Comfort v. Lynn School Committee Brief of Amici Curiae in Support of Appellees and Affirmance

    Appeal No. 03-2415

In the UNITED STATES COURT OF APPEALS 
FOR THE FIRST CIRCUIT

SAMANTHA J. COMFORT, et al., 

PLAINTIFFS-APPELLANTS 

v.

LYNN SCHOOL COMMITTEE, et al. 

DEFEND ANTS-APPELLEES.

On Appeal from the United States District Court 
for the District of Massachusetts

BRIEF of AM IC I CURIAE PAMELA FREEMAN on behalf of her minor 
child, JAMES FREEMAN, and BARBARA and ANTHONY MURKISON, 

on behalf of their minor children, TIA, CASSANDRA, and JASON 
MURKISON, the NORTHSHORE BRANCH of the N.A.A.C.P., the NAACP 
LEGAL DEFENSE & EDUCATIONAL FUND, INC., and the LAWYERS’ 

COMMITTEE FOR CIVIL RIGHTS OF THE BOSTON BAR ASS’N 
IN SUPPORT OF APPELLEES AND AFFIRMANCE

Theodore M. Shaw 
DIRECTOR-COUNSEL 
Norman J. Chachkin 
Chinh Quang Le (94339) 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. 
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 965-2200 Phone 
(212) 226-7592 Fax

Nadine Cohen
LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER THE LAW 
OF THE BOSTON BAR ASS’N 
294 Washington Street 
Boston, Massachusetts 02108 
(617)482-4392 Phone

Counsel for Amici Curiae,
Pamela Freeman, et al.



CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici 

curiae file the following statement of disclosure: The NAACP Legal Defense & 

Educational Fund, Inc., the Lawyers’ Committee for Civil Rights Under the Law 

of the Boston Bar Association, and the Northshore Branch of the National 

Association for the Advancement of Colored People are all nonprofit 501(c)(3) 

corporations and not publicly held companies that issue stock. The individually 

named amici, Pamela Freeman, on behalf of her minor child, James Freeman, and 

Barbara and Anthony Murkison, on behalf of their minor children, Tia, Cassandra, 

and Jason Murkison, participate in this litigation in their personal capacities and 

therefore are not nongovernmental corporate parties.

1



TABLE OF CONTENTS

STATEMENT OF CORPORATE DISCLOSURE ................................................  1

TABLE OF CONTENTS ........................................................................................  ii

TABLE OF AUTHORITIES .................................................................................  iv

STATEMENT OF INTEREST...............................................................................  1

A. The NAACP Legal Defense & Educational Fund, Inc...................... 1

B. The Lawyers’ Committee for Civil Rights Under the Law
of the Boston Bar Association ........................................................... 2

C. The Northshore Branch of the National Association for
the Advancement of Colored People ................................................  2

D. Individually Named Parents and S tudents........................................ 3

SUMMARY OF ARGUMENT .............................................................................  3

ARGUMENT ..........................................................................................................  5

I. STRICT SCRUTINY IS NOT THE APPROPRIATE
STANDARD OF REVIEW ............................................................... 5

A. The Supreme Court Cases Involving Strict Scrutiny 
On Which Appellants Rely Involve Distinct Issues 
Outside The Educational Context And Do Not
Govern Here................................. .............................................  5

B. The Supreme Court Has Repeatedly Expressed Approval
of Voluntary School Integration Efforts..................................  9

C. Strict Scrutiny is Inappropriate Because Integrative 
Race-Conscious Public School Student Assignments

n



Are Analytically Different from Race Consciousness 
in Other Contexts........................................................... 15

D. A More Deferential Standard Also Comports With 
the National Tradition of Wide Autonomy to Local 
School Districts..........................................    19

II. IF THE COURT INTERPRETS ARTICLE 111 TO 
INVALIDATE THE LYNN PLAN AND RACIAL 
IMBALANCE ACT, THE AMENDMENT MUST BE 
DEEMED UNCONSTITUTIONAL ..............................................  22

A. Article 111 Would Be Unconstitutional Under Reitman 
v. Mulkey, 387 U.S. 369 (1967) If Interpreted in the
Manner Suggested By Appellants..........................................  23

B. Appellants’ Interpretation Would Render Article 111 
Unconstitutional Under Hunter v. Erickson, 393 U.S.
385 (1969)................................................................................  31

CONCLUSION......................................................................................................  34

CERTIFICATE OF COMPLIANCE ................................................................... 35

CERTIFICATE OF SERVICE ...........................................................................  36

iii



TABLE OF AUTHORITIES

Federal Cases

Adarand Const., Inc. v. Pena,
515 U.S. 200 (1995) .....................................................................  6, 15, 18, 19

Associated Gen. Contractors v. San Francisco Unified Sch. Dist.,
616 F.2d 1381 (9th Cir.), cert, denied, 449 U.S. 1061 (1980)................... 18

Bd. o f Educ. o f Oklahoma City v. Dowell,
498 U.S. 237 (1991) ...........................................................................  8,20,21

Brewer v. West Irondequoit Cent. Sch. Dist.,
212 F.3d 738 (2d Cir. 2 0 0 0 ) ................................................................... 12, 15

Brown v. Board o f  Education,
347 U.S. 483 (1954) ............................................................................. passim

Busstop, Inc. v. Bd. o f Educ.,
439 U.S. 1380 (1978) ...................................................................................  10

Clark v. Bd. o f Educ. o f Little Rock,
705 F.2d 265 (8th Cir. 1983) ....................................................................... 12

Coalition for Econ. Equity v. Wilson,
122 F.3d 692 (9th Cir. 1997) ..........................................................  18, 30, 31

Columbus Bd. o f Educ. v. Penick,
443 U.S. 449 (1979) ...............................................................................  10,21

Comfort v. Lynn Sch. Cmte.,
283 F. Supp. 2d 328 (D. Mass. 2003)..................................................passim

Crawford v. Los Angeles Bd. o f Educ.,
458 U.S. 527 (1982) ................................... .................................................  30

IV



Deal v. Cincinnati Bd. ofEduc.,
369 F.2d 55 (6th Qr. 1966) .........................................................................  13

Evans v. Newton,
382 U.S. 296 (1966) ...................................................................................... 25

Freeman v. Pitts,
503 U.S. 467 (1992) .....................................................................  8 ,14,20,21

Gratz v. Bollinger,
539 U.S. 244(2003) ............................... .................................................. 6, 17

Green v. County Sch. Bd. o f  New Kent County,
391 U.S. 430 (1968) .................................................................................  7,20

Grutter v. Bollinger,
539 U.S. 306 (2003) ...........................................................................  6, 15, 17

Hampton v. Jefferson County Bd. ofEduc.,
102 F. Supp. 2d 358 (W.D. Ky. 2000) ............................................  13, 16, 17

Hunter v. Erickson,
393 U.S. 385 (1969) ............................................................................. passim

Jacobson v. Cincinnati Bd. ofEduc.,
941 F.2d 100 (6th Cir.), cert, denied, 506 U.S. 830 (1992)....................... 19

Johnson v. Bd. o f Educ. o f Chicago,
604 F.2d 504 (7th Cir. 1979), vacated and remanded on
other grounds, 449 U.S. 915, 457 U.S. 52 (1982) .............................  13,16

Keyes v. Sch. Dist. No.l,
413 U.S. 189 (1973) .................................................................................  7, 10

Kromnick v. Sch. Dist. o f Philadelphia,
739 F.2d 894 (3d Cir. 1984), cert, denied, 469 U.S. 1107 (1985)............  19

v



Lee v. Nyquist,
318 F. Supp. 710 (W.D.N.Y. 1970), affd, 402 U.S.
935 (1971).................................................................................... 11,23,24,31

