting this argument, the School Committee relies heavily on a line of cases addressing affirmative action plans designed to remedy vestiges of past employment discrimination. See, e.g., Peightal v. Metropolitan Dade County, 26 F.3d 1545 (11th Cir.1994); Stuart v. Roache, 951 F.2d 446 (1st Cir.1991). This reliance is mislaid. Fundamental differences distinguish the statistical inquiry involved in the employment discrimination context from the one proposed by the School Committee here. In employment discrimination cases, we know ex ante the locus of discrimination: it is the barrier to entry. Based on that premise, an appropriate statistical analysis compares the number of qualified minority applicants with those who gain entrance. The greater the disparity, the stronger the inference that discrimination is the cause of non-entry. See Croson, 488 U.S. at 501-02, 109 S.Ct. 706; Stuart, 951 F.2d at 451.

In this case, the "barrier to entry" comparable to those in the employment discrimination cases is BLS's requirement of an entrance examination and the resultant composite score--and no one (least of all, the School Committee) claims that the examination or any component thereof is discriminatory in operation or effect, or that it would be discriminatory if it were used as the sole criterion for admission. Such a claim was central to our conclusion in Stuart, 951 F.2d at 451, and it is totally absent here. What is more, any such claim would make precious little sense in the context of the School Committee's argument, for standardized achievement tests (a component of the entrance examination) are the primary objective measurement of the asserted achievement gap.

With the admissions process eliminated as an illegitimate barrier to entry, the achievement gap statistics, by themselves, must specifically point to other allegedly discriminatory conduct in order to suggest a causal link between those discriminatory acts and the achievement gap. Unlike the focused inquiry characteristic of the employment discrimination cases, however, the raw achievement gap statistics presented in this case do not by themselves isolate any particular locus of discrimination for measurement. Without such a focus, the achievement gap statistics cannot possibly be said to measure the causal effect of any particular phenomenon, whether it be discrimination or anything else. Cf. McCleskey v. Kemp, 481 U.S. 279, 294-95, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (contrasting legitimacy of inferences drawn from focused use of statistical methods in employment discrimination and venire-selection cases, on the one hand, with those drawn from application of general statistics to explain source of decisions in specific trials and sentencing proceedings). As such, the achievement gap statistics, by themselves, do not even eliminate the possibility that they are caused by what the Court terms "societal discrimination." Shaw v. Hunt, 517 U.S. 899, 909-10, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996); see also Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776-78 (3d Cir.1996) (affirming findings that poor performance and achievement gap were caused by socioeconomic factors unrelated to past discrimination). To be sure, gross statistical disparities at times may suffice to satisfy a state actor's burden of production. See Croson, 488 U.S. at 501, 109 S.Ct. 706. But the achievement gap statistics adduced here fail to do so because it is unclear exactly what causative factors they measure.

The Croson Court relied on precisely this reasoning when it concluded, in the contractor context, that low minority membership in a local trade association "standing alone, cannot establish a prima facie case of discrimination." Id. at 503, 109 S.Ct. 706. The Court reasoned that there could be "numerous explanations for this dearth of minority participation, including past societal discrimination." Id. Therefore, if such statistics are to be at all probative of discrimination, they must link cause and effect variables in a manner which would permit such an inference. See id. ("For low minority membership in these associations to be relevant, the city would have to link it to the number of local MBEs eligible for membership. If the statistical disparity between eligible MBEs and MBE membership were great enough, an inference of discriminatory exclusion could arise.").

We do not propose that the achievement gap bears no relation to some form of prior discrimination. We posit only that it is fallacious to maintain that an endless gaze at any set of raw numbers permits a court to arrive at a valid etiology of complex social phenomena. Even strong statistical correlation between variables does not automatically establish causation. See Tagatz v. Marquette Univ., 861 F.2d 1040, 1044 (7th Cir.1988); Ste. Marie v. Eastern R.R. Ass'n, 650 F.2d 395, 400 (2d Cir.1981) (Friendly, J.). On their own, the achievement gap statistics here do not even identify a variable with which we can begin to hypothesize the existence of a correlation.

