Opinion
Civil Action Number 99-11330-RGS
May 21, 2002
ORDER ON ISSUE OF STANDING AND FURTHER DISCOVERY SCHEDULE
Plaintiffs brought this lawsuit alleging that Boston school authorities had deliberately infringed their constitutional and statutory rights to a race-blind public school admissions process. In a January 25, 2002 Memorandum and Order, the court found that while plaintiffs lacked standing to pursue immediate injunctive relief (given the absence of any cognizable injury), there was a strong possibility that one or more plaintiffs had standing to seek prospective relief enjoining any racially-based allocation of walk zone preferences. Boston's Children First v. Boston School Committee, 183 F. Supp.2d 382, 393, 399-400 (D. Mass. 2002). Consequently, the court afforded plaintiffs an opportunity "for further briefing of the Lesage issues identified in this opinion, as well as issues of a constitutional dimension raised by the School Committee's walk zone preference policy." Id., at 403.
More specifically, the court directed plaintiffs to demonstrate, factually and legally, the standing of at least one of their number to petition for declaratory relief. February 27, 2002 Order.
In Texas v. Lesage, 528 U.S. 18 (1999) (per curiam), the Supreme Court held that where a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief. . . . Of course, a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered. The relevant injury in such cases is "the inability to compete on an equal footing." But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government's conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability.
Id. at 21 (internal citations omitted). See also Wooden v. Board of Regents of University System of Ga., 247 F.3d 1262, 1279 (11th Cir. 2001) ("[W]hen an applicant competing for a government benefit has been exposed to unequal treatment, it is the exposure to unequal treatment which constitutes the injury-in-fact giving rise to standing").
Here, there is an allegation of an ongoing race-conscious program involving the School Committee's walk zone policy. Moreover, plaintiffs Nicholas Anderson, Kayleigh Barry-Meltzer, Kathleen McCoy, John O'Toole, and Andrew Sharaffa have attested to having applied for year 2002-2003 admission to schools within their walk zones. See Plaintiffs' Memorandum, at Ex. A, Ex. B, Ex. D, Ex. E and Ex. F. Plaintiffs Michael Gattozzi, and Thomas Stoddard also attest to their intention to remain in the Boston public school system and to apply for middle school assignments within their respective walk zones. Id., at Ex. C and Ex. G. Because each of these plaintiffs (assuming the truth of the allegations of discrimination) has or will suffer an injury in the sense of being forced to compete for neighborhood school placements on a less than level playing field, under Lesage each has demonstrated standing to seek forward-looking relief. The two remaining plaintiffs, Sean Stoddard and John Feeney, did not apply for placement in a Boston public school within their walk zone this year nor have stated any intention of re-applying for placement in the foreseeable future.
Plaintiffs contend that Jamie Lee Higgins, after completing eighth grade at the Murphy School, will apply for assignment to attend a Boston public high school. Given the absence of any attestation of her intent to do so, and given the likelihood that this case will be resolved well before any such application is made, the likelihood of Ms. Higgins' future exposure to a discriminatory admission process is too remote to establish standing. See Johnson v. Board of Regents of University of Ga., 263 F.3d 1234, 1266 (11th Cir. 2001).
In 2002-2003, Sean will attend Boston Latin Academy and John will continue to attend the Neighborhood House Charter School.
The parties are directed within fourteen (14) days of this Order to jointly submit a proposed expedited discovery and motions schedule with respect to the issue of the constitutionality of the School Committee's current walk zone preference policy.
The court in its January 25, 2002 Memorandum and Order also directed plaintiffs to identify those of their number who possess viable claims for compensatory or nominal damages.
To overcome a Lesage defense, a plaintiff seeking compensatory or nominal damages in the circumstances of this case, is required to show that: (1) he or she was denied a walk zone preference because of being classified as "white" and, as a result, was denied admission to a school of his or her choice; (2) he or she was denied a permanent kindergarten seat because of being classified as "white" and, as a result, was denied a first grade seat at the school of his or her choice; (3) he or she was denied admission to the school of his or her choice because of a ceiling placed on the number of otherwise eligible "white" students who would be accepted at the school; and/or (4) he or she was denied admission to the school of his or her choice because an otherwise open seat for which he or she would have been eligible was filled by a student with a racially grandfathered sibling preference.
183 F. Supp.2d., at 402. For whatever reason, plaintiffs have chosen not to respond. Defendants, on the other hand, have presented an exhaustive analysis demonstrating that most of the plaintiffs would have received the same school assignments even had the School Committee not used allegedly unconstitutional admissions criteria under the so-called Old Plan, which was in place prior to the 2000 school year. I do note, however, that in their November 2000 summary judgment submissions, defendants admit that the school placements of plaintiffs Kayleigh Barry-Meltzer, Kathleen McCoy, and John Feeney, Jr., were affected by race. Id., at ¶¶ 41, 48 and 63. I conclude that under Lesage, these plaintiffs have standing to proceed. (These plaintiffs seek only nominal damages). The parties will within fourteen (14) days of this Order jointly submit a proposed discovery schedule in order to resolve the damages claims of these plaintiffs.
John Feeney, Jr., did not receive an assignment to his third and fourth choice schools in the 1999-2000 school year because "seats were held for students of other ¶¶ 48 and 49. However, two weeks into the school year, John was admitted from the waiting list to his second choice school.
SO ORDERED.