Martin v. Sch. Dist. o f Philadelphia,
1995 U.S. Dist. LEXIS 13861 (E.D. Pa. 1995) ..........................................  19

McDaniel v. Barresi,
402 U.S. 39 (1971) ........................................................................................ 10

McLaughlin v. Boston Sch. Cmte.,
938 F. Supp. 1001 (D. Mass. 1996) ............................................................. 18

McLaughlin v. Florida,
379 U.S. 184(1964) ..........................................................................................6

Milliken v. Bradley,
418 U.S. 717(1974) ...........................................................................  7,20,21

Missouri v. Jenkins,
515 U.S. 70 (1995) .............................................................................  8,20,21

Morgan v. Hennigan,
509 F.2d 580 (1st Cir. 1974)...........................................................................2

North Carolina State Bd. o f Educ. v. Swann,
402 U.S. 43 (1971) .......................................................................  9, 10,27,28

Offermann v. Nitkowski,
248 F. Supp. 129, 1965). D.N.Y. 1965 ........................................................  14

Parent Ass'n o f  Andrew Jackson High Sch. v. Ambach,
738 F.2d 574 (2d Cir. 1 9 8 4 )......................... ...............................................  12

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No.l,
137 F. Supp. 2d 1224 (W.D. Wash. 2001), rev'd 285 F.3d
1236 (9th Cir. 2002) .........................................................................  13, 16, 18

vi



Pasadena City Bd. o f Educ. v. Spangler,
427 U.S. 424 (1976) ........................................................................................7

Raso v. La go,
135 F.3d 11 (1st Cir.), cert, denied, 525 U.S. 811 (1998) .........................  19

Regents o f the Univ. o f Mich. v. Ewing,
474 U.S. 214 (1985) ...................................................................................... 21

Regents o f  Univ. o f Cal. v. Bakke,
438 U.S. 265 (1978) ...............................................................................  12,21

Reitman v. Mulkey,
387 U.S. 369 (1967) ............................................................................. passim

San Antonio Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) ...................................................................................  20,21

Stanley v. Darlington Sch. Dist.,
915 F. Supp. 765 (D.S.C. 1996) ................................................................... 18

Swann v. Charlotte-Mecklenburg Bd. o f Educ.,
402 U.S. 1 (1971) ................................................................................. 7, 9, 15

United States v. Paradise,
480 U.S. 149 (1987) .....................................................................................  16

Washington v. Seattle Sch. Dist. No.l,
458 U.S. 457 (1982) ............................................................  10,11,12,26,33

Wessmann v. Gittens,
160 F.3d 790 (1st Cir. 1998)..................................................................... 2, 17

Willan v. Menomonee Falls Sch. Bd.,
658 F. Supp. 1416 (E.D. Wis. 1996)............................................................  14

vii



Wygant v, Jackson Bd. o f Educ.,
476 U.S. 267 (1986) ........................................................................................8

State Cases

Jackson v. Pasadena City Sch. Dist.,
382 P.2d 878 (Cal. 1963) .............................................................................  25

Louisiana Assoc. Gen. Contractors v. State. Div. o f Admin.,
669 So. 2d 1185 (La. 1996).....................................................................  30, 31

Opinion o f the Justices,
363 Mass. 899, 298 N.E.2d 840 (1973)................................................  27, 28

Opinion o f the Justices,
365 Mass. 648, 310 N.E.2d 348 (1974) ......................................................  28

San Francisco Unified Sch. Dist. v. Johnson,
479 P.2d 669 (Cal. 1971) ..........................................................  24, 25, 29, 32

Santa Barbara Sch. Dist. v. Superior Ct. o f Santa Barbara,
530 P.2d 605 (Cal. 1975) .............................................................................  25

Sch. Cmte. o f Springfield v. Bd. o f Educ.,
366 Mass. 315, 319 N.E.2d 427 (1974) ......................................................  30

Rules

Fed. R. App. P. 12(a)..................................................................................................1

Fed. R. App. P. 2 9 (a ).................................................................................................... 1

Local Rule 46(a)(2)...................................................................................................... 1

Constitutional Provisions & Statutes

Mass. Const. Amend, art. I l l  .......................................................................... passim

viii



Mass. Const. Amend, art. X CV III........................................................................... 29

Mass. Const. II c.l § 1 .............................................................................................. 29

Mass. G. L. ch. 71, § 1 et seq ................................................................................. 33

Miscellaneous

Kevin Brown, The Constitutionality o f Racial Classifications in
Public School Assignments, 29 Hofstra L. Rev. 1 (2000) .........................  21

Gary Orfield & Chungmei Lee, Brown at 50: King’s Dream or Plessy’s 
Nightmare? (2004), available at http://www.civilrightsproject. 
harvard.edu/research/reseg04/brown50.pdf .................................................. 8

Wendy Parker, The Decline o f Judicial Decisionmaking: School 
Desegregation and District Court Judges, 81 N.C. L. Rev.
1623 (2003)........................................................................................................ 8

James E. Ryan, The Supreme Court and Public Schools, 86 Va. L.
Rev. 1335 (2000)............................................................................................ 21

D. Garth Taylor, Public Opinion & Collective Action: The Boston
School Desegregation Conflict (1986 )........................................................  26

H.B. 6657, 1973 (vetoed, July 10, 1973) ............................................................... 26

H.B. 5459, 1974 (vetoed, April 17, 1974) ......................................................  26-27

H.B. 5316, 1977 Leg. (Mass. 1978) .......................................................................  27

S.B. 437, 1975 Sen. (Mass. 1978)...........................................................................  27

State House News Service, May 21, 1975, June 11, 1975,
Sept. 7, 1977 ..................................................................................................  29

IX



STATEMENT OF INTEREST

Amici curiae Pamela Freeman, et al., were granted permission to participate 

as amici in the district court on April 30, 2002. See App. at 49-50. The district 

court permitted amici to submit legal briefs and make oral arguments at trial. A 

timely notice of appearance by counsel for amici was filed pursuant to Fed. R. 

App. P. 12(a) and Local Rule 46(a)(2), and consent to file this appellate brief was 

obtained from both parties pursuant to Fed. R. App. P. 29(a). Amici curiae are 

comprised of the following entities and individuals:

A. The NAACP Legal Defense & Educational Fund, Inc.

The NAACP Legal Defense & Educational Fund, Inc. (“LDF”) is a 

nonprofit corporation that assists African Americans and other people of color 

secure their constitutional and civil rights. The nation’s oldest civil rights law 

firm, LDF has been integral in dismantling racial segregation and providing equal 

educational opportunity. It represented African American plaintiffs in the cases 

leading up to and including Brown v. Board o f Education, 347 U.S. 483 (1954), 

and has been involved in numerous subsequent desegregation cases. Since its 

founding in 1947, LDF has always maintained an interest in litigation ensuring 

racial integration and diversity in the context of higher education as well as at the 

elementary and secondary levels.

1



B. The Lawyers’ Committee for Civil Rights Under the Law of the 
Boston Bar Association

Founded in 1968, the Lawyers’ Committee for Civil Rights Under the Law 

of the Boston Bar Association (“Boston Lawyers’ Committee”) is a nonprofit civil 

rights organization specializing in reform litigation to address race and national 

origin discrimination. The Boston Lawyers’ Committee handles cases involving 

education, school desegregation, housing and employment discrimination, voting 

rights, and racial violence. It has worked to ensure equal and fair educational 

opportunities in major Boston area cases, such as Morgan v. Hennigan, 509 F.2d 

580 (1st Cir. 1974) and Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998). It has 

an interest in this litigation, as the case raises significant issues affecting its client 

communities and its organizational mission.