The School Committee attempts to compensate for this shortcoming by pointing to certain alleged phenomena that it claims constitute substantial causes of the achievement gap. Chief among these is "low teacher expectations" vis-a-vis African-American and Hispanic students, a condition which the School Committee argues is an attitudinal remnant of the segregation era. To show the systemic nature of this alleged phenomenon, the School Committee leans heavily on the testimony of Dr. William Trent. Dr. Trent, a sociologist, identified teachers' low expectations of African-American and Hispanic students as a significant factor underlying the achievement gap in the Boston public schools. He based his conclusion on an analogy that he drew from studies he had performed in the Kansas City school system, including a "climate survey" of teacher attitudes and a multiple regression analysis designed to determine whether the low expectations reflected in teachers' answers to the questions posed in the climate survey might partially explain the achievement gap. Based on these materials, Dr. Trent had concluded that, in Kansas City, teacher "efficacy"--a term of art referring to a teacher's success in encouraging pupils to succeed--correlated with higher achievement test scores.

One difficulty with Dr. Trent's testimony is that it relies on evidence from one locality to establish the lingering effects of discrimination in another. Dr. Trent noted, for example, that data he examined from the Boston public schools revealed patterns "consistent with" his findings concerning the Kansas City schools. Croson, however, reaffirmed the Court's longstanding teaching that we must staunchly resist attempts to substitute speculation about correlation for evidence of causation. See Croson, 488 U.S. at 504, 109 S.Ct. 706 ("We have never approved the extrapolation of discrimination in one jurisdiction from the experience of another.") (citing Milliken v. Bradley, 418 U.S. 717, 746, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974)). In this context, the Court emphasized that although government may adopt race-conscious remedies when there is evidence of lingering vestiges, it "must identify that discrimination, public or private, with some specificity" before it adopts the remedy. See id. at 504, 109 S.Ct. 706. At the very least, this would require solid evidence that Boston teachers have low expectations of minority students, and that these low expectations are related in a statistically significant way to the achievement gap.

Dr. Trent, however, never conducted a "climate survey" for the Boston school system. His conclusions for Boston were based only on a review of statistical data documenting the achievement gap (basically, the statistics regarding achievement test results and differing application and enrollment rates), statistics concerning teacher seniority, and anecdotal evidence about teacher attitudes supplied by school officials. When asked on cross-examination whether the data that he relied on for his conclusions anent teacher attitudes were scientifically gathered, Dr. Trent responded in the negative. Dr. Trent thus freely conceded that the data he used was not of the quality necessary to satisfy the methodological rigors required by his discipline. Because Dr. Trent failed to follow his own prescribed scientific methodology for collecting data on the one issue central to his hypothesis about achievement gap causation, the trial court could not credit his conclusions.

An "opinion has a significance proportioned to the sources that sustain it." Petrogradsky Mejdunarodny Kommerchesky Bank v. National City Bank, 253 N.Y. 23, 25, 170 N.E. 479, 483 (1930) (Cardozo, J.). When scientists (including social scientists) testify in court, they must bring the same intellectual rigor to the task that is required of them in other professional settings. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Braun v. Lorillard, Inc., 84 F.3d 230, 234 (7th Cir.1996); see also People Who Care, 111 F.3d at 537 (declaring, in reviewing admissibility of social science evidence purporting to quantify causes of achievement gap, that "the methods used by the expert to derive his opinion [must] satisfy the standards for scientific methodology that his profession would require of his out-of-court research"). The only excuse that Dr. Trent proffered for his failure to follow proper protocols was that a thorough study would have required more time than he had available. That is unacceptable. See Braun, 84 F.3d at 234. An expert witness can only deviate from accepted methods of scientific inquiry in ways that are consistent with the practices and usages of the scientific community.

The shortcomings in Dr. Trent's testimony largely relate to his failure to gather data systematically and point up the pitfalls that the School Committee invited by failing to validate the Policy in advance. Dr. Trent's charge was to trace the causal relationship, if any, between teacher attitudes and poor student performance. His failure to obtain reliable data disabled him from taking even the first step, for he could not validly establish whether Boston teachers' attitudes in fact were discriminatory, let alone show that they caused (or even significantly contributed to) the achievement gap. This first step is a cornerstone of the entire research project; in its absence, Dr. Trent could not legitimately eliminate other variables (including societal discrimination) that might explain the achievement gap in the Boston public schools.⁸ See Croson, 488 U.S. at 503, 109 S.Ct. 706; People Who Care, 111 F.3d at 537. It follows inexorably that, with no methodological support, he could not produce a meaningful analysis of causation and, accordingly, his conclusions cannot bear the weight of the School Committee's thesis. See Mid-State Fertilizer Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1339 (7th Cir.1989) ("An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.").