C. The Northshore Branch of the National Association for the 
Advancement of Colored People

The N.A.A.C.P., established in 1909, is the nation’s oldest civil rights 

organization with state and local affiliates throughout the country. Its mission is 

the advancement and improvement of the political, educational, social, and 

economic status of African Americans and other people of color; the elimination 

of racial prejudice; the publicizing of adverse effects of racial discrimination; and 

the initiation of lawful action to secure the elimination of racial bias. Its

2



Northshore membership, residing in the City of Lynn and Commonwealth of 

Massachusetts, includes parents of children enrolled in the Lynn Public School 

System.

D. Individually Named Parents and Students

Amici parents, both white and African American, acting on behalf of their 

minor children, have the most concrete interest in the outcome of this litigation. 

Pamela Freeman acts on behalf of her child, James, who is a student enrolled in 

the Lynn Public School System and attends an out-of-district school. Barbara and 

Anthony Murkison act on behalf of their children, Tia, Cassandra, and Jason, who 

are all students enrolled in the Lynn Public School System and attend out-of­

district schools. As students and parents in the Lynn schools, they are threatened 

by the potential loss of the opportunity to attend integrated schools and the return 

to racially and ethnically isolated conditions posed by this litigation.

SUMMARY OF ARGUMENT

Amici curiae Pamela Freeman, et al. submit this brief in support of 

appellees and affirmance of the order and judgment of the district court. Comfort 

v. Lynn Sch. Cmte., 283 F. Supp. 2d 328 (D. Mass. 2003).

Appellants incorrectly assume that “strict scrutiny” is the appropriate legal 

standard to evaluate the Lynn School Committee’s voluntarily-adopted racial

3



integration policies (“Lynn Plan”) and the Racial Imbalance Act (“RIA”) of the 

Commonwealth of Massachusetts. Although amici agree with appellees that both 

the Lynn Plan and RIA would survive a strict scrutiny analysis, as a preliminary 

matter, we believe that the application of strict scrutiny-in the unique context of 

K-12 public education-is compelled neither by judicial precedent nor analytical 

logic. Indeed, accepting appellants’ invitation to subject voluntary integrative 

public school assignment policies to strict scrutiny would not only undermine 

more than three decades of Supreme Court pronouncements on the value of local 

autonomy in such matters, but also threaten the implication that the spirit of Brown 

v. Board o f Education, 347 U.S. 483 (1954)- if not its letter-was wrong.

Appellants’ state law claims must also fail, as the interpretation of Article 

111 of the Massachusetts Constitution that they propose is unconstitutional for 

two interrelated reasons. First, it alters the existing state civil rights law in a way 

that would improperly entangle and empower private discrimination with the 

authority of the state. See Reitman v. Mulkey, 387 U.S. 369 (1967). Second, it 

establishes an impermissible explicit racial classification that places a greater 

burden on racial minorities to seek relief through the political process. See Hunter 

v. Erickson, 393 U.S. 385 (1969). Thus, should this Court read Article 111 in a

4



way that would invalidate the Lynn Plan and the R1A, then it must also conclude 

that Article 111 cannot survive federal, constitutional scrutiny.

ARGUMENT

I. STRICT SCRUTINY IS NOT THE APPROPRIATE STANDARD OF
REVIEW

In its opinion, the district court indicated that it was “convinced by amici 

that intermediate scrutiny is the correct test to apply.” Comfort, 283 F. Supp. 2d at 

366.1 On appeal, appellants paint with a broad brush, neither acknowledging the 

court’s analysis nor responding to the cases it cited. Appellants’ Brief at 23-24. 

Their assumption that existing precedent compels the application of strict scrutiny 

here is unsupported. For the reasons set forth below, this Court should reject their 

request to apply that standard of review in the unique context of this case.

A. The Supreme Court Cases Involving Strict Scrutiny On Which 
Appellants Rely Involve Distinct Issues Outside The Educational 
Context And Do Not Govern Here.

Brown v. Board o f Education, 347 U.S. 483 (1954), did not determine that 

race could not be considered in the assignment of public school children. Rather, 

the Supreme Court in Brown held that use of race for segregative purposes was

1 Recognizing the “need to proceed with caution,” the court ultimately 
engaged in a strict scrutiny analysis, noting that the parties had briefed the issues 
under the more rigorous standard. Comfort, 283 F. Supp. 2d at 366.

5



constitutionally impermissible. Id. at 493. The Court emphatically declared that 

“in the field of public education the doctrine of ‘separate but equal’ has no place. 

Separate educational facilities are inherently unequal.” Id. at 495. Nothing in 

Brown indicates that race-conscious integrative student assignment would violate 

the Fourteenth Amendment. Indeed, if anything, its language suggests just the 

opposite: that the harm from racial segregation occurs regardless of whether that 

segregation is de jure  or de facto in origin. Id. at 494-95 (“The impact [of 

segregation] is greater when it has the sanction of the law.” (quoting findings of 

lower court in Brown case)).

No reference to “strict scrutiny” can be found in Brown, nor did the 

contemporary elaboration of that standard emerge in any of the Court’s subsequent 

school desegregation cases.2 Today, “strict scrutiny” is invoked primarily in 

evaluating policies designed to compensate victims of systemic legal and 

economic exclusion resulting from our nation’s long, tragic history of slavery, Jim 

Crow segregation, and racial discrimination. See, e.g., Grutter v. Bollinger, 539 

U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003); Adarand Const., Inc. v. 

Pena, 515 U.S. 200, 227 (1995). These so-called “affirmative action” cases seek

2 The Supreme Court’s announcement and first application of strict scrutiny 
came not in a school desegregation case, but in McLaughlin v. Florida, 379 U.S. 
184 (1964), a case invalidating a statute criminalizing interracial cohabitation.

6



to define the permissible parameters of racial preferences in the distribution of 

finite goods or benefits, such as public employment, government contracts, and 

admissions to selective colleges and universities. See infra § I.C.

The jurisprudential paths of school desegregation and affirmative action 

cases have not converged. Although the early school desegregation cases mostly 

discussed remedies ordered in light of a constitutional violation, see, e.g., Keyes v. 

Sch. Dist. No.l, 413 U.S. 189 (1973); Swann v. Charlotte-Mecklenburg Bd. o f  

Educ., 402 U.S. 1 (1971); Green v. County Sch. Bd. o f New Kent County, 391 U.S. 

430 (1968), it is telling that the Court never mentioned a need to balance those 

remedies against any “rights” that children might have to be free from integrative 

student assignments. To the contrary, the Court has recognized consistently that 

school authorities may (and should) pursue steps to achieve racial integration 

because it benefits all students, regardless of race. See infra § I.B.

Thus, even as the Supreme Court began to curtail the scope of remedies 

ordered by lower courts, e.g., Pasadena City Bd. o f Educ. v. Spangler, A ll  U.S. 

424, 440 (1976); Milliken v. Bradley, 418 U.S. 717, 744 (1974), its concern was 

expressed almost exclusively in terms of constraints on judicial authority-not in 

terms of a fear of trampling on any supposed rights of students who wish to be 

assigned to a specific school of their choice or to schools closer to their homes.

7



This despite the fact that many of these school desegregation cases came to the 

Court as it concomitantly confronted the kinds of affirmative action challenges 

described above.

Nor did the Court’s affirmative action rationale play a role in the Court’s 

school desegregation decisions of the 1990s. See Missouri v. Jenkins, 515 U.S. 70 

(1995); Freeman v. Pitts, 503 U.S. 467 (1992); Bd. ofEduc. o f Oklahoma City v. 

Dowell, 498 U.S. 237 (1991).3 Those cases made much of the deference that 

courts should afford a school district in evaluating its request for unitary status, 

see infra § I.D., but said nothing of constitutional burdens that continued 

enforcement of desegregation orders might impose on so-called “innocent” third 

parties. Cf, e.g., Wygant v. Jackson Bd. ofEduc., 476 U.S. 267, 276 (1986) 

(expressing concern, in the context of teacher layoffs affected by an affirmative

3 In the wake of these cases, numerous districts each year have sought 
unitary status, and none have been denied. See Wendy Parker, The Decline o f  
Judicial Decisionmaking: School Desegregation and District Court Judges, 81 
N.C. L. Rev. 1623, 1633 (2003) (ten-year study of published federal court 
opinions demonstrating that every request for unitary status made was granted, 
save one, which granted partial unitary status under Freeman). As a result, our 
nation’s public schools have witnessed a troubling trend of racial resegregation 
over the past decade and a half, creating a dire need for integrative policies like 
the ones challenged in this lawsuit if we are ever to realize the promise of Brown. 
See, e.g., Gary Orfield & Chungmei Lee, Brown at 50: K ing’s Dream or Plessy’s 
Nightmare? (2004), available at http://www.civilrightsproject.harvard.edu/ 
research/reseg04/brown50.pdf.

8

http://www.civilrightsproject.harvard.edu/


action plan, about “imposing discriminatory legal remedies that work against 

innocent people”).

B. The Supreme Court Has Repeatedly Expressed Approval of 
Voluntary School Integration Efforts.

Appellants’ citations notwithstanding, Appellants’ Brief at 24, the Supreme 

Court has ?iever applied strict scrutiny in the context o f school desegregation or 

voluntary integration. On the contrary, it has often expressly approved of school 

board policies that foster integration independent o f any constitutional obligation 

to do so. The basis for this approval was reiterated in the oft-quoted language in 

Swann, where the Court concluded that school boards possess far greater 

discretion than federal courts to adopt integrative student assignment policies for 

pedagogical reasons:

School authorities are traditionally charged with broad 
power to formulate and implement educational policy and 
might well conclude, for example, that in order to prepare 
students to live in a pluralistic society each school should 
have a prescribed ratio of Negro to white students 
reflecting the proportion for the district as a whole. To do 
this as an educational policy is within the broad 
discretionary powers o f school authorities.

402 U.S. at 16 (emphasis added). Accord North Carolina State Bd. ofEduc. v.

Swann, 402 U.S. 43, 45 (1971) (recognizing integration as a permissible goal to

9



pursue “quite apart from any constitutional requirements.”); McDaniel v. Barresi, 

402 U.S. 39, 40-41 (1971).

In the three decades since Swann, a majority of the Court has never joined 

an opinion contradicting the notion that school officials may go further than courts 

to foster integrated student bodies. In fact, subsequent signals from individual 

Justices, both prior to and after the emergence of the Court’s affirmative action 

jurisprudence, suggest the opposite-that local bodies do retain flexibility to make 

such decisions. See, e.g., Columbus Bd. ofEduc. v. Penick, 443 U.S. 449, 488-89 

n.7 (1979) (Powell, J., dissenting); Busstop, Inc. v. Bd. ofEduc. o f Los Angeles, 

439 U.S. 1380, 1383 (1978) (Rehnquist, J., in Chambers); Keyes, 413 U.S. at 242 

(Powell, J., concurring).

Indeed, when presented with a clear opportunity to draw parallels between 

these developing bodies of law in Washington v. Seattle Sch. Dist. No.l, 458 U.S. 

457 (1982), the Court elected not to liken non-remedial, race-conscious student 

assignment policies to race-preferential affirmative action, instead going so far as 

to strike down state-level efforts to ban their adoption. It invalidated a 

Washington statewide initiative banning all school districts from using busing to 

alleviate de facto racial segregation, finding that it selectively and improperly 

“place[d] effective decisionmaking authority over a racial issue at a different level

10



of government.” Id. at 474-75 (citing Hunter v. Erickson, 393 U.S. 385, 391

(1969)); see also infra § II.B. In so doing, the Court acknowledged:

Education has come to be “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.” Brown, 347 U.S. at 493.
When that environment is largely shaped by members of 
different racial and cultural groups, minority children can 
achieve their full measure of success only if they learn to 
function in—and are fully accepted by—the larger 
community. Attending an ethnically diverse school may 
help accomplish this goal by preparing minority children 
“for citizenship in our pluralistic society,”. . . while, we 
may hope, teaching members of the racial majority “to live 
in harmony and mutual respect” with children of minority 
heritage. .. .[I]n the absence of a constitutional violation, 
the desirability and efficacy of school desegregation are 
matters to be resolved through the political process.

Id. at 472-74 (citations shortened; footnote omitted).4

Seattle evidences that the Supreme Court neither viewed nor analyzed the 

development of its affirmative action jurisprudence as impacting its school 

desegregation jurisprudence. Significantly, Seattle was decided four years after

4 Seattle also cited with approval Lee v. Nyquist, 318 F. Supp. 710 
(W.D.N.Y. 1970), aff’d, 402 U.S. 935 (1971), a case with similar facts which the 
Supreme Court affirmed. As had Seattle, Lee found that “[ajlthough there may be 
no constitutional duty to undo de facto segregation,. . .  it is by now well 
documented and widely recognized by educational authorities that the elimination 
of racial isolation in the schools promotes the attainment of equal educational 
opportunity and is beneficial to all students, both black and white.” Id. at 714.

11



the Court confronted the affirmative action policy in Regents ofUniv. o f Cal v. 

Bakke, 438 U.S. 265 (1978), and yet the opinion hardly makes mention of Bakke at 

all. Instead, it refers to the mandate of Brown, and the critical role that school 

boards play in balancing “the desirability and efficacy of school desegregation.” 

Seattle, 458 U.S. at 474.

The district court in the instant case was informed by these (and other) 

decisions, Comfort, 283 F. Supp. 2d at 374, 390-91, and it is in good company.

For decades, federal district and appellate courts have repeatedly held that local 

and state authorities may voluntarily use race-conscious student assignment 

policies to integrate their schools and eliminate racial isolation. See, e.g., Brewer 

v. West Irondequoit Cent. Sch. D ist, 212 F.3d 738, 751 (2d Cir. 2000) (“[L]ocal 

school authorities have the power to voluntarily remedy de facto segregation 

existing in schools and, indeed, such integration serves important societal 

functions.”); Parent Ass ’n o f Andrew Jackson High Sch. v. Ambach, 738 F.2d 574, 

581 n.9 (2d Cir. 1984) (school boards may take otherwise “constitutionally suspect 

measures to counteract the perceived problem of accelerated white flight ), Clark 

v. Bd. o f Educ. o f Little Rock, 705 F.2d 265, 271 (8th Cir. 1983) (“Although the 

possibility of white flight and consequent resegregation cannot justify a school 

board’s failure to comply with a court order to end segregation, it may be taken

12



into account in an attempt to promote integration.”); Johnson v. Bd. ofEduc. o f  

Chicago, 604 F.2d 504, 518 (7th Cir. 1979), vacated and remanded on other 

grounds, 449 U.S. 915, 457 U.S. 52 (1982) (“[T]he absence of a constitutional 

duty on the part of the school authorities to establish racially-based enrollments 

does not preclude the Board from prescribing a racial balance to remedy the 

segregative impact of demographic change.”); Deal v. Cincinnati Bd. o f Educ.,

369 F.2d 55, 61 (6th Cir. 1966) (“Although boards of education have no 

constitutional obligation to relieve against racial imbalance which they did not 

cause or create,. . .  it is not unconstitutional for them to consider racial factors and 

take steps to relieve racial imbalance if in their sound judgment such action is the 

best method of avoiding educational harm.”); Parents Involved in Cmty. Schs. v. 