Dr. Trent's reliance on anecdotal evidence fares no better. As a general matter, anecdotal evidence is problematic because it does not tend to show that a problem is pervasive. See Coral Const. Co. v. King County, 941 F.2d 910, 919 (9th Cir.1991) ("While anecdotal evidence may suffice to prove individual claims of discrimination, rarely, if ever, can such evidence show a systematic pattern of discrimination necessary for the adoption of an affirmative action plan."). Thus, even though anecdotal evidence may prove powerful when proffered in conjunction with admissions or valid statistical evidence, anecdotal evidence alone can establish institutional discrimination only in the most exceptional circumstances. See Engineering Contractors Ass'n, 122 F.3d at 925-26 (collecting cases).

This case falls well within the general rule rather than the long-odds exception to it. The most specific testimony regarding low teacher expectations came from Deputy Superintendent Janice Jackson, whom the district court qualified as an expert witness. At one point in her career, Deputy Superintendent Jackson had received some training related to improving interactions between teachers and students (a program known as TEASA, an acronym for "teacher expectation and student achievement") by dispelling teachers' "unconscious biases." Without disparaging Ms. Jackson's credentials, we reject the contention that her observations, as presented at trial, provide any justification for a conclusion that a statistically meaningful number of Boston school teachers have low expectations of minority students.

Deputy Superintendent Jackson testified to two sets of observations. The first occurred before she joined the school system. She spent three months in classrooms as a "blind researcher," making certain observations for an unspecified research project.⁹ In the process, she apparently visited six or seven schools (although she could recall only two by name). She testified that, during this time, she observed teachers treat minority and non-minority students differently. The differential treatment included calling on one set of pupils but not on another, disparate reprimands for the same behavior, and failure to push for "higher order thinking." Her second set of observations occurred once she became deputy superintendent. Here, her testimony is unrelievedly general. Although she visited numerous schools during this interval, her testimony is silent as to the purpose of these visits. It is equally silent as to crucial details, e.g., how many classrooms she visited or how many teachers she observed.

The short of it is that, to the extent that Ms. Jackson purposed to testify as an expert, she was obligated to present her data and her methodology with some specificity. In lieu of specifics, Ms. Jackson offered only her unsubstantiated recollection of past events. Croson reminds us that, in considering the legitimacy of race classifications, we must not blindly defer to the other branches' assurances that a particular condition exists. See Croson, 488 U.S. at 501-02, 109 S.Ct. 706; see also Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 214 (4th Cir.1993) (applying Croson and concluding that police chief's testimony did not constitute strong basis in evidence to justify race-conscious remedy even though the testimony was "based on his significant experience in the field of law enforcement"). Because Ms. Jackson was unable to quantify her observations in any manner whatsoever, the district court could not validly conclude that the number of "problem" teachers she observed was statistically significant.¹⁰ Indeed, Dr. Trent was unable to utilize these observations to conduct any statistical analysis to provide a meaningful account of achievement gap causation. This inability illustrates one reason why anecdotal evidence, which includes testimony based on significant personal experience, rarely suffices to provide a strong basis in evidence.

The remaining evidence upon which the School Committee and the dissent relies--most notably the testimony of BLS Headmaster Michael Contompasis and Dr. Melendez--likewise exemplifies the shortcomings of anecdotal evidence. One cannot conclude from the isolated instances that these witnesses recounted that low teacher expectations constitute a systemic problem in the Boston public schools or that they necessarily relate to the de jure segregation of the past.

Similarly unpersuasive are the School Committee's broad generalizations about socialization. Superintendent Payzant, for example, testified that he believed that teachers who started working in the era of dual school systems (who comprise approximately 28 % of current faculty) had been "socialized and shaped" by the thoughts and attitudes of the prior period. This may be so, but he gave no empirical evidence to confirm his conclusion. While the idea of "socialization" may be intellectually elegant, courts must insist on seeing concrete evidence. Without such substantiation, Payzant's testimony is no more compelling than the conclusory statements of the Richmond city councillor rejected as insufficient by the Supreme Court in Croson, 488 U.S. at 500-01, 109 S.Ct. 706.