Seattle Sch. Dist. No.l, 137 F. Supp. 2d 1224, 1239 (W.D. Wash. 2001), rev’d 285 

F.3d 1236 (9th Cir. 2002), opinion withdrawn, 294 F.3d 1085 (9th Cir. 2002), 

certified question answered by 72 P.3d 151 (Wash. 2003) (“PICS”) (“[Wjhile 

courts are limited in their powers to impose desegregation measures . . . school 

boards may exercise a wider latitude in voluntarily adopting desegregation 

measures.”); Hampton v. Jefferson County Bd. ofEduc., 102 F. Supp. 2d 358, 379 

(W.D. Ky. 2000) (“If [a school board] voluntarily chooses to maintain 

desegregated schools, it acts within the traditional authority invested in a

13



democratically elected school board.”); Willan v. Menomonee Falls Sch. Bd., 658 

F. Supp. 1416, 1422 (E.D. Wis. 1996) (“It is well-settled in federal law that state 

and local school authorities may voluntarily adopt plans to promote integration 

even in the absence of a specific finding of past discrimination.”); Offermann v. 

Nitkowski, 248 F. Supp. 129, 131 (W.D.N.Y. 1965) (“The tenor of these and 

related decisions . . . clearly indicates that the Fourteenth Amendment, while 

prohibiting any form of invidious discrimination, does not bar cognizance of race 

in a proper effort to eliminate racial imbalance in a school system.”) (all internal 

citations omitted).

From a legal-historical perspective, therefore, no adequate basis exists to 

conclude that existing Supreme Court juri sprudence demands the application of 

strict scrutiny here, or that the Supreme Court precedent regarding the broad 

power of local school boards is not still good law. That the authority offederal 

courts to impose desegregation remedies may have been curtailed by the Court in 

recent years does not mean that the authority of school boards to do what courts 

cannot has been likewise diminished.5 This Court, therefore, should resist

5 To the extent that appellants rely on language in cases dealing with the 
limitations of judicial remedial power to suggest that the actions taken by 
appellees are unconstitutional, see Appellants’ Brief at 46 (citing Freeman, 503 
U.S. at 494), such statements do not, given their context, undermine the Supreme 
Court’s prior, unambiguous pronouncements about the deference afforded to

14



appellants’ invitation to apply “strict scrutiny” and restrict the ability of school 

boards to adopt pedagogically sound policies.

C. Strict Scrutiny is Inappropriate Because Integrative Race-
Conscious Public School Student Assignments Are Analytically 
Different from Race Consciousness in Other Contexts.

This case—which involves a voluntary, race-conscious integrative student 

assignment plan in a district where every school provides comparable, high quality 

educational opportunities-is analytically and qualitatively different from those 

affirmative action cases cited by appellants in which courts have applied strict 

scrutiny. In affirmative action cases, at issue is the distribution of a limited good 

or benefit, such as admission to a selective university, Gratz, 539 U.S. at 351, the 

grant of a government contract, Adarand, 515 U.S. at 211, or public employment.

school districts. Brewer, 212 F.3d at 752 (“The absence of a duty [to desegregate] 
sheds little light on the constitutionality of a voluntary attempt. . . .”).

To the extent that appellants rely on similar language contained in 
affirmative action cases, see Appellants’ Brief at 46 (citing Grutter, 539 U.S. at 
330), we make two points. First, the Court in that instance speaks of “assur[ing] 
within [a school] some specified percentage of a particular group merely because 
of its race or ethnic origin,” which is not the case here. The Lynn Plan does not 
seek racial balance for the sake of racial balance, but rather to capture the benefits 
of racial integration described at length by the district court. C f Swann, 402 U.S. 
at 17-18 (distinguishing between assignments made “to achieve racial balance” 
and to bring about desegregation). Second, for the reasons delineated in this Part 
of the brief, affirmative action policies and voluntary school integration policies 
are analytically different, and therefore statements made in one context may not be 
relevant in the other. See Grutter, 539 U.S. at 327.

15



United States v. Paradise, 480 U.S. 149, 153 (1987). Often referred to as “zero- 

sum games,” these intense competitions result in so-called “winners” and “losers” 

regardless of the decisionmakers’ approach. The question is whether it is 

permissible to consider race among other facts and factors in evaluating merit, 

qualification, or cost to favor some applicants over others. In short, courts have 

applied strict scrutiny in cases involving racial preferences. See Comfort, 283 F. 

Supp. 2d at 364-65; PICS, 137 F. Supp. 2d at 1232; Hampton, 102 F. Supp. 2d at 

380.

The same cannot be said of public school assignments generally, or of the 

Lynn Plan and RIA specifically. PICS, 72 P.3d at 161 (noting that courts have 

historically treated racial integration policies of public schools differently from 

affirmative action policies). In the context of K-12 public education, we begin 

with the premise that students are not entitled to attend any particular school—so 

long as they are not segregated by race, Brown, 347 U.S. at 483, the decision 

where and how to assign students is one for the political process and school 

authorities to resolve. See, e.g., Johnson, 604 F.2d at 515 (citing cases). Unlike in 

the affirmative action context, public primary and secondary education is not a 

limited good: all students eligible to attend Lynn schools will be and are assigned 

to one of the schools in the district. At issue, therefore, is not any denial of

16



assignment to a Lynn public school of equal, high quality. Cf, e.g., Gratz, 539 

U.S. at 251.

While the Lynn Plan seeks to foster interracial tolerance and understanding 

by permitting and encouraging students to make voluntary integrative transfers 

among its schools, the ability to take advantage of such transfers does not hinge 

upon any determination of qualification or merit. Compare Grutter, 539 U.S. at 

315 and Wessmann v. Gittens, 160 F.3d 790, 791 (1st Cir. 1998), with Comfort, 

283 F. Supp. 2d. at 377. Further, all students, regardless of race, may seek 

integrative transfers under the Lynn Plan. Thus, absent in this context are the 

kinds of concerns raised in affirmative action cases about the permissibility of 

preferences or favoritism in a competitive process.

Similarly absent are concerns that the failure to be assigned to a particular 

school constitutes a legally cognizable injury. As is the case in the vast majority 

of school districts in this country, the Lynn schools are fungible: the parties here 

have stipulated that each Lynn school provides equal educational opportunities. 

Comfort, 293 F. Supp. 2d at 352, 365. To be sure, individual students may prefer 

a particular school over another, but preference alone does not make the grant or 

denial of assignment to that school any more constitutionally significant. 

Hampton, 102 F. Supp. 2d at 380 n.43 (“matters of personal preference do not

17



distinguish those schools in a constitutionally significant sense”). There are, 

therefore, no legal benefits or advantages afforded to individuals based on race.

Some courts have thus distinguished race-conscious “stacked deck” policies 

from “reshuffle” ones, with the former allocating “a scarce benefit,” and the latter 

“not only providing] something to everyone, b u t . . . providing] the same thing 

(e.g., education in an integrated school) to everyone.” Associated Gen. 

Contractors v. San Francisco Unified Sch. Dist., 616 F.2d 1381, 1386 (9th Cir.), 

cert, denied, 449 U.S. 1061 (1980); PICS, 72 P.3d at 159-60.

In recent years, at least two other courts have relied on this distinction to 

imply that voluntary school integration measures are not barred by statewide, 

voter-enacted ballot measures specifically designed to ban all race-preferential 

affirmative action. Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 707 n.16 

(9th Cir. 1997) (relationship between school integration and Proposition 209); 

PICS, 72 P.3d at 160 (relationship between school integration and Initiative 200).

Likewise, a number of federal courts in the post-Adarand era, persuaded by 

these analytical differences, have questioned the applicability of strict scrutiny 

beyond the context of affirmative action, where challenged policies do not afford 

racial preferences in allocating limited goods. See, e.g., McLaughlin v. Boston 

Sch. Cmte., 938 F. Supp. 1001, 1008-09 (D. Mass. 1996); Stanley v. Darlington

18



Sch. Dist., 915 F. Supp. 765, 774 (D.S.C. 1996); Martin v. Sch. Dist. o f  

Philadelphia, 1995 U.S. Dist. LEXIS 13861 at *5-*6 (E.D. Pa. 1995).

At least two federal appellate courts have even used the distinction to reject 

the application of strict scrutiny in cases where school districts employ race- 

conscious policies in the assignment of teachers. See Jacobson v. Cincinnati Bd. 

ofEduc., 941 F.2d 100, 102 (6th Cir.), cert, denied, 506 U.S. 830 (1992); 

Kromnick v. Sch. Dist. o f Philadelphia, 739 F.2d 894, 903 (3d Cir. 1984), cert, 

denied, 469 U.S. 1107 (1985). Indeed, this Court employed the same reasoning to 

justify a more deferential standard of scrutiny to a race-conscious housing 

integration policy. Raso v. Lago, 135 F.3d 11, 16 (1st Cir.), cert, denied, 525 U.S. 

811 (1998) (while Adarand may suggest that “any government action . . .  is 

suspect if it has been taken on the basis of a ‘racial classification,’ . . . [t]he term 

[racial classification] normally refers to a governmental standard preferably 

favorable to one race or another, for the distribution o f benefits” (emphasis 

added)).

D. A More Deferential Standard Also Comports With the National 
Tradition of Wide Autonomy to Local School Districts.

In the 1990's, the Supreme Court began refocusing the goal of school 

desegregation litigation from an unequivocal mandate to eliminate the vestiges of

19



past segregation “root and branch,” Green, 391 U.S. at 438, to the alternative “end 

purpose . . .  to restore state and local authorities to the control of a school system 

that is operating in compliance with the Constitution.” Freeman, 503 U.S. at 489. 

Accord Jenkins, 515 U.S. at 131 (local autonomy of school districts “a vital 

national tradition”); Dowell, 498 U.S. at 248 (emphasizing “important values of 

local control of public school systems”).

These cases convey several rationales for restoration of local control. They 

emphasize, for instance, the value of allowing the political process to determine 

what kinds of educational policies would best suit the needs of the children within 

each individual school district. See, e.g., Freeman, 503 U.S. at 489; Dowell, 498 

U.S. at 248. In the Court’s estimation, local control and deference also encourage 

“experimentation, innovation, and a healthy competition for educational 

excellence,” San Antonio Sell. Dist. v. Rodriguez, 411 U.S. 1, 50 (1973), school 

board responsiveness, Freeman, 503 U.S. at 490, and public confidence in public 

schools generally. Milliken, 418 U.S. at 741-42.

Equally as often, the Court has acknowledged the value of local authority 

because of its view that federal judges lack the competence to make sensitive, 

pedagogical decisions best left to school boards and educational experts. See, e.g., 

id. at 743-44 (expressing fear that judges would become “a de facto ‘legislative

20



authority’ . . .  [or] ‘school superintendent,’ . . .  a task which few, if any, judges are 

qualified to perform”); accord Regents o f the Univ. o f Mich. v. Ewing, 474 U.S. 

214, 226 (1985); Penick, 433 U.S. at 488 (Powell, J., dissenting); Bakke, 438 U.S. 

at 404 (Blackmun, J., concurring in part, dissenting in part).6

Notably, based on this theory of local control, the Supreme Court paved the 

way for findings of unitary status in its 1990s school cases despite recognition o f  

large racial disparities in each district. Jenkins, 515 U.S. at 102; Freeman, 503 

U.S. at 476; Dowell, 498 U.S. at 242. Likewise, the Court invoked local control in 

Milliken to strike down a remedial plan that would have extended a desegregation 

plan across school district boundaries. 418 U.S. at 740-45. And in Rodriguez, it 

found the values of local control relevant in reaching the conclusion that funding 

disparities among school districts that had a significant disparate impact on black 

and Latino children were constitutionally permissible. 411 U.S. at 49.

Thus, the tradition of local control of public education-in combination with 

expressions of hope that communities rather than judges are the better source of

6 As the district court noted, Comfort, 283 F. Supp. 2d at 374-75 & n.83, 
even beyond the context of race and student assignment, courts generally afford 
school boards wide latitude in balancing “the constitutional rights of students 
against the unique demands of a public education setting and curricular needs.” 
See also Kevin Brown, The Constitutionality o f Racial Classifications in Public 
School Assignments, 29 Flofstra L. Rev. 1, 68-69 (2000); James E. Ryan, The 
Supreme Court and Public Schools, 86 Va. L. Rev. 1335, 1338 (2000).

21



sound, equitable policies-has limited federal courts’ remedial authority even as 

plaintiffs challenged educational practices having undisputed racially disparate 

results. What an ironic, unfortunate path constitutional law would have taken if 

this Court were to conclude that the importance of local control could be invoked 

to insulate school officials from any legal obligation to address such disparities 

within their systems, while unitary districts, acting in good faith, were not afforded 

the discretion necessary to implement and maintain policies that would prevent a 

return to the kinds of racially isolated conditions that first led the Supreme Court 

to reach its conclusion in Brown.

II. IF THE COURT INTERPRETS ARTICLE 111 TO INVALIDATE
THE LYNN PLAN AND RACIAL IMBALANCE ACT, THE
AMENDMENT MUST BE DEEMED UNCONSTITUTIONAL

The complaint in this case also raised claims based on Article 111 of the 

Amendments to the Massachusetts Constitution. Mass. Const. Amend, art. 111. 

Evaluating these pendent claims, the district court found the Lynn Plan and the 

RIA consistent with the obligations of that provision. Comfort, 283 F. Supp. 2d at 

393-97. Responding to arguments amici raised below, it further opined that “the 

plaintiffs proposed broader reading of Article 111 would ..  . provoke serious 

doubt as to its validity under the United States Constitution.” Id. at 397.

Appellants essentially dismiss this latter point, acknowledging none of the district

22



court’s reasoning and citing three inapposite cases. Appellants’ Brief at 50-52. 

Their response is unpersuasive. Accordingly, this Court should affirm the district 

court’s conclusion that the reading of Article 111 advanced by appellants is 

incorrect and that, were it interpretively sound, would be unconstitutional.

A. Article 111 Would Be Unconstitutional Under Reitman v. Mulkey, 
387 U.S. 369 (1967) If Interpreted In The Manner Suggested By 
Appellants.

An interpretation of Article 111 invalidating the Lynn Plan and the RIA 

would be unconstitutional under the principle established in Reitman v. Mulkey, 

387 U.S. 369 (1967). There, the Supreme Court affirmed the decision of the 

California Supreme Court invalidating a statewide initiative that repealed various 

state civil rights laws and barred the state from restricting the rights of individuals 

to sell or lease their property. The Court reasoned that the challenged measure 

violated the Fourteenth Amendment because it had the effect of encouraging and 

significantly involving the state in private discrimination. Id. at 373.

Since Reitman, a number of courts have relied on its analytical framework 

to evaluate statewide measures involving limitations on student assignments and 

transfers. For instance, in Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), 

a ff’d 402 U.S. 935 (1971), the court relied in part on Reitman to invalidate a 

portion of New York’s education codes “prohibit[ing] state education officials

23



and appointed school boards from assigning students . . .  to schools for the 

purpose of achieving racial equality in attendance.” Id. at 712. Examining the 

historical context, immediate objective, and ultimate effect of the challenged 

provision, the Lee court concluded that it effectively empowered individual 

parents to thwart otherwise constitutionally valid desegregation efforts and 

impermissibly denied school boards discretion over the kind of student assignment 

decisions they are ordinarily and properly permitted to exercise. By so doing, the 

statute “serve[d] to continue segregation in the schools and thus ‘significantly 

encourag[ed] and involved] the State’ in racial discrimination.” Id. at 716 

(quoting Reitman, 387 U.S. at 373, 381).