To the extent that the School Committee notes other causal factors or indicia of discrimination, they, too, are insufficient either to show ongoing vestiges of system-wide discrimination or to justify a race-conscious remedy. For instance, pointing to the instability of leadership at the superintendent level, the School Committee suggests--so far as we can gather; the argument is neither developed nor clear--that it led to the absence of a standardized curriculum, which in turn has contributed to the achievement gap. If the argument is that the superintendent's office had a revolving door and thereby caused the achievement gap, then we see nothing that helps advance the contention that the achievement gap is a vestige of past discrimination. If the argument is that the superintendent's office has tacitly endorsed disparate curricula which in turn have caused the achievement gap, then the School Committee has provided us with absolutely no evidentiary basis to conclude that this is a consequence of discrimination; among other things, it has failed either to identify which curricula were discriminatory or to explain why they were so. It likewise has failed to identify the schools that adopted the discriminatory curricula in order to suggest a relationship between race and the existence of substandard school programs. Thus, it is impossible to tell, even on the assumption that differing curricula caused the achievement gap, whether this was a consequence of discriminatory conduct. In a nutshell, there is not a shred of evidence in the record supporting the contention that unstable leadership and the absence of uniform curriculum standards bore any relationship either to discrimination in the Boston schools or to the existence of the achievement gap.

We add an eschatocol of sorts. Even if the School Committee had proven the requisite connection between the Policy and the vestiges of past discrimination, the Policy could not endure. When authorized by the Constitution, race-conscious remedies not only must respond to a compelling governmental interest, but also must be narrowly tailored to rectify the specific harms in question. See Croson, 488 U.S. at 493, 109 S.Ct. 706 (explaining that any race-conscious means adopted to remedy past discrimination must be so narrowly tailored that there is "little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype"). Under this test, the Policy sweeps too broadly.

We limit our remarks in this regard to three points. First, since there is no discrimination at entry to BLS, we fail to see how the adoption of an admissions policy that espouses a brand of proportional representation is designed to ameliorate the harm that allegedly has occurred (a system-wide achievement gap at the primary school level ). Indeed, when Deputy Superintendent Jackson was asked whether the flexible racial/ethnic guidelines in any way affect low teacher expectations, she responded that it was a "complicated question to answer" because, given the relatively recent implementation of the guidelines, there had "not even been an opportunity to check that." If a high-level school official cannot confirm that a race-conscious remedy will alleviate the purported major cause of a remnant of discrimination, we do not comprehend how that means can be narrowly tailored.

Second, the increased admission of black and Hispanic students cannot be viewed as partial compensation for injustices done at the primary school level. This is so because the victims of the achievement gap are public school students, and they are the ones who ought to be the focus of the remedy. The Policy does not focus in this direction, for many of the black and Hispanic students admitted under it come from private or parochial schools. Thus, the Policy is not sufficiently particularized toward curing the harm done to the class of actual victims. See Podberesky v. Kirwan, 38 F.3d 147, 158-59 (4th Cir.1994). After all, there is no reason to assume that granting a remedy to one member of a particular race or ethnic group comprises a condign remedy for harm done to another, especially when those who have been harmed are easily identifiable and still within the institution that allegedly suffers from the vestiges of past discrimination.

Third, if palliating the effects of past discrimination is the ostensible justification for the Policy, then the Policy, on its face, has been crafted in puzzling ways. Suppose that in a particular year a group of Hispanic students does very well, such that they cluster between ranks 45 and 90, but that the Hispanic student population in the RQAP is sparse. Suppose further that whites and Asians form a significant majority of the RQAP. There is then a likelihood that, by reason of the Policy, a number of the Hispanic students--archetypal victims of discrimination--will be displaced by white and Asian students. Nor need we resort to hypotheticals to see such effects. At the O'Bryant School, the Policy's flexible racial/ethnic guidelines resulted in the rejection from the 1997 ninth-grade entering class of two Hispanic students in favor of a white student. Then, too, given the School Committee's position that Asian students have not been victims of discrimination, we are unable to comprehend the remedial purpose of admitting Asian students over higher-ranking white students, as happened in the case of Sarah Wessmann. This brings us back to the point of our beginning: in structure and operation, the Policy indicates that it was not devised to assuage past harms, but that it was simply a way of assuring racial/ethnic balance, howsoever defined, in each examination school class. See Croson, 488 U.S. at 506, 109 S.Ct. 706 ("The random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city's purpose was not in fact to remedy past discrimination."). The Constitution forbids such a focus.