Similarly, in San Francisco Unified Sch. Dist. v. Johnson, 479 P,2d 669 

(Cal. 1971), the California Supreme Court employed the Reitman analysis to 

construe very narrowly a section of the state education code that prohibited local 

school boards from transporting students for any reason without the consent of 

their parents or guardians. See id. at 670. As in Lee, the Johnson court found that 

the challenged statute, if read to permit parental veto of pupil assignments made 

“to achieve, or at least promote, racial integration in the school districtf,] .. . 

would impart a private parental decision into the state educational structure and

24



transform that private decision, which could emanate from racial prejudice, into

state action.” Id. at 675. It explained:

It is obvious . . . that the general powers of the [school] 
board with respect to attendance zones are subject to the 
constitutional guarantees of equal protection and due 
process. Jackson v. Pasadena City Sch. Dist., 382 P.2d 
878, 879 (Cal. 1963). “[When] private individuals or 
groups are endowed by the State with powers or functions 
governmental in nature, they become agencies or 
instrumentalities of the State and subject to its 
constitutional limitations.” Evans v. Newton, 382 U.S. 296,
299 (1966). Consequently, a parental decision to grant or 
withhold consent to pupil assignment, as an integral part of 
the educational structure, is subject to the provisions of the 
Fourteenth Amendment. A system that bestows 
governmental force upon a private decision to impose 
racial discrimination cannot stand.

Id. at 678-79. To avoid constitutional conflict, the court interpreted the relevant 

provision narrowly not to prohibit all nonconsensual school assignments made in 

order to achieve racial integration. Id.1 7

7 Undeterred, California voters subsequently approved a statewide initiative 
that modified the state education code to include yet another anti-busing measure. 
Unlike the provision that Johnson interpreted narrowly to avoid constitutional 
invalidation, this measure prohibited any desegregative student assignments, 
explicitly providing that “[n]o public school student shall, because of his race, 
creed, or color, be assigned to or required to attend a particular school.” Santa 
Barbara Sch. Dist. v. Superior Ct. o f Santa Bat'bara, 530 P.2d 605, 611 (Cal. 
1975). When called upon to rule on its constitutionality, the California Supreme 
Court invalidated the provision in its entirety, basing its decision on “the same 
reasons set forth . . . in Johnson.” Id. at 614.

25



Article 111, an amendment to the Massachusetts Constitution, emerged 

from the same historical context that spawned the anti-busing measures challenged 

(and often invalidated) in these and other similar cases. See, e.g., Seattle, supra. 

Ratified by the voters of the Commonwealth in 1978, Article 111 is a throwback to 

the unhappy days of recalcitrance and open resistance to school desegregation 

throughout the nation and in Massachusetts, particularly. See generally, e.g., D. 

Garth Taylor, Public Opinion & Collective Action: The Boston School 

Desegregation Conflict (1986) (chronicling white opposition to desegregation 

during this period, including grassroots efforts to enact statewide anti-busing 

measures).

Although the Supreme Judicial Court of Massachusetts (“SJC”) has not had 

occasion to evaluate the constitutionality of Article 111, its contemporaneous 

review of very similarly worded anti-busing measures indicates that the more 

expansive interpretation of Article 111 advanced by appellants would surely 

violate the Reitman principle. Twice in two years prior to the enactment of Article 

111, bills seeking to achieve the same results were presented to the state 

legislature. See H.B. 6657, 1973 (vetoed, July 10, 1973);8 H.B. 5459, 1974

8 House Bill 6657, entitled “An Act prohibiting transportation of pupils 
without the written consent of their parents or guardians,” provided in relevant 
part: “Notwithstanding any law to the contrary, no child attending public school

26



(vetoed, April 17, 1974).9 Acting on behalf of the anti-busing organization, 

Massachusetts Citizens Against Forced Busing, and motivated by outright hostility 

toward the kinds of measures designed to remedy unconstitutional segregation 

explicitly endorsed by the Supreme Court in Swann, the same group of legislators 

who sponsored these prior versions also proposed Article 111. S.B. 437, 1975 

Sen. (Mass. 1978) (sponsored by Sens. Lewis. & LoPresti); H.B. 5316, 1977 Leg. 

(Mass. 1978) (sponsored by Rep. Flynn).

These prior related measures were approved by the legislature and placed 

before the Governor for final approval. On both occasions, Governor Francis W. 

Sergent vetoed the proposed legislation upon the SJC’s issuance of unanimous 

advisory opinions indicating that the bills, if enacted, would violate Articles 1 and 

10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment of 

the United States Constitution. Opinion o f the Justices, 363 Mass. 899, 298

shall be transported to or from any public school without prior written consent of 
his parent or legal guardian. Each of such children shall be permitted to attend the 
school nearest to his residence within his city or town, which has a seat available 
in his grade, unless his attendance at another school has been requested by his 
parent or legal guardian.”

9 Flouse Bill 5495, entitled, “An Act placing the issue of public school 
reassignment on the ballot of the special election to be held in the city of Boston in 
June of this year,” contained the following question: “Shall Boston public school 
children be assigned to a particular Boston public school on the basis of race, sex 
or creed without the consent of his parent or legal guardian?”

27



N.E.2d 840 (1973); Opinion o f the Justices, 365 Mass. 648, 310 N.E.2d 348

(1974). Lengthy passages from these opinions are quoted by the district court,

Comfort, 283 F. Supp. 2d at 398-99, and need not be repeated in their entirety

here. Worth noting, however, is the SJC’s recognition of the striking similarity

between Reitman and “the tortured history” of school integration in Massachusetts

in its first opinion, Opinion, 363 Mass, at 903, 298 N.E,2d at 844, and the

concerns it continued to express into its second:

Each [of the bills] “is unconstitutional its face because it 
serves to perpetuate existing segregation in some schools, 
regardless o f its cause, and thus ‘significantly encourage[s] 
and involve[s] the State in racial discrimination.’”
[Opinion, 298 N.E.2d] at 902 (emphasis in original), 
quoting from Reitman, 387 U.S. at 381. By prohibiting the 
assignment, reassignment, or transfer of a student in . . . 
public schools “on the basis of race, sex, or creed without 
consent of his parent or legal guardian,” the bill would 
forbid school authorities from using one of the most 
important measures necessary to achieve a racially 
balanced system. “[I]f a state-imposed limitation on a 
school authority’s discretion operates to inhibit or obstruct 
the operation of a unitary school system or impede the 
disestablishment of a dual system, it must fail.” North 
Carolina, 402 U.S. at 45 (1971).

Opinion, 365 Mass, at 649-50, 310 N.E.2d at 653 (citations shortened).

When the same sponsors attempted a third time to codify this anti-busing 

measure in what would become Article 111, they pursued a new strategy. To

28



ensure that it would avoid the Governor’s veto, they sought to codify it as an 

amendment to the Constitution rather than as mere state legislation. By so doing, 

they also managed to find an end-run around another advisory opinion from the 

SJC at the request of the Governor. See Mass. Const. Amend, art. XCVIII; Mass. 

Const. II c.l § 1 (explaining processes for statewide initiatives and referendum 

with legislative approval procedures). To be sure, the exact language of the 

measure had changed slightly (just as it had between the two previous bills), but 

cosmetic alterations aside, the intent of the legislators remained the same.10

As the Official Massachusetts Voters’ Information Guide reveals, see 

Comfort, 283 F. Supp. 2d at 395, proponents of Article 111 intended not only to 

keep intact the parental consent provision found in prior defeated anti-busing bills, 

but also to apply the limitations only to desegregative assignments. In other 

words, like its predecessors, Article 111 was never intended to prohibit student 

assignments based on factors other than race. It was purely an anti-integration 

measure, designed to “create a parental power to refuse consent to pupil 

assignment [which] begets a parental right to discriminate.” Johnson, 479 P.2d at

10 Although legislative history concerning the adoption of Article 111 is 
sparse, the limited direct evidence available pertaining to the legislators’ stated 
motives confirm that their intent remained the same. See, e.g., State House News 
Service, May 21, 1975, June 11, 1975, & Sept. 7, 1977 (on microform at State 
Library) (statements of Rep. Flynn).

29



678-79. See also Sch. Cmte. o f  Springfield  v. Bd. o fE duc., 366 Mass. 315, 329,

333, 319 N.E.2d 427, 435-36, 438 (1974) (“depriving the board of its power to 

require the use of effective measures for the elimination of racial imbalance . . .  is, 

in effect, an ‘authorization to discriminate’” (citing Reitman, 387 U.S. at 379)).

In virtually every respect, therefore, Article 111 codified what the doomed 

anti-integrationist House Bills 6657 and 5495 failed to codify. For that reason, 

should this Court find that the Lynn Plan and RIA fall under the purview of 

Article 111, it must also reach the question of whether Article 111 itself is valid. 

Given its historical context, immediate objective, and ultimate effect, Article 111, 

like its predecessors and contemporaries, is unconstitutional.11

11 Appellants’ reliance on Crawford v. Los Angeles Bd. ofEduc., 458 U.S. 
527 (1982) is misplaced. The challenged measure in Crawford banned only 
mandatory student assignments, but did not prevent “segregated school districts 
[from] us[ing] voluntary desegregation techniques, whether or not there has been a 
finding of intentional segregation.” Id. at 535-36. In other words, it addressed 
one controversial technique of achieving integration—mandatory reassignment— 
but left intact the ability of school districts and the state to pursue integration in 
other ways. Moreover, unlike Article 111 and similar measures challenged in 
cases described supra, the Crawford provision did not establish a parental veto 
over integration, fusing private discrimination with the power of the state, nor did 
it prevent, as appellants suggest, the state constitution from requiring “more” than 
the federal constitution in terms of racial integration.

Appellants’ citations to Wilson, 110 F.3d at 1339, and Louisiana Assoc.
Gen. Contractors v. State. Div. o f Admin., 669 So.2d 1185 (La. 1996) are likewise 
inappropriate, if not altogether puzzling. The principal proposition for which 
those cases stand is that the federal constitution does not require affirmative

30



B. Appellants’ Interpretation Would Render Article 111
Unconstitutional Under Hunter v. Erickson, 393 U.S. 385 (1969).

If interpreted broadly to apply to the Lynn Plan and RIA, Article 111 would 

also be invalid under the principle announced in Hunter v. Erickson, 393 U.S. 385 

(1969). In Hunter, the Supreme Court struck down a city charter ordinance 

designed to make it more difficult to enact civil rights protections on property 

transfers than to enact similar measures unrelated to race. The Court recognized 

the applicability of Reitman, but concluded that it “need not rely on Reitman” 

alone where state action creates an “explicitly racial classification” that “places 

special burdens on racial minorities within the governmental process.” Id. at 390- 

91.

As with Reitman, federal courts immediately found Hunter applicable in the 

context of provisions limiting or prohibiting public school student assignments 

made for the purpose of racial integration. See, e.g., Lee, 318 F. Supp. at 718-19 

(“The statute . . . creates a clearly racial classification, treating educational matters

action, and thus statewide initiatives or state constitutions that eliminate it do not 
violate federal constitutional principles. Wilson, 110 F.3d at 1439; Louisiana, 669 
So.2d at 1199. But, of course, that is not the question here. Importantly, as 
indicated supra § I.C., Wilson, 110 F.3d at 707 n. 16, acknowledges the analytical 
distinction between the “stacked deck” preference policies and “reshuffle” 
programs like the Lynn Plan-a distinction which the Louisiana court also found 
persuasive. 669 So.2d at 1199 n. 13.

31



involving racial criteria differently from other educational matters and making it 

more difficult to deal with racial imbalance in the public schools. We can 

conceive of no more compelling case for the application of the Hunter 

principle.”); Johnson, 479 P.2d at 673 (a statute “prohibiting busing for purposes 

of integration, while allowing busing for all other purposes . . . [creates] a racial 

classification probably unconstitutional under Hunter").

Even the Supreme Court, in the Seattle case, discussed supra § I.B.,

employed the Hunter principle to invalidate an anti-busing initiative of the same

era as Article 111. Evaluating a recently adopted statewide initiative prohibiting

school boards from assigning students to schools other than the one nearest (or

next nearest) to their home, the Court concluded:

[Its] practical effect. . .  is to work a reallocation of power 
of the kind condemned in Hunter. The initiative removes 
the authority to address a racial problem-and only a racial 
problem—from the existing decisionmaking body, in such 
a way as to burden minority interests. Those favoring the 
elimination of de facto school segregation must now seek 
relief from the state legislature, or from the statewide 
electorate. Yet the authority over all other student 
assignment decisions remains vested in the local school 
board. . . . [T]he initiative expressly requires those 
championing school integration to surmount a considerably 
higher hurdle than persons seeking comparable legislative 
action. As in Hunter, then, the community’s political 
mechanisms are modified to place effective

32



decisionmaking authority over a racial issue at a different 
level of government.

458 U.S. at 474-75. Hunter and its progeny, therefore, buoy the Reitman doctrine 

in disputes involving “explicitly racial classifications.” And as the Seattle Court 

recognized, measures that curtail the authority of school districts to adopt 

integrative student assignment policies ordinarily left to their sound discretion are 

precisely the kind of measures Hunter was intended to address. Id. at 474.

Article 111, if interpreted to apply to this case, would deny school boards 

throughout the Commonwealth ability to address the harms of racial isolation 

identified and addressed at length in the Kieman report, see Comfort, 283 F. Supp. 

2d at 342, under the powers ordinarily delegated to them pursuant to applicable 

state laws. See, e.g., Mass. G. L. ch. 71, § 1 et seq. (2002). By so doing, it would 

subject integrative student assignments to a higher burden than all other student 

assignments—in this case, even if they involve only voluntary transfers as opposed 

to mandatory assignments-by stripping the authority to make such decisions from 

state and local educational officials and handing it over to individual parents. 

Under such a reading, then, Article 111 must be deemed invalid, violative of the 

Fourteenth Amendment and the principle established in Hunter.

33



CONCLUSION

For the foregoing reasons, amici respectfully request that this Court affirm 

the order and judgment of the district court.

Respectfully submitted,

Dated: June 9, 2004

Theodore M. Shaw 
DIRECTOR-COUNSEL

Norman J. Chachkin 
Chinh Quang Le (94339)
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
(212) 965-2200 Phone
(212) 226-7592 Fax

Nadine Cohen
Lawyers’ Committee for Civil Rights 
Under the Law of the Boston Bar Association 
294 Washington Street 
Boston, Massachusetts 02108 
(617)482-4392 Phone

ATTORNEYS FOR AMICI CURIAE 
PAMELA FREEMAN, et al.

34



CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because it contains 7951 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using WordPerfect 9.0 

in 14 point, Times New Roman font.

Dated: June 9, 2004
Cl
Attorney tor Amici Curiae 
Pamela Freeman, et al.

35



CERTIFICATE OF SERVICE

I hereby certify that the foregoing brief of amici curiae Pamela Freeman, et. 

al, was filed with the Clerk of the Court this 9th day of June, 2004, via Express 

Mail. I further certify that two copies of the same brief were also served via first 

class U.S. mail on each of the parties in this case:

Richard W. Cole 
John R. Hitt
Assistant Attorneys General 
One Ashburton Place, Rm. 2019 
Boston, Massachusetts 02108

Michael Williams 
Robert J. Roughsedge 
Chester Darling 
Citizens for the Preservation of 

Constitutional Rights 
306 Dartmouth Street 
Boston, Massachusetts, 02116

Dated: June 9, 2004
Chin
Atto
Pamela Freeman, et al.