We do not write on a pristine page. The Supreme Court's decisions in Croson and Adarand indicate quite plainly that a majority of the Justices are highly skeptical of racial preferences and believe that the Constitution imposes a heavy burden of justification on their use. Croson, in particular, leaves no doubt that only solid evidence will justify allowing race-conscious action; and the unsystematic personal observations of government officials will not do, even if the conclusions they offer sound plausible and are cloaked in the trappings of social science. See Hayes, 10 F.3d at 214 (noting the dangers of relying on "subjective evidence" to justify race-conscious policies); see also Wittmer, 87 F.3d at 919 (reminding us that "common sense undergirded the pernicious discrimination against blacks now universally regretted").

Our dissenting brother's valiant effort to read into Croson a broad discretion for government entities purporting to ameliorate past discrimination strikes us as wishful thinking. The Croson Court's own reference to the need for a "searching judicial inquiry," 488 U.S. at 493, 109 S.Ct. 706, and its rejection of Justice Marshall's position, see id. at 494-95, 109 S.Ct. 706; id at 535-36, 109 S.Ct. 706 (Marshall, J., dissenting), both suggest an attitude that is antipathetic to those who yearn for discretion. And unless and until the Justices reconfigure their present doctrine, it is the job of judges in courts such as this to respect the letter and spirit of the Supreme Court's pronouncements.

We need go no further.¹¹ While we appreciate the difficulty of the School Committee's task and admire the values that it seeks to nourish, noble ends cannot justify the deployment of constitutionally impermissible means. Since Boston Latin School's admissions policy does not accord with the equal protection guarantees of the Fourteenth Amendment, we strike it down. The judgment of the district court must therefore be reversed.

We are mindful that Henry Wessmann asks not only that we declare the Policy unconstitutional--which we have done--but also that his daughter, Sarah, be admitted to BLS forthwith. The School Committee, which has vigorously defended the Policy, has tacitly conceded that, if its defense fails, Sarah should be allowed to enroll at BLS. The circumstances of this case are unusual, for the school year is under way and Sarah Wessmann--who already has spent elsewhere the first year and some months of what normally would be a four-year matriculation at BLS--does not have the luxury of time that a remand would entail. We therefore direct the district court to enter a judgment, in appropriate form, that, inter alia, commands Sarah's admission to BLS without delay.

Reversed.

BOUDIN, Circuit Judge, concurring.

Judge Selya's opinion demonstrates that the school committee plan under attack here does involve racial preference, whatever the complexity of the plan and subtlety in expression. Yet, this court concluded more than a decade ago that purposeful discrimination had ended so far as assignments were concerned and that the school committee was proceeding in good faith. See Morgan v. Nucci, 831 F.2d 313, 326 n. 19 (1st Cir.1987). To survive, the school committee's plan must serve a compelling state interest and be narrowly tailored to achieve that interest. Croson, 488 U.S. at 505-08, 109 S.Ct. 706; Wygant, 476 U.S. at 274, 106 S.Ct. 1842.

The foremost interest urged by the school committee is diversity, a ground that may or may not prove "compelling" to the Supreme Court. But even if diversity were an adequate ground, it has not been shown that this plan is necessary to achieve it. The record shows that minorities will be included in BLS in substantial numbers without the plan. Op. at 797-98. If some specific higher level is needed to achieve diversity of views and backgrounds, this has not been demonstrated in the record.

The alternative interest urged on this record is that the plan is necessary to remedy the residual effects of admitted past discrimination. The remnants on which the school committee relies are supposed teacher attitudes, specifically, a lower expectation of achievement by minorities in the Boston public schools. These attitudes are said to be linked backward in time to mind-sets developed during a regime of purposeful discrimination and forward to explain poorer performance by minority public-school students on the tests necessary for entry into the elite public schools. The remedy is the racial preference embodied in the plan.

In theory, low expectations could be caused by past discrimination and could have some effect on current performance. But here the quality of the supporting evidence is far from overwhelming. In this case, there is no study of Boston schools, only one for Kansas City; and the evidence as to Boston, while offered through experts, is largely based on general statements or anecdote. It is open to question whether such evidence can withstand Croson 's requirement of a "searching judicial inquiry." Croson, 488 U.S. at 493, 109 S.Ct. 706.

In all events, the plan fails to meet the Supreme Court's narrow tailoring requirement. The plan is clearly overbroad when judged by the past-discrimination rationale; it provides preferences to minority groups that were never discriminated against by the Boston School authorities or affected by lowered expectations of public school teachers (Asians and private school African-American applicants in particular). See Croson, 488 U.S. at 506, 109 S.Ct. 706; Wygant, 476 U.S. at 284 n. 13, 106 S.Ct. 1842. There is some reason to think that African-American private school applicants rather than public school students, may well be the principal beneficiary of the preferences created by the plan.

There is also no indication that the plan will do anything to alter the expectations of public-school teachers, which are claimed to be the source of the residual discrimination. One of the school committee's own experts, asked to say whether or how the plan would resolve this problem, was unable to supply an answer. Op. at 807. Another school committee expert, answering a direct question from the judge as to whether the plan's racial preference "attacked the problem of teacher attitude," essentially conceded that it did not. Tr. 6-126 to -127. These admissions suggest a further misfit between plan and remedy.

Finally, because the plan does not address the supposed cause of the problem, teacher attitudes formed in the ancien regime, the same arguments now urged to sustain the plan will be available for the indefinite future. Teachers retire slowly and themselves teach those who succeed them. The plan thus creates just the kind of "timeless" racial preferences of concern to the Supreme Court. Wygant, 476 U.S. at 276, 106 S.Ct. 1842; see Croson, 488 U.S. at 498, 505, 109 S.Ct. 706; cf. United States v. Paradise, 480 U.S. 149, 178, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987).

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

LIPEZ, Circuit Judge, dissenting.

Under the Equal Protection Clause of the Fourteenth Amendment, all racial or ethnic classifications by government actors are highly suspect and will be upheld only if they withstand strict judicial scrutiny. To meet the strict scrutiny standard, a challenged racial classification must serve a compelling governmental interest and must be narrowly tailored to achieve that goal. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224-25, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). The Boston School Committee argues that the Boston Latin admissions program serves two compelling interests: promoting diversity in the public schools and remedying the vestiges of past discrimination. The majority rejects both arguments. Although I have reservations about the Committee's diversity argument on the facts of this case, I have none about its remedial argument. The district court properly found that the Boston School Committee had a strong basis in evidence for determining that the Boston Latin admissions program serves a compelling government interest in remedying the effects of prior discrimination, and that the program is narrowly tailored to achieve that goal.

I will explain more fully my disagreement with the majority by dividing my opinion into four parts: a summary of the Boston schools desegregation litigation that is particularly relevant to the development of the Boston Latin admissions program; a description of the proper legal framework for analyzing the evidence of the remedial interest; an analysis of the evidence establishing that interest; and an analysis of the program's narrow tailoring.

Some Relevant History

Although the majority opinion provides an excellent background statement placing the present dispute in perspective, I wish to offer some additional background which more fully reveals the antecedents of the Boston Latin admissions program in the long history of court supervised desegregation of the Boston school system. That court-supervised desegregation began in 1974, when the district court found that the Boston School Committee had engaged in "affirmative acts [which] intentionally created or maintained racial segregation." Morgan v. Hennigan, 379 F.Supp. 410, 427 (D.Mass.1974) (Morgan I ). The Committee's acts included the manipulation of facilities utilization, new school construction, and redistricting to preserve distinctively white or minority districts. See id. at 425-41. The district court noted that the Committee was particularly successful in maintaining a segregated school system through the establishment and use of "feeder patterns" for students going from primary schools into the high schools. The primary schools were segregated in part because their districts were geographically drawn and based on residentially-segregated neighborhoods. As the high schools were far fewer in number than the primary schools, and each high school drew on several geographic primary school districts, the high schools might naturally have been more racially balanced than the primary schools. However, under the Committee's skewed feeder patterns, students were assigned from white "junior high" schools into predominantly white high schools beginning with the tenth grade, and from African-American "middle" schools into predominantly African-American high schools beginning with the ninth grade. See id. at 441-49. In the limited cases where students were allowed to transfer voluntarily into schools with vacant seats, the Committee manipulated the transfer program, alternately liberalizing it to allow whites to transfer out of African-American schools, or controlling it to keep African-Americans from transferring out of African-American schools. See id. at 449-56. The district court also found that the Committee took steps with regard to faculty and staff assignment systemwide, and admission to the selective citywide schools, in order to preserve the segregated status quo. See id. at 456-69.¹²

Relying on the presumptive logic set forth in Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), the district court concluded that pervasive de jure segregation throughout the Boston public school system established a "prima facie case of unlawful segregative design" in the examination schools. Morgan I, 379 F.Supp. at 467, quoting Keyes, 413 U.S. at 208, 93 S.Ct. 2686. This presumption was not rebutted. See Morgan I, 379 F.Supp. at 467-68. Although little evidence was presented on the causes of the exam schools' imbalanced racial composition, the court attributed part of the disparity to the tying of admission to achievement (as opposed to aptitude) test scores.¹³ The court also noted that the "advanced work classes" that prepared public school fifth and sixth graders for the examination schools were segregated. See id. at 433, 484 n. 16. On appeal, we summarized the situation as follows: "The examination schools are segregated because black children fare worse on the entrance examinations than whites. These children are products of the segregated elementary classes which constituted 'tracks' to the examination schools and were more than 80% white.... Thus, the segregation of the lower schools had inevitable consequences for the examination ... schools...." Morgan v. Kerrigan, 509 F.2d 580, 594 n. 20 (1st Cir.1974) (affirming Morgan I ).

In the subsequent remedial phase of the desegregation litigation, the court considered a proposal to use the SSAT, an aptitude rather than an achievement test, as part of the admissions process for the exam schools. This test would presumably reflect less of the disparity in elementary education among applicants resulting from the segregation of their schools. See Morgan v. Kerrigan, 401 F.Supp. 216, 243-44 (D.Mass.1975) (Morgan II ). Although the district court also noted that there had been discussion about using "the median score as a floor for admissions," id. at 243, the district court declined to set an "arbitrary" examination-score minimum for the purpose of promoting desegregation of the examination schools, imploring the parties to work towards solutions themselves. Id. at 244. The then-Headmaster of Boston Latin School stated in an affidavit that, in his practical experience, the median score was a good minimum standard for selecting students able to succeed at Boston Latin. Id. at 243. While the Headmaster "concede[d] that this standard [was] an assessment based on his experience, not on racial data or studies that would show that students scoring below that mark would be unable to learn and succeed within the Latin schools' program," id., this standard was accepted by the parties and has survived to this day as the conclusion that the top half of the applicant pool is "qualified" to succeed at Boston Latin.

As a remedy for its finding of discrimination by the Boston School Committee, the court ultimately mandated that "[a]t least 35% of each of the entering classes at Boston Latin School, Boston Latin Academy and Boston Technical High in September 1975 shall be composed of black and Hispanic students." Id. at 258. In addition, the court imposed the following requirements:

The School Department shall also institute and conduct programs (a) to make all students in the system aware of the admission requirements and type of instruction offered at the examination schools, and (b) to recruit black and Hispanic applicants to the examination schools in future years.

Any tutorial programs given to prepare students for entrance examinations shall be conducted on a desegregated basis, as shall advanced work classes (if they are to be continued). Any enrichment and remedial programs for students admitted to or enrolled in the examination schools shall be available and conducted on a desegregated basis. There shall be no tracking of students within the examination schools which results in racially segregated classes.

Id. at 258-59. In reviewing the district court ruling, we concluded that the 35% floor was not an impermissible racial quota because "overall racial composition [of the system was ordered] to be used as a starting point in designing a school desegregation plan. This approach is specifically approved in Swann [Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) ]." Morgan v. Kerrigan, 530 F.2d 401, 423 (1st Cir.1976) (affirming Morgan II ).

The issue of racial composition was considered especially important in the examinatio